Unprecedented Act of the Court?

President Obama appeared to challenge the “unelected” Supreme Court not to take an “extraordinary” and “unprecedented” step of overturning his health reform law.

“Ultimately, I am 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,” Obama said.

Is it truly unprecedented? In 1803 Marbury v. Madison was the first instance in which a law passed by Congress was declared unconstitutional. The decision greatly expanded the power of the Court by establishing its right to overturn acts of Congress, a power not explicitly granted by the Constitution. Initially the case involved Secretary of State James Madison, who refused to seat four judicial appointees although they had been confirmed by the Senate.

The Wall Street Journal noted: “President Obama is a former president of the Harvard Law Review and famously taught constitutional law at the University of Chicago. But did he somehow not teach the historic case of Marbury v. Madison?”

On April 3rd President Obama agreed that the Supreme Court does have the right to overturn Congressional laws. He added that the Supreme Court has never restrained Congress’ power under the Commerce Clause. “We have not seen a Court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce—a law like that has not been overturned at least since Lochner. Right? So we’re going back to the Thirties, pre-New Deal,” he said.

Lochner was one of the most controversial decisions in the Supreme Court's history, giving its name to what is known as the Lochner era. In the Lochner era, the Supreme Court issued several controversial decisions invalidating progressive federal and state statutes that sought to regulate working conditions during the Progressive Era and the Great Depression.

In 1995, United States v. Alfonso Lopez, Jr., 514 U.S. 549 set limits to Congress's power under the Commerce Clause of the United States Constitution. Lopez raised serious questions as to how far the Court might be willing to go in implementing judicial safeguards against federal encroachments on state sovereignty. This precedent takes special significance in cases where the federal government is attempting to limit private conduct.

In 2000, United States v. Morrison, 529 U.S. 598 the Supreme Court judged that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution.

Judge Jerry Smith of the Fifth Circuit Court of Appeals asked Attorney General Eric Holder to explain whether or not he agrees with the President that it would be “unprecedented” for the Supreme Court to strike down a law that had been duly passed by Congress. Holder has responded, with a three-page, single-spaced letter, as Smith requested.

In the letter Mr. Holder acknowledges "The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation."

It does not appear that the DOJ is questioning the authority if the Supreme Court. That does not change the stance that the president took, however.

Appearing on Neil Cavuto’s “Your World” show Wednesday, the Judge Napolitano warned that Obama was systematically flouting the system of checks and balances established by the founding fathers.

“A few months ago he was saying the Congress doesn’t count. The Congress doesn’t mean anything. I am going to rule by decree and by administrative regulation.” Napolitano said.

“Now he’s basically saying the Supreme Court doesn’t count. It doesn’t matter what they think. They can’t review our legislation. That would leave just him as the only branch of government standing.”

“I think he has some problems with understanding the Constitution or accepting limitations on his power.” the Judge added.