…for President Obama: did you really mean it, or were you just blowing smoke?
This is rather “unprecedented,” to use one of Obama’s favorite words. The court’s question came up in a separate Obamacare case presently before a 3-judge panel of the Appeals Court for the 5th Circuit (which serves Louisiana, Mississippi, and Texas), in which HCR is being challenged 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…
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?”
So Obama’s remarks have earned the DOJ an extra homework assignment, and a little wrist slip for Obama.
[NOTE: By the way, all three judges on the panel are Republicans, and Smith is a Reagan appointee.]