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
re: the strip search decision. It seems a clear invasion of privacy for everyone to be strip searched without probable cause. However, I’m confused. Each column I read interchanges prison and jail as if they are the same thing. My understanding is that jails are the county or city places where all the accused go prior to any hearing or finding of guilt. Some are sent back as part of there sentencing. Is also my understanding that prisons are state or federal run places for long-term incarcerations, especially for violent offenders. Did the Supremes consider the distinction? Did they really mean that someone picked up on a warrant for non-payment of a ticket and taken to a local jail is to be treated the same as a violent offender in a prison? Is my understanding of the distinction between jail and prison close to accurate?
“you’re gonna find people by the hundreds, and in many cases by the thousands, that need services”
Well yes, Brock, that’s usually what happens when you give something away for free, you find that there is extremely high demand for it.
Smith sounds more like a third grade teacher annoyed at an errant student, ridiculous demand for this letter . Ridiculous judge.
In World’s Richest Country, the Uninsured Wait in Line Overnight for a Chance at Health Care
03 April 2012 18:03 By Rose Aguilar, Truthout | Report
http://truth-out.org/news/item/8301-in-worlds-richest-country-the-uninsured-wait-in-line-overnight-for-a-chance-at-health-care
“Stan Brock never expected to see adults and children shivering in line in the middle of the night, hoping to get free medical, dental and vision care in the wealthiest country on earth. Now that he’s seen it for years, he’s no longer surprised. “It’s quite common,” he said. “People line up many, many hours before the event opens, which is normally at 5:30 in the morning.”
Brock is the founder of Remote Area Medical (RAM), an all-volunteer mobile medical clinic that’s been traveling to cities across the United States offering free health care since 1992. Brock founded RAM in 1985 to provide care to people living in the most remote areas of the Amazon rainforest. Seven years later, he was asked to bring the clinic to Knoxville, Tennessee. The invitations have since increased.
“You can close your eyes and stick a pin on the map of the United States and go there, and you’re gonna find people by the hundreds, and in many cases by the thousands, that need services,” said Brock.
“It’s simply unaffordable, particularly in dental and vision care. A very, very small percentage of people in this country have insurance that covers those two key items. We’re still seeing people dying of bad teeth in the United States,” he said. “I’d like to see us work ourselves out of a job so we can concentrate our efforts where we began, in places like the Amazon and Haiti, of course, but we’re bogged down here in the United States, I think, for years and years to come.””
The fact that there probably won’t be a vacancy on the Supreme Court over the next four years tells me that isn’t one of the main reasons to re-elect him. His policies on record have been pro-police state, anti due-process, pro-corporate welfare, pro war, etc. etc. I’ll vote for a third party that better represents my views.
All,
Obama cannot be placed into a left/right box. I point out how he routinely sides with the right wing in order to demonstrate how such a box doesn’t accurately reflect his ideology. Obama stands for ever increasing government power, control, and influence. Sometimes that takes the form of right wing politics, and sometimes left wing politics. If there is ever an issue that seeks to further individual freedom attained by restraining government, you can bet that Obama will be opposed to it.
Neil, If that’s the case he is better at picking Supreme Court justices than performing some of his duties. That is one of the main reasons to re-elect him.
I love that the President is on offense and putting the arrogant right on defense. Conservatives and religious zealots have gotten so accustomed to having their way in Wahington for the past 30 years, it’s pretty rattling to them that someone calls them out for the damage they’ve done to America and what further damage would be done if we ever fell under their mismanagement again.
See the full report on Obama’s right wing justice department here: http://www.salon.com/2012/04/03/the_obama_doj_and_strip_searches/singleton/
Correction: Sorry, I meant “four” left wing judges.
All of the discussion about what criteria the supreme court will use to decide the health care law is nothing more than psycho-babble. The court will rule in favor of corporations and big business as they have done in about 80 percent of their rulings under the Robert’s court–in this case insurance companies, health care companies, drug companies, etc.
http://www.tnr.com/article/politics/102277/child-labor-laws-supreme-court-affordable-care-act “The 1918 Case that may have foreshadowed Obamacare’s demise”,
Swarthmore,
The horrendous decision by the Supreme Court allowing the strip search of everyone who is arrested was split 5-4. All five “right wing” justices voted to allow the strip search. All five “left wing” justices voted to not allow them unless there was good reason.
Unsurprisingly to myself, the Obama administration approved of this right wing ruling by the Court, and actually urged the Court to rule in favor of blanket strip searches for all arrested individuals.
Consider this from ABC News last October.
“The Obama administration is siding with the prisons in the case and urging the court to allow a blanket policy for all inmates set to enter the general prison population.”
http://abcnews.go.com/blogs/politics/2011/10/supreme-court-struggles-with-strip-searches/
This further confirms my contention that much of what Obama’s administration does is “right wing” in nature.
anon nurse,
There are so many usable shorts from that movie but my favorite, and don’t ask me why ’cause I don’t know, is Mongo ( Alex Karras ) punching the horse.
Malisha says “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.”
Well that certainly is a question. Along with what to do about it: continue to insist on the integrity of the high judiciary despite the evidence we are in a nasty politicalization cycle? Recognize the cycle (probably) will again shift? Point out all the relevant/relative hypocrisy?
It’s sort of like with Congress, the filibuster and super majority hocus pocus. Who started it? Who is worse?
Short term, long term perspective? What’s a poor democracy to do — when it seems to be evaporating right before our eyes? Or is it?
(and, of course, don’t count on the media to help clarify anything much)
Gene,
Your saddle’s on fire!
Really though … there are enough merits to this case for ample intelligent discussion. This kind of crap is just a f’ing waste of time.
http://www.huffingtonpost.com/2012/04/04/nikki-haley-obama-bully_n_1402569.html Not only are the republicans saying Obama is bullying the court but that he is also bullying that poor defenseless Paul Ryan.
krissy, You are so right about what will happen to Medicaid if the Affordable Healthcare Act is struck down in its entirety. Glad you brought it up.
Oh by the way, obviously the Supreme Court DOES have the right to strike down acts of Congress if it finds them unconstitutional. See Sanford versus Dred Scott in which CHIEF Justice Roger Taney ruled that the Congress did not have the right to set up a territory that chose, within its borders, to outlaw slavery. OK? New territory, about to become a state, was not allowed to be declared a “Free Territory” rather than a “Slave Territory” by the Congress of these United States. Yup, and the Dred Scott decision has never been overturned; a Constitutional Amendment made it moot, but it was never overturned. So, Congress, in that “scissors, rock, paper” game that the corporations are playing with the people: YOU LOSE.