President Obama has been criticized -- including in a Times editorial -- for his ahistorical statement that it would be "an unprecedented, extraordinary step" if the court overturned "a law that was passed by a strong majority of a democratically elected Congress." The law in question, of course, was "Obamacare," and the president seemed to be trying to muscle the court into upholding it by lamenting "that an unelected group of people would somehow overturn a duly constituted and passed law." That was unseemly.
But Obama didn't say that he would defy the court if it ruled the other way. The idea is preposterous. Even Richard Nixon dared not disobey the court, though he toyed with the notion of refusing to turn over the infamous Watergate tapes.
So why did a federal appeals court judge ask a Justice Department lawyer on Tuesday if the administration recognized that "federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities"?
Not only that; Judge Jerry Smith of the 5th U.S. Circuit Court of Appeals for the Fifth Circuit told the lawyer: "I would like to have from you by noon on Thursday … a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice."