Obama challenges the Supreme Court....
President Obama took the extraordinary step of warning the Supremes Monday, declaring that if the ObamaCare individual mandate is struck down the Court will be guilty of "judicial activism." This could, ironically, boomerang on The One. Trying to influence the Court by public warning the Justices invites a wavering Justice to teach the president a lesson. President Obama's claim that overturning the law would be unprecedented is patently false: the Supremes struck down 53 statutes during the period 1981-2005.
GOP pols hit back, with the best nuggets coming from Utah Sen. Orrin Hatch, himself once on the short list for nomination to the Supreme Court: "[It is a] fantasy [to think] every law you like is constitutional and every Supreme Court decision you don't is 'activist.'"
Judges for the U.S. Court of Appeals, Fifth Circuit fired a fusillade back at the president, ordering the Justice Dept. to respond in court today as to whether the administration accepts the principle of judicial review. As reported by CBS chief legal correspondent Jan Crawford:
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, telling the lawyers arguing the case it was not clear to "many of us" 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."
It is one thing for a president to criticize a Supreme Court ruling after it has been handed down. That is fair game. The Supremes are not Platonic Guardians--at least, they are not supposed to be--gazing down on us from Mount Olympus. Within the range of temperate comments there is plenty of play. (It is, however, bad form to do so when giving a State of the Union address, as President Obama did in his 2010 SOTU.)
It should be noted that the power of judicial review is not expressly seated in Article III of the Constitution, which defines the federal judicial power. Its historical source is derived from English and Colonial court precedents. Famously, in Federalist 78 Alexander Hamilton wrote that the Judiciary possesses "neither FORCE nor WILL, but merely JUDGMENT."
No president has challenged the power's existence since the early 19th century. James Taranto at the WSJ's Best of the Web documents the president's astounding ignorance about landmark Supreme Court cases pertinent to commerce. What makes this relevant is that Barack Obama is not just a lawyer. He taught constitutional law, and not just at any college, but at Harvard Law, as elite as any law school in the US.
Bottom Line. President Obama went way over the line, and is in retreat for the time being, walking back his words. But if he loses, expect a strident campaign from the White House against the ruling.
Letter from the Capitol, LFTC, Conservative Politics