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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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

Would this be the first time a poster’s comment made QOTD? It should. Pretty clearly going for an Obi Wan Kenobi-ish vibe but comes off more as the ranting impotent Lear (Act II, Sc iv):

No, you unnatural hags,
I will have such revenges on you both,
That all the world shall — I will do such things —
What they are, yet I know not: but they shall be
The terrors of the earth!

A… crusade… of… of enormous proportion! The terror of the earth! More like a motley OWS occupation on the front steps of the SCOTUS building. Any bets on whether the DC police have the nerve to clear them off?

de rigueur on April 3, 2012 at 7:00 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

HellCat on April 3, 2012 at 6:55 PM

A serious drawback with Republicans, they do not like to fight.

Cindy Munford on April 3, 2012 at 7:01 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

They are, but it’s important to keep a good sense of humor. We are fortunate in that regard, our local resources seem deep!

Wish I could say I got that from Sam Clements.

It seems the courts paid great attention to what Zero said yesterday and today. I wonder how many other judges are steamed.

dogsoldier on April 3, 2012 at 7:02 PM

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

KeninCT on April 3, 2012 at 5:49 PM

The one good thing former prosecutor Arlen Specter did in the Senate was to cross-examine the crazy, lying stalker Anita Hill, and shred her credibility.

Wethal on April 3, 2012 at 7:02 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

I be stealin’ this too!!!

ladyingray on April 3, 2012 at 7:02 PM

I wonder how many other judges are steamed.

dogsoldier on April 3, 2012 at 7:02 PM

Hopefully many, if they are halfway sane.

Schadenfreude on April 3, 2012 at 7:05 PM

Wow. Jay Carney just made a complete fool of himself under questioning by Brett Baer.

UltimateBob on April 3, 2012 at 6:18 PM

He sure did. Enjoyed watching Carney refuse to address why the Senate has not passed a budget and why Obama is not telling Reid to get one passed.

I wonder why Carney agreed to appear. They must be really desperate to get their spin on Obama’s attack on SCOTUS out, even to Fox viewers. Brett’s show has a lot of independent viewers.

I forgot the Senate needs only 51 votes to pass a budget. Reid could pass a budget without a single Republican vote.

farsighted on April 3, 2012 at 7:05 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

I don’t know, but I’m still trying to figure out why any competent attorney would let him sit second chair. When I was in clinic in law school, I saw drunks argue the law more effectively than Obama. It really is quite stunning. Of course, if you have ever looked at “Professor” Obama’s syllabus at the University of Chicago, you will understand that his focus was on CRIT and not on traditional con law. It explains why he would think that Lochner v. New York would have something to do with the Commerce Clause and Federal laws and regulation.

Resist We Much on April 3, 2012 at 7:08 PM

What is it with trolls and erratic CAPITALIZATION of RANDOM words?

RINO in Name Only on April 3, 2012 at 6:18 PM

When they don’t get the attention they seek they get LOUDER and more OBNOXIOUS.

farsighted on April 3, 2012 at 7:08 PM

I forgot the Senate needs only 51 votes to pass a budget. Reid could pass a budget without a single Republican vote.

farsighted on April 3, 2012 at 7:05 PM

Reid’s budget would never pass the House. THAT is why he hasn’t passed a budget.

ladyingray on April 3, 2012 at 7:09 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.

Judges, good luck with that.

Hopefully many, if they are halfway sane.

Schadenfreude on April 3, 2012 at 7:05 PM

My first thought reading this; The ninth circuit…

dogsoldier on April 3, 2012 at 7:12 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

LOLOL that’s funny, in a stupid sort of way.

Sharr on April 3, 2012 at 7:13 PM

They say he is a former constitutional law lecturer.

Schadenfreude on April 3, 2012 at 7:00 PM

Yes, Øbama was a Constitutional law lecturer, as you know, from the Frankfurt School. He knows Constitutional law like Alinsky knows Constitutional law.

With Constitutional law “experts” like him, who needs a Constitution?

Phooey.

petefrt on April 3, 2012 at 7:13 PM

Mr. Obama’s comments yesterday about judges being an “unelected group of people.”

Hmmm. I seem to have heard of a powerful “unelected group of people” called czars or something. Strange how BO thinks those unelected people deserve to have power to screw up America.

yhxqqsn on April 3, 2012 at 7:13 PM

.

What did the five fingers say to the face?

 

SLAP !!!

.

bahahahahaha… suck it 0bama.

FlatFoot on April 3, 2012 at 7:13 PM

at least Obama is trying to PAY FOR IT instead of putting it on the chinese credit card like Bush then oh hell he also said let’s have a massive tax cut to go with it! that won’t add to the deficit or anything! why do you all have amnesia of the Bush years!?!?

DBear on April 3, 2012 at 6:00 PM

Now I know why you leftists usually keep your comments to less than a complete sentence. Your stupidity shines through so much better when you actually try to justify what this abomination of a SCOAMF has done over the past three years. It’s a hoot!

Night Owl on April 3, 2012 at 7:13 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

Sounds like leftard4life is threatening the SCOTUS…clearly following the lead of the Thug in Chief.

Doomsday on April 3, 2012 at 7:15 PM

the hacktivist neocons on the supreme court are not infallible

Yes, we know. Only marxist-socialist-progressives are infallible.

yhxqqsn on April 3, 2012 at 7:17 PM

<

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

KeninCT on April 3, 2012 at 5:49 PM

The one good thing former prosecutor Arlen Specter did in the Senate was to cross-examine the crazy, lying stalker Anita Hill, and shred her credibility.

Wethal on April 3, 2012 at 7:02 PM

Yes, and it was Media Matters own David Brock who called her a slut for her trouble. (Which, if you read the link excerpt, makes his attack on Limbaugh for doing it even more interesting. Albeit Limbaugh did it better.)

de rigueur on April 3, 2012 at 7:18 PM

Sounds like leftard4life is threatening the SCOTUS…clearly following the lead of the Thug in Chief.

Doomsday on April 3, 2012 at 7:15 PM

I thought a threat was a bannable offense around here…

ladyingray on April 3, 2012 at 7:18 PM

I’d like to ask our resident liberals a question.

If the judiciary doesn’t have the power to review laws and strike those that are unconstitutional, as the the president apparently believes, then do you agree that AZ has the legal right to enforce their immigration law as it was originally written and passed by their legislative branch?

How about Prop 8 which was passed by the voters of California?

You can’t have it both ways libs – no matter how much you’d like to.

Flora Duh on April 3, 2012 at 7:18 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.

After several gentle reminders you may come to realize he’s not quite grasping that.

Ukiah on April 3, 2012 at 7:18 PM

…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

But… but… but a photo ID would have been so raaaaacist!

bofh on April 3, 2012 at 7:19 PM

I’d like to ask our resident liberals a question.

If the judiciary doesn’t have the power to review laws and strike those that are unconstitutional, as the the president apparently believes, then do you agree that AZ has the legal right to enforce their immigration law as it was originally written and passed by their legislative branch?

How about Prop 8 which was passed by the voters of California?

You can’t have it both ways libs – no matter how much you’d like to.

Flora Duh on April 3, 2012 at 7:18 PM

THIS!!!!!!!!!!!!!!!!!!

ladyingray on April 3, 2012 at 7:19 PM

I’m getting real tired of folks saying that 0bama is ignorant of the Constitution.

Those who are calling 0bama ignorant need to reexamine their premise.

0bama is not ignorant.

The only ignorance that comes into play is the ignorance of the general populace. He USES that ignorance to pressure those who would stand in his way. The Supreme Court is already receiving hundreds of thousands of pieces of mails from ignorant people demanding that they uphold 0bamacare because 0bama coerced them to do it.

Ignorance is thinking that 0bama is ignorant, rather than an evil destroyer, a communist and a master manipulator.

One of my favorite movie quotes is from The Usual Suspects: The greatest trick the Devil ever pulled was convincing the world he didn’t exist.

I modify it a bit for 0bama: The greatest trick that 0bama ever pulled was to make conservatives and libertarians think he was ignorant.

LegendHasIt on April 3, 2012 at 7:20 PM

Wow, this thread has brought all the liberal nitwits out of the woodwork like cockroaches.
Wouldn’t they feel more at home at D-Kos?

Right Mover on April 3, 2012 at 7:22 PM

Sounds like leftard4life is threatening the SCOTUS…clearly following the lead of the Thug in Chief.

Doomsday on April 3, 2012 at 7:15 PM

Perhaps we should report her to the Secret Service or the U.S. Marshals Service and here I thought only rabid, Tea Party, Timothy McVeigh wannabes threatened violence. That’s what Big Sis told me and she wouldn’t lie, would she? :-)

Resist We Much on April 3, 2012 at 7:22 PM

Ladies and Gentlemen… Hold fast to your seats!

We now introduce to you, the ONE, the ONLY, the ever PRESENT DUNCE of society as a whole. The POTUS. You know who THAT guy is… err. the one who is the present-dunce of only ONE branch of government?

…….

