DOJ Lawyer Ordered to do Healthcare Homework by 5th Circuit Judge

Academic pursuits were a big part of attorney Dana Kaersvang’s life before she took a job at the Department of Justice a little over two years ago, such as her year-long Fulbright fellowship examining how tribunals in The Hague evaluate national courts.

But right now, Kaersvang, a lawyer with the Civil Division’s appellate staff at Main Justice, might have the most famous homework assignment on the planet.

A judge from the U.S. Court of Appeals for the Fifth Circuit ordered Kaersvang to write a letter detailing the position of the DOJ on the authority of the federal courts to find laws unconstitutional, specifically addressing public statements President Barack Obama made in a speech Monday. Kaersvang had argued before the appellate court on Tuesday in a case involving a challenge to expanded restrictions on physician-owned hospitals.

Judge Jerry Smith’s assignment: It must be no less than three pages, single-spaced, and must address Obama’s statements specifically. And it's due by noon on Thursday.

Since she joined DOJ in 2009, Kaersvang has argued cases on behalf of the government on a variety of topics, including a Federal Aviation Administration battle with a California airport; a case looking at the Secretary of Agriculture’s role in genetically modified food; and a case involving a Guantanamo Bay detainee.

On Tuesday, Kaersvang had just finished defending the Affordable Care Act before the appellate court when Smith brought up a speech from Obama on Monday about the 2010 healthcare reform law. Obama had said that if the U.S. Supreme Court struck down the ACA, it would be “unprecedented” and an example of “judicial activism” by “an unelected group of people.”

Obama has since backed away from that statement through his administration, as legal experts widely pointed out there has been precedent for courts overturning congressionally approved laws on questions of constitutionality.

But Smith wanted Kaersvang to answer. “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.

“Yes, your honor,” Kaersvang answered. “Of course, there would need to be a severability analysis.”

“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,” Smith said.

"Marbury v. Madison is the law, your honor," she replied. "But it would not make sense in this circumstance to strike down this statute because there's no..."

The judge then cut her off: “I would like to have from you on noon on Thursday, a letter stating what is the position of the attorney general and the Department of Justice in regard to the recent statements by the President stating specifically and in detail, in reference to those statements, what the authority is of the federal courts in this regard in terms of judicial review.”

When reached at her DOJ office Wednesday, Kaersvang declined to comment, referring questions to a spokesman. Holder told reporters that he would comply with the Court of Appeals order.

Kaersvang has a stronger international legal background than your typical DOJ line attorney.

Kaersvang earned her undergraduate degree in computer science from Princeton University and worked for Goldman Sachs for four years before getting her law degree from the University of Michigan, according to a biography from the Fulbright Fellows webpage and her profile on the social networking site LinkedIn.

She spent a year at the South African Human Rights Commission as a Bates Fellow, where she looked at legal access for the poor in South Africa’s courts. She then spent a year at the University of Amsterdam as a Fulbright Fellow involved in research at The Hague. She worked at the European Court of Justice before joining DOJ in November 2009, according to her LinkedIn Web page.

Comments

[Laura]

EXPEDITED appeal was the reemirquent that the Judge ordered on or before March 10th. Where does this motion ask for EXPEDITED ??? Is it more games from the marxists?? Is it asking too much to simply insert a sentence asking (in plain English) for EXPEDITED appeal? Or does the casual reader/citizen have to hire an attorney to go find how this satisfies the expedited appeal reemirquent? IS this CONTEMPT, if the DOJ does NOT amend and clarify that they request an EXPEDITED appeal? Do words have meanings anymore?

[Stephen]

A caveat to the idea that Congress shuold "consider shifting the responsibility for the reporting to the Administrative Office of the U.S. Courts" is the known shortcomings in the AO data. While admittedly much more copious than the non-existant DoJ data, it's not clear the AO data is thorough or complete, representative or unbiased. I'd suggest it's clear that the AO data is clearly incomplete and has known weaknesses. I strongly suspect there's a CRS report or 2 on the topic that may be worth chasing down. As several DoJ and FBI Inspectors General (among others) have illustrated, there are no shortages of instances of extra-judicial requests, misrepresentations to carriers, non-reporting, unpunished personal use, etc. And that's just at the federal level where OIGs are occasionally watching. At either the federal or state level, this data isn't captured by the AO of the Courts. Having the AO ask for it is presumably not any different than having Congress ask for it. The disclosures will still be at the whim of the agency.Admittedly, this is a shortcoming of the agencies, not the AO gathering the data, but asking the AO to collect data it doesn't know about isn't going to get any better results than asking the DoJ to disclose what it does know about and apparently doesn't want to share.

