# 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:** 4
**Author:** ![Lightnin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lightnin/32/180_2.png) [@Lightnin](https://boards.straightdope.com/u/Lightnin)\ **Post date:** [April 6, 2012, 12:55pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/61 "2012-04-06T12:55:27Z")
> [@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. As an aside to the thread: **Bricker** , you and I have butted heads several times, but your actions in the case you described have, once again, earned my respect. If there’s anything I can’t stand, it’s when stupid people are wrong but in a position of power, who use that power to unapologetically get their way. I’d never make a good lawyer- my ego would get in the way. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [April 6, 2012, 2:13pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/62 "2012-04-06T14:13:47Z")
> [@mlees](#): > > 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? I think that the court has already gone too far in this. Obama is a constitutional scholar. I know what he meant to say and he knows what he meant to say. In his zeal to promote the law as being constitutional, his brain and tongue had a miscommunication which he later clarified. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 6, 2012, 4:02pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/63 "2012-04-06T16:02:10Z")
> [@Bricker](#): > > 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. > [@Bricker](#): > > 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. I agree with this, but wasn’t the eyebrow-raising part of the order where the court demanded that the attorney general reconcile the government’s position on judicial review with the president’s political speech? It seems to me there might be a question as to whether this constitutes a violation of separation of powers for the court to demand such an explanation as well as a violation of the president’s First Amendment rights. What do you think? ---
**Author:** ![CaptMurdock](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/captmurdock/32/11736_2.png) [@CaptMurdock](https://boards.straightdope.com/u/CaptMurdock)\ **Post date:** [April 6, 2012, 4:03pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/64 "2012-04-06T16:03:38Z")
FWIW, here is the [DOJ’s written response to the 5th Circuit Court.](http://sblog.s3.amazonaws.com/wp-content/uploads/2012/04/Fifth-Circuit-letter.pdf) It being a PDF, I can’t excerpt anything for you, but it basically states: [ol] [li]The power of judicial review is beyond dispute. That said…[/li][li]In considering such challenges, Acts of Congress are “presumtively constitutional”;[/li][li]The executive branch has often urged the judicial to respect the legislative decisions of Congress[/li][/ol] Basically, President Obama is well aware of the Supreme Court’s power of judicial review. He was basically reminded them that Congress has cards in this game, too. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 6, 2012, 7:34pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/65 "2012-04-06T19:34:37Z")
> [@Acsenray](#): > > I agree with this, but wasn’t the eyebrow-raising part of the order where the court demanded that the attorney general reconcile the government’s position on judicial review with the president’s political speech? It seems to me there might be a question as to whether this constitutes a violation of separation of powers for the court to demand such an explanation as well as a violation of the president’s First Amendment rights. What do you think? No, I don’t think so. The judge was implicitly taking the position that the President’s speech was a formal statement of administration policy. And the correct response to that assumption is to implicitly deny it, by reciting the law, reciting the history of the law, including the fact that Congress’ acts start with a presumption of constitutionality, and that the President’s remarks were not in conflict with the law. Which is pretty much what the AG did. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [April 6, 2012, 7:45pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/66 "2012-04-06T19:45:04Z")
Bricker, if the issue is in front of the SC already, what is in front of the 5th Circuit? ---
**Author:** ![What\_the](https://avatars.discourse-cdn.com/v4/letter/w/f4b2a3/32.png) [@What\_the](https://boards.straightdope.com/u/What_the)\ **Post date:** [April 8, 2012, 7:04pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/67 "2012-04-08T19:04:07Z")
> [@CaptMurdock](#): > > FWIW, here is the [DOJ’s written response to the 5th Circuit Court.](http://sblog.s3.amazonaws.com/wp-content/uploads/2012/04/Fifth-Circuit-letter.pdf) It being a PDF, I can’t excerpt anything for you, but it basically states: > > [ol] > [li]The power of judicial review is beyond dispute. That said…[/li][li]In considering such challenges, Acts of Congress are “presumtively constitutional”;[/li][li]The executive branch has often urged the judicial to respect the legislative decisions of Congress[/li][/ol] > > Basically, President Obama is well aware of the Supreme Court’s power of judicial review. He was basically reminded them that Congress has cards in this game, too. What does “presumtively constitutional” mean? What does “unprecedented” mean? ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [April 9, 2012, 6:58pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/68 "2012-04-09T18:58:06Z")
> [@Bricker](#): > > The judge was implicitly taking the position that the President’s speech was a formal statement of administration policy. That makes no sense. You can’t say, “I’m regarding X as a formal policy statement,” if X isn’t a policy statement at all. OK, you _can_ say it, just like I can say a fish is really a specialized kind of unicycle. It just doesn’t make any _sense_. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [April 9, 2012, 7:04pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/69 "2012-04-09T19:04:24Z")
