AG Eric Holder to 5th Circuit: We're aware of Marbury v. Madison

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.

Comments

[Kimberly Campbell]

What is particularly embarrassing is the talking down to the public in all of this by the press, from Holder's remarks to the subjective scolding from Justice Smith. Not quite sure what the overall intent of that is, because some articles are quite cynical, except poorly attempting to bring to light the option of judicial review to the layperson.

Regardless, I support Justice Smith's remarks. He is correct to question the president's respect for the Court, here.

[David H.]

None of this is new. Privately, a lot of attorneys have had concerns wrt to the Fifth Circuit's agendas and the objectivity and demeaner of certain judges, excepting the Hon. Judge Dennis and a few others.
Legislating from the bench is exemplified by the 5th Circuit's actions in series of controversial decisions in securities litigation. For example, contrary to all other circuits, the Fifth Circuit required proof with preponderence of the evidence of loss causation at the class certification stage (often without the benefit of full discovery) and them raised the standard to establish loss causation to a level well beyond the other circuits. Ulitmately, on a 9-0 opinion, the US Supreme Court in Erica P. Fund Inc. v. Haliburton (decided on Feb. 12, 2010 by the Fifth Circuit) rejected the 5th Circuit on this issue. The Fifth Circuit panel in Haliburtion rejected proof of loss causation even though a substantial drop in Haliburtion's share price was attributed by the media and analysts as almost entirely, if not entirely, to the revelation of previously undisclosed and denied liabilities to asbestos litigation. Similarly, the Hon. Judge Smith and Hon. Judge Garza were on a panel in Fener v. Belo (Aug. 12, 2009), decided before the Haliburton case, where the court found no loss causation even though Belo Corporation (Dallas Morning News) admitted to misstatements in circulation in a press release, that was the only "new" news revealed in that press release (the other news had previously been disclosed and, besides, was argued as related to the alleged fraud), and that revelation resulted in additional liabilities and future losses in revenues and earnings. The stock price dropped immediately 7% and that drop was attributed by virtually every news outlet and analyst report (and even company insiders) to the disclosure of the fraud. Furthermore, as a recent law review article pointed out, the court misstated the plaintiff expert report's analyses and opinons and omitted numerous undisputed facts to affirm a denial of class cert on lack of loss causation.

[lawyer]

What is truly, pathetically sad about all this is that it all boils down to Obama's use of the word "unprecedented." All of Obama's detractors have suddenly turned into little children going crazy over an obvious exaggeration. Unprecedented "for the last 85 years" or "in the modern era" would have fixed everything b/c any moron would realize the comment was not made in a vacuum. They ignore the fact that he was a con law prof, that everyone in this country knows SCOTUS can overturn laws, that he was obviously speaking in the context of the commerce clause and economic regulation (see next point and common sense), the comment was a small part of a speech (the rest of which has been ignored), and that he subsequently clarified what he meant (obviously he gave way too much faith in people and their basic reasoning).

I mean you really have to be a complete moron (or deranged) to think it is reasonable to conclude that he doesn't believe in judicial review and that this is how he would profess it to the world. Oh my GOD! A politician exaggerated, he must be Hitler. Are these conservatives even listening to their candidates!? I seriously have no idea why he would want to be President again. I mean it has gotten to where federal judges have lost their mind and can't even conduct their duties with any semblance of dignity. As mentioned above I don't even think they are going to file a motion to recuse or an ethics complaint b/c Fox News will just say this is part of a war on the judiciary (wonder how they classify their campaign against the judiciary the last 20+ years)

[Pete]

Obama was discussing SCOTUS in the context of striking down a law as unconstitutional based on politically ideological, and not legal, grounds. This whole episode was an unneccessary political maneuver that wasted everyone's time. I'd like to add that we, the tax payers, provide this judge's salary.

[Avon]

I want to throw into the mix the appearance of bias on the Judge's part, insofar as he insisted on calling the ACA "Obamacare." No one but its critics ever calls it that. It's as bad as a liberal activist judge calling the supreme law of the land "the Constipation."

[Avon]

As to Brian Hart's point: the media don't do detail, but the specifics are easily available. A lot of the proceedings were quoted (transcript onscreen plus actual audio playback) on MSNBC Wednesday night in a lengthy panel discussion with Lawrence O'Donnell. That segment showed clearly that the judge was argumentative and wouldn't take Yes for an answer. Of course, on MSNBC they called the Judge's order an "unbelievably weird" "stunt," etc etc. - though they also played back Rush Limbaugh's comments.
See it yourself:
http://www.msnbc.msn.com/id/45755883/ns/msnbc_tv-the_last_word/#46959887

I think whether Obama was wrong depends on what you mean by "unprecedented." Of course Obama was right that the ACA has never before been conclusively overturned (Obama called it "a law that was ..." and described its passage). Of course he's right that the Commerce Clause has never before been so drastically limited by a single ruling. But of course he's wrong that the courts can't hold a statute unconstitutional.

Therefore, Holder didn't lie by saying "fully consistent." Had Holder said "exactly the same as" he would have been lying. Had he ignored Obama's remarks, and just stated the principles, he would have arguably defied the directive, which sort of commanded a comment on Obama.

[Jack S.]

I concur with Michael. A conroversy was manufactured where none existed. In any event, where does any member of the Judiciary - let alone a circuit judge (which circuit decided M v. M anyway? All this time I thought it was SCOTUS)- get off thinking they can "require" the Chief Executive to explain him or herself? This is a job for the electorate. Just ask your questions at oral argument and decide the case on the merits (or lack thereof) or, IMHO, risk giving the electorate reason to call the impartiality and objectivity (ergo the legitimacy) of the federal Judiciary into question.

[Brian Hart]

How come we're still not hearing the specifics of the in court events that gave rise to the request? None of the articles I've read here give any real coverage or sense of what the heck happened leading to the request, and everyone is giving opinions based on a lack of information, rather than actual information. I mean, shoot me if I'm wrong, but who cares a whit about it; that is, if we aren't getting the all the facts, anyhow.

[GB]

“The President's remarks were fully consistent with the principles described herein,” Holder said, concluding the letter.

Did I miss something? The whole point of this (unnecessary) exercise was that they were not consistent with those principles. Holder should have limited himself to the legal issue and not made that blatantly false conclusion.

[Tom Stubbs]

Did I miss Judge Smith challenging Congress when the Senate and House passed and the President signed legislation aimed at interfering with judicial authority in the Terry Schiavo matter? Oh, I forgot, that legislation was passed and signed by Republicans and I guess it's ok as far as Judge Smith is concerned for them to enact laws, not just talk about, to infringe on the courts' constitutional duties. (By the way, 11th Circuit Judge Stanley Birch, a Bush 1 appointee, had no such problem calling out Congress and the president.) Obama was wrong. Judge Smith's silence in the face of previous similar statements by members of his party, and the petty, pejorative language he used in court showed that donning a robe does not magically render someone non-partisan.

[john]

when has a judge ever requested a counsel to clarify the President's statements; especially when the statements themselves are not the issue?

[Howard Klein]

No, President Obama created the controversy by making a statement that any first year law student would recognize as nonsense, both legally and historically. If Judge Smith may be faulted, it is for possibly over-reacting to the President's over-heated and highly political rhetoric.

[Michael]

"In the dispute with 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 . . ."

This is an inaccurate characterization. There is no dispute over judicial authority to strike acts of Congress. That's the whole point -- Judge Smith created a controversy where there was none.