Publicado: 04-04-2012 11:07 AM
SO, WHAT HE DID WAS 100% PERFECT. ELLOS ODIAN A OBAMA, Y OBAMA LO SABE REQUETEBIEN, SOBRE TODO EL ROBERTS Y EL SCALIA, Y EL THOMAS ES UN TREMENDO CORRUPTO EN TODA LA EXTENSION DE LA PALABRA, ASI QUE, GO OBAMA, PONLOS EN SU LUGAR, QUE ELLOS DAN LA VIDA POR SACARTE A PATADAS DE LA PRESIDENCIA,
OJO X OJO, DIENTE X DIENTE. WHAT IT IS, BLOOD, WHAT IT IS,,,,,,,,,,JAAAAAAAAAAAAAAAAA
Publicado: 04-04-2012 11:23 AM
Te puedo dar mi opinion?
Las peleas que no se ganan no se deben pelear, y Obama como cualquier ser humano comete tambien errores, y es un error de el pelear contra el supremo, hasta el dia de hoy la unica funcion de la corte suprema desde que se fundo la nacion hasta el dia de hoy, es revocar leyes del congreso firmadas por los presidentes que el supremo considera que no son constitucionales, no te preocupes por los integrantes del supremo, son nueves y estan balanceados, cuatros a ser conservadores, y cuatros a ser liberales, siempre existe uno de ellos el numero nueve que inclina la balanza a a uno de los dos grupos
Saludos beauty girl
Publicado: 04-04-2012 11:28 AM
Court to Obama: You've Got Some Explaining to Do
By Katie Pavlich 4/4/2012
After President Obama's joint press conference this week with Mexican President Felipe Calderon and Canadian Prime Minister Stephen Harper, when Obama said the Supreme Court turning over ObamaCare would be "activism" by "unelected" Justices, he has some explaining to do. Now, not only are members of Congress calling on Obama to clarify his remarks, but the 5th Circuit Court of Appeals is firing back. The court has issued an order to the Obama Administration demanding an explanation as to whether the President believes the courts have the constitutional right to strike down legislation.
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."
Not surprisingly, Obama was fibbing when he claimed the overturning of legislation would be "unprecedented."
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.
Meanwhile, Newsweek is calling for the impeachment of Supreme Court Justices should they overturn ObamaCare.
Publicado: 04-04-2012 11:37 AM
Townhall.com ^ | April 4, 2012 | Stephen Smoot
The Obama Administration has not had much support from the judicial branch recently.
With the United States Supreme Court seemingly prepared to strike out some or all of health care reform, the president and his allies lashed out. President Obama seemed especially concerned “that an unelected group of people would somehow overturn a duly constituted and passed law.”
Since Marbury v. Madison, that has been the high court’s prerogative.
While the president’s supporters attack conservative and moderate judges on the Supreme Court, a United States District Court judge, Amy Berman Jackson, has also accused the administration of overreach.
Judge Jackson, however, is not an appointee of either President Bush. She ascended to the bench in 2011.
Arch Coal wanted to expand its Spruce #1 mine in Logan County, West Virginia. It estimated that the $250 million investment would create around 250 jobs. In 2007, they consulted with the U. S. Army Corps of Engineers, the Environmental Protection Agency, and others to reduce the impact. The EPA then awarded a permit.
With little warning, after the inauguration of Obama, the EPA revoked the permit. It cited that the operation violated the Clean Water Act. Arch Coal took the case to court.
At the time, U. S. Senator Joe Manchin (D) blasted the administration in a press conference, stating that "To bring this self-inflicted pain on top of all of that after it's gone through the process, is just more than I think any agency should have that power to do."
Judge Jackson agreed.
In her opinion, she said that the EPA’s interpretation of the Clean Water Act is “illogical and impractical.” Jackson accused the agency of “magical thinking” in its efforts to explain the highly unusual step of revoking its own permit.
U. S. Representative Nick Joe Rahall (D WV-3rd) concurred with Jackson, saying “the EPA has twisted the law, circumvented the Congress, and trampled on the right of the people to know what their government is doing. In America, no agency can hide its actions under some veil of secrecy, but the EPA sure has tried.”
This represents one of many recent cases in which the federal courts have slapped down administration attempts to extend its authority. The U.S. Supreme Court ruled that the EPA could not collect fines against an Idaho family prior to judicial review of their case. No matter how the court rules on health care reform, individual justices’ questions have exposed concerns about how federal power.