/The Constitution

Key West Reader on April 3, 2012 at 7:23 PM

at least Obama is trying to PAY FOR IT
DBear on April 3, 2012 at 6:00 PM

Obama’s never paid for a thing in his life. He’s an affirmative action skater who lives off the largess of others. A sponge.

tommyboy on April 3, 2012 at 7:25 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

Agree – and will add – tight ID security for the BAR/SEC exams became “hypersecure” – due to the fraud of the 80′s.

A former broker who I worked with had his license stripped – after a 4 year old video showed him “illegally” using a blank piece of paper that cannot be brought in during the Series 7 exam – which is video taped.

This guy was a standup dude – been trading/selling for the whole time, no marks on his license – but some investigation showed it – and he was gone.

Odie1941 on April 3, 2012 at 7:25 PM

Reid’s budget would never pass the House. THAT is why he hasn’t passed a budget.

ladyingray on April 3, 2012 at 7:09 PM

I don’t think Reid has a budget. I don’t think he bothered to put one together.

I don’t think he can propose a budget without massive tax increases — he won’t propose any real spending cuts.

I think the reason Reid has not presented a budget is that he does not want to go on record with a budget proposal.

farsighted on April 3, 2012 at 7:25 PM

He can’t be impeached. He’s one half white. And he says he knows the Constitution and he says he can have Czars that can be unelected and decide to make laws that are un checked.

But on the other hand, the Supreme Court should be disregarded as outdated, ineffectual, irrelevant and all that jazz.

But the Czars? Oh man, the Czars are great!

Key West Reader on April 3, 2012 at 7:25 PM

My first thought reading this; The ninth circuit…

dogsoldier on April 3, 2012 at 7:12 PM

Sandra Day O’Connor, their boss, considered them children.

Those dummies in Calif, and surroundings deserve them. Otherwise they can move out of state and let them rot.

Schadenfreude on April 3, 2012 at 7:26 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

Talk about derangement! Talk about clowns having a free ride!

Night Owl on April 3, 2012 at 7:27 PM

I think the reason Reid has not presented a budget is that he does not want to go on record with a budget proposal.

farsighted on April 3, 2012 at 7:25 PM

Nah, Harry Reid is brain dead. Has been since 1978. He does make a good looking live corpse for a D vote, so I say we make the unions continue to vote for the Corpse Man.

Yes.

Key West Reader on April 3, 2012 at 7:27 PM

You can’t have it both ways libs – no matter how much you’d like to.

Flora Duh on April 3, 2012 at 7:18 PM

Heh, great lady, lefties are not rational, nor ever truly liberal/progressive, just, fair, balanced, free and etc., so long as they pursue their agenda.

The rest, and the constitution are for rubes, like us.

Schadenfreude on April 3, 2012 at 7:29 PM

I just heard on Hugh Hewitt that today is Ed Morrissey’s birthday!!!!

Cindy Munford on April 3, 2012 at 7:30 PM

LegendHasIt on April 3, 2012 at 7:20 PM

To stay on your Usual Suspects narrative – Obama isn’t Sose, nor is he bright.

He is a creation to deflect anything and everything. He is a story comprised of bits and pieces conveniently crafted by liars to fool everyone as to his existence. The threat of confronting him is hoisted by scare tactics.

You think he is Sose… but thats the actual trick being played on the populous – and it has nothing to do with knowledge or ignorance.

Odie1941 on April 3, 2012 at 7:33 PM

Wow, this thread has brought all the liberal nitwits out of the woodwork like cockroaches.
Wouldn’t they feel more at home at D-Kos?

Right Mover on April 3, 2012 at 7:22 PM

Yeah, they’re freakin’ out. Barack is spinning out of control, the liberal dystopia is slipping away, and they’re going to be stuck the rest of their lives having to lie about having voted for Obama because, as Paul Ryan said today, history ain’t gonna be kind to him. They’re a little cranky.

Rational Thought on April 3, 2012 at 7:34 PM

Perspective, please, you racist people?!? Perspective.

Czars under Obama are all good. ! I swear.

Elected officials in the House and Senate, through State and Local Legislatures are all bad.

We need more Czars.

/OMG, yes, this is what this asshole is saying.

Key West Reader on April 3, 2012 at 7:34 PM

Schadenfreude on April 3, 2012 at 7:29 PM

True. I really don’t expect a response, just wanted to expose them a wee bit more for the hypocrites that they are.

