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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Activist justices, thuggery from the bench is not okay, and it is good that the President put them on the spot. These clowns have had a free ride for far too long.

0bamaderangementsyndrom on April 3, 2012 at 6:22 PM

Excuse me? Thuggery from the bench? Your precious President “put them on the spot” with egregiously flawed reasoning in an attempt to intimidate a co-equal branch of the Federal government. You want “thuggery”? There you have it.

FYI – an “activist judge” is not “a judge who disagrees with you”.

JeffWeimer on April 3, 2012 at 6:27 PM

i love watching mika sqirm in her seat.

sbvft contributor on April 3, 2012 at 6:27 PM

good for the judge…but i can see a lib judge being an idiot….

cmsinaz on April 3, 2012 at 6:27 PM

It’s just sad that 3 years of Obama’s spending have already outpaced 8 years of Bush’s spending.

JadeNYU on April 3, 2012 at 6:22 PM

Heck, he’s outspent the aggregate of all previous administrations, and gotten our credit downgraded.

dogsoldier on April 3, 2012 at 6:27 PM

ask what your country can do for ME ME ME!!! the greatest country in the world ever ever ever of all time but our poor and jobless can go to hell hey don’t need health care. you guys say you love this country but of course you don’t. you only love those who think like u and have $$$$$$ you really don’t give a damn about this country because you don’t care about the welfare of it’s citizens just what goes into your pockets! i hope your children don’t grow up to be as selfish as u.

DBear on April 3, 2012 at 5:55 PM

You would be funny if we didn’t know what you and your fellow welfare pigs were blowing the money on.

You steal from people, then waste the money.

What a bunch of sick, perverted fools you and your Obama, the liar who supported and endorsed this piggish spending, are.

northdallasthirty on April 3, 2012 at 6:28 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 on, Libtard4Life. Even a majority of Democrats want the IM struck down.

You’re Only Against The Obamacare Mandate Because There’s A Black Man Living In The White House And You Want To See Faux Hispanic – White Jews Shoot Blacks Wearing Hoodies, Who Are Armed Only With Skittles & Iced Teas! Don’t You Dare Claim Otherwise, You KKKrackers!

Besides, sweets, why the hell do you think that the CBO and the CRS advised both the Clinton administration and Congress that the individual mandate was unprecedented and almost certainly unconstitutional?

WEAPONS. GRADE. STUPID.

Resist We Much on April 3, 2012 at 6:28 PM

I’d like to thank the appellate lawyer for clarifying things. Allah was too busy trying to explain away what ObaMao said.

cicerone on April 3, 2012 at 6:28 PM

There are few things better then unhinged, upset morale busted trolls. This thread was fun to watch. You trolls are really, really scared. Funny!

Bmore on April 3, 2012 at 6:28 PM

a lib judge will be even worse when the gop president comes aboard

cmsinaz on April 3, 2012 at 6:30 PM

and why did we need some form of stimulus? it wasn’t like the country was losing 750,000 jobs a month when Obama took over was it? who was president when the crash happened? must be that amnesia again. i can’t argue with 20 different intellectually dishonest people all at once so y’all have a good one

DBear on April 3, 2012 at 6:11 PM

We were doing pretty good until Pelosi and Reid took over Congress in 2007. Two years of Democrat control of the purse strings and it all went to hell.

Spliff Menendez on April 3, 2012 at 6:30 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

And you continue to prove why Libbies are not respected here….

ProfShadow on April 3, 2012 at 6:31 PM

Fifth Circuit Court of Appeals bitch slapped Barry.

joecollins on April 3, 2012 at 6:31 PM

obama is not helping his doj is he….heh

cmsinaz on April 3, 2012 at 6:32 PM

Activist justices, thuggery from the bench is not okay, and it is good that the President put them on the spot. These clowns have had a free ride for far too long.

0bamaderangementsyndrom on April 3, 2012 at 6:22 PM

Shall we discuss the clowns on the United States Court of Appeals for the Ninth Circuit?

ladyingray on April 3, 2012 at 6:32 PM

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

libtard4life on April 3, 2012 at 5:44 PM

That’s funny, the Left just loves ‘em some judicial activism out in the Ninth Circuit. And they’ve loved it on the Supreme Court in the past. Surprise, surprise, surprise! Leftists are pathologically hypocritical.

cicerone on April 3, 2012 at 6:33 PM

It’s just sad that 3 years of Obama’s spending have already outpaced 8 years of Bush’s spending.

