Appeals court fires back at Obama's comments on health care case

Updated 6:55 p.m. ET

(CBS News) 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.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would 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."

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.

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."

I've reached out to the White House for comment, and will update when we have more information.

UPDATE 6 p.m. ET: The White House is declining to comment on the 5th Circuit's order, but the president today did clarify his comments that it would be "unprecedented" for the Court to overturn laws passed by a democratically elected Congress. During a question-and-answer session after a luncheon speech in Washington, a journalist pointed out "that is exactly what the Court has done during its entire existence."

Mr. Obama suggested he meant that it would be "unprecedented" in the modern era for the Court to rule the law exceeded Congress' power to regulate an economic issue like health care.

"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," Mr. Obama said.

"Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence 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," he said.

And now DOJ gets to write three single-spaced pages expounding on that. Due at high noon on Thursday.

UPDATE 6:55 p.m. ET: Audio from the 5th Circuit hearing, with Judge Smith's order to DOJ, is available here.

In the hearing, Judge Smith says the president's comments suggesting courts lack power to set aside federal laws "have troubled a number of people" and that the suggestion "is not a small matter."

The bottom line from Smith: A three-page letter with specifics. He asked DOJ to discuss "judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation."

"I would like to have from you by noon on Thursday -- that's about 48 hours from now -- 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," Smith said. "What is the authority is of the federal courts in this regard in terms of judicial review?"

Smith made his intentions clear minutes after the DOJ attorney began her argument, jumping in to ask: "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?"

Kaersvang replies yes, and Smith continues: "I'm referring to statements by the president in past few days to the effect, and sure you've heard about them, that it is somehow inappropriate for what he termed 'unelected' judges to strike acts of Congress that have enjoyed -- he was referring to, of course, Obamacare -- to what he termed broad consensus in majorities in both houses of Congress."

In asking for the letter, Smith said: "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."

CBSNews.com Special Report: Health Care Reform

[AmazingLawyer]

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[MiMiLLL]

This ought to be good.....kinda like the states Judicial Systems.....it is a 3 ring circus going on.....and no one knows what to do.....IS ANYONE IN CHARGE OF ANYTHING THESE DAYS????????????????
http://ireport.cnn.com/docs/DOC-736024 This is another prime example of CORRUPTION AND COVER UP....read the link and then watch the trial....IT WILL SHOCK YOU.....

[HolyVoice]

What is needed is action by the government to break up all the big insurance companies and HMOs. This would create competition and that would drvie prices down.
by 76SpiritOf April 4, 2012 9:14 PM EDT

This is happening on its own right now. With the quality of HMO care going down, and health care price increases twice or more than that of the cost of inflation, the industry is crumbling. Consolidation of both heathcare and the insurance industries would be a major antitrust target, with concerns of nurse union contracts.

These industries are too big to fail!

[HolyVoice]

"the escalating battle between the administration and the judiciary"

I don't hear battle overtones in President Obama's comments. He is a leader with an established vision, and he is countering alternatives to his signature legislation. What leader wouldn't hold the line on his or her perspective in the face of conflicting views.

As far as the constitution is concerned, the Judiciary is an equal branch with the President and Congress--there's always going to be a battle of the wills. I'm glad to hear about it.

[laurenpianoplayer]

I simply do not understand how anyone, and most particularly, a high court judge, could hear an attack in the words of the president. I too feels his statements show clear leadership and a desire to stand firmly by his vision for healthcare reform foe american citizens. We all should be pleased that the executive branch of our government will speak out in support of this hard won and extremely important piece of legislation. The current court has ruled wrongly with regard to camapaign contributions, and I hope, along with the president, and all of us in favor of the healthcare reform act, that they will not make another mistake. The judicial branch is throwing it's weight around, and Smith is behaving like a pouting child who perceives he has been called a bad name, by demanding the DOJ actually write a 3 page single-spaced paper! We are all adults here, or at least we, meaning the court, should be acting as such

[fitstshu]

I would like to have a poll. Which is worse, the strip search decision, or a mandate to buy insurance. Lets start talking out of both sides of our mouth righties. Begin NOW

[ivanovvv]

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Also have you seen this?
http://googl.com

[angeljperea]

Hey Jerry, where have you been when Gingrich, Santorium, and the Cowboy Governor Perry were making such slanderous statements against this court during the past year campaign and on FOX TV as well as the elected Senators such McConnell and Hatch and Coryn? Did you demand a letter from them "recognizing federal courts' authority to strike down laws passed by Congress?" Well Mr. legal hypocrite! Here what I think of you since we still have free speech! Unfortunately, this Robert's Stup(id)reme Court has turned into nothing more than a disrespected, non-elected group of Political legal interest representatives that now serves as a rubber stamp for their own political views in the Congress! This institution with currently membership has damaged its prestige and power as well as destroyed its own creditability and integrity in its failure to make decisions based upon the constitution and now functions as activists with little respect or regard for established laws! This judicial body is no longer relevant and has dishonored itself as an independent branch of U.S. Govt! Roberts and his activist Court needs to be publically shamed to be reminded that we're a democracy, not a judicial dictatorship to buy broccoli ( in Affordable Health Act) to quote by Mr. Arrogant Scalia!

[Adam_Smith_123]

You don't really expect logically consistency or intellectual honesty from the right, do you?

[76SpiritOf]

All I notice is the GOP supporters ripping on the affordable healthcare act and not offering any solutions in return.

What is needed is action by the government to break up all the big insurance companies and HMOs. This would create competition and that would drvie prices down.

