April 4, 2012 Print
President Obama

5th Circuit Gives Obama Administration Homework Assignment

by Karla Dial

U.S. Attorney General Eric Holder confirmed today that the Department of Justice will give a formal response to the 5th U.S. Circuit Court of Appeals, which demanded a three-page, single-spaced essay on whether the Obama administration believes courts have the authority to strike down laws — and why.

The request came from a three-judge panel in Texas in the midst of a case concerning the treatment of physician-owned hospitals under the new federal health care law known as ObamaCare, which the U.S. Supreme Court spent three historic days reviewing in late March. On Monday, President Obama said if the court strikes down the law, he will regard it as “judicial activism” — and warned the justices not to “take that step.”

“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 detailed reference to those statements, what the authority is in the federal courts in this regard in terms of judicial review,” Judge Jerry Smith, a Reagan appointee, told the shocked DOJ lawyer in his courtroom on Tuesday.

“The letter needs to be at least three pages, single-spaced, and it needs to be specific.”

Kelly Shackelford, president of the Liberty Institute, a religious-liberties law firm in Plano, Texas, said though the request was highly unusual, it was correct.

“You’ve got the Justice Department, who is arguing before these judges, and in the middle of their case, you’ve got their boss declaring to you that it’s somehow inappropriate for judges to declare something unconstitutional,” he explained. “That’s certainly something novel the judges need to know about.”

Shackelford said Obama’s comments were “inappropriate.”

“For a president to attempt to use his position to influence the decision of the judicial branch is unseemly,” he said. “This is not a matter of lobbying the legislature. Presidents don’t lobby the Supreme Court. The whole point of Lady Justice having the blindfold on her face is that judges aren’t supposed to care about public opinion — they’re supposed to interpret the law. Period.”

Meanwhile, Congressional Republicans continued to have a field day with Obama’s remarks.

“Liberal Democrat presidents have done for judicial activism what Stonehenge did for rocks,” said Rep. Trent Franks of Arizona. “Indeed, without judicial activism and blatant constitutional overreach, the left would have almost no policy precedence to hold up to the world.

“Far-left judicial activists are the only appointments Barack Obama has made to the Supreme Court. For him now to attempt to preempt and intimidate the Court from protecting the most basic kind of American freedom by accusing them of judicial activism is an arrogant hypocrisy that should take America’s breath away.”


Watch the video of the president’s comments.

Learn more about the separation of powers under the U.S. Constitution.