What has to concern the administration is that this hand slap emanated from one of the current president’s appointees.
Publicado: 04-04-2012 12:22 PM
President Obama's Bullying Pulpit
By Ken Blackwell 4/4/2012
President Obama this week took advantage of the fine spring weather and a meeting with Canada’s and Mexico’s leaders to make an extraordinary statement in the White House Rose Garden. He responded to questions about his health care takeover. ObamaCare is currently being reviewed by the U.S. Supreme Court. The nine Justices are expected to rule on the measure by this June. Their ruling could come right in the middle of a heated presidential election campaign.
Mr. Obama sternly lectured those members of the high court who are about to vote on the legislation formally titled the Patient Protection and Affordable Care Act. The president said that he is “confident” that the members of the Supreme Court will rule that ObamaCare is constitutional. He stated that the individual mandate is the only way to assure that people with pre-existing conditions are covered. The individual mandate is that part of the law that was most seriously contested in three unprecedented days of oral arguments.
If Congress can force you to buy health insurance, Justices asked, what can it not do? Many of those who presented “friend of the court” briefs to the Supreme Court have argued, compellingly, I think, that the Founders rebelled against a king and Parliament who taxed us for tea. The king and Parliament never ordered us to buy the tea. Is it likely, opponents of ObamaCare ask, that those Founders would have given a president and Congress the kind of power they would never have permitted a distant king and Parliament to exercise over us?
“Justices should understand,” Mr. Obama said in a stern and almost menacing tone, that to rule this law unconstitutional would be an act of “judicial activism.” The law, he said, is a “duly constituted law” that was passed by a democratically elected Congress.
Talk about voter intimidation! The Justices will soon vote. They are on notice that Barack Obama will not only disapprove of them if they don’t vote his way, he clearly intends to campaign against the Supreme Court if they rule ObamaCare unconstitutional.
What’s the problem with this? Didn’t President Franklin D. Roosevelt campaign against the Supreme Court when “nine old men” overturned the National Industrial Recovery Act, the centerpiece of his New Deal legislation? Yes.
Even the imperious FDR, however, never hectored the members of the Supreme Court as they sat in black-robed silence in the front row at his State of the Union Address. Mr. Obama did this brazenly and outrageously at his 2010 speech before Congress.
Didn’t Abraham Lincoln criticize the Supreme Court in his Inaugural Address in 1861? Actually, no. Lincoln did say in the presence of Chief Justice Roger B. Taney that the Court’s rulings deserved respect, but that not all political questions could be considered settled once they were submitted to “that eminent tribunal.” Taney may not have liked what he heard, but he certainly was not intimidated. Nor did he refuse to administer the oath of office to President Lincoln.
What about President Reagan? Didn’t he object to the Supreme Court’s overturning the abortion laws of all fifty states? He did indeed. But he submitted his arguments to the Supreme Court as formal statements of Executive Branch legal opinion. He sent his Solicitor General up the steps of the U.S. Supreme Court with all dignity and respect for the independence of the judiciary as a coequal branch of government. That’s because Reagan revered the Constitution.
Theodore Roosevelt referred to the White House as a “Bully Pulpit.” He meant, of course, that it was a great place for presidents to offer moral leadership. He was right. But Mr. Obama has taken that a dangerous step beyond. He has made the White House a “Bullying Pulpit.” Let’s hope those Justices who will vote on ObamaCare’s constitutionality are not intimidated by this unprecedented and dangerous move.
Publicado: 04-04-2012 03:19 PM
Obama Puts Out Figurative Bounty on Supreme Court
April 03, 2012
RUSH: Obama and his attack on the Supreme Court yesterday. It happened toward the end of the program in the last half hour and it was happening on the fly. I didn't really have enough time to listen in detail to what Obama said, and thus I didn't have a chance to, in detail, reply. I've now listened to what Obama said. I've got three sound bites here.
When I got home yesterday at about six o'clock last night I got a flash encrypted message from a friend who says, "You know, somebody in the court leaked to Obama. That's why he went out there and did this today. Somebody called him. He lost the vote, the preliminary vote on Friday. He lost it, and somebody leaked it." And that became an active theory that began to be bandied about amongst a lot of people that I know. Because people were
saying " Why go out," as Obama did yesterday...? It was in the form of a question. We must remember that he was asked a question about this. He didn't launchh into this on his own, but once he got the question, it was, "Katie, bar the door," and he was off to the races.
