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 think that any President (yes, even lamebrain “W”) has every right to criticize, critique, admonish, or downright insult the members of the Supreme Court (and their ancillaries), just as many of them do to the current office holder every day — even in public at the State of the Union. I also think the Court has no right to warn him of anything or demand a letter specifying what his statements mean. This is a 5th Circuit judge grandstanding and rubbing the nose of a nationally elected leader after the President has simply stated his opinion. Our priests of the black-robe would do well to remember that the Office of Presidency is a co-equal branch with a constituency of 100 million persons; the judiciary is nominated by him and enjoys a constituency of no more than 101.
Judge Jerry Smith wants a letter explaining the President’s view on judicial review. Well, I can’t write that one, but I can give him a primer on the thoughts of another president who, though immune from civil process compelling such a letter, knew a thing or to about the concept.
“The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.” –Thomas Jefferson to W. H. Torrance, 1815.
“But the Chief Justice says, ‘There must be an ultimate arbiter somewhere.’ True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force.” –Thomas Jefferson to William Johnson, 1823.
“But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best.” –Thomas Jefferson to John Cartwright, 1824.
While the question is not now an open one, I judge Mr. Jefferson an authority on the topic though decidefly in the minority. My darker side wishes that President Obama’s letter would be delivered post-hate by a contingent of the 101st Airbourne Division, but that would be a too obvious challenge to Judge Smith now wouldn’t it?
Funny Nixon never received such a request even as trampled the Constitution by leaps and bounds.
“The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs.”
Mark,
I absolutely agree with TJ and you. The problem that exists constitutionally, which the Founding Fathers perceived is that officials (of the three branches) are expected to act for the common good, yet ofttimes in human affairs people are ruled by their personal, rather than common good.
The use of racial profiling could be department policy and training, Speak Out the Wrongs.
Racial profiling is not the issue in the Florence case. It should have been, but the trooper himself was black that arranged for the hospitality for the week.
Three pages, single-spaced? The Court assigned homework to the Administration?
Bettykath, I think racial profiling was a factor in Mr. Florence’s case.
I couldn’t really say who influenced him, Idealist. Perhaps, Frank Marshall Davis.
anon nurse
thanks.
is it time we all re-name our “world’s richest country” to something more appropriate. The “most exploited by the rich” country? Suggestions.
The rich are not even letting it trickle down. We need a French Style revolution. The situation seems similar.
Buy Directly From – AliExpress . com — DhGate . com
Bettykath,
Yes, if you are simply arrested for the crime of driving with an expired license, selling fresh milk, not wearing a seat belt, protesting, etc. you can be legally strip searched during the booking procedure. That is what the SCOTUS ruled. Be careful out there.
Neil Davis,
Do you suppose Obama got influenced by the people he met during his community organizer period. Kinda made him suspicious of this thing called democracy and the rule by, of, and for the people.
Frankly,
Forget it, re-reading helps even some minds understand. Well done.
Mike Spindell,
OT OT OT vv Stieg Larsson’s “portrait” of Swedish society in his Millenium trilogy.
Would appreciate an answer to this answer to this question you raised. Perhaps you were just ribbing me, which I can laugh at too. But would like your help to get it off my list.
Mike S,
If you are still reading.
I checked with some Swedes today, and they say variously, but in agreement, on Stieg Larsson’s books.
If you read Aesop’s Fables and use it to describe Greece then his works will do for describing Sweden. If you construct the history of the ME from Thousand and One Nights, then you are fine with Stieg’s books in hand.
Or they point with contempt to the readerships need for exoticism action, always action, violence constantly, improbable intrigue, exotic places, and the usual set of characters, semi-miraculous rescues, and “they have casual sex” as a recurring theme, etc., etc.
It’s one author’s exploitation of the methods used in creating the James Bond later films, and written for just exploitation. He felt the sickness of the post-9/11 world would be ripe for another series.
But reality, no. Based on real Swedish problems of the magnitude sketched, no. Based on other peoples ignorance about Sweden and the rumors that circulate, yes, emphatically yes.
Do Swedes have sex parties, yes, but so did certain rich American ones on Long Island in 1964. So what. Do Swedish women like promiscuous sex, yes, but so do men, and so did women and men in the Los Angeles, Las Cruces, Tucson, St. Louis, Boise, Seattle, New Jersey, etc. also in my youth.
Do we have a problem with fascism, No. Do we have a problem to correct as to women’s position. Yes, but women representatives are almost 50 percent of parliament, and women issues are not even labeled or handled as such.
OTOT
We had a pre-quel from another author who actually did time when he exposed certain security facts as a journalist. That was in the cold-war era.
He wrote later many successful spy novels, the hero being (hold your hat) a nobleman who supported left-wing organisations and got his Seal training courtesy of America. The author is Jan Guillou, and his character was called Coq Rouge by Securité in the first novel.
Family killings occur very seldom, thanks to the public reaction to the first one. What is worse is the sending home by parents to where they came from, now after attaining 18, to be wed without consent.
The other themes: patrarchialism, women hate, and naziism are infantile positions in everyones eyes here, except for a few skinheads with ties around their necks in parliament who are adherants to the last theme.
Obamas a Murdock lachy? I thought he wanted to be president of Harvard!
I read Yale professor Jack Balkin’s legal blog “Balkanization”. It is more liberal and less libertarian than this one and the Constitutional lawyers there think that the Affordable Health Care Act is constitutional. I have posted some of their opinions on other threads. Also, Prof. Koppelman of Northwestern University is a huge proponent of both the act and its constitutionality.
Houston Tax Lawyer,
“…If Judge Smith wants to be a politician and legitimately enter the political fray, then resign from the bench rather than ”
Which is the wish of Prez with respect to certain SCOTUS justices.
Frankly,
Usurpation of power is and has been a common exercise in our nation.
You can the litany but ignore it concentrating on the latest one, who happens to be black. (are you racist, sir?, pardon this question but your referral to a Kenyan Userper seems to raise reasonable suspicion.)
LBJ took a resolution based on false information and turned it into a major war. Many years ago, it was SCOTUS who examined all federal laws.
And all which extended federal powers required an amendment to the Constitution. This does not mean I am a “states-rightists”, but only wish to point out this is the result of an over 100 year trend.
The Prez, regards the current SCOTUS as effectively an adjunct to the Koch Bro contingent of our controlling elements. That this is the right tactic is another question.
Bdaman And what does a Murdoch lacky that didn’t finish college know about con law?
Obama went to law school…. You’d never know…..
We were half-joking yesterday when we asked if Barack Obama slept through his Harvard Law class on Marbury v. Madison, the 1803 case in which the U.S. Supreme Court first asserted its power to strike down unconstitutional laws. It turns out it’s no joke: The president is stunningly ignorant about constitutional law.
The Man Who Knew Too Little
President Obama’s stunning ignorance of constitutional law.
http://online.wsj.com/article/SB10001424052702303816504577321844137787970.html