# Appeals court fires back at Obama's comments on health care case **URL:** \ **Category:** Great Debates\ **Created:** [April 3, 2012, 9:51pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739 "2012-04-03T21:51:26Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [April 5, 2012, 2:42pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/41 "2012-04-05T14:42:53Z")
Damn, this scandal is spreading like mildfire! First, he offers to surrender to the Soviet Reunion if Putin helps him win the election, and now this! Doom! Woe! Whoa! ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 5, 2012, 3:00pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/42 "2012-04-05T15:00:07Z")
> [@Lochdale](#): > > It is not unconstitutional for Obama to make the comments on an ongoing case it is just very unusual. It also betrays an ignorance of 209 years of precedent. Now we know that Obama isn’t ignorant of constitutional law so his comments were political. And frankly they were stupid. I agree, it was stupid of him to say it. > [@Lochdale](#): > > And those who say that conservatives should applaud an attack against judicial activism my response is that liberals can’t have it both ways Neither can conservatives, as Obama rightly pointed out. If you spend 20 years decrying “judicial activism”, “ignoring the will of the people”, and “tyranny of the judiciary”, only to embrace a lack of judicial restraint when it’s the health care law, you’re being laughably hypocritical. We went through the same thing with the Kelo case, when judicial deference to the legislature led to a decision they didn’t like. > [@Lochdale](#): > > Obama is now distancing himself from his comments But he seems to be missing the pulse of the nation at the moment. This “pulse of the nation” is another example of manufactured outrage that is so prevalent in an election year. Obama said something dumb as a politician and the right get their undergarments in a bunch. Wake me when we get to something of substance. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [April 5, 2012, 3:29pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/43 "2012-04-05T15:29:16Z")
> [@Czarcasm](#): > > Since AG Holder has said that the Justice Department will respond “appropriately”, I’m wondering: > > 1. In what “appropriate” manner do you think the Justice department will respond, and > 2. In what “appropriate” manner do you think they _should_ respond? I think the appropriate manner to respond would be to politely but firmly remind the Fifth Circuit that the President’s remarks were not part of the proceeding before their court, that the Fifth Circuit has grossly overstepped its jurisdiction by treating those remarks as if they are part of the case currently before their court, and that the Department of Justice intends to proceed in that case in the exact same manner as it would have if President Obama had never uttered those remarks, whether or not the Fifth Circuit Court of Appeals does the same. I think the underlying meaning of the DoJ response won’t be all that far from my proposed response. It will probably be couched in more polite and legalistic terms, though. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 5, 2012, 3:31pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/44 "2012-04-05T15:31:57Z")
> [@Czarcasm](#): > > I agree with you totally on all of this. Since AG Holder has said that the Justice Department will respond “appropriately”, I’m wondering: > > 1. In what “appropriate” manner do you think the Justice department will respond, and > 2. In what “appropriate” manner do you think they _should_ respond? My answers for (1) and (2) are the same: with a straight-faced, 1L-level analysis of the principle of judicial review, as kicked by Marbury v. Madison and how it’s evolved over the years. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 5, 2012, 3:37pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/45 "2012-04-05T15:37:40Z")
> [@Hamlet](#): > > Neither can conservatives, as Obama rightly pointed out. If you spend 20 years decrying “judicial activism”, “ignoring the will of the people”, and “tyranny of the judiciary”, only to embrace a lack of judicial restraint when it’s the health care law, you’re being laughably hypocritical. We went through the same thing with the Kelo case, when judicial deference to the legislature led to a decision they didn’t like. Correct. Now, my own opinion is that the judicial activism in question happened in 1943. THAT was the departure from the text. But since we have accepted it and built a framework of law and regulation on it, we can’t now claim that continuing to do so constitutes judicial activism. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 5, 2012, 3:40pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/46 "2012-04-05T15:40:56Z")
> [@RTFirefly](#): > > I think the appropriate manner to respond would be to politely but firmly remind the Fifth Circuit that the President’s remarks were not part of the proceeding before their court, that the Fifth Circuit has grossly overstepped its jurisdiction by treating those remarks as if they are part of the case currently before their court, and that the Department of Justice intends to proceed in that case in the exact same manner as it would have if President Obama had never uttered those remarks, whether or not the Fifth Circuit Court of Appeals does the same. > > I think the underlying meaning of the DoJ response won’t be all that far from my proposed response. It will probably be couched in more polite and legalistic terms, though. That’s a bad idea. And I very much doubt they’ll do it. The court has the power to impose sanctions for ignoring their order, and this order is an entirely legal one: to brief an issue that’s before the court, namely, does government agree that the court has jurisdiction to hear and rule on the controversy before them. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 5, 2012, 3:45pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/47 "2012-04-05T15:45:36Z")
