Fox's Friends on the Court

Today, a panel of the Fifth Circuit Court of Appeals gave a punishment assignment to Department of Justice attorney Dana Lydia Kaersvang:

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.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, suggesting it wasn't clear whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

Sorry about the long quote, but this is a brazen abuse of judicial authority. Let me explain why.

First, the President did not suggest that he would defy the Supreme Court, let alone the Fifth Circuit. The President was asked "[a]fter last week’s arguments at the Supreme Court, many experts believe that there could be a majority, a five-member majority, to strike down the individual mandate. And if that were to happen, if it were to be ruled unconstitutional, how would you still guarantee health care to the uninsured and those Americans who've become insured as a result of the law?" He replied:

With respect to health care, I’m actually -- continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.

I think it’s important -- because I watched some of the commentary last week -- to remind people that this is not an abstract argument. People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions.

The law that's already in place has already given 2.5 million young people health care that wouldn’t otherwise have it. There are tens of thousands of adults with preexisting conditions who have health care right now because of this law. Parents don't have to worry about their children not being able to get health care because they can't be prevented from getting health care as a consequence of a preexisting condition. That's part of this law.

Millions of seniors are paying less for prescription drugs because of this law. Americans all across the country have greater rights and protections with respect to their insurance companies and are getting preventive care because of this law.

So that’s just the part that's already been implemented. That doesn’t even speak to the 30 million people who stand to gain coverage once it’s fully implemented in 2014.

And I think it’s important, and I think the American people understand, and the I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care. So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this. And I hope that’s not forgotten in this political debate.

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

In other words, the President firmly asserted his belief that the statute was constitutional, an that the Supreme Court would not engage in the very judicial activism conservatives have long condemned. There is nothing in this statement to suggest that the President would defy a Supreme Court decision, or that the Court lacked power to strike down unconstitutional statutes; he just contended that as to the ACA, that power would not be used, because the statute was constitutional, and he trusted the conservative members of the Supreme Court to live up to their own ethos. So, the Fifth Circuit panel's acting as if Obama was denouncing judicial review is simply false.

More to the point, even if President Obama was denouncing judicial review by the Supreme Court, what does that have to do with the Fifth Circuit's review of the district court opinion? It's what appellate lawyers call de hors the record, that is, outside of the record as a matter of fact and as a matter of law. The time to worry about a party's defiance of a judicial edict is when they, y'know, disobey it. This is especially true where, as here, the speech at issue didn't involve the case before the Fifth Circuit, but one before the Supreme Court. If any irregularity could be found in the President's statement, it is for the Supreme Court to address; they're pretty good at protecting their jurisdiction.

Third, the DOJ lawyer unequivocally answered the question with an unequivocal statement that "Marbury v. Madison is the law", and then went on to try to argue her case. Judge Smith then demanded the three page essay:

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.

OK, so why is the advocate's formal representation in court insufficient? Why does it need to be "at least three pages, single spaced, no less?"

Simple; to humiliate the President, and to create a document that the President's political adversaries can use to cherry-pick for "cave in" quotes. It's fodder for Fox News, no less, and done from the bench to disempower a sitting President, our first African-American one. And it is unprecedented; Ronald Reagan used the State of the Union address to denounce Roe v. Wade and Court rulings on school prayer; nobody suggested that he was defying the Court's authority to issue the orders, and haled him in front of a court to submit a punishment essay.

And this panel? all appointed by Republicans. Acting, here, as Republicans, not as judges.

The rule of law took a serious blow today. Our federal courts are less credible than they were yesterday.