April 3rd, 2012

The US Court of Appeals for the 5th Circuit has a little question…

…for President Obama: did you really mean it, or were you just blowing smoke?

This is rather “unprecedented,” to use one of Obama’s favorite words. The court’s question came up in a separate Obamacare case presently before a 3-judge panel of the Appeals Court for the 5th Circuit (which serves Louisiana, Mississippi, and Texas), in which HCR is being challenged 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…

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?”

So Obama’s remarks have earned the DOJ an extra homework assignment, and a little wrist slip for Obama.

[NOTE: By the way, all three judges on the panel are Republicans, and Smith is a Reagan appointee.]

36 Responses to “The US Court of Appeals for the 5th Circuit has a little question…”

  1. Mr. Frank Says:

    Given that we can assume that our Constitutional “scholar” president is well aware that the issue in question was settled in 1803 by the Marbury v. Madison case, we must conclude that he is a knave and lying SOB. A more charitable person would say he was being less than sincere.

  2. Richard Aubrey Says:

    If you let an assertion lie unchallenged, it might become accepted doctrine. So, like any reaction to infection, you have to get to it fast.
    Congrats to the court.

  3. Kae Arby Says:

    There are times when the only way to propperly handle a bully is to punch him in the nose.


  4. IGotBupkis, Legally Defined Cyberbully in All 57 States Says:

    He asked DOJ to discuss “judicial review, as it relates to the specific statements of the president

    BWAAAhahahhahahahhahaaaaa…. He sent them back to re-write their homework!


  5. IGotBupkis, Legally Defined Cyberbully in All 57 States Says:

    There are times when the only way to properly handle a bully is to punch him in the nose.

    Actually, that’s ALWAYS the way to properly handle a bully.

    Unfortunately, and for some mysterious reason, it’s become frowned upon in polite society, much like speaking The Truth.

  6. Don Carlos Says:

    Tune in on Thursday for some slippery equivocating doublespeak from DOJ and Eric the Holder.

  7. Baklava Says:

    Dear Obama,

    Keep speaking ! 🙂

    I love you when you keep speaking !

    You are the bomb!

    Love you !


    Logical and full of common sense voter

  8. Promethea Says:

    I don’t think Obama knows anything about anything. He’s a full-on psychopath who lives in his own world.

  9. Gary Rosen Says:

    The best quote I’ve heard on this is the following:

    “The Fifth Circuit’s “homework assignment” is a fairly gentle reminder to the President that he actually leads the United States government and not just the campaign for his reelection.”

    Of course BO is not really opposed to judicial review, because it has benefited liberal causes countless times. He was just engaing in some cynical, shameless campaign demagoguery and the court is making him own up to it. Good for them!

  10. Gary Rosen Says:

    engaing = engaging of course

  11. RandomThoughts Says:

    …we can assume that our Constitutional “scholar” president is well aware that the issue in question was settled in 1803 by the Marbury v. Madison case…

    I wouldn’t assume he knows jack all about legal precedents. In fact, I’d be surprised if he retained any knowledge whatsoever from his time in law school. But then I’m cynical that way.

  12. Susanamantha Says:

    My goodness,Neo. Who let the dogs out? Dimmy trolls out and about or what? I’ll come back later when the fog has lifted.

  13. Hangtown Bob Says:

    Unfortunately, I suspect that the response of Holder and the DOJ to Judge Smith’s demand will be very simple. THEY WILL IGNORE IT.

    This has been the modus operandi of the Obama administration in way too many situations so far and the Repubs and the media have done NOTHING about it.

  14. uncleFred Says:

    This is a bit more than a tap on the wrist and some soft shoe in front of the 5th Circuit won’t cut it.

    A court generally won’t allow you to argue a case before them unless you acknowledge their jurisdiction and their authority to decide the case. If you can’t argue the case you lose by default.

    This puts the justice department in the interesting position that they not only have to acknowledge that the president (chief law enforcement officer) was wrong they also, speaking officially for the administration explicitly including the president, must accept the courts authority to decide the constitutionality of federal legislation and specifically ObamaCare.

    Of course the president could direct the DOJ to tell the court that the administration no longer recognizes the courts authority and that it plans to implement the law regardless of the courts opinion on the constitutionality of the law. Then we have a full on constitutional crisis.

