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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.