So by now you know that Obama has threatened the Court with a bunch of nonsense that the Court cannot overturn a Congressionally-enacted law, by-definition a law passed with a “democratically-elected majority.” I mean, the “human element” is what they need to pay attention to, not the Constitution, right? How dare the Court even THINK they can overturn legislation from Congress?
Newsflash: SCOTUS has been doing this since Marbury v Madison, establishing Judicial Review, over 200 years ago. ALL laws that SCOTUS finds unconstitutional were passed by a “majority of a democratically elected Congress.” The idea that this is “unprecedented” ought to have had him fail right out of ConLaw @ Harvard… (Have we ever seen his grades? No? Surprise!)
How’s that threat working out for our former Law Review Prez and adjunct “professor” of ConLaw at an elite Ivy?
Not so well…
Today a panel of judges on the Fifth Circuit Federal Appeals Court directed the DoJ to write a 3-page letter on whether the president believes the Court has the right to overturn unconstitutional laws. It’s due Thursday!
Below’s the article: Here’s the link. The emphasis is mine.
Appeals court fires back at Obama’s comments on health care case
(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, 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.
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: Will Obama deliver the report?
Obama’s in a serious fix now – the kind of self-inflicted wound only a nearly-out-of-control-ego can self-inflict… Essentially this is a Federal Appeals Court ordering him to write 500 times on the blackboard:
The Federal Court can overrule me.
The Federal Court can overule me.
The Federal Court can overrule me…
So the question is – will Obama deliver?
If he does not, it is more than likely he will be held in contempt. Nixon redux! It will become increasingly difficult for any serious newspaper – WaPo, a few others (not the NYT of course), to take his side…
If he does, he will likely lose major contributions from the Left, who want to believe he can do no wrong and will be embarrassed that he “kowtowed” to the Court. The MSM will go batguano crazy.
Most importantly, however, is that this entire episode will be EXTREMELY instructive to the Center voters. They accept Marbury and the rule of law, and like to believe their guy does, too… Now they’ve been shown he does NOT recognize either by his infantile statement, giving them pause – especially at the thought of a second term unfettered by any more elections (as he recently told Medvedev).
And, of course, any of the 9 SCOTUS justices who may have been on the fence will take a look at if and how he responds (or not) to the Court and think to themselves — Gee, if he ignores the Court now… maybe we really CAN’T let him have this Obamacare nonsense….
Stay tuned and pass the popcorn!