  15. Wolla Dalbo Says:

    As I recall, what little has leaked out about Da Won’s time as a law lecturer had some fellow teachers saying that Obama was kind of “casual” about things- translation, he didn’t know shit about anything–an affirmative action hire.

    Oh, the munchkins are gonna be scurrying about at DOJ.

  16. Charles Says:

    I’m not ready to read too much into this; judges just don’t like to be told what to do, even by people they might agree with.

    On another note; some of these spam are funny; especially the one that states “great article, I’m facing some of these issues as well . . .” It’s from “order online viaga.”

    hehe, does that mean Obama has erectile dysfunction?

  17. njartist Says:

    How odd. For as long as I can recall ( I am 62) conservatives – pre neo – have been arguing against judicial review: it leads to judicial supremacy; now with Obama’s “attack” – two steps forward (thanks Artfldgr) – he obtains a backlash from conservatives that will solidify judicial review as a rightful power: the progressive judiciary will now hold the supreme position.

  18. njartist Says:

    O.T. but a relevant glimpse into Obama’s hunger for power. Key quote:
    “The day after the rally, Marty [Jerry Kellman in Dreams] decided it was time for me to do some real work, and he handed me a long list of people to interview. Find out their self-interest, he said. That’s why people become involved in organizing—because they think they’ll get something out of it. Once I found an issue enough people cared about, I could take them into action. With enough actions, I could start to build power. Issues, action, power, self-interest. I liked these concepts. They bespoke a certain hardheadedness, a worldly lack of sentiment; politics, not religion. (Dreams from My Father, p. 155, 2007 edition)”

  19. I R A Darth Aggie Says:

    This is rather “unprecedented,”

    Not really. There is a reason why corporate officers decline to answer questions about current litigation: any statements made can be questioned by the judge hearing that case.

    And Teh Won is still the chief law enforcement officer of the USofA. And given his commentary, I’m thinking he’s not particularly bright, or doesn’t understand the area of the law that is supposed to be his speciality.

  20. Mrs Whatsit Says:

    Good heavens.

  21. njartist Says:

    Good grief1 There are more trolls here than under a Grimm bridge.

  22. Occam's Beard Says:

    Re judicial review, I think the proper policy is one of balance. After all, judicial review nixed FDR’s attempt to pack the Supreme Court. OTOH, judicial review here in CA resulted in Prop. 8 (against same-sex marriage), passed resoundingly by the voters (twice, IIRC, in different forms), tossed out by a judge who lives with his male paramour, in a clear case of legislating from the bench, IMO.

  23. Occam's Beard Says:

    Afterthought: the standard for judicial review should be based on a narrow construction of the Constitution. Please miss us with penumbrae, adumbrations, and other Latin synonyms for “nonexistent text.”

  24. Occam's Beard Says:

    Pity the DoJ lawyers who have to draft that letter. They have to thread the needle between a rational, intellectually sound argument with extensive legal precedent, and the idiotic babblings of this putative (and as yet unpublished) Constitutional law scholar, without offending either one.

  25. Occam's Beard Says:

    A serious question for liberals: would you want Obama to represent you in a legal matter?

    I wouldn’t. He obviously has at best a tenuous grasp of the law, and even less grasp of strategy and tactics (blurting out moronic statements about local legal matters, and hamfistedly trying to influence SCOTUS), on top of which he’s none-too-bright. I wouldn’t let him deal with a parking ticket.

  26. neo-neocon Says:

    Occam’s Beard: I disagree about Obama’s grasp of the law and his intelligence on that matter. The piece I wrote last night (which I still plan to publish, if not elsewhere then on this blog) explains the way he was channeling FDR and what happened after the attempt to pack the court (how the legal standards about precedent changed). He was doing it consciously and knowledgeably.

    These are the remarks of Obama’s I’m referencing:

    Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal…

    Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there.

    Obama is talking about a change in the presumption of the constitutionality of laws concerning interstate commerce, post-1937. As I said, my article will explain in greater detail.

  27. Libby Says:

    You just know that their written assignment will say “Of course the judiciary can strike down an unconstitutional law, BUT…” and then go on for three pages of b.s. about how in the case of ObamaCare, they kinda, sorta, really don’t.