And the question everybody was asking is: "Why do this? Why attack the court? Why intimidate them, why threaten them if they had voted to uphold the mandate?" And I have an answer for that. See, I know these people. I know liberals. I don't want that statement to sound bombastic. You people here -- new listeners to the program -- that's not a braggadocios statement. It's not bombastic. It's not outrage or any attempt to shock. I just know them, and so when somebody asks me, "Why would Obama say that if he didn't have to? If he had been told that the preliminary vote on Friday was in his favor, why take the attitude that he took?" There is an answer to that. I don't know if it's right, but there is an answer.
He's a thug.
And again, I'm not trying to be provocative when I say this. I'm just quoting Bill Clinton, folks. Bill Clinton referred to Barack Obama as a Chicago thug during the 2008 presidential campaign. This after Clinton some years earlier had told Juanita Broaddrick, "Put some ice on that lip" after she said he raped her. (I mentioned that for this "war on women" that supposedly the Republicans are waging.) But there's every possibility that Obama feeling his oats, being told that the vote went his way, would still go out and do this, 'cause he knows there are more votes to come. I'm not predicting it. I'm just saying I could understand it.
It's easier to understand that somebody leaked to him that the preliminary vote went against him and that the mandate fell by whatever the preliminary vote was and that explains his attitude yesterday. But I can see him saying what he said if the vote went in his favor as well, as a means of further intimidation, making sure they don't change their minds or whatever. You might say, "Well, how would that work? Wouldn't that just kind of make them be more resistant?" The reason this is all a crock in the first place is that (and we will go through this as we play the Obama sound bites) it is obvious that to the left this is an entirely political process.
There's nothing judicial going on here. There's nothing legal. This isn't even really about the Constitution. This is about politics, pure and simple, and Barack Obama's reelection. It's all it is. But he says things in these sound bites which you'll hear coming up and they're chilling to me. "The court has to understand..." "The court must understand," is one of his sound bites. No, the court must not -- does not have to -- listen to you. What is this, "The court must understand"? That is a threat! How many of you think it possible that Obama will make a trip to the Supreme Court before the vote, before the final vote? Can you see it happening? I can.
Publicado: 04-04-2012 08:15 PM
Verilli not administration's worst lawyer, after all
The reason tea partiers carried signs saying "Read the Constitution!" was that we were hoping people would read the Constitution.
Alas, we still have Rick Santorum saying ObamaCare is the same as what he calls "Romneycare"; the otherwise brilliant Mickey Kaus sniffing that if states can mandate insurance purchases, then we're "not talking about some basic individual liberty to not purchase stuff" (no, just the nation's founding document, which protects "basic individual liberties" by putting constraints on Congress); and the former law professor, Barack Obama, alleging that a "good example" of judicial activism would be the Supreme Court (in his words, "a group of people") overturning "a duly constituted and passed law."
I don't know how a court could overturn a law that hasn't been "passed." Otherwise, it wouldn't be a law, it would be a bill. If it hasn't even been "constituted," it wouldn't be anything at all.
Of course the courts can overturn laws -- constituted and passed alike! If anything, the Supreme Court isn't striking down enough laws.
Suppose Congress passed a law (after constituting it) prohibiting the publication of books about Hillary Clinton. That would be a violation of the First Amendment and the courts should strike it down. Failing to strike down such a law would be judicial activism.
That's the judiciary's job, which has been pretty well established since the 1803 case, Marbury v. Madison, heretofore the second most sacred opinion in the liberal canon. (Roe v. Wade is the first most sacred.)
Marbury captured the imagination of liberals only relatively recently when they realized that, simply as a procedural matter, the courts have the last word.
The judicial branch isn't above the other two branches -- much less the states or the people. It is (one of my favorite words) "co-equal" to the other branches. Indeed, the judiciary was laughably described by Alexander Hamilton in The Federalist Papers as the "least dangerous" branch.
Anticipating nearly every form of government corruption, our framers specifically designed the Constitution to prevent tyranny. But they never imagined the perfidy of 20th-century liberals. (Probably because the framers didn't have NBC.)
What liberals figured out -- and were mendacious enough to exploit -- is that there is no obvious recourse for the other branches if the Supreme Court issues an insane ruling. So, beginning in the 1960s, liberals on the court started issuing insane rulings on a regular basis. Rather than referring to the Constitution, some of their opinions were apparently based on the dream journal of Andrea Dworkin.
Soon every law student could recite in his sleep Chief Justice John Marshall's line in Marbury: "It is emphatically the province and duty of the Judicial Department to say what the law is." So shut up and go home.
