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 panel 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 article goes on to say that the DoJ lawyer clearly agreed with Judge Smith, a Reagan appointee, that indeed, the judiciary does hold the power to strike down unconstitutional law. Reflecting on Obama's "unelected group of people" comment yesterday, which was directed towards the half of the SCOTUS that aren't likely to march lockstep with his dictates, Smith went on to say that Obama's remarks indicated that he and his administration obviously don't believe judges have the power to review laws and strike down unconstitutional ones.
Barry, you just got served.
