April 4th, 2012
By Bill Mears, CNN Supreme Court Producer
CR Note: Hmmm...will be interesting to see how the Obama Adminstration and DOJ define "appropriately."
Washington (CNN) -- The Justice Department is scrambling to meet a federal court's Thursday deadline to answer fundamental constitutional questions dealing with the health care law championed by President Barack Obama, an escalating political battle that has embroiled all three branches of government.
Administration officials said Wednesday they were deciding how to respond to an order from a three-judge appeals panel hearing a separate challenge to the Affordable Care Act. Department lawyers were told to explain whether federal courts could intervene and strike down congressional laws as unconstitutional. Such a power has been guaranteed since the Supreme Court's landmark 1803 ruling in Marbury v. Madison.
This came after a federal judge appeared to be deeply concerned by the president's comments this week, in which he challenged the high court not to take what he called an "unprecedented" step of overturning the law.
The White House tried to defuse the ideological firestorm, saying President Obama's words were misunderstood.
The three judges are Republican appointees from the 5th Circuit U-S Court of Appeals, meeting in Houston. They were hearing a challenge to the health care law from physician-owned hospitals, despite the fact the Supreme Court is deciding the constitutional questions. The high court's rulings expected in June would take precedence over any other courts hearing similar appeals.
The latest dispute surfaced Monday when the president said, "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 just remind conservative commentators that for years, what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law."
Some conservative commentators accused the president of trying to "bully" the federal courts into backing the law, or risk attacks on their credibility.
A day after the president's remarks, the federal appeals court held its open hearing. Judge Jerry Smith, a Reagan appointee, was especially tough on a Justice Department lawyer defending the law, specifically mentioning the Obama quotes.
"I'm referring to statements by the president in the past few days to the effect, and I'm sure you've heard about them, that it is somehow inappropriate for what he termed 'unelected' judges to strike acts of Congress that have enjoyed -- he was referring to, of course, Obamacare -- to what he termed broad consensus in majorities in both houses of Congress," said Smith.
"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," he continued. "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.
Government lawyer Dana Lydia Kaersvang appeared initially taken aback, but replied such authority has existed for centuries.
Nevertheless, Smith and Judges Emilio Garza and Leslie Southwick then ordered the Justice Department to submit by noon Thursday a three-page, single-spaced letter addressing whether the Obama administration believes courts do indeed enjoy that power. Smith's phrasing in open court of the law as "Obamacare" mirrors a term used by many opponents of the law.
The specific issue before the appeals court was a provision in the law restricting doctor-owned hospitals from expanding their facilities. The challenge was brought by an East Texas spine-and-joint hospital in East Texas.
Just hours after the appeals court hearing, Obama on Tuesday clarified his earlier statements, saying, "The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this."
White House Press Secretary Jay Carney, facing a flurry of reporter questions, said the president was articulating the view the high court has for 80 years generally deferred to congressional authority, specifically on economic legislation based on the Constitution's Commerce Clause, and was not challenging the Supreme Court.
"It's the reverse of intimidation, he's simply making an observation about the fact that he expects the court to adhere to that precedent," he said. "It's obviously, as he made clear yesterday, up to the court to make its determination, and we will wait and see that the court does."
Attorney General Eric Holder defended the president. "I think that you know what the president said a couple of days ago was appropriate," said Holder, speaking at a health care fraud prevention event in Chicago. "I don't think he broke any new ground in the comments that he made."
There was criticism aimed at both Obama and the federal courts over the divisive political issue.
Senate Minority Leader Mitch McConnell accused the administration of trying to "browbeat" and "intimidate" the justices.
"The president, more than anyone else, has an obligation to uphold the legitimacy of our judicial system," said the Kentucky Republican. "But his remarks on the [Supreme] Court reflect not only an attempt to influence the outcome, but a preview of Democrat attacks to come if they don't get their way."
Carrie Severino, chief counsel of the Judicial Crisis Network, said President Obama was out of bounds.
"The president is tying to bully the court here, threatening them that if they don't come down his way, they're going to have the same thing that happened in the State of the Union address 2010. He's going to be calling them activists, he's going to be saying they're political."
The president two years ago attacked the conservative majority for striking down a campaign finance reform law, giving corporations greater power to spend in federal elections.
But some conservative legal sources privately expressed disappointment in the appeals court's order, saying it appeared punitive and petty to demand the Justice Department defend a position it had never disputed in court.
"It was like he [the judge] was giving a homework assignment to an unprepared student," said one right-leaning lawyer, who opposed the law. "It has the effect of putting the judiciary on the defensive, and could give rise to concerns the courts will look at the law from a political, not constitutional perspective."
The high court held three days of oral arguments last week, dealing with four major questions surrounding the health care law. The justices have not, and by custom will not, comment on pending appeals. Their written opinions due in the next three months will be the final word on the Affordable Care Act's constitutionality, particularly the "individual mandate" provision that requires most Americans to have health insurance by 2014, or face a financial penalty.
