President Barack Obama’s attack on the Supreme Court appeared to backfire Tuesday, when the 5th Circuit Court of Appeals issued an order giving the Justice Department until noon Thursday to state whether the administration truly believes courts lack the authority to strike down mandates that they determine are unconstitutional.
On Monday, Obama said that striking down his signature healthcare legislation would be an “unprecedented, extraordinary step” and would demonstrate a lack of “judicial restraint” by the Supreme Court.
He also pointed out that the nine Supreme Court justices are unelected, suggesting that it would therefore be undemocratic for them to overturn Obamacare, which narrowly eked through Congress by a seven vote margin in the House of Representatives.
“This is liberals in shock over watching their side being demolished in oral arguments,” Fox News commentator Charles Krauthammer said Tuesday, pointing out the courts have had the authority to strike down unconstitutional provisions for over 200 years. “And [they are] trying to bully the Supreme Court into ending up on their side in a case which they clearly had lost intellectually and logically.”
The order from the 5th Circuit for the Justice Department to clarify its position on judicial authority came during a separate challenge to Obamacare brought by physician-owned hospitals.
As a Justice Department lawyer began arguing the government’s case, Appeals Judge Jerry Smith interrupted the presentation to ask if the 5th Circuit Court had the legal authority to strike down a law it finds to be unconstitutional. CBS News reports that when the government lawyer answered affirmatively, the judge stated that it was not clear to “many of us” that the president agrees.
The three-judge panel then gave the Justice Department until noon Thursday to provide a three-page letter clarifying whether it believes courts have the authority to pass judgment on the constitutionality of laws.
“Clearly, Jerry Smith was upset by the president’s remarks and he has every right to demand clarification,” judicial expert Curt Levey of the Committee for Justice told Newsmax. “Obviously, he’s making a point as well as requesting clarification.
“But the president left himself open to that,” Levey added. “Of course the president doesn’t really believe the Supreme Court can’t strike down unconstitutional laws. But if the president’s going to say things like that to demagogue, then he is responsible for them.”
Many observers saw the president’s remarks as a clumsy attempt to “work the refs” and influence the court’s decision on his healthcare reforms. His challenge to the independent judiciary branch of government provoked widespread criticism from both sides of the aisle Tuesday.
“For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice,” wrote Washington Post correspondent Ruth Marcus, who has been a staunch defender of the president’s policies.
The Wall Street Journal, meanwhile, published a pointed editorial taking the president to task.
“Mr. Obama's remarks suggest he is joining others on the left in warning the justices that they will pay a political price if they dare to overturn even part of the law,” it stated. “As he runs for re-election, Mr. Obama's inner community organizer seems to be winning out over the law professor.”
By upping the ante, the 5th Circuit focuses more attention on a misstep that the administration would prefer go unnoticed. The president came under attack from the left and right Tuesday over what looked like a blatant attempt to intimidate the court and influence its verdict. He quickly backed off from his challenge to the judiciary, however.
“The point I was making is that the Supreme Court is the final say on our Constitution, and all of us have to respect it,” he said. “But it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to a duly elected legislature.”
Obama went on to assert that overturning congressional legislation was so extraordinary that the burden of proof would be on those who felt it could be unconstitutional.
That view, however, appeared to be at odds with the position of the key swing vote in the case, however: Associate Justice Anthony Kennedy.
“I understand that we must presume laws are constitutional,” Justice Kennedy said to U.S. Solicitor General Donald B. Verrilli on the second day of oral arguments last week. “But, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”
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