Fifth Circuit Court digs hole deeper.

[SirNitram]

First there was the clear image of a pro-industry court. Then there was a 40,000 pricetag shoved on a raped cheerleader instead of justice. And of course, yelling 'Shut Up!' at people who voice questions you don't like. All courts are somewhat idealogical. But then there's this.. Link

(CBS News) In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would 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."

Overturning a law of course would not be unprecedented -- since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise -- despite the president's remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when 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.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, suggesting it wasn't clear 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."

I've reached out to the White House for comment, and will update when we have more information.

UPDATE 6 p.m. ET: The White House is declining to comment on the 5th Circuit's order, but the president today did clarify his comments that it would be "unprecedented" for the Court to overturn laws passed by a democratically elected Congress. During a question-and-answer session after a luncheon speech in Washington, a journalist pointed out "that is exactly what the Court has done during its entire existence."

Mr. Obama suggested he meant that it would be "unprecedented" in the modern era for the Court to rule the law exceeded Congress' power to regulate an economic issue like health care.

"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," Mr. Obama said.

"Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there. I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has," he said.

And now DOJ gets to write three single-spaced pages expounding on that. Due at high noon on Thursday.

UPDATE 6:55 p.m. ET: Audio from the 5th Circuit hearing, with Judge Smith's order to DOJ, is available here.

In the hearing, Judge Smith says the president's comments suggesting courts lack power to set aside federal laws "have troubled a number of people" and that the suggestion "is not a small matter."

The bottom line from Smith: A three-page letter with specifics. He asked DOJ to discuss "judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation."

"I would like to have from you by noon on Thursday -- that's about 48 hours from now -- 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," Smith said. "What is the authority is of the federal courts in this regard in terms of judicial review?"

Smith made his intentions clear minutes after the DOJ attorney began her argument, jumping in to ask: "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 replies yes, and Smith continues: "I'm referring to statements by the president in past few days to the effect, and sure you've heard about them, that it is somehow inappropriate for what he termed 'unelected' judges to strike acts of Congress that have enjoyed -- he was referring to, of course, Obamacare -- to what he termed broad consensus in majorities in both houses of Congress."

In asking for the letter, Smith said: "I want to be sure 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."

Anyone who listened to or read the remarks knows Obama said no such thing, but in the partisan eyes of the Fifth Circuit Court, it's an outrage. This is why polls show less faith in the court to put aside political views. This sort of nonsense.

[Block]

Frankly, judicial review was just a blatant powergrab by Chief Justice Marshall, and considering that there's no provision for it in the Constitution, which this conservative Supreme Court thinks they hold to so well, maybe they should give that power up.

[TimothyC]

Anyone who listened to or read the remarks knows Obama said no such thing, but in the partisan eyes of the Fifth Circuit Court, it's an outrage. This is why polls show less faith in the court to put aside political views. This sort of nonsense.

Oh Martin, President Obama did in fact say

I’m 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,

I would find it sad that any professor of constitutional law - no matter what the party affiliation - would make such a statement in a post Lopez world.

[Thanas]

First there was the clear image of a pro-industry court. Then there was a 40,000 pricetag shoved on a raped cheerleader instead of justice. And of course, yelling 'Shut Up!' at people who voice questions you don't like.

What were those cases?



Oh and while the judges may be jerks that does not excuse the fact that Obama has engaged in blatant power grabs towards the executive, far worse than any republican before him.

[Mr Bean]

"Strong majority". Fact check: it passed 219–212 in the House and 60-39 in the Senate; it was just a handful of votes from failing to pass.

Also it begs the question if simply passing by lot lets you pass any legislation. Preventing tyranny of the majority is one of the bigger reasons for the Constitution. I don't think if we vote to re-instate Prohibition that argument would fly to pick a random example.

[HMS Conqueror]

Obama seemed to say that the courts did not, and by implication could not or should not, overturn unconstitutional laws. This is not true, and very close to an assault on the separation of powers. The court's response was not unreasonable.

Also it begs the question if simply passing by lot lets you pass any legislation.

You can: you need a 2/3 majority in both houses, in order to amend the constitution. The healthcare law didn't get anything like that, though.

I don't think if we vote to re-instate Prohibition that argument would fly to pick a random example.

That required a constitutional amendment. Although for some reason banning crack cocaine and morphine does not.

[Alyrium Denryle]

When he clarified his 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," Mr. Obama said.

"Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there. I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has," he said.

Now, I am not one to defend Obama generally, but he is correct. The Supreme Court has traditionally deferred to congress with respect to the ability of said congress to use the Interstate Commerce Clause and the Necessary and Proper Clause to regulate the economy. The list of precedent for the broad latitude of congress in this regard goes back a long way and it would be very strange for the supreme court to rock the boat in this regard.

[HMS Conqueror]

The Supreme Court has latterly adopted a loose interpretation of those clauses. But I don't believe the court has ever justified this on the basis of the 'democratic will' rather than the belief that their interpretation of the constitution is strictly correct.

[Akhlut]

I don't think if we vote to re-instate Prohibition that argument would fly to pick a random example.

That required a constitutional amendment. Although for some reason banning crack cocaine and morphine does not.

Theoretically, the legislature could ban alcohol again, if it could get the votes.

Anyway, Prohibition in the US had a long, complex history that was strongly associated with the suffrage movement and anti-immigrant sentiment, which both helped push Prohibition from a mere law to full Constitutional Amendment.

