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| Appeals court fires back at Obama's comments on health care case | ||
| 2012-04-04 | ||
| 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 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, 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." I've reached out to the White House for comment, and will update when we have more information.
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| Posted by:Beavis |
| #35 Waiting for this scenario: Since ( according to Bambi's internal logic) the confirmation of a SC Justice requires 2/3 of teh Senate, then he should be able to 'unconfirm' with that same 2/3 vote...... assuming the SC does toss the entire bill, will Bambi's next budget include $$ to keep the many ( now defunct) offices operating? i bet it does. |
| Posted by: USN, Ret. 2012-04-04 23:49 |
| #34 All great comments here. Pharaoh, His Czars and the "New Castrati" would not be amused. Pharaoh he be sayin', "So Let It be Written, So Let It be Done." "Tough Toenails", Ace. |
| Posted by: canalzone 2012-04-04 20:49 |
| #33 Sounds like Bama was an Affirmative Action Constitutional Scholar as well. When I went to junior-high school it was taught in basic civics the role of the three branches of government. The legislative write laws, the Executive executes them and the judicial reviews them. Now it seems the legislative grandstands. The [Chief] executive writes (Czars), executes, and reviews them (by choosing not to obey them - immigration for exmaple). While the Judicial should remain 'unpolitical' some things simply cannot be ignored. You do not ignore the knife at your neck. |
| Posted by: CrazyFool 2012-04-04 17:20 |
| #32 They either artificially lower the cost so that everyone can have the new and expensive treatment, or they prevent the new treatment from ever becoming available. The first scenario is our current situation. Obamacare is the second. It's easy to make the case the federal intervention in health care costs has greatly increased the cost of US health care. The cost paid by some beneficiaries (out of their own pockets, that is) may have been decreased, but other malficiaries have to make up for it. A "malficiary" is someone who has to pay extra in one way or another for a benefit provided to a beneficiary who does not pay the actual cost. Malficiaries include those currently paying inflated commodity prices, and those who will suffer the inevitable long term consequences of public debts, among other victims. "Malficiary" does sound a bit better than "bag holder." |
| Posted by: Anguper Hupomosing9418 2012-04-04 17:01 |
| #31 The'no one can be turned away from an emergency room' mandate basically shut all emergency rooms except those operated by the government Before EMTALA was enacted in 1986, virtually all hospital were already dependent on Medicare funds to remain functioning. EMTALA just tightened the screws by forcing an unfunded mandate on these hospitals. Some children are even eligible for Medicare, so most if not all children's hospitals are obliged to follow EMTALA. See this review article: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1305897/ |
| Posted by: Anguper Hupomosing9418 2012-04-04 16:54 |
| #30 Even the MSM is getting in on the brawl. Just heard (16:35 4 April 2012) radio reporter Anne Compton say that courts striking down a federal law is "something the courts have been doing for 200 years". |
| Posted by: Anguper Hupomosing9418 2012-04-04 16:35 |
| #29 Background on Lockner v. New York. |
| Posted by: Pappy 2012-04-04 16:29 |
| #28 This seems to be as good a thread as any to point this out (can't let the best Snark O' The Month™ fade away unnoticed). From James Taranto's WSJ column: "It's not exactly that this is false; there are ways in which Obama's career reflects American exceptionalism. Perhaps one could even argue that his tendency toward self-aggrandizement reflects an extreme form of American individualism. But really, doesn't he have an aide who can tell him that the symbol of America is not the bald ego?" [my bold added :-D ] |
| Posted by: Barbara 2012-04-04 16:11 |
| #27 Finally (a bit off-topic): this putz has even managed to damage US relations with Canada. CANADA. I mean, just how much of an awful, miserable, bumbling cretin do you have to be, to piss off Canada? |
| Posted by: RandomJD 2012-04-04 15:47 |
| #26 Just read Taranto's WSJ op-ed. Wow. BHO goes full retard, yesterday: "Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner, right? So we're going back to the '30s, pre-New Deal." I am no constitutional lawyer or even much of a Court watcher - and even I can think of two landmark cases in which the Supreme Court rolled back Commerce Clause power grabs, post-New Deal. (1) Truman's attempted nationalization of the steel industry during the Korean War (Youngstown Sheet & Tube v. Sawyer, 1952). (2) Reversal of the "gun-free school zones" law that prohibited possession of a gun within 1000 yards of a school, having no Constitutional basis except the Commerce clause (U.S. v. Lopez, 1995). Let no one forget HOW the Supreme Court was convinced to uphold the New Deal: FDR's court-packing plan. "Do what I want, or I will appoint six more justices who will." I have been waiting for BHO to make the same threat, but by now I am confident he was asleep in class that day. |
| Posted by: RandomJD 2012-04-04 15:38 |
| #25 I read a comment somewhere last week that said that Obama will get a leak and if he attacks the Supreme Court we'll know things aren't going his way. Wish I knew where I read that because they appear to be spot on. |
| Posted by: rjschwarz 2012-04-04 15:14 |
| #24 #8: NS, that is some serious legal geek Kung-Fu. Nice. There are many excellent arguments against the legitimacy of Marbury v. Madison, of which many points have been made here. But they are almost always made by Federalist Society types. So it's entertaining to see a rube like B.O. ham-fist it like the tin-pot pseudo-dictator he is, when he could have been paying attention in class, and actually learned how to be persuasive. Con Law professor, my ass. Excuse me for stating it so indelicately, but a sub-par affirmative action hire was given a bullhorn so whitey wouldn't feel guilty anymore. |
| Posted by: RandomJD 2012-04-04 14:56 |
| #23 In other words, the President just declared that the Judicial Branch can not test the Constitutionality of laws passed by Congress. He refuses to disclose the grades he made while studying constitutional law which are rumored to be not so good. Which of course makes him a perfect professor of constitutional law in the eyes of the liberal universities. |
| Posted by: Waldemar Greresing3136 2012-04-04 13:39 |
| #22 The case the 5th Circuit of Appeals is hearing is an Obama Care case. The (Executive Branch) President (the defendant) publicly declared Congress (Legislative Brancch) was superior to the Judicial branch hearing Obama Care Cases. This can't be ignored. |
| Posted by: Waldemar Greresing3136 2012-04-04 12:53 |
| #21 the 5th circuit has acted inappropriately and stupidly I believe what Garth was alluding to had something to do with how the 'Chosen®' described the police interaction with one Perfesser Gates. |
| Posted by: Mullah Richard 2012-04-04 12:27 |
| #20 I disagree Lord Garth: the Checks and Balances built into the Constitution REQUIRE that EACH branch of the US Government actively fight for their powers. Problems occur when one branch cows the others into NOT fighting for their powers and not using their powers as a check. It's this RINO "It's not tasteful" delicati attitude that lets the Left get away with far more than they would if a firm and vigorous ATTACK was mounted. Obama's incompetence as a lawyer is showing: his complaint about Judicial review could have been spun into "If you're going to talk about Constitutionality, well there is nothing in the Constitution stating that the Supreme Court has the power of Judicial Review and the power to strike down unconstitutional laws!" |
| Posted by: Ptah 2012-04-04 12:25 |
| #19 Does his reasoning mean we don't have to obey his 38 unelected "czars"??? |
| Posted by: Yosemite Sam 2012-04-04 12:13 |
| #18 Procopius, The code of conduct for federal judges requires judges to distance themselves from political activity. Although the panel's action was not per se political, because of the political situation regarding obamacare, it comes too close for comfort. If they had waited and made a presentation at a conference or something and simply used Obama's comment to give a lesson on constitutional law, it would be proper. |
| Posted by: Lord Garth 2012-04-04 12:04 |
| #17 Mandating free bennies.. The 'no one can be turned away from an emergency room' mandate basically shut all emergency rooms except those operated by the government directly or through their university/college systems on a loss with the deficit carried by the taxpayers anyway. Now we have private 'urgent care' clinics that provide similar services and screen to pass on more serious cases but are not subject to the mandate. |
| Posted by: Procopius2k 2012-04-04 11:48 |
| #16 After a while the price comes way down and nearly everyone can afford it. Think Lasik. Iblis a great example mainly because those that have Lasik have 'skin in the game'. Mandating free bennies will not bend the cost curve down. |
| Posted by: Beavis 2012-04-04 10:48 |
| #15 Cost is actually a very good way to ration treatment. When new treatments become available they are very expensive. After a while the price comes way down and nearly everyone can afford it. Think Lasik. When the government intervenes they just screw it all up. They either artificially lower the cost so that everyone can have the new and expensive treatment, or they prevent the new treatment from ever becoming available. The first scenario is our current situation. Obamacare is the second. |
| Posted by: Iblis 2012-04-04 10:29 |
| #14 There will be riots in the streets if a team wins the NBA finals or Super Bowl. Yawn. |
| Posted by: Rjschwarz 2012-04-04 10:01 |
| #13 There will be riots in the street if Obama is not elected, or the Obamacare law is unconstitutional. Romny will spend his first year fighting domestic terrorism directed by community organizers. It will be safe in the fly over zone. |
| Posted by: bman 2012-04-04 09:51 |
| #12 Intimidating a Federal Judge while hearing a case is a felony. |
| Posted by: Ulerens Prince of the Hemps4603 2012-04-04 08:50 |
| #11 Not really garth. They're asking 'why the hell are we here' if the Executive has decreed that the Judiciary does not have the power of Constitutional review. It is an Appeals Court reviewing questions that are predicated upon points to be decided or have been decided upon fundamental Constitutional issues. |
| Posted by: Procopius2k 2012-04-04 08:31 |
| #10 And don't forget to spell check it! |
| Posted by: Spot 2012-04-04 08:03 |
| #9 while the Obama intimidation of the court was despicable, the 3 judge panel of the 5th circuit has acted inappropriately and stupidly. |
| Posted by: lord garth 2012-04-04 07:41 |
| #8 There was no SCOTUS till 1789, it did not render a decision till 1791 and John Jay was a member of the NY bar. |
| Posted by: Nimble Spemble 2012-04-04 07:25 |
| #7 Marbury? For 20 years after 1776, 100% of SCOTUS appointees were non-lawyers. When bar associations took control of the process, they concocted "judicial review" powers in order to devise a means to confer private benefit on one of their own: Marbury was a judicial officer. The manipulation went like this: where a constitutional right was declared, remedy must follow in spite of a lack of either prescribed judicial power or enabling statute. Thus, lawyer-judges get tenure. Sounds good? Flash forward to 1857 when Dredd Scot pleaded a right to constitutional liberty. Remediable? SCOTUS preserved slavery by proclaiming that Scot, like other Negros, was an "inferior sort of being," and void of remedy for wrongs. About 800,000 bodies later, Congress undid that Seditious act of pseudo governance. |
| Posted by: Black Charlie Mussolini6055 2012-04-04 03:24 |
| #6 A Kaiser Foundation report found that both Obamacare and draft GOP replacement plans, are unsustainable. Costs MUST be lowered. I had a Colonoscope process last Friday, and I can tell you this: these can be done by nurses, with an MD intervention only where specified issues - colon tear - arise. FYI: while I was under sedation, I watched the entire 25 minute scope on CCTV. The doctor operated the probe machine, while a nurse manipulated parallel spot cleaning. Two "polyps" (live, but largely bloodless growths) were removed in seconds by means of a lasso like device that burns off tissue. The nurse bags these for biopsy. Note - cancerous tissue will retain blood; benign polyps are white. Should a nurse detect Cancer, it would be up to an MD to determine "node" presence (say: 10 of the 22 nodes). Scope MDs earn up to $300,000 per year, with the hospitals billing $3-4000 for the 2 bowel process. And Specialists work only the early afternoon, because the last (4 hour) stage of the nasty "purgation" (bowel cleansing) process, is prescribed to commence from 6AM. If you are over 50, most providers will pay for a scope every 5 years. And one study found that 80% of the public learn they have Colon Cancer only after they are dropped at Emergency. Maintaining the status quo is dangerous to public health and is piecemeal of dysfunctional costing. The AMA loves to maintain easy to enter "Specialist" training. But how many hours does it take to learn operation (theory, prior to practical training) of Scope devices? Four. Detecting Crohn's Disease and other complications isn't rocket science. There are dozens of areas where healthcare can be improved while costs are slashed. There is no choice but to rationalize healthcare. |
| Posted by: Black Charlie Mussolini6055 2012-04-04 03:03 |
| #5 It's funny how Obama is criticizing legislating from the bench, as it has been a favorite tactic of the Left for so many years. |
| Posted by: gromky 2012-04-04 02:48 |
| #4 I agree USN, Ret. His timing gave him away. |
| Posted by: Besoeker 2012-04-04 01:19 |
| #3 more I read and think bout it, more I'm sure one of his stoolies whispered something to him. If,n I was one of the SCOTUS justices that was wavering, Bambi's challenge would easily tilt me over to the side of 'unconstitutional'. What's he gonna do then??? stomp his tiny feet, blame 'da Man? |
| Posted by: USN, Ret. 2012-04-04 01:16 |
| #2 Mr. Obama's comments yesterday about judges being an "unelected group of people." Which is quite nearly as heinous as illegally elected! |
| Posted by: Besoeker 2012-04-04 01:07 |
| #1 Yeah, let's hear the former constitution law scholar debate the limits of Marbury v Madison. No teleprompter, either... He would lose. |
| Posted by: DarthVader 2012-04-04 01:00 |