A federal appeals court judge on the Fifth Circuit pretty much freaked out yesterday during a trial with a member of the Justice Department, pouncing on President Obama’s comments about the Supreme Court’s health care case and badgering counsel on whether judicial review exists:
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 [...]
Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. 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.
This was related to comments the President made on Monday in the Rose Garden, which conservatives criticized as a threat. At a Q&A session with newspaper editors yesterday, President Obama clarified those comments, saying that he was merely describing cases involving the Commerce Clause:
OBAMA: Well, first of all, let me be very specific.
We have not seen a court overturn a law that was passed by Congress on an economic issue like health care, that I think most people would clearly consider commerce. A law like that has not been overturned, at least since Lochner. Right? So we’re going to back to the ‘30s, pre-New Deal. And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it. But it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly-elected legislature, our Congress. And so the burden is on those who would overturn a law like this.
Now, as I said, I expect — I expect the Supreme Court actually to — to recognize that and to abide by well-established precedents out there. I have enormous confidence that, in looking at this law, not only is it constitutional, but that the court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.
The Fifth Circuit has a reputation for being particularly ideologically conservative, but this travels past even those boundaries. According to a transcript of the remarks, Judge Jerry Smith, a Reagan appointee, put the question to the DoJ lawyer of whether federal courts can strike down federal statutes, to which the lawyer replied “Yes, your honor.” And this wasn’t enough for Judge Smith, who then referred to Obama’s remarks on Monday (without the knowledge of the elaboration on Tuesday. Then:
Smith: That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that 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.
Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –
Smith: I would like to have from you by noon on Thursday…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, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.
So you have a federal judge assigning homework to the Justice Department on the concept of judicial review, designed to embarrass the President. These Federalist Society types are really feeling their oats, ay?
I’ve said repeatedly that the Constitutionality of the Affordable Care Act matters less to me than the behavior of the Supreme Court in the case, moving from judges to nakedly ideological politicians, determining policy based on precious little knowledge of the law in question. This maneuver takes it up a notch ideologically as well.
UPDATE: A reader writes in:
Unless the President’s remarks were on the record before the judge (placed in the record by one of the parties as for example in a filing with the court or somehow uttered during oral argument) the judge arguably has no business considering them while deciding the case. Given that this is an appellate case and the remarks by the President were within the last few days and the appellate record had to be finished weeks (and more probably months) before the oral argument at which Judge Smith asked for the letter, it is difficult to understand how the President’s remarks could have been part of the appellate record which (along with remarks at oral argument) is all the judge is supposed to consider. If the President’s remarks were not part of the appellate record, Judge Smith has just taken judicial action based upon an extrajudicial statement (one not made on the record with proper judicial notice to both parties (appearing in the morning newspaper or on television is not proper judicial notice)). In general, this is not allowed. The communication to which Judge Smith referred was an ex parte communication (a communication not made in the presence of (or with appropriate judicial notice to) at least one party. Here the ex parte communication appears to have been made outside the presence of all of the parties.
See, for example, Canon 2(a) and Canon 3(a)(4) of the Code of Conduct for United States Judges (http://www.uscourts.gov/RulesAndPolicies/CodesOfConduct/CodeConductUnitedStatesJudges.aspx). Canon 2(a) requires compliance with the law and the judge’s consideration of an ex parte communication not part of the record is arguably not in compliance with the law. Canon 3(a)(4) bars consideration by a judge of ex part communications. Here, Judge Smith considered an improper (that is improper in the judicial sense, there was nothing improper about the President saying whatever he wanted to say outside of court) ex parte communication.