Anderson has an account of a Fifth Circuit argument that is stunning.
Having heard a news report, Judge Jerry Smith of the Fifth Circuit concluded that President Obama was saying that the courts could not hold a statute unconstitutional and demanded a Justice Department lawyer answer for this. Not satisfied when the lawyer cited Marbury v. Madison and acknowledged that the courts did have that power, Smith addressed a letter to the Justice Department demanding a letter brief in response in three days. Anderson quotes another blog:
Judge Smith’s ultimatum calls for U.S. Attorney General Eric Holder to send him a three-page, single-spaced letter by noon Thursday addressing whether President Barack Obama’s recent public statements that the PPACA should be upheld signal a belief that the judiciary does not have the right to overturn a federal statute on constitutional grounds.
He then quotes the letter, which demands that the response be no less than three pages:
As directed today, the panel has requested a letter referencing oral argument questions. The letter is to be no less than three pages, single spaced, and is due by noon on Thursday, April 5, 2012.
Has anyway seen a minimum length requirement for a brief? This sounds more like a homework or school-discipline punishment (Write a five hundred times, “Yes, I agree your court has the power to overturn statutes.”). As I said in comments on Anderson’s blog, WTF?