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

[Obama's Ignorance Of The Constitution And Law]

(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, 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."

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

http://www.cbsnews.com/8301-504564_162-57408827-504564/appeals-
court-fires-back-at-obamas-comments-on-health-care-case/