> [@Bricker](#): > > And I very much doubt they’ll do it. The court has the power to impose sanctions for ignoring their order, and this order is an entirely legal one: to brief an issue that’s before the court, namely, does government agree that the court has jurisdiction to hear and rule on the controversy before them. The court has the power. Exercising that power because you’re pissed at a political speech by the President is an abuse of that power. Obama was dumb for saying it, this judge is dumb for requiring a brief on an already decided issue because his feelings got hurt, and anyone who thinks this is the way grownups should be acting is dumb. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 5, 2012, 3:46pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/48 "2012-04-05T15:46:55Z")
> [@RTFirefly](#): > > I think the appropriate manner to respond would be to politely but firmly remind the Fifth Circuit that the President’s remarks were not part of the proceeding before their court, that the Fifth Circuit has grossly overstepped its jurisdiction by treating those remarks as if they are part of the case currently before their court, and that the Department of Justice intends to proceed in that case in the exact same manner as it would have if President Obama had never uttered those remarks, whether or not the Fifth Circuit Court of Appeals does the same. > > I think the underlying meaning of the DoJ response won’t be all that far from my proposed response. It will probably be couched in more polite and legalistic terms, though. And let me say that I, personally, have been on the receiving end of one of these judge-manufactured outrages before. I won’t go into detail, but basically there was some disagreement about the admissibility of a pre-sentence report, and I told the judge something like, “Your Honor, you can’t admit this into evidence.” Ninety-nine times out of a hundred, a judge will understand that this is argument. This was the hundredth judge, and proceeding came to a halt as he made me stand there and listen while he explained the reach and breadth of his judicial discretion and the inherent powers of the court and how I was perfectly free to object to the admission I was not free to tell him what he can and by-God can’t do, and the next words out of my mouth needed to be an apology or my boss was going to have to come get me out of lockup. I was right. The report, as was, was not admissible. I did not point that out. I apologized, because I had a client that I was not helping by making a principled stand. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 5, 2012, 3:47pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/49 "2012-04-05T15:47:57Z")
> [@Hamlet](#): > > The court has the power. Exercising that power because you’re pissed at a political speech by the President is an abuse of that power. Obama was dumb for saying it, this judge is dumb for requiring a brief on an already decided issue because his feelings got hurt, and anyone who thinks this is the way grownups should be acting is dumb. Agreed. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [April 5, 2012, 4:12pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/50 "2012-04-05T16:12:27Z")
They’re appointed _now_. If this is the way we can expect appointed judges to act, does anyone suppose we’ll just throw our arms up and say, “Nothing can be done!” They have a responsibility to act with the dignity their position requires. Yes, you can say the same thing about the president—especially during election time, if you catch my drift and I think you do. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [April 5, 2012, 4:55pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/51 "2012-04-05T16:55:46Z")
> [@howye](#): > > Back at ya, big fella. You will continue to be noted as a mental and rhetorical flyweight with nothing to add to the discussion other than name calling. This is Great Debates. Personal insults are permitted only in The BBQ Pit. Do not do this again. [/Moderating] ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [April 5, 2012, 5:15pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/52 "2012-04-05T17:15:49Z")
There are a few factual references to the general topic in the thread, (that has now been closed), moved to Great Debates from General Questions, if anyone is interested in looking up those references: [Can this judge order the Dept. of Justice to write a letter to him?](http://boards.straightdope.com/sdmb/showthread.php?t=647302) ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [April 5, 2012, 5:33pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/53 "2012-04-05T17:33:25Z")
