5th Circuit Judge Challenges DOJ after Obama's "Unelected" Comment
By Hadley Heath
After reports from SCOTUS indicated that the constitutional defenses for ObamaCare were weaker with Justices than anticipated, President Obama wasted no time responding.
His words, Monday at a North American summit with Canadian and Mexican leaders present as well, were:
"There is not only an economic element to this, a legal element to this, but there is a human element to this. And I hope that's not forgotten in this political debate. Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected congress. And I would like to remind conservative commentators that for years what we have heard is that the biggest problem is judicial activism and that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I’m pretty confident this court will recognize that and not take that step."
Most of the cases challenging his namesake law are on hold, but there are a few that have continued to move ahead because they challenge portions of the law not related to the Supreme Court case. One such case is Physicians Hospitals of America v. Sebelius (see the case profile here). This case basically challenges the law's prohibition on the creation or expansion of physician-owned hospitals because it arbitrarily discriminates against physicians and favors the operation of hospitals owned by individuals who are not physicians. Under appeal at the Fifth Circuit Court of Appeals, this case made national headlines yesterday when Judge Jerry E. Smith took advantage of the oral argument hearing to call Obama out for his comments:
"I want to be sure that you are 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,"
(Ring, ring!) But Smith went even further, ordering the Department of Justice lawyer to prepare a 3-page letter on the authority of the judicial branch to strike down unconstitutional laws:
"The 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."
Maybe it's a bit theatrical to ask the DOJ to file a letter with the court on such an obvious topic, but it gave me a good laugh to see someone from the judicial branch stand up for the separation of powers and poke fun at Obama's inappropriate and unwise remarks. I look forward to reading this letter from the DOJ.
...And about the "strong majority" (219-212 in the House) of "a democratically elected Congress" ...Did Obama not realize he relied on the votes of five unelected Senators to pass the Affordable Care Act?
From the American Healthcare Education Coalition:
1. Sen. Roland Burris (D-Illinois). Burris was appointed by now-convicted former Governor Rod Blagojevich (D) to fill the Senate seat vacated by Barack Obama after he was elected President. Certainly President Obama knew yesterday that his unelected successor was one of five deciding votes that passed ObamaCare. Burris would retire at the end of the 111th Congress and never face voters for his vote for ObamaCare. This U.S. Senate seat is now held by Republican Mark Kirk who was elected by the people in 2010.
2. Sen. Ted Kaufman (D-Delaware). Kaufman was appointed to fill the Senate seat vacated by Vice-President Joe Biden after the 2008 election. Like Burris, Kaufman would retire at the end of the Congress without ever having to face the voters for his vote for ObamaCare.
3. Sen. Michael Bennet (D-Colorado). Bennet was appointed to fill the vacancy created when Ken Salazar resigned to become Obama's Secretary of the Interior. He was elected in his own right to the Senate in 2010.
4. Sen. Kirsten Gillibrand (D-New York). Gillibrand was appointed to fill the vacancy created when Hillary Clinton resigned to become Obama's Secretary of State. Ironically, the man who appointed Gillibrand to the Senate, Gov. David Paterson (D), was himself never elected Governor (he became governor after Elliot Spitzer resigned from office in disgrace). Gillibrand was elected in her own right to the Senate in 2010.
5. Sen. Paul Kirk (D-Massachusetts). Kirk was elected to fill the vacancy created by the death of Sen. Ted Kennedy (D). Like Burris and Kaufman, Kirk would retire at the end of the Congress without ever having to face the voters for his vote for ObamaCare. This Senate seat is now held by Republican Scott Brown who won a special election running against ObamaCare.