A Fifth Circuit oral argument held yesterday garnered enormous attention when Judge Jerry Smith questioned a DOJ attorney about whether the judiciary could strike down an unconstitutional law -- a rhetorical question if ever there was one. Judge Smith elaborated that it wasn't clear whether President Obama believes such a right exists, based on his recent prediction that the U.S. Supreme Court will not overturn the Affordable Healthcare Act (Judge Smith called it Obamacare) because such a ruling "would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
Apparently not satisfied making the rhetorical point, the panel then ordered the DOJ to submit, by Thursday at noon, a three-page letter explaining whether the Attorney General believes the federal judiciary has the authority to invalidate federal laws.
The audio of the oral argument is here (the case is Physician Hospitals of America v. Sebelius). The exchange between Judge Smith and the DOJ attorney begins at about the 18-minute mark. It's worth noting that the DOJ lawyer, Dana Lydia Kaersvang, handled the situation very well.
Can't wait to see how the DOJ responds to this homework assignment.