JadeNYU on April 3, 2012 at 6:22 PM

Heck, he’s outspent the aggregate of all previous administrations, and gotten our credit downgraded.

dogsoldier on April 3, 2012 at 6:27 PM

Hence our Dear Liar’s Nickname: Barack Hussein – Downgrade – Obama[Peas be upon him]

The natural progress of things is for liberty to yield, and government to gain ground. Thomas Jefferson

Chip on April 3, 2012 at 6:33 PM

Quick request to liberal4life, DBear, 0bamaderangementsyndrom, et al:

Please define “Judicial Activism” for us.

zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz

Del Dolemonte on April 3, 2012 at 6:34 PM

I’d like to thank the appellate lawyer for clarifyingthings.Allahwas toobusy tryingtoexplain away what ObaMao said.

cicerone on April 3, 2012 at 6:28 PM

Yeah, AP reallyhas been working hard to carry Democrat water. You’d think Obama was a genuine nice guy who is just in over his head reading his posts lately.

Spliff Menendez on April 3, 2012 at 6:34 PM

Nice Going Obama, you just had to pick a fight with the entire judicial system.

eva3071 on April 3, 2012 at 6:35 PM

Quick request to liberal4life, DBear, 0bamaderangementsyndrom, et al:

Please define “Judicial Activism” for us.

zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz

Del Dolemonte on April 3, 2012 at 6:34 PM

“We heard it on Maddow last night and it sounds smart.”

Chuck Schick on April 3, 2012 at 6:35 PM

PBHO is kind of like a god figure, standing above it all and being godly. And cool. Godly and cool.

Bishop on April 3, 2012 at 5:38 PM

Hey Bish, you forgot “black”. The Godly Cool Black Guy Presidente

Harbingeing on April 3, 2012 at 6:35 PM

Quick request to liberal4life, DBear, 0bamaderangementsyndrom, et al:

Please define “Judicial Activism” for us.

zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz

Del Dolemonte on April 3, 2012 at 6:34 PM

Judicial activism is when judges don’t toe the progressive line.

Spliff Menendez on April 3, 2012 at 6:35 PM

Activist justices, thuggery from the bench is not okay, and it is good that the President put them on the spot. These clowns have had a free ride for far too long.

0bamaderangementsyndrom on April 3, 2012 at 6:22 PM

Time to just do away with the Judicial Branch, eh comrade? Judges are a real nuisance to fledgling dictators, aren’t they?

cicerone on April 3, 2012 at 6:36 PM

The natural progress of things is for liberty to yield, and government to gain ground. Thomas Jefferson

Chip on April 3, 2012 at 6:33 PM

I like that quotation!

dogsoldier on April 3, 2012 at 6:36 PM

the supreme court is now a political court.

KeninCT’s Date on April 3, 2012 at 5:22 PM

Thanks so much for admitting that SCOTUS wasn’t a political court in December of 2000.

Del Dolemonte on April 3, 2012 at 6:36 PM

Hee Haw justice. Any tornadoes near by?

KeninCT on April 3, 2012 at 5:28 PM

You mean those three horribly ugly, Birkenstock wearing, hairy armpits and legs sporting, Democrat women appointees? Those three paragons of style and elegance?

Night Owl on April 3, 2012 at 6:36 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

I love this new tone of civility now that the ‘adults’ are in charge.

ghostwalker1 on April 3, 2012 at 6:37 PM

0bamaderangementsyndrom

Do you consider the MA State Supreme Court that voted to legalize gay marriage against the demonstrated majority position of the general electorate an activist court? How about the supreme court that decided in Roe v. Wade? My guess is not.

Huckabye-Romney on April 3, 2012 at 6:37 PM

What Mitt wasn’t able to do, unite his side, Obama has managed.

Laughing at the clowns is so much fun.

Schadenfreude on April 3, 2012 at 6:37 PM

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.

AP, unfortunately your friend is wrong. Obama is supposed to do both, but hardly ever does. He focuses almost exclusively on the former.

Schadenfreude on April 3, 2012 at 6:04 PM

I hope you meant on the latter (re-election) as he is not leading the U.S., except perhaps into an abyss.

IrishEyes on April 3, 2012 at 6:37 PM

It’s fun to watch liberals come unhinged.

wargamer6 on April 3, 2012 at 6:38 PM

Reading the comments left here…..obviously by liberals/obama supporters…..it Amazes me, to no end.
They don’t want to ‘think’ at all, it seems. They just want to love obama, no matter WHAT.

