issue in the case that appeared before the supreme court. so the president s unremarkable observation is that since the new deal era, the lockner era that preceded the new deal and the change in approach by the court, there has been a longstanding precedent set where the court defers to congress and to congressional authority in passing legislation to deal with and regulate matters of national economic significance. on the point of critics claiming the president was attacking the court, your colleagues have correctly noted that when the president said that the justices are unelected, he was quoting conservative commentators who are said that for years. however, are you then suggesting that if you were to lose in this case, the president will not attack the court? does he consider them fair game in this process? to attack them?
issue of judges having the power to overturn federal legislation. the deadline for that letter to arrive now 90 minutes away. we re also awaiting the daily briefing from the white house press secretary jay carney. he is expected to address that controversial topic shortly. as you probably know, recent comments from president obama suggested that he believes supreme court justices deciding the fate of the health care law should take into account the decision already made by congress. the president basically said it would be wrong of the justices of the supreme court to overturn it. let s talk about it with ian mill heiser, a policy analyst and blogger who focuses on the constitution and the judiciary for the center for american progress, kurt levy is executive director for the committee of justice, and both of them served as law clerks for the sixth circuit court of appeals. ian, you don t think much of what this judge in the fifth
circuit asked the justice department to do. why? i don t think very much of it at all. you know, this judge did not go after george bush when he said over and over again that activist judges are thwarting the will of the people, he didn t go after mitt romney when mitt romney said a few months ago that unelected judges are thwarting the will of the people. but when a democratic president say it is exact same thing, suddenly this judge has a problem with it. that isn t how judges are supposed to act. this is partisanship on the part of the judiciary, and it s not appropriate at all for judges to weigh into political disputes this way. jon: but wait a minute, didn t he essentially challenge the president when the president said that the supreme court should not overturn the health care law because, you know, the court doesn t have the power, isn t that essentially what he was challenging? the court doesn t have the power to overturn the affordable care act. the constitution says that
talking about commerce clause provisions. no, jenna, no. the supreme court has overturned those provisions as well. did they completely back up and get it right today, or did they say we re sticking with the commerce clause? that s the issue. jenna: was it right for the judge to demand this? i ve never heard it done. i think the judge, quite honestly, jenna, was angry about, you know, this challenge and what he called it a challenge from president obama. he did not like that. judges, you know, judges are separate from congress and from the executive branch. they don t like being felt like they re being treaded upon, and he had this department attorney in front of him on a totally different matter. it was a health care matter, but a totally different case, and he was able to say here s your homework assignment, give me those three pages, and i want it now. jenna: who s actually writing those pages? good question. i would think the department of justice. i don t think it s attorney g
that and breaking news as the second hour of happening now starts right now. jenna: well, back to our top story, the deadline fast approaching for the department of justice. jon: the federal judge orders a report from the department of justice detailing whether the supreme court has the right to overturn laws passed by congress, specifically referring to president obama s health care law. jenna: that s jon scott, i m jenna lee, and lis wiehl is here, a former federal prosecutor and fox news legal analyst. so, lis, what do you think we re going to see here? well, the department really is in kind of a pickle here because when president obama came out on monday and made this unprecedented remark, may i say, about it being unprecedented completely factually wrong. i mean, the courts have overturned congress acts 160 times and more since 1803. that s what they do. that s one of their primary functions. but hen the administration kind of backed then the administration kind of backed