Flora Duh on April 3, 2012 at 7:34 PM

Harry Reid is brain dead. Has been since 1978. He does make a good looking live corpse

Key West Reader on April 3, 2012 at 7:27 PM

Whenever I see Harry Reid, I think of this guy:

http://www.barewalls.com/i/c/415207_American-Gothic.jpg

http://rmcpac.com/sites/default/files/pictures/video_image.jpg

http://zipline.files.wordpress.com/2008/11/pelosi_reid01103.jpg

LOL!

Resist We Much on April 3, 2012 at 7:34 PM

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

KeninCT on April 3, 2012 at 5:49 PM”

You wouldn’t know a stray hair if it sat on your face…

Seven Percent Solution on April 3, 2012 at 7:36 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

LOL.

Help me Obi Wan Kenobi; you’re my only hope.

dukecitygirl on April 3, 2012 at 7:38 PM

I just heard on Hugh Hewitt that today is Ed Morrissey’s birthday!!!!

Cindy Munford on April 3, 2012 at 7:30 PM

Happy Birthday Ed…!

*clink*

Seven Percent Solution on April 3, 2012 at 7:38 PM

Yeah, they’re freakin’ out. Barack is spinning out of control, the liberal dystopia is slipping away, and they’re going to be stuck the rest of their lives having to lie about having voted for Obama because, as Paul Ryan said today, history ain’t gonna be kind to him. They’re a little cranky.

Rational Thought on April 3, 2012 at 7:34 PM

Kind of like how no one admits he voted for Jimmy Carter.

dukecitygirl on April 3, 2012 at 7:39 PM

Harry Reid is brain dead. Has been since 1978. He does make a good looking live corpse

Key West Reader on April 3, 2012 at 7:27 PM

Shame on the NV voters, and their minions from other states who helped, for re-electing an incontinent to ‘lead’ the senate.

Schadenfreude on April 3, 2012 at 7:39 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

I apologize.

Night Owl on April 3, 2012 at 7:42 PM

……You think he is Sose… but thats the actual trick being played on the populous – and it has nothing to do with knowledge or ignorance.
Odie1941 on April 3, 2012 at 7:33 PM

Well, I actually considered all of that, and while he isn’t an independent super-villain Söze, he is very much A Söze; He was raised from infancy to be one. And is acting as the figurehead of other Sözes. As such, he is both less, and much more than the one in the movie.

I’m not explaining it well, but to think that he is a stupid nothing, merely a passing political fancy is not a good idea.

I don’t say that he is particularly bright, but he is far from ignorant, and a near genius in manipulating those who ARE ignorant..

LegendHasIt on April 3, 2012 at 7:49 PM

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

KeninCT on April 3, 2012 at 5:49 PM”
You wouldn’t know a stray hair if it sat on your face…

Seven Percent Solution on April 3, 2012 at 7:36 PM

He cant get the roofie dose quite right.

Odie1941 on April 3, 2012 at 7:49 PM

But words have consequences,

Didn’t President Obama lecture us, er, I mean give a speech, about the importance of words at some point in the past? I seem to remember something about heavily borrowing words, turns of phrase, etc. from a speech that Gov. Deval Patrick (D-MA) had given in the past.

kgs_mvs on April 3, 2012 at 7:51 PM

but he is far from ignorant, and a near genius in manipulating those who ARE ignorant..

LegendHasIt on April 3, 2012 at 7:49 PM

Indeed, and the media are his capos.

May they, and he, spontaneously combust, for dereliction of duty.

Schadenfreude on April 3, 2012 at 7:52 PM

……You think he is Sose… but thats the actual trick being played on the populous – and it has nothing to do with knowledge or ignorance.
Odie1941 on April 3, 2012 at 7:33 PM
Well, I actually considered all of that, and while he isn’t an independent super-villain Söze, he is very much A Söze; He was raised from infancy to be one. And is acting as the figurehead of other Sözes. As such, he is both less, and much more than the one in the movie.

I’m not explaining it well, but to think that he is a stupid nothing, merely a passing political fancy is not a good idea.

I don’t say that he is particularly bright, but he is far from ignorant, and a near genius in manipulating those who ARE ignorant..

LegendHasIt on April 3, 2012 at 7:49 PM

I understand and agree, liked the duality of the Usual Suspects angle, great movie… and the wife is out so I am feeling Jameson’s groovy… hehe.

One last tidbit – the actual quate you stated is from The Devils Advocate, (Pacino says it to Reeves) Usual had a variation of it.

Odie1941 on April 3, 2012 at 7:52 PM

I’m getting real tired of folks saying that 0bama is ignorant of the Constitution.

Those who are calling 0bama ignorant need to reexamine their premise.

0bama is not ignorant.