To take one example of a ludicrous ruling, at **noallow**, off the top of my head: In 1973, the Supreme Court announced that the Constitution mandates a right to abortion.
The Constitution says nothing about reproduction, contraception, fetuses, pregnancy, premenstrual syndrome, morning sickness -- much less abortion. (As the tea partiers say: Read the Constitution!)
It does, however, expressly grant to the states those powers not reserved to the people (such as the right to bear arms) or explicitly given to Congress (such as the right to regulate commerce with foreign nations, among the several states and with the Indian tribes).
Obviously, therefore, the Constitution implicitly entrusted abortion laws to the states.
One hint that a "constitutional" right to abortion is not based on anything in the Constitution is that during oral argument, as the lawyer arguing for this apocryphal right ticked off the constitutional provisions allegedly supporting it -- the Due Process Clause, the Equal Protection Clause, the Ninth Amendment, "and a variety of others" -- the entire courtroom burst into laughter.
The ruling in Roe, incidentally, struck down the duly constituted and passed laws of all 50 states. (But that is soooo 53 million abortions ago ...)
When conservatives complain about "judicial activism," this is what they're talking about: Decisions not plausibly based on anything in the Constitution.
Curiously, the only court opinions liberals really get excited about are the ones having nothing to do with the Constitution: abortion, **noallow** dancing, gay marriage, pornography, coddling criminals, etc., etc.
Liberals try to hide their treachery by pretending that what conservatives are really upset about is the Supreme Court striking down any law passed by any legislature. This is a preposterous lie that could fool only the irredeemably credulous.
Which brings us to the brilliant ex-law professor, who manifestly doesn't have the faintest understanding of the Constitution.
On Monday, President Obama shocked even his fellow liberals when he claimed that it would be "an unprecedented, extraordinary step" for the Supreme Court to overturn "a law that was passed by a strong majority of a democratically elected Congress." (Which Obamacare wasn't.)
He added: "I'd just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint."
I guess now we know why Obama won't release his college and law school transcripts!
It was so embarrassing that Obama attempted a clarification on Tuesday, but only made things worse. He said: "We have not seen a court overturn a law that was passed by Congress on an economic issue, like health care," since the '30s.
Except in 1995. And then again in 2000. (Do we know for a fact that this guy went to Columbia and Harvard Law?)
In the former case, U.S. v. Lopez, the Supreme Court struck down the Gun-Free School Zone Act -- which was, by the way, a "duly constituted and passed law"! And then the court did it again in U.S. v. Morrison, when it overturned another "duly constituted and passed law," the Violence Against Women Act.
Both laws were defended by the Clinton administration as "economic" regulations, passed by Congress pursuant to the Commerce Clause with arguments as stretched as the ones used to defend Obamacare. The Gun-Free School Zone Act, for example, was said to address the economic hardship, health care costs, insurance costs and unwillingness to travel created by violent crime.
Conservatives want the rule of law, not silence from the judges. Not striking down an unconstitutional law is judicial activism every bit as much as invalidating a constitutional one.
04-04-2012 08:36 PM - editado 04-04-2012 09:10 PM
A ‘Constitutional Scholar’ Who Doesn’t Understand the Constitution
April 3, 2012
By Frank Salvato
PAINTING OBAMA TRAMPLING ON THE CONSTITUTION
In a stunningly arrogant move, President Obama, the leader of one of the co-equal branches of the United States Government, intimated that should the United States Supreme Court rule the individual mandate included in the Patient Protection and Affordability Care Act is unconstitutional, they would be executing an act of “judicial activism. A more inappropriate and coercive comment has not been uttered in recent history by the President of the United States. Mr. Obama’s politically and ideologically motivated comments stand as testimony to not only his lack of constitutional literacy, it stands as a demented tribute to his audacity.
During a Rose Garden press conference, Mr. Obama, egregiously applied the notion of judicial activism to any decision that would invalidate any portion of the health insurance law commonly referred to as “Obamacare,” questioning how an “unelected group of people” could overturn a law approved by Congress. “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,” Obama said.
At the time of passage, it should be noted, Progressive Democrats controlled both the House and the Senate in numbers that did not require a bi-partisan effort. In fact, not one Republican voted for the final legislation.
Mr. Obama continued, “I’m confident that this will be upheld because it should be upheld,” describing the law as “constitutional.”
