Sure, law school is tough, by most standards anyway.
There's Harvard, Yale, Vanderbilt, Stanford and even the University of Texas — slightly less known sitting there in proximity to Big D, baking under the Austin sun, but known to many as a particularly strenuous place to study the law. So imagine taking home an assignment from one of these schools. No problem, really. One would expect the work to be tough, doable, even challenging perhaps.
But what if you’re a well-known Department of Justice attorney having just argued a critical health care case before the Fifth Circuit Court of Appeals, specifically before Judge Jerry Smith. Homework? Did you say homework?
The LegalTimes blog last week wrote in fascinating detail about Judge Smith assigning Dana Kaersvang a treatise on the Department of Justice's stance on federal review. The ordered came a day after President Obama had that if the U.S. Supreme Court struck down the Affordable Care Act, it would be an unprecedented example of "judicial activism" by "an unelected group of people."
Judge Jerry Smith’s assignment: It must be no less than three pages, single-spaced, and must address Obama’s statements specifically. And it's due by noon on Thursday.
“I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases,” Smith said.
"Marbury v. Madison is the law, your honor," she replied. "But it would not make sense in this circumstance to strike down this statute because there's no..."
The judge then cut her off: “I would like to have from you on 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.”
[Article available without subscription]