Appeals court fires back at Obama's comments on health care case

RJ~PWCM~JLA 2012/04/04 01:57:06

(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 thepresident 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."

authority federal courts unelected judges strike acts congress portions cases

Read More: http://www.cbsnews.com/8301-504564_162-57408827-50...

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  • nicwillams 2012/04/05 04:02:13
    presidents, now come in black
  • Fred 2012/04/04 15:24:32
    Very Nice
  • Seonag 2012/04/04 13:27:43
    Not the first time Obama had to 'clarify' his comments. But what comes out first is what he actually believes and he believes he is King and the other two branches of government must agree with him all the time!
  • RJ~PWCM... Seonag 2012/04/04 13:40:55
    You'd think such a " brilliant constitutional scholar" (lmfao!) would be able to speak about a Supreme Court that's been in the news for a year without having to "correct" his remarks.

  • TheTruth1313 2012/04/04 05:15:29
    Hey, whatever, as long as that socialist policy Obama care is appealed with extreme prejudice.
  • Ken 2012/04/04 03:14:41
    Obama and the DOJ are set in the corner with dunce hats until that time.
  • TheTailor 2012/04/04 03:00:04
    Gotta love it ;-)
  • Gracie - Proud Conservative 2012/04/04 02:51:32
    Gracie - Proud Conservative
    Obama hates America, he hates the Constitution, he hates judges that disagree with him. I think he hates baseball and apple pie! He should be a leader of an enemy of America instead of America!
  • RJ~PWCM... Gracie ... 2012/04/04 02:52:52

    obama pitching
  • Gracie ... RJ~PWCM... 2012/04/04 02:54:40
    Gracie - Proud Conservative
    LOL, I forgot about that. My granddaughter could throw a ball better than that when she was 7! She'd burn him now at 12.
  • RJ~PWCM... Gracie ... 2012/04/04 03:04:05
    It was very telling that the guy could get up there, knowing he had NO idea how to throw a baseball, and do that in front of ALL those people without being embarrassed! Something is seriously wrong with this man.
  • Gracie ... RJ~PWCM... 2012/04/04 03:12:29
    Gracie - Proud Conservative
    I think no one has ever told him the truth about his intellect and any other of his shortcomings. You know the kid that never really did anything that great but everyone told him he was?
  • RJ~PWCM... Gracie ... 2012/04/04 12:41:53
    You're right. In his case, it's called "affirmative action."
  • Mrs. maggot 2012/04/04 02:48:43
  • Charles E 2012/04/04 02:22:55
    Charles E
    Thank goodness there are still some judges with the backbone to uphold the Constitution, no matter what Obama or Holder say.

    Forcing the SOB's to put it in writing will be a great help for any future attempts to restrain the Federal government.
  • ὤTṻnde΄ӂ 2012/04/04 02:10:18
  • RJ~PWCM... ὤTṻnde΄ӂ 2012/04/04 02:12:44
    Settle down, little boy, you're totally misunderstanding the point.

    The Dumbest President of All Time (YOU know him as your lord & savior) said it would be "unprecedented" for the Court to overturn 0bamacare. That's what this court is asking about.

    Try, just once in your life, to understand what something is about before you comment.
  • Charles E RJ~PWCM... 2012/04/04 02:27:50
    Charles E
    Nice reply. Smothe, polite, on topic. All the things dummys comment was not.
  • RJ~PWCM... Charles E 2012/04/04 02:47:01
    They're really getting boring. There's no attempt at presenting a point of view and defending it in an intelligent discussion. Of course, you can't get blood from a stone!
  • Charles E RJ~PWCM... 2012/04/04 02:48:33
    Charles E
    Or brains from a cabbage, even if it does have a head.
  • RJ~PWCM... Charles E 2012/04/04 02:53:13
  • COCO Charles E 2012/04/04 06:05:30
  • Charles E ὤTṻnde΄ӂ 2012/04/04 02:26:29
    Charles E
    Nice collection of obscenities in your totally irrelevant and off topic rant.

    Did you even read the first paragraph before trying to respond?
  • relic 2012/04/04 02:08:41
    Obama has already started backpeddling.
  • RJ~PWCM... relic 2012/04/04 02:13:38
    He can't backpeddle on this one. What he said was crystal clear and he went on at some length about it. It wasn't a "misunderstanding".
  • relic RJ~PWCM... 2012/04/04 02:41:42
    He trying...


    Of course, I'm not that gullible.
  • wtw 2012/04/04 02:04:55
    I love it! Fantastic point!

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