Balkinization  

Tuesday, April 03, 2012

Judicial Grandstanding

Gerard N. Magliocca

In response to the President's comments about the Affordable Care Act yesterday, Judge Smith of the Fifth Circuit decided to beat up a lawyer for the Government. From this story by Jan Crawford:

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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."
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I'm pretty sure that Judge Smith is not, in fact, unclear about whether the President believes in judicial review. Everybody should take a deep breath and count to ten.

Comments:

Gerard, stop beating a dead horse. Clearly Obama is not challenging judicial review, which as you know is not specifically provided for in Article III or the rest of the Constitution as amended to date. What we don't know is Obama's view on judicial supremacy over the Executive and Legislative branches of the federal government. And you should be aware that neither Article III nor any other portion of the Constitution as amended to date specifically provides for such judicial supremacy. And there is a distinction between the Court declaring a law unconstitutional and striking/enforcing its decision. Perhaps Judge Smith is a little long in the tooth what with having been appointed by Reagan. As to Judge Smith being unelected, I'm reminded of the comment of a Suffolk County (MA) Probate Judge who in open court back in the late 1950s pointed out that all a judge is is a lawyer who "knew a governor." This applies at the federal level as well (substituting President for governor).
 

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"The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said."

No comment yet if they want-- Dixie Chicks' "Not Ready to Make Nice" video like -- Obama to write "Federal judges have the power of judicial review" 200x on a blackboard.

It's okay though -- it's not the 9th Cir., so grandstanding is not a concern.

The President's point was fairly clear though re-reading what he said, he said it in a somewhat artless way. Given some of the artless questions from the justices, I think we are in "throw the first stone" territory.
 

I'm pretty sure that Judge Smith is not, in fact, unclear about whether the President believes in judicial review. Everybody should take a deep breath and count to ten.

Is there some evidence Mr. Obama does believe in judicial review and reversal of any of his policies or those he supports, or indeed whether he even believes in the rule of law?

See, e.g., "stuffing the judge" (the words of the administration) in the bankruptcy court to order a normally illegal sub rosa sale of GM and Chrylser assets owned by secured creditors to government created corporations; the Auto Team terminating dealership contracts to avoid state law franchisee protections, the Pay Czar setting bank employee pay, HHS applying Obamacare regs to penalize program opponents and waving regs for unions and other supporters.

There is far more of the ACORN trainer of Alinksy power principles than of an adjunct professor of constitutional law in this President.
 

The "please prove you're not a robot" gadget isn't blocking "Bart DePalma," so it seems pretty ineffective.
 

Oral Argument, starting at 18:00 mark.

SMITH, J.: Let me ask you something a little bit more basic. Does the DOJ recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities.

A: Yes your honor, of course, there will have to be a severability analysis.

Q: I am referring to the statements by the President from the past few days, to the effect .. . I'm sure you've heard about it, that it's somehow inappropriate for what he termed "unelected judges" to strike acts of Congress that have enjoyed . . . what he termed broad consensus and majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority, or to the appropriatness of the concept of judicial review. And that's not a small matter. I want to make sure that you are telling us, and that the DOJ do recognize the authority of the federal courts through unelected judges to strike acts of congress or portions thereof in appropirate cases.

A: Marbury v. Madison is the law . . .


Q: Okay, well I would like to have from you by noon on Thursday, about 48 hours from now, a letter stating what is the position of the AG and the DOJ in regard to the recent statement by the President, stating specifically and in detail, in refenreces to those statements, what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages, single spaced, no less, and it needs to be specific. It needs to make specific reference to the President's statement and the position of the AG and the DOJ.

[very long pause]

A: Okay, and that's our position regarding judicial review?

Q: Judicial review as it relates to the specific statements of the president in regard to Obamacare and the authority of the courts to review that legislation.

A: Yes, your honor.
 

So this Court says "Obamacare".

Perhaps one should say this "Court".
 

This is not the first time the judiciary has asked this administration for explanations of its legally questionable political positions.

Several judges asked for explanations of how DOJ squared simultaneously enforcing but not defending DOMA.

The 9th Circuit demanded an explanation of DOJs willy nilly prosecutorial discretion policy towards illegal aliens.

5th Circuit probably remembers how the Interior Department jerked around its district Judge Fletcher on the Gulf drilling moratorium until it was held in contempt.
 

Somehow I'm not holding my breath waiting for you to apply the same standard to the previous administration.
 

Jpk:

I didn't know there was a standard for judicial questions.

I recall the Bush administration crossing swords with a number of courts over the extent of his CiC powers, but no attacks on the Supreme Court's competence, even after that awful Boumediene decision.

Even Bush was not that dumb.
 

Our yodeler and I had dueling comments on a much earlier thread about the lack of specificity in the Constitution regarding both judicial review and judicial supremacy over the Executive and Legislative branches of the federal government. As I recall, he seemed to agree there was not such specificity and raised questions concerning the validity of judicial supremacy, even proposing a cockamamie amendment. I'm an old geezer like Judge Smith, long in the tooth, so can someone find this in the archives?
 

That Bush did not comment after the Boumediene decision may have been because Bush/Cheney had been caught with their habeas corpused. Perhaps this failure was attributable to Cheney as ventriloquist.

