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.” Continue reading
As I am sure most of you know, the Wisconsin Supreme Court in a 4-3 decision vacated the order of Judge Maryann Sumi enjoining the bill passed by the Wisconsin legislature regarding public employee unions. The court divided along partisan lines. The bluntness of the majority opinion is something to behold.
IT IS FURTHER ORDERED that all orders and judgments of the Dane County Circuit Court in Case No. 2011CV1244 are vacated and declared to be void ab initio. State ex rel. Nader v. Circuit Court for Dane Cnty., No. 2004AP2559-W, unpublished order (Wis. S. Ct. Sept. 30, 2004) (wherein this court vacated the prior orders of the circuit court in the same case).
Declaring the orders of a trial court void ab initio is an unusual step for an appellate court. It basically says that the trial court completely misconstrued the relevant law from the beginning, and is not to be trusted by the appellate court simply reversing the trial court and remanding the case back to the trial court. Instead the Supreme Court ruled on all of the issues in the case itself, with Judge Sumi now tossed out of the case by the action of the Supreme Court.
This court has granted the petition for an original action because one of the courts that we are charged with supervising has usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature. It is important for all courts to remember that Article IV, Section 1 of the Wisconsin Constitution provides: “The legislative power shall be vested in a senate and assembly.” Article IV, Section 17 of the Wisconsin Constitution provides in relevant part: “(2) . . . No law shall be in force until published. (3) The legislature shall provide by law for the speedy publication of all laws.”
You don’t get blunter than that in the law. Judge Sumi is held by the Court to have usurped the power of the legislature!
The Court then notes that what Judge Sumi attempted to do, enjoin publication of a bill in order to prevent it from becoming law, was in direct defiance of a prior case decided by the Wisconsin Supreme Court: Continue reading