There is only one thing wrong with everything that the President said during this press conference regarding Obamacare and the United States Supreme Court: The President of the United States does not have the authority to declare legislation constitutional or unconstitutional. That power is exclusively the domain of the United States Supreme Court and, therefore, the decisions handed down by that body are legitimate simply because they exist.
Of course, a real constitutional scholar would know this. Therefore, Mr. Obama is either trying to strong-arm the United State Supreme Court in the court of public opinion; he is pathetically devoid of any real constitutional knowledge; or both.
Mr. Obama often plays fast and loose with the truth when the truth inhibits the potency of his statements, his recent statements that the United States has only two percent of the world’s oil supply is a perfect example. Investor’s Business Daily points out, in no uncertain terms:
“When you look at the whole picture, it turns out that there are vast supplies of oil in the US, according to various government reports. Among them: At least 86 billion barrels of oil in the Outer Continental Shelf yet to be discovered, according to the government’s Bureau of Ocean Energy Management; About 24 billion barrels in shale deposits in the lower 48 states, according to Energy Information Administration; Up to 2 billion barrels of oil in shale deposits in Alaska’s North Slope, says the US Geological Survey; Up to 12 billion barrels in ANWR, according to the USGS; As much as 19 billion barrels in the Utah tar sands, according to the Bureau of Land Management…”
The column goes on and on proving the President either grossly in error on his statistics or willfully misleading in an effort to win a political argument with egregious “facts.”
Where the issue of Mr. Obama being a constitutional law professor is concerned, we see a bit of a stretch as well. The University of Chicago Law School bestowed the official title of “senior lecturer” to Mr. Obama. Whereas the school uses “senior lecturers” to teach classes, they are not officially professors. Perhaps this is why Mr. Obama doesn’t recognize the three branches of the United States of America as co-equal. Maybe this is why he routinely side-steps the authority of the Legislative Branch in legislating through regulatory control or deeming Congress “not in session” in his use of the recess appointment. Maybe this is why he believes he can declare his signature legislation, the one achievement he holds above all else from his tenure as President of the United States – Obamacare, constitutional in his usurpation of the exclusive authority of the United States Supreme Court to decide the constitutionality of legislation brought before them.
Or maybe it is something quite different. Maybe it is a Progressive arrogance, a political Progressive arrogance, an audacity, as it were, that leads him to believe that his empirical presidency has the power to disregard the United States Constitution, the American system of government and the fact that there are three branches of government in the United States and that we have a government of laws, not of men, as John Adams said so potently in the run up to the signing of the Declaration of Independence.
A true constitutional scholar would understand the constitutional reality of the Separation of Powers and the constitutional concept of “checks and balances” that maintains the balance among the three co-equal branches of government.
So, We the People really should be incredibly alarmed at Mr. Obama’s statement that a striking of the individual mandate included in Obamacare would equate to “judicial activism.”
The statement is not only uneducated and absurd; it is either a warning sign that we have a constitutionally illiterate President or a Progressive activist who would just assume spit on the Constitution than try to understand it.
We the People should be alarmed that we have a President who would place his ideology and agenda above the people he is supposed to serve.
04-05-2012 11:23 AM - editado 04-05-2012 11:27 AM
Obama Is Making the Case For His Own Impeachment
By Tony Katz 4/4/2012
The President’s latest tactic, taking on the Supreme Court’s power of judicial review with a preemptive striking against justices who might contemplate an unfavorable ruling on ObamaCare, following on the heels of last week’s "open mic gaffe" in which he explained Russian President Dimitri Medvedev that he’d have more “flexibility” to sacrifice American security after his re-election, lead to one question: Is Barack Obama making his own case for impeachment?
Obama is no longer fit for the job. I don’t say this lightly. I don’t say it with glee or joy. And I don’t say it with malice. But rather with recognition that the Office of the President must be protected. And the citizens of the United States must protect themselves from a president who is either incapable or unwilling to fulfill his responsibilities to the American people and respect the Constitutionally proscribed limitations on his powers.
Obama’s pronouncement about the Supreme Court was so disingenuous and divisive as alone to warrant impeachment proceedings. Obama, a one-time senior lecturer in constitutional law at the University of Chicago Law School, told a group of reporters at a Rose Garden news conference that since the Affordable Care Act was passed by a “strong majority,” a finding of unconstitutionality would constitute “judicial activism.” Nothing could be further from the truth. Judicial activism is when judges exceed their appropriate powers and legislate from the bench. Judicial review, in contrast, is one of the Supreme Court’s primary functions.
