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:

DOJ Letter to 5th Circuit Re Judicial Authority

FILED UNDER: Barack Obama, Law and the Courts, Politicians, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Doubter4444 says:

    I hope it had enough words, the third page is a bit skimpy.
    It looks like 2/12 pages to me!
    /

  2. Nikki says:

    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.

    Everyone knows this, yet the president’s remarks were presented by reactionaries as so offensive and outrageous that you and James and Orin Kerr felt the need to address the reaction.

    Why, oh why, did this happen? /sarcasm

  3. rudderpedals says:

    Obvious position is obvious. More pressing is whether or not the Supreme Court believes Wickard v Filburn is still good law? We should all shudder at a return to Lochner

  4. The Court would not need to overturn Wickard to strike down the mandate.

    And Lochner dealt with a state law and the 14th Amendment

  5. Gustopher says:

    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.

    The Republicans have been running against Roe v. Wade for most of my life.

  6. Franklin says:

    … an attack from a federal judge in Texas

    Actually I think we could have all saved ourselves some time by ending it right here.

  7. Jenos Idanian says:

    The Courts obviously didn’t learn their lesson from the State of the Union address: when Obama uses lies to attack you, you either shut up and take your lumps, or you’re partisan hacks and probably racists, too.

    Stupid unelected judges…

  8. @Jenos Idanian:

    You’re being as pedantic as Judge Smith. Obama’s comments were clearly political in nature. They were not part of the record in the case in the Fifth Circuit and had no bearing on the proceedings. There was no reason for the judge to do what he did.

  9. Hey Norm says:

    Just another bone-headed Republican.
    Nothing to see here…keep moving.

    And Doug’s right…Wickard doesn’t need to be overturned.
    Al they need do is say that their opinion is; “…limited to the present circumstance…”

  10. Dazedandconfused says:

    Discounting the 5th circuit, which has now be-clowned itself, what would the the tally be on the circuit court rulings for and against the mandate?

  11. legion says:

    Has there been any report on the Judge’s response to Holder’s essay? I’d half expect him to throw another tantrum because it was written by the AG, rather than the attorney he “assigned” it to…

  12. Jeremy R says:

    @Dazedandconfused:

    Here’s one of the conservative dissenters, Brett M. Kavanaugh of the District of Columbia Circuit Court of Appeals, who unlike the President, is apparently all for disregarding judicial review:

    http://www.newyorker.com/talk/comment/2012/03/26/120326taco_talk_toobin

    Late last year, a three-judge panel of the D.C. Circuit voted, two to one, to uphold President Obama’s health-care reform, known as the Affordable Care Act (ACA). Kavanaugh dissented, primarily on the ground that the lawsuit was premature. In a sixty-five-page opinion, Kavanaugh appeared to offer some advice to the Republicans who are challenging Obama in the election this year. “Under the Constitution,” Kavanaugh wrote, “the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”

  13. Jenos Idanian says:

    @Doug Mataconis: I apologize, Doug. I recall all those times you dismissed the statements of Gingrich, Santorum, Palin, Cain, Perry, and all the rest as “just political.”

  14. Dazedandconfused says:

    @Jeremy R:

    Ah! Unitary Executivism! The Bush legal beagles were snorting that stuff pretty heavily around the time he was appointed, as I recall.

  15. rudderpedals says:

    I don’t see how you can take out Obamacare’s mandate without trashing Wickard, not with a straight face or intellectual consistency. In what way would overturning Wickard not put the country back into the Lochner era? BTW isn’t the return to Lochner a small l libertarian goal?

  16. al-Ameda says:

    Shocking that a judge on the Fifth Circuit would go after a Democratic President – shocking.
    Smith is engaging in different, more obnoxious, type of “judicial activism”.

  17. mantis says:

    @Jenos Idanian:

    I apologize, Doug. I recall all those times you dismissed the statements of Gingrich, Santorum, Palin, Cain, Perry, and all the rest as “just political.”

    Can you recall any times he suggested a judge should require lawyers arguing a case unrelated to the statements of Gingrich, Santorum, Palin, Cain, or Perry to write an essay explaining their statements to the court?

  18. mantis says:

    Jenos seems to believe people putting their opinions on the internet and judges using the power of the bench to be the exact same thing.

