Federal Court Slams Justice Department Over Obama Comments

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

105 thoughts on “Federal Court Slams Justice Department Over Obama Comments”

  1. “Americans took fewer prescription drugs, visited the doctor less often, and made more trips to the emergency room for treatment as unemployment and the struggling economy forced people to go without medical care last year, according to a new study.

    The number of times Americans saw the doctor declined 4.7 percent in 2011, the second straight year people cut back on office visits by more than 4 percent, according to market research from the IMS Institute for Healthcare Economics. Non-emergency hospital admissions declined 0.1 percent in 2011 after rising 1.9 percent the previous year. But emergency room visits leaped 7.4 percent last year, which IMS suggests is the result of high unemployment and the rising numbers of uninsured people seeking medical care.

    Rising health care costs are affecting a growing number of people as the ranks of the uninsured swell, health insurance premiums rise as benefits shrink, and the burden of out-of-pocket costs grows heavier. The typical American family will spend $20,000 on health care this year, another recent study says. Health insurance companies, hospitals, and physicians are striving to contain health care spending, which reached $2.6 trillion last year, a tenfold increase since 1980.”


  2. It’s “activism” only when the court decides against the constitutionality of something one likes.

    Of course, by precedent, Obama has every right to play this game just as the justices have every right to strike down legislation that they deem to be unconstitutional. And where is that legislation going to come from but the legislative body?

    But chill out. The court is drooling over this legislation. Profit for monopolistic behemoths of the worst possible kind. Obama’s remarks are not going to help his case but I suspect the justices will find a way to save this right wing legislation and to save face as well. Does anyone seriously imagine that the insurance giants are standing idly by waiting for the justices to come to a “judicial” decision when it conflicts with a corporate one?

    I note above that we continue to have arguments that imply by being in this discussion that this must be constitutional because it supposedly helps a lot of people. Given Obama’s history, that of the pharmaceutical industry and most of all that of the cut throat insurance monopolies, I am dubious this will be anything other than salve for neo-liberal’s consciences – in terms of the good it does, and a dead end for our health care system that will take years to publicly recognize, never mind adress. It is also the best template I’ve seen so far for the privatization of Medicare and social security. And, on a slightly different note, given the fact Obama hasn’t said the words “Climate Change” in over two years, we may never get there anyway. But regardless, that forcing people to buy crap from private enterprise with no controls over costs will help people is a weak argument for its constitutionality not to mention a weak argument on its own merits.

    Do people seriously think this will keep costs down? Do they seriously think it will require the insurance companies to obey the stated ostensible intent of protecting those with prior conditions? If so they would do well to take a serious look at what has been going on with the banks and MERS and millions of people who have been illegally foreclosed upon. Not only are the banks getting no penalties at all for blatantly illegal behavior, they are continuing the same abuses now that they have a fake settlement behind them. Neither the administration nor its justice department are doing anything beyond window dressing. And you seriously think they will do anything differently when the insurance companies ignore the unfunded rules regarding refusing people with prior conditions?

    The biggest illusion of all, that totally ignores everything and anything that Obama and the Democrats have done, is that this will be a way to sneak universal health care past conservatives.

  3. Hope you have better WH contacts than I, they haven’t answered any of my stuff through the “Contact the Prez-page”. And they are conserving wear on the computer, no standard e-mail replies like you get from their campaign site. You just get shuttled over to a thank you page. Smile.

    And what particular criminality are you speaking of, there are so many?
    And what is the deal being broken, there are so many?

  4. @ Neil Davis QUOTE “This further confirms my contention that much of what Obama’s administration does is “right wing” in nature.”

    I figure it’s more criminal in nature!!
    I have contacted ALL MY Rep’s, including the White House, to see what has to be done to reverse this decision.

    This is a deal breaker!!

    (I realize that any President that thinks he has a right to kill AMERICAN CITIZENS won’t be much help here.)

  5. mespo,

    Once I saw s piano player dominate an Italian restaurant in Rome so completely, that it was as though it was in a concert hall. I relate it as a tribute to piano players and as a measure of encouragement to all to let our music flow freely.

    He came in in the middle of our appetizer, we were poorly placed vv the piano, sitting outside, but the increasingly wild tones, chords, crescendos, all embroidering with a strong hand on a melody, was in the inspired manner of a jazz player or Picasso sketching in the sand on a beach.

    I passed him several times on the way to the basement toilet, my approving glances being met, were responded to with a communication that just we two knew the meaning and importance of what he played and more particularly how he said it.

    So, never underestimate the importance of a piano player.,

  6. MM
    Start impeachment proceedings against Scalia and Thomas for the reasons you have given. Whether a legal point or not I would like to add “moral turpitude” to the accusations against Thomas.

    The challenge should have been delivered as you suggest.

    Two new justices who will approved more denial of civil rights in support of Omama

  7. Sorry, I’m still puzzled by Judge Smith’s order.

    How does he have authority to issue a homework assignment to the Attorney General and the Department of Justice, in response to a remark by the President?

