'I'm so glad the Justice Department respects judicial review!'

The nation recently received a lesson in constitutional law from President Barack Obama (who famously taught Con Law at the University of Chicago). As we mentioned yesterday, President Obama said on Monday that striking down the Affordable Care Act, aka Obamacare, would constitute an “unprecedented, extraordinary step,” amounting to “judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”

The problem with this lesson: it wasn’t exactly accurate. Those “unelected” federal judges “overturn … duly constituted and passed law[s]” all the time — well, maybe not all the time, but on occasion, when said laws are inconsistent with the U.S. Constitution. It’s neither “unprecedented” nor “extraordinary,” and it doesn’t amount to judicial activism; rather, it’s called judicial review.

One prominent conservative jurist, Judge Jerry E. Smith of the Fifth Circuit, took it upon himself to set the record straight on this matter….

Here’s what went down at a recent oral argument before the Fifth Circuit, as reported by Jan Crawford of CBS News:

[The Fifth Circuit] 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.

Here’s the pertinent discussion (via the WSJ Law Blog):

Smith: 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: Yes, your honor. Of course, there would need to be a severability analysis, but yes.

Smith: I’m referring to statements by the president in the past few days to the effect…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 — what he termed broad consensus in majorities in both houses of Congress.

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.

Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –

Props to Kaersvang, in terms of her appellate advocacy, for trying to pivot away from judicial review and back towards the issues in Physician Hospitals of America v. Sebelius. Alas, it didn’t quite work:

Smith: I would like to have from you by noon on Thursday… 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, 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. 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.

Yes, that’s right: Judge Smith just gave the DOJ a homework assignment (as Joe Palazzolo of the WSJ nicely put it). Ouch. Don’t believe it? Listen to the audio here (starting around 18:00).

Now, it isn’t unheard of for judges to order, during or after oral argument, supplemental letter briefing on a given issue. In this case, though, one could question the necessity of the request. As one ATL reader put it:

The American people don’t trust the judiciary because the judges keep unnecessarily interjecting themselves into the political arena. The Fifth Circuit has ordered briefing on an argument that the attorney before them explicitly indicated was not the DOJ’s position, merely to make a point about the President’s comments during a press conference. I see taxpayer dollars wasted on all sides — the DOJ writing the letter and the judges reading it.

In addition, President Obama has already clarified his earlier comments, affirming that he accepts judicial review (but believes that striking down the ACA would be an unwise exercise of that power). From CBS News:

“[T]he 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 preceden[ts] 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.

(One minor chronological point. The WSJ Law Blog seems to suggest that the president’s clarification came before the Fifth Circuit arguments. It appears to be the other way around — or, at the very least, the events happened at around the same time. The Fifth Circuit panel started hearing arguments at 9 a.m. Houston time, or 10 a.m. East Coast time. President Obama made his comments at a luncheon with reporters in D.C. that started at 12:30 p.m. yesterday.)

Where do I come down on this? I confess that I’m of two minds. On the one hand, in support of the benchslap, I did get a chuckle out of this (somewhat bizarre) homework assignment. On a more serious note, to the extent that some members of the public might have been misled by President Obama’s statements, there was nothing wrong with Judge Smith availing himself of this “teachable moment,” to remind the public that federal judges not only have the right, but the duty, to strike down laws that are inconsistent with the Constitution.

On the other hand, President Obama’s original remarks amounted to silly political posturing, and perhaps they should have been ignored. It’s not shocking that the president made such comments in the first place; the executive is, after all, an icky political branch, and we are in the middle of an election year. But isn’t it beneath the dignity of life-tenured Article III deities to dirty their gavel-wielding hands with such ridiculousness? Should Judge Smith have simply ignored the president’s ill-considered comments?

Readers, what do you think?

Do you support the Fifth Circuit's order requiring the Department of Justice to set forth its position on judicial review?

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Appeals court fires back at Obama’s comments on health care case [Crossroads / CBS News]
Fifth Circuit to DOJ: Prove You Support Judicial Review [WSJ Law Blog]
Republican Fifth Circuit Pitches A Partisan Tantrum After President Obama Speaks Out About Supreme Court [ThinkProgress]

Earlier: Obama Warns the Court About Restraint, But Unaccountable People Will Do What They Do


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