Appeals court fires back at Obama's comments on health care

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Appeals court fires back at Obama's comments on health care

Postby jediuser598 » Wed Apr 04, 2012 6:01 pm

An interesting article from CBS news about Obama's comments regarding courts and their role in our democracy.

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, suggesting it wasn't clear 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."

I've reached out to the White House for comment, and will update when we have more information.

UPDATE 6 p.m. ET: The White House is declining to comment on the 5th Circuit's order, but the president today did clarify his comments that it would be "unprecedented" for the Court to overturn laws passed by a democratically elected Congress. During a question-and-answer session after a luncheon speech in Washington, a journalist pointed out "that is exactly what the Court has done during its entire existence."

Mr. Obama suggested he meant that it would be "unprecedented" in the modern era for the Court to rule the law exceeded Congress' power to regulate an economic issue like health care.

"The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this," Mr. Obama said.

"Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there. I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has," he said.

And now DOJ gets to write three single-spaced pages expounding on that. Due at high noon on Thursday.

UPDATE 6:55 p.m. ET: Audio from the 5th Circuit hearing, with Judge Smith's order to DOJ, is available here.

In the hearing, Judge Smith says the president's comments suggesting courts lack power to set aside federal laws "have troubled a number of people" and that the suggestion "is not a small matter."

The bottom line from Smith: A three-page letter with specifics. He asked DOJ to discuss "judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation."

"I would like to have from you by noon on Thursday -- that's about 48 hours from now -- a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the president," Smith said. "What is the authority is of the federal courts in this regard in terms of judicial review?"

Smith made his intentions clear minutes after the DOJ attorney began her argument, jumping in to ask: "Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?"

Kaersvang replies yes, and Smith continues: "I'm referring to statements by the president in past few days to the effect, and sure you've heard about them, that it is somehow inappropriate for what he termed 'unelected' judges to strike acts of Congress that have enjoyed -- he was referring to, of course, Obamacare -- to what he termed broad consensus in majorities in both houses of Congress."

In asking for the letter, Smith said: "I want to be sure you're telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts, through unelected judges, to strike acts of Congress or portions thereof in appropriate cases."

http://www.cbsnews.com/8301-504564_162- ... care-case/
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Re: Appeals court fires back at Obama's comments on health c

Postby cblack.tx » Wed Apr 04, 2012 6:12 pm

Wouldn't it be a wonderful thing to once again have all three branches vigorously defend their authority and seek to actually exercise the whole balance of power thing?

I know, I know. Wishful thinking.
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Re: Appeals court fires back at Obama's comments on health c

Postby DBTrek » Wed Apr 04, 2012 6:13 pm

Yeah . . . glad the U.S. Court of Appeals for the 5th Circuit (Louisianna, Mississippi, Texas) has time to review random political commentary and DEMAND EXPLANATION!!!!

Jesus.

The Government is looking more and more like the train wreck known as the "Kindle Book Forum" every day.

U.S. Court of Appeals for the 5th Circuit has posted "REPLY IF YOU THINK COURTS CAN RULE ON LAWS." (93 Replies)
OBAMA has posted "WHO SHOULD MAKE LAWS, THE PEOPLE OR ACTIVIST JUDGES?" (107 Replies)
U.S. Court of Appeals for the 5th Circuit has posted "DO WE HAVE A KING NOW?" (121 Replies)

:facepalm:
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Re: Appeals court fires back at Obama's comments on health c

Postby cblack.tx » Wed Apr 04, 2012 6:36 pm

dbtrek wrote:The Government is looking more and more like the train wreck known as the "Kindle Book Forum" every day.

U.S. Court of Appeals for the 5th Circuit has posted "REPLY IF YOU THINK COURTS CAN RULE ON LAWS." (93 Replies)
OBAMA has posted "WHO SHOULD MAKE LAWS, THE PEOPLE OR ACTIVIST JUDGES?" (107 Replies)
U.S. Court of Appeals for the 5th Circuit has posted "DO WE HAVE A KING NOW?" (121 Replies)

:facepalm:

That is comedy gold! +1
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Re: Appeals court fires back at Obama's comments on health c

Postby de officiis » Wed Apr 04, 2012 8:01 pm

The so-called "constitutional law scholar" opens his mouth, inserts his foot, then backs and fills like a typical politician. What a joke. He's making a mistake to take on the Judiciary. Like that dumb-assed remark by loudmouth Gingrich that he'd use federal marshals to arrest judges, etc. What a bunch of BS from these so-called "statesmen."
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Re: Appeals court fires back at Obama's comments on health c

Postby Dr. Strangelove » Wed Apr 04, 2012 8:33 pm

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El Señor Presidente commands that the people be happy and rejoice in his heroic struggles with the tyrants in the Judiciary.
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Re: Appeals court fires back at Obama's comments on health c

Postby Quasigriz » Wed Apr 04, 2012 9:22 pm

Gotta love it :facepalm: when the "Constitutional Lawyer" questions the constitutional powers of the Judicial Branch. :popcorn:
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Re: Appeals court fires back at Obama's comments on health c

Postby hondo69 » Thu Apr 05, 2012 4:28 am

This works just like small claims court. You go to court, win your case, then nothing happens. The judge simply makes a ruling stating you won, then no action is taken. All of which makes small claims court a joke.