The outcome of the cases have raised the stakes in a presidential year, and could have a lasting effect on the credibility of the federal courts, which are supposed to be beyond policies.
"I think what we are seeing here is the courts, and the confrontation between the administration and the courts, being drawn in to overall polarization that defines so much of modern political life. Every aspect of this has been extraordinary," said Ron Brownstein, a CNN political analyst. "Obama's comments Monday were more pointed and sharp than a president usually directs toward the Supreme Court; the response by a Reagan-appointed judge, more pointed and sharp than you might have expected from a lifetime-tenured member of the judiciary. And you really see here how even the idea of the court as something of an island apart from the intensity of political conflict is really breaking down."
CNN's Brian Todd and Dugald McConnell contributed to this report.
April 4th, 2012
The price of gold plunged Tuesday after the Federal Reserve said inflation appears to be under control.
Gold for April delivery closed around 1:30 p.m. at $1,670 per ounce, down $7.50. Then the Fed released minutes from its March 13 meeting around 2 p.m., and within an hour gold had plunged to about $1,645 per ounce.
Investors often buy gold as a hedge against inflation. But some Fed members are concerned that the economic recovery will be slow and halting, according to the minutes, and that likely means inflation will stay in check.
Inflation "is what gold holders look for more than currency moves and economic recovery," said George Gero, vice president of global futures at RBC Capital Markets.
Copper, an industrial metal, also fell slightly, losing 0.2 cent to $3.919 per pound for May delivery. The decline came despite a government report that factory orders bounced in February as businesses made long-term investments.
Silver, platinum and palladium settled higher. May silver rose 16.7 cents to $33.265 per ounce. July platinum rose $5.60 to $1,660.50 per ounce. June palladium rose 80 cents to $659.60 per ounce.
Silver, platinum, palladium and copper all fell after the Fed minutes were released.
Traders appeared to be weighing reports of strong auto sales in the U.S. against signs that demand in China is cooling. Christine Lagarde, chief of the International Monetary Fund, said Tuesday that the recovery remains particularly frail in Europe.
Oil prices fell as traders digested the mixed signs about the global economy. Benchmark U.S. crude gave up $1.22 to end the day at $104.01 per barrel in New York. Crude has traded near $105 per barrel since February, pushed higher by tension in Iran and the falling dollar. Brent crude was down 57 cents to finish at $124.86 per barrel in London.
In other energy trading, heating oil fell by 2.21 cents to finish at $3.2275 per gallon, and gasoline futures added 1.32 cents to end at $3.3954 per gallon. Natural gas increased by 3.5 cents to finish at $2.187 per 1,000 cubic feet.
In agricultural commodities, wheat and corn rose while soybeans fell. Wheat rose 1 cent to $6.58 per bushel. Corn rose 3.25 cents to $6.5825 per bushel. Soybeans fell 4.25 cents to $14.167 per bushel.
April 4th, 2012
The Obama Justice Department has roughly 24 hours to explain to a federal appeals court whether the administration believes judges have the power to overturn federal laws -- in the latest escalation between the two branches of government over the federal health care overhaul.
A three-judge panel for the 5th Circuit Court of Appeals on Tuesday ordered the Justice Department to explain by Thursday at noon whether the administration believes judges have that authority. The challenge came after President Obama cautioned the Supreme Court against overturning the health care law and warned that such an act would be "unprecedented."
The testy exchange played out during a hearing over a separate ObamaCare challenge. It marked a new phase in the budding turf war between the executive and judicial branches.
"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?" Judge Jerry Smith asked at the hearing.
Justice Department attorney Dana Lydia Kaersvang answered "yes" to that question.
A source inside the courtroom, speaking to Fox News afterward, described the questioning by Smith as pointed.
Smith also made clear during that exchange that he was "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 has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority," Smith said. "And that's not a small matter."
Smith ordered a response from the department within 48 hours. The related letter from the court, obtained by Fox News, instructed the Justice Department to provide an explanation of "no less than three pages, single spaced" by noon on Thursday.
All three judges on the panel are Republican appointees.
The Justice Department had no comment when asked about the exchange.
"Of course we believe that the Supreme Court has, and the courts have, as their duty and responsibility the ability of striking down laws as unconstitutional," Carney said Tuesday.
However, he said the president was specifically referring to "the precedent under the Commerce Clause" regarding a legislature's ability to address "challenges to our national economy."
The most significant Supreme Court case hinges on the question of whether the individual mandate to buy health insurance violates the Commerce Clause. The administration argues it does not.
Though Carney said the president did not misspeak when he discussed the case on Monday, Obama was not quite so specific.
"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," Obama said on Monday. "And I'd just remind conservative commentators that for years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, 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 that this court will recognize that and not take that step."
