In a letter released on Thursday, Attorney General Eric Holder acknowledged that the judicial branch indisputably has the power to determine the constitutionality of laws passed by Congress. But he used the letter to reiterate President Obama’s warning to the Supreme Court to uphold the health-care law.
Holder’s letter, demanded by a three-judge panel on the Fifth Circuit Court of Appeals, is the latest chapter in a controversy that the president started on Monday when he said, “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.” The president referred to the justices as “an unelected group of people” who could “somehow overturn a duly constituted and passed law.”
The statement has been widely derided for its factual inaccuracy and bluster. The comments led Circuit Court judge Jerry Smith, hearing arguments in a related case in Texas on Tuesday, to ask the government’s attorney about the administration’s “challenge” to judicial authority.
President Obama’s comments have “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 said during arguments in a case involving the health-reform law’s limits on physician-owned hospitals. “And that’s not a small matter.”
Judge Smith ordered the Justice Department on Tuesday to submit a letter of no fewer than three single-spaced pages within 48 hours to explain the government’s position.
Holder acknowledged in his two-and-a-half-page letter the validity of “long-established precedent concerning judicial review of the constitutionality of federal legislation.” He said, “The power of the courts to review the constitutionality of legislation is beyond dispute.”
But then the warnings began. Holder said his letter “does not concern any argument made” in the case before the Supreme Court, yet his letter touched on the Commerce Clause, the Necessary and Proper Clause, severability, and the fundamental constitutional challenge to a major provision in the law — all key issues aired during oral arguments before the Supreme Court last week.
In his letter, Holder continued to press points that the president implied in his controversial statement on Monday.
Holder said that the Court is required to assume that any law passed by Congress is constitutional. The courts must consider that “Acts of Congress are ‘presumptively constitutional.’”
Further, “the Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments,” Holder continued — i.e., Congress and the president know best.
Holder also warned against the Supreme Court’s striking down the whole law if part (e.g., the individual mandate) were declared unconstitutional. Quoting a 2006 case,Ayotte v. Planned Parenthood of Northern New England, Holder wrote: “In granting relief, the courts ‘try not to nullify more of a legislature’s work than is necessary’” because they recognize that a “‘ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’”
Then the attorney general tried to help the president back out of the outrageous statements he made on Monday by focusing on a narrower issue. On Tuesday, the president told newspaper editors that what he really meant on Monday in his “unprecedented, extraordinary” comment was that the Court had a long tradition of giving Congress leeway to expand its reach through the Commerce Clause.
“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,” Holder wrote.
And just to get in all of the constitutional markers, Holder’s letter said: “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.’”
Then, a final jab: “The President’s remarks were fully consistent with the principles described herein,” Holder concluded.
A final note: The challenge in the Fifth Circuit is one of many other challenges to the health-care law that are making their way through the courts, a long line of which will inevitably reach the Supreme Court.
Justice Department lawyer Dana Lydia Kaersvang was arguing the government’s case in the Physician Hospital of America’s challenge to the health-care law on Tuesday when Judge Smith asked whether DOJ and Attorney General Holder recognize the courts’ authority to strike down federal statutes — a principle established in the early 1800s.
Physician hospitals that were under construction when the law was passed were barred from opening their hospitals if they were unable to meet impossibly strict deadlines to obtain Medicare certification — a move many saw as designed to muffle the competition that the smaller, more-efficient, physician-owned hospitals present to larger, politically connected mega hospitals. That case is still pending before the Fifth Circuit.
Also on the Fifth Circuit panel with Judge Smith were Judges Emilio M. Garza and Judge Leslie H. Southwick.
Posted on National Review Online: The Corner, April 6, 2012.