“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.