For starters, the Justice Department didn’t blow its assignment deadline. But the government came close.
In the flap in the U.S. Court of Appeals for the 5th Circuit over judicial authority to strike acts of Congress, Attorney General Eric Holder Jr. said today in a letter that “the power of the courts to review the constitutionality of legislation is beyond dispute.”
Judge Jerry Smith of the 5th Circuit requested on Tuesday that the Justice Department address President Obama’s comments earlier in the week about how striking down his administration’s health care bill would be “unprecedented.”
During a hearing in a health care case, DOJ attorney Dana Kaersvang of the Civil Division did not disavow the authority of a federal trial or appellate judge to void a law.
Holder, in the response to the appeals court today, said that Kaersvang got it right. He pointed to the 1803 U.S. Supreme Court decision in Marbury v. Madison, the case that set the principle that acts of Congress can be deemed 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, addressing his letter to the three-judge appellate panel. “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.”
Holder’s letter doesn’t specifically address what Obama said earlier this week. Obama on Monday said it would be “unprecedented” and demonstrate “judicial activism” if the U.S. Supreme Court struck down the Affordable Care Act. The high court heard argument last week in the case.
Smith on Tuesday ordered Justice Department appellate attorneys to provide an explanation about Obama’s comments.
“Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?” Smith asked Kaersvang during the hearing in New Orleans.
Smith said that he wanted to be sure that DOJ understands the authority of federal trial and appellate judges to strike acts of Congress. That’s when the judge ordered Kaersvang to submit, by noon today central time, a letter addressing Obama’s statements. DOJ filed the letter minutes before the deadline.
Citing a line of Supreme Court precedents, Holder wrote that Congressional acts are presumptively constitutional, and that the presumption is strong.
“The President's remarks were fully consistent with the principles described herein,” Holder said, concluding the letter.
Updated 5:32 p.m.