That’s freakin’ scary…and quite sad.

bridgetown on April 3, 2012 at 6:38 PM

Judicial activism is Vaughn Walker illegally removing proposition 8 due to his own personal needs.
.
Judicial activism is the Ninth Circus Court creating all sorts of new additions to the bill of rights and turning over legislation left and right.
.
Unelected activity are the pranks of all the czars creating rules to cripple business and energy production.

FactsofLife on April 3, 2012 at 6:38 PM

“I will not question Marbury v. Madison, I will not question Marbury v. Madison, I will not question…”

Is Slublog on this thread? I’d like to see one of his photoshops.

Bart Simpson/Obama writing this on the blackboard.

Wethal on April 3, 2012 at 6:39 PM

Huckabye-Romney on April 3, 2012 at 6:37 PM

They are never truly liberal/progressive, just, free, independent.

They believe in judicial activism, though they don’t know what it really is, only when it benefits them.

These are ignorant thugs. Arm yourself and starve them.

Schadenfreude on April 3, 2012 at 6:39 PM

Thanks so much for admitting that SCOTUS wasn’t a political court in December of 2000.

Del Dolemonte on April 3, 2012 at 6:36 PM

Ken thanks you for making it appear that he has a date.

Chuck Schick on April 3, 2012 at 6:39 PM

the supreme court is now a political court.

KeninCT’s Date on April 3, 2012 at 5:22 PM

Do you guys pass around a sheet of dopey one liners before you come here to post? L4L said exactly the same thing comrade.

dogsoldier on April 3, 2012 at 6:39 PM

bridgetown on April 3, 2012 at 6:38 PM

It’s like hearing a battered woman say, “but I love him and he loves me and he will change”…..right before she is actually killed by said man.

bridgetown on April 3, 2012 at 6:39 PM

You mean those three horribly ugly, Birkenstock wearing, hairy armpits and legs sporting, Democrat women appointees? Those three paragons of style and elegance?

Night Owl on April 3, 2012 at 6:36 PM

Thanks for that visual. Now I have to bleach my mind’s eye and shave my computer.

ghostwalker1 on April 3, 2012 at 6:40 PM

the hacktivist neocons on the supreme court are not infallible they already dealt 2 major blows to freedom w/ Bush v. Gore and Citizens United

DBear on April 3, 2012 at 5:23 PM

Er, SCOTUS ruled in favor of Bush in 2000 by the following margins, in the following order:

9-0

7-2

5-4

Are you trying to claim that the first 9-0 ruling against Gore and the second 7-2 ruling against Gore were “Judicial Activism”?

Del Dolemonte on April 3, 2012 at 6:40 PM

special report all stars talking about this right now….

should be fun

cmsinaz on April 3, 2012 at 6:40 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

Ha!!! When this crap sandwich was passed, America responded by giving the Republicans their largest gains in the House since 1938. Now, if it gets shot down by the Supremes, there will be a popular uprising, a crusade against the Court for killing a law that the majority of Americans have hated since Day 1? Please. Even you can’t believe the nonsense that comes out of your mouth. Turn off the computer and go to bed. You’re not even funny anymore…

joejm65 on April 3, 2012 at 6:40 PM

the supreme court is now a political court.

KeninCT’s Date on April 3, 2012 at 5:22 PM

If the Dim-o-crats hadn’t violated the Constitution then they wouldn’t be in this embarrassing mess. Stop assaulting the Constitution.

cicerone on April 3, 2012 at 6:40 PM

I hope you meant on the latter (re-election) as he is not leading the U.S., except perhaps into an abyss.

IrishEyes on April 3, 2012 at 6:37 PM

Indeed, IE, and thank you so much. I’ll repost correctly.

Schadenfreude on April 3, 2012 at 6:40 PM

Bret Baier discussing now…

Buy Danish on April 3, 2012 at 6:41 PM

Next I expect little Bammie will tell the Supreme Court “I am all that stands between you and the pitchforks”.

slickwillie2001 on April 3, 2012 at 6:41 PM

Federal judges can kind of do what they want short of murder and blackmail. So while it isn’t “usual” for a judge to bring up something that happened outside of the court room, he certainly can if he wants. FWIW, I used to practice before the US 5th Circuit (when I lived in NOLA) & I remember Judge Smith — he must be in his 60s now & I think he is from Texas. Anyway, he’s pretty much a hard@ss judge. It seems the attorney for the DOJ handled it properly.