  19. Jenos Idanian says:

    Oh, here’s the comparison I was thinking of…

    And mantis? I realize this might come as a news flash to you, but Obama is the ultimate head of the Justice Department — which goes into court as “The United States.” It just might be relevant when the top guy on one side of a case states, publicly, that he doesn’t necessarily accept the Court’s authority, and asking for a bit of clarification might be in order.

    But I forget — in Liberal Land, when the President lies to openly attack the Supreme Court, that’s “just politics,” but when the judiciary notices and says something in its own defense, that’s rank partisan politics. Oh, and probably racist, too. (See Obama’s 2010 State of the Union address for the first example.)

  20. sam says:

    @Jenos Idanian:

    And in Jenosland, apparently the following are equivalent:

    Obama:

    “Ultimately I am 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,”

    Gingrich:

    Newt Gingrich says as president he would ignore Supreme Court decisions that conflicted with his powers as commander in chief, and he would press for impeaching judges or even abolishing certain courts if he disagreed with their rulings.

    GOP presidential frontrunner Newt Gingrich said Congress has the power to dispatch the Capitol Police or U.S. Marshals to apprehend a federal judge who renders a decision lawmakers broadly oppose.

    Gingrich says if there is broad opposition to a court decision, Congress should subpoena the ruling judge to defend his or her action in a hearing room…

    Gingrich made his remarks during a Sunday appearance on CBS’s “Face the Nation” where he defended his position that the president has the power to eliminate federal courts to disempower judges who hand down decisions out of step with the rest of the nation.

    Your hatred of Obama is just tiresome. I once devised a game I called the Bithead game. To play the game, you take any random headline, on any topic whatsoever, and see in how few steps you can connect it to something derogatory about the president. My guess is that you’d be the undisputed champeen of the world in that game.

  21. Hey Norm says:

    @ Jenos…

    “…It just might be relevant when the top guy on one side of a case states, publicly, that he doesn’t necessarily accept the Court’s authority…”

    Yeah – that might be relevant. If it happened.
    If you have to lie to make your argument then you don’t have much of an argument.

  22. mantis says:

    Oh, here’s the comparison I was thinking of…

    You mean when Gingrich explicitly stated he would ignore rulings of the Supreme Court that he didn’t like? Yeah, the president did no such thing. Poor comparison (but what else is new?).

    It just might be relevant when the top guy on one side of a case states, publicly, that he doesn’t necessarily accept the Court’s authority

    First of all, he did not say that. Second, it might be relevant, if he were arguing a case before the court and not making a political speech. He wasn’t. He was making a political speech. Please explain how anything he said could have possibly been relevant to the case before the 5th.

    but when the judiciary notices and says something in its own defense

    This was not a judge sharing his opinion, he was making demands of lawyers in unrelated cases from the bench.

    that’s rank partisan politics

    Maybe, maybe not, but it is abuse of his power as a judge. The president’s speech in now way impacted the case before that judge.

  23. anjin-san says:

    You guys are still feeding Jenos Tedium?

  24. Nikki says:

    That Antonin Scalia refused to go where Justice Smith went tells you all you need to know.

  25. anjin-san says:

    @ Sam

    I have my own version of the bithead game. I try to see how many nonsensical ways I can try to assert that President Reagan and the boobs who call themselves conservatives today are somehow related.

    You get extra points for Palin/Reagan comparisons and making arguments that are extra silly then challenging people to “disprove it if you dare”…

  26. Jenos Idanian says:

    @sam: Apparently you missed the two distinct lies in Obama’s statement. First, that the Court’s overturning a law would be “unprecedented.” Second, that ObamaCare was passed by a “strong majority.”

    I guess if you call “noticing when Obama’s just making shit up” “hatred,” then I guess I’m a hater.

    What’s the proper term for someone who fiercely refuses to notice when Obama’s blowing smoke up their ass?

  27. sam says:

    @Jenos Idanian:

    Stop it. You’re a drowning man.

  28. Rufus T. Firefly says:

    @sam:

    Strangely enough, blowing smoke up the ass was once considered to be a useful treatment for drowning.

  29. Jenos Idanian says:

    @sam: You getting dizzy, spinning that hard?

