A judge on the 5th Circuit Court of Appeals assigned a three page, single spaced paper on whether or not the Obama administration believes that courts have the authority to review laws and declare laws unconstitutional if necessary to a lawyer that is arguing a case before him. The Justice Department has 48 hours to respond.
Recently, President Obama made a speech in which he 'encouraged' the Supreme Court to find his signature healthcare law constitutional. He cautioned the Court that as 'unelected' judges, they shouldn't undo what Congress had done. Apparently during his time as a Constitutional Law scholar, Mr. Obama never read about Marbury v Madison.
Judicial review of law and how it is applied is exactly the reason we have higher courts. Local courts are perfectly capable of finding out matters of guilt, innocence, and liability. The higher courts are there to answer questions about whether or not something that the government is doing violates the limits placed on it by the Constitution.
Finding a law to be unconstitutional is not judicial activism, especially when that law is unprecedented in its granting of new powers to the government. President Obama knows better, and is playing to the crowd and trying to cow the judiciary in the vein of President Roosevelt. Something tells me that Justice Kennedy isn't going to fold in 2012 like Justice Roberts did in 1937.
For his sake, I hope the Justice Department flunky assigned to write up this report does a good job. I've heard that judges are tough graders, and this one sounds pissed.
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