Monday, April 9, 2012

What is Judicial Review?

Precedent:  Has been upheld by the courts before

Unprecedented:  Has never been upheld by the courts before

Judicial Review:  Implied belief that the Constitution has created the Supreme Court to define if a law is legal under the Constitution of the United States of America.  If not, the courts have an obligation to strike down the law.

Judicial Restraint:  Not ruling on a decision and allowing the people, Congress or the President to decide on a matter.  Allowing popular opinion to rule rather than the opinions of nine justices.

Marbury versus Madison:  An 1803 case where for the first time the U.S. Supreme Court overturned a law passed by Congress due to its unconstitutionality.  It set the precedent of judicial review, whereby the role of the U.S. Supreme Court was to make sure laws were Constitutional. 

Reuters, "Obama takes shot at Supreme Court Over Healthcare," reported on an attack by Obama on Monday, April 2, 2012.  Obama said:  " I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Fact:  Obama is wrong in this statement because since Marbury versus Madison there have been 160 instances where the Supreme Court has overturned a law passed by Congress and the President.  So it would be precedented. In fact, making sure Congress and the President follow the Constitution is the sole purpose of the U.S. Supreme Court.  

Obama said, "And I -- I'd just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint; that, uhhh, an uninelected (sic), uhhh, group of -- of people would somehow overturn, uhhh, a duly constituted and -- and passed, uh, law. Uh, well, eh, uh, uh, is a good example. Uhh, and I'm pretty confident that this, uh -- this court will recognize that, uh, and not take that step."

Fact:  Judicial restraint is not necessary in the court making this decision because there is due evidence that Congress and the President may possibly be stepping on the Constitution.  If such a case is determined to be true, Obamacare would have to be found illegal.  

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