Fifth Circuit calls out DOJ lawyer: Is your boss now claiming that courts don’t have the power to strike down laws? Update: A lawyer’s take

posted at 5:19 pm on April 3, 2012 by Allahpundit

Via Ace. Serious question for appellate lawyers: Is it S.O.P. for judges to introduce comments made outside the courtroom by one of the parties to the litigation in this way? Unless I missed something, the DOJ wasn’t and isn’t arguing Obama’s moronic claim yesterday that the Supremes striking down ObamaCare would be “unprecedented.” It sounds like Judge Smith (a Reagan appointee) was simply honked off at The One’s demagoguery in the Rose Garden and wanted to upbraid him for it.

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, 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.”

They ordered the DOJ to submit a three-page letter stating its position on judicial review by noon on Thursday, even though the Department’s lawyer conceded that Marbury v. Madison is good law and even though Obama himself never went so far yesterday as to say that the Supreme Court lacks the power to overturn laws. He said overturning ObamaCare specifically would be “unprecedented,” but no true-blue Warren-Court-loving lefty like The One would ever seriously impugn judicial review. And the Fifth Circuit knows it. What they’re doing here is humiliating him as a way of getting him to stop the demagoguery, with the letter acting as the equivalent of a kid writing on the blackboard as punishment after class. “I will not question Marbury v. Madison, I will not question Marbury v. Madison, I will not question…” Rest assured, a liberal court will pay President Romney back for this somehow at some point. And in fact, O might use the letter as a political opportunity. Now that there’s bound to be intense media interest in it, he could explain in it why (a) yes, of course he accepts judicial review, unlike that darned Newt Gingrich who wants to haul judges before Congress, and (b) it would nonetheless be kinda sorta “unprecedented” to use judicial review on his pet health-care legislation.

He elaborated a bit on that last point today:

“We have not seen a court overturn a law that was passed by Congress, on a economic issue, like healthcare — like I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner [vs New York, 1905],” Obama told reporters during the question-and-answer session of the Associated Press luncheon…

“The point that I was making is that the Supreme Court is the final say on our Constitituon and our laws, and all of us have to respect it,” Obama said. “But it precisely because of that extraordinary power that the court has trad exercise significant restraint” when considering laws passed on the basis of the Commerce Clause.

His point is that the two landmark cases over the past 20 years in which the Court struck down laws passed under the Commerce Clause didn’t really have to do with commerce. One was a gun-control measure and the other was the Violence Against Women Act. In those cases, he’s saying, you can understand why the Court would object: The statutes are targeting activity that isn’t really commercial in the guise of “commercial” regulation. In this case, with O-Care, the activity in question really is commercial. All of which is super, but it’s based on the standard liberal idea that there really is no conceptual limit to the Commerce Clause except the Bill of Rights. As long as Congress is genuinely trying to regulate commercial activity and they don’t step on any First or Second Amendment rights, they can pretty much go nuts. Just vote ‘em out if they do. Who needs enumerated powers?

Via the Daily Caller, here’s Scarborough wondering why a con law prof would go out of his way to blur the lines on separation of powers. Elections, dear boy, elections!

Update: A friend who’s an appellate lawyer answers my question in the intro:

It is not common for appeals courts to introduce party statements from outside the courtroom and demand explanations, but that’s only because most litigants aren’t dumb enough to make statements outside the courtroom likely to impact their cases. The notable exception to that general rule is the government-as-litigant, which, because it is led by politicians and ever-shifting public policy, is more likely than most litigants to have to explain statements or policies that may run against its best legal interests.

I’ll give you just two recent examples, where appellate courts have done like the Fifth Circuit did here. First, when the Obama Administration announced its decision to not defend DOMA even while it continues to enforce DOMA, several judges in DOMA-related cases (and a few in barely-related cases) demanded that DOJ explain. Those demands for explanation came from both Republican- and Democrat-appointed judges. Second, after months of the Administration attempting to push its “prosecutorial discretion” policy with respect to aliens in removal proceedings, the Ninth Circuit finally fed up with the apparent collision of the Administration’s announced discretion policy and the actual prosecutorial decisions of DHS, demanded in five test cases that DOJ explain what the discretion policy actually entailed and what that means for the Ninth Circuit’s cases. So this happens and it’s not the first time for Obama’s Administration.

As you noted, DOJ isn’t arguing President Obama’s “unprecedented” talking point with respect to the healthcare reform law. DOJ’s not that stupid. But from the courts’ point of view, that is a reason to be more concerned by Obama’s statement, not less. If Obama is announcing a shift in the Executive Branch’s position, of which DOJ is a part, then the courts are entitled to ask about it. Now, you and I and the judges know that Obama’s probably not announcing policy changes in what was just a campaign speech. But words have consequences, particularly for litigants. The courts may choose take Obama at his word, unless he explains that it was just a campaign speech and not intended to represent the position of the Executive Branch on the matter. 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.


