5th Circuit Condemns Obama Speech

Circuit Judge Jerry Smith of the 5th Circuit intends to hold the Department of Justice accountable for President Barack Obama’s recent criticisms of the Supreme Court. On Monday President Obama remarked that overturning the health care law would be an “unprecedented, extraordinary” step. He cited “judicial activism” among criticisms of the current Court. The President had confidence in his law, and was doubtful that “an unelected group of people would somehow overturn a duly constituted and passed law.” Apparently, those remarks concerned the 5th Circuit bench.

The case of Physicians Hospitals of America, et al. v. Sebelius, et al., No. 6:10-cv-00277 (5th Cir.) was held for oral argument Tuesday morning. Immediately interrupting DOJ counsel Dana Lydia Kaersvang, Judge Smith asked:  ”Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?” He continued,

I’m referring to statements by the President in the past few days to the effect that … it is somehow inappropriate for what he termed ‘unelected judges’ to strike acts of Congress–he was referring to of course Obamacare–to what he termed a broad consensus and majorities in both houses of Congress. 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.

Judge Smith then ordered the Department of Justice to state in a letter no less than three single-spaced pages the DOJ’s position on whether the Article III Courts may overturn a “constitutionally infirm” law.  On Wednesday, U.S. Attorney General Eric Holder supported Barack Obama and promised to provide the three-page single-spaced memo to the Court by noon Thursday.

While bold for certain, Judge Smith’s statements reveal an offended federal judiciary. Though we should think the Supreme Court immune from Presidential influence, could Obama’s statements have the opposite intended effect?

Experts agree that the upcoming June Supreme Court opinion on the constitutionality of Obamacare may well define the Roberts Court.  Chief Justice Roberts might hesitate to strike the law out of concern that a split 5-4 decision on such a prominent and politically charged issue would damage the Court’s long-term reputation. Some posit that the Chief Justice would vote with the Court’s liberal block, forming a 5-4 majority to uphold the law. The Chief Justice would then assuredly reserve to himself the majority opinion and fashion the holding to limit  precedential destruction of the Commerce Clause and his conservative ideals.

But then Obama raised the stakes. His Monday comments challenged the Court’s Article III power, almost daring the Court to strike the law in a show of strength. After all, the States argue that upholding the law will effectively castrate the Commerce clause unlike any prior decision (Wickard and Raich notwithstanding). Would the Court allow the Commerce Clause to become a mere shibboleth in modern legal texts? Would the Roberts Court cower in the face of political adversity? President Obama’s comments may leave less room for the Court to uphold the law and keep its integrity in the public opinion.  By daring the Court into action, therefore, the President may provoke the very outcome he fears most. If Roberts is persuaded at all by the President’s public comments–and that is an enormous presumption–then he could be more inclined than ever to hold the law unconstitutional.

Review the audio of Tuesdays oral argument in the Fifth Circuit here. Judge Smith begins around the 18 minute mark.

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