Millhiser reports: "The Republicans on the Fifth Circuit panel heard President Obama's original statement, however, and they did not hear two plausible meanings. They did not consider the possibility that President Obama might have misspoke."
In an unprecedented move the Fifth Circuit Court of Appeals has asked Obama to clarify a statement. (image: Time Magazine)
The 5th Circuit's Political Tantrum Against Obama
05 April 12
he United States Court of Appeals for the Fifth Circuit may be the most ideological court in the country. When the oil industry’s allies in Congress wanted to protect the industry from drilling lawsuits, they passed a bill trying to force those lawsuits into the reliably industry-friendly Fifth Circuit. When a high school cheerleader sued her school district after it made her cheer for her alleged rapist, the Fifth Circuit ordered the alleged rape victim to pay more than $40,000. When one of the court’s few progressives asked a series of probing questions to a prosecutor during a court hearing, Fifth Circuit Chief Judge Edith Jones yelled at him to “shut up” and asked him if he would like to leave the courtroom. Earlier today, however, the Fifth Circuit left the realm of mere ideology and leaped over the line into partisanship.
Immediately after a DOJ attorney took the podium today in an appeal of a lower court decision upholding a provision of the Affordable Care Act, Republican Judge Jerry Smith threw a tantrum:
[W]hen a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law. . . . Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.
Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”
After argument, the Republican panel then ordered the attorney to produce a three page, single-spaced letter explaining that courts do have the power to strike down federal laws.
Let’s be clear what’s going on here. Yesterday, President Obama made a statement that can plausibly be read either as saying that it would be unprecedented for the Supreme Court to strike down any law enacted by democratically elected officials, or that the Affordable Care Act was both enacted by democratically elected officials and that it would also be unprecedented for the Court to strike it down.
Today, President Obama make it clear that he intended the second meaning, and he went into more detail about just what he believes would be “unprecedented” about striking down his signature law. As the president explained, “[w]e have not seen a court overturn a law that was passed by Congress on an economic issue like health care” during the modern constitutional era. And, lest their be any doubt, President Obama is unquestionably right. The Supreme Court has only struck down two laws as beyond Congress’ power to regulate commerce in the last 75 years, and both of those cases involved laws that were completely non-commercial in nature.
The Republicans on the Fifth Circuit panel heard President Obama’s original statement, however, and they did not hear two plausible meanings. They did not consider the possibility that President Obama might have misspoke. And they did not wait for him to elaborate on his statement today in a way that both clarifies his meaning and removes any suggestion that the president’s views are not 100 percent accurate. Instead, they saw an opportunity to embarrass the president by forcing a fairly junior attorney in the Department of Justice to write a letter that might then be used to embarrass the president politically.
This is not how judges behave. This is how politicians behave. If Judge Smith and his co-ideologues cannot refrain from such purely political tantrums, they should resign their seats and run for office as Republicans.
The Wall Street Journal has a transcript of Judge Smith’s remarks. They are even more overreaching and partisan than previous reports suggest:
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.
Needless to say, the only possible reason why Smith could specifically require that the letter make “specific reference to the president’s statements” is because this Republican judge believes that it will force DOJ to produce a document that will embarrass President Obama.
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Comments
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They are like dogs marking their territory.
Never Vote Republican.
I don't find it "unimaginable" at all that President Obama will be re-elected. What I find hard to imagine is an Eagle going cuckoo enough to think Obama means to make himself emperor if that happens. It was, let us recall, an official of the late unlaemted Bush administration who caused a stir by saying of the U.S., ":we're an empire now"--making Bush an uncrowned you-know-what.
While this court was unwise to intervene in this way since it demeans them, citizens should be outraged that the President is promulgating either his ignorance or his lies, take your choice, in what appears to be a political play.
Lee Nason
New Bedford, Massachusetts
Your response proves the obvious -- that it IS necessary to read a person's comments to properly understand what they are saying.
The word "unprecedented" is used here like 'incontheivable ' was used in the 'Princess Bride.'
