As was reported here earlier, President Obama has gone out of his way in an attempt to intimidate the Supreme Court, flat-out lying about the “unprecedented” possibility of his healthcare law being ruled unconstitutional.  Apparently, the 5th Circuit Court of Appeals didn’t take kindly to that characterization, and has issued a direct challenge to the administration, daring them to say they don’t believe that the courts have the right to strike down a federal law.


From 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 Law Blog provides the specific comments that sparked the challenge…

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 — 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.
KaersvangMarbury 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.

The PJ Tatler response:

The only thing that’s unprecedented is the ObamaCare mandate forcing Americans to purchase a product approved by the government as the price of citizenship. Judicial review is just about as old as the nation itself. Well, the HHS mandate that kicks an executive branch jackboot through the First Amendment is unprecedented, too. I’ll grant that.

The President has embarrassed himself in a major way here, and there doesn’t appear to be any way to walk it back, though he has tried.

The ‘constitutional scholar’ has proven to be a constitutional illiterate.