Obama’s ill-tempered cur act on Monday has already blown back in his face.
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.”
The only thing that’s unprecedented is the ObamaCare mandate forcing Americans to purchase a product approved by the government as the price of citizenship. Judicial review is just about as old as the nation itself. Well, the HHS mandate that kicks an executive branch jackboot through the First Amendment is unprecedented, too. I’ll grant that.
The panel is hearing a separate challenge to the health care law by physician-owned hospitals. 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.
[Judge] 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.
This could get very interesting, in that Chinese proverb sort of way.
In his speech the President derided the “unintellected” court. I am not sure if he meant to say what that almost sounded like…
Needless to say, that line outdoes pretty much anything ever attributed to GWB by the media factota.
I noticed that too and wondered if anyone would comment on it.
We can expect Omedia to play and ridicule that soundbite 24/7, can’t we?
Hint: don’t hold your breath.
Oh, my. This could get popcorn-worthy real fast. I’d better stock up…
When the Court makes law through the penumbra of the Constitution, they call that, the living Constitution; when the Court enforces the Constitution, they call that, judicial activism. Heads I win, tails you lose.
Penumbras, yes, but don’t forget ‘emanations’. Very important when you’re in “I wouldn’t have seen it if I didn’t believe it” land.
As a former law student, I’m getting front row seats for this one. My money is on the Court system
This is the same administration that got slapped around, I believe in the 5th Circuit, for ignoring/violating court orders relating to drilling permits (if memory serves).
Yep, there’s a (IIRC) contempt citation against Interior Secretary Salazar for that doctored report issued to justify the “permitorium” against new drilling permits in the Gulf after the BP oil spill. I don’t believe the order has ever ever been lifted.
This morning, I was explaining to my assistant that there is, indeed, presidential precedent for ignoring the Supreme Court.
“The Court has ruled. Let the Court enforce it.”
Not exactly one of the happier moments in United States history.
Funny you bring up Andrew Jackson. I can’t decide if Obama is arrogant like Jackson or terrible like Andrew Johnson. Both, I guess.
…feckless as Fillmore. Mr. Obama has spoken; let him try to enforce it by Executive Order upon the States. “Texans always move ‘em!”
That was Lee at Gettysburg, wasn’t it? Pickett’s Charge?
*gulp*
Not a happy moment, either, come to think of it.
– Bull Run / First Manasses (Rebs chased the Feds back to D.C.)
Spotsylvania Courthouse, I think, at the Bloody Angle.
Interesting thought experiment; I hope less consequential than Jackson, at least.
Not one of my favorite presidents, in case you hadn’t guessed, though I’ve always enjoyed his toasting duel with Henry Clay.
The One’s losing streak will continue. This administration couldn’t defeat the Washington Generals.
This administration couldn’t defeat the freaking Charlotte Bobcats, even if the Bobcats were using their third stringers and had an eighty-five year old man with crippling arthritis at point guard.
Is there any safeguard against a new “switch in time saves 9″?
There’s no way a bill raising the number of SC justices makes it out of the House. FDR’s threat only had teeth because his party controlled both Congress and the White House.
See, Mr. Commie in Chief, this is why we have strange things like “balance and separation of powers”, a Constitution, etc.
To answer to bullies like you.
I know, it’s a pity, you and Chavez have such good ideas for the world…if we would only shut up, eh ?
MONUMENTAL !!!
WIKI for us:
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it “unconstitutional”. The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.
I understand *exactly* why the President said what he did, and don’t agree with the tactic, but people also need to not make judicial review some kind of holy talisman or icon, because it’s not in the Constitution. All Marbury v. Madison proved was that a court could get away with it if others cared not to spend political capital to fight a court ruling in some way. Marshall was just putting a precedent in place in case he, a Federalst, needed something to stop Jefferson and his Republicans with. It was a very elegant move–strike down a Federalist law and deny a Federalist his commission so as to preserve the ability to stop the Republicans later on if they tried something truly heinous. As it turned out, Marshall either never felt the need again or felt a second such action, with an increasingly Republican Congress (one possessing living memories of how to stop the King’s governors via the power of the purse), might not have been prudent.
