April 3, 2012

“Appeals court fires back at Obama’s comments on health care case”

So it appears Obama may be running against both a “do nothing Congress” and an “activist SCOTUS”  — with those who offer the only real budgets defined as the “do nothings,” and those who appeal to the Constitution to determine the legality of rushed, unread, and unpopular legislation defined as “judicial activists.”

Which raises the question:  if a “do nothing Congress” is one that refuses to rubber-stamp Obama’s policy dictates, and an “activist judiciary” is one that refuses to rubber-stamp legislation passed by a partisan, supermajority Democrat Congress, why don’t we simply just cut out all the overlap and go right to a dictatorship?  Or is the real reason we keep around the Congress and the Courts, from the progressive perspective,  just so we can keep up the appearance of a legitimate, representative government?

Because it certainly seems to me — and Stanley Fish wrote an op-ed recently that appears to bear this argument out — that court rulings are only valid and sacrosanct when they agree with the legislative impulses of the left  (that is, when they are moral, which is necessarily the case give that those who fought for them did so as leftists, and adherence to leftism determines morality); and the Court is engaging in political activism when it disagrees with those same impulses.  Similarly, a “strong majority of a democratically-elected congress” passes legislation that cannot be overturned by the Court if that congress happens to be a supermajority Democrat Congress; whereas laws that Congress passes that the left doesn’t like are deemed unconstitutional and illegitimate and need not be defended by the Justice Department.

Heads I win, tails you lose.  Racists.

But evidently, not everyone is ready to fall in line for our would-be King.  CBS:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would not “take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists.

I think Judge Smith was being rather generous with his characterization.  Because it is clear to me and to everyone who heard Obama speak yesterday that he believes Courts don’t have that right when it’s his legislation that is being questioned.  And really, that’s a distinction without a difference.

(h/t Pablo)

 

Posted by Jeff G. @ 4:39pm
63 comments | Trackback

Comments (63)

  1. Heh. This is pretty good.

  2. This is just fantastic.

  3. I wonder how you arrive at the notion that a three page single-spaced document will contain sufficient information to convey the desired response, or conversely, why said response requires that many pages.

    Minutia, to be sure, but it did jump out at me, probably due to my narrowly-focused OCD (e.g. I do not keep a tight ship in general, but some few things need to be organized and settled before I can be settled).

    In any case, though the gauntlet has been thrown, I doubt anyone in the administration will pick it up, as the necessary clarifications with respect to our President’s misspeaking would result in someone else getting thrown under the bus, and the undercarriage of the bus in question is quite a mess as it is already.

  4. Because it is clear to me and to everyone who heard Obama speak yesterday that he believes Courts don’t have that right when it’s his legislation that is being questioned.

    …Courts shouldn’t exercise that right when it’s his legislation…

    you mean.

    Of course he believes knows they have the right. He’d encourage them to exercise it with extreme prejudice if Congress had passed a law he didn’t like. Whaddya think he appointed the wise Latina and that other skirt for?

  5. Isn’t this delightful? As is this, in which do-nothing Paul Ryan finds the time to bitchslap The (Lying) One:

    The President’s Speech Distorts the Truth to Distract From His Failed Record

  6. I wonder how you arrive at the notion that a three page single-spaced document will contain sufficient information to convey the desired response, or conversely, why said response requires that many pages.

    I read that as “You will hand in a 1000 word essay on why you’re a knucklehead in 2 days.” 1 part scolding, 1 part punishment, 1 part “put it in writing.”

  7. Cranky,

    Wouldn’t normally link to a Hot Air post, but an appellate lawyer’s take on it says the DOJ has to respond because, … “The Administration’s words/ Government’s new position have consequences, particularly for litigants (with cases currently before the court)”. Same thing happened with the DOJ’s refusal to litigate DOMA.

    The update is at the bottom of the post.

  8. I read that as “You will hand in a 1000 word essay on why you’re a knucklehead in 2 days.” 1 part scolding, 1 part punishment, 1 part “put it in writing.”

    That’s in Allah’s post @ Hot Air too. Essentially the 5th is making Obama stay after class, and write, “I will not question Marbury v. Madison, I will not question Marbury v. Madison, I will not question…” on the blackboard 1,000 times.

    If the Simpsons was an inch of what it was in the late 90′s, Bart Simpson would be writing that in the next episode intro.

  9. Oh yes, the Court wasn’t joking — their command to the lawyers representing the DoJ is nothing less than imperative — DoJ has to take it as seriously as a national heart attack, unless they’d prefer to see the country blow up the next day.

  10. This is the kind of pushback we need to see.

    “What the hell do you think you are blithering about you ridiculous asshole? Are you really at a sub high school educational level on basic civics? So you REALLY think this crap will fly? Clarify what you are trying to say for the american people! Go on the record with this bullshit. Nut up or shut up! “

  11. How long is the handwritten USC? Isn’t it something like three pages? I thought the judge was being clever.

  12. They have to respond? Excellent. I hope the letter is considered a public document. I’d like to see how they weasel out of this one.

