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
Perhaps most strikingly, Obama’s news conference reply seemed stunningly ignorant for a lawyer, someone who’s touted his credentials as a constitutional law professor at the University of Chicago. There is nothing “unprecedented” or “extraordinary” about the Supreme Court overturning duly-legislated laws or parts of them. It happens every year, more routinely at lower court levels. Where’s he been?
Why is Obama so rattled? Another speaking gaffe sets off a federal appeals court judge
http://news.investors.com/Article.aspx?id=606689&ibdbot=1&p=2
You don’t say ?
How’s the teefis ?
Upon further reflection, it impugns the professionalism and presumed integrity of the Court for Professor Turley’s to contend that a federal judge would decide a case adverse to the defendant’s interest simply on the basis of the judge’s personal pique with the defendant’s public statement of desire that his case prevail.
In this case, “out of the mouths of babes” did not come a gem of wisdom, but rather an implicit admission of judicial immaturity.
Bdaman,
I submit there is a difference between ignorance and willfully ignoring. Bush could probably be accurately characterized as being Constitutionally ignorant. He is ignorant on a wide range of subjects from law to the English language to how to eat pretzels without assistance. Obama should know better and appears to be ignoring the Constitution because he simply feels like he can and/or has precedent for ignoring the Constitution.
Former Obama Student: Obama’s Ignorance of Constitution Embarrassing
Prof. Thom Lambert of the University of Missouri Law School has responded with alarm to President Barack Obama’s attack on the Supreme Court and the power of judicial review by recalling his own days as Obama’s student at the University of Chicago.
Lambert, who writes for the “Truth on the Market” blog, not only studied under Obama, but also clerked for the federal judge who issued an order yesterday demanding that the Department of Justice clarify whether the government believed courts had the power to overturn constitutional laws.
Lambert wrote:
http://www.breitbart.com/Big-Government/2012/04/04/Former-Obama-Student-Obamas-Ignorance-of-Constitution-Embarrassing
Professor Turley: “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.”
How can any public statement, by anyone, influence a court decision which, ostensibly, derives only and exclusively from evidence and arguments before the Court? Does Professor Turley now contend that statements of opinion outside the courtroom constitute valid legal evidence and argumentation that the Court must evaluate and take into consideration — and how could any court do this? — before rendering a verdict? Do we now have to sequester judges as well as juries?
From my own limited experience on jury duty, judges routinely admonish jurors that “only evidence and argumentation presented in this court may inform your judgment. Nothing said outside of the court has any relevance whatsoever.” Apparently, Professor Turley considers today’s justices as weak minded and as easily manipulated as many justices consider us lay jurors. The President does not command either the courts or the legislature. He may only seek to persuade through public advocacy. He has as much right to do this as the other two branches have of disregarding whatever he says, which they often — justifiably and unjustifiably — do.
I lost whatever respect I had for the Supreme Court in 2000 when it carried out a partisan political coup by selecting dimwit Deputy Dubya Bush as America’s president, while at the same time proclaiming that no future Supreme Court could do any such thing as they had done. In other words, “some” Supreme Court decisions do not set legal precedent. So much for “the equal protection of the law.” As Glenn Greenwald has written in his latest book With Liberty and Justice for Some, America has a vicious and vindictive system of implacable “justice” for the poor — see the recent “Strip Search” decision — and no law at all for the wealthy and connected who, when they get caught violating the law, just order up the Congress, President, and Courts to write, sign, and approve a new, ex-post-facto law making their criminality legal.
At any rate, that some political justices have political “rabbit ears” should come as no surprise to anyone in Professor Turley’s position. Until he demands the impeachment and removal of Justices Thomas and Scalia, as he once demanded the impeachment and removal of President Clinton for getting a blow job, I will have a hard time taking his protestations of hurt judicial feelings seriously.
I have read in the press several opinions that the Government’s advocate in this case did a remarkably bad job for his client, the American people. I didn’t get to hear the arguments myself, so I can’t assess the merits or demerits of those criticisms.
Yet the government’s advocate surely missed an opportunity, in my view, if he did not petition the court to have Justices Thomas and Scalia recused from the case: the former on grounds of conflict of interest and corruption and the latter on grounds of senility. To wit: Justice Thomas’s wife works as a lobbyist for the health care industry and Justice Thomas has routinely omitted her income from their joint tax returns, in violation of the law. Justice Scalia, for his part, has demonstrated memory impairment, since in recent public statements he has falsely claimed that the Court decided Bush v Gore by 7-2 when in fact it decided the case 5-4. Justice Scalia, simply and demonstrably, can’t remember the most egregious exercise of partisan judicial activism in the history of the Supreme Court. Given these publicly known truths about Justices Thomas and Scalia, the government’s advocate had every right to insist that they remove themselves from consideration of this case, since — no matter what the verdict — their participation in it will taint the decision for years to come, if not bring an already discredited Court into even further disrepute.