It is not even remotely unprecedented for the courts to review the constitutionali ty of laws. That's what they do. Noting that the specific law in question was “passed by democratically- elected officials” is at best redundant, unless there is another law-making source that has slipped my mind (we are speaking of laws, rather than regulations drafted by, agencies, for example).
In Obama's "clarification" (linked to in Millheiser's article), he refers specifically to judicial questions relating to the commerce clause of the constitution and mentions that similar laws have not been struck down since the 1930s (when the court struck down many such laws). "Unprecedented" doesn’t mean it hasn’t happened in a while. It means never.
Obama’s claims that his assassination program, and other policies, are not subject to judicial review are good reason for the judiciary to demand that he observe checks and balances. A more objective accounting of the circumstances and history might have shown whether this court is actually asserting its lawful right to check the other branches or whether they are claiming it as a legitimate-soun ding excuse to achieve partisan ends.
Certainly the courts have the power to strike legislation. But a judge also has an obligation to be respectful and courteous toward the attorneys who appear in his courtroom!
Unfortunately this attorney is caught in the middle of an abusive judges tirade, if he disobeys he can be held in contempt and even jailed! I think its important to see how congress handles this abuse!
Judge Smith would either have to admit that judicial review goes back, not directly to the constitution, but to Justice Marshall's decision in Marbury vs. Madison (as the junior lawyer tried to explain to him.) It is a matter of long-standing precedent, but even it could be reversed, either by a later Supreme Court, or by the other two branches of government, if it became obvious (as it is now becoming obvious) that its political interpretation has become inimical to the constitution and the welfare of the nation.
http://www.bc.edu/dam/files/schools/law/lawreviews/journals/bciclr/26_1/01_FMS.htm
(that needs to be /01_FMS.htm)
I do not recall anyone objecting to Osama bin Laden being assassinated. In fact, when Clinton failed to hit him with cruise missiles, he was derided for missing him.
Obama is not the first President to order assinations - heck Reagan signed an executive order prohibiting government sponsored assignations and then turned right around and tried to assassinate Qaddafi!
I don't agree with ANY assassination. However, to argue that is "acting like an emperor" is no more justified than the right saying the same thing.
The fact of the matter is that the President is the Commander in Chief. From my readings it gives him a substantial amount of power and, seeing what the Bush Admin tried to do, one can move a lot of "iffy programs" into the DoD to avoid review.
This is the way our Constitution is written. Honestly, read more history and you will find past Presidents doing equally ugly things. It's not a pretty picture.
And, yes, the President has powers that are inherent in the office. For example, he has the sole right to authorize use of nuclear weapons. That will change your day! There are many things he can do without accountability (aside from election).
He can negotiate "executive agreements" with countries that are not subject to Senate confirmation. He can meet with heads of state (who knows what they talk about!).
Yes, the President has powers that are not subject to Congressional review (I highly doubt Judicial review, but I may be wrong on that).
This is the sort of thing that oddly enough represents the death nell of the GOP/TP. The American public, the real American public not motivated motivated my paranoia, recognizes when the bounds of Democracy have been over reach. This is the beginning of the pendulum swinging the other way.
The question, though,is this; are judges that act out like this removed anymore? He needs to go back to chasing ambulances.
Ian Millhiser libels the 5th Circuit, which is not evil or corrupt, but has rendered a great array of decisions furthering the Bill of Rights & civil rights, rights of indigents & immigrants [E.G., http://en.wikipedia.org/wiki/Fifth_Circuit_Four & http://www.bsos.umd.edu/gvpt/lpbr/reviews/2009/06/champion-of-civil-rights-judge-john.html & http://www2.americanbar.org/SCFJI/Lists/New%20Case%20Summaries/DispForm.aspx?ID=791 & http://www2.americanbar.org/SCFJI/Lists/New%20Case%20Summaries/DispForm.aspx?ID=787 & http://www2.americanbar.org/SCFJI/Lists/New%20Case%20Summaries/DispForm.aspx?ID=759 ] & has supported “liberal” agendas like regulation of firearms [ http://www.ca5.uscourts.gov/opinions/pub/11/11-30198-CV0.wpd.pdf ]
In the cheerleader case, the court ruled properly that the plaintiff (cheerleader) had filed a frivolous complaint that could not justify the litigation costs it imposed on the defendant. Such a decision is authorized by the federal rules of civil procedure and a proliferation of long-standing judicial precedents. Ian Millhiser misrepresents, egregiously, the 5th Circuits action.
