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.
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.
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?
FWIW, here is the DOJ’s written response to the 5th Circuit Court. 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.
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.
Bricker, if the issue is in front of the SC already, what is in front of the 5th Circuit?
What does “presumtively constitutional” mean?
What does “unprecedented” mean?
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.
Left out the middle p, Presumptively.
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 UNconstitutional”.
UN = Without, in this context. Without precedent, no decisional law to back it up. Of course Obama is talking politics, not law.
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.
Do we have a reaction yet from the judge concerning the response from the Justice Department?
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.
Thank you!
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.”
I am kind of hoping he sends it back with a big red C- on the first page.
Regards,
Shodan
Wrong president.
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.
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.
What was wrong with it?
It means it never happened before.