Attorney General Eric Holder's letter to appeals court judge Jerry Smith flatly says that President Obama's recent statements regarding the Supreme Court's review of the health care law "were fully consistent" with the long-standing principle that courts have the authority to review the constitutionality of federal laws. But Holder doesn't refer to any of Mr. Obama's statements, as Judge Smith asked -- and he takes a few subtle shots at the appeals court.
The letter is written as a two-and-a-half page legal explainer on the court's power to review federal laws, complete with citations of Supreme Court cases going back to Marbury v. Madison in 1803. But it's also a crafty piece of advocacy in the Court of Public Opinion.
Holder spends more than half of the letter arguing courts should defer to Congress, and that the Executive Branch -- in defending federal law -- has often urged judges to be deferential. Again, he cites cases -- although some are quite obscure (see, e.g., United States v. Five Gambling Devices Labeled in Part "Mills," and Bearing Serial Nos. 593-221). All this may be designed to back up the president's remarks that he believes the court should uphold the law -- but it can also be read as a bit of in-your-face legal writing.Continue »
Updated 6:55 p.m. ET
(CBS News) In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.
The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would 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."Continue »
With confirmation that Gingrich's top advisers have quite en masse, this obviously means his campaign is all but done, which frankly was only a matter of time and comes as a surprise to no one. The more interesting question for 2012 is what this means for Texas Gov. Rick Perry.
Sources close to Perry tell me he is now "serious" about a presidential bid. He has been talking with his big money donors for the past week, and they had a conference call on Monday to talk assembling a possible 2012 campaign.
But the rub was this: There was no way Perry would run for president without his top political consultant, Dave Carney. And it also would be nice to have his former campaign manager, Rob Johnson, on board.
Unfortunately for Perry, both of those guys were working on Gingrich 2012. Carney was advising Gingrich in New Hampshire and Johnson was Gingrich's senior political adviser. As one top Republican strategist told me on Tuesday, the canary in the coal mine for a Perry presidential run is whether Carney would leave Newt.
Now, Gingrich's entire team has up and quit. And all of a sudden Carney/Johnson are available. And Rick Perry is for real.
Rollins, who was Mike Huckabee's national campaign director in the 2008 campaign, is an experienced political operative with a well-earned reputation for his tough tactics and willingness to play hardball. He's probably best known for running the 1984 Reagan-Bush reelection campaign, which Reagan won in a landslide.
Rollins will run a campaign that already has a number of experienced advisors on board, including Brett O'Donnell, who advised George W. Bush and John McCain and is considered the best debate coach in politics. Bachmann also has brought on Bob Heckman, who is prominent in the conservative movement.
Sarah Palin is either running for President or she should be: That's the takeaway from "The Undefeated," a new movie about Palin's life and leadership set to hit theaters next month.
Billed as a documentary - though told in a fast-paced and dramatic style - the two-hour movie is an unabashed defense of the former Alaska governor that leaves the distinct impression her presidential candidacy not only is possible, but inevitable.
Stephen Bannon, the movie's creator, took on the project after Palin's aides approached him late last year about making a series of videos on Palin. He proposed a movie instead, and bankrolled it himself. The final product, which I saw last week in a screening for a few reporters, gives Palin the introduction she never really had when the Hockey mom from Wasilla became John McCain's running mate in 2008.Continue »
Justice Samuel Alito was the sole dissenter in Wednesday's Supreme Court decision to protect the right of the Westboro Baptist Church to hold inflammatory, anti-gay protests outside of funerals, insisting the funeral protests did not deserve constitutional protection.
"Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," Alito wrote in his dissent.High court rules for military funeral protesters
The Westboro Baptist Church, an anti-gay fundamentalist group led by Rev. Fred Phelps, habitually protests high-profile events as a means to publicize its view that U.S. deaths in Iraq and Afghanistan are God's punishment for American "immorality" - particularly in regard to national tolerance of homosexuality.
The church is best known for protesting the funerals of military servicemen, and famously carries signs with such sayings as "Thank God for Dead Soldiers" and "Fags Doom Nations." (It has also, however, picketed such events as theater productions and high school graduations.)
The father of Matthew Snyder, who was killed in Iraq in 2006 and whose funeral was protested by Westboro Baptist Church, sued the group in 2006 and won $11 million in damages. (The figure was later reduced to $5 million by a judge.) But in the 8-1 ruling on Wednesday, the Court said the church could not be held liable for inflicting emotional distress on the families of deceased soldiers.