Justices violating ethics and tax laws and justices making senile or mendacious public statements deserve the same condemnation as presidents and legislators do when they try to influence the other two co-equal branches of government. In any event, the Court impugns its own dignity when it responds to public comments of any kind instead of confining its statements to published judicial rulings. If the Court has the final say, it need not make any other.
http://www.nytimes.com/2012/04/04/opinion/dowd-men-in-black.html?_r=2&ref=opinion
4 Apr 2012 04:51 PM
The Right’s Obama, Ctd
A reader suggests the following quote from James Baldwin to explain some of the delusions and hatred:
“An identity is questioned only when it is menaced, as when the mighty begin to fall, or when the wretched begin to rise, or when the stranger enters the gates, never, thereafter, to be a stranger: the stranger’s presence making you the stranger, less to the stranger than to yourself.”
I think I correctly gauged the American public’s willingness to elect a biracial president. I think I drastically under-rated their willingness to actually be governed by one.
Andrew Sullivan, The Daily Beast.
Judge Smith said that he would “like to have” a written response from the Justice Department, of a specified length, by “noon Thursday.” The Justice Department may reply that (in three or more pages of 36-point type with two-inch margins all around) that it would “like to have” a decision in this case favorable to the government “by noon Thursday,” said decision to comprise a single sentence, in plain English, to the effect that “The Affordable Care Act in all its particulars is now the law of the land.”
If only everyone, on demand, could have what they would “like to have,” when they would like to have it, if not sooner.
Whoever said “the law is an ass” had the likes of Judge Smith in mind.
Fox News’ Legal Analyst Disagrees With 5th Circuit’s Attack On Obama: ‘I’m Not So Sure The DoJ Has To Comply With This’
By Faiz Shakir on Apr 4, 2012
http://thinkprogress.org/justice/2012/04/04/457826/fox-news-legal-analyst-disagrees-with-5th-circuits-attack-on-obama-im-not-so-sure-the-doj-has-to-comply-with-this/
Excerpt:
Last night, Fox News host Greta Van Susteren – an accomplished former trial attorney and legal analyst – criticized the 5th Circuit panel for making an illogical demand of the Department of Justice.
Yesterday, Republican Judge Jerry Smith, speaking presumably for the entire panel, demanded a 3-page, single-spaced letter from the Department of Justice on whether it agrees with President Obama that it would be inappropriate for “unelected judges” to strike down Obamacare. Obama himself clarified yesterday that, “[w]e have not seen a court overturn a law that was passed by Congress on an economic issue like health care,” which is correct.
Judge Smith asked the DoJ attorney whether courts have the power to overturn an act passed by Congress and signed by the President. The lawyer, Dana Lydia Kaersvang, straightforwardly answered yes and referenced the landmark case affirming such power of judicial review — Marbury v. Madison. Van Susteren said last night, “What I see, first of all, the judge doesn’t need this information, and she [DoJ attorney] answered the question. It really should be over at that point.” Explaining “I’ve never seen anything like this,” she urged the DoJ to refuse to comply with the Judge’s request:
VAN SUSTEREN: I imagine the discussion tonight at the Justice Department – I would certainly be having this discussion – is to refuse to do it. Because it really is beyond what is necessary in the case. It has nothing to do with the case. And the lawyer answered the question in court. And it’s clearly just, you know, the judge is mad. And to refuse to do it, maybe you draw a contempt charge but then I would then take it up with the full court. I’m not so sure the Department of Justice has to comply with this.
TPMDC
John Roberts Faces A Legacy-Defining Predicament On ‘Obamacare’
Sahil Kapur April 4, 2012
http://tpmdc.talkingpointsmemo.com/2012/04/john-roberts-rough-predicament-on-obamacare.php?ref=fpb
Excerpt:
You’re the chief justice of the United States, and you’re presented with a choice: Either rebuke the political movement that gave you your dream job, or put your institution’s reputation on the line by neutering a sitting president’s signature legislation for the first time in 75 years.
This is the unenviable dilemma John Roberts faces as the Supreme Court prepares to rule on “Obamacare.” Initial votes were cast by the justices last Friday, and a final decision on the law’s constitutionality is expected by the end of June. And with four liberal justices considered a lock to uphold the law, Roberts is uniquely positioned to determine the law’s fate, and faces considerable risks no matter what he chooses.
“I see this as his legacy,” Lucas A. Powe Jr., a Supreme Court historian and professor of law at the University of Texas, Austin, told TPM. “This is really going to be a defining moment about whether he views himself as a member of a political coalition that is in power to impose its will on its country, or if he’s at least somebody that can rise above partisan politics.”