The way the healthcare system should work is as follows.

I have a health issue.

I go out and discuss my issue with 3 providers who diagonose the issue at their cost.

Once the diagnosis is complete, they submit a bid.

Then I select the bid that is most advantagous to my economy!

This is how it works with everything else, so why are we putting up with this method of doing business with healthcare?

Markets are based on competition and the government should step in and force the medical industry to comply.

Let's have competition for goods and services drive the markets.

[bileven]

Several issues, first off, there is far more competetion in other areas.

Second, it takes years off expensive college education, unpaid internship and year to build a "practice". 90% of the doctors and nurses out there are paying back student loans 20 years after they get their license.

Third, the cost we pay versus the expense the doctors pay levels out. Yes, they have nice houses and stuff... but I know many contractors that have lifestyles comparable, not to mention lawyers.

Fourth, the largest expense doctors have is malpractice insurance. This is because of the sue happy nut jobs that go after anyone and everyone they can, when they fail to accept responsibility.

Fifth, you analogy that "This is how it works with everything else", doesn't include legal assistanse or education. You have to pay for a lwayers consilation and students are assigned a class, and the teachers come with it. Not to mention, if you need litigation, you MUST go before the Judge assigned, you can't petition for bids to get the one you like.

Sixth, you HAVE the option of choice... many doctors only charge a minimal office visit for initial consonlation. If you don't like his price scale, you're welcome to move on. If you have dirt cheap budget, they have low cost clinics... for those more worried about their budget.

The fact that going to the doctor is expensive is immaterial to the conversation of ObamaCare. Since is does nothing to address the need.

Only thing is really does it deem everyone... that is every last taxpaying citizen, must have some form of Insurance. Whether they can afford it or not. And they fine, aka tax those that fall short. It also deems itself the only one's capable of deciding what level of coverage. Please, name one other Government Regulation or Regulating body that isn't a hassle to deal with, in this day and age?

As for offering solutions... start by getting government OUT of business. Get rid of the lobbyists. Restrict their Wall Street activity. Stop committee members with conflicting interests to the subject matter of the committee.

Get it on a general vote to have all Government Official and employees on the Government provided medical assistance program thay deem adequate for Seniors and/or Disabled. Remove any "clauses" that exempt any citizen by their position, standing, economic level, etc... they are Unconstitutional by the very articles of the Constitution.

Best alternative option... check the facts they spout and hold them directly accountable. Don't vomit out the same garbage they feed you and call it factual.

Quit voting a person because of their "party". Become involved, and by all means... never trust JUST the individuals that tell you what you want to hear, find out what they aren't telling you...

I recall Nancy Pelosi, when the "affordable Healthcare" was being debated.... "We need to pass it to know what's in it." Seriously? The very people writing the bill could not say what was in it? Which either means she never read it or she was covering up that portions of the bill would create problems, and further block their attempts.

Thing I find very interesting, the number of Democrats that originally back it, that now want nothing to do with it... speaks volumes of the contents.

[phillyfanaticoldtimer]

One wonders how much the media will kow tow to this Emperor with no clothes and frankly intellectual honest and his supposed Constitutional genius? It seems that they will believe anything to prop him up. The brave federal jurist who criticized Bama and the Dems will pay a price. It always seems that Dems go to the courts when they lose at the polls but when the courts go against their ideology, boy howdy, they cry, whine and if Bama could, would pack the court ala FDR! And the media would just stand by and salivate.

[dkjack]

OK, frothing oldtimer, time to take your meds and go back to sleep.

[DirkGentley]

"It always seems that Dems go to the courts when they lose at the polls" Yeah, like when Gore went to the Supreme Court in 2000 to get the vote count stopped in Florida and have himself appointed instead?

[TimeToEvolve]

You have to understand the right wing brain. When you are a radical extremist who backs people like Robmee and Paul Ryan you HAVE to call others the same thing (this is why they call Obama an extremist when he is actually pretty far right of center).

If you only care about rich white males like the Republicons you HAVE to demonize everyone else (poor, elderly, minorities). If you only care about yourself, you have to say that having a national health care plan is not in the Constitution (even though the Preamble says that it is the purpose of government to provide for the general welfare). You also have to keep saying you care about America while doing everything you can to take it down (like the Republicons in Congress).

Pretty simple to figure out the right wing brain.

[bileven]

"this is why they call Obama an extremist when he is actually pretty far right of center"

What HAVE you been smoking? Hello? Ordering the Catholic Church provide "Abortion Serives" to the employees? Taking the State of Arizona to court, simply because they are attempting to protect their borders (same laws already exist on the Federal Laws, btw). How about letting guns "leak" to Drug Cartel, in an attempt to justify banning guns for citizens?

If that's "right" of center... I would love to see "center". Last I checked, the average citizens have, by popular vote knocked down same sex, abortion and other things Obama has said to support..

"Center" is defined as the median of Voters Consensus. Not center of your world.

[TimeToEvolve]

by eqreynolds1985 April 4, 2012 4:23 PM EDT
The radicalism and extremism of the Republican Right is the greatest threat that this country has had to face since Adolf Hitler.

I think the events and facts about the Republicons support exactly what you say. They are driven by their Top 1% donors to radically alter America for the rich. At the expense of the rest of us.

Many Americans are so propagandized by the marketing of the giant corporations and the BS of Fox Propaganda Channel that they can't stand that Obama is standing up for the 99% (that includes THEM). These people actually miss the crimes against them and their fellow citizens during the Bush Crime Family 8 year reign of terror. We and Obama are STILL trying to dig our way out of that disaster.