The justices said the speech was protected because the protests were on a matter of public concern, on public property and conducted in a peaceful manner.
"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and--as it did here--inflict great pain," Chief Justice Roberts wrote in the decision. "On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation, we have chosen a different course--to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
Alito noted in his dissent, however, that the father of the soldier was not a public figure, but "simply a parent" who wanted to "bury his son in peace."
Alito said the father suffered "severe and lasting emotional injury" as a result of the church's "malevolent verbal attack."
He added that such vicious verbal attacks that make "no contribution to public debate" are not protected when they inflict "severe emotional injury on private persons at a time of intense emotional sensitivity."
The massive, ongoing sweep of suspected Mexican drug cartel members in the United States, Latin America and Central America is a direct and calculated response to last week's killing of a U.S. law enforcement agent in Mexico.
Named "Operation Fallen Hero" or "Operation Bombardier," the sweep involves every federal law enforcement agency, as well as state and local agencies in all 50 states. And it started in the hours following Tuesday's funeral of Customs and Immigration Enforcement agent Jaime Zapata.
"We're sending a message. We're showing all the cartels that you're not going to bully us. You're not going to push us around. You're not going to murder or harm or pose a threat to a U.S. law enforcement officer," said Carl Pike the assistant special agent in charge of the Drug Enforcement Agency's special operations division. "We're saying, 'we know who you are. We are coming after you, and we will continue to come after you.'"
In the past two days, officers have arrested more than 200 people and seized more than $6 million, in addition to cocaine, marijuana and methamphetamine and more than 100 weapons, Pike said. Most of the arrests were of suspects who had been monitored in ongoing criminal investigations, and Pike said he expects many more as the raids continue through tomorrow and possibly through the weekend.
Pike said there was something like a "school yard mentality" to the ongoing raids.Continue »
Aside from the Big Deal that DOJ no longer will defend a federal law (which historically has hardly ever happened) there's perhaps an even Bigger Deal in today's announcement that President Obama has decided the Defense of Marriage Act is unconstitutional.
In reaching that conclusion, the President and Justice Department have concluded that laws treating gays and straight people differently must get closer scrutiny from the courts--and should be upheld only if there is a very good reason for them. That's a tougher legal standard than the courts typically have used in evaluating discriminatory laws against gays and lesbians.Continue »
The highly unusual move hands gay rights advocates a major victory they have worked years to secure--but is also certain to provoke intense controversy and trigger a heated political battle with Congressional Republicans, who support the law and have refused to repeal it.
The Justice Department is tasked with defending laws passed by Congress--even those laws the sitting President may not like or have supported. Only a few times in history has a President decided his Justice Department will not defend an existing federal law. In those rare circumstances, the House of Representatives can step in and have its lawyers defend the law in court.Obama administration will no longer defend DOMA
Gay Rights Groups Angered by Justice Department's DOMA Defense
President Obama decided the Justice Department no longer would defend DOMA after concluding the law was unconstitutional, administration officials said. Attorney General Eric Holder notified House Speaker John Boehner of the President's decision in a letter today, explaining that the administration believed the law violated equal protection principles, because it treats gays and lesbians differently than heterosexual couples. The government, he said, has no compelling reason for doing that.
"This is a rare case where the proper course is to forgo the defense of this statute," Holder said in the letter.
But the decision represents an about-face for the administration, which for two years had defended the statute against legal challenges by same-sex married couples. Holder said two new lawsuits had prompted the President and the Justice Department to "conduct a new examination" of the law, which blocks entitlement of federal benefits even in states where gays and lesbians have a right to marry.Continue »
Q: Seriously. Can New York really ban smoking outside, away from building entrances--even in "windswept" Battery Park (as the NYT put it) or Central Park? I mean, bars and restaurants are one thing, but a park?
A: Yes. We don't have a constitutional right to smoke (or, for that matter, a constitutional right to wear a Green Bay Packers jersey to work after the NFC championship game). Right now, nearly 80 percent of the people in the US live under some type of smoking ban, whether it's in bars, restaurants, workplaces--or on public property. And courts across the country have repeatedly upheld those bans--saying smoking is not a fundamental right and the government has an interest in protecting public health.
So the New York law may sound extreme, but it isn't that unusual---or even as far-reaching as bans in other parts of the country. The county that includes Minneapolis, for example, is planning to ban smoking on any public property--even if smokers are in their own cars.Continue »
In a 6-2 decision, the justices said Congress had effectively shut the courthouse door to these lawsuits in 1986, when it created a special vaccine court designed to compensate victims of vaccine injuries.
