An unusual request, but then again, the president’s critical remarks about the Supreme Court on Monday were also unusual. A three-judge panel of the 5th Circuit Court of Appeals, all Republican appointees, is requiring the Department of Justice to submit a three-page, single-spaced letter tomorrow on whether the Executive Branch believes that courts can strike down laws that are found to be unconstitutional.
CBS News reports:
In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom. …
The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.
The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.
Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.
Was this an honest request, or a political stunt? Obviously, the Obama administration’s position on this is relevant in this case. However, this is only going to feed into the latest contention from Democrats that there’s too much politicization in the courts. At Volokh Conspiracy, Orin Kerr writes that the 5th Circuit’s request was inappropriate, particularly since the DOJ lawyer had already responded to the question in court:
Having heard the audio, the tone of the questions was quite different from what I was expecting based on the story. It came off to me as earnest and genuine, not just an effort to score a cheap political point. With that said, the order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ’s position, and lower court judges deciding cases based on briefing and argument should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn’t help anyone.
President Obama has also clarified his comments since Monday, which could change the court’s mind about the order before the deadline tomorrow.
Orin Ker is wrong. It was highly appropriate. Respect must be mutual between coordinate branches. If one branch wrongly attacks another, the attached brach is duty-bound to fight back in kind. It would be foolish and an abdication of responsibility for the court to take a slap in the face lying down. Frankly, the only problem is this order should have come from the Supreme Court itself.
I look at this on an even simpler level: Kettle Pleading. n nThat goes back to the middle ages and involved a person being sued for not returning an iron kettle, which was a valuable item back then. The defense was that (a) he had already returned it, (b) never borrowed it in the first place, (c) that it was broken when he borrowed it, and a few other things. n nCourt ruled that your position has to be logically consistent. That comes down through the years and still is a precedent today. n nI think a judge, any judge, is well within his/her/its rights to say "hey guys, is your client (Obama) arguing the same things you are, or are you "kettle pleading"? Challenging the authority of a court to rule in a matter *is* a legal position — except that in this case there are two centuries of precedent. n nImagine Obama not as POTUS but as a nationally known private citizen. Were said citizen to publicly state something contrary to what his lawyers were arguing on his behalf in a court, would the judge not be within his/her/its rights to demand the citizen come in and clarify the matter? I believe so. And as we learned with Nixon, the POTUS is not above the law. n nQED, if they really wanted to play hardball, they could demand a contrite Obama come in and testify that his position is what his lawyers are testifying to, or go to jail for contempt. That would be a political circus, SCOTUS probably would drop everything to hear the appeal, but absent a Congress willing to impeach the Federal judge(s) involved, could you actually jail the POTUS for contempt? Hmm….. n nThe ultimate irony of the _Marbury v. Madison_ case is that it was John Marshall himself who hadn't gotten Marbury's commission delivered to him before midnight when John Adams' POTUS term expired, with Marshall going from Sec of State to SCOTUS. Just like a certain SCOTUS justice today went from defending NoBama NoCare to now (hopefully) being in the minority of the court ruling on it.
nThe audacity of Barack Hussein Obama II to question the role of the Supreme Court to find laws unconstitutional is either a sign that he does not understand the three branches of government or he just doesn't care. In either case its a scary moment. We have elected a president who stole the nomination from Hillary Clinton by lying and saying that he was against mandatory health insurance. Now Obama is claiming that ObamaCare passed by a strong majority which will make us all slaves to the insurance companies and King Obama. If you give this mad man , who has done everything in his power to destroy our economy, the dollar, domestic energy resources and individual freedoms four more years, may God have mercy on our souls. As we will deserve what awful fate awaits us. n At least there are Texas judges like Judge Jerry Smith and Judges Emilio Garza and Leslie Southwick that are taking King Obama's threats and bullying seriously. As long as there are Judges like these, perhaps all is not lost.
I'm glad that Judge Smith acted as he did, but he should not have referred to the law as "Obamacare", which is a pejorative and political term. It's the Affordable Care Act, whether it's constitutional or not.