The “ticker” at the bottom of the news channel caught my eye so fast as it rolled yesterday. Then the news station broadcast the story.
The 5th Circuit Court of Appeals, in Houston, TX, asked the federal government’s attorney to provide the Court with a “3 page single spaced” answer as to the position of the Attorney General and the Department of Justice (and thus the White House) as to whether they believe that the courts have the authority of judicial review by the Constitution.
During oral arguments in Houston in a separate challenge to another aspect of the federal health care law, U.S. 5th Circuit Court of Appeals Judge Jerry Smith said Obama’s comments troubled a number of people who have read them as a challenge to the authority of federal courts.
“I’m referring to statements by the president in the past few days to the effect, I’m sure you’ve heard about them, 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, to what he termed a broad consensus and majorities in both houses of Congress,” Smith told Dana Kaersvang, an attorney with the Justice Department in Washington, D.C.
The Obama team has been trying to downplay the poor performance of the Solicitor General during the oral arguments on the ObamaCare legislation before the Supreme Court last week. But the President, in an apparent attempt to rile up the base, commented this week that it would be “unprecedented” for the Court to overturn a law passed by the elected officials by a massive majority (Note- ObamaCare passed the House by only 7 votes). For a ConLaw lawyer and professor to make such a statement fkys in the face of their teachings, and completely ignores the longstanding Court decision of Marbury v. Madison, a case that is among the first studied in any law school’s ConLaw I class.
Since every speech the President makes these days are campaign speeches (disguised as policy speeches), will he permit the DOJ to contradict his statements. If the DOJ fails to respond to the 5th Circuit by noon on Thursday, how will Judge Smith react?
Let’s get the buttered popcorn ready!!