Two years ago, then-House Speaker Nancy Pelosi (D–CA) shocked many Americans by dismissing a question about Obamacare’s constitutionality with the flippant retort: “Are you serious? Are you serious?” So much for the oath she swore to “support and defend” the Constitution. By comparison, the current Speaker of House, John Boehner (R–OH) demonstrates that he takes his oath far more seriously.
Raising concerns about Obama’s recent decision to bypass Congress and unilaterally change student loan and mortgage policy, Speaker Boehner pledged that the House will keep “a very close eye on the administration to make sure they are following the law and following the Constitution.” Speaker Boehner should be commended for taking his constitutional responsibility seriously and especially for not falling prey to the politically convenient but noxious notion that only the Supreme Court can make constitutional decisions.
When it comes to discussing the constitutionality of federal policy, far too many American politicians—both on the left and the right—have adopted the convenient mantra of “let the courts decide.” Such thinking reveals a grave misunderstanding of the purpose of the Constitution’s separation of powers.
This misunderstanding proceeds from the assumption that power is to be separated by giving only one branch (the courts) the ability to interpret the Constitution as a restraint against the other two. In fact, the opposite is true: Each branch is given different means of enforcing the Constitution.
In Federalist 51, Madison explained that the principle of the separation of powers “consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.” The most basic example of this is the President’s ability to veto unconstitutional bills passed by Congress. In 1792, for example, George Washington vetoed a bill to reapportion representatives that would have violated constitutional requirements for congressional representation.
It is true that the Supreme Court has an important role to play in preserving the Constitution. But relying solely on the Court to enforce the Constitution undermines the separation of powers, which is essential to the preservation of the Constitution. Any statesman truly committed to support and defend the Constitution should, therefore, reject Nancy Pelosi’s “Are you serious?” approach and instead follow Boehner’s excellent example of constitutional vigilance.