With Holder, he must file a 3-page double-spaced response to his boss's idiotic remarks. Should he fail to do so the judge will then hold him in contempt of court. So what? Are they going to arrest Holder if he fails to comply? No. Are they going to give him a fine? No. They just make a ruling that he is a bad boy but then don't even so much as make him go sit in the corner.

I'd prefer they treat him like an average citizen instead. First, go arrest him. Next, hide him away where no one can find him. Then, after he stews for awhile, tie him to a chair under the bright lights and zap him with a taser until he tells you what you want to hear. If it's good enogh for you and me it's good enough for everyone else too.
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Re: Appeals court fires back at Obama's comments on health c

Postby Partyof5 » Thu Apr 05, 2012 5:54 am

hondo69 wrote:This works just like small claims court. You go to court, win your case, then nothing happens. The judge simply makes a ruling stating you won, then no action is taken. All of which makes small claims court a joke.


Is this a possible outcome if the Supreme Court says the individual mandate is unconstitutional? Could the administration just ignore it and move on anyways?
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Re: Appeals court fires back at Obama's comments on health c

Postby Harry K » Thu Apr 05, 2012 6:13 am

Partyof5 wrote:
hondo69 wrote:This works just like small claims court. You go to court, win your case, then nothing happens. The judge simply makes a ruling stating you won, then no action is taken. All of which makes small claims court a joke.


Is this a possible outcome if the Supreme Court says the individual mandate is unconstitutional? Could the administration just ignore it and move on anyways?


It the SCOTUS rules the law unconstitutional, they only thing the others branchs can do is ratify it as a constitutional amendment or rewrite the law to make it constitutional.
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Re: Appeals court fires back at Obama's comments on health c

Postby Quasigriz » Thu Apr 05, 2012 6:33 am

hondo69 wrote:This works just like small claims court. You go to court, win your case, then nothing happens. The judge simply makes a ruling stating you won, then no action is taken. All of which makes small claims court a joke.

With Holder, he must file a 3-page double-spaced response to his boss's idiotic remarks. Should he fail to do so the judge will then hold him in contempt of court. So what? Are they going to arrest Holder if he fails to comply? No. Are they going to give him a fine? No. They just make a ruling that he is a bad boy but then don't even so much as make him go sit in the corner.

I'd prefer they treat him like an average citizen instead. First, go arrest him. Next, hide him away where no one can find him. Then, after he stews for awhile, tie him to a chair under the bright lights and zap him with a taser until he tells you what you want to hear. If it's good enogh for you and me it's good enough for everyone else too.

You forgot the strip-search. :D
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Re: Appeals court fires back at Obama's comments on health c

Postby boethius » Thu Apr 05, 2012 7:06 am

I wonder if Obama would bitch and moan about the "unelected" and "activist" Justices who thwarted the "will of the majority" in deciding Griswold v. Connecticut, Roe v. Wade, Casey v. Planned Parenthood, and Lawrence v. Texas ... :shakinghead:

Obama's rant about "unelected" Justices and judicial review is talk-radio level idiocy and is an embarrassment for someone who was a Constitutional Law professor.
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Re: Appeals court fires back at Obama's comments on health c

Postby hondo69 » Thu Apr 05, 2012 9:12 am

I'm hoping the Supreme Court comes back and says they've determined the Executive Branch is null and void. Since this whole thing has devolved to a Jerry Springer show on acid, why not? It will give us something to chuckle about as a diversion from the race riots this summer.
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Re: Appeals court fires back at Obama's comments on health c

Postby brewster » Thu Apr 05, 2012 9:24 am

Partyof5 wrote:
hondo69 wrote:This works just like small claims court. You go to court, win your case, then nothing happens. The judge simply makes a ruling stating you won, then no action is taken. All of which makes small claims court a joke.


Is this a possible outcome if the Supreme Court says the individual mandate is unconstitutional? Could the administration just ignore it and move on anyways?


Isn't that what Andrew Jackson did?
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Re: Appeals court fires back at Obama's comments on health c

Postby Quasigriz » Thu Apr 05, 2012 10:39 am

Obamacare deniers! The consensus is in, you can't deny consensus! Take that Mr (and Mrs) Judgey-pants!
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