Dark Star on April 3, 2012 at 6:41 PM

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.

AP, unfortunately your friend is wrong. Obama is supposed to do both, but hardly ever does. He focuses almost exclusively on the latter.

Schadenfreude on April 3, 2012 at 6:41 PM

agreeing with morning joe, whoda thunk it.

cmsinaz on April 3, 2012 at 6:41 PM

Do you consider the MA State Supreme Court that voted to legalize gay marriage against the demonstrated majority position of the general electorate an activist court? How about the supreme court that decided in Roe v. Wade? My guess is not.

Huckabye-Romney on April 3, 2012 at 6:37 PM

Or Griswald v. Connecticut

NoFanofLibs on April 3, 2012 at 6:41 PM

Do you consider the MA State Supreme Court that voted to legalize gay marriage against the demonstrated majority position of the general electorate an activist court? How about the supreme court that decided in Roe v. Wade? My guess is not.

Huckabye-Romney on April 3, 2012 at 6:37 PM

trying to convince them with facts may not work. Their minds are made up.

dogsoldier on April 3, 2012 at 6:42 PM

i can see DWS and Axlerod being total a$$es about this issue….guaranteed

cmsinaz on April 3, 2012 at 6:42 PM

What a great day this turned out to be.

Schadenfreude on April 3, 2012 at 6:43 PM

Schadenfreude on April 3, 2012 at 6:43 PM

pass the popcorn over here

cmsinaz on April 3, 2012 at 6:43 PM

Bmore, dogsoldier and a few others, glad to have made you smile, or help out a tad.

Schadenfreude on April 3, 2012 at 6:43 PM

dear leader trying to backtrack on his comments…..

lololol

cmsinaz on April 3, 2012 at 6:44 PM

cmsinaz on April 3, 2012 at 6:43 PM

You got it. What Mitt fails to do, Obama does for him – he unites all factions against the rogue left.

Schadenfreude on April 3, 2012 at 6:45 PM

Øbama thinks he’s FDR. I knew FDR. FDR was a friend of mine, and Øbama is no FDR.

Dear Leader is picking a losing fight.

Good. Bring it.

petefrt on April 3, 2012 at 6:45 PM

A fool is a fool is a fool.

Sometimes it takes a little bit – but a fool will always expose themselves for what they are.

I may donate a few bucks to Obama – just to make sure he keeps talking and traveling.

Odie1941 on April 3, 2012 at 6:45 PM

What a great day this turned out to be.

Schadenfreude on April 3, 2012 at 6:43 PM

It really was and is. ; )

Bmore on April 3, 2012 at 6:45 PM

Schadenfreude on April 3, 2012 at 6:45 PM

indeed my friend

*clink*

it’s bowling night, will check you all in the open thread in between frames…drink one for me tonight

cmsinaz on April 3, 2012 at 6:46 PM

the supreme court is now a political court.

KeninCT’s Date on April 3, 2012 at 5:22 PM

No it isn’t.

It’s only magically becomes “political” when decisions you don’t like are made. And this is one, and a big one, becuase you flaunted the Constitution and now it’s going to bite your President in his hyper-politicizing butt.

Abiding by the Constitution does not make the court political. Deviating from it to write your own laws from the bench based on (X, if X is defined as “not he Constitution”)does.

You want the latter, and you’re not getting it. Deal.

Good Lt on April 3, 2012 at 6:46 PM

They don’t want to ‘think’ at all, it seems. They just want to love obama, no matter WHAT.

That’s freakin’ scary…and quite sad.

bridgetown on April 3, 2012 at 6:38 PM

“I don’t care. obaka is awesome.”

ladyingray on April 3, 2012 at 6:46 PM

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

Because he’s an idiot, talking to other idiots!

Hey Joey! He’s YOUR man!

GarandFan on April 3, 2012 at 6:47 PM

petefrt on April 3, 2012 at 6:45 PM

where’s our favorite pic of dear leader :)

cmsinaz on April 3, 2012 at 6:47 PM

dogsoldier on April 3, 2012 at 6:42 PM

Thank you for the fun dogsoldier. ; )

Bmore on April 3, 2012 at 6:47 PM

cmsinaz on April 3, 2012 at 6:46 PM

Have fun. I don’t drink, for no reason, but will raise one for you, just for good cheer :)

Schadenfreude on April 3, 2012 at 6:47 PM

It’s the kind of antics you’d expect from a banana republic.

bayam on April 3, 2012 at 5:28 PM

Hey Mister Tally-man! Can I have a Banana?

