I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

Missing Posts: If you have a link to a post that's not here or are looking for posts from Summer of 2010, check this page.


There isn’t much coordinating going on between those coordinate branches

Anderson has an account of a Fifth Circuit argument that is stunning.

Having heard a news report, Judge Jerry Smith of the Fifth Circuit concluded that President Obama was saying that the courts could not hold a statute unconstitutional and demanded a Justice Department lawyer answer for this.  Not satisfied when the lawyer cited Marbury v. Madison and acknowledged that the courts did have that power, Smith addressed a letter to the Justice Department demanding a letter brief in response in three days.  Anderson quotes another blog:

Judge Smith’s ultimatum calls for U.S. Attorney General Eric Holder to send him a three-page, single-spaced letter by noon Thursday addressing whether President Barack Obama’s recent public statements that the PPACA should be upheld signal a belief that the judiciary does not have the right to overturn a federal statute on constitutional grounds.

He then quotes the letter, which demands that the response be no less than three pages:

As directed today, the panel has requested a letter referencing oral argument questions. The letter is to be no less than three pages, single spaced, and is due by noon on Thursday, April 5, 2012.

Has anyway seen a minimum length requirement for a brief?  This sounds more like a homework or school-discipline punishment (Write a  five hundred times, “Yes, I agree your court has the power to overturn statutes.”).  As I said in comments on Anderson’s blog, WTF?

76 comments to There isn’t much coordinating going on between those coordinate branches

  • P.B. Pike

    CRS, as I recall, has defined himself as a Gingrich supporter. That’s the same Gingrich who proposed arresting federal judges with whom he disagrees. Former Attorney General Mike Mukasey called that “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle.”

    Here’s a summary of Gingrich’s insuurectionist ideas about how to abolish judicial review. It’s from that known pinko rag, the Wall Street Journal: http://online.wsj.com/article/SB10001424052970204058404577106962917439298.html

    Again, if I recall correctly, this bloated radical is CRS’ choice to be the next president of the United States. But it’s the current president who has crossed the invisible line into unacceptable “court bashing.”

    For a while now I’ve settled on gullibility and seething resentment as the characteristics that mark the right and the GOP. Now I’m leaning toward addding their abject hypocrisy on anything — absolutely anything — this president says or does.

  • There are several types of judicial activism. Both liberals and conservatives want judges to be “activist” when it suits their interests. In general, liberals want judges to enact completely new laws out of thin air, complete at the district level with elaborate executive branch duties being granted to the judiciary.

    Conservatives want the judiciary to be active in striking down federal laws which infringe on the rights of the people and force us ever closer to a totalitarian society.

    If you could go back 75 years and show the then-justices just how far reaching the commerce clause had become today, Mr. Filburn, the wheat farmer in Wickard v. Filburn, would have prevailed 9-0.

    We need a fundamental re-reading of the commerce clause, so that the federal government is limited to regulating actual commerce — weights and measures, tires, state or local government attempts to restrain trade, and so forth.

    In any event, if the Court strikes Obamacare, it won’t be making any new law. It will simply be telling the Congress it went a little too far. That’s the kind of activism we need more of.

  • Ignatius

    The court did start to restrain Congressional power pursuant to the Commerce Clause, Colonel. As P.B. mentioned upthread, the Lopez case and also the Morrison case prior to it, both from the 1990′s, found the court striking down at least parts of two laws – the violence against women act and the gun-free school zones act. There are three categories of activities that fall within the commerce power – you seem to cite to two of which you approve – the channels and instrumentalities of interstate commerce. Perhaps you disagree with the third category, activities that substantially affect interstate commerce – for example, health care insurance. So, we disagree. It’s not the first time and it won’t be the last, but following the court’s most recent precedents, those two cases would not support striking down the ACA. (I think I am supposed to add IMHO at this point, but my opinion has never really been humble.)

  • P.B. Pike

    CRS now says “[t]here are several types of judicial activism,” but apparently only when Obama decries judicial overreach does it constitute “Court bashing.” Republicans can do it all they want, and that includes fantasizing out loud about arresting librul judges.

  • Pike,

    I did not agree with Gingrich’s comments (And yes, Gingrich was my second choice, behind Ron Paul; Romney has always been third, and I like him just fine). However, the House has the right to impeach judges and inherent in that right is the right to question them. The “arrest” mentioned was actually just a requirement that they appear before Congress, just as you or I would have to do if told to do so.

  • P.B. Pike


    Gingrich said he would “instruct the Justice Department to send the U.S. Marshal. Let’s take the case of Judge Biery. I think he should be asked to explain a position that radical. How could he say he’s going to jail the superintendent over the word ‘benediction’ and ‘invocation’? Because before you could — because I would then encourage impeachment, but before you move to impeach him you’d like to know why he said it.”

