5th Circuit Panel Overtly Jumps Into Political Arena


In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

In case you were wondering, the President is officially a politician. Now we know that Republican judges are too.

Speaking for me only

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    Obama's rantings (5.00 / 1) (#3)
    by lousy1 on Tue Apr 03, 2012 at 05:53:51 PM EST
    reveal little appreciation of the intelligence / memory of the electorate.

    Nevertheless I find the 4th circuits farce distasteful. They dishonor their robes.

    Rarely does on hear the words Obama and honor concurrently.It is a disappointment that an appeals court would sink to his level.

    That's an insulting statement. (none / 0) (#38)
    by Donald from Hawaii on Wed Apr 04, 2012 at 02:13:07 PM EST
    Surely, you can take issue with the president's positions without implying simultaneously that he is a man almost wholly without honor, just because you so happen to disagree with him.

    At the very least, you should heed your own advice regarding one's appreciation of intelligence, and not take the rest of us for chumps.


    The 5th Circuit was, literally, (5.00 / 2) (#4)
    by KeysDan on Tue Apr 03, 2012 at 06:23:41 PM EST
    injudicious in  using the health care case before it to "return fire", as was Alito when he objected to the presidents words at the SOU.

    When asked, the DOJ lawyer did cite Marbury v Madison, but that was not enough for them (if she answered no, it should not influence their work, anyhow). But no, the appellate panel needed to become the stern elementary school teacher admonishing an errant pupil: taking it out on the DOJ lawyer and then, giving Ms. Kaersvang a homework assignment of a single-spaced, three-page essay on whether Courts have the right to strike down a federal law.  At least, it must be written just once, and, apparently, long-hand is not required.  

    The president is a politician and not a judge.  Moreover, the judges need to get thicker skin, after all, Democratic-appointed judges have had to suffer Republican scolding (e.g., G. W Bush, Goodridge v Department of Public Health) as "activist judges" for decades.

    President Obama has clarified his remarks to say that he was referencing the specific case of regulating an economic issue such as health care, and the use of restraint and deference.  But, it does not matter, in my view, the judges are out of bounds on this one.

    I'd be more impressed if the president (5.00 / 3) (#10)
    by shoephone on Tue Apr 03, 2012 at 09:36:20 PM EST
    had castigated the court for eviscerating our 4th amendment rights with their strip search decision. But no. Obama has already shown he doesn't much care for protecting our civil liberties.

    I gottta say (5.00 / 2) (#11)
    by Big Tent Democrat on Tue Apr 03, 2012 at 10:52:07 PM EST
    some of you clearly suffer from ODS, just as bad as the CDS folks.

    An federal appeale court overtly engages in politics and you choose to talk about the President?

    Something is wrong with some of y'all.

    You described what amounts to a (5.00 / 1) (#15)
    by Anne on Wed Apr 04, 2012 at 07:14:18 AM EST
    p!ssing contest between the courts and the president, which has now been extended to include judges at the fedeal appellate level, and which I don't think either Obama or members of the federal judiciary should be engaging in.  Maybe you think Obama's going to win that one, but I sure don't.

    My point was that I don't think the justices in question care that they've ticked off the president, and I frankly didn't understand him jabbing at them as the ACA goes into deliberations.

    When it begins to feel like there's a direct line from the Supreme Court - and now the lower courts - to the offices of Limbaugh and his ilk, you know we are in deep trouble, not just in terms of the politics or the ideology but from what's holding this country together.

    Maybe Obama's remarks will help bring the Court to its senses, maybe it was worth a try, but, based on some of their decisions, these conservatives on this Court do not strike me as caring more about the law than they do about the ideology.

    I hope I'm wrong.


    One could also opine (none / 0) (#17)
    by BTAL on Wed Apr 04, 2012 at 07:45:19 AM EST
    that there is a direct line from somewhere inside SCOTUS to the administration signaling trouble, prompting the Rose Garden comments.

    As I recall (none / 0) (#18)
    by Big Tent Democrat on Wed Apr 04, 2012 at 07:49:58 AM EST
    you work in the legal field.

    You really think Obama's statement is comparable to what the 5th Cir has just done? Really?


    What the 5th Circuit did was react to (5.00 / 1) (#22)
    by Anne on Wed Apr 04, 2012 at 08:41:10 AM EST
    what the president said - was that reaction appropriate?  Did the panel really need to ask the lawyers for written clarification on what the Attorney General's position in on the authority of the courts?  

    Of course not.  The 5th Circuit panel knows full well that the courts have the authority and power to strike down laws it believes are unconstitutional.

