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.