Wednesday, April 4, 2012
Sometimes your clients say very inconvenient things
I know this and, as an attorney, have experienced it too often. That is why I feel sorry for Dana Lydia Kaersvang. She works for the Department of Justice. Yesterday she was all set to argue an appeal before the 5th Circuit Court of Appeals. The court was hearing a separate appeal by a group of physician owned hospitals on the Constitutionality of the Obamacare law. Only poor Ms. Kaersvang never got a chance to argue her case. Her client, Barack Obama, had just the day before very publicly and very loudly questioned whether there was precedent for a federal court to strike down a law that the court found to be unconstitutional which had been passed by the popularly elected Congress. So just as my sister at the bar had begun to speak, Judge Jerry Smith interrupted her and asked whether it was her client's, and thus the Attorney General's and her, position that the court had no power to hear the appeal and, if the court felt the challenge had merit, to strike down a law that they determined was not allowed by the Constitution. She did better than I probably would have. She cited Marbury v. Madison for the long settled principle and precedent that the courts unquestionably had that power. Nonetheless, Judge Smith suspended the argument and directed her to file in writing either an admission by the Attorney General and his client, the President, that the court has the power to review a Constitutional challenge to the Federal statute or to explain their rationale for why it did not. Much backtracking has ensued.