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What everybody is missing is the old saw, “Republicans run for President, Democrats run for King”

Obama sees himself as a ruler, not an executive. He is utterly flabbergasted that SCOTUS would even consider overruling his Obamacare Health Plan. After all, HE is THE RULER and they are mere functionaries.

He cannot abide opposition, as he has demonstrated time and again and considers Congress and SCOTUS not as coequals but opponents.

schmuck281 on April 3, 2012 at 9:59 PM

If they dare strike down this law a crusade of enormous proportion will be put up against the activist political court.

liberal4life on April 3, 2012 at 5:44 PM

Bring it.

St Gaudens on April 3, 2012 at 10:03 PM

Obama’s total ignorance of the law causes me to wonder how he ever passed the bar. Does anyone know whether it would have been possible to pay someone to take the bar for you back in the 80′s? Was there a strict photo ID policy back then?

talkingpoints on April 3, 2012 at 7:01 PM

He understands the law, he just thinks it is despicable. He pretends he doesn’t know it as a way of begging the question to push public opinion his way and to bully the court into yielding. He knows that anything unconstitutional isn’t fought against by conservatives. Conservatives fought the New Deal until it was passed, and then accepted it. He wants to do the same. He knows the only people who would fight his fait accompli then are the Ron Paul-ites.

ebrawer on April 3, 2012 at 10:05 PM

“…“unprecedented” to use judicial review on his pet health-care legislation.”

So the law has morphed into pet health care!? I knew it was coming!!

leftnomore on April 3, 2012 at 10:07 PM

That was truly epic.

I am curious to see whether the DOJ attorney writes the letter. I sure would not, but it is not my case before the 5th Circuit.

milcus on April 3, 2012 at 10:24 PM

The ‘update’ is a beautiful thing.

faraway on April 3, 2012 at 10:34 PM

If they dare strike down this law a crusade of enormous proportion will be put up against the activist political court.

liberal4life on April 3, 2012 at 5:44 PM

Ah, you miss the point, as usual, from what I’ve seem lately.

If they dare NOT strike down this law, a crusade of enormous proportion will be put up against the activist political Congress and the White House such that none has seen in remembered history.

One has to remember that remembered history now only goes back to our grandparents, and the experiment shoved through the Supreme Court by Truman in the 30′s that has led directly to the entitlement society, which many of us fund while we grind our fingernails to the bone and listen to the drivel on NBC, ABC, CBS, MSNBC, NPR that the system is failing simply because we aren’t working hard enough.

Enough is the operative word here my Friend.

Tenwheeler on April 3, 2012 at 10:35 PM

It sounds like Judge Smith (a Reagan appointee) was simply honked off at The One’s demagoguery in the Rose Garden and wanted to upbraid him for it.

If Judges routinely legislate from the bench, why would something as small as reminding the Anointed One who really rules be a problem?

JIMV on April 3, 2012 at 10:46 PM

I like Judge Smith’s approach with the homework assignment to see if sleazy Eric Holder and his Just-Us elf arguing a DOJ case share Dictator Zero’s opinion that the courts are his servants answerable to Zero than to the People.

Sleazy Eric Holder has been harassing the States of Texas, Arizona, Alabama etc. because Holder (and Zero) don’t like the laws those states have passed especially with regard to illegals. I can understand why Judge Smith isn’t merely questioning Zero’s hostility to the Supreme Court but also hostility towards the rights of the citizens and the states Holder is persecuting under the guise of prosecution.

viking01 on April 3, 2012 at 11:15 PM

Judge Smith’s demand that the assignment be a minimum of three pages, single-spaced also stings of a teacher sufficiently displeased with problem-student Holder that no dog-ate-it or single page, triple-spaced, copied from the encyclopaedia will be accepted from a punk Attorney General whose home address most likely should be Block 9, Cell 37, Riker’s Island, NYC.

viking01 on April 3, 2012 at 11:21 PM

I’m not sure if I agree with what the Judge did, but it was sweet!

Red State State of Mind on April 3, 2012 at 11:42 PM

viking01 on April 3, 2012 at 11:15 PM

That “homework” thing has been used by SCOTUS before.

See “Bush V. Gore”…

After the All-Democrat Florida Supreme Court’s first Judicially Activist Ruling was reviewed by SCOTUS, they smacked it down 9-0 in favor of Bush.

They then sent it back and invited the same 8 Democrat Justics to try again.

