On Monday, he took on the Supreme Court claiming if the justices strike down the Affordable Care Act, AKA Obamacare, it would be "unprecedented." What in the world does he mean by that? The President went on, "that an unelected group of people would somehow overturn a duly constituted and passed law."
Isn't that what federal judges do? Don't they strike down laws that violate the constitution? Ever since the days of Marbury vs. Madison that's been the way the federal judiciary rolls.
In his comments, the President actually used the term "judicial activism."
Certainly, Republicans have also complained about that. They typically whimper that judges aren't just overturning laws, but "making new laws" from the bench. Now the President appears to expand the definition of "activism" as any judge who dares dabble with his pet legislation.
Now one federal judge on the 5th Circuit Court of Appeals is firing back.
Judge Jerry Smith, a Reagan appointee, ordered a Justice Department attorney to come back on Thursday with a letter from the Attorney General affirming the Obama Administration does indeed recognize "the authority of the federal courts, though unelected judges, to strike down acts of Congress or portions thereof in appropriate cases."
This is Germaine because the 5th Circuit is currently hearing another lawsuit against ACA -- the same law the Supremes appear ready to strike down.
Okay, I think Judge Smith is being more than a tad bit political. Let's be blunt, he's grandstanding.
A charitable interpretation of what Judge Smith did is this: He just wants to make sure that, regardless of what President Obama says, his administration will abide by whatever decision is reached by the court.
I also think what the President said was reckless. Others went further claiming he was deliberately misleading and his statement was "consistent with the crass, cynical politicization of the Rule of Law and the U.S. Constitution that has marked his first term in office."
Surely, the President wasn't trying to intimidate a co-equal branch of government as it considered the "signature legislation of his presidency?"
Thursday's hearing in the 5th Circuit should be interesting. It would seem the Justice Department can't give the judge what he wants unless it throws the boss under the bus.