[Alyrium Denryle]

The Supreme Court has latterly adopted a loose interpretation of those clauses. But I don't believe the court has ever justified this on the basis of the 'democratic will' rather than the belief that their interpretation of the constitution is strictly correct.

It has not. However the "democratic will" is very common rhetoric in our executive and legislative branches of government and usually the judiciary just sort of rolls its collective eyes.

[CaptainChewbacca]

I think Obama was overreaching with what he said, and its going to bite him in the ass. This isn't the first time he's antagonized the Supreme Court, and they may decide to remind everyone they DO have the power to tell congress and the presidency they can't always do what they want because there's a third equal branch to our government.

[Simon_Jester]

I don't think I care for anyone who thinks that lesson is important enough to screw over millions of people in need of health care on a budget that won't reduce them to debt peonage...

[SirNitram]

I think Obama was overreaching with what he said, and its going to bite him in the ass. This isn't the first time he's antagonized the Supreme Court, and they may decide to remind everyone they DO have the power to tell congress and the presidency they can't always do what they want because there's a third equal branch to our government.

I'm sorry, it's very hard to take Obama's actions as antagonizing after the crazy people(Tom Delay, Sovieregn Citizens) who've opened spoke of violence to the courts). It's a disconnect.

Anyway, this was political posturing to match political posturing. Same with Obama's posturing playing off of the absurd partisanship shown by Scalia.

[Alyrium Denryle]

I don't think I care for anyone who thinks that lesson is important enough to screw over millions of people in need of health care on a budget that won't reduce them to debt peonage...

Indeed. I would prefer serfdom. That way when my corporofeudal overlords want to perform a hostile takeover, I can get off work for 40 days, take up my glaive(made in india), put on my bike-helmet (made in china), and go invade the Castle Sachs. I would get to quote shakespeare, and spit the babes of my social superiors upon pikes. Peonage does not come with that caliber of fringe benefit.

[Vaporous]

Of all the incredibly retarded or horrible things Obama has done, this isn't very high up on the list. All the bleating I've heard the past few days about "dirty Chicago politics" and "threatening the judiciary" sounds like an attempt to make "idiocy" into "intimidation". If word leaked out that the president planned to actually attack the institution of the court somehow if he didn't get a ruling he liked (ie. Roosevelt's court packing scheme), then yeah I'd be waving my torch and pitchfork along with everyone else. But he didn't.

On another track, everyone keeps saying "unprecedented" to describe things which very obviously have precedents. "The courts would be taking unprecedented action..." "For a president to say something like this about the court has no precedent..." It really does not mean what they think it means.

[Sea Skimmer]

You can: you need a 2/3 majority in both houses, in order to amend the constitution. The healthcare law didn't get anything like that, though.

More then that. You need two thirds majority in congress and 75% of states must ratify the amendment afterwards. The states may do so by special conventions, which was only done once, or by votes in the regular state legislatures. This means just 13 US states, regardless of population, can block any amendment by refusing to approve it. Most but not all amendments which passed historically also had time limits written into them in which the states had to approve them, or else the amendment became a dead duck. Usually this is seven years.

The other way to do an amendment is the states can jointly hold a convention, which must also vote approval by two thirds majority, and then the amendment must be ratified by 75% of states anyway, but this method has never been used and almost certainly never will be barring the atomic incineration of the federal congress.

That required a constitutional amendment. Although for some reason banning crack cocaine and morphine does not.

IIRC in theory that’s because they aren’t actually blanket illegal the way alcohol was, you just need a federal tax stamp to possess them, and the federal government just never bothered to print the tax stamp for private citizens… ever. IIRC this became an issue when various stamp collectors tried to get the marijuana stamps in cancelled form for collections, but it turned out they just never existed. Its all bullshit, but law tends to be that way. Though I'd also add, that I think its really open to question that the US government actually needed a constitutional amendment to ban alcohol in the first place. It has a power to provide for the common welfare, and it wasn't a question that liquor was a big social and criminal problem. Prohibition ran into big trouble and massive opposition because many people thought it was only going to ban liquor and not wine and beer when it passed. Almost all US states already had prohibition of liquor before it passed at the federal level. A decent number kept up the ban for in some cases decades after it was repealed federally. IIRC Mississippi didn't repeal its ban until the 1960s.

[Anguirus]

Frankly I expect a little bit of good honest bullshitting by a sitting president in response to a threat to his perceived masterwork. He wasn't writing a legal brief. And for all the unfair nitpicking of George W. Bush's word salads, it was never over-interpreted the way this was (personally I thought he was mentally impaired for awhile because he invaded the wrong country, not cause of flubs).

Anyway, the president is not a judge, much less an appellate court judge (much less a Supreme Court justice!).

The moral authority of the judicial branch comes crashing down when they behave like a bunch of petty partisan tyrants. God help me I was surprised when the Court Republicans started word-for-word quoting Tea Party dogma. I thought the worst we'd get was Thomas' conflict of interest and Scalia's usual shameful antics. And I've never fucking heard of a court acting like this Fifth Circuit (granted I haven't been trying too hard). I know judges are only human but right now I feel like I can toss a courthouse farther than I'd trust it to make a law-based ruling on any highly partisan issue.

What do they have left after moral authority again? They have been shunting all of the power in the system towards the president for quite some time.

It really does not mean what they think it means.

Nice!