    I think, when one throws down the gauntlet, one has to make sure one is prepared for what might come back the other way. And it doesn't appear to me that Obama was.  Clearly, he was addressing the Supreme Court's task in deciding the legal issues presented in the ACA arguments - did he expect a lower court to weigh in with a high-handed demand for a memo on judicial authority from government lawyers arguing an appeal before it?  Apparently not, as he has backtracked and clarified his remarks.

    I don't disagree that Obama has the right to expect justices of the highest court in the land to deal with the legal matters before it in as objective a manner as possible - and I don't think anyone who read the transcripts came away feeling that the conservative bloc met that standard, or was even close to it.  Yes, what is said by the justices in oral arguments is not always a harbinger of where they are likely to come down, but the remarks, the questions, the narrative, did seem to me to be not just ideologically one-sided, but woefully lacking in knowledge of how health insurance and the ACA actually are meant to work.

    My sense is that because it would be over-the-top for the Court to respond directly, the Fifth Circuit stepped in and did it for them.  Not a good sign on any front, I don't think, but in particular, it may mean that the president's gambit may have backfired on him.  Will he score political points out of it?  Probably, but I thought what was really important was the legislation.

    Oh, and FYI, I'm in estates and trusts - we don't get into too many constitutional or appellate issues.


    So you find them comparable (5.00 / 1) (#25)
    by Big Tent Democrat on Wed Apr 04, 2012 at 09:16:30 AM EST
    I find your statement ridiculous in the extreme.

    Courts hear cases. Appellate court hear cases with fully developed records.

    That the President said something in a press conference does not make it part of the appellate record.

    There is no comparison.

    I must say that your usual intelligence is diminished in my view when Obama is involved. It's too bad.


    That the president said something (5.00 / 1) (#28)
    by Anne on Wed Apr 04, 2012 at 09:56:38 AM EST
    in a press conference doesn't make it part of the appellate record, but unless I am missing something - my brain? - your only comment about the excerpted article (and the last sentence of your original post) was:

    In case you were wondering, the President is officially a politician. Now we know that Republican judges are too.

    brings an apple to a discussion you now want to insist is all about and only about oranges.

    Given that it was the only comment you made about the excerpted article, I don't see how you get to question my intelligence when what you addressed in your one and only comment was the political aspect of it all.

    If you want to have a discussion, then have one, and it might be nice if, instead of insulting people right and left, you took the opportunity to explain and educate.

    Not in the mood for this kind of nonsense today; I thought I might find some reasoned discussion to escape from the unrelenting one-sidedness of the Trayvon Martin posts, but I guess today won't be that day.


    er... (none / 0) (#29)
    by sj on Wed Apr 04, 2012 at 11:25:24 AM EST
    ... you read your comment, right?  Your political-in-nature not appellate-record-in-nature comment?

    Not sure your reference (5.00 / 2) (#30)
    by Big Tent Democrat on Wed Apr 04, 2012 at 11:37:08 AM EST
    but the President is a politician.

    Appellate judges are not.

    For some reason, the detestation of Obama leads people to defend the indefensible.

    It's sad.


    No one is defending the indefensible. (5.00 / 1) (#33)
    by Anne on Wed Apr 04, 2012 at 12:15:10 PM EST
    I took the one and only cue you provided, which referenced the political nature of the 5th Circuit's actions, and commented accordingly.

    To give you an example of the kind of exposition that would have made it clear what you were going for, here is a comment that was apparently e-mailed to David Dayen about this whole thing:

    Unless the President's remarks were on the record before the judge (placed in the record by one of the parties as for example in a filing with the court or somehow uttered during oral argument) the judge arguably has no business considering them while deciding the case. Given that this is an appellate case and the remarks by the President were within the last few days and the appellate record had to be finished weeks (and more probably months) before the oral argument at which Judge Smith asked for the letter, it is difficult to understand how the President's remarks could have been part of the appellate record which (along with remarks at oral argument) is all the judge is supposed to consider. If the President's remarks were not part of the appellate record, Judge Smith has just taken judicial action based upon an extrajudicial statement (one not made on the record with proper judicial notice to both parties (appearing in the morning newspaper or on television is not proper judicial notice)). In general, this is not allowed. The communication to which Judge Smith referred was an ex parte communication (a communication not made in the presence of (or with appropriate judicial notice to) at least one party. Here the ex parte communication appears to have been made outside the presence of all of the parties.

    See, for example, Canon 2(a) and Canon 3(a)(4) of the Code of Conduct for United States Judges (a) requires compliance with the law and the judge's consideration of an ex parte communication not part of the record is arguably not in compliance with the law. Canon 3(a)(4) bars consideration by a judge of ex part communications. Here, Judge Smith considered an improper (that is improper in the judicial sense, there was nothing improper about the President saying whatever he wanted to say outside of court) ex parte communication.

    This is an argument on the actions of the 5th Circuit; if that's the argument you wanted to present, you should have presented it; had you done so, no doubt I and everyone else who viewed your post as being about politics would never have gone in that direction.

