But Judge Jerry Smith of the 5th Circuit decided that it's grand-standing time:
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 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."
Oh please. There's actual doubt as to whether the Obama administration believes in judicial review? As if this wasn't an absurd claim on face, the Holder memo's explicit determination as to the executive's belief in the unconstitutionality of the Defense of Marriage Act provides an obvious case of the Obama administration believing in the judiciary's right and duty to strike down unconstitutional laws. This, of course, does not extend to a belief in the judiciary's right to strike down perfectly constitutional laws. For Judge Smith to make this accusation is so far beneath the dignity of the federal bench you need an oil drill to reach it.
Judge Smith's order is outrageously disrespectful, more worthy of Rush Limbaugh-style gutter politics than a judge with life tenure. Disrespect deserves disrespect in turn. Since the administration can't lawfully ignore the order asking them whether or not they believe in the power of judicial review, I propose they respond with a one-page document that merely says "yes". There's nothing more to say and nothing to see here, and certainly Judge Smith deserves nothing more than that.
UPDATE: To add to the middle school-ishness of it all, looks like the order requires the administration's response to be three pages, single-spaced. Well, there goes my proposal.
UPDATE 2x: Rush Limbaugh agrees!