A community of 30,000 US Transcriptionist serving Medical Transcription Industry

5th Circuit vs DOJ


Posted: Apr 4, 2012

Submit a 3-page single-spaced letter by noon Thursday?  Did the 5th Circuit just give the DOJ a homework assignment?  Surprised Really?  Well, no one can say that the government (and judges) isn't entertaining at times. 

 

http://www.cbsnews.com/8301-504564_162-57408827-504564/appeals-court-fires-back-at-obamas-comments-on-health-care-case/

Appeals court fires back at Obama's comments on health care case

(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."

;

5th Circuit - Judge Smith - Glad to see he won't be bullied - sm

[ In Reply To ..]
Good for Judge Smith. Maybe if there were more like him, we would have less of those trying to circumvent the Constitution.

I am truly amazed that our president - Trigger Happy

[ In Reply To ..]
would even question the supreme court like this. For someone who taught classes at law school, he must need a refresher course himself on the powers of the supreme court. Not sure whether he is just so arrogant that he cannot believe the supreme court would question Obamacare or whether this is a threat to the supreme court.

I think the district court judge was out of line and. sm - VTMT

[ In Reply To ..]
this is all much ado about nothing. The president was not "bullying" anyone. He was just remaining positive and stating that his "expectations" were that the SCOTUS would uphold the constitutionality of the "The Patient Protection and Affordable Care Act (PPACA)". The judge gave himself away when he used the word "ObamaCare". He stuck his nose in where it didn't belong, partisan politics.

Moving from the absurd to the sublime - McConnell weighs in on fake controversy

[ In Reply To ..]
You assessment is sensible and spot on. This looks like desperation on their part to distract by any means necessary from GOP plans to gut Medicare, over-ride the HCR law and ignore the health care crisis all together.

http://www.miamiherald.com/2012/04/05/2733373/sen-mcconnell-i-would-suggest.html

Obama already gutted Medicare to the - tune of 575-billions along w/Dems

[ In Reply To ..]
Causes a health care crisis all by itself, but no mention of that.
Cutbacks vs vouchers and privatization. - No comparison.
[ In Reply To ..]
Cutbacks are not synonymous with gutting. GOP would make you're-on-your-own boostrap mentality a health care reality for seniors nationwide. To pretend Medicare spending cuts created the health care crisis, as if private insurers played no part and the crisis was not already firmly in place when Obama took office, is utterly ridiculous.

Now, please articulate GOP health care policy. Don't be shy. They can't keep it a secret indefinitely, especially if they plan to make it a campaign issue. What say you?

Obama out of line - If comments were so correct

[ In Reply To ..]
why has Obama spent all week trying to "explain what he meant". Seems the only one confused here is Obama. Seems the only one that is playing the partisan politics is Obama. Sticks his nose where it doesn't belong. He should try actually governig for a change and get out of the bully pulpit for a nannosecond. Only thing Obama knows is insulting, trying to intimidate, bully and display arrogance to anyone that will not bow to him. Glad to see there are judges with some cajones that won't put up with the Obama brand of bullying and intimidation.

He hasnt. No need to explain what he said - or what he meant

[ In Reply To ..]
Putting out the fires of fake controversy does not rise to the level of "explanation." Mundane efforts to spin disbelief that the SC would make the unprecedented move to reverse signature legislation into a bully tactic aimed at dismissing the ultimate authority of the SC speak for themselves.

I would add that if the GOP can bring the issue of judicial activism into the national dialog every time the courts make a decision they don't agree with, then that same subject is fair game for all other parties. The transparently partisan 5-4, 5-4, 5-4 nature of this SCs voting patterns and calling for judicial objectivity is a perfectly legitimate concern for all Americans, regardless of party affiliation. That's the problem with GOP spin campaigns. Once they are unleased, the GOP has no control over what direction they take or where they end up. Backfires are an occupational hazard.
Obama's explanation - goldie
[ In Reply To ..]

I disagree.  The president most certainly has to explain what he says and means to the American people.  He's our president and not our king.  It's not a partisan issue to demand explanations of our elected officials.  They are professional politicans and have been trained to chose their words very carefully.  We have a right and a duty to challenge and question what is meant by those words, spoken by a Democrat president or a Republican president. 


Personally, I don't think the uproar was so much about his comments (which were fact-checked as not so true) as it was the timing, in that the case is still pending.  I would have expected him to defend his signature legislation, but I would want him to do it after the rulinig and not while the case is pending. 


 


The sometimes conservative and sometimes liberal Charles Krauthammer made some interesting points in his column yesterday:


http://www.washingtonpost.com/opinions/charles-krauthammer-obama-v-scotus/2012/04/05/gIQAZ41txS_story.html


“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.”