If I remember correctly, until the Progressive era the number of laws struck down was a handful–maybe one handful. Someone can answer this with greater certainty, but if the power of judcial review is actually grounded in something a little more substantive than courts saying they can–in other words if it as some kind if *explicit* legislative endorsement of the idea, then it must be found in the appropriate sections of the U.S. Code that concern the judiciary (Congress having the right to set Rules for the Court’s appellate jurisdiction). If such code does not explicitly say the Court can do judicial review, then it is a right resting on thin air that ends the day a bare majority of the people, as represented in Congress, says it does (assuming absence of Presidential veto/pocket veto). I am not talking about what people think should or ought to be, or what is considered best or wisest, but what the words on the parchments themselves actually say. Any right to judicial review either rests in the U.S. Code or is a creature of the court’s imagination.
Tradition , precedents, and cherry-picked portions of Federalist 78 cannot override the Constitution. A law universally disregarded is still a law, able to be enforced fully the second anyone chooses to do so, and so it is with the Constitution. There are no such things as “squatter’s rights” in that regard. If not codified in the law via Congress’ Article 3 Section 2 powers vis a vis appelate jurisdiction regulation, there is no thing such as judicial review that a legislature must adhere to.
I am not against the concept of judicial review per se. What I am against is 20th century folkic myth and ideas of general “goodness” being taken as more binding and valid than what the document itself says. If the Founders had thought the courts would actually be part of the balance of power at the national level, there would have been a direct check put on them. I don’t think they had that idea. I mean, they only had one summer, and they did their own work, not staffers. Their English heritage and studies of ancient Greeks and Romans said the big problems to be solved were those regarding executive tyranny, Legislative tyranny, and mob tyranny. Not judicial tyranny. Because until the 20th century, no court ever tried to shape or rule society by itself. Thus, why waste time to put a direct check on it, when there was so much else to do? Well, today I think either a new system is needed, or there has to be an ability to override the court, the way a Presidential veto is overriden.
But for the leader of the Party that has used the Court to achieve its aims time and time again to start arguing the Court has no moral authority is a sign that people need to start wondering if their powder is dry–if that party also proposes to keep all their past victories gained by that same court also. For that is a clear sign of someone who believes not in the rule of law, but in the rule by brute democratic force with opinions swayed by emotion and demagoguery.
The argument for judicial review is a bit stronger that you make it out to be. Basically the law must be logically consistent. Any internal contradictions must be resolved, either by interpreting or eliminating one part. Since the Constitution is the supreme law of the US anything that contradicts it must be constrained or eliminated.
There also exist several checks on the Supreme Court. Justices were originally chosen by the Executive with consultation from the Sates’ representatives. Congress can impeach justices. And if a decision is really unpopular it can be resolved with an amendment.
Dear sir:
As far as your argument that my argument is weak, it is not a general principle that constitutions are self-evolving creatures that grow needed appendages on their own, with no input from their creators or owners. Or in other words, a Republic may hay have a need for something, but that does not then mean its constitution has been drafted with a clause to actually meet that need, and I hope you agree that the parchment does not spontaneously generate such clauses itself, as if by the Force, because the need has not been met. Or in other other words, regardless of arguments over the validity of the need you cite, you have not shown where the Supreme Court was given the responsibility to meet that need, instead of, say, the town council of Perth Amboy or the keeper of the Congressional Seal…
As for the second point–You will notice, kind sir, that I said *direct* checks, in the manner of the direct check of President on Congress (veto), Congress on President (purse, veto override, approval of appointments) and of the people on both (elections). Yours mentioned are not direct checks, except perhaps the amendment one. Which I think we both agree was put in at a time before Court checking power was realized (1787 being before 1803). I have had a better argument about the amendment process in this regard, but cannot immediately recreate it, so I will have to forbear.
Now, one of my basic arguments in this regard as far as what was intended for the court is that I find it strange that we should somehow view the Court as being designed as the final authoritative say on Constitutionality when it is the one created with the fewest checks (when so much more effort was made in crafting the “warfare potential” between the other two branches), and when the spirit of the times was on how to control governments, and when the battles between the Federalists and Republicans in part turned on whether we would be like Britain (Federalists), or more the common-man based system the Republicans represented and which eventually became Jacksonian in nature . To think then that it was the intent to make a body of unelected magistrates the final say, the ultimate arbiter, is out of sync with the times.
Cettainly the courts did not get much play at the Convention, and I would hazard not much in the ratification conventions either (which can be checked). Certainly at the time no one really leaped at the chance to be the Chief Justice, which might indicate that it wasn’t quite an afterthought, but it was something of a backwater. And that to me indicates it was because it was not that important–and thus in that respect the full system of checks and balances needs to be extended, because the framework is basically not complete. Unless we have decided Justices are as pontiffs, i.e., infallible.
