By R Tamara de Silva April 4, 2012
It not typical in the course of oral arguments for a Federal Judge to assign the Department of Justice and the Attorney General a homework assignment. Yesterday, the Court of Appeals for the Fifth Circuit heard oral arguments involving the Patient Protection and Affordable Care Act (“ACA” or “Obamacare”) when something extraordinary happened. The Court was hearing oral arguments on an appeal by the Physicians Hospitals of America and Texas Spine & Joint Hospital, Lts, for the dismissal of an action they had filed for declaratory and injunctive relief against Kathleen Sebelius, as Secretary of the United States Department of Health and Human Services to prevent enforcement of Section 6001 of the ACA. During the Appellee’s arguments, Judge Jerry Smith, interrupted the Department of Justice’s lawyer, Dana Lydia Kaersvang to ask her whether the Department of Justice, an arm of the Executive Branch, agreed with statements made by President Obama that seemed to indicate that the Executive Branch did not believe the Judicial Branch had the power to overturn laws it found violated the Constitution.
“Judge Smith: 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?
Ms. Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.
Judge Smith: I’m referring to statements by the president in the past few days to the effect…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 — what he termed broad consensus in 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.
Ms. Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no…
Judge Smith: 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.” 
On Monday President Obama stated that, “I am confident 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.” The President’s statement is false in that he discounts over two hundred years of the Federal Court exercising its power of judicial review to do just that.
The Judicial Branch’s power of judicial review arises out of Marbury v. Madison, 5 U.S. 137 (1803), wherein Chief Justice John Marshall established the United States Supreme Court’s power of judicial review. In this case, Justice Marshall pointed out that the Constitution is “the fundamental and paramount law of the nation” and that “an act of the legislature repugnant to the constitution is void.” The Constitution is the nation’s highest law and when an act of Congress conflicts with it, that act is to be held invalid.
To be fair, the words of the President, keeping in mind he is the head of the Executive Branch, attacking the power of a co-equal branch of government, in this instance the Judicial Branch, are not unprecedented nor constrained to one political party. President George W. Bush criticized “unelected judges” and their power to go against the will of the people. Both conservatives and liberals reliably point to the hand of judicial activism when things do not go their way. Some so-called Supreme Court experts go so far as to assert that a Supreme Court justice will ever only view any given issue of law through either a Democratic or Republican prism-ruling out any allegiance or oath to the Constitution or the complexity of Constitutional law-of course to many of these experts, there is no complexity to the law or other matters, other than what falls between bold ideological demarcations.
Perhaps the most famous Supreme Court skeptic was President Franklin D. Roosevelt. President Roosevelt displayed a contempt for the Supreme Court calling it the Court of “Nine Old Men” because in 1937, six of the justices were age 70 or more and the youngest one a mere 61. When the Supreme Court held the Railroad Retirement Act of 1934, and the Agricultural Adjustment Act of 1933 un-Constitutional, President Roosevelt famously complained that the plainly archaic court had applied “the horse-and-buggy definition of interstate commerce.” In order to remedy their apparent senility or his belief that they would only continue to strike down several parts of the New Deal, he came up with a plan in the form of a bill that would require all Supreme Court Justices to retire at 70 or have the President appoint a younger justice to serve alongside them.
Since Roosevelt, Presidential candidates from George Wallace to Newt Gingrich have run on platforms promising to rein in the Judiciary in the way they think appropriate.
Somehow, the Founding Fathers managed a design that would anticipate even the hyper-politicization of the present day. A powerful reason for the Constitution’s establishment of three equal and separate branches of government was to ensure that each branch would serve as a check and balance on the others-in theory not permitting one to become too powerful. Unelected judges were intended to be removed from shifting political tides and ensure that political mobs and their demagogues would not overrun the basic protections of freedom guaranteed by the United States Constitution. The law of the land would not be held hostage to it’s the shifting agendas of political parties or vain ideology. To anyone but an ideologue, the unelected nature of Supreme Court judges and the lifetime tenure of Federal Court judges are not bad things.
Judge Smith’s asking the Department of Justice to clarify whether the words of its boss were those of the Attorney General and the posture of the Department of Justice is extraordinary. Many would argue that Congress, politicians of every stripe and Presidents violate a respect and regard for the other branch of the government by routinely criticizing the Judiciary and politicizing everything. All pretense of a kinder gentler discourse on matters of public policy may have gone the way of the Dodo to be replaced by discourse at the lowest common denominator. So perhaps Federal judges should be above the fray and not get sullied by stepping into political brawls. A counter-argument might be that if I make one legal argument to the Seventh Circuit Court of Appeals during oral arguments and the moment I walk outside the building contradict what I have just said by making another legal argument, the Court of Appeals would have a right to inquire what my position really is. Perhaps because President Obama is essentially a litigant in the appeal and his suggestion of judicial review being unprecedented, radical enough a legal posture, Judge Smith’s query of the Department of Justice is reasonable.@
R. Tamara de Silva
April 4, 2012 Chicago, Illinois
R. Tamara de Silva is an independent trader and lawyer
1. http://www.ca5.uscourts.gov/OralArgumentRecordings.aspx?prid=257465 2. 5 U.S. 137 (1803)
Update– Department of Justice Responds to the Court:
April 5, 2012: Attorney General Eric Holder responds to Judge Jerry Smith-the full text of his letter is here: AG letter to 5th Circuit .pdf
Mr. Holder states that his letter should not be taken as a supplemental brief and does not concern the arguments before the Court but points to the presumptive Constitutionality of Federal statutes and quotes two Federal judges who did not find Obamacare to be violative of the Constitution.