Del Dolemonte on April 3, 2012 at 6:47 PM

I stumbled onto Jamie Duprie on the radio this morning, he is a “localish” reporter who tries and does a good job of being down the middle. He was really surprised at The Won’s comments and tried to find a similar situation in history. The best he could come up with was Andrew Jackson.

Cindy Munford on April 3, 2012 at 6:47 PM

DBear on April 3, 2012 at 5:55 PM

At least they won’t grow up to be a slaver like you. Nice justification for selling our progeny into penury slavery for your dreams of Utopia.

chemman on April 3, 2012 at 6:47 PM

What a great day this turned out to be.

Schadenfreude on April 3, 2012 at 6:43 PM

It really was and is. ; )

Bmore on April 3, 2012 at 6:45 PM

Agreed.

GaltBlvnAtty on April 3, 2012 at 6:48 PM

dogsoldier on April 3, 2012 at 6:42 PM

If you’re retired, thank you. If not, be very careful, and know we’re not all idiots out here, even though the majority of the land appears to be in a stupor.

Schadenfreude on April 3, 2012 at 6:48 PM

the supreme court is now a political court.

KeninCT’s Date on April 3, 2012 at 5:22 PM

QueenieinCT,

Was the Supreme Court a “political court” when it struck down portions of the Military Commissions Act of 2006 in Boumediene v. Bush and Al Odah v. United States or when it struck down military commissions set up by the Bush administration to try detainees at Guantanamo Bay due to the lack “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949″ in Hamdan v. Rumsfeld or when it granted habeas corpus rights to a foreign national, who never stepped foot on American soil (a first), in Hamdi v. Rumsfeld or is the Court only a “political court” when it refuses to create new Federal powers out of whole cloth to please people like you?

Resist We Much on April 3, 2012 at 6:49 PM

Bmore, dogsoldier and a few others, glad to have made you smile, or help out a tad.

Schadenfreude on April 3, 2012 at 6:43 PM

Thank you. You did indeed and I was sore in need of good cheer. I joined the unemployed last week and it neither suits nor pleases.

dogsoldier on April 3, 2012 at 6:49 PM

I stumbled onto Jamie Duprie on the radio this morning, he is a “localish” reporter who tries and does a good job of being down the middle. He was really surprised at The Won’s comments and tried to find a similar situation in history. The best he could come up with was Andrew Jackson.

Cindy Munford on April 3, 2012 at 6:47 PM

Hello neighbor! I am assuming you heard Jamie on WSB in Atlanta. I am in Roswell.

NoFanofLibs on April 3, 2012 at 6:49 PM

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

libtard4life on April 3, 2012 at 5:44 PM

Kind of like to pro-life movement, a crusade of enormous proportions, after an activist court’s Roe v. Wade decision.

Wethal on April 3, 2012 at 6:50 PM

Krauthammer put it perfectly: Obama thinks judicial activism is whenever a judge disagrees with him.

LASue on April 3, 2012 at 6:50 PM

oh yes, what a tyrant! god forbid people don’t have to go bankrupt because they get sick in the greatest country ever ever in everdom never mind every other civilized country has universal health care and the sky has not fallen. what exactly has the GOP done for health care except EXPAND the entitlement state w/ Medicare part D? an unpaid for big giveaway to big pharma! oh yes let’s put that party back in charge sure miss the Bush years of terrorist attacks, boneheaded invasions and expansion of government!

DBear on April 3, 2012 at 5:30 PM

LOL- I did not realize you people would go ballistic over this!

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 are you going to do? Throw buckets of poop?

Night Owl on April 3, 2012 at 6:51 PM

I stumbled onto Jamie Duprie on the radio this morning, he is a “localish” reporter who tries and does a good job of being down the middle. He was really surprised at The Won’s comments and tried to find a similar situation in history. The best he could come up with was Andrew Jackson.

Cindy Munford on April 3, 2012 at 6:47 PM

HA Obamabot response:

AND LOOK WHERE HE ENDED UP – ON THE $20 BILL!

GO OBAMA!

Good Lt on April 3, 2012 at 6:51 PM

If anyone cares at the end of this long thread, the 5th Circuit posts the audio of its oral argument daily, so here it is:

11-40631
Physician Hospitals of America, et al v. Kathleen (I’m guessing Sebelius of HHS)

http://www.ca5.uscourts.gov/OralArgRecordings/11/11-40631_4-3-2012.wma

Haven’t listened yet to peg the exact time of the confrontation.