[TR]

HG-

I am sorry but the only one who stepped in it was Obama as he consistently shows the limits of his intellect and ability. It is just another example of him showcasing how far in over his head he is as an executive.

[HG]

For those who listened to the entirety of Obama's remarks, he wasn't advocating the position in question -- he was paraphrasing Republicans who have advocated that position. Obama appears to have laid a trap into which the Republicans gleefully tumbled. Had Reagan-appointee Jerry Smith bothered to do his research before he decided to grandstand from the bench, he would have realized he, too, waltzed right into the President's trap. Well played, Mr. Obama, well played.

[Tammie Granger]

There is one more thing and it is drastic. If you have to impeach President Obama to order a contempt of court on him, do it.

[Tammie Granger]

The judge is correct in what he is doing. Because of our American system of checks and balances, the court system has every right to declare a statute unconstitutional. That is what the justice system is there for. In addition, comtempt of court might be just what needs to be done to Obama and company because of their disrespectful actions. The judge voiced his opinion and it should be respected and honored. The legal knowledge and expertise of the judge gives him that right.

[Avon]

Judges have, in the past, demanded that a DOJ staff attorney or AUSA produce in court their superior to defend or justify (or apologize for) what the attorney has said or done. Even the Attorney General has been required to appear before a federal judge when the USA is a party and the argument/conduct is truly serious.

Whether the judge could order the President to appear in this case is questionable, but I think only the President should be made accountable for any misstatement or overstatement of the law he has made. I think it would be stupid and stubborn for Kaersvang to file a complaint against the judge, but her disavowal of an argument (which she hadn't even made) is binding on her client in the case at bar. That should be enough, and the judge should have accepted it.

So I agree the judge is just pulling a political stunt to embarrass Obama. (Not "the president"; I believe this is personal.) And that is shameful. We don't pay him to do that.

[Brian Hart]

I think if she was going to refuse the homework assignment then she should have done it on the spot. After all, she is a representative of the DOJ, and this article offers no insight into the exact circumstances giving rise to the Judge's request. Maybe she popped off with something that the Judge found compromising, unreasonable to the issues at hand, or off point. How did Obama's name come up in the first instance, one must ask. Moreover, she tried to offer an offhand opinion/analysis, when the judge cut her off, that didn't really address his question. It is ultimately the judge's prerogative to decide if a case constitutes precedent, not a lawyer's who is in court on other matters. Bottom line: a learninig experience in multiple senses of the phrase.

[Jac]

I agree with Ted. Judge Smith is irritated with the President's comments and is attempting to penalize him and the administration for what may or may not have been political hyperbole. However, it is not the judge's responsibility (or within his authority) to penalize a party unless the party or the attorney has engaged in contemptous behavior before the oourt or in violation of a court order. I think Ms. Kaersvang should file a disciplinary complaint.

[LarryCivic]

I've heard President Obama's remarks to Congress, the Supreme Court and anyone who disagrees with him called a lot of things these past few years. I have to admit "hyperbolic political statements" wasn't one of the terms I recall. The man isn't running for Dog Catcher. He's the President of the United States of America speaking in front of the press with a full array of microphones and cameras. Hyperbolic Political Statements doesn't pass the snicker test.

[Tim Crutchfield]

Frankly, I find the judge's behavior to be extremely inappropriate. While the President is a politician, judges with lifetime appointments should not actively engage in political gamesmanship from the bench. Judge Smith crossed the line of propriety. He clearly thinks he is embarrassing the President, but he has embarrassed himself. (I can’t help but wonder whether he gave similar homework assignments in response to conservative politicians complaining about “activist” judges overreaching their authority.)

[Michael Caldwell]

Our "Constitutional Scholar" President apparently has never heard of Marbury v Madison. How can any person be credited or acclaimed as a "Constitutional Scholar" when he never published a book nor even an article on Constitutional Law as either the President of the Harvard Law Review, or as a "Constitutional Law Professor" in Chicago? In fact, the only book he ever published was a two volume set about the august subject of HIMSELF! Does anyone see a disconnect with reality here?

[a public servant]

Has this judge, appointed through a political process by elected officials, never heard hyperbolic political statements before? It would be quite extraordinary if that were the case.