WASHINGTON-After President Obama commented Monday that it would be "unprecedented" if the U.S. Supreme Court overturned the healthcare law, a circuit court judge on Tuesday assigned homework to a Department of Justice lawyer: Write a three-page, single-spaced explanation on why federal courts have the right to overturn laws they deem unconstitutional. The paper is due by noon Thursday.
The DOJ lawyer, Dana Lydia Kaersvang was beginning her arguments in another case challenging the healthcare law, when Judge Jerry Smith of the 5th U.S. Circuit Court of Appeals stopped her. The 5th Circuit is considered one of the more conservative federal courts in the country.
"Let me ask you something a little bit more basic," Smith said. "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?"
"Yes, your honor," Kaersvang responded slowly and a little incredulously. "Of course, there would need to be a severability analysis, but yes." Severability addresses whether parts of a law can stand after other parts have been declared unconstitutional.
"I'm referring to statements by the president in the past few days to the effect, and I'm 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, of course, to Obamacare-to what he termed broad consensus in majorities in both houses of Congress," Smith said. "That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that's not a small matter. So I want to be sure that 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."
"Marbury v. Madison is the law, your honor," Kaersvang said. That 1803 case established judicial review, giving courts the power to determine whether laws are constitutional. She continued, "But it would not make sense in this circumstance to strike down this statute, because there's no …"
Smith interrupted and asked for the three-page letter, due by noon on Thursday, "stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements, what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single-spaced, no less, and it needs to be specific."
Smith paused for a few moments, perhaps allowing Kaersvang to copy down the assignment, and added, "It needs to make specific reference to the president's statements and again to the position of the attorney general and the Department of Justice."
"OK," the Kaersvang replied. "And that's our position regarding judicial review and the authority of the court?"
"Judicial review and as it relates to Obamacare and the authority of federal courts to review that legislation," Smith said.
"Yes, your honor," Kaersvang said, before going on with her arguments. Attorney General Eric Holder at a press conference in Chicago on Wednesday said the Justice Department would comply with the judge's request, but added that Obama's remarks were "appropriate."
Former circuit court Judge Michael McConnell, considered a strong candidate for the Supreme Court, told me the president's comments were "careless." McConnell said it was unprecedented for a president to make the comments Obama made while a Supreme Court case is pending.
"Certain presidents have criticized certain decisions in the past," McConnell said. "But not while it's in front of [the justices] and not in a way that suggests that they don't know their job. … He shouldn't be saying things that might be understood as an attack on the legitimacy of the court."
But McConnell added, "I don't endorse what the 5th Circuit did, either. That struck me as a bit over the top in the other direction."
On Tuesday Obama tried to clarify his Monday comments (see "Unprecedented," April 3), saying that he believed it would be "unprecedented" for the court to overturn the healthcare law based on the Constitution's Commerce Clause.
"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," Obama said Tuesday. "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."