That one got smacked down by SCOTUS 7-2 in favor of Bush.

Funny how you never hear of those first two rulings, just the 3rd and Least Relevant 5-4 one…wonder why that is?

Can you say “Bitterly Divided”?

Del Dolemonte on April 3, 2012 at 11:53 PM

Courts have the powers to strike down laws, and even Obamacare if it’s unconstitutional.

But honestly, I’m getting really tired of armchair lawyers (on both sides) getting upset when a decision doesn’t go their way.

You think all the people on the right defending judicial activism now re: Obamacare think the same way re: abortion or gay rights?

Didn’t think so.

triple on April 4, 2012 at 3:09 AM

Hey, The One could use a little reminder how Separation of Powers works now and then, and if we can make a spectacle of it all the better. Don’t fret about how the MSM will try to twist it so much, AP.

R. Waher on April 4, 2012 at 4:13 AM

triple on April 4, 2012 at 3:09 AM

Try again…that was some epic failure.

tom daschle concerned on April 4, 2012 at 5:03 AM

He cannot abide opposition, as he has demonstrated time and again and considers Congress and SCOTUS not as coequals but opponents.

schmuck281 on April 3, 2012 at 9:59 PM

This is the fatal flaw that brought down his father. Down goes Obama at the polls.

DevilsPrinciple on April 4, 2012 at 6:34 AM

One thing judges do not like is when people try to talk down to them and tell them they have to do this or they cannot do that. The president’s comments may have done more him more harm than good, at least in the Supreme Court.

Jeff A on April 4, 2012 at 6:35 AM

If they dare strike down this law a crusade of enormous proportion will be put up against the activist political court.

liberal4life on April 3, 2012 at 5:44 PM

lol… Your empty threats are a tempest in a teapot.

DevilsPrinciple on April 4, 2012 at 6:38 AM

They ordered the DOJ to submit a three-page letter stating its position on judicial review by noon on Thursday

Don’t forget the single-spaced part. LOL!

Why do I get the sense that Eric Holder is the type of lazy human being that will submit something in a 24-point font just to make it three pages- just like an immature teenager with a homework assignment.

Of course, with this assignment, we know that Eric Holder will actually read it and that no border agents will be killed.

Happy Nomad on April 4, 2012 at 7:27 AM

lol… Your empty threats are a tempest in a teapot.

DevilsPrinciple on April 4, 2012 at 6:38 AM

Perhaps we could try not feeding the troll for a day. Just sayin’ After all, it is like groundhog day in that she posts the same stupid talking points each day.

Happy Nomad on April 4, 2012 at 7:29 AM

The president’s comments may have done more him more harm than good, at least in the Supreme Court.

Jeff A on April 4, 2012 at 6:35 AM

It is inexplicable to me what the jug-eared idiot thinks he can accomplish by bullying the SCOTUS in the media. Essentially saying that the SCOTUS should uphold Obamacare because of all the good things it will do for people. In other words, ignore the Constitution and pass my signature legislation because I told you to do so. The unprecedented comment and sudden interest in judicial activism (which he incorrectly describes) is nothing but preening and posturing by a man very angry people are not giving him credit for delivering socialized medicine to the United States.

Either, as I suspect, Kagan or some other individual on the inside leaked the result of the initial vote on this case and he is lashing out because he knows that Obamacare is dead if the SCOTUS doesn’t buy the individual mandate. Or, he is trying to go around the SCOTUS and trying to get a groundswell of manufactured outrage while the SCOTUS is considering this issue (including the usual HA trolls endlessly posting about the unelected rejecting the law passed by duly elected individuals). In either case, it was very unpresidential and inappropriate.

Happy Nomad on April 4, 2012 at 7:37 AM

In the military, Obummer’s comments would be considered “Command influence” and a big no-no.

I can’t wait for Jan ’13 and new President (fill in the blank).

Dexter_Alarius on April 4, 2012 at 8:25 AM

All Hail Obama!
All Hail the State!

Parasite4life

Bevan on April 4, 2012 at 9:08 AM

Rest assured, a liberal court will pay President Romney back for this somehow at some point.

Allah is a funny dude.

angryed on April 4, 2012 at 9:27 AM

I keep going back to that State of the Union address in 2010, where Obama says ‘with all due respect to separation of powers’ and then dogs the Justices in front of Congress and a TV audience. Now, he is trying to bully them again. ROFLMAO. I don’t think the Supreme Court likes to be bullied.

