Touche' Obama!

[dvmcmr]

So Obama thinks he can do as he pleases.......Gotta love the arrogance of the current preisdency!




Judges order Justice Department to clarify Obama remarks on health law case



Published April 03, 2012

| FoxNews.com




A federal appeals court is striking back after President Obama cautioned the Supreme Court against overturning the health care overhaul and warned that such an act would be "unprecedented."

A three-judge panel for the 5th Circuit Court of Appeals on Tuesday ordered the Justice Department to explain by Thursday whether the administration believes judges have the power to strike down a federal law.

A source inside the courtroom, who did not want to be identified, confirmed the incident to Fox News. The testy exchange played out during a hearing over a separate challenge to the health care law. It was apparent, however, that the justice who questioned the government attorney present was referring to Obama's recent comments about the Supreme Court's review of that law.

The source said the justice, Judge Jerry Smith, was pointed in his questioning of the government attorney, asking whether Attorney General Eric Holder believes judges can strike down federal laws.

Smith then ordered a response from the department within 48 hours. The related letter from the court, obtained by Fox News, instructed the Justice Department to provide an explanation of "no less than three pages, single spaced" by noon on Thursday.

All three judges on the panel are Republican appointees.

The Justice Department had no comment when asked about the exchange.

Fox News' Shannon Bream contributed to this report.


Read more: http://www.foxnews.com/politics/2012/04/03/judges-order-justice-department-to-clarify-following-obama-remarks-on-health/#ixzz1r1fzqjAn

[dvmcmr]

Mr Holders response to the judges......




Judge Jerry E. Smith
Judge Emilio M. Garza
Judge Leslie H. Southwick
c/o Mr. Lyle W. Cayce
@ffirr of tl~r 1\ttonw~ Qi)l•ttrntl
ltlf<-ts-Jlington. 19. QT. 20530
April 5, 2012
Clerk, United States Court of Appeals
for the Fifth Circuit
600 S. Maestri Place
ew Orleans, LA 70130
RE: Phvsician Hospitals o[America v. Sebelius. No. 11-40631
Dear Judge Smith, Judge Garza, and Judge Southwick:
This Court's letter of April 3, 2012 requested a response to questions raised at oral
argument in this case, Physician Hospitals of America v. Sebelius, No. 11-4063 1. From the
electronic recording of the argument, I understand the Court to have requested the views of the
Depar1ment of Justice regarding judicial review of the constitutionality of Acts of Congress. The
Court indicated that its inquiry was prompted by recent statements of the President.
The longstanding, hi storical position of the United States regarding judicial review of the
constitutionality offederallegislation has not changed and was accurately stated by counsel for
the government at oral argument in this case a few days ago. The Department has not in this
litigation, nor in any other litigation of which I am aware, ever asked this or any other Cout1 to
reconsider or limit long-established precedent concerning judicial review of the constitutionality
of federal legislation.
The govenm1ent's brief cites jurisdictional bars to the instant suit and urges that
plaintiffs' constitutional claims are insubstantial. See Appellee Br. ofthe United States at 17-38.
At no point has the government suggested that the Court would lack authority to review
plaintiffs' constitutional claims if the Cour1 were to conclude that jurisdiction exists. The case
has been ful ly briefed and argued, and it is ready for disposition. The question posed by the
Court regarding judicial review does not concern any argument made in the government's brief
or at oral argument in this case, and this letter should not be regarded as a supplemental brief.


1. The power of the courts to review the constitutional ity of legislation is beyond
dispute. See generally, e.g. , Free Ente1prise Fund v. Public Co. Accounting Oversight Bd. , 130
S. Ct. 3138 (20 10); FCC v. Beach Communications, Inc., 508 U.S. 307 (1993). The Supreme
Court resolved this question in Marbwy v. Madison, 1 Cranch 137, 177-78 ( 1803). In that case,

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the Court held that " [i]t is emphatically the province and duty of the judicial department to say
what the law is." Marbury, 1 Cranch at 177.
The Supreme Court has fm1her explained that this power may only be exercised in
appropriate cases. "If a dispute is not a proper case or controversy, the courts have no business
deciding it, or expounding the law in the course of doing so." Daim/erChJys/er C01p. v. Cuno ,
547 U.S. 332, 341 (2006); see, e.g., Weinberger v. Sa/fi, 422 U.S. 749, 763-766 (1975)
(addressing a statutory bar to juri sdiction). In the case before this Court - Physician Hospitals of
America v. Sebe/ius, o. 11-40631 -we have argued that this Court lacks jurisd iction to hear the
case. See Appellee Br. of the United States at 15-38.
Where a plaintiff properly invokes the jurisdiction of a court and presents a justiciable
challenge, there is no dispute that courts properly review the constitutionality of Acts of
Congress.
2. In considering such challenges, Acts of Congress are "presumptively constitutional,"
Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1301 (1993), and the Supreme Com1
has stressed that the presumption of constitutionality accorded to Acts of Congress is "strong."
United States v. Five Gambling Devices Labeled in Part .. Mills," and Bearing Serial Nos. 593-
221,346 U.S . 441 , 449 (1953); see, e.g., Gonzales v. Raich, 545 U.S. 1, 28 (2005) (noting that
the "congressional judgment" at issue was "entitled to a strong presumption of validity"). The
Supreme Court has explained: "This is not a mere polite gesture. It is a deference due to
deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is
within their delegated power or is necessary and proper to execution of that power." Five
Gambling Devices Labeled in Part .. Mills," and Bearing Serial Nos. 593-22i, 346 U.S. at 449.
In light of the presumption of constitutionality, it falls to the party seeking to overturn a federal
law to show that it is clearly unconstitutional. See, e.g., Salazar v. Buono, 130 S. Ct. 1803, 1820
(20 1 0) ("Respect for a coordinate branch of Govenm1ent forbids striking down an Act of
Congress except upon a clear showing of unconstitutionality."); Beach Communications, Inc. ,
508 U.S. at314-15.
3. While duly recognizing the courts' authority to engage in judicial review, the
Executive Branch has often urged courts to respect the legislative judgments of Congress. See,
e.g. , Nature 's Daily. v. Glickman, 1999 WL 158 1396, at *6; State University of New York v.
Anderson, 1999 WL 680463, at *6; Rojas v. Fitch, 1998 WL 457203, at *7; United Food and
Commercial Workers Union Local 75i v. Bro·wn Group, 1995 WL 938594, at *6.
The Supreme Court has often acknowledged the appropriateness of reliance on the
political branches' policy choices and judgments. See, e.g., Ayotte v. Planned Parenthood of
Northern New Eng., 546 U.S. 320, 329 (2006) (explaining that, in granting relief, the courts '·try
not to nul lify more of a legislature's work than is necessary" because they recognize that'" [a]
ruling of unconstitutionality frustrates the intent of the elected representatives of the people'"
(alteration in the original) (quoting Regan v. Time, inc. , 468 U.S. 641, 652 (1984) (plurality
opinion))); Turner Broadcasting System, inc. , 512 U.S. at 665-66. The "Court accords ' great
- 2 -

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weight to the decisions of Congress"' in part because "[t]he Congress is a coequal branch of
government whose Members take the same oath [judges] do to uphold the Constitution of the
United States." Rostker v. Goldberg, 453 U.S. 57,64 (1981) (quoting Columbia Broadcasting
System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 (1973)). These principles of
deference are fully applicable when Congress legislates in the commercial sphere. The com1s
accord particular deference when evaluating the appropriateness of the means Congress has
chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish
constitutional ends. See, e.g. , NLRB v. Jones & Laughlin Steel Corp. , 301 U.S. 1, 32 (1937);
McCulloch v. Matyland, 17 U.S. (4 Wheat.) 316, 408 (1819). See also Thomas More Law
Center v. Obama, 651 F.3d 529, 566 (6th Cir. 20 11) (Opinion of Sutton, J.); Seven Sky v. Holder,
661 F.3d 1, 18-19 (D.C. Cir. 201 1) (Opinion of Silberman, J .)
The President's remarks were fully consistent with the principles described herein.
[Filed and served via ECF]
Sincerely,
Eric H. Holder, Jr.
Attorney General

[GreginAlaska]

Actually the founders of the Constitution did not want the Supreme Court to have judicial review. SCOTUS usurped that power via Marbury V Madison clear back in 1803. It hasn't been good for our government, it gives 9 people the ability to create law from the bench. The original idea is we would have x amount of people in the House who would represent the voice of the individual to the federal government, we would have 2 people in the Senate who would voice the needs, collectively, from their state to the federal government. All of those people would be responsible for making sure something is constitutional before it was passed, of course the President could strike something down, but he could be over-ridden by a super majority. So what do we have now? We have "legislators" who will pass something and say "We'll have to wait and see if it passes constitutional muster" so they have completely shirked their responsibilities, to move along their own agenda. We also have lower courts that say they have to make rulings that are inline with Supreme Court precedence's. Where in the Constitution do they get that? That's all part of incrementalism to do away with our limited form of government. I don't think we will ever set things right as long as we keep electing reps and senators the way we do, maybe what a constitutional republic needs is to draft people into those positions of power, not elect them from people who go to great lengths to gain that power.

[dvmcmr]

I think it was jefferson who pretty much depised the judicial branch.

What keeps the likes of the current administration in check if not for the supremes though?

Understanding that the court is still a political body of sorts....

[GreginAlaska]

Well Dave, I'm pretty sure the 2nd amendment is what was supposed to keep the police state in line...of course that is much easier said than done.

[dvmcmr]

The 2nd ammendment is what was meant to keep it all in line, as far as my research goes. So I don't disagree.

[GreginAlaska]

What body should be more likely to not allow the progression of an unconstitutional law? The ~ 535 members of the house and senate, who supposedly come from all walks of life? Or 9 lawyers who dress up like grim reapers?

I would think it would be the ~535 if they didn't have an easy way to shirk their responsibilities....

[dvmcmr]

I would think it would be the ~535 if they didn't have an easy way to shirk their responsibilities....


If they didn't have an easy way to shirk.......agreed.