Perhaps The Once doesn't know what those words mean. Appeals court fires back at Obama's comments on health care case By Jan Crawford Topics Supreme Court (Credit: AP Photo/Carolyn Kaster) Updated 6:55 p.m. ET (CBS News) 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. Smith then became "very stern," the source said, suggesting it wasn't clear 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. Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people." I've reached out to the White House for comment, and will update when we have more information. UPDATE 6 p.m. ET: The White House is declining to comment on the 5th Circuit's order, but the president today did clarify his comments that it would be "unprecedented" for the Court to overturn laws passed by a democratically elected Congress. During a question-and-answer session after a luncheon speech in Washington, a journalist pointed out "that is exactly what the Court has done during its entire existence." Mr. Obama suggested he meant that it would be "unprecedented" in the modern era for the Court to rule the law exceeded Congress' power to regulate an economic issue like health care. "The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this," Mr. Obama said. "Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there. I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has," he said. And now DOJ gets to write three single-spaced pages expounding on that. Due at high noon on Thursday. UPDATE 6:55 p.m. ET: Audio from the 5th Circuit hearing, with Judge Smith's order to DOJ, is available here. In the hearing, Judge Smith says the president's comments suggesting courts lack power to set aside federal laws "have troubled a number of people" and that the suggestion "is not a small matter." The bottom line from Smith: A three-page letter with specifics. He asked DOJ to discuss "judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation." "I would like to have from you by noon on Thursday -- that's about 48 hours from now -- a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the president," Smith said. "What is the authority is of the federal courts in this regard in terms of judicial review?" Smith made his intentions clear minutes after the DOJ attorney began her argument, jumping in to ask: "Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?" Kaersvang replies yes, and Smith continues: "I'm referring to statements by the president in past few days to the effect, and sure you've heard about them, that it is somehow inappropriate for what he termed 'unelected' judges to strike acts of Congress that have enjoyed -- he was referring to, of course, Obamacare -- to what he termed broad consensus in majorities in both houses of Congress." In asking for the letter, Smith said: "I want to be sure you're telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts, through unelected judges, to strike acts of Congress or portions thereof in appropriate cases."
As a political independent, I was disturbed by the President's remarks. I thought they were chilling. It appears that he is clearly trying to "bully" the Court. I was shocked that he took that approach.
The man is a Constitutional scholar and an x-editor of the Harvard Law review. Don’t you think he might know what he's talking about and have a valid opinion about it?
Unprecedented judicial activism indeed -- Republican Fifth Circuit Pitches A Partisan Tantrum After President Obama Speaks Out About Supreme Court The United States Court of Appeals for the Fifth Circuit may be the most ideological court in the country. When the oil industry’s allies in Congress wanted to protect the industry from drilling lawsuits, they passed a bill trying to force those lawsuits into the reliably industry-friendly Fifth Circuit. When a high school cheerleader sued her school district after it made her cheer for her alleged rapist, the Fifth Circuit ordered the alleged rape victim to pay more than $40,000. When one of the court’s few progressives asked a series of probing questions to a prosecutor during a court hearing, Fifth Circuit Chief Judge Edith Jones yelled at him to “shut up” and asked him if he would like to leave the courtroom. Earlier today, however, the Fifth Circuit left the realm of mere ideology and leaped over the line into partisanship.
Given that "judicial activism" has been a right wing buzzword for decades and has seeped into the political vernacular as a bash against decisions that don't go their way, I can't exactly blame Obama for using the right's term against them.
It is all a bunch of bull ****. The Courts are certainly political and for them to act like they are above it is a flat out joke. Look at the decisions springing out of the 2000 election. The vote was straight down party lines with all the Justices essentially voting the opposite that they would had the matter been a political football.
The SC will rule that Obamacare is Unconstitutional, and I expect they will admonish Obama for over stepping federal authority... But in a sense Obama cannot lose. When they shoot down Obamacare they will see their public perception further diminished. The court will be viewed as a group of elite wealthy political pawns without any practical understanding of most Americans. It will be a rally cry for Obama, and further alienate the Republican party.
Obama's remarks seem silly... The majority with which a bill is passed has little to do with whether it's Constitutional or not. And to put the burden on the court for overturning a bill/law, well that seems to be a given. The Supreme Court doesn't overturn a law and then claim someone else made them do so. But maybe I'm missing something.
Here's some unprecedented judicial activism for ya, just in case you had your blinders on.... http://en.wikipedia.org/wiki/Citizens_United http://en.wikipedia.org/wiki/Bush_vs_Gore
Hopefuly you had a Victorian fainting couch and somebody with smelling salts nearby to revive your delicate sensibilities. As many observers have noted, if the Supreme COurt wants to stay out of the political process, it needs to refrain from making nakedly partisan decisions. Believe it or not, the individual mandate is not a close constitutional issue, which is why rational conservative judges like Silber upheld it, and why most neutral court-watchers predicted a 6-3 decision at worst. BUt rather than exercise restraint, the tone of the Roberts court has been to aggressively make partisan decisions right out of the federalist society playbookk like Citizens United, and the tone of the oral arguments was basically straight out of Fox & Friends. Sorry that you're part of the dwindling minority who believes the Supreme Court is still above the fray, but here in reality, they're not.
there goes checks and balances if obama gets his way... I only wish that you guys admit what you really want and who you really are. It's silly for you to hide behind the American flag.
I shall let slip the banner - I'm one of your betters, hoping for a health care system that makes sense, and a supreme court that doesn't see itself as batting for Team Republican.
Yes...if we disagree we're not American. That's why FDR and the New Deal Court weren't really Americans. I'm sure my deceased grandfather would have beaten the crap out of me had I suggested FDR wasn't really an American.
the disrespect for obama is awful. i know bush got ripped, but at least the liberals tried to back up their venom with facts. many on the right just hate obama the man. it's disgusting.