    Now, you're in charge of your posts, and you can write whatever you want, which would seem to dicate that you take responsibility for what you write, instead of making it everyone else's problem that you weren't clear in your intent, and taking uncalled for shots at people's intelligence and intent.

    If this is a preview of the coming political season, and how I can expect to be treated, I'm struggling to find a reason to stick around.


    I see (none / 0) (#34)
    by Big Tent Democrat on Wed Apr 04, 2012 at 12:35:28 PM EST
    You understood the argument but since I did not spell it out for you in detail, you pretended NOT to understand it.

    If this is going to be your approach this year, I'll know to tune you out.


    Wrong. I took your editorial comment (5.00 / 1) (#37)
    by Anne on Wed Apr 04, 2012 at 01:40:29 PM EST
    in your post at face value and responded accordingly; this is something I have stated more times that I ought to have to.

    The shame of it all is that you had any number of opportunities to flesh out what you insist was the point of your post, but chose just to fling insults at anyone who didn't "get" it.

    For whatever it's worth, I found the DDay post well after our initial engagement on this topic, so please do not insult me further by suggesting - no, accusing me of playing some kind of stupid game with you.  There is nothing in my history here that suggests that that's how I roll, and nothing that should be subjecting me to the kind of treatment Jeralyn bans people for engaging in.


    Holy moley (none / 0) (#36)
    by sj on Wed Apr 04, 2012 at 12:51:33 PM EST
    What has happened here.

    Compare this (none / 0) (#31)
    by sj on Wed Apr 04, 2012 at 11:43:46 AM EST
    Your original comment.  
    In case you were wondering, the President is officially a politician. Now we know that Republican judges are too.

    with your "scolding" (for lack of a better word)

    That the President said something in a press conference does not make it part of the appellate record.

    Because now you are apparently irked that it is the political implications that are being discussed.

    If you wanted to talk about how the appellate court's actions were out of bounds you should have said so.  Or so directed the conversation anyway.


    Amazingly (none / 0) (#32)
    by Big Tent Democrat on Wed Apr 04, 2012 at 12:06:44 PM EST
    the comments are not only reconcilable, but the ACTUAL FRACKING POINT of my post.

    Then I so don't get why you are scolding (none / 0) (#35)
    by sj on Wed Apr 04, 2012 at 12:49:48 PM EST
    One here has read and thought about (none / 0) (#39)
    by jondee on Wed Apr 04, 2012 at 05:51:38 PM EST
    Flaubert's remark about concision in thinking and writing, I know that much..

    As long as Plouffe and Axelrod (none / 0) (#23)
    by sj on Wed Apr 04, 2012 at 08:58:54 AM EST
    Are influential in the WH political points will always be more important than the legislation.  IMO

    Seems to belie your earlier comments about (none / 0) (#21)
    by vicndabx on Wed Apr 04, 2012 at 08:13:18 AM EST
    Fighting Dems.  Obama should've just shut up? Or maybe be a little more bi-partisan in his comments? Not understanding why you think the president is in the wrong here.

    i read this, (5.00 / 1) (#13)
    by cpinva on Wed Apr 04, 2012 at 12:34:18 AM EST
    and my initial response was, "huh"?

    perhaps the 5th circuit judges need a reminder that, contrary to their raging egos, they aren't there to instruct. that level of sensitivity indicates, to me, a lack of those qualities required to be an appellate level judge, as well as an extremely thin skin. aside from the obvious: what did pres. obama's comment have to do with the case at the bar? short answer: nothing.

    thanks to this nimrod, regardless of the outcome, she gave everyone grounds for appeal.

    who finds these people?

    A politician who used to teach (4.43 / 7) (#2)
    by Anne on Tue Apr 03, 2012 at 05:48:43 PM EST
    constitutional law ought to have thought twice before making those remarks; not only does it send everyone with Google to look up whether there is any merit to the "unprecedented" description, but it just strikes me as politically tone deaf to be taunting justices who have yet to render a decision in this case.

    Is this a reflection of how poorly he thinks his Solicitor General argued the administration's case. or just Obama trying to shame the Court into seeing things his way?  For what it's worth, I suspect the justices in question have no shame.

    It seems more to me that he's begging the Court to be political - but in his favor.

    FDR famously contested the Justices (4.00 / 3) (#7)
    by christinep on Tue Apr 03, 2012 at 08:18:15 PM EST
    who repeatedly overturned early New Deal programs based upon constricted, narrow interpretation of the Commerce Clause.  What the hearing this past week suggested to legal observers--including the President who referred directly to the 1905 Lochner v. New York case and following--was that the Supreme Court today may conceivably be flirting with the Lochner approach, an approach which knocked down child labor laws and other labor legislation and an approach which after 1937 had been repudiated by modern Supreme Courts.  Nothing to laugh at, sneeze at nor take lightly if some of the conservative Justices' questioning actually foretell an overturning (as with Citizens United) of a position held for 70 years.  

