Yesterday, we discussed President Obama’s comments on the Supreme Court and the pending health care litigation — comments I viewed as unwise and unfounded. In addition to wrongly suggesting that any justice voting against the law would be a judicial activist, Obama seemed to suggest that the law should be upheld on the ground that it is the result of a democratic process and the will of the majority. Putting aside the fact that all unconstitutional law were passed by a democratic process in this country, I noted that the comments were extremely unwise at a time when the Court appears split on the key issues and currently deliberating the outcome. Well, the Supreme Court is not the only court considering the health care law and the timing could not have been worse for Obama to hold forth on his view of the courts and the Constitution. While I do not agree with the order of the Fifth Circuit for the Administration to respond in writing to the court, some backlash should have been foreseen by the President in going public with the comments.
Obama stated that:
“Ultimately, I am confident that the Supreme Court will 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 . . . And I’d just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example, and I’m pretty confident that this court will recognize that and not take that step.”
The judges on the Fifth Circuit did not take kindly to the suggestion that either they would be judicial activists to rule against the Administration or that somehow they lack authority to strike down the law.
Judge Terry Smith referred “to statements by the president in the past few days to the effect … that it is somehow inappropriate for what he termed unelected judges to strike acts of Congress.” He noted “[t]hat has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority. And that’s not a small matter.” He then asked: “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?”
Justice Department attorney Dana Lydia Kaersvang answered “yes” to the court has such authority but the panel was not satisfied. In a rare move, the panel ordered the department within 48 hours and specified that
“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 statements and the again to the position of the attorney general and the Department of Justice,”
I am not sure about the required length or the real need for letter given the statement of government counsel, but the order reflects the dangers of public comments by parties. As the head of the Executive branch, presidents are routinely warned not to make comments on pending cases. Obama’s comments in my view were well outside of the lines and, while perhaps playing well politically, can only undermine the Administration’s case legally. Having said that, I do not believe that the letter is needed or appropriate in this circumstance (particularly the insistence on referencing the President’s comment which seems to set up an embarrassing filing for the Administration).
The White House appears to be backpedaling. White House Press Secretary Jay Carney issued a statement assuring jurists and citizens that “we believe that the Supreme Court has, and the courts have, as their duty and responsibility the ability of striking down laws as unconstitutional.” The White House insisted the president was referring to the weight of precedent in the case not any barrier to the authority of the Court. Notably, it did not retract the statement that any jurist voting against it would be a judicial activist.
Obama himself tried to walk back from the earlier comments:
“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.”
That would have been a far better statement to make earlier, but it is not the statement that was made. It may be too much to expect for the President to admit that his comments were ill-advised and ill-conceived. However, it would have been a redeeming moment for the President to say that he simply made a misjudgment and should not labeled opposing views as motivate by judicial activism. He could have said that reasonable people can disagree but that he believes the cases and underlying constitutional provisions favor upholding the law. As I have said, I do not believe that this fight had to occur and that the law was a poor drafting and poor planning. Congress could have made the individual insurance mandate a state option: telling states that if they did not require such coverage, they could not receive some federal funds to adjust the costs externalized to other states. Moreover, with a majority of states in court opposing the law and roughly half of the public opposed to the law, it is hard to gauge the democratic will of the people on the issue. Of course, Obama is right that the law was passed by a democratic process. However, I thought it was a mistake at the time to push through a bill on the thinnest of margins. Franklin Delano Roosevelt famously insisted that he would not ask for a declaration of war in World War II until he could secure the vote by an overwhelming margin. He understood that wars — like major legislative programs — tend to become less popular with time. The Administration not only muscled through a poorly written law but did so with roughly half of Congress opposed. I support national health care but this was not the way to do it.
If the President believes he was misunderstood, it is a misunderstanding shared not only by judges but also legal commentators. It was an ironic moment: a president objecting to the politicalization of a case by using the case as a rallying point in his political campaign. It is a moment out of Richard III:
“Think that thy babes were sweeter than they were,
And he that slew them fouler than he is.”
It is not enough to rally voters over an alternative view of federalism. That simply does not resonate as much as demonizing those who would adopt an alternative view as judicial activists.
Here is the transcript from the hearing in pertinent part:
Smith: 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: Yes, your honor. Of course, there would need to be a severability analysis, but yes.
Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in 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. So I want to be sure that 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.
Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –
Smith: I would like to have from you by noon on Thursday…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, stating specifically and in detail in reference 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 statements and again to the position of the attorney general and the Department of Justice.
Source: Wall Street Journal
“I didn’t get a harrumph outta that guy!” – The Gov
What a bunch of petticoat-ruffling, cigar-chomp-harrumphing nonsense.
For those who don’t get the relevance of this video, I can’t help you.
The High Court is not even a judicial body any more. It is a political body that appoints presidents and disciplines legislatures if they displease it. With it, without it and even because of it, we’re going to hell here and anybody who throws a wrench into the vehicle taking us there, even for a day or two, is OK with me, and I won’t weep and wail about them overstepping any boundaries — there are none.
Smith is a showboat and a disgrace to the court and should consider resigning and get a job as the next Judge Judy.
It’s doesn’t matter which party it is when you have a 2500 pound gorilla with a machine gun making the decisions……. Obama should have kept his damn mouth shut…. He knows the ethics rule… It’s a pending case basically……. Do I smell another Marbury v Madison coming out of the trenches…..
“In addition to wrongly suggesting that any justice voting against the law would be a judicial activist”
“However, it would have been a redeeming moment for the President to say that he simply made a misjudgment and should not labeled opposing views as motivate by judicial activism.”
JT,
Were I to forget history, as commented on by Frankly above and return my conception of SCOTUS/Courts to 1980 your statements would resound with me. However, for at least thirty years the Federalist Society “begun by a group including Edwin Meese, Robert Bork, Theodore Olson, David M. McIntosh, and Steven Calabresi, and its members have included Supreme Court justices Antonin Scalia, John G. Roberts, Clarence Thomas and Samuel Alito” http://en.wikipedia.org/wiki/Federalist_Society ,has been waging a war against all of the reforms in American politics since the “New Deal”. Were these men truly legal scholars, not merely partisan hacks with an agenda, I might have respect for the fact they have views differing from mine. Every one of those founding members and the wealthy elite that back them are not interested in a rule of law in this country, but in enhancing the rights of the powerful and denying any redress to the weak.
This group has given purported scholarly cover to the very term “judicial activism” and this term has been a rallying cry for a partisan packing of the courts on all levels with a judiciary less committed to impartiality, than to protecting the perquisites of wealth and corporations. As I’ve written on the previous thread I’m in favor of SCOTUS overturning this health care law. To me, their doing so will actually advance the case for single-payer and an expansion of Medicare for all. However, the President has correctly pointed out that the motives for overturning the law will not be grounded in the legalities of the issue, but in pure partisanship. It deeply upsets me that with all the “judicial activism” coming from the Right since the “Age of Reagan”, that this President is not allowed the same leeway in returning the fire at the hypocrisy underlying the five members of this court.
This is an issue that resonates personally with me simply because Medicare is the reason I’m alive today to write this and its payment of prohibitively costly anti-rejection drugs keeps me alive. I am a very lucky person in this respect,
even if I’m not Dick Cheney and I believe ALL Americans should have the same access to health care.Then too I believe that ALL Americans should be treated equally under the Law. In that respect my views differ strongly from the current majority on SCOTUS.
http://www.nytimes.com/2012/04/04/opinion/dowd-men-in-black.html?ref=maureendowd Maureen Dowd says it well. Why hasn’t that horrible 5-4 decision on strip search been mentioned?
Wouldn’t it appear that memes are infectious in some circumstances?
Well said Frankly!
Judge Smith was a republican party activist prior to his appointment by Reagan.
President Obama was perfectly correct to make this statement and it was directed at right wing nuts who cry Judicial Activism (like its communism) when a state or federal court enforces the 14th Amendment right of due process and hence right of a defendant to a fair trial. Like Franklin Roosevelt, it is proper for a President to discuss issues of national importance when they are about to be throttled by a body of lame old men and women. Yesterday they declared that it is ok for cops to strip search you when they give you a parking ticket. Jonathan if you feel that you have to mind your pees and q’s because you sometimes appear before the Supreme Court then by all means hold your tongue. As for the Judge on the 5th Circuit Court of Appeals we need a Bill in Congress to take away his ScaliaCare — his free medical care for himself and family paid for on my dime.
Thanks for that link Nal. Maybe GOP nominated judges should all be required to state whether they believe that corporations are people! Ridiculous demand by this judge.
The court has long been bought and paid for, especially Clarence Thomas via his health industry lobbyist wife. This is why the American people can make a pretty safe bet that its gonna be ruled “unconstitutional” 5-4. It will also be the death blow precedent for Medicaid. It really sucks.
Orin Kerr:
Fifth Circuit Panel of GOP-Nominated Judges Orders DOJ to Say Whether President Obama Believes in Judicial Review
With that said, the order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ’s position, and lower court judges deciding cases based on briefing and argument should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn’t help anyone.
Let the framing begin, or continue.
At TPM, basically a establishment dem-oriented blog, we see the issue cast this way:
“You’re the chief justice of the Supreme Court, and you’re presented with a choice: Either rebuke the movement that gave you your dream job, or put your institution’s reputation on the line by neutering a sitting president’s signature legislation. ” ( http://tpmdc.talkingpointsmemo.com/2012/04/john-roberts-rough-predicament-on-obamacare.php?ref=fpa )
Not a word about any significant legal issues being involved.
Smith’s question is judicial grandstanding. How dissimilar was the administration’s refusal to defend DOMA? How dissimilar were FDR’s criticism of the court, characterizing it as possessing a “horse and buggy definition of interstate commerce?”
It is a reasonable assumption, upon hearing President O’Bama, that he spoke generally of the reluctance of previous courts to limit the Hamiltonian principle of Congress, upheld in McCulloch, “to promote the general welfare.”
Ordering a president to defend something that was not said, demeans and politicizes the court. Perhaps the president should ask how many legions the 5th Circuit has . . . in this instance. Maybe you know.
So the measured, appropriate response to political grandstanding by the President is political grandstanding by a single 5th Circuit Judge during argument in a wholly unrelated case? And the only problem you have is the page length of the ridiculous memo requested?
President Obama made a political statement not akin to statements made by Republican political candidates (and presidents) about activist courts. His comments were dead on accurate — we like activist courts when they are for us and don’t like them when they are against us. What’s new about that?
It seems to me that the more appropriate focus is on Judge Smith’s clear injection of a political agenda into what should be only a judicial agenda in the case before him. President Obama never said that he as president would not uphold the law as pronounced by the courts. He just complained about activist courts with a political rather than a judicial agenda. Exhibit 1 for this point is, of course, Judge Smith’s blatantly political overreach. And, if truth is a defense, then the president has that defense as well.
I think the Government should not take Judge Smith’s demand lying down. They should ask the Fifth Circuit or the Supreme Court to overturn the demand and let the panel do what it is supposed to do — decide the case before it without political comment. The panel can then see whether the Government enforces its opinion and take appropriate action at that time — which is the way things are done in the judiciary rather than enter the political fray as Judge Smith has done.
If Judge Smith wants to be a politician and legitimately enter the political fray, then resign from the bench rather than hide behind the judicial bench to do politics.
Careful there, Professor, some folks might start calling you a “firebagger.” I agree, btw. Besides all the points you made there, both major parties have been major hypocrites on the issue of “judicial activism” when it comes to issues important to them. This law was a turkey to begin with. It comes with some nice provisions, but they are just sugar to help us ignore the foul taste. It was a compromise held out to people with no interest in compromising, and helps to line the pockets of the people who made the health care crisis worse to begin with.
[The President] Thursday, blasted the court’s most recent ruling as “an abuse of power as bad as the transgression of Watergate and the bribery on Capitol Hill.” …
[the Attorney General] accused the federal courts of “constitutionally dubious and unwise intrusions upon the legislative domain,” and vowed to oppose such “subjective judicial policymaking.”
The Prez? St. Ronald Reagan & The AG was his. Then there is this gem:
Over two decades ago, a young government lawyer named John Roberts tried to convince the Reagan Justice Department to endorse a number of radical legislative proposals that would strip the federal courts of jurisdiction to hear cases concerning such issues as school prayer, school busing, and abortion.
But its the blackity-black Kenyan Usurper that is making an unprecedented attack on the courts. Sadly, this sort of history is edited out of news coverage like so many other things.