CONTINUED WITH PART 2
Ian Millhiser misrepresents also the matter of whether the 5th Circuit is “industry friendly” (in some nefarious way or because of illicit bias). When the 5th Circuit has rendered decisions for “industry” parties of litigation, the decisions have been well-premised in the evidence and arguments presented and the laws and legal rules that could apply to the cases.
Millhiser misrepresents also the motive & significance of the statute that limited judicial venue to 5th Circuit district courts in cases involving certain “energy projects” occurring in the Gulf of Mexico. Venue rules are matters of fairness & convenience. If a civil complaint alleges that a wrong occurred in or because of oil or gas drilling done in US waters of the Gulf of Mexico adjacent to Alabama, Mississippi, Louisiana, or Texas, 5th Circuit district courts are, presumably, the fair & convenient venues, since those waters & states are within the 5th Circuit.
Millhiser wrote: “Immediately after a DOJ attorney took the podium today in an appeal of a lower court decision upholding a provision of the Affordable Care Act, Republican Judge Jerry Smith threw a tantrum.” Judge Smith did not “throw a tantrum.” He castigated the government properly for the President's egregiously inappropriate comments invading the prerogative of the federal judiciary.
CONTINUED WITH PART 3
Originally, the 5th Circuit included Florida, Georgia, Alabama, Mississippi, Louisiana, and Texas. and, in 1948, the (Panama) Canal Zone was added.
Later, Alabama, Florida, and Georgia were moved to a new 11th Circuit.
I neglected to account for the reassignment of Alabama.
But The 5th Circuit's exemplary civil rights & Bill of Rights record began when the Circuit included Alabama, Florida, and Georgia.
Millhiser wrote: “...[w]e have not seen a court overturn a law that was passed by Congress on an economic issue like health care” during the modern constitutional era. ...President Obama is unquestionably right. The Supreme Court has only struck down two laws as beyond Congress' power to regulate commerce in the last 75 years, and both of those cases involved laws that were completely non-commercial....
More misrepresentation!
A gun-control case involved the perhaps most recent overturning of Commerce Clause REGULATION. United States v. Alfonso Lopez, Jr., 514 U.S. 549 (1995). The decision held that the guns were not “in INTERSTATE commerce” & did not affect such commerce in a substantial way. But the guns were sold & purchased; so, their possession or ownership was an incident of commerce. Therefore, the gun-possession WAS “commercial” or occurred because of commerce.
No Congressional Act, ever before, has resembled Obamacare. None, ever, forced anyone to buy ANYTHING or to engage in any kind of commerce. Precisely BECAUSE no other case EVER has involved an issue like Obamacare's mandate & because the most far-reaching Supreme-Court-u pheld Commerce Clause regulation was vitally, critically distinct from Obamacare, we “have not seen a court overturn a law that was passed by Congress on an economic issue like health care."
CONTINUED WITH PART 4
It is okay to die for your country but living for your country is wrong?
At what point does the state have interest in it's citizens? We spent billions on "the war on terror" to keep people safe, but spending to keep people healthy is off kilter?
I have a brother in law that is about to be evicted. Is the state's mission to keep him safe from being killed in a cardboard box (whilst contracting vaccine resistant TB making him a health threat)?
The issue is whether the individual mandate is beyond Congress's power of REGULATING commerce. The answer is “yes.”
Wickard v. Filburn, 317 U.S. 111 (1942), marked the limit of Commerce Clause power. In Wickard, a WWII-era federal statute sought to protect domestic economy & War-supply by stabilizing wheat markets & wheat prices. The Act limited the wheat-quantity a farmer could grow, for sale or for on-farm consumption. The Act did NOT require anyone to buy wheat or anything else.