  30. anjin-san says:

    Poor Jenos. In a battle of wits he is as a man showing up at a knife fight armed only with a pair of horn-rimmed glasses…

  31. David M says:

    @Jenos Idanian:

    Apparently you missed the two distinct lies in Obama’s statement…that ObamaCare was passed by a “strong majority.”

    And this is why people will never take you seriously. There’s no way for the strong majority claim to actually be a lie, especially now that the GOP has taken the unprecedented step of routinely filibustering every bill. At worst, “strong majority” is a relative term that you can say doesn’t mean much, but no one with any sense would claim it’s a lie. So you’ve gone and actually lied about a pretty innocuous statement by the President, and one that makes it obvious to everyone that you are in fact a liar.

  32. Jenos Idanian says:

    @David M: “Strong majority in Congress.” 219-212 in the House, 60-39 in the Senate. If 4 Reps or 1 Senator had changed, it would have failed. “Congress” is understood to refer either to the House, or both Houses — never just the Senate. And in the full Congress, the vote totals were 279-251. I’d hardly call 53% *(rounded up, ‘cuz I’m cool and generous that way) a “strong majority.”

    And the Democrats COULD have gotten rid of the filibuster by simple majority vote at the beginning of the term, but didn’t. So go whine to them about how rotten the rule they tolerate is.

    “Ultimately I am 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…”

    So, is “innocuous” the new euphemism for “political” when you want to say “yeah, the president’s just making shit up again, but we’ll pretend it isn’t important?”

  33. David M says:

    @Jenos Idanian: Nothing describes Jenos Idanian like changing the terms of the debate when your original dishonest argument has failed. 60 to 39 is a strong majority, and nothing you say can change that. The part about the “if 1 Senator had changed” is an extremely pathetic attempt to change the subject. Obama said “strong majority”, he did not say anything about having more Senators than was necessary to break the Republican filibuster. Technically, once the filibuster was broken, the bill only needed 51 votes to actually pass, so they could have lost quite a few Senators and still passed the bill. And I hate to break the news, but if 4 members of the House had changed their mind, it still would have passed as it’s a certainty that Pelosi could have gotten more votes if she had needed them.

    Breaking a filibuster and having a super majority pass a bill, most certainly qualifies a strong majority. (The best part, is even if you disagree it doesn’t matter, as the GOP’s different opinion of what constitutes a “strong majority” is completely irrelevant.)

  34. An Interested Party says:

    The evisceration continues, now from other sources…

  35. Gold Star for Robot Boy says:

    There’s a reason I asked for Jenos to be banned. I’m a very rational guy, but this is 1. pathetic; 2. bringing down the quality of OTB’s comment sections.

  36. Jenos Idanian says:

    @Gold Star for Robot Boy: Correction: you’re a very rational whiny little git.

    @David M: I’m starting to think English is your second language, with your first being Teh Stoopid.

    1) Obama said “Congress.”

    2) “Congress” has meant either the lower House, or both Houses together. It has NEVER meant “just the upper House.” Well, at least not until The Smartest President And Greatest Constitutional Scholar EVER said something stupid (I’m sorry, “political” and “innocuous”), and his rumpswabs desperately needed to spin it to pretend he didn’t step on The Presidential Member with his very well-used golf cleats.

    Obama screwed up. He let his ego and pride run wild, and shot his mouth off. And instead of just owning it and apologizing, he started spinning about how what he said was somehow correct in some bizarro universe. Even Lawrence Tribe said he screwed up. But you can’t show that kind of honesty, can you?

  37. OzarkHillbilly says:

    @Jenos Idanian: And the hole gets deeper and deeper……

  38. Jenos Idanian says:

    @OzarkHillbilly: Then perhaps some kind soul should take David’s shovel away from him…

  39. An Interested Party says:

    Then perhaps some kind soul should take David’s shovel away from him…

    Indeed, he’s certainly slapped you enough with it…no wonder you want it to be taken away…

  40. Jenos Idanian says:

    @An Interested Party: The irony here is, IP, I’m just quoting Obama’s own words and applying the standard definitions to the words he chose. I’m doing a damned bit of spinning or fabricating or rationalizing — that’s all youse folks.