BCrago66 on April 3, 2012 at 6:52 PM

Since the noted intellectual giant Justice Soda My Oar believes that policy is made from the bench, perhaps knowing President Obumble’s point of view would be helpful to the Circuit Court.

The Reasonable Man on April 3, 2012 at 6:52 PM

I think the judiciary is about to get the little dictator’s number, and it’s about time.

rplat on April 3, 2012 at 6:53 PM

Schadenfreude on April 3, 2012 at 6:47 PM

:)

cmsinaz on April 3, 2012 at 6:53 PM

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.

WSJ calls him out on that.

The Man Who Knew Too Little – President Obama’s stunning ignorance of constitutional law.

Flora Duh on April 3, 2012 at 6:53 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

HA! Thanks for proving me right in the other thread. You really DO want all but Sotomayor, Kagan and Ginsberg drug out in the streets and dangled from lamp posts.

Mussolini, whom your 0af Hero emulates found out that was a two way street.

LegendHasIt on April 3, 2012 at 6:53 PM

Good Lt on April 3, 2012 at 6:51 PM

Expand please, I don’t understand.

Cindy Munford on April 3, 2012 at 6:53 PM

He was reportedly examining the rim of his carbonated beverage container for stray hairs.

KeninCT on April 3, 2012 at 5:49 PM

What do you suppose Clinton was checking his cigar for?

Night Owl on April 3, 2012 at 6:53 PM

mr thin skin to appear in 5…4….3

cmsinaz on April 3, 2012 at 6:54 PM

where’s our favorite pic of dear leader :)

cmsinaz on April 3, 2012 at 6:47 PM

So glad you asked: Dear Leader

How careless of me.

Cheers!

*clink*

petefrt on April 3, 2012 at 6:55 PM

If you’re retired, thank you. If not, be very careful, and know we’re not all idiots out here, even though the majority of the land appears to be in a stupor.

Schadenfreude on April 3, 2012 at 6:48 PM

Former Military. Came home in 1975. You’re welcome. It was my honor to serve.

It is exciting and pleasing to me to see lively informed debate. I learn a great deal from you and all the rest. Including the jesters.

dogsoldier on April 3, 2012 at 6:55 PM

dogsoldier on April 3, 2012 at 6:49 PM

Sorry to read but I wish you the best and that things work out to your needs/desires, soon. These are strange times, to say the least.

Schadenfreude on April 3, 2012 at 6:55 PM

NoFanofLibs on April 3, 2012 at 6:49 PM

I heard him on the Boortz show in Jacksonville, Fl, still neighbors, just more distant.

Cindy Munford on April 3, 2012 at 6:55 PM

It seems like Hot Air bloggers are increasingly explaining the liberal view of news and why it is valid. Then, we are informed about how all of the real smart liberal media drones will spin the news and why it will work.

Until…they get an update smack-down from an intelligent person who actually knows the facts without any bias.

HellCat on April 3, 2012 at 6:55 PM

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.

Well.

the_nile on April 3, 2012 at 6:57 PM

dogsoldier on April 3, 2012 at 6:55 PM

Thank you and equally pleased to ‘see’ you here. This place is better than playing chess. It provides more entertainment.

Schadenfreude on April 3, 2012 at 6:57 PM

This president beginning to lead the nation would be unprecedented. He doesn’t believe the SC is a co-equal branch of govt.

Kissmygrits on April 3, 2012 at 6:57 PM

He was reportedly examining the rim of his carbonated beverage container for stray hairs.

KeninCT on April 3, 2012 at 5:49 PM

What do you suppose Clinton was checking his cigar for?

Night Owl on April 3, 2012 at 6:53 PM

BUWAHAHAHA!!!

*snort*

I be stealin’….

ladyingray on April 3, 2012 at 6:58 PM

He was reportedly examining the rim of his carbonated beverage container for stray hairs.

KeninCT on April 3, 2012 at 5:49 PM

There’s no danger of ladyhairs getting anywhere near you.

Chuck Schick on April 3, 2012 at 6:59 PM

He doesn’t believe the SC is a co-equal branch of govt.

Kissmygrits on April 3, 2012 at 6:57 PM

They say he is a former constitutional law lecturer. I don’t believe it for a second, until I see his grades, diplomas, video of the lectures, and all the papers he wrote.

Schadenfreude on April 3, 2012 at 7:00 PM

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