People v. State

It probably comes as no surprise that I thoroughly enjoyed the spectacle of Obama implying in a speech that the federal courts lack the authority to strike down Obamacare and the Fifth Circuit responding by directing the Attorney General to hand in a 3 page single-spaced essay on Marbury v. Madison. I am a big believer in judicial restraint: I think judges should be restraining the legislature every chance they get, not because I believe in the authority of unelected judges, but because I don’t believe in the authority of elected legislators. Jonathan Turley makes a halfway decent point:

[W]ith a majority of states in court opposing the law and roughly half of the public opposed to the law, it is hard to gauge the democratic will of the people on the issue. Of course, Obama is right that the law was passed by a democratic process. However, I thought it was a mistake at the time to push through a bill on the thinnest of margins. Franklin Delano Roosevelt famously insisted that he would not ask for a declaration of war in World War II until he could secure the vote by an overwhelming margin. He understood that wars — like major legislative programs — tend to become less popular with time. The Administration not only muscled through a poorly written law but did so with roughly half of Congress opposed. I support national health care but this was not the way to do it.

Follow