This is just one voice, an important one, but one is a sea of many. PLEASE do your due diligence, Obama is not going to give you free stuff, he is going to destroy this nation. –PBN

By Thom Lambert

Imagine if you picked up your morning paper to read that one of your astronomy professors had publicly questioned whether the earth, in fact, revolves around the sun.  Or suppose that one of your economics professors was quoted as saying that consumers would purchase more gasoline if the price would simply rise.  Or maybe your high school math teacher was publicly insisting that 2 + 2 = 5.  You’d be a little embarrassed, right?  You’d worry that your colleagues and friends might begin to question your astronomical, economic, or mathematical literacy.

Now you know how I felt this morning when I read in the Wall Street Journal that my own constitutional law professor had stated that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn[] a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress.”  Putting aside the “strong majority” nonsense (the deeply unpopular Affordable Care Act got through the Senate with the minimum number of votes needed to survive a filibuster and passed 219-212 in the House), saying that it would be “unprecedented” and “extraordinary” for the Supreme Court to strike down a law that violates the Constitution is like saying that Kansas City is the capital of Kansas.  Thus, a Wall Street Journal editorial queried this about the President who “famously taught constitutional law at the University of Chicago”:  “[D]id he somehow not teach the historic case of Marbury v. Madison?”

I actually know the answer to that question.  It’s no (well, technically yes…he didn’t).  President Obama taught “Con Law III” at Chicago.  Judicial review, federalism, the separation of powers — the old “structural Constitution” stuff — is covered in “Con Law I” (or at least it was when I was a student).  Con Law III covers the Fourteenth Amendment.  (Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. WadeGriswold v. ConnecticutRomer v. Evans, etc.)  Of course, even a Con Law professor focusing on the Bill of Rights should know that the principle of judicial review has been alive and well since 1803, so I still feel like my educational credentials have been tarnished a bit by the President’s “unprecedented, extraordinary” remarks.

Fortunately, another bit of my educational background somewhat mitigates the reputational damage inflicted by the President’s unfortunate comments.  This morning, the judge for whom I clerked, Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit, called the President’s bluff.

Here’s a bit of transcript from this morning’s oral argument in Physicians Hospital of America v. Sebelius, a case involving a challenge to the Affordable Care Act:

Judge Jerry E. Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

Dana Lydia Kaersvang (DOJ Attorney): Yes, your honor. Of course, there would need to be a severability analysis, but yes.

Smith: I’m referring to statements by the President in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed – he was referring, of course, to Obamacare – what he termed broad consensus in majorities in both houses of Congress.

That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.

KaersvangMarbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –

Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the President, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the President’s statements and again to the position of the Attorney General and the Department of Justice.

I must say, I’m pretty dang proud of Judge Smith right now.  And I’m really looking forward to reading that three-page, single-spaced letter.

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  • Questionman

    Thanks for proving my point. I don’t know who you are trying to convice maybe just your fellow racist, bigoted, hate-mongerers. But last I checked YOU don’t speak for America, so shut up and stop acting like you do.

    Un-qualified, divisive, anti-American president of our time???

    I think you’re referring to GW.

    As far as spending goes, I suggest you Google Obama’s and Bush’s effects on the deficit in one graph, you’ll be surprised at the results.

    And as far as your “Marxist, Community Agitator” comment, that is simply overblown rhetoric. Do you even know what a Marxist is? Go talk to a socialist, any socialist. They’ll tell you Obama is no Marxist.

    I’ll say it again, Obama policies have not failed. He is not a Marxist, and not an agitator. He is a constitutional scholar who saved the country from collapse, while being pounded on by republicans who only care about expanding the gap between haves and have nots.

    The fools being played are those who take the lies of fox news as fact.

    Obama has done a great job despite strong efforts to destroy him. He is saving the country not trying to destroy it. How foolish to think a man who benefitted from the country and dedicated his life to the study of its laws would want to destroy it. It is just lunacy to think that Obama is evil.

    do you have even one shred of real evidence that would support your claim that Obama is a Muslim and a Communist? I’ll help you. THERE IS NONE!

    If you have ever lived in a foreign country there are many things there that you take note of and like. Just because Obama liked the sound of the Muezzin at dawn proves nothing, other than the fact that he liked that sound. How does that Prove he is a Muslim. Your “evidence” would be quickly thrown out of any court in this country, it does not boast of fact, merely of interpretation and opinion and both of those things are never held up in any court of law. Obama is NOT a Muslim.

    ME, Obama is neither stupid nor lying about the Healthcare Mandate. How easily the bigoted right forgets that there were at least five judges who deemed “Obamacare” Constitutional

    Obviously you people on deem ti “Unconstitutional” because you don’t like it.

    I think at the point, its pretty clear that racism is rampant in the GOP. And I think it always was. It just took a Black man becoming president to bring it back to the surface. Here’s the proof


    is anything but a Socialist. He stands to the Right of Eisenhower and is trying very hard to save American Capitalism from its own stupidity. the racist right call Obama a marxist, a socialist, a Communist, a muslim because they can’t call him a Ni@@er! That’s what they mean! They can’t stand having a black in office. that this the cold hard truth!

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