> [@Oakminster](#): > > :rolleyes: > > Read my comments about Newt Gingrich in [this thread](http://boards.straightdope.com/sdmb/showthread.php?t=635454) which, incidentally, you posted in, so you should know better already. Then come back and apologize for falsely attributing to me a position I do not hold. > > :rolleyes: Here’s what you said in the other thread: > [@](#): > > The whole concept of attempting to subpoena a federal judge to “explain” a legal decision is antithetical to the separation of powers. Courts speak through written decisions. Period. They do not “explain” themselves to Congress. The impeachment process as applied to the federal courts exists to remove judges for improper conduct, like criminal acts or ethical violations. Not because you disagree on the merits of a case. Frankly, I think if a POTUS attempted to do what Newt says here, it may constitute grounds to impeach him. I see it as a direct and serious violation of the separation of powers, and utter disregard for the rule of law. Weirdly, although you condemn the concept, you failed to add that Newt was an idiot and megalomaniac and irresponsible for saying what he said. You said it was impeachable if he attempted such if he was president. Strictly speaking, you were critical of Newt for saying stupid things about the Court, had he been President. So accordingly to you demand, you are entitled to an apology. I apologize, as I did not mean to offend you and I had indeed forgotten your previous position. I wish to restore your reputation to full dignity. That being said, I don’t change my position that Obama’s remarks are dull and well within the bounds of his political rights. As were Newt’s more idiotic remarks. Not qualifying the apology at all, but Newt’s comments were not equivalent, but bizarre as Moon Base Callista. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [April 5, 2012, 6:31pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/54 "2012-04-05T18:31:08Z")
> [@Bricker](#): > > And let me say that I, personally, have been on the receiving end of one of these judge-manufactured outrages before. I won’t go into detail, but basically there was some disagreement about the admissibility of a pre-sentence report, and I told the judge something like, “Your Honor, you can’t admit this into evidence.” Ninety-nine times out of a hundred, a judge will understand that this is argument. This was the hundredth judge, and proceeding came to a halt as he made me stand there and listen while he explained the reach and breadth of his judicial discretion and the inherent powers of the court and how I was perfectly free to object to the admission I was not free to tell him what he can and by-God can’t do, and the next words out of my mouth needed to be an apology or my boss was going to have to come get me out of lockup. > > I was right. The report, as was, was not admissible. > > I did not point that out. I apologized, because I had a client that I was not helping by making a principled stand. Big difference: you’re not the President of the United States. There’s an important point to be made here: while the President is not above the law, judges don’t get to make him jump every time they get a bee in their bonnet, either. The Justice Department has to make that point, and I’m sure it will. ---
**Author:** ![MilTan](https://avatars.discourse-cdn.com/v4/letter/m/71e660/32.png) [@MilTan](https://boards.straightdope.com/u/MilTan)\ **Post date:** [April 5, 2012, 6:38pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/55 "2012-04-05T18:38:40Z")
The DOJ has turned in its [homework](http://thinkprogress.org/wp-content/uploads/2012/04/Fifth-Circuit-letter.pdf), for those that are interested in giving them a grade. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [April 5, 2012, 6:45pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/56 "2012-04-05T18:45:24Z")
> [@MilTan](#): > > The DOJ has turned in its [homework](http://thinkprogress.org/wp-content/uploads/2012/04/Fifth-Circuit-letter.pdf), for those that are interested in giving them a grade. What a _great_ response: The President had every right to say what he said and here are the reasons why. basically. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [April 5, 2012, 6:49pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/57 "2012-04-05T18:49:34Z")
Also, only two and a third pages and a large signature. Lovely. ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [April 5, 2012, 7:34pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/58 "2012-04-05T19:34:27Z")
I am not a lawyer. I think Holder got it right for the bulk of his letter. But his last sentence reads “The President’s remarks were fully consistent with the principles described herein.” However, the President used the word “unprecedented” in his comments describing the Court’s use of it’s powers to overturn a law passed by legislation, when that is clearly not the case. Can Judge Smith get nit-picky about that? What can he (Smith) do if he decides he will? ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [April 5, 2012, 7:41pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/59 "2012-04-05T19:41:43Z")
I especially liked this part: [QUOTE=AG Holder] 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. [/QUOTE] I believe that’s lawyer-speak for “in your face, schmuck.” ---
**Author:** ![Comicenbe](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Comicenbe](https://boards.straightdope.com/u/Comicenbe)\ **Post date:** [April 6, 2012, 1:46am UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/60 "2012-04-06T01:46:54Z")
> [@Ravenman](#): > > Don’t you mean “President Barack O-poo-poo-pee-pee-pants-booger-nose-stinky-breath-cootie-carrier-smelly-farty-dumbo-stinko-fartso-yucky-britches-bama?” > > I think that’s how the kindergarteners at Fox News are referring to him these days. lmao… you should make that a bumper sticker 😉 seems like [anti obama bumper stickers](http://rudecampaign.com/anti+obama+bumperstickers) are what’s in among the right… the stupider the better apparently. lol :smack: [Previous page](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739.md?page=2) [Next page](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739.md?page=4)