The only ignorance that comes into play is the ignorance of the general populace. He USES that ignorance to pressure those who would stand in his way. The Supreme Court is already receiving hundreds of thousands of pieces of mails from ignorant people demanding that they uphold 0bamacare because 0bama coerced them to do it.

Ignorance is thinking that 0bama is ignorant, rather than an evil destroyer, a communist and a master manipulator.

One of my favorite movie quotes is from The Usual Suspects: The greatest trick the Devil ever pulled was convincing the world he didn’t exist.

I modify it a bit for 0bama: The greatest trick that 0bama ever pulled was to make conservatives and libertarians think he was ignorant.

LegendHasIt on April 3, 2012 at 7:20 PM

Absolutely Correct!!!
Absolutely Brilliant Analysis!!!!!

CrazyGene on April 3, 2012 at 7:54 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

If he took it in Illinois, phht. All he would have done is call big daddy Ayers and ask him to ‘take care of it’.

slickwillie2001 on April 3, 2012 at 7:54 PM

One last tidbit – the actual quate you stated is from The Devils Advocate, (Pacino says it to Reeves) Usual had a variation of it.
Odie1941 on April 3, 2012 at 7:52 PM

Interesting. I’m not a Pacino fan, so I wouldn’t know of that one

LegendHasIt on April 3, 2012 at 7:57 PM

The thugs on the bench scare no one.

Scalia is a disgrace who needs to be called out. Listening to his questioning has to be the lowest moment in the history of the political court (formerly known as the supreme court)

He doesn’t even pretend to hide the fact that he is an activist judge hell bent on pushing right wing agenda.

liberal4life on April 3, 2012 at 5:27 PM

Why, because he accurately pimpsmacked the solicitor general?

Tough noogies.

98ZJUSMC on April 3, 2012 at 8:03 PM

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 Obama is!

ITguy on April 3, 2012 at 8:03 PM

He said overturning ObamaCare specifically would be “unprecedented,”

SCOTUS breaking precedent is certainly not unprecedented.

Since SCOTUS will likely overturn Obamacare, he should keep “unprecedented” as his souvenir.

rukiddingme on April 3, 2012 at 8:05 PM

The leftist projection on this thread is shattering. But, meltdowns are fun to watch. Please keep it up.

98ZJUSMC on April 3, 2012 at 8:07 PM

He said overturning ObamaCare specifically would be “unprecedented,”

SCOTUS breaking precedent is certainly not unprecedented

Since SCOTUS will likely overturn Obamacare, he should keep “unprecedented” as his souvenir.

rukiddingme on April 3, 2012 at 8:05 PM

Unprecedented. He (Obama) keeps using that word. I do not think it means what he thinks it means.

dukecitygirl on April 3, 2012 at 8:10 PM

Of course, if you have ever looked at “Professor” Obama’s syllabus at the University of Chicago, you will understand that his focus was on CRIT and not on traditional con law. It explains why he would think that Lochner v. New York would have something to do with the Commerce Clause and Federal laws and regulation.

Resist We Much on April 3, 2012 at 7:08 PM

What is CRIT?

karenhasfreedom on April 3, 2012 at 8:10 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

Similar words were spoken about this activist political court.

The crusade of enormous proportion failed then too.

rukiddingme on April 3, 2012 at 8:12 PM

dukecitygirl on April 3, 2012 at 8:10 PM

Inigo Montoya and I agree with you.

rukiddingme on April 3, 2012 at 8:15 PM

I’m getting real tired of folks saying that 0bama is ignorant of the Constitution.

Those who are calling 0bama ignorant need to reexamine their premise.

0bama is not ignorant.

I agree that Obama is brilliant when it comes to manipulation, but he is ignorant when it comes to constitutional law. I can understand misleading the public, but he makes statements that are purely asinine to those of us who know the law. His comment today on Lochner is a perfect example. Lochner involved a New York state law. It had nothing to do with the Commerce Clause or the Federal government. Also, any 1L or well-read person knows that the Supreme Court overturned FDR’s National Industrial Recovery Act and Agricultural Adjustment Act. Both were massive programmes and Schechter Poultry Corp is a landmark case. It came down in the middle of the Great Depression, not pre-New Deal.

He is wrong on the law and his history is totally screwed up. The reason that he is perceived to be the “evil genius” is because the MSM covers for him. He isn’t nearly as brilliant as he thinks he is or they think he is and I don’t need the Obama Rosetta Stone Austrian Special Edition to translate his ignorance.

