A three-judge panel of the Fifth Circuit U.S. Court of Appeals escalated the increasingly public battle between President Barack Obama and the judiciary on Tuesday, ordering the Department of Justice to write and submit a three-page, single-spaced letter by noon on Thursday explaining whether the administration acknowledges that the courts have the right to overturn federal laws.
The order, CBS News reported, follows the president’s historically inaccurate claim Monday that a Supreme Court decision striking down the so-called “individual mandate” in his health care overhaul law “would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected Congress.” Obama suggested that because of this, the Supreme Court would opt not to overturn the law. (RELATED: Full coverage of Obamacare)
A Tuesday opinion essay in the Wall Street Journal corrected the president’s history, noting the famous Marbury v. Madison case.
“In Marbury in 1803, Chief Justice John Marshall laid down the doctrine of judicial review,” the Journal’s editors wrote. “In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of those laws were passed by a ‘democratically elected’ legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by ‘strong’ majorities.”
Noting that Obama “is a former president of the Harvard Law Review and famously taught constitutional law at the University of Chicago,” the essay adds that the president’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.”
The Fifth Circuit court was hearing a separate case, brought by physician-owned hospitals, against the health care law’s “individual mandate” provision.
According to CBS, after Appeals court Judge Jerry Smith — a Reagan appointee — pushed DOJ lawyer Dana Lydia Kaersvang to admit that that the court did have precedent on its side, Smith grew “very stern” and said that the Obama’s remarks left “many of us” unclear about whether Obama agrees.