Malo periculosam, libertatem quam quietam servitutem.



April 2012

The Judiciary Strikes Back

Written by , Posted in Liberty & Limited Government, The Courts, Criminal Justice & Tort

Following the President’s intemperate, childish outburst of Constitutional ignorance, oneĀ  federal appeals court is fighting back:

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.”

…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 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.

Orin Kerr at the Volokh Conspiracy is upset over the rebuke, finding it to be “embarrassing to the federal judiciary.” I disagree. While I don’t necessarily think that demanding a three page response is necessary, standing up to the Obama’s dangerous assault on the judiciary certainly is.

The Obama administration, which leads a branch of the government, has since Citizens United all but declared war on another co-equal branch, the judiciary. I, for one, do not expect members of the judiciary to just sit back and take such a dangerous assault (see the damage wrought to our liberty and economic well-being by FDR’s successful attack on the Supreme Court), and am rather heartened to see that they are not.

Simply put, I don’t think it’s appropriate for a sitting President to engage in dishonest, populist assaults on a vital American institution in order to undermine freedom and expand the already near limitless power of government. I find pushing back against his intemperate outbursts to be entirely appropriate, certainly in intention if not the precise manner.