The decision immediately was hailed by the American Academy of Pediatrics, which said it would safeguard the nation's vaccine supply by protecting vaccine makers from potentially crippling legal liability--which could have driven manufacturers out of the vaccine market.
"Childhood vaccines are among the greatest medical breakthroughs of the last century," said the organization's president, Dr. O. Marion Burton. "Today's Supreme Court decision protects children by strengthening our national immunization system and ensuring that vaccines will continue to prevent the spread of infectious diseases in this country."Continue »
Virginia Attorney General Ken Cuccinelli has announced he's asking the Supreme Court to step in now and decide the constitutionality of health care reform--instead of waiting for the case run its normal course through the federal appeals court.
"Currently, state governments and private businesses are being forced to expend enormous amounts of resources to prepare to implement a law that, in the end, may be declared unconstitutional," he said in a statement. "Regardless of whether you believe the law is constitutional or not, we should all agree that a prompt resolution of this issue is in everyone's best interest."
Not to go out on a limb here, but I would rank the odds of success on this petition as, oh, zero. This is a highly unusual request, and the Court doesn't like highly unusual requests. It typically sticks to its traditions, which in this case would mean letting appeals run their course.
There are practical reasons for doing so: letting this case play out gives the justices the benefit of more opinions/dissents from the appellate courts as they weigh different sides of the issue.
Moreover, Cuccinelli is asking the Court to expedite a case he WON, not to block a ruling against him. If the Court were inclined to step into the case now, and there is no reason to think it is, the justices would be more likely to act on an appeal from DOJ in the Florida case--where the judge threw out the entire law.
But there is no motion for expedited review from DOJ in the Florida case. And in Virginia, DOJ pointedly refused to join Cuccinelli in asking the Supreme Court to jump in and skip the appeals courts, saying in a statement today that it's better to let the case proceed the normal way.
So why the rush from Cuccinelli?
Wait. A. Minute. Surely he's not trying to get the Court to take HIS case instead of the Florida case, so the landmark decision for the law books will be his litigation, not the group effort from Florida?
Nah. Surely not.
We expect Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. The only difference is that new Justice Kagan will be there this year instead of Justice Samuel Alito, who is out of town. Justices Antonin Scalia and Clarence Thomas also will sit out this year--but they never go, so you can't read anything into that.
As I suggested yesterday, it seemed almost inevitable that we'd have at least five there. We have a new Justice who presumably feels obligated or flat-out wants to attend her first SOTU. We have three other liberals who typically attend, as well, and we have Justice Kennedy, also a perennial SOTU enthusiast.Continue »
No, he's not mad. He's out of town.
As we all surely recall, the president's dust-up with Alito last year started when Mr. Obama took the unusual step of lashing out at the Court -- with six of the justices sitting right in front of him -- for a recent decision on campaign finance reform. When Mr. Obama said the ruling would open the floodgates for foreign corporations to spend unlimited money on elections, the Democrats in the chamber all jumped up and yelled and clapped and cheered--like all they were in the Duke student section at a Blue Devils game or something. That seemed like a bit of an overreaction, but they were pretty excited about campaign finance reform, I guess.Anyway, with all the whooping and hollering going on, the Justices just sat there, silently and obviously verrrry uncomfortably. And Justice Alito was caught on camera shaking his head and mouthing the words "not true." (watch at left)
That was Big News, and the White House kept the story going, with a press release the next day that Justice Alito was wrong, and President Obama was right, na-na-na-na-na. And that, shall we say, did not sit very well with members of the Court.
And ever since, we've all wondered whether any of them would return to another State of the Union. Ever again.
So we can take Alito off the guest list. But don't go all "Justice Alito is still mad as hell over what happened last year, and he's not going to take it anymore, so he invented an excuse to go up to Baltimore for the night." No. Negative. Alito had a long-standing teaching engagement in Hawaii.Continue »
When you think of the tradition-bound Supreme Court, there's a tendency to imagine the justices still writing opinions with quill pens, as they ponder the great legal questions in their hushed chambers.
But that obviously is not today's Supreme Court. Elena Kagan, the Court's newest justice, tells C-Span she likes to read briefs on her Kindle.
In an interview that updates C-SPAN's impressive October 2009 documentary on the Supreme Court, Kagan says technology means the justices don't have to lug so many stacks of briefs around when they're delving into the cases.Continue »
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