Charles Dharapak, Associated Press\r\n
President Barack Obama stirred up a hornet's nest on Monday when he struck out at the Supreme Court, asserting that any move to strike down the individual mandate for health care would be an illegitimate act of judicial activism.
"I'm confident that the Supreme Court will 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," Obama said. "And I'd just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step."
Some observers suspect the President was responding to leaked word of the secret vote the Supreme Court took on Friday. Whatever prompted them, the comments stunned political and legal observers, many of whom observed that what was unprecedented here is a president so vigorously trying to intimidate the court.
The U.S. courts were hopping mad. On Tuesday, a three-judge panel at the Fifth Circuit Court of Appeals gave the administration until Thursday to respond to the question of whether it believes the Supreme Court has the authority to overturn the law. The exchange is almost painful to read.
Judge Jerry 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."
Dana Lydia Kaersvang, Justice Department attorney: "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 again to the position of the attorney general and the Department of Justice."
"We respect the decisions made by the courts since Marbury v. Madison," Attorney General Eric Holder said Wednesday. "Courts have final say." White House Press Secretary Jay Carney echoed Holder in a separate statement.
But the sting of the attempt is not likely to ease soon. At Volokh Conspiracy, a group blog written by prominent law professors, David Kopel questions the president's use of "strong majority," and the significance of such a majority if it did exist.
- 50 things you might not know about 15 of your...
- Switched at birth, man raised in poverty...
- Court: Mormon church, members not liable in...
- Research: Native American genes have Eurasian...
- Newtown releases 911 calls showing anguish...
- Saving Africa? New book casts harsh light on...
- Obama: Income inequality a defining challenge
- 1 child dead in Idaho elementary school bus...
- Obama: Income inequality a defining... 90
- Croatians vote against same-sex marriage 49
- Court: Mormon church, members not... 34
- Notre Dame sues over health care law's... 25
- Fast food outlets planning strike for... 25
- Research: Native American genes have... 22
- Obama declares health care law is... 21
- Detroit officially enters bankruptcy 19