Conservatives have been fiercely partisan the last few years. The Republican Party has chosen ideology over what’s best for the country on nearly every issue. Even the conservative judges at every judicial level have abandoned objectivity to pursue partisan decisions for the conservative agenda. And the Fifth Circuit Court is the most ideological of all the US courts.
Department of Justice attorney Dana Kaersvang was arguing another Affordable Care Act case on Tuesday before the Fifth Circuit when Republican Judge Jerry Smith interrupted her and began to interrogate her about comments previously made, and clarified, by President Obama on Monday and Tuesday. The President said that if the Supreme Court strikes down the health care law, it would be an unprecedented case of “judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.” He then clarified his comments the next day, saying that the court hasn’t struck down a law that “was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce.” But that clarification didn’t matter to Judge Smith. He ambushed Kaersvang and treated her like a child and even assigned a homework assignment for her to complete in an attempt to embarrass President Obama. Here’s a transcript via The Wall Street Journal.
Smith: 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: Yes, your honor. Of course, there would need to be a severability analysis, but yes.
Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.
That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that 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.
Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –
Smith: 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 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.