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DOJ Submits its HW assignment to 5th Circuit Court
http://www.cnn.com/2012/04/05/us/obama-judges/index.html?hpt=hp_t1
Washington (CNN) -- The Justice Department obeyed a federal appeals court's unusual order Thursday in a legal and political spat over the health care law championed by President Barack Obama.
Administration lawyers met their deadline and filed a three-page, single-spaced letter -- following the specific instructions of the 5th U.S. Circuit Court of Appeals, which is hearing a challenge to the health care law.
The letter affirmed the government's stance that federal courts indeed have the authority to decide the constitutionality of the Affordable Care Act -- and any other law Congress passes.
"The power of the courts to review the constitutionality of legislation is beyond dispute," said the letter, signed by Attorney General Eric Holder.
It added that the Justice 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."
Referring to comments by Obama that set off the imbroglio, the letter concluded: "The President's remarks were fully consistent with the principles described herein."
A dispute involving the court and the executive branch has elevated the political stakes over whether the law will survive various legal challenges, including a pending a Supreme Court decision. The high court's ruling, 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 dually constituted and passed law."
Some conservative critics interpreted those remarks as a challenge to judicial authority, suggesting Obama was putting political pressure on the high court, which is expected to issue its ruling on the constitutionality of the health care by June.
The White House tried to defuse the ideological firestorm Wednesday, saying the president's words were misunderstood.
A day after the president's remarks, the three judges, Republican appointees from the 5th Circuit U.S. Court of Appeals, held a hearing on a challenge to the health care law from physician-owned hospitals, despite the pending Supreme Court ruling.
Judge Jerry Smith, a Reagan appointee, was especially tough on a Justice Department lawyer defending the law and specifically mentioned 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," Smith said.
"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," Smith 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 1 p.m. ET Thursday Texas time a three-page, single-spaced letter addressing whether the Obama administration believes courts do indeed enjoy that power.
In a sign of the political nature of the imbroglio, Smith's phrasing in open court of the law as "Obamacare" used a term coined by opponents of the law.
The specific issue before the appeals court was a provision in the health care law restricting doctor-owned hospitals from expanding their facilities. The challenge was brought by an East Texas spine-and-joint hospital.
Later Tuesday, Obama clarified his remarks from the day before on the issue, 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 on Wednesday, said the president was articulating the view that 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," Carney 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 also 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," the Kentucky Republican said. "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 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," Severino said. "He's going to be calling them activists, he's going to be saying they're political."
Two years ago, Obama criticized the high court's conservative majority for striking down a campaign finance reform law, giving corporations greater power to spend in federal elections.
Some conservative legal sources privately expressed disappointment in the appeals court's order this week, 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 opposes the health care 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 Supreme Court held three days of oral arguments on the health care last week. 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 health care 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 politics.
"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."
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I think the President's remarks were inappropriate, but damn, I somehow missed in the original story that the court assigned the DOJ a homework assignment, specifying length and line spacing. That's just silly, and makes me sad that it's coming from the judicial branch.
Re: DOJ Submits its HW assignment to 5th Circuit Court
The pdf of the letter (from above the law) keeps crashing my browser, but it sounds like the DOJ's response was a little flip and only arguably complied with the judge's directions. Also, the idea that the President's remarks were consistent with the law in the letter is more than a little stretch. I don't think that a political letter that taunts the judge who assigned it was the way to go.
Sorry for the funny formatting, but here's the text of the DOJ letter. It doesn't strike me as "flip".
Judge Jerry E. Smith
Judge Emilio M. Garza
Judge Leslie H. Southwick
c/o Mr. Lyle W. Cayce
@ffirr of tl~r 1 tonw~ Qi)l?ttrntl
ltlf<-ts-Jlington. 19. QT. 20530
April 5, 2012
Clerk, United States Court of Appeals
for the Fifth Circuit
600 S. Maestri Place
ew Orleans, LA 70130
RE: Phvsician Hospitals o[America v. Sebelius. No. 11-40631
Dear Judge Smith, Judge Garza, and Judge Southwick:
This Court's letter of April 3, 2012 requested a response to questions raised at oral
argument in this case, Physician Hospitals of America v. Sebelius, No. 11-4063 1. From the
electronic recording of the argument, I understand the Court to have requested the views of the
Depar1ment of Justice regarding judicial review of the constitutionality of Acts of Congress. The
Court indicated that its inquiry was prompted by recent statements of the President.
The longstanding, hi storical position of the United States regarding judicial review of the
constitutionality offederallegislation has not changed and was accurately stated by counsel for
the government at oral argument in this case a few days ago. The Department has not in this
litigation, nor in any other litigation of which I am aware, ever asked this or any other Cout1 to
reconsider or limit long-established precedent concerning judicial review of the constitutionality
of federal legislation.