One school of thought is that Roberts will come down on the same side as Justice Anthony Kennedy, and end up writing either a 6-3 majority decision to uphold the law or a 5-4 opinion against it. Another, fueled by his line of questioning last week, is that the conservative Bush appointee isn’t sold on the individual mandate and will vote to overturn it.
A third view is that Roberts may be the fifth vote to uphold the law, due to the 2010 U.S. v. Comstock case, when he became the only conservative to sign on to a majority opinion with the four liberals in favor of sweeping federal power. Kennedy and Justice Samuel Alito wrote separate concurring opinions outlining narrower visions of the power in question.
More often than not, though, Roberts sides with the court’s conservative wing. And the Comstock comparison suffers from a key limitation: its political significance is dwarfed by health care case’s. In many ways that defines Roberts’ dilemma: He’s facing far more political pressure from the right to overturn the mandate; but this time around the court’s reputation is on the line, which may make Roberts more wary of breaking with precedent.
“A lot of people really believe that the Supreme Court is a super-legislature that decides things on political rather than legal grounds,” said Timothy S. Jost, a professor of law at Washington and Lee University, citing Bush v. Gore and Citizen United. “This would be an opportunity for the chief justice to say, ‘No, we’re going to defer to Congress on major issues and only strike down laws that are clearly unconstitutional.’”
Powe added, “If this had been the signature item of the last two years of George W. Bush’s administration, Roberts would uphold it. There is no doubt.”
The Republican sermon for today.
And God created Adam anglo-saxon, and Eve was made from his rib. So God thus mandated that the white people of England, and later those who went from there to America, should dominate the world and all its sub-human species in his name. So saith the Bible, and it is both Holy and the eternal truth. Amen.
Now let us pray to Mitt. “Our Father, who art in Washington, give us…..”
Additionally, none of those guest bloggers that you like so much are libertarians.
anon, Sorry, not going. Like the professor’s views on civil liberties and war but on Ron Paul not so much. You probably would be the first one voted off the island.
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.
Truly, Prof. Turley you cannot view this as anything more than a pissing contest between two branches of government. You seem to express surprise at this kind of behavior when it has been demonstrated over and over and over that this is exactly the behavior we have come to expect over the past two-hundred odd years. I, for one am pleased to see this schoolyard exchange between opposing bullies as it is certainly preferable to marching to or from foggy bottom with a sidearm to settle differences; something not unheard of in our checkered past.
OT The Republican future: currently two chapters.
Ch. 1.
The plans are going on how to put a plastic dome over the whole USA. The dome will turn sunlight into electricity.
Sunlight will not be seen, all light for working and agriculture purposes will be artificial. The digital clocks and light/working hours will be slowly adjusted over a generation, giving “old tired people” an added meaning. New borns won’t notice the difference. The clocks will run faster at “nighttime” thus the changes will result in people working harder and producing more for the 0,01percent.
The weather will be constant daily and year-round.
Natural rainfall will be collected by the dome and by internal aerial canals be delivered for agricultural needs and human consumption. More effective use of rainfall is thus attained.
Former riverbeds will have trickle running to commemorate their old function until the population has forgotten the former use. Niagara Falls will be maintained in the same way. It will be renamed Niagara Ripples. People will still stand in front of their local hologram theater image of the old one to have their wedding photos taken. No one will know why, it’s just an old custom, you know.
Ch. 2
The first prototype tests will be relatively small scale. One has been proposed for Phoenix. Since no rains fall there, the continued use of the Colorado, will be as usual.
New techniques for tract development, which will diminish water useage will be used. Grass lawns will be replaced by a new spray chemical which on desert or similar surfaces provide a green non-slip surface highly resistant to child play. “Lawn” repair kits for home use will be exorbitant in price, but all will buy them—keeping up with the neighbors being what it is.
Should one wish to later have a “walking” pool, the surface can easily be penetrated for pool construction. WALKING??
Why, all pools will be max 2 feet deep. Nobody swims in them really these days. And we don’t want Grandma drowning if she falls, do we?
Since Phoenix is a 0.01 percent town (almost), then the pop will be excluded from the working scheme for the nations proles.
Even “servants” will be excluded to stay in sync with their “owners”. Non-servant employees will be excluded from the “gated communities” after work hours. And must return to their ghettos before “dark”. Keeping the secret Phoenix is an exception to the general scheme will be covered by the always revising National Security system. Knowing about P. will require a need to know clearance called “R”, only granted to highly placed members of the Repugnant Party (new official name, post-2012).
——–to be continued. Like it or not.
Didn’t Harry Truman say “Damn Congress.” ???
You mean to say that a black trooper will enforce racial profiling? I have never heard of that happening.
Mespo,
You should consider writing a blog. Just selections such as these in relation to modern context would be great.
I understand JT’s problems with such citations and exhortations, but assume they are no problem for you.