The Latest on Obama v. the Court

RUSH: The Justice Department got their homework assignment in on time to Judge Smith at the Fifth Circuit court in Houston. He demanded a three-page single-spaced letter, and that really ticked off the left that this judge would essentially issue a homework assignment to the Department of Justice. What really ticked off the left was that the government lawyer acknowledged, "Oh, yeah, Judge, there's judicial review, and we accept that." And the judge, the left says, should have accepted that. Instead he issued this order that the department itself issue him a three-page single spaced letter memo explaining their understanding of judicial review, and it is three pages long. And it is single-spaced. And it was signed by Eric the Red himself. Eric Holder.

In a nutshell, the attorney general, Eric the Red, claims that the Department of Justice supports judicial review and that Obama's comments shows that he did, too. That's what it says when you boil it down. Which, of course, is untrue. Obama did the exact opposite. Holder says that laws passed by Congress are... I never heard of this word, presumptively constitutional. Laws passed by Congress are presumptively constitutional even though Holder's own DOJ is fighting the constitutionality of the Defense of Marriage Act as we speak. This is one of the ironies of this. While Obama's out there saying that courts never overturn, they're asking the court to overturn DOMA. Even though DOMA was passed by a duly elected Congress, duly constituted bill, whatever. But both Obama and Holder have pronounced it to be unconstitutional.

There's a story here today, Reuters: "White House in Damage Control Over Obama Supreme Court Remarks." They're not in any damage control. He said exactly what he intended to say. There's no damage control going on. That's the illusion. They want you to think that there's damage control going on. That's exactly what Obama meant to say. We touched on this yesterday, but it is so truly hilarious that it might be worth going into a little bit more detail, because at the very least it shows Obama's ignorance and arrogance. Yesterday the White House spokes-kid, Jay Carney, said that Obama merely made an unremarkable observation about 80 years of Supreme Court history, which is remarkably clueless even for the Carney kid.

Obama's so-called observation was inaccurate in every aspect. If it was so unremarkable, why are so many people remarking on it, including Obama, and why do we have the story about damage control? Obama was campaigning when he made this statement, and he was campaigning to the stupid. I'm sorry to have to repeat this to you, but we may have people listening that weren't yesterday. This whole thing, Obama has decided that he's going to get reelected on the stupid. What he basically was saying was these guys on the court are gonna take away your health care, and they're not allowed to do that, but they're gonna do it. They want to take away your health care. And they better not, they better understand. I'm warning them.

It was no mystery what Obama was doing, and this idea that he's in damage control is just laughable. (interruption) Well, I don't assume the stupid are listening here, Snerdley. Snerdley wants to know if the stupid are smart enough to know I'm talking about them. I don't assume the stupid are listening. (interruption) Well, I don't know. Well, maybe the stupid will hear about it, but then the question is will they be smart enough to know that I'm talking about them? It's sort of like when you ban the ugly and say, "Make it voluntary." Then the question becomes: Do the ugly know they're ugly? There's no scientific data on that. Do the stupid know that they're stupid? Probably not, by definition.

The stupid think everybody else is stupid. But they're smart enough to know that Obama's looking out for 'em, not Bill O'Reilly. They think Obama's looking out for 'em. And so here's Obama telling them essentially that the court doesn't have the right to take away their health care, but they're thinking of doing it. That's what he's telling 'em. No damage control here. What they're trying to do is structure this so that Obama doesn't have to take it back. It's a campaign statement. That's all that's going on here, is an attempt to massage this.

There was a story in The Politico today: "Jeffrey Toobin: Judges 'Deranged' by Obama Hatred -- After accusing a federal appellate court panel of throwing a 'hissy fit' about President Barack Obama, outspoken CNN legal analyst Jeffrey Toobin said Thursday that the order requiring the president to explain his beliefs about judicial review was a 'disgrace' and he called some Republican judges 'deranged by their hatred for the president. I think what these judges have done is a disgrace,' Toobin said on CNN. 'What President Obama said was entirely appropriate. There is nothing wrong, there’s nothing controversial.' He said, 'I signed a law that was passed by the democratically elected congress and I think it’s constitutional.'"

Who are we kidding here? So Toobin has decided that he, too, wants his audience to be comprised of the stupid, which may well be the case at CNN. Snerdley is still asking me, "Are you sure there are no stupid?" If the stupid come to this show, they don't stay stupid long. They either leave or they become smart. By definition, the stupid don't listen here. One of two things happens: The stupid tune in, don't understand it and leave and go back to E Entertainment TV or try to find Snooky reruns, or they get smart, pure and simple.