  13. here’s the 5th circuits letter

    Barack Obama, Constitutional Ignoramus

  14. Thanks Pablo.

  15. It’s weird. It’s almost like these judges know something about the law. And the Obama administration was caught completely unaware by this unprecedented display of legal knowledge by….judges.

  16. They have to respond?

    Meh. The DOJ will try and stay mum as long as possible (caught sdferr’s sarcasm up there like a bad cold ;), but they eventually have to address it. Set the 5th Circuit’s demand aside for a sec, as Obama will surely scream “ACTIVIST JUDGES!” We have another, “Unprecedented?…Yeah…not so much”.

    The interesting part of that appellate lawyer’s take was the mention of the straight-up fascist 9th Circuit caterwauling so much about the the Administration’s position on DOMA, and, their inability to make rulings in cases currently before the bench (sans “marching orders”) that they literally demanded in five test cases that the DOJ explain what exactly their discretion policy entails.

    And that’s the fucking 9th Circuit.

    If little Alinsky & his DOJ has managed to piss off the progressive lock-step, Haight-Ashbury of Appellate Courts…

  17. Would that the Senate had the balls to defend its prerogatives this circuit court has: for where, we might ask, is the Senate’s demand the Executive produce an explanation for its unilaterally deciding when the Senate is in session and when not?

  18. With the high cost of a law degree and the burden of Federal Government student loans on students and taxpayers, this is the perfect time for a Congressional hearing into what are the students, and the government, getting for this expense?

    First up U of C Law can explain why they thought it worthwhile to have the O! teach classes in constitutional law.

    Next we can delve into just what is the required knowledge to get a law degree at Harvard in light of the O!’s statements of “fact”.

  19. “Next we can delve into just what is the required knowledge to get a law degree at Harvard in light of the O!’s statements of “fact”.”

    Heh: quick! Someone ask Larry Tribe and Chas. Ogletree whether they’re proud of their student’s failure to grasp the basics of Marbury v Madison!

  20. Meanwhile, Thomas Sowell is heard to emit an audible and plaintive sigh.

  21. sister sarah goes to the dark side

  22. Would that the Senate had the balls to defend its prerogatives this circuit court has

    The Senate? Ha! Any Senate opposition to our petulant child king is down to rolling D & D dice at this point.

    What was Mamet’s script line? “Wheels within wheels, young Sergeant”.

    But in Obama’s world it’s, “Czars within Czars, comrade”.

    Senate? We don’t need no stinking Senate.

    Google “Alinsky, Separation of Powers” and within five minutes you’ll pour a nice tumbler of an old peat/oak/charcoal single malt, and find yourself field stripping and cleaning your guns…

    …without even realizing your doing it.

    Zen…it’s not just for ashram hippies anymore.

  23. That’s the sad of it LYBD: even the ol’ Kleagle hood o’ RCB wouldn’t rise to the occasion under this crowd — if it weren’t already dead, that is.

  24. He’s just so arrogant. He thinks saying things like he said yesterday are just his right and everybody should simply shut up. It’s amazing the ripple effect his words can have. The Constitutional professor wears clown shoes.

  25. The Constitutional professor wears clown shoes.

    And nose.

  26. This is the kind of pushback we need to see.

    Yes — the branches of government are SUPPOSED to be in contention.

  27. Well sdferr…

    There’s Mccallan in my glass, and, obviously, this is gonna be one of those, “I hope Raylan shoots one of the many mouthy, overconfident villains dead” nights.

    While dryly saying something deep fried and smothered in cocky wit.

    Which hopefully will be preceded or followed by a Boyd Crowder soliloquy.

    Oh yeah. And then Top Shot on DVR.

  28. mittens be doing a patton imitation tonite

  29. And nose.

    And clown ears.

    He can’t hear shit through ‘em, but he apparently just can’t take ‘em off.

    If Randy Couture can hear through those Chinese dumplings on the sides of his head, how can President Lord of the Flies not hear through the satellite dishes on the sides of his?

  30. Probably because he never STFU.

  31. Even his walkback today was full of bullshit. The powerline guys have the details and rebuttal to that. His advisers are doing a very poor job.