    I sure hope that our fears are misplaced. But, if not, then we are facing something the likes we haven't seen legally in our lifetime...the start of a dismantling of what we know today as the "social safety net" aka Medicare, Medicaid, & Social Security. Not hyperbole, but a practical read of what the constrained broccoli reading of the Commerce Clause portends.  

    President Obama did exactly what he should have done in terms of talking openly about it...openly & directly.  For a number of reasons, including setting the stage for educating us all on the ramifications.  He did what FDR did before him.  Thank goodness, thank goodness for both of them.


    Agree with you on this (none / 0) (#5)
    by gyrfalcon on Tue Apr 03, 2012 at 06:53:30 PM EST
    Seems to me an entirely bone-headed move to do that.  And I think it was a prepared speech, not an ad lib outburst, but I'm not sure of that.  Very strange thing for him to do, IMO.

    A balloon. (4.00 / 4) (#1)
    by lentinel on Tue Apr 03, 2012 at 05:19:43 PM EST
    I don't know what Obama was talking about when he called the "overturning" by the Supreme Court of a law passed by the Congress "unprecedented" or "extraordinary".

    WikiAnswers reports that between 1789 and 2002, 158 Acts of Congress have been declared unconstitutional. Link

    If this is so, and that is what Obama was denying, it doesn't speak too highly of him as a former professor of constitutional law.
    It also, if this is so, and that was what Obama was denying, doesn't speak too highly of him as a politician either because it is so obviously and provably a false statement.

    Maybe there is more to it, and someone will enlighten me.

    The President specifically referred to (none / 0) (#6)
    by christinep on Tue Apr 03, 2012 at 08:06:09 PM EST
    the economic area--where Congress had legislated per the Commerce Clause in matters specifically economic.

    And he forgot to mention (none / 0) (#16)
    by jbindc on Wed Apr 04, 2012 at 07:33:44 AM EST
    A.L.A. Schechter Poultry Corp. v. U.S. (1935), whereby the Court unanimously knocked down the National Industrial Recovery Act (the "mandate" of Lochner) as an overreach of Congress' Interstate Commerce power.

    Ironivcthat5you would mention that (none / 0) (#20)
    by Big Tent Democrat on Wed Apr 04, 2012 at 07:51:19 AM EST
    I doubt you understand the irony.

    Why don't you explain it (none / 0) (#24)
    by jbindc on Wed Apr 04, 2012 at 09:08:25 AM EST
    For us mere mortals then?

    Schecter was decided in 1935 (none / 0) (#26)
    by Big Tent Democrat on Wed Apr 04, 2012 at 09:17:52 AM EST
    Compare Schecter to NLRB v. Jones & Laughlin Steel. Don;t trouble yourself to look it up, I am about to write a post about it.

    Schecter (5.00 / 1) (#27)
    by jbindc on Wed Apr 04, 2012 at 09:29:43 AM EST
    Was a case where the Supreme Court said Congress overstepped its bounds with regards to the Commerce Clause.  It was decided in 1935, as you said.  However, what Obama said, was:

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

    ChristineP then reiterated with

    {Obama was referring to}the economic area--where Congress had legislated per the Commerce Clause in matters specifically economic.

    Both statements are incorrect as Schecter (decided 30 years after Lochner, as you pointed out) did overturn an economic issue passed by Congress.

    Pointing out the fallacy of both statements does not make it "ironic".


    Adopting the crazy RW interpetation (none / 0) (#12)
    by Big Tent Democrat on Tue Apr 03, 2012 at 10:54:27 PM EST
    is fairly revealing of how deep beyond the corner some of you have gone with regard to Obama.

    Rush Limbaugh is saying what you say, and yes, he is deranged as well.

    Get a grip.


    Very (none / 0) (#14)
    by lentinel on Wed Apr 04, 2012 at 04:32:05 AM EST
    enlightening reply.

    Wasn't meant to be (none / 0) (#19)
    by Big Tent Democrat on Wed Apr 04, 2012 at 07:50:38 AM EST
    I'm commenting on you.

    The Repubs thank Obama (3.00 / 2) (#8)
    by jimakaPPJ on Tue Apr 03, 2012 at 08:50:18 PM EST
    for a "Limbuagh Moment."

    Everything is proceeding as I have foreseen. (none / 0) (#9)
    by me only on Tue Apr 03, 2012 at 09:19:09 PM EST
    Soon even progressives will no longer trust the government.  BAWAHAHAHAHAHAHAHAHAHAHAHA.