Now, as far as impeachment goes, my memory for the moment fails me as to details, but basically in Merry Old England post-James I the Parliament, in its fight against the crown, and later on as a way post-1688 to remind folks who was boss, used to impeach folks for political reasons, using any old thing they could throw at them–low crimes and misdemeanors, as it were. Well, as we are somewhat seeing, politics is not actually supposed to be a Tudor-era bloodsport, where the loser goes to jail, so there is, in my opinion, a *reason* why the Founders used the phrase *high* crimes and misdemeanors. Impeachment is not supposed to be used for political checks, because like was found with gas attacks in World War I, it is just one of those things that always boomerangs back on you, so best not to use it in the first place.
That means impeachment is not a direct check on the court, either, where a body or person is able to say “decision X is overriden.” If you think about it, the only direct check on the Court at all is Congress’ power of the purse and the appelate jurisdiction regulation power. I think something more is needed, as the outcry over Kelo v. New Lndon showed. Otherwise, people lose faith that they are the true sovereign power in the Republic, because thy aren’t.
Aha–remembered part of the “Amendment as direct check” counter argument–it basically never happens, thus it means that if the amendment process is supposed to be a check on the Court then it would be logical to assume that the Court is then supposed to be the beanch that is hardest to override, which if by design doesn’t *quite* jibe with the *complete* absence of any mention of the Court having checking power against other branches at all in a constitution that was not exactly shy about talking about checking powers–AND where everyone acknowledges that it was Marbury v. Madison that established the ” right” to judicial review and not ratification of the Constitution itself.
(And the reason why I put “right” in quotation marks is that if the criteria for establishment of a right is “getting away with it unchallenged”, then if Marbury v. Madison established judicial review and checks upon Federal branches then did not Andrew Jackson disestablish it?)
The amendment process was not put into place to check the Supreme Court. It was put into place to allow for amendment of the Constitution.
Aha–remembered part of the “Amendment as direct check” counter argument–it basically never happens, thus it means that if the amendment process is supposed to be a check on the Court then it would be logical to assume that the Court is then supposed to be the branch that is hardest to override, which if by design doesn’t *quite* jibe with the *complete* absence of any mention of the Court having checking power against other branches at all in a constitution that was not exactly shy about talking about checking powers–AND where everyone acknowledges that it was Marbury v. Madison that established the ” right” to judicial review and not ratification of the Constitution itself.
(And the reason why I put “right” in quotation marks is that if the criteria for establishment of a right is “getting away with it unchallenged”, then if Marbury v. Madison established judicial review and checks upon Federal branches then did not Andrew Jackson disestablish it?)
The amendment process was not put into place to check the Supreme Court. It was put into place to allow for amendment of the Constitution.
You dismiss the very real checks of the President and Congress on the Supreme Court as not being “direct” enough. Yet how is judicial review to be considered a “direct” check in that case? The Supreme Court does not review every law, only those few that are challenged to the point of being brought before it. If appointment, confirmation, amendment, and impeachment are not direct enough, then such limited selection in the process of the basic functioning of a court can hardly be considered direct either.
It should also be noted that the Amendment process has been directly used to overturn, as it were, a Supreme Court decision, in the form of the 13th, 14th, and 15th Amendments. You may dismiss the use of the process, but Congress and the States have not.
A further note should be made regarding your assertion of “infallibility” of the Court. Supreme Court decisions have been reversed by later Courts. Certainly not many, as our traditions and system speak strongly against such acts, but it has been done.
Similarly your citation of Kelo is curious, as the Court did not strike down the law in that case. Which do you want – for the Court to be able to strike down laws or not? And what then of Heller, McDonald, Citizens United where the Court did strike down laws – were those of excesses of power that should be reversed?
You declare a lack of consideration of the matter beforehand, yet you equally dismiss Federalist 78. The thing is, the mere existence of Federalist 78, and other statements of the time, clearly demonstrates that people were aware of the issue well before Marbury v. Madison, and that they had expended no small amount of time, effort, and rhetoric on the matter. Indeed that rather neatly explodes all of your assertions regarding the whole Judiciary being little more than an afterthought.
Of course that leaves the heart of the matter. To wit:
“In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Note the phrase “as to Law”. What could that possibly mean? Obviously that the Supreme Court would determine the status of the law. Further:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;”
What happens if a law is not made in pursuance of the Constitution? Well, the Supreme Court has jurisdiction as to the law, so logically they have standing to declare when a law violates the Constitution.
