In response to President Obama’s absurd grandstanding about judicial activism, the 5th Circuit is ordering that he clarify his views about the power of the courts.
CBS News Crossroads (“Appeals court fires back at Obama’s comments on health care case“)
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 order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would not “take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.
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.
Both my instant and my considered reaction to this: Who the hell do these people think they are?
Look, there’s simply no question that Obama’s talk about “an unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress” is absurd on a number of fronts. Doug ably lays out that case. On the other hand, it’s simply election year blather. Certainly, as Steven Taylor rightly notes, presidents lambasting judicial activism is neither unprecedented nor extraordinary.
Still, it’s just talk; the president has given zero indication that he plans to ignore the Supreme Court’s ruling if it goes against him. So, what in the world is a court–much less a mere intermediate appeals court–doing demanding that the president answer its questions? Indeed, given that the power of federal courts to strike down laws they deem unconstitutional has been settled law for over two centuries, what difference does it matter what Obama or “the executive branch” believes?
This action by the 5th Circuit, then, is simple political grandstanding to make a point. But it’s much worse than Obama’s grandstanding. First, because it’s actually using the power of the institution to put it into action, rather than simply making it in a speech. Second, and more importantly, because the courts are supposed to be above the political fray.