    This is a man saying what he would do as president, not as a member of the House: he’d have the U.S. Marshal go get the judge (most would call that an “arrest”), sit his ass in front of the House, demand he explain himself — and THEN consider whether to “encourage” impeachment. You and the former Speaker forget that the “inherent” right to question a judge upon impeachment resides in the Senate, where a judge is actually tried.

    So as the executive he’d order the arrest of a member of the judiciary (presumably there would be a Gonzlez-like Attorney General in office who would not question whether the president can order anybody’s arrest for anything) and try him without the constitutionally required process in front of the legislature. And you have the gall to come on his blog and rail against incremental steps toward totalitarianism and “court bashing.” It’s embarrassing.

  • Researcher

    The difference between a minimum insurance mandate and a broccoli mandate is that Congress and states and employers and insurers and health care providers and health care consumers and taxpayers have all been struggling for decades with the inefficiencies and inequities and cost shifting inherent when medical care costs much more than most people can pay out of pocket so the government has had to gradually expand its subsidies to the elderly and low income and others with severe medical conditions yet private insurance costs also have continued to rise beyond the capacity of many employers and employees so a majority of Congress determined that the existing system was not sustainable and the best way to make the system more effective and efficient while maintaining the employer provided private insurance emphasis would be to require everyone to have a minimum amount of coverage and offer generous subsidies to make it more affordable. The difficulty of dealing with this very important national issue that affects every aspect of commerce and every citizen of the country should have been acknowledged and respected by the Court. This is nothing at like a hypothetical attempt to require people to eat broccoli and it is insulting to Congress and to the Constitution for Justices to pretend that they cannot tell the difference between the biggest economic issue facing the government, the private economy, and individual taxpayers and citizens and a ridiculous hypothetical that no one has suggested and has no history as a legitimate public policy alternative. The Supreme Court definitely should be reluctant to overturn an act of Congress that is the result of decades of discussion over serious policy concerns so the Court should have acknowledge the public policy dilemmas in health care economics and not be as insultingly dismissive as the rightist Justices were in oral argument.

  • Researcher,

    I disagree with you although I found your post incredibly difficult to read. You might try hitting the return key, twice even, every so often to form a paragraph.

    Pike, I disagree with your view that the House should just willy-nilly impeach judges. I think the House should first give them the opportunity to explain their rulings. I find the notion that the House should impeach a judge without giving him an opportunity to explain his actions to be pretty ridiculous. But perhaps that’s what the Constitution says.

  • P.B. Pike

    Article II, Section 4 provides for impeachment for “Treason, Bribery, and other High Crimes and Misdemeanors.” The phrase “dumb rulings” did not make the cut, but perhaps I am being too much of a strict constructionist.

    CRS, it never occurred to me for a nano-second that the House under either party would ever EVER become so abusive in its Constitutional role that it would start impeaching judges for executing their duty to make rulings in cases — not, that is, until your man Gingrich suggested it, his followers applauded and my jaw dropped. I still find it absurd beyond all realistic conception, but if it did happen in some unthinkably fascist version of our republic, I hope the written opinion attached to the ruling would suffice as an “explanation” without humiliating a judge, who, in simply making a decision in a case, would have done nothing illegal, treasonous or corrupt.

    Believe me when I say I’m sorry to hear that you think it plausible that a federal judge should be dragged before the Congress and subjected to a public investigation solely for making a ruling with which a bare majority of the House disagreed. Honestly, I knew you had some authoritarian, even violent (e.g., those land mines in Arizona), impulses in your politics, but I did not realize until now that you have spells in which you accept outright constitutional abuse.

  • P.B. Pike


    In my opinion the difference between requiring people to buy health insurance or pay a penalty and requiring them to buy broccoli is the latter is completely fucking ridiculous. Even Congress would not do something that stupid — and if they did, they would pay the price at the polls, which may yet happen with the PPACA. It appears to have happened once already, in the 2010 elections. We’ve got a presumptive GOP nominee touring the country promising to repeal it, and if people cotton to that (and thus ignore that he was a progenitor of the law), so be it.

    But as for the broccoli analogy masquerading as serious legal reasoning, I join Reagan Solicitor General Charles Fried’s characterization of it as “beneath contempt.” Unfortunately that does not place it beneath Justice Scalia, who, with his Hannity-esque performance in oral argument last week, disrobed all pretension that he is anything other than a partisan ideologue with a lifetime appointment. Somebody should tell him that Fox News pays a lot better.

  • Anderson

    Maybe the SG should’ve tried that “completely fucking ridiculous” line out on Scalia.

