What President Obama did two days ago when he bullied the Supreme Court and called them "unelected" -- and essentially threatened them -- was wrong. It also made him look like a fool. He was certainly not acting like a leader, but a schoolyard bully who wants his way at any cost.
Then yesterday, after even his friends jumped him for not knowing the law, the president stepped up his bullying and spoke about all the people he believes will be hurt if the Supreme Court finds the mandate clause unconstitutional. This was another stab at trying to influence the court (and, of course, the voters). He was trying to 'nuance' his stupid remarks of the day before, but not all of us fell for it.
This second day round was more bullying by the president and shows more lack of leadership. The president knows, or should know from his constitutional law classes, that the analysis is whether the mandate clause is constitutional or not -- and not whether the ends justifies the means, as he was pushing yesterday. If that were the appropriate legal/constitutional analysis -- the ends justifying the means -- we might as well get rid of the warrant clause of the 4th Amendment.
So yes, the president is firing cheap political shots and looking very unschooled in constitutional law as he does it.
So now enters the Judiciary... and takes its turn.
The US Court of Appeals -- in response -- is now likewise a bully.
Yesterday the 5th Circuit fired off a letter to the Justice Department demanding by noon tomorrow (single-spaced, 3 pages) an answer to the question of whether the Federal Courts have the power to declare statutes unconstitutional or not. They know the answer and they know the Attorney General does (even if the president does not): Marbury v. Madison. They fired off the letter to Main Justice because they got mad at the president for trying to intimidate their co-equal branch of government.
And if by some really weird coincidence, the 5th Circuit Judges had the same deficient legal education that the president apparently had, the Court was specifically informed of Marbury v. Madison by the Justice Department lawyer who was before them arguing an unrelated case. I listened to the tape from the oral argument before the 5th Circuit and I heard the Court specifically ask that question of the Justice Department lawyer and I heard the lawyer say: Marbury v. Madison.
She was clear -- she clearly answered the question: Marbury v. Madison. The Court could not have missed it.
That should have been the end of it. She answered it. Done. But it did not stop the Court.
The subsequent letter fired off to the Justice Department by the 5th Circuit was gratuitous return bullying... yes, because the judges are angry at the obnoxious bullying started by the president.
They all know better.
This has to stop.
There is only one way to stop it:
I think the Attorney General should refuse to answer the letter and let the noon deadline pass. If the Court is unhappy about being snubbed, and wants to step it up -- and I urge the Court not to -- the Court will hold the Attorney General (or his representative) in contempt of Court. If that happened, I would urge the A/G to seek review by the entire U.S. Court of Appeals for the 5th Circuit (en banc review) and if he loses there, he should go to the U.S. Supreme Court. Of course no lawyer wants to be held in contempt of Court, but the Attorney General may have to take this fall (and yes, his boss started it).
This has to stop. We have to stop the ridiculous bullying. Getting even is not the answer.
We need a careful constitutional analysis of the mandate clause -- not a bunch of scratches, black eyes and pulled hair.
P.S.: I do confess this looks like the Wisconsin Supreme Court where they leak notes to the media about each other and attempt to strangle each other!
Cross-posted from GretaWire.