I agree that he convinces a gullible and ignorant public, but that doesn’t make him smart. When there are people like Libtard4Life, who are weapons grade stupid and actually believe the lies he tells — like it would be “unprecedented” for the Court to overturn a law based on the Commerce Clause when I can cite at least 5 off the top of my head, it might make him appear startlingly intelligent, but just remember Sheila Jackson-Lee looks smart when compared to Cynthia McKinney.

Resist We Much on April 3, 2012 at 8:15 PM

What is CRIT?

karenhasfreedom on April 3, 2012 at 8:10 PM

I should have written CRT. It refers to “critical race theory.” Disciples of CRT are called CRITs.

I have a bunch of posts on my blog on the subject if you are interested. Here’s one on Derrick Bell. At the bottom, there are links to others:

Who Was Derrick Bell? Radical, Racialist and Anti-Semite

Resist We Much on April 3, 2012 at 8:18 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.

I’ll bet that’s news to Obama.

Bitter Clinger on April 3, 2012 at 8:20 PM

Obama has been running for re-election since January 2009.

karenhasfreedom on April 3, 2012 at 8:22 PM

LegendHasIt on April 3, 2012 at 7:49 PM
Odie1941 on April 3, 2012 at 7:52 PM
LegendHasIt on April 3, 2012 at 7:57 PM

Everyone got it from Baudelaire:

Mes chers frères, n’oubliez jamais, quand vous entendrez vanter le progrès des lumières, que la plus belle des ruses du diable est de vous persuader qu’il n’existe pas!

My dear brothers, never forget, when you hear the progress of enlightenment vaunted, that the devil’s best trick is to persuade you that he doesn’t exist!”
The Generous Gambler by Charles Pierre Baudelaire, 1864.

de rigueur on April 3, 2012 at 8:23 PM

Whenever I see Harry Reid, I think of this guy:

Resist We Much on April 3, 2012 at 7:34 PM

Whenever I see Harry Reid I think of Incitatus. Or at least, half of him.

kbTexan on April 3, 2012 at 8:25 PM

Someone asked for a Photoshop up thread.

Barky does a little remedial constitutional study for the 5th circuit.

jrgdds on April 3, 2012 at 8:26 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

*SNORT*

Yeah, America will revolt because SCOTUS overturned a law that most of America hates.

Bitter Clinger on April 3, 2012 at 8:29 PM

Someone asked for a Photoshop up thread.

Barky does a little remedial constitutional study for the 5th circuit.

jrgdds on April 3, 2012 at 8:26 PM

There are 2 things in life I have tried and failed, which really bothers me: Photoshop and Guitar.

Good job!

Odie1941 on April 3, 2012 at 8:30 PM

Resist We Much on April 3, 2012 at 8:15 PM

In Obama’s world, it’s “unprecedented” for there to be a separate and equal JUDICIARY. But of course he doesn’t mind “unelected” Supremes as long as he’s appointing them to the court!!!

God, what a hypocrite. The man is incorrigible. He’s the one who’s UNPRECEDENTED.

mountainaires on April 3, 2012 at 8:32 PM

Resist We Much on April 3, 2012 at 8:15 PM

Again, just because he says something that sounds ignorant to a few cognoscenti doesn’t mean that he IS ignorant. He isn’t communicating as a lawyer, he is trying to convince the ignorant mob.

In his mind, it doesn’t matter what the actual laws are what the actual precedents are, what the Constitution says. It is what he can get the mobs to believe.

And yes, the Media helps, but even if they didn’t the community organizer just wants to rouse the rabble, and from the bully pulpit (I hate that term) he would do the same thing even if the media wasn’t complicit.

In this five second soundbite world, the real law doesn’t matter if the ones of authority in the opposition will not enforce it. We few peasants who do understand it are of no matter.

LegendHasIt on April 3, 2012 at 8:34 PM

de rigueur on April 3, 2012 at 8:23 PM

Excellent.

I used to possess Les Fleurs du Mal.

Schadenfreude on April 3, 2012 at 8:37 PM

Your friend is a very good attorney. As he pointed out, it is extremely unusual for a client to expound publicly on legal matters while a case is pending before a court. But if the client’s exposition conflicts with the position the client’s attorneys have taken in briefs filed with the court, the court is well within it’s rights to ask “What gives.”

Some will suggest that this is another demonstration that right-wing judges “have it in” for Obama. That’s nuts. Their authority has been questioned in a manner that could undermine the willingness of the public to accept their role in American governance. Today’s “what I meant” comment isn’t enough. They were right to demand a categorical statement of position from the administration.

35tww on April 3, 2012 at 8:38 PM

Our trolls are supremely idiotic.