April 4th, 2012
(Reuters) - The Obama administration on Tuesday said it was preparing to sue Arizona county sheriff Joe Arpaio and his department for violating civil rights laws by improperly targeting Latinos in a bid to crack down on illegal immigrants. The sheriff's high-profile crackdown on illegal immigrants has helped thrust the issue onto the national political stage with some states passing tough new laws aimed at pushing out those in the country illegally. The administration's Justice Department and the Maricopa County Sheriff's Office have been in settlement talks for months over allegations that officers regularly made unlawful stops and arrests of Latinos, used excessive force against them and failed to adequately protect the Hispanic community. Those negotiations have broken down because of a fight over the Justice Department's demand that an independent monitor be appointed by a federal court to oversee compliance with the settlement, which has now reached 128 pages in draft form, according to the Obama administration.
(Reuters) - The Obama administration on Tuesday said it was preparing to sue Arizona county sheriff Joe Arpaio and his department for violating civil rights laws by improperly targeting Latinos in a bid to crack down on illegal immigrants.
The sheriff's high-profile crackdown on illegal immigrants has helped thrust the issue onto the national political stage with some states passing tough new laws aimed at pushing out those in the country illegally.
The administration's Justice Department and the Maricopa County Sheriff's Office have been in settlement talks for months over allegations that officers regularly made unlawful stops and arrests of Latinos, used excessive force against them and failed to adequately protect the Hispanic community.
Those negotiations have broken down because of a fight over the Justice Department's demand that an independent monitor be appointed by a federal court to oversee compliance with the settlement, which has now reached 128 pages in draft form, according to the Obama administration.
"We believe that you are wasting time and not negotiating in good faith," Roy Austin, deputy assistant attorney general in the Justice Department's civil rights division, said in a letter to the lawyer for Maricopa County Sheriff's Office (MCSO).
Austin said in the letter that Arpaio's team demanded that a meeting slated for Wednesday include for the first time negotiations over the monitor and previously had demanded that the Justice Department provide more details about its findings.
"MCSO's refusal to engage in good faith negotiations requires us to prepare for civil (court) action," Austin said. He added that the Justice Department has recently discovered more information about the "failure to reasonably investigate sex crimes" by Arpaio's office.
The Justice Department in a December report outlined numerous alleged civil rights violations, including that Latino drivers were four to nine times more likely to be stopped than non-Latinos by Arpaio's force.
The sheriff has steadfastly denied any wrongdoing and lashed out at the Obama administration for targeting his department and failing to deal with the problem of illegal immigration with some 11.5 million believed to be in the United States.
In a strongly worded statement on Tuesday, Arpaio said the appointment of a monitor would force him to abdicate responsibility for his police force, including decisions about policies, operations, jail programs and enforcement.
"To the Obama administration, who is attempting to strong arm me into submission only for its political gain, I say: This will not happen, not on my watch!" Arpaio said in the statement.
Arpaio's force has been under investigation by federal authorities since 2008 during the Bush administration. Obama's Justice Department spent months fighting for access to documents and to some of his deputies. Arpaio was interviewed twice during the probe.
(Additional reporting by David Schwartz in Phoenix; Editing by Anthony Boadle)
April 3rd, 2012
We at Conservative Refocus predicted this exact outcome in an earlier article published on 4/1 as follows:
According to the Washington Posts' Eric Wemple, NBC News has started an internal investigation into why the Zimmerman 911 audio was selectively edited by NBC apparatchiks.
This will most likely end up with NBC later coming out with a conclusion of "it was simply journalistic oversight," with NBC taking pains to "make sure this doesn't happen again,"
NBC has completed its investigation into the mishandling of the police dispatcher’s conversation with George Zimmerman in the Trayvon Martin case. And the process ends with a finding of error, plus an apology. Here is the statement just issued by the network:
During our investigation it became evident that there was an error made in the production process that we deeply regret. We will be taking the necessary steps to prevent this from happening in the future and apologize to our viewers.
That apology addresses the “Today” show’s failure to abridge accurately the conversation between Zimmerman and the dispatcher in this high-profile case. This is how the program portrayed a segment of that conversation:
Zimmerman: This guy looks like he’s up to no good. He looks black.
And here is how it actually went down:
Zimmerman: This guy looks like he’s up to no good. Or he’s on drugs or something. It’s raining and he’s just walking around, looking about.
Dispatcher: OK, and this guy — is he black, white or Hispanic?
Zimmerman: He looks black.
No matter how you feel about Zimmerman, that bit of tape editing was unfair to the truth and to Zimmerman’s reputation, such as it is. Reaction on Twitter and elsewhere to my previous post on this matter, was brutal toward NBC, with many comments suggesting the worst about the network’s motivations, reliability and so on.
Does the statement adequately address those concerns? On the good front, it acknowledges the mistake and apologizes to viewers for the bad editing. It’s a forthright correction and spares us any excuses about the faulty portrayal. On the bad front, the statement is skimpy on the details on just how the mistake unfolded. Nor does it articulate an apology directly to George Zimmerman, the “viewer” who is most aggrieved by the screw-up. In light of all that’s happened, Zimmerman may be a tough person for a news network to apologize to, but that’s just the point: Apologies are hard.
So, CR here again, can we call em' or what?