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.