CW on April 3, 2012 at 8:38 PM

Charles Pierre Baudelaire, 1864.
de rigueur on April 3, 2012 at 8:23 PM

Thank you… I thought it sounded familiar when ‘Verbal’ said it… but High School Literature class was so long ago.

LegendHasIt on April 3, 2012 at 8:38 PM

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!

Joe Scarborough is like an organ grinder’s monkey. He dances for anyone who puts money in his cap.

bw222 on April 3, 2012 at 8:44 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

You never have an original thought. Dumb.As.A.Box.Of.Democrats.

CW on April 3, 2012 at 8:45 PM

AP, and for those who care, here is a link to the Fifth Circuit’s page of oral argument audio…scroll down to Physicians Hospitals v. Kathleen Sebellius

http://www.ca5.uscourts.gov/OralArgumentRecordings.aspx

It’s around the 18 minute mark at the start of the DOJ’s argument when Judge Smith asks the attorney what the DOJ’s position is with respect to whether a court can strike down a statute. The DOJ attorney does cite Marbury v. Madison, but then the judge goes on to instruct the attorney to provide a letter detailing the DOJ’s position on the matter specifically in light of the President’s comments about Obamacare. Pretty interesting stuff, and it’s clearly apparent the attorney was not expecting this.

Erich66 on April 3, 2012 at 8:47 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

yeah, they had to show their birth certificate, wait……

Canuckistan on April 3, 2012 at 8:48 PM

Funny definition of selfish you have there. I mean, seriously, YOU are the one wanting to TAKE money from all of your fellow citizens for every utopian scheme you can dream of and then you call the people you are taking from selfish if they object.

Hey bonehead, give me $1000. Seriously, my kid needs braces. What? You won’t give it to me. Why are you so selfish?

JohnInCA on April 3, 2012 at 5:59 PM

Your comment may be lost on him, it was too coherent.

Ann NY on April 3, 2012 at 8:51 PM

LegendHasIt on April 3, 2012 at 8:34 PM

I understand what you are saying, but what you have to understand is that he makes a colossal horse’s ass out of himself on the law. He could easily play to the least common denominator without making a fool of himself. What he says about the law, at times, is on par with someone wondering if his car battery will start after a storm knocks out the electricity in his flat.

Bill Clinton could lie smart. Obama lies dumb and talks dumb. Remember, this is the idiot, who believes that doctors ripped out kids tonsils (obviously, if doctors are in it for the money, leaving the tonsils in is the cash cow) at the drop of a hat and a doctor charges $60,000 for an amputation. He quite often talks about subjects upon which he is clearly clueless. Fortunately for him, he has sycophants like Libtard4Life, obamaismygodsyndrome, and QueenieinCt. The three of them make Hank Johnson, Cynthia McKinney and Sheila Jackson-Lee look like Einstein clones. He ignorantly serves up the Kook-Aide and the happy puppets gulp it down.

It has been troubling and astonishing for me to watch since he appeared on the scene. I remember telling my secretary back in January of 2007 that the media and many people treated Obama like he was a candidate on American Idol. He could be double-facepalm stupid, but he was shiny, new, and kewl. He spoke in vague and magical terms. The proles bought into the cult of personality like they were a bunch of zombies. Don’t get me wrong. I think Obama is extremely clever and brilliant in many ways; however, his knowledge of the Constitution and the law is not one of them.

Resist We Much on April 3, 2012 at 9:00 PM

Reid’s budget would never pass the House. THAT is why he hasn’t passed a budget.

ladyingray on April 3, 2012 at 7:09 PM

I don’t think Reid has a budget. I don’t think he bothered to put one together.

I don’t think he can propose a budget without massive tax increases — he won’t propose any real spending cuts.

I think the reason Reid has not presented a budget is that he does not want to go on record with a budget proposal.

farsighted on April 3, 2012 at 7:25 PM

The reason he hasn’t passed a budget is to ensure obamacare gets implemented. Budgets are passed to cover 10 years. Each year a new budget is passed for the 10 years starting in the next budget year and extends the process for another year past the 10 years. IF NO BUDGET IS PASSED, THERE WILL BE NO UPDATE OF THE BUDGET AND THE ORIGINAL BUDGET WILL BE STILL ENFORCE. That is how the marxists reid, pelosi, and obama keep their original obamacare and other slush funds in force, tie up succeeding congresses, and the Repubs can’t fight or change them. All the marxist useful idiots like liberal4life and DBear are not only fools, they are stupid and are just as responsible for our predicament ad obama.

Liberal4life and DBear, if you can’t do anything but plagiarize (like Biden) the marxist/dem talking points, please go somewhere else. You add nothing to our knowledge and understanding, and are detrimental to the freedom of The United States.

