Yesterday (4/2) Barack Obama launched an attack on the Supreme Court that bordered on the bizarre. Apparently unaware of the most basic principles of constitutional law, going back to Marbury v. Madison in 1803, he said:
I’m confident that the Supreme Court will 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.
The President is now starting to step back from his comments he made on Monday which caught almost everyone off guard including a Federal Judge:And I — I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint; that, uhhh, an uninelected, uhhh, group of — of people would somehow overturn, uhhh, a duly constituted and — and passed, uh, law. Uh, well, uh, uh, is a good example. Uhh, and I’m pretty confident that this, — this court will recognize that, uh, and not take that step.
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.And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.
Powerline: This is, of course, entirely different from what Obama said yesterday, but it comes no nearer the truth. First of all, when did Obamacare become an “economic issue,” a matter of “commerce”? I thought it was all about women’s health care, like Roe v. Wade. Evidently that was a misunderstanding.
But that’s a minor point. Is there any truth to Obama’s claim that the Supreme Court hasn’t invalidated any statutes that are “economic” and relate to “commerce” since Lochner v. New York, which was in 1905? Of course not. To name just a few examples a great deal more recent than 1905, the Court ruled unconstitutional provisions of the Sarbanes-Oxley Act that had permitted only “for cause” removal of members of the Public Company Accounting Oversight Board in 2010; the 1990 Mushroom Promotion, Research and Consumer Information Act in 2001 (this case was actually quite similar to Obamacare because the Court held unconstitutional provisions that required mushroom growers to contribute to mushroom promotion programs); provisions of the Patent and Plant Variety Remedy Clarification Act, the Trademark Remedy Clarification Act, and the Copyright Remedy Clarification Act in 1992; the Harbor Maintenance Tax Act in 1998; the Transfer Act which authorized the transfer of operating control of Washington National Airport and Dulles International Airport from the Department of Transportation to the Metropolitan Washington Airports Authority in 1991; and many, many more dating back to 1905.
One could be charitable and say that Barack Obama is a bullshitter who makes stuff up whenever he is in a tough spot, or one could say that he is a habitual liar. Take your pick.
Excerpt: Read Moe at PowerlilneSomeone needs to brief the President on the Constitutional duties of the Supreme Court since he obviously still doesn't understand that the US Government is a three legged stool -- Executive, Legislative, and Judicial. How can someone be in office for this long and not understand how Government works? Anyone who is a thinking person knows just because Congress passes a bill/law does not make it constitutional. We applaud the Appeals Court Judge Jerry Smith for standing up to the Executive Branch.
April 3, 2012
Appeals Court Judge Jerry Smith Orders Department of Justice to Address President’s Controversial Comments
Yesterday (4/2) President Obama said in the Rose Garden of the White House, “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority, a democratically elected Congress.”
Now an appeals court is demanding Attorney General Eric Holder to clarify the president’s comments. Judge Jerry Smith of the Fifth Circuit Court of Appeals requested today, “I would like to have from you by noon on Thursday, that’s about 48 hours from now, a letter stating what is the position of the attorney general and the Department of Justice in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to at least three pages single spaced, no less, and it needs to be specific.”
Charles Krauthammer told Bret Baier on Special Report that, “ObamaCare passed by seven votes, it was a very narrow majority … so on every count he doesn’t have an argument. The liberals are in shock over watching their side being demolished in oral arguments and trying to bully the Supreme Court into ending up on their side.”
Listen to the audio below from the courtroom and check out the panel debate on Special Report:
The response from Attorney General Eric Holder is weak IMHO and not something I would expect out of an Attorney General. Sounds like Holder is once again being a mouthpiece for Obama. The jury is out whether Holder will allow the DOJ to provide the Federal Judge the information he is asking:
1:20 pm ET April 4, 2012
New Video: Eric Holder Responds to Request for DOJ’s Stance on Whether SCOTUS Can Overturn Law Passed By Congress
In remarks earlier today, Attorney General Eric Holder responded to the request of an appeals court that demanded the DOJ provide a written explanation as to whether or not it believes it’s constitutional for the Supreme Court to overturn a law passed by Congress. Holder, in part, said the following:
The biggest question of all is whether or not a member of SCOTUS leaked the vote to the President from SCOTUS. From Obama's original remarks, it wouldn't surprise many of us if Justice Kagen decided to go against the protocol of the SCOTUS. She was a bad choice from the beginning and should have recused herself from the ObamaCare case. Was Kagen put on the SCOTUS to leak to Obama or his people what was happening with the discussions behind the scenes of SCOTUS and to make sure the Administration had someone on the side? Obamacare barely passed the House by 8 measly votes yet Obama and his people are treating it like it passed in huge numbers. Obama is just another politician in a long line of politicians that have trouble with the truth.“What the president said a couple of days ago was appropriate. He indicated that we obviously respect the decisions that courts make … [and] the courts have the final say as to the constitutionality of statutes,” he said. “The courts are also fairly deferential when it comes to overturning statutes that the newly elected representatives of the people, Congress, pass. We think that the Affordable Care Act is a statute that has constitutional muster. … We are confident that upon examination [...] that the court will find the Affordable Care Act constitutional."
From Red State: The storm that erupted yesterday when Barack Obama woke up and discovered the Supreme Court of the United States was not only not elected but it could overturn “duly passed” laws, even those passed in the dead of the night by the barest of purchased majorities, has been more than adequately covered on these pages and others by actual lawyers and those who think they are.
When oral arguments are concluded, the Justices have to decide the case. They do so at what is known as the Justices’ Conference. Two Conferences are held per week when Court is in session, on Wednesday and Friday afternoons. The Justices vote on cases heard on Mondays and Tuesdays of a given week at their Wednesday afternoon Conference. The Justices vote on cases heard on Wednesday at their Friday afternoon Conference. When Court is not in session, usually only a Friday Conference is held.
According to Supreme Court protocol, only the Justices are allowed in the Conference room at this time—no police, law clerks, secretaries, etc. The Chief Justice calls the session to order and, as a sign of the collegial nature of the institution, all the Justices shake hands. The first order of business, typically, is to discuss the week’s petitions for certiorari, i.e., deciding which cases to accept or reject.
After the petitions for certiorari are dealt with, the Justices begin to discuss the cases that were heard since their last Conference. According to Supreme Court protocol, all Justices have an opportunity to state their views on the case and raise any questions or concerns they may have. Each Justice speaks without interruptions from the others. The Chief Justice makes the first statement, then each Justice speaks in descending order of seniority, ending with the most junior justice—the one who has served on the court for the fewest years.
When each Justice is finished speaking, the Chief Justice casts the first vote, and then each Justice in descending order of seniority does likewise until the most junior justice casts the last vote. After the votes have been tallied, the Chief Justice, or the most senior Justice in the majority if the Chief Justice is in the dissent, assigns a Justice in the majority to write the opinion of the Court. The most senior justice in the dissent can assign a dissenting Justice to write the dissenting opinion.
If a Justice agrees with the outcome of the case, but not the majority’s rationale for it, that Justice may write a concurring opinion. Any Justice may write a separate dissenting opinion. When there is a tie vote, the decision of the lower Court stands. This can happen if, for some reason, any of the nine Justices is not participating in a case (e.g., a seat is vacant or a Justice has had to recuse).Will the decision on Obamacare wait until June from the SCOTUS since the President is in a full court press against a possible SCOTUS ruling that Obamacare is Unconstitutional? It is obvious that Obama did not read the Constitution before making his remarks. Three branches of Government with equal powers are granted to the Legislative, Executive, and Judicial by the Constitution:
Article. I.Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.