    Let’s see those words one more time, just for posterity:

    “Ultimately I am 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…”

    Maybe it was Bush who made Obama make up the crap about “unprecedented” and “strong majority.” After all, everything else seems to be his fault, too…

    Say, and how about a Zimmerman/Martin update? There have been a lot of interesting developments in that story over the last couple of days…

  41. An Interested Party says:

    I’m doing a damned bit of spinning or fabricating or rationalizing — that’s all youse folks.

    Freudian slip, there, perhaps? I stand by the same standard Steven has used–the President is a politician who is saying political things during the campaign season…nothing there to be spun, fabricated, or rationalized…

    Say, and how about a Zimmerman/Martin update? There have been a lot of interesting developments in that story over the last couple of days…

    Oh? Hopefully these latest developments are real things and not like the fabrications you linked to in the past…

  42. Jenos Idanian says:

    @An Interested Party: I stand by the same standard Steven has used–the President is a politician who is saying political things during the campaign season…

    Funny how the Republican candidates — especially those who don’t happen to have other, actual jobs in the government — aren’t given the same benefit of the doubt. Instead, every single pronouncement of theirs is held to the highest absolute standard for veracity and literal truth. And even non-candidates like Palin. But Obama? Just “political things” and whatnot.

    I realize it’s against your fundamental nature to settle on a single standard and uphold it both to your side and the other, but you really ought to try it sometime. I’m not asking for any special treatment for Romney or Gingrich or Santorum — just give them the same breaks you’re always giving Obama. I pointed out when Gingrich said something equally “political” about the courts, and he was (somewhat properly) lambasted over them. But he doesn’t have the added burden of being the titular head of the Justice Department, which goes into court representing “The United States.”

    Perhaps if Obama doesn’t want the burden of always being the President when he speaks, he should resign, let Joe Biden run things, and just be a candidate. Or, like he did in 2008 with his Senate seat, he should just blow off the duties of the job and dedicate himself full-time to campaigning. Then we wouldn’t have to wonder, every time he speaks, if it’s just more “political” BS we can safely ignore, or if he’s actually speaking as President of the United States and actually saying something meaningful.

    ‘Cuz being president is a 24/7/365 job, and words have consequences.

  43. An Interested Party says:

    @Jenos Idanian: Awwww, your Republican vicitimization cry is so sweet…and speaking of words having consequences, you typed words linking to a site spreading false information about Trayvon Martin…where are the consequences for your words–you know, like not taking you seriously…oh wait, we already do that…

  44. Jenos Idanian says:

    @An Interested Party: I apologized for that, chump. It did not occur to me that there could be more than one “Trayvon Martin” of the appropriate age. It was such an unusual name, the idea of mistaken identity didn’t seem possible. (shrug) Oh, well. Live and learn.

    Still puts me way up on NBC, who — as Breitbart’s site points out — has deceptively edited three separate stories in the last 30 months that ended up falsely portraying an incident as horribly racist when no such conclusion was warranted based on the available evidence. And in the prior two cases, were totally bogus. Funny how all those accidents keep happening on the same direction, huh?

    As for the double standard… why don’t you lay out why Gingrich’s statement was so outrageous, while Obama’s was trifling. I’d really like to hear that rationale.

  45. An Interested Party says:

    It did not occur to me that there could be more than one “Trayvon Martin” of the appropriate age.

    Well hell, for all we know, maybe you think they all are alike, darling…certainly it appears that you think they all look alike…

    As for the double standard… why don’t you lay out why Gingrich’s statement was so outrageous, while Obama’s was trifling.

    Not my job, bright spark, as I wasn’t the person making that argument…

  46. Jenos Idanian says:

    @An Interested Party: If it’s “not your job” to address my point, then allow me to answer it for you, as I’ve given it considerably more thought than you:

    It’s a perfectly fair comparison, and it highlights the double standard of the Obama supporter. Both Gingrich and Obama said things that were both factually incorrect, inexcusably hyperpartisan, and extremist in nature, designed to appeal to their supporters who are more governed by emotion than reason and more dedicated to their ideology than the Constitution. The major difference is, Gingrich is a private citizen with no authority or formal position of power, while Obama is the sitting President of the United States.