    Judge Smith is not involved in the Health Care law decision. Why is it his responsibility to discipline anyone for speaking intemperately about the case?

    If the homework assignment is ignored or is turned in late, is it contempt of court? Will he order the Attorney General to have himself arrested?

    My questions aren’t tongue-in-cheek. I can’t fathom this. Thanks in advance for any insights you can offer.

  8. It is wrong for this judge to make political comments during a court case. Sorry, Jonathan, but you are wrong as well. The comments by the GOP about unelected judges for decades.

  9. On a related note, it seems to me that I recall someone asking Justice Scalia at a public venue how it felt to have intervened in the 2000 presidential election, awarding the presidency to the absolutely awful George W. Bush. Effused Scalia: “It felt great!” So much for judicial circumspection and decorum. To expect more and better from those not in possession of a lifetime sinecure, asks more than human nature typically exhibits.

    Not that I expect President Obama to “stand his ground” when predictably assailed by cynical Republican word-assassins aghast that someone — especially a “Democrat” — might appropriate reactionary Orwellian misnomers and return them in kind. George Orwell exhaustively covered this semantic gambit in 1984, where he has the bureaucratic wordsmith Symes say to Winston Smith in the Ministry of Truth:

    “You don’t grasp the beauty of the destruction of words.” …

    “Don’t you see that the whole aim of Newspeak is to narrow the range of thought? In the end we shall make thoughtcrime literally impossible, because there will be no words in which to express it.” …

    “There is a word in Newspeak,” said Syme, … duckspeak, to quack like a duck. It is one of those words that have two contradictory meanings. Applied to an opponent, it is abuse; applied to someone you agree with, it is praise.”

    Thus with the insidious neo-conservative (i.e., Republican party) meme, “judicial activism.” Among republicans and their willing tools, the word has a restricted, pejorative meaning (almost exclusively, tone), applicable only to “liberal” justices that Democrats supposedly nominate to the bench. But if President Obama attempts to appropriate the true meaning of the phrase — i.e., what activist judges typically do — and expand its application to include the corporate crypto-fascist judges nominated by Republicans, he plays foul. How dare he attempt to expand the meaning of language so that all might partake equally of its semantic usefulness. The instantaneous squawking and squealing that has erupted on the rabid, reactionary right gives exquisite testimony to the fact that President Obama has struck a raw, semantic nerve. The Republican reaction to President Obama’s accurate appropriation of the duckspeak term “judicial activism” confirms Orwell’s warnings about the destruction of words — a destruction desired by all totalitarians — such that any attempt to resurrect their power and generality, making them fit again for critical thinking, must not, for a moment, gain even the slightest foothold in the national discourse.

    As stated previously, I expect President Obama to backtrack in a hurry from this successful semantic gambit, since, even when correct and in possession of an effective truth, his essential lack of any progressive conviction will guarantee that he backs off and winds up looking as shallow and weak and vacillating as … say … Mitt Romney.

    Only the naked venality and go-for-the-jugular viciousness of the Republicans — as much as Obama has done to appease and advance their agenda — argues for his re-election as the “lesser of two evils.” Typical “choice” for Americans: to roast or to fry.

    Which, finally, reminds me of what the wizard Gandalf said to fellow wizard Saruman when imprisoned by the latter in the Tower of Orthanc:”… the choices are, it seems, to submit to Sauron, or to yourself. I will take neither. Have you others to offer?”

    America sure could use the offer of some other choices. Otherwise, it looks like evil again, for lack — by design of the incumbent, bi-partisan evil-doers — of any alternative.

  10. idealist:

    “You should consider writing a blog. Just selections such as these in relation to modern context would be great.”


    Thanks, but I’m just a piano player here at the bar. JT runs the place, but he sometimes lets the help get their say and vent their feelings. My ramblings (spiked with a few quotes from Jefferson) only have substance because of the platform they stand upon.

  11. Bdaman,

    Oh, I do say. As I’ve said before too – there are plenty of legitimate reasons to criticize Obama and his abuses of the Constitution are right at the top of that list for me. Especially his claim to be unsupervised Executioner in Chief of citizens.

    As for the teefis? I’d tell you if I could feel my head right now, but thanks for asking. All I can really tell is that the swelling is going down fairly fast. Chemistry is a wonderful thing.

  12. To paraphrase what I said much earlier, Obama shouldn’t have, and Smith shouldn’t have. Obama waxed crassly political (he suddenly having discovered his political bone in the face of being embarrassed over his “signature” ” accomplishment”, and deciding there is some politcal hay to be made, or asses to be covered). Judge Smith got self-importantly pissed off and righteous and decided to act out.

    Personally, Obama being the bigger fish, I wish he would shape up. If he really wanted a Supreme Court that was progressive he could have made a gresture a long time ago.

    They’re all in the pocket of Wall Street. Why are we wasting our breath?

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