The govenm1ent's brief cites jurisdictional bars to the instant suit and urges that
plaintiffs' constitutional claims are insubstantial. See Appellee Br. ofthe United States at 17-38.
At no point has the government suggested that the Court would lack authority to review
plaintiffs' constitutional claims if the Cour1 were to conclude that jurisdiction exists. The case
has been ful ly briefed and argued, and it is ready for disposition. The question posed by the
Court regarding judicial review does not concern any argument made in the government's brief
or at oral argument in this case, and this letter should not be regarded as a supplemental brief.
1. The power of the courts to review the constitutional ity of legislation is beyond
dispute. See generally, e.g. , Free Ente1prise Fund v. Public Co. Accounting Oversight Bd. , 130
S. Ct. 3138 (20 10); FCC v. Beach Communications, Inc., 508 U.S. 307 (1993). The Supreme
Court resolved this question in Marbwy v. Madison, 1 Cranch 137, 177-78 ( 1803). In that case,
Case: 11-40631 Document: 00511812922 Page: 1 Date Filed: 04/05/2012
the Court held that "
what the law is." Marbury, 1 Cranch at 177.
The Supreme Court has fm1her explained that this power may only be exercised in
appropriate cases. "If a dispute is not a proper case or controversy, the courts have no business
deciding it, or expounding the law in the course of doing so." Daim/erChJys/er C01p. v. Cuno ,
547 U.S. 332, 341 (2006); see, e.g., Weinberger v. Sa/fi, 422 U.S. 749, 763-766 (1975)
(addressing a statutory bar to juri sdiction). In the case before this Court - Physician Hospitals of
America v. Sebe/ius, o. 11-40631 -we have argued that this Court lacks jurisd iction to hear the
case. See Appellee Br. of the United States at 15-38.
Where a plaintiff properly invokes the jurisdiction of a court and presents a justiciable
challenge, there is no dispute that courts properly review the constitutionality of Acts of
Congress.
2. In considering such challenges, Acts of Congress are "presumptively constitutional,"
Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1301 (1993), and the Supreme Com1
has stressed that the presumption of constitutionality accorded to Acts of Congress is "strong."
United States v. Five Gambling Devices Labeled in Part .. Mills," and Bearing Serial Nos. 593-
221,346 U.S . 441 , 449 (1953); see, e.g., Gonzales v. Raich, 545 U.S. 1, 28 (2005) (noting that
the "congressional judgment" at issue was "entitled to a strong presumption of validity"). The
Supreme Court has explained: "This is not a mere polite gesture. It is a deference due to
deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is
within their delegated power or is necessary and proper to execution of that power." Five
Gambling Devices Labeled in Part .. Mills," and Bearing Serial Nos. 593-22i, 346 U.S. at 449.
In light of the presumption of constitutionality, it falls to the party seeking to overturn a federal
law to show that it is clearly unconstitutional. See, e.g., Salazar v. Buono, 130 S. Ct. 1803, 1820
(20 1 0) ("Respect for a coordinate branch of Govenm1ent forbids striking down an Act of
Congress except upon a clear showing of unconstitutionality."); Beach Communications, Inc. ,
508 U.S. at314-15.
3. While duly recognizing the courts' authority to engage in judicial review, the
Executive Branch has often urged courts to respect the legislative judgments of Congress. See,
e.g. , Nature 's Daily. v. Glickman, 1999 WL 158 1396, at *6; State University of New York v.
Anderson, 1999 WL 680463, at *6; Rojas v. Fitch, 1998 WL 457203, at *7; United Food and
Commercial Workers Union Local 75i v. Bro?wn Group, 1995 WL 938594, at *6.
The Supreme Court has often acknowledged the appropriateness of reliance on the
political branches' policy choices and judgments. See, e.g., Ayotte v. Planned Parenthood of
Northern New Eng., 546 U.S. 320, 329 (2006) (explaining that, in granting relief, the courts '?try
not to nul lify more of a legislature's work than is necessary" because they recognize that'"
ruling of unconstitutionality frustrates the intent of the elected representatives of the people'"
(alteration in the original) (quoting Regan v. Time, inc. , 468 U.S. 641, 652 (1984) (plurality
opinion))); Turner Broadcasting System, inc. , 512 U.S. at 665-66. The "Court accords ' great
- 2 -
Case: 11-40631 Document: 00511812922 Page: 2 Date Filed: 04/05/2012
weight to the decisions of Congress"' in part because "[t]he Congress is a coequal branch of
government whose Members take the same oath [judges] do to uphold the Constitution of the
United States." Rostker v. Goldberg, 453 U.S. 57,64 (1981) (quoting Columbia Broadcasting
System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 (1973)). These principles of
deference are fully applicable when Congress legislates in the commercial sphere. The com1s
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. See, e.g. , NLRB v. Jones & Laughlin Steel Corp. , 301 U.S. 1, 32 (1937);
McCulloch v. Matyland, 17 U.S. (4 Wheat.) 316, 408 (1819). See also Thomas More Law
Center v. Obama, 651 F.3d 529, 566 (6th Cir. 20 11) (Opinion of Sutton, J.); Seven Sky v. Holder,
