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

[TupperHappy]

Source: CBS News

(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.



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

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Ummmm... OK?

[LaydeeBug]

1. This looks punitive. nt

[tularetom]

2. The Court of Appeals is not the boss of Obama

He can say anything he wants about what the court has and hasn't the right to do.

Separation of powers y'know.

Fuck those black robed douchebags.

[marsis]

5. Make that

black robed activist douchebags.

[Iliyah]

7. Can we say 1st Amendment.

[Politicalboi]

3. Well we never had

Bush v Gore or Citizens United before either. Both unconstitutional to me. Where were these assholes then?

[Bjorn Against]

4. Can the courts order a President to state their opinion on a case?

I am not a lawyer, but this appears to be a major judicial overreach. The President makes a statement outside of court that the court disagrees with and they demand he explain himself under penalty of law. Can the courts do this to anyone who makes a statement they disagree with? I am no lawyer but it appears this court is overstepping its authority.

[elleng]

10. Its possible a court could seek Administration's position,

on a certain issue, if the issue is important and relevant in an already existing 'case or controversy.' It would likely be done in a rather formal manner.

[onenote]

14. The administration is appearing in the case through DOJ

so I don't think asking the administration's lawyers to address the administrations views on questions of law is overstepping their authority. It is, however, tacky, unnecessary, and childish.

[zipplewrath]

20. Exactly

It's pretty tacky for the courts to request this from the DOJ. I mean, do they really care?

[treestar]

21. Nope

And the court's don't have to listen to the President either. What the President is now saying is for political points. And to taunt Republicans (who whine about "judicial activism" when a law they want is struck down.)

[Iliyah]

6. I think Pres O

is playing chess and the some radical justices from both courts are falling into his trap. What exactly it is I don't know but I think Pres O and his administration are inching towards health care for all. Just a feeling tho.

And said health care will be paid for.

[eyewall]

8. This is an outrage.

Why don't they demand that the republican presidential candidates explain themselves, those guys obviously have no grasp of reality at all.

[elleng]

12. This was ONE JUDGE, not 'they,'

in an Oral Argument. (See my #11.)

[elleng]

9. Highly doubtful

Last edited Tue Apr 3, 2012, 09:24 PM - Edit history (1)

'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.'

APPEARANCES???

MUST see 'decision,' if 5th Circuit really acted. For one thing, they don't often act so quickly, and CERTAINLY not to news stories about something the President might have said.



EDIT: As I suspected, 'they' didn't so 'rule;' it appears to have been one Judge on 5th Circuit.
http://www.nytimes.com/aponline/2012/04/03/us/ap-us-obama-health-care-judge.html?_r=1&hp

[elleng]

11. The FACTS.

(Sorry to trouble cbsnews.com.)

A federal appeals court judge seems to have taken offense at comments President Barack Obama made this week in which he warned that if the Supreme Court overturned his signature health care overhaul it would amount to overreach by an "unelected" court.

The Supreme Court is set to rule later this year on the overhaul's fate.

During oral arguments Tuesday in Houston in a separate challenge to the health care law, U.S. 5th Circuit Court of Appeals Judge Jerry Smith said Obama's comments troubled people who have read them as a challenge to federal courts' authority.

While judicial review of laws has long been established, Smith ordered a federal attorney to submit a letter by Thursday stating the government's position on this issue in light of the Obama's comments.

http://www.nytimes.com/aponline/2012/04/03/us/ap-us-obama-health-care-judge.html?_r=1&hp

[eyewall]

18. Thanks for the more detailed version

but the CBS article also mentions that the demand comes from Judge Jerry Smith. It's clear that among the three judge panel there is no dissent to the demand or the spirit of the rebuke.

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.
...

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 specific rules and the tone of Judge Smith's demand are insulting to both the Executive Office and the DOJ. An unbelievable lack of civility and respect.

[BOHICA12]

24. But the President has twice stuck his finger in the court's eye ...

... at public venues. Co-equal means something. It did in Brown and Roe v Wade, and it means something now.

If you have to stand in front of the Bear, don't poke the Bear!!! Not a legalistic view, but one based in reality.

[eyewall]

26. That's a good point.

But I think the public display of anger he showed over Citizens United was more than appropriate, and appreciated by the left.

[Swede Atlanta]

13. Fuck off!!!!

Obama has no obligation to respond to this court's question. Obama has 1st Amendment Rights the last time I checked to express his views on the role of the courts in our public discourse.

Only when the Administration engage in behavior that would potentially undermine the authority of the judiciary to resolve matters of constitutionality would he have to respond.

It is clear the heavily right-leaning federal judiciary are feeling like the Emperor in the Emporer's New Clothes where they recognize that their gig is exposed.

[onenote]

15. the court can ask the administration's lawyers to address a question of law

and while the administration lawyers could decide not to respond, that's not going to happen. This judge is being childish and stupid, but most lawyers know that the better part of valor in a situation like this is discretion. If anything, the lawyers will try to turn this request to their advantage by formulating a response that concedes the basic point of the judiciary's right to declare a law unconstitutional while going on to explain why the law in this particular case is valid. An opportunity for an extra brief actually is something most lawyers would love.

[Samantha]

17. Well technically speaking, don't you think the DOJ is a government agency that does not represent

President Barack Obama personally? He does sit in the Oval Office and as such refers government matters to the DOJ in his official capacity, and he publicly stated in that capacity a viewpoint in his speech today. So the answer to the question is in the public domain.

What he believes as a person, and he does have rights as an individual, the DOJ would have no information or belief ... right?

