It Might Be Unconstitutional for the President to Speak Against Judicial Review

even if he didn’t quite mean it:

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 order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would not “take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

I have to admit that if I were the President there’s no way in heck I would allow the Justice Department to respond to this ridiculous order.

The President did clarify what he meant, which was striking down ObamaCare would be an unprecendent abuse of judicial review in the modern era. What’s unprecedented is striking down a major economic regulation passed by Congress, suggestion that there is a strong, strong presumption of constitutionality of such regulations in said modern era.