It Looks Like I’m Not the Only One

who’s looking for some clarification on the president’s remarks yesterday. A three judge panel of the 5th Circuit has ordered the Justice Department for exactly the sort of clarification I was looking for yesterday:

(CBS News) 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.”

Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The 5th Circuit covers Texas, Louisiana, and Mississippi and I would expect it to be quite conservative. I suspect that the judges of the 5th Circuit are suggesting to the president that political gamesmanship with the courts is not guaranteed to work in his favor.


The 5th Circuit’s request is here. It’s pretty terse.

And, judging from his response today, I wonder if the president has ever heard the expression “the straw that broke the camel’s bakc”

Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

Does the Court having found that an “economic issue” was constitutional in 1940 inherently mean that every accumulating economic issue will be constitutional as well?

7 comments… add one
  • PD Shaw

    Institutions have memories; the memory of the switch in time that saved nine is not held in high esteem by the judges.

  • Pre-30’s? My memory is kind of rusty, but didn’t a lot of FDR’s programs get shot down by the high court, like the NRA?

  • Ben Wolf


    FDR also blatantly threatened the court via packing it with additional justices who would be more amenable to his legislative goals. I don’t think Obama has gone quite that far. Yet.

  • I don’t think Obama has gone quite that far. Yet.

    He’s been spoiling for a fight with the judiciary for the last three years, viz. his serial digs at the SCOTUS during the SOTUs.

  • Maxwell James

    And meanwhile, some of his would-be replacements have openly said that they would prohibit judicial review for rulings they don’t like.

    That’s not to excuse Obama – neither Perry nor Gingrich are ever going to be President, so he should be held to a higher standard – but I do think pissiness between the judicial and executive branches has increased over the past decade.

  • This looks like a good time for putting an oar in on one of my favorite pastimes—blaming the Congress. Don’t like the Supreme Court overturning laws when cases are brought to it on appeal? It’s within the Congress’s power to limit the appellate jurisdiction of the Supreme Court.

  • Drew

    If he’s spoiling for a fight………….he ought to get Lochner right.

    Hey, that could make a good Sharpton chant!

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