One might also further note the phrase “with such Exceptions, and under such Regulations as the Congress shall make.” It appears that Congress actually does have a direct check on the Supreme Court – they can make exceptions and regulations affecting what the Court can rule on. Indeed one of those exceptions is at work in the Obamacare case, that of prohibiting challenges to tax laws before the taxes are collected.
You reference the history regarding the Federalists versus the Democrats. What you fail to mention is the Jefferson was very dismissive of the clearly expressed review power of the Courts. Like Obama, he wanted the judiciary to be subservient to him, and objected when he felt it was subservient to his political opponents. That a Federalist Chief Justice would take an opportunity to make the powers of the Court clear is hardly surprising in such a case. It becomes even more reasonable when one remembers that it was Jefferson who provoked completely politically based impeachments against various Federalist judges, including a Justice of the Supreme Court. I guess those opponents of judicial review thought impeachment was supposed to be a political check.
You also mention events from English history without recognizing how they made the need for an independent judiciary that could tell the Legislature and Executive when they were going too far. That is a critical thing that relates back to the issue of “direct” checks. The Supreme Court is not the first resort – that is Congress. The Supreme Court is not the second check – that is the bicameral nature of Congress. The Supreme Court is not the third check – that is the President. The Supreme Court is the last resort in protecting us, the People, from abuses of authority by the other two branches. To disparage the review power is to disparage a protection of the rights of the people.
I will not be able to direct attention to most of your points, as I feel you are more shocked at the unclean “blasphemy” than anything else.
As far as the nature of the checks of the other two branches, they are largely indirect, vice direct. In fact, I will say they are all indirect. Direct checks are where I can say “no” to X (and you are correct on Kelo. My apologies). You are correct that the Court itself cannot directly choose its cases, which further proves it is not a designed part of the system–and part of what I am trying to do here today is rip away the cloying piety surrounding this area. However, in the cases that do reach it can pose a direct check (once again, saying “no” to X). And as it plays out, could we not say that if a law is disliked, that there is a fair chance *someone* will try to challenge it? Americans do not seem to ve very shy on that account these days.
But overall you are correct, as I said. The Court cannot, of its own, with no appelate case, directly check. And this is a virtue and an argument for the current state of things how?
You seemingly forgot to mention where the Court is authorized its review powers in a legal document (that did not originate with the court). I mention this because you think I do not see the need for checks beyond President and Congress. Dear sir, I dream of checks beyond your wildest imagination. But I dream of them being rooted in the hard, hard ground of some sort of grant of power from the people, not the Marbury v. Madison Napoleonic act of grabbing a crown and putting it on one’s head. You will also note where I said I am not against the concept of judicial review per se. Since I said it, I will not waste more time with you on it.
As far as your quote of Ariticle III, Section 2–your quote completely ignores the part about “under such regulations as Congress shall make.” If Congress chooses to make a regulation that says “for purposes of determining the law, the Supreme Court shall view abortion as Constitutional” or “for purposes of 14th amendment cases, we exempt white people from being able to appeal to the court” , there is precious little the Court will be able to do if it disagrees on the subject, unless it decides to declare independence and set up shop on its own. The part about “as to law” means that the Supreme Court is the arbiter and interpreter for the lower courts. Period. Words must have meaning. Go reread the thing again, and stop wishing for what you currently have but the text does not support. (note, Congress giving the Court judicial review right via the regulations clause is fully kosher. It is a grant of power via legitimate means. Once again, I talked of this, so you are reacting to “blasphemy” more than anything else)
Your argument over Federalist 78 is poppycock. Somehow you argue that the personages of the time gave it full and robust thought, but somehow just didn’t bother to explicitly put it in, either at the Convention, the ratification debates, or the first few years of the Republic. Maybe they had stuff to pick up at the drycleaners the day it was scheduled, and just never got back around to it, I suppose…
I am sorry to be the iconoclast, but the role the Court has today is not part of the Madisonian system as it operated for the early history of the Republic. It is an add-on, and not a very fully thought-out one, as the continuing stress over abortion shows, a stress that could have been resolved long ago except for the fact that no one can override the court except by amendment or waiting for generationsl change. You, sir, may worship and gaze admiringly at the current ediface. I do not, for the justices of the Court are not gods, will not be treated by me ad ones, and I think I see something better, something that allows for review and override, check and balance, in a cat’s cradle of interlocking tensions that make the entire thing work.