Now, Mr. Toobin, let me see if I can help you understand something, because you people on the left, by virtue of your reaction to some of the questioning in the oral arguments, you really, Mr. Toobin, you don't understand constitutionalists. You don't understand people who love the Constitution. You don't understand conservatism. You don't understand conservatives. You don't understand concept of limited government at all. Let me try to explain to you what might be going on here, Mr. Toobin. You have, in the case of Judge Smith -- I don't know him. I'm assuming that Judge Smith loves the Constitution. I think Judge Smith loves the Constitution far more than he hates anybody. Why is it that every time that there is a political dispute, you people on the left have to assign hate to it and automatically exempt yourselves? You are the haters. You are the people that have this barely controllable rage coursing through your veins, not us.

But Mr. Toobin, what's happening here, there is a battle for this country going on. This is not insignificant stuff, and it's not a laughing matter. When the president of the United States makes it plain that he doesn't think the court has the right to find his bill unconstitutional, that matters to a sitting judge. You think the judge did this for political reasons, to embarrass Obama? The judge did this because of what the president of the United States said, and it's about time somebody asked this guy, "Who are you and what do you really believe?" And that's what this judge was doing. Mr. Toobin, there are some of us who are really worried about losing our country. There are some of us to whom none of this is a game. There are some of us who look at life through a prism other than will it help Obama get reelected.

There are some of us who look at these events as being life changing, nation changing, and in some cases unrecoverable.

This judge is not deranged by hatred. If anything, the judge has a love of the Constitution and wants to see that it's upheld, and he doesn't want it trampled on by the highest executive officer in the land. But if the president wants to sound as though he's ignorant, which he did, if he wants to sound like he doesn't know what he's talking about, it's perfectly within this judge's purview to find out if we have a president who knows what he's talking about when it comes to the actions of the courts. And whatever Obama's motivation was, when he came out and warned the court and when he told 'em that it's unprecedented to overturn laws that have been duly constituted or passed by a duly constituted body, that sounds like he doesn't know what he's talking about, Mr. Toobin. And that's frightfully dangerous.

So, anyway, the letter has been turned over to the judge by Eric the Red. And once again they said, (paraphrasing) "Hey, the DOJ supports the initial review, Obama's comments show that he did, too, we believe that laws passed by Congress are presumptively constitutional." That's it, we're fine, everything's cool. But they're deranged out there. Judges deranged by hatred. What these judges have done is a disgrace. The judges give the Justice Department a homework assignment, three-page letter single-spaced explaining what the president said. There are people that want to know, Mr. Toobin, who this man really is. There are people who want to know exactly what his intentions are. There are those people, Mr. Toobin, and they love the country. They are not consumed with hatred.

RUSH: Mitch McConnell, the Republican leader in the Senate, today has blasted Obama, telling him to back off the Supreme Court, back off these comments. "The president crossed a dangerous line this week," McConnell said to the Lexington, Kentucky, Rotary Club, "and anybody who cares about liberty needs to call him out on it. The independence of the court must be defended." So McConnell was at the Lexington Rotary Club and launched on Obama.

“With all due respect to Rush, I think this judge is out of bounds.”

Oh really? So you think that FUBO has the right to his opinion right or wrong, but not the judge? First Amendment for FUBO, but not the judge. The good judge took it to that snotty DOJ lawyer and I am very proud of him. I firmly believe that we have too few judges who are defenders of our Constitution. This judge goes to the top of my list along with Joe Arpaio!

I must admit my response was based on news accounts, which is often not the best idea. :)

They seemed to say a judge in TX decided based on news accounts to order the Justice department to explain the President’s belief system.

That may not be what happened, but it is a pretty fair summation of what the press reported, I think.

If the judge was responding to specific administration claims that a specific court order he had made need not be obeyed, I think such a response might be entirely appropriate.

But a judge should not issue court orders based on his own readings of media accounts.

Anywho, the whole argument of whether the courts have this power to declare laws unconstitutional is just silly. Everybody believes they do, at least for the laws they disagree with.

The discussion is about the boundaries of such power, as it should be. Where does it begin and end?