661 F.3d 1, 18-19 (D.C. Cir. 201 1) (Opinion of Silberman, J .)
The President's remarks were fully consistent with the principles described herein.
[Filed and served via ECF]
Sincerely,
Eric H. Holder, Jr.
Attorney General
- 3 -
Case: 11-40631 Document: 00511812922 Page: 3 Date Filed: 04/05/2012
I think that the judge shouldn't be assigning homework to some poor DOJ attorney in the 5th circuit was the proper way to respond to the President's comments. So I really don't have a problem with their response being flip (even though I don't see it as being flip).
It's the last line that's flip.
It's conclusory, with no support, and only a passing reference to the President's comments, when clearly the judge wanted an analysis of the comments.
Exactly. I think what the 5th Circuit did was ridiculous. It was not part of the argument or the briefs in front of the court. Petty politics from a conservative panel.
Actually the paper was only 2 1/2 pages not the full 3 pages - so needs to be marked down.
The judge had no business making the DOJ guy working on the case in front of him suddenly responsible for the President's comments. As far as I know, this has NOTHING to do with the case in front of him and therefore was just a petty, immature stunt.
The case in front of the judge of the 5th circuit did pertain to the heath care act as Obamacare deals out a number of restrictions to physician owned hospitals.
IMO it was Obama that was pulling the immature stunt.
LOL!
Does anyone else laugh at the phrase "passed by a strong majority"?
A strong majority? Fuzzy math.
You did read the rest of it, right? The gist of the Obama comments (which I don't think were well phrased or appropriate) were that there's a limit to the authority of the court as far as striking down legislation.
The first section establishes the authority of the courts, but also points out there are limits to jurisdiction, and in the specific case before 5th circuit the DOJ is in fact arguing the case is outside their jurisdiction. The second section establishes the precedent, presented by the Supreme Court itself, that the default position is that acts of congress are constitional until some other party can prove them otherwise. The final section provides prior examples of the Executive Branch urging judicial restraint, and reemphasizes the established precedent of judicial restraint to avoid nullifying where possible the legislative actions of elected officials. Obama's comments were specifically about legislative authority and judicial restraint, and the entire letter is an expansion of that position while dually acknowledging (repeatedly) the DOJ and administration's respect for the authorty of the court (which is actually all the court asked for, *not* an analysis of the comments themselves).
What exactly did you want from DOJ? Three pages written out of "Mr. Obama is really, really sorry he offended you"?
I agree that what Obama did was inappropriate. Nothing irks me more than when a politician says or does something to further the distrust in our basic system of checks and balances.
But, I'm also disappointed that the judiciary branch did not rise above it. It's petty. This isn't even a district court...it's the Fifth Circuit! Good god. Show some dignity here.
The general public does not respect or fully understand what the judiciary branch's role is. Rather than responding to Obama's comments in a dignified way, they only played into the public perception that courts are out of control, do not respect the democratic process, and are cold, ivory towers detached from reality.
The whole thing is just pathetic.
I couldn't agree more. The entire thing is annoying, albeit slightly humurous. Obama was an idiot to open his mouth in the first place, but that doesn't make it A-OK for a federal judge to respond in kind.
I agree that the whole situation is pathetic.
However, judges are people too. And they're just expected to rise above everything while being bashed by politicians. Sometimes it's hard to hold it in, like Alito mouthing words while sitting in his robe being attacked on national television during the state of the union. I'm not saying it's right, but it's hard to always rise above when the role of your branch of government is being misrepresented by a president of the united states who should (and does) know better.
I agree with you. I also think it is kind of amusing when people say this federal judge should rise above this behavior, but hold the president to a lower standard.
The president should certainly be above such stuff.
Well it's not one federal judge, it's three.
I get that one might lose it sometimes. But there were two other judges that participated in these shenanigans. They should have been a check on this, and they weren't. That is what I meant about being more sympathetic if this was a district court.
If it wasn't Comic Sans, it wasn't flip.