    … I’ve been curious about Fried’s bona fides as a conservative. He voted for Obama, he said, because of Palin’s nomination as vice-president. He also co-authored a book with his kid, a philosophy prof, on the wrongness of torture. I suppose that in particular makes him a RINO these days.

    (N.b. he was born in Prague and naturalized as a kid – immigrants who’ve fled oppressive regimes sometimes make the mistake of taking America seriously as the guardian of human rights.)

    He supported both Roberts and Alito for SCOTUS, and he’s an adviser to the Harvard Law chapter of the Federalist Society.

    … Wikipedia apparently has some quotes supplied by his students:

    “Do not call a policeman a motherf***er, no matter what you’ve learned in this course.”
    –a 2010 course on First Amendment Law.”

  • meanderline

    Here’s a link to a law professor’s comments noting that in 1790 Congress,including 20 signers of the constitution (for original intent afficionados), passed a law requiring shipowners to buy insurance for seamen, in 1792 a law requiring citizens to purchase guns, and in 1798 a law requiring seamen to purchase insurance.


    If true (there were no cites provided) the individual mandate hardly seems to be novel. Apparently this was not mentioned in oral argument although, surely, someone briefed it?

  • Anderson

    I dunno, Meanderline, for any of that to be potentially relevant, there would have to be someone on the Court with an interest in what the Framers’ generation understood the Constitution to originally mean.

    Can’t think of anyone like that on the SCOTUS bench right now …

  • Floyd Pink

    FOX news is summarizing the three page letter right now. Apparently it is out there somewhere.

  • Silence DoGood

    meanderline, (or learned scholar, Anderson)I am not a lawyer, but did any of those Beast cited case involve the “commerce clause” or were they arrived at by some other Constitutional avenue?

  • P.B. Pike

    Anderson, I’ve fantasized about telling Scalia exactly that many times over the last week.

    Fried’s bona fides are pretty sound, especially his refusal to vote to put Palin a heartbeat away. I vividly recall lobbying my undecided right-leaning friends in 2008 to vote for Obama, and when they got a good dose of Palin, every single one of them broke for Obama.

  • meanderline


    The references in the Daily Beast article were to statutes, not cases. Again without cites. Assuming they did in fact exist I guess it’s an open question whether the Supreme Court would have found them constitutional had they been challenged and under what provision. I don’t think they were ever challenged or they’d have come up in my Con Law class. So, to that extent, they are not case precedent.

    My point, and I believe that of the author, is that the individual mandate is not some fundamental and novel reworking of government’s relationship to the individual as Justice Kennedy suggested. It’s merely another in what is – apparently – a long line of similar statutes. Again, if true, it’s very hard to understand why the argument as to the mandate’s constitutionality was not made in this context.

  • Anderson

    Silence, what does that matter? Assuming there’s not an express “Congress can require you to buy ________” clause in the Constitution, any power of Congress to make such a requirement would have to be inferred from a particular clause, just like the individual mandate can be inferred from the Commerce Clause.

    Or, to go straight to the big cleaver in the chopping block, the statutes Meanderline mentions were consistent with the Necessary & Proper Clause, just like the mandate.

    … “Learned scholar, Anderson”? I like it – sarcastic or not!

  • WantedToBeALawyer

    First: The ACA should be declared unconstitutional because of the mandate (or the mandate is unconstitutional, and the rest of the law stands).

    Second: The entire enterprise is aimed in the wrong direction.

    The problem is uneven, unequal healthcare.

    The ACA solution is to make sure that insurance companies remain solvent and profitable under the current system.

    Why are insurance companies interests being protected by current law, the ACA?

  • RazorRedux

    The whole argument against using the commerce clause is fuzzy to me. I’m already required to buy pasteurized milk and iodized salt and a whole host of other items that aren’t produced locally or in state? And the price I pay is directly dependent upon the costs associated with manufacturing and delivery of the items. And if I buy any of the items from a state that has higher production costs (including of course the healthcare premiums for their workers), that cost is passed on to me in the form of higher prices. Isn’t that one of the areas that the Commerce Clause regulates?

    The producer of my purchased goods is pricing the goods to offset the expenses of providing healthcare for their employees, which is a direct economic activity which directly impacts the cost of my required pastuerized milk and iodized salt. So I’m having a hard time trying to understand why it is such a foreign concept that I shouldn’t be required (as everyone else) to purchase healthcare insurance when it directly impacts the goods and services I’m buying, and am also selling. Am I missing something?

    WTBAL: Bingo on your statement. Almost. It would seem to me that normally we wouldn’t include a large part of the problem as a part of the a good solution, as you suggest, I agree wholeheartedly that it appears that insurance companies are being protected.