The Supreme Court has NEVER upheld CONGRESSIONAL legislation that requires someone to make a purchase. Before passing Obamacare mandate, Congress never required anyone to buy anything — never in the whole history of the U.S. [Cf. Printz v. United States, 521 U.S. 898 (1997), holding unconstitutiona l Congress's mandating that state officials engage in various federal-law-enf orcing affirmative acts that would require expenditure of state revenues.]
When such mandate was considered in the 1990s, Congress's advisor (CBO) warned that very likely such mandate was unconstitutiona l. In 2009, when such mandate was being reconsidered, the CRS cautioned that "[d]espite the breadth of powers that have been exercised under the Commerce Clause," likely Congress would not have a "constitutional foundation for legislation containing a requirement to have health insurance."
CONTINUED WITH PART 5
Judge Smith's concern was righteous & proper.
Obama asserted that if the federal judiciary holds Obamacare's mandate unconstitutiona l, the federal judiciary will have invaded the province of Congress & the President & will have been guilty of the great sin of “judicial activism” (which Obama uses to denote “legislating from the bench”).
But the legal truth is: If the federal judiciary holds Obamacare's mandate unconstitutiona l, the federal judiciary will be doing exactly one of the most important jobs the constitution REQUIRES the federal judiciary to do.
Obama's veiled threat was an attempt of extorting the judiciary not to do its job but, instead, serve the unconstitutiona l interest of Obama.
Millhiser wrote: “...the only possible reason why Smith could specifically require that the letter make "specific reference to the president's statements" is because this Republican judge believes that it will force DOJ to produce a document that will embarrass President Obama.”
Obama deserves and needs to be embarrassed. He has transgressed gravely — to try to save his patently unconstitutiona l “signature” achievement.
CONTINUED WITH PART 6
Actually, what he was doing was using a phrase that the Conservatives use over and over and throwing it back at them. I thought it was amusing.
Millhiser wrote: “The...Fifth Circuit [Republicans] heard...Obama's ...statement... . ...[but] did not consider...that ...Obama might have misspoke [sic].”
If Obama “misspoke,” either he did intentionally & deserves worse than embarrassment, or he cannot expect “benefit of doubt” because being PRESIDENT, his job is NOT TO MISSPEAK & so his constituents can hold him accountable for exactly what he says.
Risibly, Obama's is acting like a protester chanting on the Supreme Court's steps — as if such displays influence the NONPOLITICAL (& most professional) branch of government.
Equally ludicrous are these tripe-filled, dissembling, yellow-journali sm, Obamacare-pande ring articles of Millhiser, Jack Balkin [http://readers upportednews.or g/opinion2/272- 39/10622-the-sm all-chance-the- supreme-court-w ill-overturn-th e-healthcare-ac t], Robert Parry [http://readers upportednews.or g/opinion2/272- 39/10670-gop-ju stices-clown-ov er-health-care] , Robert Scheer [http://readers upportednews.or g/off-site-opin ion-section/61- 61/10701-five-h ypocrites-and-o ne-bad-plan], Paul Krugman [http://readers upportednews.or g/off-site-opin ion-section/61- 61/10710-focus- broccoli-and-ba d-faith], David Dow [http://readers upportednews.or g/opinion2/300- 196/10790-impea ching-the-supre me-court-justic es], and Matthew DeLuca [http://readers upportednews.or g/opinion2/300- 196/10807-focus -scalia-foxs-ma n-in-washington ].
Use, instead, these:
Jack Balkin
http://readersupportednews.org/opinion2/272-39/10622-the-small-chance-the-supreme-court-will-overturn-the-healthcare-act
Robert Parry
http://www.readersupportednews.org/opinion2/272-39/10670-gop-justices-clown-over-health-care
Robert Scheer
http://www.readersupportednews.org/off-site-opinion-section/61-61/10701-five-hypocrites-and-one-bad-plan
Paul Krugman
http://www.readersupportednews.org/off-site-opinion-section/61-61/10710-focus-broccoli-and-bad-faith
David Dow
http://www.readersupportednews.org/opinion2/300-196/10790-impeaching-the-supreme-court-justices
Matthew DeLuca
http://www.readersupportednews.org/opinion2/300-196/10807-focus-scalia-foxs-man-in-washington
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