President Obama said it was "unprecedented" and "extraordinary" for the Supreme Court to overturn a law passed by Congress, and now the Fifth Circuit is asking him to explain his position on the power of judicial review.
Here's a bit of transcript from this morning's oral argument in Physicians Hospital of America v. Sebelius, a case involving a challenge to the Affordable Care Act:Judge Jerry E. 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?
Dana Lydia Kaersvang (DOJ Attorney): 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 -
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.
Aside from my belief that much of what President Obama says is useless and information-free, it's great to see a politician actually held to account for the dumb things he said. I wonder if the DOJ will actually fulfill this order or ignore it?