U.S. 5th Circuit Court of Appeals Judge Jerry Smith in Houston has given President Barack Obama's Justice Department until today to file a three-page, single-spaced brief documenting Attorney General Eric Holder's recognition of "the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases."Scaife's braintrust described Obama as a "president who knows not the Constitution, not scholarship and certainly not history."
The order came in a lawsuit challenging the constitutionality of yet another ObamaCare mandate. The Supreme Court last week heard arguments regarding the constitutionality of the law's "individual mandate."
Those arguments didn't go well for the administration. Which prompted the president to openly question the legitimacy of the judiciary while engaging in revisionist history: "I am confident 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."
When we're through, we'll know who doesn't know the Constitution, scholarship or history.
But before we go any further, let's see exactly what the President said. In a joint press conference with President Calderón of Mexico and Prime Minister Harper of Canada, the President was asked:
After last week’s arguments at the Supreme Court, many experts believe that there could be a majority, a five-member majority, to strike down the individual mandate. And if that were to happen, if it were to be ruled unconstitutional, how would you still guarantee health care to the uninsured and those Americans who've become insured as a result of the law?To which he answered in part (I am omitting the more political parts and focusing on the legal parts):
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.And then:
Ultimately, 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. And 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 an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.Look at what he's saying. He's saying that there's enough precedent for the individual mandate to be considered constitutional and he's confident that the Supreme Court will follow precedent. It's in a jab to "conservative commentators" that he mentions "unelected" judges and "judicial activism." He said that it's been an ongoing conservative criticism of the judiciary that to paraphrase "unelected judges ignore the will of the people" and he's confident this court won't do that - in a sense he's playing by the "judicial activism is bad" card so favored by the political right.
But in the alternative universe that is the right wing media, that's a constitutionally illiterate slap on the judiciary.
I supposed if we looked deeply enough we'd see a some sort of criticism from Scaife's braintrust for this very similar presidential quotation:
For the judiciary, resisting this temptation is particularly important, because it's the only branch that is unelected and whose officers serve for life. Unfortunately, some judges give in to temptation and make law instead of interpreting. Such judicial lawlessness is a threat to our democracy -- and it needs to stop.George W. Bush said that to the (Scaife funded) Federalist Society in 2004.
We'll find that criticism at the Trib, right?
I'll be back in a few days. Carry on and don't let them bullshit you.