Donald Scarinci

Donald Scarinci explains how Marbury v. Madison, decided in 1803, gives the United States Supreme Court the power to decide whether "Obama care" will be the law of the land or not.

Supreme Court Review of the Affordable Care Act began in 1803

American's who support and oppose "Obamacare" now find themselves without elected Congressmen to lobby and without the media to influence public opinion. The fate of the Affordable Care Act is now in the hands of nine people elected by no one and appointed for life to the job. This leaves some Americans wondering why the United States Supreme Court has this extraordinary power to affirm or set aside this hard fought victory of Barak Obama's first term presidency.

In 1803, the United States Supreme Court considered the facts of Marbury v. Madison and decided that the Supreme Court has the power to invalidate acts of Congress if they determine those acts to be in conflict with the Constitution of the United States. This legal doctrine is known as "judicial review."

The case was brought by William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia during the hotly contested Presidential election of 1800. Although Marbury's commission was approved, it was not delivered before Adams' term in office ended.

When Thomas Jefferson took office, he ordered James Madison, his Secretary of State, not to deliver the commissions signed by his predecessor. Marbury subsequently petitioned the Supreme Court to force Madison's hand through a writ of mandamus, a legal order compelling him to act.

The justices held that the Judiciary Act of 1789, on which Marbury relied to bring his petition to the High Court, was unconstitutional. The Court invalidated the law because it extended the Court's original jurisdiction (the power to bring cases directly to the Supreme Court) beyond the scope of the Constitution. Under Article III, original jurisdiction is only given to cases "affecting ambassadors, other public ministers and consuls" and to cases "in which the state shall be party."

In plain terms, the Supreme Court determined that Congress had overstepped its authority in passing the law, and it was the Court's duty, as the protector of the Constitution, to strike it down.

This decision forms the basis for petitioners to challenge the constitutionality of our laws before the Supreme Court, including the health care law being debated today. In addition to establishing judicial review, the Marbury decision elevated the power of the Supreme Court and started its gradual rise to an equal branch of the federal government.

In most states, the state legislature reconfigures its own map and the congressional map every ten years when the census numbers are finalized. Fifteen states have created redistricting commissions claiming that these commissions would be less politic cal.

The fact is that even in the states that create district maps by special commissions with tie breaking voters are political. They don't start out that way. Everyone makes great speeches about "fairness" and "equity" but in the end, in every state that redistricts by commission, it is a political decision based on party politics. Diane Carman writing for the Denver Post ten years ago said, "Getting the partisanship out of politics is like trying to take the sex out of porn."

Since the beginning of our nation, there was always gamesmanship. The most famous story comes to us from Massachusetts in 1812. Governor Eldbridge Gerry, a patriot who was outspoken in his support for Samuel Adams before the American Revolution, takes the rap for the redistricting practice known as "Gerrymandering." Gerry was the leader of the Democratic - Republican Party in Massachusetts. To prevent the Federalists from winning control of Massachusetts, Gerry supported a map that captured 29 legislative seats for his Democratic Republican party and only 11 seats for the Federalist Party even though the Democratic Republican party only had 50,164 votes while the Federalists had 51,766 votes in Massachusetts. The Gerrymandering of Massachusetts gave a more than 2 to one majority to a political party that represented less than half of the voting population.

Even as the work of the state legislatures and commissions conclude their deliberations and recommend new voting maps over the next several months, redistricting will remain in the news for years. There will be new issues that the courts will be called upon to decide and the political gamesmanship between the political parties will inevitably work its way to the judicial branch of government as their referee.

Do you know what Redistricting is? Why does it have to be so political? In this video Donald Scarinci will explain what Redistricting is, and why its such a hot topic right now.

There's a lot being written about congressional redistricting in the news right now. That's because once every ten years, after the results of the Census are tabulated, every state needs to take a look at their state legislative and congressional districts and redistribute the population as evenly as possible in each of those districts. It is the concept of one man, one vote and it has been around since the constitutional convention of 1787.

As you guessed, since the population grows and shifts, the views that each representative takes to Washington are representative of a majority of the people who elect them. That means that who the voters of each district are determines what representative they will elect to send to Washington. Every ten years, after the census results are finalized who votes where becomes the question—what is the map? Until modern times state legislatures decided that. Even today in 35 states, it is the state legislatures that create the new voting map every ten years.

Politics, you say? Absolutely.