As I wrote the other day, President Obama said something really stupid about how “unprecedented” and “extraordinary” it would be if the Supreme Court overturned a law passed by a democratic majority in Congress. He has now tried hard to walk back that statement and replace it with something more accurate and nuanced. But an appeals court panel actually demanded an official explanation from the DOJ:
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…
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?” …
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.”
What Obama said was absurd but this is pure grandstanding by the judge. Unfortunately, the DOJ’s response letter to this demand was more grandstanding, and flat wrong as well.
Referring to the health care case, Holder wrote to Smith, “The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.”
Holder went on to explain that Mr. Obama’s remarks were in line with the established belief that it is appropriate for the Supreme Court to pay heed to Congress.
“While duly recognizing the courts’ authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress,” Holder wrote. “The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments… The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends.”
Nonsense. Obama didn’t say that the courts should show deference to the legislature in this particular case; that would be a perfectly reasonable argument. He said that the mere act of overturning a democratically-passed law would be unprecedented and extraordinary — it would be neither, of course — and therefore wrong. But in politics, you can never just admit you were wrong. You have to pretend that you really said something more reasonable. He said something dumb; own up to it, for crying out loud.