As I understand it, and this is the place I'll get corrected if I understand incorrectly, Judge Smith is the same judge is the same judge who issued the ruling against the drilling moratorium in the gulf that was originally ignored by Ken Salazar (SECINT). Judge Smith also later cited the interior department, and Secretary salazar specifically, for contempt of court.

To me, this appears to be a federal judge saying “enough is enough”, and requiring the administration, through the justice department, to officially state their position with respect to the equality of the branches of government, and position on judicial review. In other words, Judge Smith is taking into consideration the actions of the administration and calling them on it.

So you think that FUBO has the right to his opinion right or wrong, but not the judge?

The judge has no right to use his official position to force others to explain their own personal positions.

He has of course 1st Amendment rights to exercise his own freedom of speech, but he does not have the right to issue a court order to force someone else to explain their political/judicial philosophy.

Which is not saying that is exactly what happened. The press accounts have been incoherent, to put it mildly.

requiring the administration, through the justice department, to officially state their position with respect to the equality of the branches of government

The problem here is that the branches are NOT equal and were never intended to be.

When push comes to shove, Congress is supreme. They have basically the power of life and death over the other two branches, since they can remove from office any executive officer or judge whenever they choose to.

Congress has largely abdicated its authority and responsibility on tough issues to the other two branches, because the most important priority of most congressmen is re-election, and tough issues will inevitably piss off some of the voters.

Much easier for them to point to the Court or the President and say, "It's their fault." Even though the Congress has power to control them whenever it sees fit. Cowards.

“The judge has no right to use his official position to force others to explain their own personal positions.”

Really? More recent posts (which include Holder’s response) indicate that the judge was hearing a case in which the ordered response was relevant. And from what I have read, the judge was not asking anyone for their personal opinion, but rather a statement from the DOJ as to their “understanding” of the role of the courts with respect to determining the constitutionality of a piece of legislation. Nice try!

Did the three-page letter have four-inch margins?

It would have been so simple if the Framers had included in Article VI, after "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof...shall be the supreme Law of the Land..." the words "and the President of the United States shall have sole Competence to judge which Laws are in accord with the Constitution."

They must have just been tired and forgot to include that in the text.

The discussion is about the boundaries of such power, as it should be. Where does it begin and end?

That's a question that has been carefully analyzed:

Fractal Boundaries of Complex Networks

...by the leading political philosophers throughout history:

What if they vote it Constitutional by 5-4 and the trap has been set and we’ve pounded our fists that noone should question the constitutionality of their finding and should not, therefore, be repealed by anyone in the future?

Even if it is found to be Constitutional, it is a bad piece of legislation, and should be repealed. That can be done legislatively. In the meantime, the House controlls the purse strings.

I agree with you.

Wasn’t it only a couple of months ago that conservatives were cheering Gingrich for proclaiming that he would hold activist judges accountable? Of course, Ubanga is a clueless simpleton who doesn’t even know what “judicial activism” is. In this current controversy, for example, the assclown Ubanga is behaving like a crybaby because there aren’t ENOUGH justices who will engage in liberal judicial activism by once again ignoring the Constitution.

In other words, Ubanga has everything exactly backwards, surprise, surprise.

Anyway, this “independence of the courts” crap is ludicrous. Far too many of the “men in black” are political hacks who are just as corrupt as any congresscritter. You need only look at the liberal side of the Supreme Court for proof. Those animals have absolutely no use for the Constitution, and make their rulings based strictly on the chic political correctness of the day, and perfectly in line with what their (Democrat) party masters demand of them.

Personally, I am delighted when somebody stands up and tells the liberal scum to go play in the street. Somebody, that is, who at least has a clue.

I still wonder if the republicans aren’t being played for fools. It would be very easy to do. They’re out there screaming that the SC has the final say. What if the SC upholds obamacare? Obama will say “The court did the right thing and you can’t argue with yourself and say it didn’t.”

With all due respect to Rush, I think this judge is out of bounds.

The personal opinions of executive branch officials, what they say, and what they “believe in” is irrelevant.

What matters is their actions. If and when the Obama administration refuses to obey a court order, it is appropriate for a judge to take notice. Till then, he should pay attention to what is brought before him as part of a legal process.
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Trouble is - it's the executive branch which enforces laws. So when the court hears a president say something which may sound like it doesn't recognize the court's authority, I don't think they should wait until he refuses to obey the court order to raise the issue publicly.

Also, if too many statements like that went unchallenged, then some might start to believe them, and slowly, the actual authority of the courts would be eroded.

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