Old Country Boy on April 3, 2012 at 9:05 PM

at least Obama is trying to PAY FOR IT instead of putting it on the chinese credit card like Bush then oh hell he also said let’s have a massive tax cut to go with it! that won’t add to the deficit or anything! why do you all have amnesia of the Bush years!?!?

DBear on April 3, 2012 at 6:00 PM

Obama isn’t putting it on the Chinese credit card anymore because the Chinese have cut us off. Do you have any idea what quantitative easing is? It’s the federal reserve buying up our own treasuries (ie our debt). This is a house of cards that is driving up inflation and will drive up interest rates, which will make our debt and deficit unsustainable from interest payments alone. We can’t afford your utopian fantasies. You can live in your delusional fantasy land, but reality will hit you over the head sooner rather than later. By the way, how is Obama trying to pay for it?

Ann NY on April 3, 2012 at 9:11 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

TANGANA!

*The spanish version of BAM!*

El Salsero on April 3, 2012 at 9:20 PM

The reason he hasn’t passed a budget is to ensure obamacare gets implemented. Budgets are passed to cover 10 years. Each year a new budget is passed for the 10 years starting in the next budget year and extends the process for another year past the 10 years. IF NO BUDGET IS PASSED, THERE WILL BE NO UPDATE OF THE BUDGET AND THE ORIGINAL BUDGET WILL BE STILL ENFORCE.

Old Country Boy on April 3, 2012 at 9:05 PM

I could be wrong, but my understanding is that for a new budget to pass through Congress and take effect the House and the Senate must reconcile their separately passed bills and then vote on and pass the reconciled budget bill.

Even if Reid passes a budget in the Senate the original budget will still be in force unless there is a successful reconciliation process and the reconciled budget is passed by both the House and the Senate.

So Reid can pass a new budget in the Senate and then block reconciliation, keeping the original last passed budget in force.

Reid does not want to even talk about a new Senate budget, much less propose and pass one in the Senate he knows will never take effect.

farsighted on April 3, 2012 at 9:22 PM

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

All three of Olbermanns will hold their breath until they turn BLUE AHAHAHAHAHAHAHA

stormridercx4 on April 3, 2012 at 9:30 PM

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

All three of Olbermanns viewers will hold their breath until they turn BLUE AHAHAHAHAHAHAHA

Sorry missed his viewers there are so many of them

stormridercx4 on April 3, 2012 at 9:31 PM

All three of Olbermanns viewers will hold their breath until they turn BLUE AHAHAHAHAHAHAHA

Sorry missed his viewers there are so many of them

stormridercx4 on April 3, 2012 at 9:31 PM

He got fired. No kidding. Rich Lowry had a field day with it.

“Current had trouble getting Olbermann to show up to do coverage on election nights despite his status as the network’s “chief news officer.” To be fair, that is a little like being designated a rear admiral in the Swiss navy.”

“If Olbermann were to join Wayne and Garth as a co-host of Wayne’s World on the local public-access channel in Aurora, Ill., it wouldn’t be long before Olbermann denounced Wayne’s taste in heavy metal, complained about Garth’s inordinate airtime, and quit to start his own show with the public-access channel up the road in DeKalb.”

I fully expect to see The Most Unemployable News Anchor In The World! in a tattered bathrobe on a nearby corner barking at cabs in the near future.

Resist We Much on April 3, 2012 at 9:38 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

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

oh….

The fearsome hordes of internet nutroots will make the Earth tremble in their righteous fury, as they set aside their 2 liter bottles of Dew, the double sized box of Crispy Cremes,.. and take to the streets waddling their way down to the SCOTUS so they can demand,. demand that the Justices come out and bow down before them…

with Capital Hill Police rolling their eyes as they consider…

Taser?

Nightstick?

hmmmmmm,…….

———————

on a serious note,…… you douchbags threatening the Supreme Court Justices you hate are you?

Libby.. you have no idea what kind of hurt would descend on you if you tried the pitchfork thing.. We are a nation of laws as much as liberals try to destroy that, to institute your rule by fiat. America will not tolerate you attacking in word or deed the Justices who are the most respected of the three branches of government.

Your street style revolution is nothing but sheer fantasy, nothing more..

You folks are delusional.

mark81150 on April 3, 2012 at 9:40 PM

stormridercx4 on April 3, 2012 at 9:31 PM

One more thing…

If anyone deserved the Primadonna Olberdunce, it was Al Gore.

Resist We Much on April 3, 2012 at 9:44 PM

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