It's astonishing. I simply cannot get over President Obama's really partisan attack on the Supreme Court, and it turns out, neither can the Fifth Circuit Court of Appeals. On Monday Obama announced that overturning ObamaCare would be "an unprecedented, extraordinary step." On Tuesday he clarified "unprecedented" by saying that Supreme Court hadn’t struck down a law that “was passed by Congress on a economic issue." This provoked Judge Jerry Smith of the Fifth Circuit, which was hearing a separate case on the Affordable Care Act, to demand a letter explaining just what Eric Holder and the Justice Department think the authority of the federal judiciary is.
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?
Kaersvang: 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.
Unsurprisingly, lefties immediately climbed all over the Fifth Circuit, calling the above exchange partisan. Partisan?
This is not how judges behave. This is how politicians behave. If Judge Smith and his co-ideologues cannot refrain from such purely political tantrums, they should resign their seats and run for office as Republicans.
No question that our "constitutional law professor" president launched a partisan attack when he deliberately misrepresented the role of the courts. For lefties, though, "partisan" means you disagree with them, which is what the Fifth Circuit Court of Appeals did.
Getting back to Obama's partisan political objective, how's that going to work out? Will his attack on the court intimidate the justices and get him the decision he wants? Doubtful.
Still, the decision could go either way. I imagine that precedents abound on either side, and that the justices will choose among those they conclude are the relevant ones based upon their separate views of the law. But with Obama's recent attacks, the justices might also feel that it's time for the Court's authority to be emphatically restated.
ObamaCare was a Hail Mary pass in the waning seconds as Democrats saw their House majority about to disappear. Its completion was meant to lock in progressive power. With federal control over the health care industry, which adds up to one fifth of the U.S. economy, progressives would be in position to guide its revenues and policies in ways that could guarantee progressive majorities for generations.
There's a lot at stake, for both the country and the Court. As the final authority the Supreme Court is uniquely empowered to strike down laws that abuse constitutional limits. Is there a better time or a better way to demonstrate that point than by striking down ObamaCare in its entirety?