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."...Fascinatingly intense. Obviously, the DOJ will concede the power of judicial review, as historically recognized in Marbury. But the court is asking it to spell out exactly what the Administration thinks the limits are. Obama — like many pundits and politicians — throws around the ideas of judicial "restraint" and "activism," but the judges themselves tend to speak in terms of "saying what the law is" and putting the law — constitutional and statutory — in the proper hierarchy — with the Constitution on top — with no element of judicial will injected into the process.
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 --r emained silent, the source said.
It will be interesting to see if the Administration will endorse such a bland — but highly deferential — view of the judicial power or if it will explicate some more nuanced notion of when courts ought to let important/economic legislation prevail.