Judicial Pushback to Obama Begins

 

 

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Hattip to Allahpundit at Hot Air.  Well, that didn’t take long.  In response to Obama’s attempt yesterday to bully the Supreme Court in the ObamaCare case, here is what happened in a Fifth Circuit hearing today:

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. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”

The three judges ordered the government attorneys to submit a three page letter setting forth the government’s position on judicial review by Thursday. 

SMITH, J.: Let me ask you something a little bit more basic. Does the DOJ recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities.

A: Yes your honor, of course, there will have to be a severability analysis.

 

Q: I am referring to the statements by the President from the past few days, to the effect .. . I’m sure you’ve heard about it, that it’s somehow inappropriate for what he termed “unelected judges” to strike acts of Congress that have enjoyed . . . what he termed broad consensus and majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority, or to the appropriateness of the concept of judicial review. And that’s not a small matter. I want to make sure that you are telling us, and that the DOJ do recognize the authority of the federal courts through unelected judges to strike acts of congress or portions thereof in appropriate cases.

 

A: Marbury v. Madison is the law . . .

 

Q: Okay, well I would like to have from you by noon on Thursday, about 48 hours from now, a letter stating what is the position of the AG and the DOJ in regard to the recent statement by the President, stating specifically and in detail, in references to those statements, what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages, single spaced, no less, and it needs to be specific. It needs to make specific reference to the President’s statement and the position of the AG and the DOJ.

 

[very long pause]

 

A: Okay, and that’s our position regarding judicial review?

 

Q: Judicial review as it relates to the specific statements of the president in regard to Obamacare and the authority of the courts to review that legislation.

A: Yes, your honor.

This is non-surprising to me.  I have spent my adult  life around courts and judges.  Judges normally do not have small egos and they take the role of courts in society very seriously.  Expect more of this.

 

  1. It seems a shame that the Federal Jury Tampering Statute does not apply. I wonder how closely the DOJ, FBI….. or their proxies are monitoring blogdom? Darkness approaches. I miss my youth in the 50′s and 60′s.

  2. The arrogance and condescending attitude of this man is breathtaking. I am continually amazed by his alleged approval ratings. I have no data to back this up, but I believe, and hope and pray, there is a large anti Obama sentiment in the country that does not necessarily show up in polls. Perhaps reminiscent of Nixon’s “silent majority”.

  3. May the lawyers here forgive me if this is a dumb question, but is it possible the DOJ simply ignores the order? I wouldn’t put it past such a bunch of scofflaws because I don’t see how the DOJ (and of course, by extension, the adminstration) can avoid looking like complete fools when they answer this.

    When I heard Obama attack SCOTUS, my first thought was “This isn’t exactly sending Justice Kennedy roses and chocolates, is it?” And now, whatever the reply is, or isn’t, it’s going to dig the hole the administration is in a bit deeper.

  4. I’d love it if the Supreme Court were to issue the Obama Administration a contempt citation.

    It’s what would happen to any of us if were were arguing a case before a court, and before a final decision was issued, went before the media and vented our spleens that, unless the judge ruled in our favor, the result would be an “unprecedented” miscarriage of justice.

  5. Jerry, I’m amazed by the polls too, as well as by the oft-repeated assertion that Obama is “likable.” I didn’t vote for Clinton, and didn’t like him, but I understood why many Americans did. I chalked it up to the soft spot many Americans have always had for charming flim-flam men and snake oil peddlers. (The robust ’90′s economy didn’t hurt him either.)

    But Obama? Thin-skinned, petty, egotistical, vindictive and humorless (Clinton is also an egotist, but had the ability to poke fun at himself. Obama doesn’t.) I know people want badly to like their president, but I haven’t seen one so unlikable since Nixon. (Carter has become a bitter and mean man, but he wasn’t perceived as such when he was president. No, people thought he was a nice, but incompetent man in way over his head.)

  6. here’s a question- coming from my ignorance of judges and law and lawyers–

    Is not the Obama ‘s DOJ ignoring the marriage law the same as striking it ?

  7. OK, I think the fellow who wrote this comment on the WSJ website nailed it:

    “I have always wondered how Mr. Obama could have been a Constitutional Professor when he seemed so ignorant of the Constitution. then it hit me. He did indeed teach about the Constitution, of the USSR. Not to worry. It is just a small mistake.”