    And Big Insurance is a large part of the problem with healthcare finance in the US. Healthcare finance and health insurance is not complicated at all, it basically consists of a simple game of chance and statistics, all of which is stacked in the house’s favor. The problem in the US is that the insurance companies are assisting in setting the rules of healthcare delivery, all the while hedging their bets by insisting that they be taken care of financially, which is why healthcare is so uneven and unequal. Simply put, Big Insurance is betting you won’t get sick and cost them money and the purchasers of healthcare insurance are betting they will become sick and cost Big Insurance money. The actuarial tables (see profitability analysis)are weighted as necessary (based upon a number factors that all favor Big Insurance) to result in Big Insurance making more and more profits, which they then in turn invest in politicians that appear insistent upon maintaining the status quo in healthcare finance.

    The only viable way that healtcare is going to be made affordable and available to everyone is a single-payor system that minimizes the impact of Big Insurance and the influence it exerts on healthcare finance. Plenty of money is being spent, just spent in the wrong direction.

    I’m sure that the PPACA is not the best tool to accomplish affordable healthcare for everyone, however, it is the only current plan being offered that offers any improvement to the current system. To me, it is akin to a fool’s game to wait on perfection that may come later, instead of taking what you can get now and coming back to improve it later on.

  • Floyd Pink

    That’s actually a persuasive argument, RR, and as good as I have seen. Frankly, I don’t have a problem with the Mandate per se. That is, I think it’s a good solution, policy wise, but I am concerned that the extension into the “requirement to buy” could lead to some real problems later. I don’t think the broccoli analogy is off base.

    I think Obama’s misrepresentation to the American people on the role of the Supreme Court was clearly way over the line and I am enjoying the daily attempts by his poor minions to do anything possible but admit he was wrong, or even that he misspoke. Jay Carney should win the Nobel Peace Prize for his efforts. “Half a league, half a league, half a league onward…”

    I believe that when Obama took office, he had a clear mandate to reform Health Care and his political mismanagment of the issue has led us to where we are today. He could easily have brokered a deal with some top Republicans who would have been glad to get in on the glory but he arrogantly assumed that he could muscle it through. “We Won.” It just don’t work that way. Yeah, you won that election but nobody’s stays “won”.

    Hopefully, President-Elect Romney will be more humble.

  • meanderline

    “Easily brokered a deal with some top Republicans?” What planet have you been living on for the last 3 years? The poor fool tried bi-partisanship and got stiffed every single attempt.

  • Floyd Pink

    I have been living on Planet Obama where “We Won” is the answer to an argument from the Republican leadership in the first meeting he had with them over one year after he assumed office. The Democrats in Congress haven’t been able to work with him either and haven’t gotten much more attention than the Republicans.

    Here’s a nice commentary on The Petulant Boy-King’s unfortunate Constitutional stumble. You know, I am thinking that his betrayal of his supporters (With his general incompetence and failure to deliver) is reminiscent of when Bill Clinton promised his loyalists that he had not had sex with Monica Lewinsky and then they all went to bat for him publicly. I would imagine that his supporters are feeling pretty embarrassed and humiliated these days. Anyway, a snippet followed by the link:

    “This week the president revealed a major vulnerability in his view of the Constitution, but it was not his apparent attack on the principle of judicial review. It was his very real attack on the principle that the commerce power has a judicially enforceable limit. The reason the Solicitor General had such a rough time during oral argument on the individual mandate is not just that he coughed or was muddle-headed or nervous. It’s that he couldn’t answer Scalia’s question — if the government can force you to buy health insurance, what can’t it force you to do? — and that’s because there is no answer.”


  • Anderson

    WTBAL, I think the mandate system is a Rube-Goldberg way of faking single-payer while dealing the insurance companies in on the game.

    It’s not lovely, but given the politics, not much else was feasible. And even then, the GOP backstabbed the Dems.

  • Anderson

    … Over at LGM, they quote the Court’s op in Heart of Atlanta:

    It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed — what means are to be employed — is within the sound and exclusive discretion of the Congress. It is subject only to one caveat — that the means chosen by it must be reasonably adapted to the end permitted by the Constitution.

    Some people have a problem with the idea that the Court is not the micro-manager of Commerce-Clause legislation. Ever since McCulloch, the law has been that where Congress is legislating in the field of commerce, it exceeds the scope of the judiciary to second-guess the policy decisions of the legislative branch:

    where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This Court disclaims all pretensions to such a power.

    That last passage in bold is a statement of judicial restraint, which is why “judicial activism” in this context is actually the relevant concern, and not just a stick with which to beat one’s opponents.

    (Notice how when these topics come up, the side saying that ACA is constitutional has actual case law to quote, and the opposing side has a lot of hand-waving?)

    The ultimate check on Congress is political: unlike the Court, it can be voted out of office.

Leave a Reply