When President Obama made his famous declaration about how he was confident that “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,” many observers figured the chief executive missed April Fools’ Day by a single digit. Certainly this comment—coming from what every pundit likes to emphasize is a “former constitutional law professor”—dropped jaws among legal scholars and supporters everywhere, sending virtually everybody referring to that favorite hunk of American constitutional DNA, Marbury v. Madison. It’s not hard to see why. In this case, Chief Justice Marshall declared that it is the duty of the courts “to say what the law is,” and further “that a law repugnant to the constitution is void, and that the courts, as well as other departments, are bound by that instrument.” In short, passing judgments on laws passed by Congress is what Supreme Court justices do and have been doing since the origins of the republic.
The problematical aspect of Marbury is that it really isn’t the best case to provide hints about President Obama’s strategy in dealing with what likely will be a judgment that declares unconstitutional at least part of the Affordable Care Act—specifically, the individual mandate requirement. A much more instructive case was decided in May 1935 and involved striking down a law that, if anything, dealt with a much more egregious invasion of the private sector by an act of Congress, the National Industrial Recovery Act, which was part of the original New Deal.
The NIRA provided for “codes of fair competition” drafted by trade or industrial groups, and covered virtually every aspect of business enterprise, including standards on wages, prices, working conditions, trade practices and the like, justified by the Commerce Clause of the Constitution. Under the auspices of this mammoth and unwieldy piece of legislation, a group of defendants who operated a slaughterhouse and sold chickens to kosher retailers had been convicted of violating the code’s wage and hour stipulations, ignoring the so-called “straight-killing” requirement, and as a result selling an “unfit chicken.”