  8. Tonight I hear him warning of Social Darwinism from the GOP … ?
    Fearful for us all, I guess. Or something. The isms are coming faster from the microphones.

  9. Donna,

    We shall see. This upcoming election is going to say an awful lot about who we are as a country in the year 2012. Catholics in the pews need to give serious thought to what this election means to their kids and their future. As Cardinal Dolan says, “prepare for tough times”.

  10. The frightening thing to me, Jerry, is how the media carries water for him. They no longer even pretend to be objective. With the exception of a few outlets ( namely, Fox and the WSJ), the media is operating as a wing of the Democrat Party. Then there’s the fact that so many Americans are willing to trade freedom and faith in God for a desire to be coddled by a massive nanny state. Yes, I fear Cardinal Dolan is correct.

  11. One last thing: there is some speculation, by Mickey Kaus, Ace and others, that an informal SCOTUS vote taken last Friday did not go in Obama’s favor and someone, possibly a Kagan clerk, leaked the news to the WH. Kaus thinks this is why the President lashed out at the Court. Why would he do it if he thought the outcome was still in doubt? Why risk angering Kennedy? Kaus theorized that Obama knows the Court will strike down his signature “accomplishment” and made a preemptive strike. He wants to create the meme that the Court is activist and partisan. The media will, of course, run with the WH line and will work to trash the reputation of the SCOTUS before the decision is announced.

    That sounds plausible enough to me, given the low character of the people in the Adminstration and their water carriers in the media, but on the other hand, I’m not sure how much credibility to give to Internet speculation and gossip. I would love to think Obama’s anger stems from the fact that he knows he’s lost this one. But does that sound plausible to an attorney or is it basically idle Internet chatter and wishful thinking?

  12. Meh. I wish I could retract that last comment of mine. Anxious insomiacs (i.e. me) should stay away from computers; otherwise they are prone to misread. Forget Kaus; the useless spectulating was done by Ace and Co. – and me. We’ll get our answer in June.

  13. but is it possible the DOJ simply ignores the order?

    the order to submit the letter – no, as Donald says, they will just file their letter and move on.

    Or are you thinking about a final order that strikes down Obamacare or a portion of it?

    That is a bit different. Was it Andrew Johnson who basically told the SCOTUS to shove it (“they have issued their order, let them enforce it”)? It would be a little more difficult to ignore an order striking down something as opposed to forcing someone to do something (e.g, an order requiring desegregation – the executive could simply not desegregate). How could they ignore an order striking down Obamacare? They would have to go to the courts to get an order to enforce it, but if it’s struck down, no lower court should enforce it. It would cost the litigants money, it would be seen as a complete usurpation of power by the Executive, and I could see lower courts entering sanctions against the Executive for continuing to bring such cases. even if they ignored it and simply levied fines, people would have redress through the court system, and it would raise such a stink I don’t see how the administration would survive – likely get impeached and removed, if not voted out sooner (political suicide).

    Short of imposing martial rule by the executive and simply imprisoning us all and forcibly taking our money without due process, I don’t see how they would have much choice but to follow it.

  14. Andrew Jackson cmatt, who had little love for John Marshal, to say the least, supposedly said: “John Marshall has made his decision; now let him enforce it!” He actually didn’t say that. Here is some background:

    http://en.wikipedia.org/wiki/Worcester_v._Georgia

    I can’t imagine the Obama administration openly defying a ruling of the Supreme Court, but, then again, this president seems to specialize in doing things that I never thought I would see a president doing.

  15. I can’t imagine the Obama administration openly defying a ruling of the Supreme Court, but, then again, this president seems to specialize in doing things that I never thought I would see a president doing.

    Since implementing ObamaCare would not consist of a discrete set of acts (much less a set of omissions), I cannot imagine they could ignore the Court. Every aspect of its implementation would thenceforth get tangled in litigation.

  16. Well, we got our answer about the response.

    Basically, “the justice department fully agrees you have a right to not have your leg p***ed on, and that the President’s statement clearly shows it was raining.” (To steal from an old saying.)