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DOJ response to 5th Circuit on Obama's comments about SCOTUS

DOJ response to 5th Circuit on Obama's comments about SCOTUS

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Published by: Washington Examiner on Apr 05, 2012
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Judge Jerry E. SmithJudge Emilio M. GarzaJudge Les
li
e H. Southwickc/o M
r.
Lyle W. Cayce
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April 5, 2
01
2Clerk, United States Court
of
Appealsfor the Fifth Circuit600 S. Maestri Place
ew
Or
leans, LA 70130RE:
Ph
vs
ician Hospitals
o[Am
erica
v.
Sebelius.
No. 1
1-
40631Dear Judge Smith, Judge Garza, and Judge Southwick:
Th
is Cour
t's
letter
of
April3, 2012 requested a response to questions raised
at
oralargument in this case,
Ph
ys
ician Hospitals
of
America
v.
Sebelius,
No. 11-4063
1.
Fr
om theelectronic recording
of
the argument, I understand the Court to ha
ve
requested the views
of
theDepar1me
nt
of Justice regarding
judicia
l revi
ew
of
the constitutionality
of
Acts
of
Congress. TheCourt indicated th
at
its inquiry was prompted by recent statements
of
the
Pr
esident.The longstanding,
hi
storical position
of
the United States regarding
judi
cial revi
ew
of
theconstitutiona
li
ty
offeder
a
ll
egisla
ti
on has not changed and was accurately stated by counsel f
or
th
e governme
nt
at oral argument in this case a f
ew
days ago. The Department has not in thisli
ti
gation, nor in any other litigation
of
which I am
awa
re,
eve
r asked this or any other Co
ut1
toreconsider or limit long-estab
li
shed prece
de
nt concerning
jud
icial revi
ew
of
the constitutionality
of
federal legisl
at
ion.
The
gove
nm1
ent
's
bri
ef
cites jurisdictional bars to the insta
nt
suit and urges thatplainti
ffs'
constitutional cla
im
s are insubstantial.
See
Appellee Br. o
ft
he United States at 17-38.At no point has
th
e government suggested that
th
e Court wo
ul
d lack auth
or
ity to revi
ew
plainti
ff
s' constitutional cla
im
s
if
the C
our1
were to conclude that
juri
sdiction exists. The casehas been fully briefed and argued, and it is ready for disposition. The ques
ti
on posed by theCourt regarding judicial revi
ew
does not concern any argument made in the government
's
briefor at oral argument in this case, and this letter sho
ul
d not be regarded as a suppleme
nt
al brief.1. The power
of
the courts to revi
ew
the constitutionality
of
l
eg
islation is beyonddisp
ut
e.
See generally, e.g., Free Ente1prise Fund
v.
Public
Co.
Accounting Oversight B
d.
,
130S. C
t.
3138 (2010);
FCC
v.
Beach Com
mu
nication
s,
Inc.,
508 U.S. 307 (1993).
Th
e SupremeCourt resolved this question in
Marbwy
v.
Madison,
1 Cranch 137, 177-78 (1803). In that case,
Case: 11-40631 Document: 00511812922 Page: 1 Date Filed: 04/05/2012
 
the Court he
ld
that "[i]t is emphatically the
pr
ovince and duty
of
the judicial department to saywhat the law is."
Marbury,
1 Cranch at 177.The Supreme Court has fm1her explained that this power may only be exercised inappropriate cases. "
If
a dispute is not a proper case
or
controversy, the courts have no businessdeciding it,
or
expounding the law in the course
of
doing so."
Daim/erChJys/er
C01p.
v.
Cuno,
547 U.S. 332, 341 (2006);
see, e.g., Weinberger v. Sa/fi,
422 U.S. 749,
763-766
(1975)(addressing a statutory bar to
ju
ri
sdiction).
In
the case before this Court-
Physician Hospitals
of
America
v.
Sebe/ius,
o. 11-40631
-we
have argued that this Court lacks jurisdiction to hear thecase.
See
Appe
ll
ee Br.
of
the United States at 15-38.Where a plaintiff properly
in
vok
es
the
jurisd
iction
of
a court and
pr
esents a
ju
sticiablechallenge, there is no dispute that courts properly review the constituti
ona
lity
of
Acts
of
Congress.2. In considering such challenges, Acts
of
Congress are "presumptively constitutional
,"
Turner Broadcasting System, Inc.
v.
FCC,
507 U.S. 1301, 1301 (1993), and the Supreme Com1has stressed that the presumption
of
constitutiona
li
ty accorded to Acts
of
Congress is
"s
trong."
Unit
ed
States
v.
Five Gambling Devices Labeled in Part
..
Mills
,"
and
Bearing Seri
al
Nos. 593-
221,346
U.S. 441,
449
(1953);
see, e.g., Gon
za
les v. Raich,
545 U.S. 1, 28 (2005) (noting thatthe "congressional
judgment
" at issue was
"e
ntitled to a strong presumption
of
validity").
The
Supreme Court has explained: "This is not a mere polite
gestur
e.
It
is a deference due todeliberate
judgment
by
co
nstitutional majorities
of
the two
Hou
ses
of
Co
ngress that an Act iswithin their delegated
power
or
is necessary and proper to executi
on
of
that po
we
r."
FiveGambling D
ev
ices Labeled in Part
..
Mills
,"
and
Bearing Serial N
os.
593-22i,
346 U.S. at 449.In
li
ght
of
the presumption
of
co
nstitutionality, it falls to the party seeking to overturn a federallaw to sh
ow
that it is clearly unconstitutional.
See, e.g., Salazar
v.
Buono,
1
30
S. Ct. 1803, 1820(20 10) ("Respect for a coordinate branch
of
Gove
nm1
ent forbids striking down an Act
of
Co
ngress except upon a clear showing
of
uncon
st
itutiona
li
ty.");
Beach Communications, In
c.
,
508 U.S.
at314-15.
3. While duly recognizing the courts' authority to engage in
judicia
l revi
ew
, theExecutive Branch has often urged courts to respect the legislative
jud
gments
of
Co
ngress.
See,e.
g.
, Nature
's
Daily.
v.
Glickman,
1999
WL
1581396, at *6;
State University
of
New York
v.
Anderson,
1999
WL
680463, at *6;
Rojas
v.
Fitch,
1998
WL
457203, at *7;
Un
it
ed
Food
and
Commercial Workers Union Local7
5i
v.
Bro·wn Group,
1995 WL 938594,
at
*6.The Supr
eme
Court has often acknowledged the
app
ropriateness
of
reliance on thepolitical branche
s'
policy choi
ces
and
jud
gments.
See, e.g., Ayotte
v.
Planned Parenthood
of
No
rthern New Eng.,
546 U.S. 320, 329 (2006) (explaining that, in granting relief, the courts '·trynot to null
if
y more
of
a legislature
's
work than is necessar
y"
because they recognize th
at'"
[a]ruling of unconstitutionality frustrat
es
the intent
of
the elected representatives
of
the people
'"
(alteration in the o
ri
ginal) (quoting
Regan
v.
Time, inc.,
468 U.S. 641, 652 (1984) (pluralityopinion)));
Turner Broadcasting System, inc.,
512 U.S. at 665-66.
Th
e "Court accords 'great
-2 -
Case: 11-40631 Document: 00511812922 Page: 2 Date Filed: 04/05/2012

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