A federal appeals judge was right to demand an explanation of President Barack Obama’s comments about whether the Supreme Court has the right to overturn his sweeping healthcare reforms, former attorney general Michael Mukasey says.
The only surprise is that Judge Jerry Smith demanded that the explanation should be a certain length — “three pages of single-space typing,” he told Fox News’ Martha MacCullum.
“What they’re saying is we don’t want some smart alecky offhand response, we want three single-spaced pages with a serious discussion. That is unprecedented,” said Mukasey, who served as George W. Bush’s attorney general for the last year of his presidency.
“Courts ask lawyers to back up their positions with briefs all the time,” said Mukasey on “America’s Newsroom.” “What’s unusual to me is that courts usually submit page limits, they say don’t submit more than two pages or three pages.”
Smith interrupted an argument by government attorney Dana Lydia Kaersvang on Tuesday as she argued a healthcare-related case before the 5th Circuit Court of Appeals in New Orleans.
The judge, a Reagan appointment, said the court needed to know Obama’s position as to whether the court system has the right to overturn laws on constitutional grounds. “That’s not a small matter,” he told Kaersvang.
Mukasey pointed out that the president has authority over all departments of government including the Department of Justice, so Smith was within his rights to demand an explanation of Obama’s position.
He pointed out that Obama is a constitutional lawyer, which makes his argument even more relevant. “To say the courts owe deference to elected officials and that it is somehow improper and overreaching for a court to strike down a statute is wrong as a matter of history,” he said, pointing out that they have been judging since matters since 1803.
“But when the president calls that into question, the court, it seems to me, has every obligation to sit up and take notice.”
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