Fifth Circuit calls out DOJ lawyer: Is your boss now claiming that courts don’t have the power to strike down laws? Update: A lawyer’s take

Via Ace. Serious question for appellate lawyers: Is it S.O.P. for judges to introduce comments made outside the courtroom by one of the parties to the litigation in this way? Unless I missed something, the DOJ wasn’t and isn’t arguing Obama’s moronic claim yesterday that the Supremes striking down ObamaCare would be “unprecedented.” It sounds like Judge Smith (a Reagan appointee) was simply honked off at The One’s demagoguery in the Rose Garden and wanted to upbraid him for it.

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, telling the lawyers arguing the case it was not clear to “many of us” 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.”

They ordered the DOJ to submit a three-page letter stating its position on judicial review by noon on Thursday, even though the Department’s lawyer conceded that Marbury v. Madison is good law and even though Obama himself never went so far yesterday as to say that the Supreme Court lacks the power to overturn laws. He said overturning ObamaCare specifically would be “unprecedented,” but no true-blue Warren-Court-loving lefty like The One would ever seriously impugn judicial review. And the Fifth Circuit knows it. What they’re doing here is humiliating him as a way of getting him to stop the demagoguery, with the letter acting as the equivalent of a kid writing on the blackboard as punishment after class. “I will not question Marbury v. Madison, I will not question Marbury v. Madison, I will not question…” Rest assured, a liberal court will pay President Romney back for this somehow at some point. And in fact, O might use the letter as a political opportunity. Now that there’s bound to be intense media interest in it, he could explain in it why (a) yes, of course he accepts judicial review, unlike that darned Newt Gingrich who wants to haul judges before Congress, and (b) it would nonetheless be kinda sorta “unprecedented” to use judicial review on his pet health-care legislation.

He elaborated a bit on that last point today:

“We have not seen a court overturn a law that was passed by Congress, on a economic issue, like healthcare — like I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner [vs New York, 1905],” Obama told reporters during the question-and-answer session of the Associated Press luncheon…

“The point that I was making is that the Supreme Court is the final say on our Constitituon and our laws, and all of us have to respect it,” Obama said. “But it precisely because of that extraordinary power that the court has trad exercise significant restraint” when considering laws passed on the basis of the Commerce Clause.

His point is that the two landmark cases over the past 20 years in which the Court struck down laws passed under the Commerce Clause didn’t really have to do with commerce. One was a gun-control measure and the other was the Violence Against Women Act. In those cases, he’s saying, you can understand why the Court would object: The statutes are targeting activity that isn’t really commercial in the guise of “commercial” regulation. In this case, with O-Care, the activity in question really is commercial. All of which is super, but it’s based on the standard liberal idea that there really is no conceptual limit to the Commerce Clause except the Bill of Rights. As long as Congress is genuinely trying to regulate commercial activity and they don’t step on any First or Second Amendment rights, they can pretty much go nuts. Just vote ‘em out if they do. Who needs enumerated powers?

Via the Daily Caller, here’s Scarborough wondering why a con law prof would go out of his way to blur the lines on separation of powers. Elections, dear boy, elections!

Update: A friend who’s an appellate lawyer answers my question in the intro:

It is not common for appeals courts to introduce party statements from outside the courtroom and demand explanations, but that’s only because most litigants aren’t dumb enough to make statements outside the courtroom likely to impact their cases. The notable exception to that general rule is the government-as-litigant, which, because it is led by politicians and ever-shifting public policy, is more likely than most litigants to have to explain statements or policies that may run against its best legal interests.

I’ll give you just two recent examples, where appellate courts have done like the Fifth Circuit did here. First, when the Obama Administration announced its decision to not defend DOMA even while it continues to enforce DOMA, several judges in DOMA-related cases (and a few in barely-related cases) demanded that DOJ explain. Those demands for explanation came from both Republican- and Democrat-appointed judges. Second, after months of the Administration attempting to push its “prosecutorial discretion” policy with respect to aliens in removal proceedings, the Ninth Circuit finally fed up with the apparent collision of the Administration’s announced discretion policy and the actual prosecutorial decisions of DHS, demanded in five test cases that DOJ explain what the discretion policy actually entailed and what that means for the Ninth Circuit’s cases. So this happens and it’s not the first time for Obama’s Administration.

As you noted, DOJ isn’t arguing President Obama’s “unprecedented” talking point with respect to the healthcare reform law. DOJ’s not that stupid. But from the courts’ point of view, that is a reason to be more concerned by Obama’s statement, not less. If Obama is announcing a shift in the Executive Branch’s position, of which DOJ is a part, then the courts are entitled to ask about it. Now, you and I and the judges know that Obama’s probably not announcing policy changes in what was just a campaign speech. But words have consequences, particularly for litigants. The courts may choose take Obama at his word, unless he explains that it was just a campaign speech and not intended to represent the position of the Executive Branch on the matter. The Fifth Circuit’s “homework assignment” is a fairly gentle reminder to the President that he actually leads the United States government and not just the campaign for his reelection.

• Bobby Jindal: Paternalistic, big-government liberalism is the biggest loser here
• Chris Christie: “I’ll be here to welcome” Obama when he comes to tour the NJ coast again next week
• MSNBC consensus: Obama’s speech was historic, amazing, “one of the best of his presidency”

Blowback