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, one  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.

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  • Norman Rogers

    I disagree. Judicial Review is a power arrogated to itself by the Marshall Court in 1803. The President is the only person obliged to swear to uphold the Constitution — in the entire text of the Constitution. If the President determines a law is extra-constitutional, he need not enforce it (e.g. Dred Scott).

    To paraphrase Andrew Jackson — "You and what army" ("let them enforce it:")

    • Brian Garst

      Article III Section 2 quite clearly delivers the Court's authority to adjudicate matters of Constitutionality, though I agree that the President has a duty not to enforce unconstitutional laws.

      But what has that to do with this case, where the President is demanding that the Judiciary ignore the Constitution?

  • Jay

    I think it's hysterical. For at least the last 40 years liberals have been running to the courts to overturn laws that they don't like, from Roe v Wade, which overturned practically all restrictions on abortion, voiding laws in all 50 states, to Proposition 8 in California, where the courts overturned a referendum that had passed with overwhelming popular support. Now we have a handful of cases where the courts have overturned laws liberals liked, and suddenly the idea that an unelected judiciary could overrule the will of the people is just outrageous and crazy.

    I'd love to see the liberals challenge judicial review. It would be a win-win for conservatives: Either the courts do overturn Obamacare, in which case we get rid of a stupid law, or the courts' power of judicial review is rolled back, in which case we transfer power from an aristrocratic elite back to the people.

  • mary contrary

    Great post.

    Orin Kerr is pinning Limbaugh's approving reaction onto Judge Smith's robes, as if to weigh them down by the association. Conveniently, Kerr ignores the recent assault on the idea of judicial review by leading (left) legal scholars, some politicians and other opinion makers, and does so after eliding over Obama's remarkably injudicious remarks as mere politics and unimportant. To my knowledge, Kerr never indicted other judges by partisan commentators reactions to their actions and decision, and we know there have been plenty!

    Were I a judge adjudicating matters pertaining to the ACA, I'd also feel frustrated by the disconnect between the Government trying these cases in court while, in the person of the Executive and former con law prof, it simultaneously speaks to the nation in a way that appears to call into question the constitutional value or validity of judicial review.