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DOJ files letter with 5th Circuit affirming judicial authority

DOJ files letter with 5th Circuit affirming judicial authority

The DOJ just filed its letter to the 5th Circuit Court of Appeals affirming the authority of federal courts to rule on the constitutionality of congressional laws. The letter was signed by Eric Holder, and says in pertinent part:

The longstanding, historical position ofthe United States regarding judicial review of the constitutionality of federal legi slation has not changed and was accurately stated by counsel for the govenm1ent 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 President’s remarks were fully consistent with the principles described herein.

DOJ Letter to 5th Circuit Re Judicial Authority


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Samuel Keck | April 5, 2012 at 1:16 pm

Very good, Eric.

Now go to the blackboard and write one hundred times:

“Jeffery Toobin does not speak for me”

and then, if you’ve learned your lesson, you can go.

CatoRenasci | April 5, 2012 at 1:18 pm

This is not responsive to Judge Smith’s request that the letter be three pages single spaced (it’s 2-1/2) and not responsive to the request that DOJ specifically address the president’s comments.

If I were the judge, I’d hand it back to them and ask them to respond to the request.

Democrat heine … it’s what’s for dinner at the 5th circuit.

MarkInFlorida | April 5, 2012 at 1:23 pm

“The President’s remarks were fully consistent with the principles described herein.”

And black is white, and up is down. Don’t believe your eyes and ears, just listen to us and obey.

    ThomasD in reply to MarkInFlorida. | April 5, 2012 at 2:05 pm

    Holder should have stuck with the TurboTax defense – worked for Timmy.

    Who cares if it is totally off point, since when has the law mattered to Holder?

The self-inflicted damage to Bad Luck Barry is permanent and profound.

The 5th Circuit is one of the most respected in the U.S., and has a very distinguished history.

It did a great service to the nation by pushing back on Barackah.

    Browndog in reply to Ragspierre. | April 5, 2012 at 1:47 pm

    No child dictator worth his salt will let this be the last word….

    jeffsa in reply to Ragspierre. | April 5, 2012 at 7:17 pm

    “The 5th Circuit is one of the most respected in the U.S., and has a very distinguished history.”

    If you say so.

    I think the judges have embarrassed themselves and brought disrepute on their tribunal in the eyes of more competent and balanced jurists on both sides of the aisle. It was a petulant and reactionary request. Judges are supposed to be cooler than that.

      Valerie in reply to jeffsa. | April 5, 2012 at 10:12 pm

      It’s a perfectly legitimate question. If the US is going to contest the court’s jurisdiction, it needs to do so as soon as the issue arises.

    JackRussellTerrierist in reply to Ragspierre. | April 5, 2012 at 7:42 pm

    It seems to me that the fact that the court did this speaks the library (of volumes) at Alexandria as to what the federal judiciary thinks about this president’s outbursts and this justice department.

    It’s about damn time somebody with some muscle actually called them out.

Any response at all from the arrogant surprises me a little, but considering the context of the response, not much. orignally I’d wondered whether the 5th Circuits question was rhetorical designed to let the addressee’s stew in their cowardice of silence. As it turns out (I’ve got to re-read it slowly again) it appers to have accomplished some of that concept due to the dodging and dancing in the letter from Holder. Dang … he’d make a good candidate for “Dancing with the Stars.”

How long before we hear the calls to dissolve the 5th, giving that jurisdiction to the 9th?

jimzinsocal | April 5, 2012 at 1:46 pm

Give the “flat earthers” the sort of response they like. They like to feel like their old fashioned notions really matter. The Wizard has things well in hand.
Arrogant asses.


“The President’s remarks were fully consistent with the principles described herein.”

I didn’t see where the the President’s remarks were, in fact, consistent with the rest of the letter.

“The President’s remarks were fully consistent…” with his other asinine remarks.

“The President’s remarks were fully consistent with the principles described herein.”

How much longer did your nose grow when you signed that whopper, Eric?