As Leon Wolf of RedState asks, has the professor never heard of Marbury vs. Madison (the 1803 case affirming the Court’s right of judicial review)? Further, if Obama believes the Court has no right to review - - and invalidate if necessary - - a law, so long as it was duly passed by Congress, what does he believe IS the Court’s role? What exactly did he teach his students at the University of Chicago?
On the international stage, Obama stunned US citizens and allies with his thinly veiled promise to Medvedev that he would put the missile shield - - a key component of our defense strategy - on the back burner after he’s re-elected, said with disdain for Americans. This stunning statement is worthy of a conversation about treason. A conversation that should take place in front of Chief Justice John Roberts.
Obama was undaunted by the fact the mic was open, and every disgusting word was caught on tape. Since then, he has twice joked about the conversation and the open mic. TWICE! Once, though completely improper, could have been dismissed as self-deprecating humor; trying to make the best out of a bad situation (it would not have worked, but it could have been dismissed.) Twice means not only does Obama not think it's a big deal, but no one around him thinks it's a big deal. How is that not dangerous?
Obama sees himself as above the law, and sees the Law as a detriment to his "moral" goals. As Ben Shapiro (also a Harvard educated lawyer) pointed out:
President Obama has made it his mission to wield the club against the other two branches of government in a manner unprecedented in American history. Yesterday, Obama, rejecting the heart of judicial review for purposes of his own power, stated, “I am 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.” That, of course, is precisely what the Supreme Court does on a daily basis....But for Obama, the Supreme Court is an obstacle to his own power.
President Obama is actively engaging in a pre-meditated attack on the United States Constitution, and the American way of life. His words are not missteps, like 57 states or the insulting inability to properly pronounce the word corpsman. Obama is attempting to plant the seed into the already vitriolic and boisterous Progressives that the problem with America is the thing that makes America great – the rule of law that does not allow government to rule us.
Nothing has changed. In fact, with this latest round of assaults on the Court, they have gotten worse. Add to this Obama's unconstitutional recess appointments. How long until we say aloud - The Nation Is Under Attack From Within?
Publicado: 04-05-2012 02:44 PM
Former Obama Law Student Speaks Out...
My Professor, My Judge, and the Doctrine of Judicial Review
Posted by Thom Lambert on April 3, 2012
Imagine if you picked up your morning paper to read that one of your astronomy professors had publicly questioned whether the earth, in fact, revolves around the sun. Or suppose that one of your economics professors was quoted as saying that consumers would purchase more gasoline if the price would simply rise. Or maybe your high school math teacher was publicly insisting that 2 + 2 = 5. You’d be a little embarrassed, right? You’d worry that your colleagues and friends might begin to question your astronomical, economic, or mathematical literacy.
Now you know how I felt this morning when I read in the Wall Street Journal that my own constitutional law professor had stated that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress.” Putting aside the “strong majority” nonsense (the deeply unpopular Affordable Care Act got through the Senate with the minimum number of votes needed to survive a filibuster and passed 219-212 in the House), saying that it would be “unprecedented” and “extraordinary” for the Supreme Court to strike down a law that violates the Constitution is like saying that Kansas City is the capital of Kansas. Thus, a Wall Street Journal editorial queried this about the President who “famously taught constitutional law at the University of Chicago”: “[D]id he somehow not teach the historic case of Marbury v. Madison?”
I actually know the answer to that question. It’s no (well, technically yes…he didn’t). President Obama taught “Con Law III” at Chicago. Judicial review, federalism, the separation of powers — the old “structural Constitution” stuff — is covered in “Con Law I” (or at least it was when I was a student). Con Law III covers the Fourteenth Amendment. (Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.) Of course, even a Con Law professor focusing on the Bill of Rights should know that the principle of judicial review has been alive and well since 1803, so I still feel like my educational credentials have been tarnished a bit by the President’s “unprecedented, extraordinary” remarks.
Fortunately, another bit of my educational background somewhat mitigates the reputational damage inflicted by the President’s unfortunate comments. This morning, the judge for whom I clerked, Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit, called the President’s bluff.
Here’s a bit of transcript from this morning’s oral argument in Physicians Hospital of America v. Sebelius, a case involving a challenge to the Affordable Care Act:
Judge Jerry E. 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?
Dana Lydia Kaersvang (DOJ Attorney): 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 pposition 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 pposition of the Attorney General and the Department of Justice.
I must say, I’m pretty dang proud of Judge Smith right now. And I’m really looking forward to reading that three-page, single-spaced letter.