5th Circuit Wants DOJ To Say They Can Strike Down Unconstitutional Laws

Pretty rough going for the Justice Department in yet another Obamacare case down in New Orleans today. From 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 case in question, Physician Hospitals of America v. Sebelius,  is a suit filed by a group of doctor-owned hospitals who say Obamacare is unconstitutional. DOJ has been attempting to get a court to make this thing go away since it was filed, but can’t.

And at today’s hearing, the three Republican-appointed judges on the panel were awfully cranky with the Justice Department’s lawyers.

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, telling the lawyers arguing the case it was not clear to “many of us” 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.”

The lesson? Don’t piss off the judges.

Obama pissed off the judges yesterday.

Let’s not forget that Obama’s Interior Secretary was found in contempt of court last year for his having disobeyed an order by federal judge Martin Feldman, who is a district judge working out of the same building the 5th Circuit operates in (Feldman’s a district judge, not an appellate judge), to lift the moratorium on offshore drilling. The 5th Circuit is full of judges who think the same things Feldman does – in fact they were in support of his original order lifting that moratorium – and they’re not interested in listening to any more of his crap.

This is going to get interesting.



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