Mr. Obama, that is a lie.A lie in front of a camera, in front of the People (remember, We Are Your King, you serve us).
Mr. Obama, this lie is a violation of the Constituton. An attempt to overthrow it.
Mr. Obama, resign.
Be decent. For once in your life.
You have already violated the First Amendment (acting against the Freedom of conscience of the Catholics), you have violated the Second Amendment (by arming gangs of foreign criminals and so helping them in the murder a U.S. Border Patrol Agent).
Now you attack the independence of the Judiciary.
Resign.
Got to love it when the man with the biggest ego in the whole world shows his ignorance for all to see. He does it over and over again. Never learns.
I think God is having a good time with Obama’s arrogance.
My kind of justice.
Is it ignorance or is it ‘unitellected”-ness.
Q. How many divisions does the Supreme Court have?
A. Enough to kick your ass.
One other possible scenario down the road…if he should be re-elected, but the GOP keeps the House and takes the Senate–Chief Justice Roberts would preside over any impeachment trial. He started picking a fight with the Court in his first State of the Union address, now he has re-opened it. And Barack is supposed to be smart?
Well, Phil, for a soi-dissant “intelligent educated man” I’d say 0bama is well credentialed.
I hate to inform Judge Smith of this, but the law (ACA) has already been struck down by a Federal Appeals court, and the administration has already ignored the ruling. According to this lawless administration, a Federal Appeals judge essentially “doesn’t count.”
http://campaign2012.washingtonexaminer.com/blogs/beltway-confidential/appeals-ct-obamacare-mandate-unconstitutional
I’m curious by what process the court is demanding the litigants provide comments on a statement by someone outside the court, even if it is one of the litigants’ titular leader.
If the justices want to address it, why not just address it in court, directly with the attorneys, isn’t that the standard process?
I’m not a lawyer, but my suspicion is that, when you deeply irritate judges, they may just revert to law school, and throw a paper at your head.
Perhaps it’s like that silly cartoon, “Boot to the head!”?
The small c communists don’t believe that “our” Constitution is “their” Constitution. In fact, this administration has a manifesto…and really has no respect for our laws, our rules, our regulations, they shirk every responsibility, won’t produce a serious budget, won’t enforce race-neutral laws, don’t respect our allies, make unilateral decisions, monumental decisions in reconciliation or through circumvention and czars and czarinas.
The will sic the NLRB or the EPA on personal vendettas, will advance the Workers Party agenda, place the Workers Party ahead of other creditors, will steal money in a redistribution scheme through the fakery of global warming and will use the Palm Press (propaganda and lies machine) to distort the truth and tell the American people a pack of lies.
If the Court won’t protect us (and four Supreme Court justices may indeed be traitors to the Constitution as well as the people of this land of ours), then we are in the middle of a revolution…not a “disagreement” about the “best way” to achieve mutually desired goals.
In fact, small c communism is at the very heart of this administration and it’s about time that we stop pussy-footing around about it and calling it something other than what it is.
This is a coup and has been for three years.
We either fight that and shine a light on it…or surrender and bend over. Period.
At least The Blasphemer We Have Been Waiting For has better words for Trayvon Martin than for the SCOTUS.
So go ahead: ask His opinion about Oprah.
just left a site where it is said obammy and gun runner are about to start court proceedings against old sheriff joe, in arizona. ya’ll remember joe. he has the expert’s testimony about some very illegal fraudulent federal indescretions on the part of one 0-barry. going after joe for discrimination against hispanics, er, i mean white people. iow, doing his job. can you spell v e n d e t t a boys and girls?
then i meander over to this site discussing (sort of) where o-zone breather throws down the gauntlet against the u.s.s.c. wow. this is getting good. popcorn he!!, ma, break out da jug too!
i think i see o-cracky’s BIG plan. lose, lose, lose, lose and lose. then scream, “martial law!” out of frustration. it will probably work for about 5 minutes. that’s how long it takes the average American rifleman to lock and load. maybe on dec. 21? nah, who woulda called that shot thousands of years ago?
Is there ANYONE left that Obama hasn’t created division with?
All Hail the Great Uniter!
Note to moderators: Dianna Deeley and I share a home, and thus an IP address, while remaining quite seperate persons.
Er…you mis-spelled “separate”.
I have read the followup letter from this appeals court to the DOJ. it is too imperial in tone, and makes me question whether the judge gets that this is actually a legitimate question While Barack Obama was using the question of the court’s legitimacy in a very demagougic way, the fact is that this issue has been brought up again and again for decades, and is not a thpught crime.
