United Liberty

With President Barack Obama openingly questioning and attacking the Supreme Court over the future of his health care law, the a three-judge panel on the Fifth Circuit Court of Appeals is asking the Department of Justice if their boss believes that federal courts don’t have the power to strike down law that violates the Constitution:

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.”

Obama, a former constitutional law professer, has acknowledged that the Supreme Court would be within its rights to strike down the Patient Protection and Affordable Care Act — which we often refer to as ObamaCare. However, Obama asserted that doing so would be some sort of overreach by the court, apparently forgetting about Marbury v. Madison.

And while Obama has been rightly slammed for going after the Supreme Court, these judges on the Fifth Circuit probably should have kept quiet about this. The last thing we need is a war between two branches of government, or as Doug Mataconis writes:

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.

The point from the panel is well taken, but I don’t think this was at all necessary and only allows Obama to escalate his rhetoric, and with a reason to do so. Not many question the concept of judicial review, so in the end, this was pointless.