(Credit:
AP Photo/Carolyn Kaster)
Updated 6:55 p.m. ET
(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 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, suggesting it wasn't clear
whether the president believes such a right exists. The other two judges
on the panel, Emilio Garza and Leslie Southwick--both Republican
appointees--remained silent, the source said.
Smith, a
Reagan appointee, went on to say that comments from the president and
others in the Executive Branch indicate they believe judges don't have
the power to review laws and strike those that are unconstitutional,
specifically referencing Mr. Obama's comments yesterday about judges
being an "unelected group of people."
I've reached out to the White House for comment, and will update when we have more information.
UPDATE 6 p.m. ET: The White House is declining to comment on the 5th Circuit's order, but the
president today did clarify his comments
that it would be "unprecedented" for the Court to overturn laws passed
by a democratically elected Congress. During a question-and-answer
session after a luncheon speech in Washington, a journalist pointed out
"that is exactly what the Court has done during its entire existence."
Mr.
Obama suggested he meant that it would be "unprecedented" in the modern
era for the Court to rule the law exceeded Congress' power to regulate
an economic issue like health care.
"The point I was
making is that the Supreme Court is the final say on our Constitution
and our laws, and all of us have to respect it, but it's precisely
because of that extraordinary power that the Court has traditionally
exercised significant restraint and deference to our duly elected
legislature, our Congress. And so the burden is on those who would
overturn a law like this," Mr. Obama said.
"Now, as I
said, I expect the Supreme Court actually to recognize that and to abide
by well-established precedence out there. I have enormous confidence
that in looking at this law, not only is it constitutional, but that the
Court is going to exercise its jurisprudence carefully because of the
profound power that our Supreme Court has," he said.
And now DOJ gets to write three single-spaced pages expounding on that. Due at high noon on Thursday.
UPDATE 6:55 p.m. ET: Audio from the 5th Circuit hearing, with Judge Smith's order to DOJ,
is available here.
In
the hearing, Judge Smith says the president's comments suggesting
courts lack power to set aside federal laws "have troubled a number of
people" and that the suggestion "is not a small matter."
The
bottom line from Smith: A three-page letter with specifics. He asked
DOJ to discuss "judicial review, as it relates to the specific
statements of the president, in regard to Obamacare and to the authority
of the federal courts to review that legislation."
"I
would like to have from you by noon on Thursday -- that's about 48 hours
from now -- 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," Smith said. "What is the authority is of
the federal courts in this regard in terms of judicial review?"
Smith
made his intentions clear minutes after the DOJ attorney began her
argument, jumping in to ask: "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 replies yes, and Smith continues:
"I'm referring to statements by the president in past few days to the
effect, and sure you've heard about them, that it is somehow
inappropriate for what he termed 'unelected' judges to strike acts of
Congress that have enjoyed -- he was referring to, of course, Obamacare
-- to what he termed broad consensus in majorities in both houses of
Congress."
In asking for the letter, Smith said: "I want
to be sure 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."
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