Just asking.

Sam

[SunSeeker]

16. Where was this judge when Bush & Reagan castigated activist judges?

All President Obama said was that conservatives themselves have long railed against activist judges going against the will of the people; that this was a duly passed law by the people's representatives, so the conservatives are being hypocrites. He was not saying judges have no right to overturn an unconstitutional law. He in fact is asking them to do just that with some of the voter ID laws DOJ is rightfully suing over. But of course, when a douche judge wants to score points against the "Democrat Party," as Scalia calls it, then this is the sort of childish, political stunt you see. I think the judge on the 5th Circuit who pulled this stunt should be disciplined.

[GusFring]

19. they're above the law and appear to answer to no one.

[mahatmakanejeeves]

22. Appeals Court Judge Jerry Smith

Yale two times over. A couple of his former clerks now teach at George Mason.

Jerry Edwin Smith

[Ruby the Liberal]

23. "the Supreme Court since 1803 has asserted the power

to strike down laws it interprets as unconstitutional".


Shhhhhh. Don't anyone tell Thom Hartmann.

[Judi Lynn]

25. Obama's Supreme Court Comments Prompt GOP Worries About Judicial Independence

Obama's Supreme Court Comments Prompt GOP Worries About Judicial Independence
Posted: 04/ 3/2012 6:36 pm Updated: 04/ 4/2012 12:01 pm

WASHINGTON -- The wrangling between the judicial and executive branches over President Barack Obama's health care law grew even more contentious on Tuesday, as an appellate court judge demanded that an Obama administration lawyer clarify whether the president believed in the concept of judicial review.

The incident, reported by CBS, was a remarkable instance of politics entering the courtroom. While hearing a challenge to the Affordable Care Act, Fifth Circuit Appeals Court Judge Jerry Smith stopped DOJ attorney Dana Lydia Kaersvang as soon as she started talking. Smith asked whether it was the department's belief that the Supreme Court could declare a law unconstitutional. Kaersvang answered yes, though her reply left Smith unsatisfied, as he reportedly responded that it wasn't evident to him that the president respected judicial independence.

It's quite rare for a judge to openly display his or her political leanings in public, let alone in a courtroom. Smith's outburst was quickly noticed by administration officials, though the Justice Department had not released a public statement about the incident by late afternoon on Tuesday. The comment also underscores just how sensitive hearings over the president's health care law have become since last week's Supreme Court oral arguments.

Smith was responding to remarks the president made during a Monday press conference, in which he said he was confident that the Supreme Court would uphold the Affordable Care Act and argued that it would be a bout of judicial activism not to. The president addressed the topic again on Tuesday. Speaking at an Associated Press luncheon, he reiterated that it would be unprecedented for the court to rule that Congress didn't have the authority to compel individuals to buy health insurance coverage under the commerce clause. But the president also went out of his way to stress that he respected the court's authority to call constitutional balls and strikes.

More:
http://www.huffingtonpost.com/2012/04/03/obama-supreme-court_n_1401206.html

[center]~~~~~[/center]
5th Circuit Judge Jerry Smith goes way outside the record
Posted Wednesday, Apr. 04, 2012
By Linda P. Campbell

[email protected]

The 5th U.S. Circuit Court of Appeals has a history of bold judges.

Judges on that court during the 1960s became legendary for enforcing justice even when they faced personal peril and ostracism.

As Jack Bass, author of Unlikely Heroes, has written, "Judges Elbert P. Tuttle, John Minor Wisdom, Richard T. Rives, and John R. Brown operated in the eye of a storm, making the Fifth Circuit Court of Appeals the institutional equivalent of the civil rights movement itself." (bit.ly/I2c8HF)

The Supreme Court gave lower courts little guidance for enforcing its 1954 ruling that racially segregated public schools were unconstitutional. But those long-since departed 5th Circuit judges, three of them Republican appointees and from Southern states, "translated it into a broad mandate for racial justice and equality under law," Bass wrote.

Judge Jerry Smith, a member of the 5th Circuit since President Reagan appointed him in 1988, is no shrinking violet. But his bold move this week was to spar with President Barack Obama over his remarks at a news conference.

Read more here: http://www.star-telegram.com/2012/04/04/3861524/5th-circuit-judge-jerry-smith.html#storylink=cpy

[center]~~~~~[/center]
Wikipedia:

Jerry Edwin Smith (born 1946, Del Rio, Texas) is a judge on the United States Court of Appeals for the Fifth Circuit. He was nominated by President Ronald Reagan on June 2, 1987 and confirmed by the Senate on December 19, 1987. Smith received his commission for the seat, which was created by 98 Stat. 333, two days later.[1]

~snip~

Notable cases

Judge Smith wrote the majority opinion in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), in which the Fifth Circuit struck down the use of affirmative action in admissions at the University of Texas School of Law. Seven years later, the decision was abrogated by the U.S. Supreme Court's decision in Grutter v. Bollinger, 539 U.S. 306 (2003).

In Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991), Judge Smith wrote the panel opinion which required the United States Environmental Protection Agency to use cost-benefit analysis when deciding whether to ban a toxic substance.

In Regents of the University of California v. Credit Suisse First Boston, 482 F.3d 372 (5th Cir. 2007), Judge Smith wrote the majority opinion barring securities fraud claims against third parties who aided in securities fraud but did not directly mislead investors. The decision was upheld by the Supreme Court in Stoneridge Investment Partners v. Scientific-Atlanta, 552 U.S. 148 (2008).

More:
http://en.wikipedia.org/wiki/Jerry_Edwin_Smith