  32. You guys need to read the link I put in upthread. He’s taken his “It’s on!” thing down on his campaign page.

  33. From Powerline.

    Is there any truth to Obama’s claim that the Supreme Court hasn’t invalidated any statutes that are “economic” and relate to “commerce” since Lochner v. New York, which was in 1905? Of course not. To name just a few examples a great deal more recent than 1905, the Court ruled unconstitutional provisions of the Sarbanes-Oxley Act that had permitted only “for cause” removal of members of the Public Company Accounting Oversight Board in 2010; the 1990 Mushroom Promotion, Research and Consumer Information Act in 2001 (this case was actually quite similar to Obamacare because the Court held unconstitutional provisions that required mushroom growers to contribute to mushroom promotion programs); provisions of the Patent and Plant Variety Remedy Clarification Act, the Trademark Remedy Clarification Act, and the Copyright Remedy Clarification Act in 1992; the Harbor Maintenance Tax Act in 1998; the Transfer Act which authorized the transfer of operating control of Washington National Airport and Dulles International Airport from the Department of Transportation to the Metropolitan Washington Airports Authority in 1991; and many, many more dating back to 1905.

    One could be charitable and say that Barack Obama is a bullshitter who makes stuff up whenever he is in a tough spot, or one could say that he is a habitual liar. Take your pick.

  34. Listening to Obama pretend to clarify his remarks about “unprecedented judicial activism” today gave me flashbacks to my time at The School of Crit and Theory at Cornell, whee cornered scholars called on bullshit they weren’t used to being called on resorted to offhanded name dropping coupled w/ attempts at making their bullshit sound both authoritative and axiomatic. That’s what Obama’s reference to Lochner, a date, and “Right?” were all about today.

    The “constitutional lecturer” completely changed his argument from yesterday, and his argument today is no less ridiculous and demonstrably false. But his supporters will now be able to say “he clarified” his initial remarks and “spoke to specific cases addressing issues of the Commerce Clause with respect to economic issues, legislatures, and judicial restraint.” When in fact he simply tried to bullshit his way out of an embarrassing attempt to threaten SCOTUS — and did so by once again getting precedent completely incorrect.

  35. It seems like Barack, Chu, Ken Salazar, Valerie Jarrett, and a few others are trapped in some bizarre faculty lounge mobius loop where they all reinforce each other’s pathologies.

    Rational politicians notice when the bridge is out and it’s a long way to the bottom, but this Whitehouse is going to try to jump the canyon in their wheezing Trabant.

  36. He’s taken his “It’s on!” thing down on his campaign page.

    Only because Nintendo threatened suit do to Obama’s “It’s on!” was followed by the words, “like Donkey Kong.”

    I try to keep reminding myself that this is actually The President of The United Sates.

    And not some Stanley Kubrick goof from the grave.

    but this Whitehouse is going to try to jump the canyon in their wheezing Trabant.

    There’s a joke in there somewhere about “under the bus” & the bus from Speed trying to jump the gap in the overpass.

    Only in Hollywood, maybe?

    Sorry. It’s been a day and I’m tired.

  37. That’s weird, Lamont. I seem to recall the Manning brothers saying “It’s on like Donkey Kong” in an Oreo commercial, I believe it was.

    I guess their reps remembered to get permission first.

  38. It’s not the “permission” leigh.

    It’s that, like the law of Six Degrees of Kevin Bacon, any company financially backed, sponsored, pushed, promoted, visited, or mentioned by Obama is immediately Six Degrees from Chapter 11.

  39. I think the degree of separation is much closer. Say two, if he funds them that drops to one.

  40. Insty links a former Obama law student at Chicago who’s currently a clerk for Judge Smith. Besides expressing his dismay at Obama’s ridiculous “warning” to the US Supreme Court, the clerk also includes a bit of the transcript of Judge Smith’s exchange with Dana Lydia Kaersvang at the link:

    Fortunately, another bit of my educational background somewhat mitigates the reputational damage inflicted by the President’s unfortunate comments. This morning, the judge for whom I clerked, Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit, called the President’s bluff.

  41. Lemme don my Captain McCluskey Certified Hypothesis Speculating Cap* for a second here.

    Isn’t it arguable that Marbury is the original bit of judicial activism? If that is indeed the case, and if Obama really does want to run against an elitist institution thwarting the popular will (as embodied by him, naturally), well then, why not tell the 5th, “now that we’ve thought about some, we really don’t believe the courts have the power to unmake law,” perhaps even ask for a delay so they can prepare a fuller argument?

    *the deluxe model with the built in pillow

  42. Lamontyoubigdummy says April 3, 2012 at 6:02 pm

    Thanks Lamont, I took your idea and ran with it. :-)

  43. I think the degree of separation is much closer. Say two, if he funds them that drops to one.

    You’re right geoff. Good scotch always screws my math. You know what else good scotch does? It makes you think things like, “No matter the nominee, all the GOP Super Pacs should collectively back up a dump truck full of cash and bucket list wishes on Bruce Campbell’s lawn in exchange for him narrating no less than 15 Republican Presidential ads in the General.

    Fortunately, another bit of my educational background somewhat mitigates the reputational damage inflicted by the President’s unfortunate comments.

