Agriculture Reform, Food, and Jobs Act of 2012--Motion to Proceed--Resumed

Floor Speech

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Mr. CORNYN. Mr. President, would the Chair advise me when 5 minutes have elapsed.

I wish to add a few more words to what has already been said by some of our most distinguished lawyers in the Senate; that is, it is not controversial that, since 1803, the doctrine of judicial review, as decided by the U.S. Supreme Court, has held in essence that it is the responsibility of the judiciary, the Supreme Court, to say what the law is. Congress has its role and the Court has its role and they are different. We can tell one reason they are different is because Congress is elected every 6 years in the Senate, every 2 years in the House. We are accountable to the people for our decisions, for the policies we vote for and against. That is why we are called the political branches of government, as is the executive branch. The President stands for election. In essence, every Presidential election, every congressional election is a referendum on the people and the policies they embrace.

The role of the Supreme Court and Federal courts is very different, as we all know. It is kind of remarkable to me that we are having this conversation, but it is necessitated by the fact that the President and the distinguished chairman of the Senate Judiciary Committee have--at different times and different places--questioned the legitimacy of the Supreme Court performing this function, which Chief Justice John Marshall wrote about in 1803 in Marbury v. Madison, that it is the role, the emphatic duty of the Court to say what the law is.

If it is Congress's responsibility to write the policies

and to write legislation, how is it different from the judiciary? Sometimes the judiciary interprets that legislation, trying to figure out what Congress intended. But in the area of constitutional review, more fundamentally they want to make sure Congress has stayed within the limits imposed upon it by the American people when they ratified the U.S. Constitution. Of course, that is the big decision in the health care case.

It is almost unprecedented. We probably have to go back to the 19th century to find where the Supreme Court gave so much time for advocates to argue a Supreme Court case. Ordinarily, it is very strict time limits. But here the Court set 3 days' worth of arguments down because of the importance of the case and importance of the issues that the Court will be called upon to decide.

My colleagues have already talked about the fact that the individual mandate has been the focus of so much attention. It is not the only issue. There is another very important issue in terms of whether the Congress and the Federal Government can commandeer State resources through a huge expansion in Medicaid, which is then forced down on the States that they then have to accommodate within their State balanced budget requirements. But on the individual mandate, certainly we saw how the Solicitor General of the United States stumbled, not because he is inarticulate or incapable--he is very articulate, he is a very capable lawyer--but he simply did not have a good argument to make when he was asked what is the principle limitation on the Federal Government's authority under the commerce clause if the Federal Government can do this. Stated another way, what is it that the Congress cannot do, the Federal Government cannot do, if they can force us to buy a government-approved product and then fine us if we do not do that, which is the individual mandated argument.

I don't think it is a controversial topic, and I am surprised we even find ourselves here, responding to the Congress's remarks and the chairman of the Judiciary Committee's remarks questioning the authority that existed since 1810 in Marbury v. Madison, the doctrine of judicial review and the role of the judiciary to say what the fundamental law of the land allows and does not allow in terms of Federal power.

There is another argument being made; that is, that if the Supreme Court comes out and disagrees with Congress on the health care law, that somehow its legitimacy will be jeopardized. I do not think public opinion polls have or should have anything to do with the way the Supreme Court decides an issue because their focus should be on the Constitution and not on the policy arguments. In other words, they should not interfere with our role to make policy because, of course, we are then held accountable to the voters while they are given life tenure and they are given the protection of no reduction in their salary during their service on the bench--exactly for the reason they need to be protected from public opinion because their role is to focus on the Constitution.

I close by saying, according to a recent poll, 74 percent of Americans want the Court to strike down the individual mandate. Were the Court to do that, it would hardly undermine the legitimacy of the Court if the Court happened to, by coincidence, render a decision that the majority of Americans would agree with.

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