If I say that perhaps the judiciary rules by fiat and such rights to do so are not really part of the Madisonian plan and have not been fully thought out as to second-order effects, because it encourages exactly such fiats (among other things), and then you say “nonsense, the system is as pure as driven snow and all is for the best in the best of all possible worlds “, and then I say, “okay, what gives the Court power to issue fiats?”, and then you reply “oh, you ignoramus, the Court issued a fiat in 1803 saying it could”, you have not exactly restored my full faith in the beauty and thought put into crafting the system you adore…
There is not just an inherent tension between the way a judge operates in a system derived from the English heritage, and a way a Madisonian system operates—but an inherent conflict. One is imperial and not to be challenged, giving full and not to be questioned authority to one person or group if persons, the other is full of challenges and counter-moves that says only the people have full and ultimate power. The follow-up letter from the appeals court shows that. It’s not a crime to suggest that while the judiciary may pray at the temple of precedent, the rest of us need not do so five times a day.
We do not need a king.
As a followup–saying Marbury v. Madison established judicial review is proper is like quoting the Bible to prove the Bible. It only works because people already beieve in the overall idea, not because it’s an argument that is flawless.
Basically, it is my opinion that if you can’t admit that when it comes to judicial review (as done for the last half-century or so), it is somewhat of an added-on jury-rig (and not part of the original clockworks), it is because you are in love with the *idea* of some kind of routine “Is it Constitutional, yea or nay?” check, and not because the actual system was set up that way. Well, I like that idea of a routine check also, but do not think the current system is by any means ideal, or perhaps even desirable.
Actually, judicial review of the King’s fiats, and using the courts as a check, in addition to Parliament’s, on the King’s absolute power, went back to Justice Coke and his check on the first King James, a Scotsman supplanting the extinct English Kings (the Tudors, a branch of the York/Lancasters) who had to fight for his authority, even though it was corrupt. The Americans accepted this in 1803 because they knew the history. Neither Kings nor Presidents nor legislatures are absolute, and if a private or public citizen goes to court to say the government overstepped its legally constituted powers, who besides the court is going to decide who is right, the offended plaintiff, or the defensive government? Judicial review only arises if some plaintiff before the bar is complaining (in Obama care 26 state attorneys general and possibly other plaintiffs). Is the court going to say We don’t have the power to hear these complaints. The Constitution does not restrict the federal power at all and never did.” The court never has and never will, and in this case it already confirmed, at every court level, that it had the power and would exercise it. Judicial review is implicit in the limiting power of the Fed. Constitution (e.g., 10th Amendment) when a plaintiff complains so I don’t see how any American who is familiar with Justice Coke can seriously challenge the principal of Judicial Review. I never heard an argument against it that makes sense, once you understand the purpose of the Constitution to limit the powers of the Government (“God Given,” James Stewart claimed, for which his son gave his head). Judicial review is not going away after 209 years and Obama who is historically ignorant (probably never heard of Coke or knows what he did) is not going to change it.
I posted this in a comment over at Breitbart.com last night: someone needs to design a snazzy logo of someone in judicial robes serving papers to a bewildered Obama, with a tagline that reads, “Barack Hussein Obama, you just got SERVED!”
Then slap it on a hoodie.
Well the hoodie part is easy. CafePress can do it, and they do a pretty good job.
Obama, the “Constitutional Law Professor” [neophyte instructor really] that the US Constitution was passed by a duly constituted Constitutional Convention by an overwhelming majority, only three stood against who would have supported it I think if the Bill of Rights was in it. (Came later). Who should the Supremes listen to? The overwhelming majority of the Convention, the 219-213 majority of the totally partisan House who never read the Bill they passed, or the Constitutional Instructor? I go with the Convention and what they intended with regard to States v. Feds. (26 States challenged the mandate, excluding of course the states that received Obama’s waiver [bribe]). Kagan for not recusing is a real bone head. I can’t wait to read her fair decision, which I hope is a one judge stand alone dissent. We must vilify her always and everywhere for her self-serving partisanship as a former attorney for one of the parties. How does that not compel recusal, and how can the Court as a whole, or the Chief Executive party, condone it? We’ll see.
Presidents have the right to criticize courts – and they have done so throughout US history. Even Thomas Jefferson did so, in words much harsher than Obama. Judges, however, should refrain from engaging in political debates – especially from the bench. This judge – not Obama – has crossed the line.