That last line fully made me laugh out loud. They must have missed that lesson in law school about the “Straight Face Rule.”

I’m sure Holder’s glad this wasn’t filed under penalty of perjury – that final line’s a whopper.

    Uncle Samuel in reply to Jim. | April 5, 2012 at 3:25 pm

    I’m sure that line was read with full comprehension of its veracity.

    bobby b in reply to Jim. | April 5, 2012 at 6:25 pm

    A letter drafted in response to a specific court order, signed by an officer of the court?

    Maybe not perjury, but certainly contempt.

Maybe I am reading the document wrong, but Mr Holder appears to be suggesting that the courts deciding that the Anti-Injunction Act does not bar the plaintiff’s case is what Mr President was talking about…

Which would be odd, since the government had long-since given up that argument, and didn’t even bother to brief it.

I guess I must recall incorrectly… I remember the DOJ being better at lying than it is under this administration…

9thDistrictNeighbor | April 5, 2012 at 3:36 pm

I’m not a lawyer, nor do I play one on TV, but this seemed very sassy. Points number 2 and 3 were downright rude… Is it common practice to begin to lecture the court in this way?

These were the directions from the Judge:

“I would like to have from you by 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. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the President’s statements and again to the position of the Attorney General and the Department of Justice.”

“The President’s remarks were fully consistent with the principles described herein.”

Very well Mr. Holder except that they were fully inconsistent with those principles which is why you were asked for this paper in the first place, dummy.

I don’t think Holder’s homework essay answered the writing prompt. I give it a D.

Can someone quote me what exactly Obama said that would suggest SCOTUS doesn’t have the power to declare federal legislation unconstitutional? I know he said “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” and that was clearly inaccurate, as the Supreme Court overturned the Gun-Free School Zones Act of 1990, which passed with greater majorities in both the House and the Senate than PPACA. However, nothing in that quote suggests they don’t have the power to do so, only (incorrectly) that they haven’t done so in this instance. Am I missing something?

    Ike in reply to Awing1. | April 5, 2012 at 4:25 pm

    The language is: “…what would be an unprecedented and extraordinary step …” “Unprecedented”: never done before; without any prior event or legal decision authorizing it. “Extraordinary”: out of the ordinary, beyond the course or scope of the everyday event. Hope that helps.

      Awing1 in reply to Ike. | April 5, 2012 at 4:37 pm

      See, and that’s what I’m sort of disagreeing with in others analysis. Unprecedented means it hasn’t been done before, not that its not legally authorized, there’s a big difference.

      When people said the election of a black president was “unprecedented” or “extraordinary”, they weren’t saying it wasn’t legal.

        jimbo3 in reply to Awing1. | April 5, 2012 at 4:59 pm

        And doesn’t Obama’s statement that he’s confident that the court “wouldn’t” do that suggest that he believes the court does have the authority to do so?

        BTW, the Supreme Court has not overturned a law involving economic regulation in quite a while. The Gun Free law didn’t involve economic regulation.

          Awing1 in reply to jimbo3. | April 5, 2012 at 5:06 pm

          I’ve heard Obama’s claim that overturning economic legislation is what he was referring to, but that seems like a post-hoc explanation to me, because that’s not the context in which he made the statement.

        Unprecedented means without precedent. Considering that the entire legal framework by which the courts operate is based on precedent Obama’s choice of language can’t be overlooked. You’re right, he didn’t say the court couldn’t do it. He said it would be unprecedented which is clearly false. The point is that he was trying to make hay by politicizing the court and its decisions by positioning them as something that’s never been done before because it’s so extreme. It’s not extreme. It’s quite precedented.

Not a bad letter —-considering it was surely assigned to the lowest paid intern in the DOJ offices.

Remember this moment that may have triggered a genuine Constitutional Crisis in the land when the Supreme Court announces their decision in a month or two.

