Reverberations from President Obama’s attack on the Supreme Court last Monday continue to be felt, as his allies on the left join the administration’s attempt to intimidate the justices by saying that if the Supreme Court overturns part or all of Obamacare, it will prove that the justices are hyperpartisan and engaging in “judicial activism.” But the federal courts fired a salvo of its own at the executive branch, as a three-judge appeals court in Texas, hearing arguments on another Obamacare suit, ordered the Department of Justice to craft a statement explaining the president’s attack and demanded that the executive branch confirm that the courts have the power to review the constitutionality of laws passed by Congress.
This extraordinary clash between two branches of government was precipitated because the President of the United States and his far-left allies are seeking to delegitimize any adverse decision made by the Supreme Court against what they consider Obama’s signature political achievement: the Affordable Care Act. There is nothing subtle about the assault. It is naked aggression against a co-equal branch of the federal government and the country has rarely seen anything like it.
The former constitutional law professor told reporters on Monday, “Ultimately 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,” adding:
I’d just remind conservative commentators that for years all we’ve heard is that the biggest problem is judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, here’s a good example.
That’s not a shot across the bow. That’s a full-bore broadside against the notion of an independent judiciary. Leaving aside the laughable notion that Obamacare was passed by a “strong majority” in Congress (219-215 in the House and 60-39 in the Senate without a single Republican vote in either chamber), what does it matter how many congressmen voted for it? The Supreme Court overturns congressional statutes all the time. Writing at the Volokh Conspiracy, David Kopel notes that “It is certainly not ‘unprecedented’ for the Court to overturn a law passed by ‘a democratically elected Congress.’ The Court has done so 165 times, as of 2010.”
And the question of the court engaging in “judicial activism” is equally bogus. How can anyone construe the legitimate function of the Supreme Court to review statutes and determine their constitutionality as “activism” of any kind?
Kopel avers that Obama has now “raised the stakes considerably” for the court:
At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies the[ir] very legitimacy of judicial review of congressional statutes–or at least those statutes which garnered the “strong” majority of 219 out of 435 Representatives.
The drama moved to Texas on Tuesday where the 5th Circuit Court of Appeals was hearing arguments on a related Obamacare case brought by physician-owned hospitals. Judge Jerry E. Smith asked the government attorney whether the Obama administration believed in judicial review of acts of Congress:
Judge 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?
Dana Lydia Kaersvang: Yes, your honor, of course there would need to be a severability analysis, but …
Smith: I’m referring to statements by the president in the past few days to the effect— and I’m sure you’ve heard about them — that it’s somehow for what he termed “unelected judges” to strike acts of Congress that have enjoyed — he’s referring of course to Obamacare — to what he termed a “broad consensus” and 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.
Smith wasn’t finished. He then ordered the Department of Justice to write a letter — three pages long and single spaced — “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.” He demanded that the letter “make specific reference to the president’s statement and again to the position of the attorney general and the Department of Justice.”
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