DOJ Responds To Fifth Circuit On Judicial Review
Unsurprisingly, the Department of Justice confirms that it supports Marbury v. Madison
The Department of Justice has filed the memo requested by the Fifth Circuit Court of Appeals and apparently prompted by President Obama’s comments in the wake of last week’s hearings on the Affordable Care Act:
Attorney General Eric Holder is pushing back against an attack from a federal judge in Texas, telling the judge that President Barack Obama’s recent comments about the Supreme Court’s review of the Affordable Care Act are “fully consistent” with longstanding legal principles.
Holder’s comments came Thursday in a memo ordered by 5th Circuit Judge Jerry E. Smith, who questioned whether Obama respects the courts’ power to strike federal laws it finds unconstitutional.
“The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago,” Holder wrote. “The department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.”
Smith assigned the memo during oral argument over an unrelated piece of the health reform law Tuesday, the day after Obama said the court would be guilty of an “unprecedented” act of “judicial activism” if it strikes down the health care reform law. Smith, a Ronald Reagan appointee who referred to the health law as “Obamacare,” said the president’s comments questioned whether DOJ respected the court’s authority.
Smith said he wanted the memo to directly address Obama’s comments. But the document barely mentions them.
“The president’s remarks were fully consistent with the principles described herein,” Holder wrote.
Holder did use the memo to remind the court that the judiciary traditionally gives Congress a presumption that its laws are constitutional.
“The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments,” the letter states. “The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends.”
I tend to agree with the comments made by James Joyner in his post, as well as those made by ACA critic Orrin Kerr over at The Volokh Conspiracy that this whole episode was unnecessary and a little embarrassing for the Judiciary. One can criticize the President’s comments for their assertion that there would be something wrong with the Court striking down a law that it believes to be unconstitutional, and I have done so. However, it was rather silly for a Federal Judge to cite comments made outside the Courtroom as somehow being relevant to the case at hand. Since his comments weren’t made on the record, they can hardly be considered to be part of the case, and by citing them Judge Smith tended to create the impression that he was injecting politics into the case.
Perhaps that’s what he was doing, but I tend to think that it’s more likely that what we’re seeing is a Judge who is perhaps a little too full of himself. It does happen. Hopefully, this ends this entire unfortunate episode. The idea that the President’s comments were some kind of indication that the Obama Administration intends to declare war on the 209 year old tradition of judicial review of Congressional action, or that they would ignore a Court ruling that declared the mandate, or the entire PPACA, unconstitutional is simply absurd. The President’s comments, where inartfully worded and, as I noted, politically dangerous but they were not an indication that Marbury v. Madison is in danger.
That’s not to say that the Democrats wouldn’t make a Supreme Court decision that went against them a political issue in the upcoming elections, of course. Republicans will do the same thing if the Court ends up upholding the PPACA. That’s always been the way that the political branches have reacted to controversial Supreme Court decisions. Has everyone forgotten about the political firestorm that was set off, and which continues to burn, thanks to Roe v Wade? Or Dred Scott? Or the way politicians in the South reacted to Brown v. Board of Education? This is how the political branches react to Court decisions they disagree with, but it doesn’t mean that the entire structure of Separation of Powers is about to crumble.
Here’s the letter itself: