About 18 minutes in you can hear it straight from the judge.
Fifth Circuit to DOJ: Prove You Support Judicial Review
April 3, 2012, 6:55 PM
By Joe PalazzoloHere’s an interesting chain of events:
1) President Obama on Monday says the Supreme Court would be taking an “unprecedented, extraordinary step” if it struck down the Affordable Care Act, his signature legislative achievement. He adds that it would be an example of “judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”
2) Obama on Tuesday clarifies that he meant to say that the Supreme Court hadn’t struck down a law that “was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce” since the Lochner era, which ended about 80 years ago.
3) Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit, a Reagan appointee, hears arguments in another Affordable Care Act case on Tuesday and asks Justice Department lawyer Dana Lydia Kaersvang whether the agency believes that the judiciary can knock down unconstitutional laws. You can find the link to the audio (start at around 18:00) here, and below is the key exchange.
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 — to 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 the again to the position of the attorney general and the Department of Justice.
Judge Smith declined to comment though an assistant. CBS, which previously reported on Smith’s comments, has more here.
What do do think of this homework assignment, LBers?