  28. Wolla Dalbo Says:

    Driving around again to do some grocery shopping, and Rush is on the radio with the theory that Obama knows all too well about judicial review and Marbury vs. Madison, but that he is playing an entirely different game i.e. he is playing to the cheap seats, trying to agitate and organize, to stir up fear and anger ,and taking his message to the masses of basically unlettered and heavily propagandized but not knowledgeable or informed dummies churned out in increasing numbers by our schools, to the takers not the makers, who never heard of Marbury vs. Madison,
    won’t look it up, and simply don’t care about it.

    And Obama’s message, sure to be reported and reinforced and spread far and wide by the MSM–but not dissected or contradicted—is that this small group of unelected and therefore somehow illegitimate Supreme Court justices, the pawns of the Republicans, are going to, if allowed to get their way, rip their various benefits—Obamacare, welfare, WIC, AFDC, unemployment, etc., etc—right out of their hands, and the MSM will not counter this image.

    So, Obama does not care of more informed people know better, or if they think he has directly and unmistakably confirmed to them that he is an ignoramus, just so long as he gets his message of fear out to his base.

  29. neo-neocon Says:

    Wolla Dalbo: see this comment of mine. FDR is the key for Obama.

  30. Parker Says:

    “There are times when the only way to propperly handle a bully is to punch him in the nose.” — KRB

    The best way to properly handle a bully is to sneak up behind him and quietly take him down.

  31. Parker Says:

    Neo says, “Occam’s Beard: I disagree about Obama’s grasp of the law and his intelligence on that matter.”

    BHO knows that his base knows exactly zero about the Constitution or actually loathes the Constitution and the concept of a republic. He is demagoguing the issue at hand and knows his MSM lackeys will follow his lead. However, he is ultimately a fool because he does not realize that there are unintended consequences to each and everyone of his actions. He has awaken a long sleeping force which he can not comprehend and blithely sloughs off as “bitter clingers”. So much for a Columbia and Harvard eduction. Let the game begin.

  32. Bob from Virginia Says:

    Parker wrote “He has awaken a long sleeping force which he can not comprehend and blithely sloughs off as “bitter clingers”.”

    I have to disagree. We’ve noticed this before, nothing sticks to this President, he makes one bad or reprehensible move after another and it does not effect his 47% approval rating. In the last month he has attacked freedom of religion, was caught plotting treason with the Russians, threatened the Supreme Court, taken credit for Bush’s oil drilling programs, stopped the XL pipeline while boasting of the increased oil production under his administration, spent his kids on another expensive vacation, to Las Vegas, a very act he denounced a few years ago, had another budget proposal voted down by Congress , all this as the Moslem Brotherhood prepares to take over Egypt due to his incompetence, appeared more concerned over an Israeli attack on Iran than an Iranian bomb; and after all this he is still a viable candidate for re-election.

    If there is any “sleeping force” that is awakening they are taking their time about it. Frankly, I do not know what to make of a public that seems mesmerized by this teflon President. I will agree with you on one thing, the public does appear to be asleep.

  33. Wolla Dalbo Says:

    As I have been arguing here and elsewhere, the audience which is viewing all this evidence of the far Left agenda of Obama & Co. and of Obama’s unfitness for office—or not and, instead, has its collective eyes glued to Judge Judy, American Idol, WWR , Jersey Shore, the Biggest Loser, etc. etc.—is not the audience of past generations, either in background, knowledge, temperament, or attention span, and deliberately so.

    The Great Depression/WWII era audience of “ the Greatest Generation”–now passing from the scene—was given the pitch for Communism and only a very few—here and there—bought it.

    So, the Left’s idea was to:

    First, “rebrand” and repackage its program as Progressivism/Liberalism, and concern for human rights, the environment, women’s rights, fairness and equal justice, and all sorts of other good and high sounding things.

    Second, to capture the educational establishment, and to change the content of education, so as to subvert and/or strip away all of the fundamental knowledge and those analytical tools necessary for citizens to be able to play an effective part in the public debate and to understand the arguments and actions being taken in our democratic Republic—subjects like the histories of Greece and Rome, American history, Rhetoric, Logic, Mathematics, Economics, Philosophy, and many other subjects, to Balkanize the students and divide them by race and culture, and to replace these subjects with subverted, dumbed down versions of their former selves, propaganda, junk and piffle and, further, to insist on the primacy of the Postmodern viewpoint, in which there are no standards, and nothing can be measured or is better than any other thing—and which makes the act of judgment not only useless, but an act of prejudice, and part of a power game to keep the underclass down.