Yeah, the SCOTUS opinion of Obamacare is going to be soooo sweet.

bitsy on April 4, 2012 at 9:35 AM

Words have meaning, so I have to take exception to these statements by our lawyer, and respectfully would submit that he has it wrong:

As you noted, DOJ isn’t arguing President Obama’s “unprecedented” talking point with respect to the healthcare reform law. DOJ’s not that stupid.

DOJ is most certainly “that stupid” and is more stupid than is even conceivable, considering that DOJ is involved in the Black Panther Voter Intimidation Felony cover-up, Operation Gunwalker and Fast and Furious. And, Eric Holder as head of DOJ is certainly so stupid as to refer to “my people” when testifying to Congress.

DOJ’s not that stupid? Oh yes. They are. They are “that stupid.”

mountainaires on April 4, 2012 at 9:43 AM

I think the real message out of all this, is that Obozo would happily become a tyrant, or at least a dictator, if he could. The sheer brilliance of our founding fathers in putting in place not only the framework of a functioning society, but of limited government has never been more obvious.

KMC1 on April 4, 2012 at 9:43 AM

Scarborough wondering why a con law prof would go out of his way to blur the lines on separation of powers

HE WASN’T A “CON LAW PROF”. HE WAS AN ADJUNCT LECTURER, THE LOWEST RANK.

Hopefully that clears it up for the lame-a$$-media.

Nutstuyu on April 4, 2012 at 10:07 AM

Does anyone know whether it would have been possible to pay someone to take the bar for you back in the 80′s? Was there a strict photo ID policy back then?

talkingpoints on April 3, 2012 at 7:01 PM

With the Illinois Bar, anything’s possible. I mean Blago was able to get a law license.

Nutstuyu on April 4, 2012 at 10:11 AM

Words matter Mr. President, words matter.

WordsMatter on April 4, 2012 at 10:13 AM

One has to remember that remembered history now only goes back to our grandparents, and the experiment shoved through the Supreme Court by Truman in the 30′s that has led directly to the entitlement society, which many of us fund while we grind our fingernails to the bone and listen to the drivel on NBC, ABC, CBS, MSNBC, NPR that the system is failing simply because we aren’t working hard enough.

Tenwheeler

Wasn’t it FDR who shoved the entitlement society experiment through the Supreme Court in the 30′s? Truman wasn’t President during the 30′s, and didn’t become Vice President until 1945.

Steve Z on April 4, 2012 at 10:17 AM

Scarborough wondering why a con law prof would go out of his way to blur the lines on separation of powers

HE WASN’T A “CON LAW PROF”. HE WAS AN ADJUNCT LECTURER, THE LOWEST RANK.

Scarborough was half right. Obama was, and is, a CON artist.

Steve Z on April 4, 2012 at 10:19 AM

The irony here is that Obama’s inference that the courts seems to be increasingly guided by political, rather than constitutional, arguments, is giving a full throated ‘indeed!’ by the 5th Circuit.
Roberts may have been irritated by Obama’s comment – but I’m betting he was infuriated by Judge Smith’s remarks.
Roberts has worked hide to veil the federalist society mandate he’s instructed by…

verbaluce on April 4, 2012 at 10:48 AM

[M]ost litigants aren’t dumb enough to make statements outside the courtroom likely to impact their cases.

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.

There is tremendous insight in the judge’s comments. I would think it is possible for a party in a case, such as the United States of America, to make a public statement that could be considered an admission in the courtroom. While that would seem to apply more to factual issues, I don’t see why it couldn’t be used to preclude a party — here the government — from taking a position in the courtroom that is at loggerheads with one it’s CEO has announced to much public fanfare.

EconomicNeocon on April 4, 2012 at 11:17 AM

If they dare strike down this law a crusade of enormous proportion will be put up against the activist political court.

liberal4life on April 3, 2012 at 5:44 PM

What will you do? Whine and stamp your feet? Burn the judges in effigy? Stage a sit-in? Hold a candlelight vigil?

Liberals seems to be itching for a real dose of class warfare in the form of civil conflict–I feel sorry for them if they get it–because it’s a fight they will lose and lose badly.

zoyclem on April 4, 2012 at 12:14 PM

“Oh, and since you obviously missed it, that whole thing with Anita Hill has pretty much been proven to be absolute BS.

Meople on April 3, 2012 at 5:58 PM”

Just recently I learned that Big Sis was one of Anita Hill’s lawyers during that fiasco.

Amazing, isn’t it – what a small world progressives inhabit? Small world for their small…ness.

GGMac on April 4, 2012 at 4:15 PM

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.”

Actually, they are elected. The Senate votes….that would be the “Consent” part of “Advice and Consent of the Senate”.

So Obama is wrong technically, figuratively, legally, morally, and every which way but loose.

BobMbx on April 4, 2012 at 5:50 PM

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