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Yes, Virginia, There is Judicial Review

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By Robyn Hagan Cain on April 05, 2012 2:15 PM

Fifth Circuit Court of Appeals Judge Jerry Smith does not like hearing that judicial review is "unprecedented."

Judge Smith was clearly irked when President Obama commented on Monday, "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."

So he gave the Justice Department a homework assignment while hearing oral arguments for Physician Hospitals of America vs. Sebelius, a Fifth Circuit Court of Appeals challenge to the Affordable Care Act.

The task? Submit a three-page, single-spaced letter on judicial review by noon Thursday.

Like any diligent student, Attorney General Eric Holder submitted his assignment on time.

Holder, clearly annoyed by the request, wrote, "[The Justice 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 question posed by the Court regarding judicial review does not concern any argument made in the government's brief or at oral argument in this case, and this letter should not be regarded as a supplemental brief."

The substance of the letter reiterated the administration's position that the Supreme Court should uphold the ACA. Holder made three points in his letter:

  1. The power of the courts to review the constitutionality of legislation is beyond dispute.
  2. Acts of Congress are "presumptively constitutional," and the Supreme Court has stressed that the presumption of constitutionality accorded to Acts of Congress is "strong."
  3. While duly recognizing the courts' authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress.

In other words, the Court has authority under Marbury v. Madison to strike down the healthcare law, but the administration won't back down from publicly encouraging the justices to uphold it.

Do you think this response will satisfy the Judge Smith and the Fifth Circuit Court of Appeals? Will it affect the outcome in Physician Hospitals of America vs. Sebelius? And, just because we like to stir the pot, should the Fifth Circuit hold Eric Holder in contempt for not submitting three full pages on the relevance of judicial review? By our measure, the letter is two-and-a-quarter pages. Does that satisfy the assignment?

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