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

Floor Speech

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Mr. LEE. Mr. President, I stand today to respond to what I believe are irresponsible and dangerous attacks on the legitimacy of the Supreme Court of the United States.

Over a 3-day period, beginning on March 26 of this year, the Supreme Court held more than 6 hours of oral argument to address the constitutionality of the Affordable Care Act. I was privileged to attend each of those sessions, and I can say that as a lifelong student of the Constitution and as one who served as a law clerk at the Supreme Court of the United States, I was very interested to not only watch the arguments but also to read many of the briefs and follow each of the proceedings very closely.

Like so many others who watched or read those proceedings, I was most impressed by the quality of the questions, the quality of the advocacy, and the overall discussion that took place in the Supreme Court. Through their questions, the Justices showed keen interest in the nature of the arguments made in support of ObamaCare. For example, Justice Kennedy asked whether, under the administration's theory of the commerce clause, there could be any meaningful limitation on the Federal Government's power under the commerce clause. He asked specifically, ``Can you create commerce in order to regulate it?'' Such questions and hypotheticals are common and they are a useful way by which lawyers and judges tend to test the basic principled limits enshrined in our Constitution.

If the Federal Government may compel commerce so that it may regulate the resulting commercial activity, there would arguably be little, if any, limit to the scope of Federal power. There would be no aspect of our individual lives that the Federal Government could not dictate and control.

Such an all-powerful authority is, of course, flatly inconsistent with the Constitution's doctrine of enumerated powers--this principle that is perhaps more well-settled than any other principle within our almost 225-year-old founding era document.

Based on the Justices' questions and oral argument, many commentators--myself included--have predicted that the Supreme Court may well choose to invalidate the individual mandate of the Affordable Care Act. Apparently anticipating this possible outcome, some of my colleagues, as well as President Obama, have made statements suggesting that it would somehow be improper for the Supreme Court to invalidate the Affordable Care Act. They have asserted that striking down an act of Congress such as this one would somehow amount to judicial activism and that that would otherwise be wildly inappropriate. They have criticized some of the questions asked by individual Justices, and they have even gone so far as to suggest that those Justices who might vote to invalidate the Affordable Care Act would do so for reasons representing bias or partisan political motivations. This reminds me of the old saying that you can often tell in a particular game which team is losing by which side happens to be yelling at the referee.

In response to these false and, frankly, reckless statements, I would like to make three points.

First, attempts to manipulate or to bully the Supreme Court, especially during deliberations in a particular proceeding, are irresponsible, and they tend to threaten the very fabric of our constitutional Republic. Each Justice has sworn an oath to support, defend, and bear true faith and allegiance to the Constitution and to discharge his or her duties faithfully and impartially.

From time to time, politicians and others may disagree with the Court as to important constitutional issues or even on the merits of a particular case. I certainly feel that way myself from time to time. But it is simply inappropriate for elected representatives--who themselves have sworn an oath to the Constitution--in a spirit of partisanship, to question the honesty and impartiality of our Nation's highest Court in what could be perceived as part of an effort on the part of those elected politicians to influence a case pending before the Supreme Court.

Second, criticisms of the well-established principle of judicial review grossly misrepresent how our constitutional Republic functions.

President Obama and some Members of this body have suggested that the judiciary--which they sometimes denigrate as a group of unelected people--should simply defer to Congress. But, of course, each branch of government, including the judiciary, has an essential duty under the Constitution to police its own actions, to make sure that its own actions comply with the text, the spirit, and the letter of the Constitution.

Congress and the executive branch should police themselves to make sure they don't transgress those limits. But when the political branches happen to overstep their own boundaries, their own legitimate limits--as I believe happened with the individual mandate--the Supreme Court can and indeed must enforce the Constitution.

In a recent appearance before the Judiciary Committee, Justice Breyer explained, ``We are the boundary patrol.'' The Constitution sets boundaries, of course. That is what is at issue here. This foundational principle applies to popular laws just as much as it applies to unpopular laws.

The vast majority of Americans--about 74 percent, according to one recent poll--oppose the ObamaCare individual mandate. The Supreme Court will not strike it down merely because it is unpopular, but the Court must do so if the mandate exceeds the authority granted to Congress under the Constitution. That is what is at issue.

Third and finally, it simply is not the case that a court can properly be described as activist just because it enforces the Constitution's structural limits on Federal power. In this context, it is not altogether helpful to focus the discussion of whether the Court is acting properly on the contours of the words ``activist'' or ``activism.'' We have to remember that, for the Supreme Court, not acting to invalidate an unconstitutional law is every bit as bad, is every bit as repugnant to the rule of law and to the Constitution as it is for the Court to act to invalidate a law that is entirely justified on a constitutional basis. Both represent, both are the product of a betrayal of the Supreme Court's duty to decide cases according to the laws and to the Constitution of the United States of America.

When the Supreme Court acts to enforce the Constitution's limits on Federal power--as I expect it may do in the Affordable Care Act case--it does so pursuant to specific textual provisions of the Constitution. Enforcing the law in this undeniably legitimate matter is not activist; rather, it is an essential function of the judiciary in preserving the liberties guaranteed by our Constitution. Among those liberties, of course, are those protected by perhaps the most important fundamental component of the Constitution, this notion that we are all protected when the power of Congress and the power of the Federal Government as a whole is restricted. This is why James Madison appropriately observed that it was with good reason that the Founding Fathers reserved to the States powers that he described as numerous and indefinite, while describing those powers that were vested in this body as few and defined. We are all safer, we are all more free, we are all more prosperous to the extent that we stand by this most important fundamental precept of the Constitution. That is what is at issue in this case.

I hope and I trust that, moving forward, President Obama and my colleagues in this body will refrain from attempting to bully the Supreme Court or seeking to misrepresent the Court's important work in fulfilling its constitutional duties. Let's stop yelling at the referees and let the Supreme Court do its job while we do ours.

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