In a bit of political grandstanding earlier this week, Obama confidently predicted that the Supreme Court would not take an "unprecedented, extraordinary step" by overturning his health care law-- provoking a storm of protest that he was challenging the nation's top judges. Meanwhile, a GOP-dominated three-judge panel has been hearing a challenge to the health care law in the 5th district. And when the administration's lawyer began her arguments this morning, the Republican-leaning panel went apeshit.
Reagan appointee Judge Jerry Smith immediately interrupted, asking if the Department of Justice agreed that the judiciary could strike down an unconstitutional law. The DOJ lawyer, naturally, answered yes — referencing Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago.
But despite the lawyer's acknowledgement of the judiciary branch's purview, the Republican panel ordered her to "submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power."
Commentators have been unequivocal about the meaning of the court's order-- that is was meant to embarrass the President. According to blogger Allahpundit, "what the 5th Circuit is doing is humiliating Obama as a way of getting him to stop the demagoguery, with the letter acting as the equivalent of a kid writing on the blackboard as punishment after class. “I will not question Marbury v. Madison, I will not question Marbury v. Madison, I will not question...”