Remember the homework assignment issued by Judge Jerry Smith of the Fifth Circuit to the U.S. Department of Justice? Earlier this week, Judge Smith ordered the DOJ to file a three-page, single-spaced letter discussing the principles of judicial review, in light of prior comments by President Barack Obama that could be construed as questioning the doctrine.

The response was due today at noon (Houston time) — about 20 minutes ago. It was filed on behalf of the Department by Attorney General Eric Holder.

Let’s take a look, shall we?

Check out the full letter here (PDF). We’re calling it a letter rather than a supplemental brief because the letter itself snarkily states that “[t]he 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.”

In addition, also perhaps reflecting pique by the executive branch, the letter barely runs over into a third page. As you will recall, Judge Smith requested a letter of “at least three pages, single spaced, no less.”

The letter contains three numbered points. In point 1, Attorney General Holder reaffirms the executive branch’s acceptance of judicial review:

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. 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.

The letter than provides a string of citations, including Marbury v. Madison, of course.

In point 2, Attorney General Holder reminds the Fifth Circuit that federal statutes are “presumptively constitutional” (with citations). This is a shrewd move insofar as it reinforces the government’s position on the merits in the case at hand, Physician Hospitals of America v. Sebelius.

Finally, in point 3, Holder urges the court to exercise its power of judicial review with care, noting that “[t]he Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments.” The letter pointedly cites the opinions by two leading conservative jurists, Judge Laurence Silberman (D.C. Cir.) and Judge Jeffrey Sutton (6th Cir.), upholding the Affordable Care Act (aka Obamacare) against constitutional challenge.

The letter from Eric Holder concludes by stating that “[t]he President’s remarks were fully consistent with the principles described herein.” This single sentence seems to constitute technical but less-than-enthusiastic compliance with the requirement of Judge Smith that the letter “make specific reference to the president’s statements [on judicial review] and again to the position of the attorney general and the Department of Justice.”

Executive branch v. judicial branch, Article II v. Article III: game on.

Physician Hospitals of America v. Sebelius: Comment on Judicial Review by Attorney General Eric Holder
[U.S. Court of Appeals for the Fifth Circuit]
Obama administration heeds judges’ health care order [CNN]

Earlier: Benchslap of the Day: Fifth Circuit Orders DOJ To Write ‘We Respect Judicial Review’ in Three-Page Letter


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