Perhaps our yodeler can cite what Obama said that constitutes, according to our yodeler, our resident economics expert, an attack on the Court's competence before the Court has made its decision on the ACA appeals.
 

Shag:

I agree that judicial review is an implied and not an express power. While we can and do debate the scope of that power, I do not question that interpretation of the law was at that time and remains a basic judicial function.

Here, I am simply questioning the common sense of a President picking a fight with the Supreme Court as it decides the constitutionality of his signature legislation. You don't hold any cards in that game.
 

Shifting ground, straw men, pretending the question was something else. Perhaps such tricks help get drunk drivers off the hook; I wouldn't know.
 

Shag: Perhaps our yodeler can cite what Obama said that constitutes, according to our yodeler, our resident economics expert, an attack on the Court's competence before the Court has made its decision on the ACA appeals.

Did you listen or read the transcript? Here is the money quote:

With respect to health care, I’m actually -- continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That's not just my opinion, by the way; that's the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case.

Not even a close case?

After the Justices eviscerated his Solicitor General, Obama just told Kennedy and the rest of the Court majority that their rather detailed concerns were not shared by "legal experts across the ideological spectrum" and that the government has a slam dunk case.

This is typical Obama street rhetoric, attacking the motives and competence of his political opponents. However, the Supreme Court is not an opponent in a Chicago alderman campaign, but rather is a co-equal branch of government that guards its prerogatives rather jealously.

If the Supremes had forgotten Obama's misrepresentation of their holding in Citizens United in an attempt to publicly embarrass them during his SOTU speech, this latest attack will certainly refresh their memories.

For a man who was pitched as the smartest President of our lifetimes, Obama is making a series of unforced errors that a Harvard 1L would know to avoid.
 

Professor Magliocca,

First of all, geez, what is wrong with that guy?

Secondly, in the intervening years (about 5 now) since I took your class, let this very liberal former law student thank you for the manner and way you taught our class.

Maybe, Judge Smith should have audited our conversation where you told me to stop hyperventilating over signing statements by a President I didn't like.

At any rate, never did get to say thanks...
 

aww, cmon. doesn't a teeny weeny part of you want to say to the originalists: hey theres no actual mention of judicial review in the Constitution. In Marbury v Madison you made this up. seriously. April Fools!
 

I could see judges raising the President’s statement in cases where the administration is asking the courts to strike down a federal statute (say DOMA). I would certainly like to know if DOJ thinks that courts should consider whether a law passed with “strong majorities” and, if so, whether they should also consider evidence such as the results of subsequent elections, subsequent legislative actions (such the House voting to repeal Obamacare and congressional attempts to repeal DOMA), views of state and local elected governments (like the 26 states challenging Obamacare and those that have taken actions for or against recognition of gay marriage), popular referenda and polling data. Somehow I suspect DOJ’s position will be that the courts should pay attention to this information if and only if it supports the outcome it favors, but it would be fun to see how it threads that needle.

In the context of this case, however, Judge Smith just sounds like he is resentful of the President’s remarks. Its hard to see how his assignment to DOJ serves any purpose other than expressing that resentment .
 

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San Francisco Bay Area Lawyers Help

Does not bother me at all how we keep trying to rethink our Constitution.. if the judicial system would ever work in our favor this Country would be FREE AGAIN!!
 

Despite our yodeler's efforts, he fails in his attempt to respond to me to demonstrate that what Obama said " ... constitutes ... an attack on the Court's competence before the Court has made its decision on the ACA appeals."

As for Obama's criticism of the Court's 5-4 decision in Citizens United, what has resulted since then with Super Pacs et al demonstrates the folly of that political decision.

Maybe our yodeler should stick to his expertise as an economist. It's clear he wasn't an English major based upon his spin on what he describes as the "money quote" as our yodeler begs for "spare change."
 

Shag:

Perhaps you are right. Maybe our law school professor president was simply acting out of comprehensive ignorance of constitutional law rather than partisan malice:

http://online.wsj.com/article/SB10001424052702303816504577321844137787970.html?mod=djemBestOfTheWeb_h

Better to stay silent and let people wonder if you are ignorant than to open your mouth and remove all doubt.
 

The Obama Administration has written briefs etc. to explain why sexual orientation should be a suspect class, which provides a special situation where majority will is not as compelling as economic regulation, which in follow-up remarks Obama underlined was his concern here. Don't know if this will satisfy mls' interest.
 

Our yodeler sets his own trap with this:

"Better to stay silent and let people wonder if you are ignorant than to open your mouth and remove all doubt."

Permit me to rephrase our yodeler's:

"Maybe our law school professor president was simply acting out of comprehensive ignorance of constitutional law rather than partisan malice:"

and apply it to him:

"Maybe our yodeler simply acts out of comprehensive ignorance of constitutional law AND partisan malice." [And stick to his expertise as an economist.]
 

I guess the judicial right follows George W. Bush's motto. They don't do nuance. Questioning the propriety of the court striking down a law in a particular case does not equate with questioning their right to review statutes in every case.
 

http://tpmdc.talkingpointsmemo.com/2012/04/conservatives-bristle-at-judges-punching-back-at-obama-over-health-care-law.php?ref=fpb

Keep up the sanity my conservative brethren!
 

Better to stay silent and let people wonder if you are ignorant than to open your mouth and remove all doubt.
# posted by Bart DePalma : 8:48 AM


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