A colleague told me today she “clicker polled” her 5 freshman English classes today on three Supreme Court questions…….How many judges sit on the Supreme Court?……Can the Supreme Court overturn a law passed by Congress and signed by any sitting President of the US……and Who should have more power in the three divided branches of our US Federal governing structure- the Supreme Court/Judiciary, the Executive Branch (the sitting President) or the Congress (representatives in the Senate and House of Representatives in the Congress).

This small sampling from one professor would make any knowledgeable citizen weep.

    bobby b in reply to kathteach. | April 5, 2012 at 6:40 pm

    “Not a bad letter —-considering it was surely assigned to the lowest paid intern in the DOJ offices.”
    – – –

    I Dissent.

    This was a very carefully drafted letter, probably done by Holder and a few other top lawyers.

    It’s a not-very-subtle, sarcastic, disrespectful non-answer to the judge.

    The main theme of this letter is that the judge is handling the Physicians Hospitals case, and he ought to trot right back to it and take care of his own business.

    Holder keeps harping on how the Physicians Hospitals case involves other issues, and implies that the judge ought to keep his fingers out of the President’s business.

    He gives one paragraph that is arguably on point to the judge’s order – just enough, I would imagine, to keep his AUSA out of custody.

    But Holder is clearly telling Judge Smith to back off.

Oh – I forgot to mention – they probably even have UNPAID interns working at the DOJ so look for this worker pool for the true author of the letter.

The money quote in the DOJ letter is in this quoted language: “‘This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is
within their delegated power or is necessary and proper to execution of that power.’ Five Gambling Devices Labeled in Part .. Mills, and Bearing Serial Nos. 593-22i, 346 U.S. at 449.'” (citation punctuation corrected). Here’s the punch line: “… a deference due to deliberate judgement by …the two Houses of Congress…” Not only was the bill amended at literally the eleventh hour prior to the House vote, none of those who voted for it bothered to read it and admitted that fact. The deference arises from the concept that a deliberate legislative act is entitled to be upheld when it is a close call. What deference is due to this law, given the legislative and parliamentary manipulation which accompanied its passage? Get real here: if you did not read it, how can you have voted for it with your Constitutional duty to support and defend the Constitution one of your considerations? Not possible; therefore, no deference is due to this act of Congress.

    StrangernFiction in reply to Ike. | April 5, 2012 at 4:48 pm

    Here’s to hoping these Judges take this letter as an affront, because that’s what it is.

    JackRussellTerrierist in reply to Ike. | April 5, 2012 at 7:55 pm

    I have prevously expressed my desire that Pelosi’s “We have to pass the bill before we can see what’s in it” might somehow play a role in this decision, even if it’s merely the role of silent influence and is never referred to.

    I haven’t given up that hope.

I’m unclear how saying “The President’s remarks were fully consistent with the principles described herein” complies with Judge Smith’s request for a letter. Granted, the Attorney General’s letter specifically addressed the legal principles of judicial review, but it did not address those principles “specifically and in detail in reference to [President Obama’s] statements” as Judge Smith requested:

“I’m referring to statements by the President in the past few days, to the effect and I’m sure you’ve heard about them, that it is somehow inappropriate for what he termed ‘unelected judges’ to strike acts of Congress that have enjoyed — he was referring, of course, to ObamaCare — to what he termed a broad consensus and majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review, and that’s not a small matter. So 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.
I would like to have from you by Noon on Thursday, that is about 48 hours from now, a letter stating what is the position of the Attorney General and the DOJ in regard to the recent statements by the President, stating specifically and in detail in reference to those statements, of what the authority is of the federal courts in this regard in terms of judicial review.

In a related matter, the case in which this exchange occurred happened presents other issues that may impact the constitutionality of ObamaCare.

I’m not a law expert but I did sleep at a Holiday Inn last night… It seems IMHO that Holder merely refers to cases where the Supreme Court deferred to the authority of lower courts, which is irrelevant because the Supreme Court has already decided not to bypass judicial review of Obamacare.

