Professor Who? Federal Appeals Court Schools Obama on Constitutional Law


ACRU Staff


April 5, 2012

This column by ACRU Senior Legal Analyst Ken Klukowski was published April 4, 2012 on

Now it’s a duel. A federal appeals court just called out President Barack Obama over his disturbing comments on the Supreme Court this week.

Last week, a number of us in the courtroom during oral arguments realized that Obamacare was in trouble.

Conservative lawyers, like me, were delighted. As for some lawyers on the left, like Jeffrey Toobin, you’d have thought they were at a funeral.

Evidently concurring with all of us that his signature law is in jeopardy, Obama launched a preemptive strike April 2, saying that because federal judges are an “unelected group of people,” they shouldn’t dare strike down unconstitutional laws.

That statement was so patently absurd on multiple fronts that I don’t know where to begin.

Ever since Marbury v. Madison in 1803, it has been the hallmark of the third branch of government that it has the power to invalidate laws that violate the U.S. Constitution, because it is the Supreme Law of the Land, and therefore, “all laws repugnant to the Constitution are null and void.” The reason federal judges hold lifetime appointments is so that they will be immune to popular and political pressure, and instead faithfully apply the Constitution and the law.

And Obama knows this. Every lawyer knows this. All of us read Marbury early in law school. And we all know that Marbury merely made official what the Founding Fathers said all along–in The Federalist papers, during the Constitutional Convention, and during the ratification debates in the sovereign states–that if the new federal government made a law violating the Constitution, the courts had the power to neutralize the illegal enactment.

Nor does Obama really mean what he said. If a state outlawed abortion, Obama would lead the charge calling for a court to strike it down. His Justice Department is arguing that courts should strike down voter-ID laws as unconstitutional.

Understanding that Obama’s statements are an attack on the independence of the judiciary and the system of checks and balances created by the Constitution, the federal courts are striking back.

Today, the U.S. Court of Appeals for the Fifth Circuit heard arguments in a separate Obamacare challenge in Physician Hospitals of America v. Sebelius. According to Jan Crawford at CBS News (one of the most knowledgeable attorneys among the journalists who cover the Supreme Court), Judge Jerry Smith asked the Department of Justice lawyer arguing the case–Dana Lydia Kaersvang–whether Obama’s statement is now the official position of the United States government.

Although Kaersvang quickly admitted that Marbury and 200 years of unbroken precedent clearly hold that courts have the power to strike down Obamacare, Smith wanted it in writing. So the three-judge panel hearing this appeal–Smith, Emilio Garza, and Leslie Southwick (all three are excellent judges, and Smith is also a fine gentleman to boot)–issued an order today, requiring the Justice Department to file a three-page, single-spaced letter by noon this Thursday, reaffirming that the federal government agrees that courts possess the power of judicial review.

One scholar commented today that this was an embarrassing move by the judiciary. He’s exactly wrong. President Obama’s comments were an embarrassment. What’s more, they were–yet again (remember his State of the Union comments about the Citizens United case)–an attack on America’s constitutional system.

The courts are there to safeguard our rights when politicians trample upon them. And they protect us from an imperial president who claims power forbidden to him by the Constitution. It’s entirely proper for Obama’s government to have to admit what the law is in a submission to the Fifth Circuit. And it’s quite encouraging to see that the courts are not being cowed by this president’s Chicago-style bullying, and are intent on upholding their oath, where each of them raises his or her hand toward heaven and swears to “faithfully and impartially discharge and perform all duties incumbent upon me as a [judge] under the Constitution and laws of the United States. So help me God.”



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