— Barack Obama, on the constitutional challenge to his health-care law, April 2


“Unprecedented”? Judicial review has been the centerpiece of the American constitutional system since Marbury v. Madison in 1803. “Strong majority”? The House has 435 members. In March 2010, Democrats held a 75-seat majority. Obamacare passed by seven votes.


In his next-day walk back, the president implied that he was merely talking about the normal “restraint and deference” the courts owe the legislative branch. This concern would be touching if it weren’t coming from the leader of a party so deeply devoted to the ultimate judicial usurpation — Roe v. Wade, which struck down the abortion laws of 46 states — that fealty to it is the party’s litmus test for service on the Supreme Court.


With Obamacare remaking one-sixth of the economy, it would be unusual for the Supreme Court to overturn legislation so broad and sweeping. On the other hand, it is far more unusual to pass such a fundamentally transformative law on such a narrow, partisan basis.


Obamacare passed the Congress without a single vote from the opposition party — in contradistinction to Social Security, the Civil Rights Act, the Voting Rights Act, Medicare and Medicaid, similarly grand legislation, all of which enjoyed substantial bipartisan support. In the Senate, moreover, Obamacare squeaked by through a parliamentary maneuver called reconciliation that was never intended for anything so sweeping. The fundamental deviation from custom and practice is not the legal challenge to Obamacare but the very manner of its enactment.


The president’s preemptive attack on the court was in direct reaction to Obamacare’s three days of oral argument. It was a shock. After years of contemptuously dismissing the very idea of a legal challenge, Democrats suddenly realized there actually is a serious constitutional argument to be made against Obamacare — and they are losing it.


Here were highly sophisticated conservative thinkers — lawyers and justices — making the case for limited government, and liberals weren’t even prepared for the obvious constitutional question: If Congress can force the individual into a private contract by authority of the commerce clause, what can it not force the individual to do? Without a limiting principle, the central premise of our constitutional system — a government of enumerated powers — evaporates. What, then, is the limiting principle?


Liberals were quick to blame the administration’s bumbling solicitor general, Donald Verrilli, for blowing the answer. But Clarence Darrow couldn’t have given it. There is none.


Justice Stephen Breyer tried to rescue the hapless Verrilli by suggesting that by virtue of being born, one enters into the “market for health care.” To which plaintiffs’ lawyer Michael Carvin devastatingly replied: If birth means entering the market, Congress is omnipotent, authorized by the commerce clause to regulate “every human activity from cradle to grave.”


Q.E.D.


Having lost the argument, what to do? Bully. The New York Times loftily warned the Supreme Court that it would forfeit its legitimacy if it ruled against Obamacare because with the “five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics.”


Really? The administration’s case for the constitutionality of Obamacare was so thoroughly demolished in oral argument that one liberal observer called it “a train wreck.” It is perfectly natural, therefore, that a majority of the court should side with the argument that had so clearly prevailed on its merits. That’s not partisanship. That’s logic. Partisanship is four Democrat-appointed justices giving lock-step support to a law passed by a Democratic Congress and a Democratic president — after the case for its constitutionality had been reduced to rubble.


Democrats are reeling. Obama was so taken aback, he hasn’t even drawn up contingency plans should his cherished reform be struck down. Liberals still cannot grasp what’s happened — the mild revival of constitutionalism in a country they’ve grown so used to ordering about regardless. When asked about Obamacare’s constitutionality, Nancy Pelosi famously replied: “Are you serious?” She was genuinely puzzled.


As was Rep. Phil Hare (D-Ill.). As Michael Barone notes, when Hare was similarly challenged at a 2010 town hall, he replied: “I don’t worry about the Constitution.” Hare is now retired, having been shortly thereafter defeated for reelection by the more constitutionally attuned owner of an East Moline pizza shop.







Obama's explanation - Conservative
[ In Reply To ..]
A lot of Obama's comments were factually incorrect, which has been pointed out by his former students, Factcheck, and constitutional scholars. The only ones that seem to think that Obama knows what he is talking about is Obama and Carney...LOL. Watching Carney yesterday was painful; Carney was spinning so hard, his glasses flew off!
I agree, and I understood the president the first time. nm - Yes to "ObamaCare".
[ In Reply To ..]
.

Where? Texas? - hahahaha! nm

[ In Reply To ..]
.

I want to know who died and left Obozo the king? n/m - n/m

[ In Reply To ..]
n/m

Similar Messages:


DOMA Unconstitutional Says Second Circuit. SmOct 18, 2012
Next it will go to the Supreme Court. ...

4th Circuit Federal Appeals Upholds ACA SubsidiesJul 22, 2014
...

5th Circuit Court Of Appeals Rules TX VoterAug 05, 2015
The law, which was originally passed in 2011, requires voters to show a photo ID before voting — such as a driver’s license or a concealed handgun license. For Texas voters, there are fewer options than in other states. ...