> [@What\_the](#): > > What does “presumtively constitutional” mean? Left out the middle p, Presum **p** tively. The SC has stated, when a law is passed by Congress it is Presumptively constitutional, or _Presumed_ Constitutional. Just as the SC has stated many times before, if a Search is conducted without a warrant, it is “Presumptively **UN** constitutional”. > [@](#): > > What does “unprecedented” mean? UN = Without, in this context. Without precedent, no decisional law to back it up. Of course Obama is talking politics, not law. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 9, 2012, 7:16pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/70 "2012-04-09T19:16:23Z")
> [@RTFirefly](#): > > That makes no sense. You can’t say, “I’m regarding X as a formal policy statement,” if X isn’t a policy statement at all. > OK, you _can_ say it, just like I can say a fish is really a specialized kind of unicycle. It just doesn’t make any _sense_. Sure you can. And it makes its own sort of bizarre sense. It’s why kids are (well, were) forced to write lines acknowledging their conduct was wrong – the teacher takes the position that because the kid did it, his actions convey the claim that the behavior is appropriate, and the cure is to write 100 lines of, “Throwing spitballs is against the rules.” In this case, the President says, in effect, there is no precedent for courts to declare legislation unconstitutional. The judge’s assignment was for the administration to write a letter explaining that courts can and have declared legislation unconstitutional. ---
**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 9, 2012, 7:23pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/71 "2012-04-09T19:23:10Z")
Do we have a reaction yet from the judge concerning the response from the Justice Department? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 9, 2012, 7:36pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/72 "2012-04-09T19:36:14Z")
> [@lawbuff](#): > > Bricker, if the issue is in front of the SC already, what is in front of the 5th Circuit? There have been numerous challenges to different parts of the ACA by different plaintiffs. The Supreme Court is considering _Florida et al v. Department of Health and Human Services_, where the “et al” is: Arizona, Indiana, Mississippi, Nevada, North Dakota, Alabama, Colorado, Florida, Idaho, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Georgia, Alaska, and as of January 19, Ohio, Wisconsin, Kansas, Maine, Iowa, and Wyoming, the National Federation of Independent Business and two individuals, Mary Brown and Kaj Ahlburg. They are deciding if Congress can require states to choose between complying with provisions of the Affordable Care Act or losing federal funding for the Medicaid program, and, if they cannot, is the rest of the Act valid or must it also be struck down. The Fifth Circuit is hearing _Physician Hospitals of America, et al., v. Sebelius_, which claims the ACA is unconstitutional because it because it arbitrarily discriminates against physician-owned hospitals and in favor of the operation of hospitals owned by non-physicians. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [April 9, 2012, 7:38pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/73 "2012-04-09T19:38:39Z")
Thank you! ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 9, 2012, 7:39pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/74 "2012-04-09T19:39:02Z")
> [@lawbuff](#): > > Of course Obama is talking politics, not law. Correct. This would be the equivalent of a GD thread in which I said, “This idea is dumber than a box of hammers,” and my opponent said, “Cite? Please specify which types of hammers and what sort of intelligence tests were applied to them to reach this conclusion.” ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [April 9, 2012, 8:10pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/75 "2012-04-09T20:10:15Z")
> [@Czarcasm](#): > > Do we have a reaction yet from the judge concerning the response from the Justice Department? I am kind of hoping he sends it back with a big red C- on the first page. Regards, Shodan ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [April 9, 2012, 8:21pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/76 "2012-04-09T20:21:41Z")
Wrong president. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [April 9, 2012, 8:32pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/77 "2012-04-09T20:32:16Z")
I notice the DOJ’s letter was less than three pages. More like 2.5. I wonder if the Court of Appeals will sanction them for brevity. ---
**Author:** ![Kearsen](https://avatars.discourse-cdn.com/v4/letter/k/82dd89/32.png) [@Kearsen](https://boards.straightdope.com/u/Kearsen)\ **Post date:** [April 9, 2012, 8:42pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/78 "2012-04-09T20:42:44Z")
Tried sending this as a PM but it wouldn’t let me **The Second Stone** You probably don’t even recognize the handle but you have earned a respectful pat on the back today by posting what you did. By acknowledging a mistaken attribution, you apologized. You may not care but it did not go unnoticed. ---
**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 9, 2012, 10:26pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/79 "2012-04-09T22:26:39Z")
> [@Shodan](#): > > I am kind of hoping he sends it back with a big red C- on the first page. What was wrong with it? ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [April 9, 2012, 10:35pm UTC](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739/80 "2012-04-09T22:35:54Z")
> [@What\_the](#): > > What does “presumtively constitutional” mean? > > What does “unprecedented” mean? It means it never happened before. [Previous page](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739.md?page=3) [Next page](https://boards.straightdope.com/t/appeals-court-fires-back-at-obamas-comments-on-health-care-case/617739.md?page=5)