And in another reference Holder cites, its decided that states have a Tenth Amendment right, allowing state legislatures greater leeway in crafting reasonable regulations or whether Federal mandates are deemed unconstitutional.

Again bolstering the argument about federal power at a time when the public’s approval of Congress is at a historic low it seems absurd to refer to appropriateness of reliance on political branches policy choices and judgements, especially so when questions of constitutionality arise.

The reference to the dairy farmers case, its hilarious! I’ll be waiting with glee to see the Government promoting “Got Slut?” in an effort to equalize prices within the contraceptives industry.

Lastly, his reference to the nullification of the legislatures work and to “a ruling of unconstitutionality frustrates the intent of elected representatives of the people” Holder admits its our right to strike down or repeal the law by act of congress, but shows a massive disconnect from the issue before the Supreme Court that the the practical concept of freedom is the independence of our will from coercion by judgement of the Federal Government.

What a lot of Fox on this board ….

jimzinsocal | April 5, 2012 at 7:23 pm

I believe David Bernstein at Volokh has it about right when he asserts:

Putting aside what one thinks of the ACA, why exactly should the courts strongly defer to implicit constitutional conclusions by Congress when, in fact, there was not only no deliberation on the issues, but when leading supporters of the legislation explicitly denied they thought the Constitution mattered? (A law, I should not, could of course still be upheld even if the courts don’t give a strong presumption of constitutionality to it).

    OcTEApi in reply to jimzinsocal. | April 5, 2012 at 9:33 pm

    When facts don’t fit the narrative then they resort to raw emotionalism and “necessity”…

    Besides, they were finishing up Ted Kennedy’s work and at his funeral they declared that in his congressional career he was doing the work of God.

jimzinsocal | April 5, 2012 at 7:34 pm

Now add this from The W Post and maybe understand why I dont take Holder’s letter or what Obama has said as sincere:

And Wednesday, the administration was in court in Boston explaining why it thinks the Defense of Marriage Act is unconstitutional, although it was passed by bipartisan majorities and signed by a Democratic president.

[…] forced confession, er letter, from Holder tried to explain Barack Obama’s attempts to thug the Supreme Court a few days earlier. At the White House, that walking gastric distress advertisement for Tums – Carney the Clown, […]

That’s a big gap between the penultimate paragraph and the conclusory statement.

What’s missing is the application of the law to the current set of facts, together with an explanation of how that law compels the desired conclusion.

If I had turned in a brief like that for my first-year advocacy class at South Texas College of Law, I’d have had it returned with a failing grade.

What law school did the guy who signed this paper attend? And his boss?

Wash, rinse, spin…

jimzinsocal | April 6, 2012 at 7:58 am

^^agree. Its all about the narrative.
The basic logic fault is assuming because some legislation has passed SCOTUS review, some of which happens to be “social legislation” the conclusion therefore must be defference to Congress in these matters.
Like demanding the sun rise in the East and assuming because it does, it must be proof of the validity/strength of the demand.

John Sullivan | April 6, 2012 at 9:34 am

It would appear Mr. Holder shares some of his boss’s egotistical traits. I don’t recall the Judge asking for a letter from the Attorney General, but from the DOJ. Wouldn’t that mean that the U.S. Attorney from the district where the case originated would sign the letter? Also, note the use of “I”. I was trained to always use “we” in all letters to courts or counsel. If I ever do have to refer to myself, I use “the undersigned”.

[…] On Tuesday Judge Jerry Smith, incensed over President Obama’s stated hope that the Supreme Court wouldn’t overturn his central domestic achievement, gave the Justice Department a homework assignment. And he was very clear about that assignment. He wanted to know if Obama supports the concept of judicial review, and he wanted the president’s position explained in “at least three pages single spaced, no less.” Well, the letter is out. Here it is: […]

[…] Justice Department, of course, had to acknowledge the principle of judicial review, although it laughably asserted that Obama’s remarks were […]