    Paralleling this subversion and occupation of education were similar very successful efforts waged against popular culture, religion, government and politics, law and business, relations between the sexes and the family, racial relations, community organizations, etc. etc.

    So, I believe that many in the audience (I don’t know what percentage, but I believe it to be alarmingly large) that is witnessing all this today have very different interests, have far less knowledge and background, a very different attitude towards life, and stand in a far different place than their forbearers and, therefore, see things very differently—and, again, deliberately so.

    Thus, the pitch is being made again today to a new audience, and whether they will see it for what it is, or buy it or not is open to question.

  34. Bob from Virginia Says:

    I partially agree with you Wolla Dalbo, but I suspect part of the problem is simpler. No one can argue that leftists have sized control of large parts of education. My daughters high school reader should have been renamed liberal guiltfest and we all know the US was silly and the North Koreans swell guys because MASH told us so. However no one pays attention to the effects of 60 years of peace and prosperity. This has produced an egocentric spoiled generation. One who cannot imagine hardship, sacrifice and will rationalize any excuse to avoid it. Affluence delays maturity and the US has had more of it in less time than any people in history.

    If it were not for the Iranian bomb I would be glad to see Obama win re-election, maybe the lost prosperity and liberty would awaken the public from their silly vacation from history.

  35. Wolla Dalbo Says:

    Bob from Virginia—I think you have put your finger on another major factor, the audience is increasingly composed of people who have no historical knowledge and thus no real conception of what their ancestors had to go through to build up what we might call the “bank account” that today’s population is the beneficiary of and lives the high life off of; the incredible struggle and back-breaking toil, sacrifice, privation, and thrift that something like 20 past generations had to live in their daily lives in order to transform a virgin land into what we see today. Then came WWII, and we became the world’s economic and military colossus and the only “superpower” and, in effect, I would argue, the heirs of Rome.
    But, what people get too cheaply they do not value, and see no reason, especially, to cherish and guard. Never knowing in detail how things came to be, we all think that things are just inevitably as they are, and will be that way forever, but if our ancestors knew anything it was that catastrophe was always just around the corner, that things that go up can come down, and that eternal vigilance was the price of freedom.

    The United States was originally and until, say, the later 19th century a predominantly agricultural country and a very rural one, and agriculture promotes certain values—hard work, community, thrift, planning, looking ahead, and a keen eye for changing conditions; clearing the land and farming it was brutal work that took its toll, ground people down, and injuries, sickness, and early death were way too common, and the average lifespan was something like half what it is today. Moreover living in small communities, you knew your neighbors, families were not scattered but lived close together, and most meetings with people were face to face. In this environment/society reputation was everything, for you could not very easily survive or flourish if people had a bad opinion of you and did not trust your word. Now, who really cares? These people had firsthand experience of the price they paid for their freedom and prosperity, and the schools played a major role in keeping that social structure and that mind-set alive.

    Now, when 82% of our population lives in cities where anonymity is often the rule, families are scattered geographically, rural life is diminishing and farming comprises just 0.7% of our economy, that experience base and all the attitudes that it promoted are mostly gone, we hardly care what “the neighbors” might think because we don’t know them, their good or bad opinion of us has no real effect on our survival, nor is our family likely around to witness our behavior i.e. all of the old, traditional social constraints that made for an orderly, if dull, life have been been done away with–and our schools are trying mightily to efface our past, destroy the “Americanness” and national unity they used to play such a major role in creating and preserving, and they, instead, promote the reach for some sort of far Left Utopia, if only we let those–so much wiser than we—in charge have their way, and let them rearrange things to make things much more “fair” and us even more “comfortable.”

  36. Bob from Virginia Says:

    Great input Parker: Below is a link by Prof. Rubin elaborating on a society’s descend into silliness. Unfortunately it will probably be tragedy that will return America to it’s values. For that reason I look upon an Obama re-election with both amusement and dread. Amusement because a people stupid to vote for Obama deserves what it gets.


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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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