    What I read. “Even practicing Democrat loving attorneys lock shields in a Spartan Phalanx, and yell, Are you fucking retarded?!”.

  44. Perhaps this week or next would be an appropriate time to begin impeachment hearings against Eric Holder? Christ knows he’s committed enough injustice against the American people to warrant it. Why wait for him to commit further?

  45. “Why wait for him to commit further?”

    Murder.

    “further murder.”

    G’night all.

  46. Better to have the good scotch and the bad math than the good math and no scotch.

    This is my envy showing.

  47. ….Another nice thing about egomaniacs; Thry don’t waste time when pursuing massive meltdown, In fact, even as the containment vessel is failing, with alarm bells clnging wildly overhead, these masters of arrogance will brush off “interference from advisors”, and race even faster to the train crossing.

    (the ‘Bama clown car has four flats, and is running out of gas as we watch.)

  48. “Perhaps this week or next would be an appropriate time to begin impeachment hearings against Eric Holder?”

    Harumph to that!

    We could line up subpoenas for evidence from F&F, the Black Panthers & Gerald Walpin as well. Executive priviledge prolly not a shield from impeachment hearings.

    I bet Holder ends up under the campaign bus faster than we can swear in the Chief Justice.

  49. Seems to me impeachment is a political act and as such doesn’t require any more evidence than the politicians conducting it deem relevant to the question. Whether the effort would successfully result in Holder’s ouster itself isn’t even necessary to the political aspects of the action (and given the make-up of the Senate, I doubt he would be ousted); the action can represent an acknowledgement by the people’s House that Holder in that office is a menace to the political health of the nation, not to mention a danger to border guards serving the country and dying in the line of conducting their duties.

  50. Amgen decided to reproduce the most important cancer studies of the past five years to really know where to focus their drug development. They were reproduce results in only 6 of 53 cases.

    The California Association of Scholars has a report up documenting the effects politicization of the classroom is having on the UC system.

  51. But remember, motionview, only hatey ignerant conservatives distrust science!

  52. I forget where I read it (Powerline?) The author said that part of what the 5th Circuit was telling Obama is that he’s not just a candidate who can make sweeping statements to get press coverage. He’s actually Da Man In Charge of the Executive branch, and what comes out of his purty Hahvahd mouth has the weight of An Official Position. That’s what it means when you’re Da Man In Charge.

  53. I expect “Da Man In Charge ” will continue to say whatever comes into his head at any moment. After all the work of explaining it to courts, the legislature, foreign governments is what the little people are there for.

  54. Well, if one were looking for positives from all this one might wonder how well Obama would do in the WWE organization after he leaves office. Rhetorically (if that is the right usage) speaking that is. Mind you I am only basing that on the commercials I have seen on AFN but he certainly seems to have the SMACK down pat. Having actually watched entertainment wrestling in my youth, even though scripted (heretic I know) I doubt seriously anyone would buy him actually winning a match.

    This though is brought to you by approximately 900ml of Kirin Lager.

  55. flashbacks to my time at The School of Crit and Theory at Cornell

    When I get those flashbacks nightmares, it’s three weeks into the semester and I realize I’ve totally been blowing off two or three classes.

    On the especially bad nights, they’re classes I’m supposed to teach.

  56. I get those, too, di. Been having that same nightmare for years now: I am in high school, and I realize it’s finals time, and I haven’t gone to either physics class or math class all semester.

    I have a similar dream about bartending / waiting tables, where I’ve forgotten how to ring stuff up on the POS computers.

  57. Perhaps this week or next would be an appropriate time to begin impeachment hearings against Eric Holder?

    The Court administers a viscious smack-down:

    The Court is at a loss as to why the Government chose to prosecute this particular case in the first place. . . . The Court can only wonder whether this action was the product of a concerted effort between the Government and PWC, which began well before the date of the incident at issue, to quell Ms. Pine’s activities rather than to vindicate the rights of those allegedly aggrieved by Ms. Pine’s conduct.

    The OBarry Administration’s getting all up in the bench’s grille lately was unexpected. Now that it’s here, it’s too bad Professor Althouse still hasn’t caught that particular wave.

  58. She seems of the mind that there is a good man trapped inside the radical lefty and that the good man is the real guy.

    It seems to me to be a rationalization for her 2008 vote so she won’t have to say “I was a fool”.

  59. I now see Jeff G. beat me by far to this.

  60. When I get those nightmares, it’s three weeks into the semester and I realize I’ve totally been blowing off two or three classes.

    I never have nightmares like that. Maybe because I really did blow off about that percentage of classes, at least in high school.

    Which is one of the reasons why I didn’t get an academic scholarship to an Ivy.

    Another being that I didn’t apply for one, but still…

  61. My nightmares seem to revolve around the semester being over and I forgot to go to one of my classes, and I will therefore have to put off graduation for another year.

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