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Attorney General Holder's Response to Judge Jerry Smith on the Separation of Powers

by Professor Will Huhn on April 6, 2012

in Constitutional Law,Separation of Powers,Wilson Huhn

The Attorney General's letter is here. More below.

The President of the United States made a public statement in support of the constitutionality of the Patient Protection and Affordable Care Act. He said that it would be "unprecedented" for the Supreme Court to strike down economic legislation of this magnitude. Judge Jerry Smith of the Fifth Circuit Court of Appeals responded by ordering the Department of Justice to write him a three-page, single-spaced letter discussing the power of the courts to review the constitutionality of legislation. The Attorney General has responded with a letter in support of the President's remarks, concluding that "The President's remarks were fully consistent with the principles described herein."

The letter of the Attorney General reaffirms the fundamental principle that economic legislation comes before the courts cloaked with the presumption of constitutionality – that the courts are not clothed with the power to review the wisdom or necessity of economic laws, but rather must defer to Congress and are bound to uphold such laws so long as they are supported by a "rational basis."

Furthermore, it is Judge Smith, not the President, who appears to fundamentally misunderstand the doctrine of Separation of Powers.

The President of the United States was democratically elected by the people of this nation. One of the most important policy goals of his administration – and one of the fondest hopes of the American people – was that the Congress would enact and the President would sign a law that would establish a system of universal health care. Tens of millions of hardworking Americans can no longer afford health care. They either have no health insurance or their insurance simply isn't adequate: their policies exclude pre-existing conditions, they include high deductibles and co-pays, and they contain annual and lifetime limits on coverage. The President signed the PPACA into law on March 23, 2010, and as the nation's chief law enforcement officer he has defended the law in court. The President could, if he wished, have appeared in the Supreme Court and defended the law personally. (I wish he had.) His defense of the law was measured and appropriate.

In his outburst ordering the Department of Justice to write him a three-page, single-spaced letter about the power of judicial review it is Judge Smith who has overstepped the role assigned to him by the Constitution. Barack Obama, both as President of the United States and as a citizen, has the right to encourage the courts to uphold this landmark legislation. But I know of no principle of constitutional law that grants a judge the power to require the Executive Branch to prepare a dissertation explaining a President's remarks.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.


larry d. April 6, 2012 at 8:10 am

It was humiliating for Obama and Holder for sure, but most of your defense here is moot. You're pretty much saying you like the disastrous ObamaCare law. Economic policy that infringes on citizens' constitutional rights are of course under the purview of the courts in any free nation.

larry d. April 6, 2012 at 8:30 am

Sounds like Holder's letter was pretty darn sloppy in any case. I'm surprised a law professor didn't pick up on that.

Gary April 7, 2012 at 10:56 am

Response to Wilson Huhn:

Your political leanings shine though clearly in your statement. Despite your legal teaching credentials, your entire statement reads of political, not legal arguments. First, the president didn't criticize a supreme court decision, he weighed in on a PENDING decision with obvious intent to intimidate. I can only imagine your comments if it were anyone but a Democrat president that uttered the same remarks toward a pending decision. Secondly, as a self proclaimed constitutional scholar, you of all people know that within the constitution lies the means to amend it. A high bar is required, as it should be, to avoid changes with every administration, but certainly achievable, as it has been amended, 27 times in US history. Instead of taking the legal and appropriate course of lobbying for support to amend the constitution, progressives routinely use the courts to "read things into" the constitution that arent there to amend the constitution through court decisions (see Roe vs Wade, and the right to privacy that isnt addressed in the constitution, and therefore should have had no opinion because there was no constitutional question. Not that i agree or disagree with the result, im probably more pro-choice, but its still a bad court decision). Without knowing more about you then your diatribe here, im sure you fully support that decision. THAT is judicial activisim, what judicial activisim is NOT is a decision that states that the constitution does not provide for the act in question to be carried out by the federal government (ie the health care law) no matter how much you would like it to. It would be judicial activisim to uphold it. It was the height of hypocrisy for the president to suggest that overturning his law would amount to judicial activisim, given his (and presumably your) constant calls to read things into the constitution when it suits you. If you want this law upheld, go through the process of amending the constitution to expand federal powers, as was the intention. Lastly, you may be correct in your appeals for the need for health care reform, and we may have had it if this president werent so arrogant and stubborn and would have sought bipartisan support instead of the "go it alone strategy", pushing it through on a straight party line vote, well documented attempts to buy votes with special exceptions buried within the law (He had to buy votes from members of his own party, no less) and insistance that the minority party be excluded from the process. We may also have reform if the president would have acted within his constitutional authority and sought public and congressional support for a single-payer system, which would be constitutional through the federal governments taxing authority, wheres as this law is not through the commerce clause, for obvious reasons. He could have also sought reform through the states, where laws such as this should be enacted, because the needs of people in say Nebraska, are not usually the needs of the people in say New York. The whole point of the constitution is to limit federal powers. This whole mess and the fallout that will result, no matter what the supreme courts decision, is due to the presidents decision to split the difference and try to put a square peg in a round hole for expediency's sake. Also because of his own desire not to appear to raise taxes for his own political sake. He had the three constitutional means mentioned above to reform health care, and chose the cowards way out.

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