UPDATE 1:44 p.m. A transcript of the exchange between the judge and the government lawyer is here, thanks to NBC News.
A panel of Circuit Court judges, reacting to President Obama’s questioning of federal courts’ authority to strike down some or all of the new health care law, on Tuesday demanded that the government spell out its intentions if a court should do so. In a brief order, the Fifth Circuit Court ordered a Justice Department lawyer to file a letter by midday tomorrow on the issue.
The order refers only to oral comments made at a Tuesday hearing by Circuit Judge Jerry E. Smith, testing a Justice Department lawyer directly on the comments the President made to reporters at the White House on Monday. (CBS News, in this news article, has a link to the oral argument audio and a full description of what Judge Smith had said, and the government lawyer’s response.)
The Circuit Court panel is reviewing a case in which doctor-owned hospitals are challenging a provision of the new Affordable Care Act that limits their ability to bill for services to Medicare patients referred by one of the owner-doctors. (The case is Physician Hospitals of America, et al., v. Sebelius, Circuit docket 11-40631). A federal District judge in Texas has rejected the hospitals’ constitutional challenge, and that is now under review on appeal. The Circuit Court has refused to delay the case until after the Supreme Court rules on much broader pending challenges to the new law.
At Tuesday’s hearing, Judge Smith, according to CBS News, said the President’s suggestion that it would be unprecedented for “unelected judges” to strike down a federal law that had won passage in Congress was “not a small matter.” He told government lawyer Dana Lydia Kaersvang: “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. What is the authority of the federal courts in this regard in terms of judicial review?”
The government lawyer had conceded, in response to a question from the judge, that the courts do have the authority in an appropriate case to strike down a federal law as unconstitutional. In directing the filing of a letter response, Judge Smith commented, according to CBS News: “I want to be sure 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.”
When a formal order directing the filing of the letter emerged later in the day, Judge Smith was joined by the other judges on the panel, Circuit Judges Emilio M. Garza and Leslie H. Southwick.
A post on this blog discussing the President’s Monday remarks is here. On Tuesday, the President sought to clarify his remark somewhat. According to CBS News, the President said: “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.” He repeated his confidence that the Court would upheld the health care law.