Supreme Court Review of the Affordable Care Act Began in 1803

Americans who support and oppose “Obamacare” now find themselves without elected Congressmen to lobby and without the media to influence public opinion.  The fate of the Affordable Care Act is now in the hands of nine people elected by no one and appointed for life to the job. This leaves some Americans wondering why the United States Supreme Court has this extraordinary power to affirm or set aside this hard fought victory of Barak Obama’s first term presidency.

Common law legal systems, like the American legal system, are based on precedent. The rule of law determined by the highest court in the land based upon one set of facts must be followed by another court if that same set of facts exists at another place or time.

In 1803, the United States Supreme Court considered the facts of Marbury v. Madison, 5 U.S. 137, and decided that the Supreme Court has the power to invalidate acts of Congress if they determine those acts to be in conflict with the Constitution of the United States.  This legal doctrine is known as “judicial review.”

The case was brought by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia during the hotly contested Presidential election of 1800. Although Marbury’s commission was approved, it was not delivered before Adams’ term in office ended.

When Thomas Jefferson took office, he ordered James Madison, his Secretary of State, not to deliver the commissions signed by his predecessor. Marbury subsequently petitioned the Supreme Court to force Madison’s hand through a writ of mandamus, a legal order compelling him to act.

In deciding the case, the Supreme Court focused on three specific questions:

1. Has the applicant a right to the commission he demands?

2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

3. If they do afford him a remedy, is it a mandamus issuing from this court?

The Supreme Court easily answered the first two questions. It first found that Marbury had been properly appointed in accordance with the procedures established by law. Since his commission was approved by the Senate, signed by the President, and sealed by the Secretary of State, the Court concluded, “To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right.”

The Court further concluded that Marbury was entitled to a legal remedy. As noted in the opinion, “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.”

While the Court agreed that a mandamus was the proper remedy, it ultimately concluded that it was not authorized to grant it. Its reasoning would form the foundation of the doctrine of judicial review.

The justices held that the Judiciary Act of 1789, on which Marbury relied to bring his petition to the High Court, was unconstitutional. The Court invalidated the law because it extended the Court’s original jurisdiction (the power to bring cases directly to the Supreme Court) beyond the scope of the Constitution. Under Article III, original jurisdiction is only given to cases “affecting ambassadors, other public ministers and consuls” and to cases “in which the state shall be party.”

In plain terms, the Supreme Court determined that Congress had overstepped its authority in passing the law, and it was the Court’s duty, as the protector of the Constitution, to strike it down.

As Chief Justice John Marshall wrote:

It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

As I mentioned at the beginning of this post, this decision forms the basis for petitioners to challenge the constitutionality of our laws before the Supreme Court, including the health care law being debated today. In addition to establishing judicial review, the Marbury decision elevated the power of the Supreme Court and started its gradual rise to an equal branch of the federal government.