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Thursday, April 05, 2012

DOJ responds

Here is the letter that Judge Smith demanded from the Department of Justice following President Obama's comments about the Supreme Court reviewing ACA (H/T: LawCourts Listserv). I think Holder did what he could with, basically saying "of course courts exercise judicial review, but courts also regularly recognize presumptions of constitutionality and deference to the political branches, and the President did not say otherwise." That last part may be open to some debate, at least until the President's "clarification. In any event, I'm not sure that should matter, since the President ought to be clear to put forward a constitutional vision that suggests a minimized role for the courts.

Hopefully this all goes away. Robin and I were interviewed for a radio piece on this mess (Prawfs gets MSM attention!) and one question was whether we will see this happen again or whether this was a one-off thing. Robin's answer (with which I agree) is that judges are usually good at self-restraint. I would add that I doubt a bunch of federal judges want to get into it with a sitting President.

Posted by Howard Wasserman on April 5, 2012 at 02:12 PM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink


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I agree with Brendan and anon's remarks. This was a deeply unprofessional and partisan response on Judge Smith's part. Even if (assuming arguendo) that President Obama had categorically questioned Marbury or (even more aggressively) endorsed a Merriman power to ignore federal court judgments as President Lincoln did, it is no business of the federal courts to demand an answer as to the political branches' views regarding judicial review or the finality of federal judgments. Could Congress or the President demand of Chief Justice Roberts and other federal courts their views regarding the extent to which the federal courts will respect the considered constitutional views of the political branches? Of course not, and, for the same reason, Judge Smith egregiously abused and ignored the separation of powers.

Posted by: Norman Williams | Apr 5, 2012 11:05:56 PM

I have yet to see an explanation that justifies Judge Smith's demand or provides a source of authority to make such a demand. I don't see how a court has the inherent power to require government lawyers to explain the informal remarks of a campaigning President.

Posted by: Brendan Maher | Apr 5, 2012 9:01:58 PM

A renegade judge asks for a written response to a matter unrelated to the litigation, and the DOJ has to respond with a memo; if that's not impudence and abuse of judicial discretion for political purposes, I don't know what is.

The Chief Executive and Legislative branch regularly engage in political sparing. It's high time that Congress and the President begin to openly impugn the activists on the Supreme Court when they behave like legislators rather than adjudicators.

Posted by: AnonProf | Apr 5, 2012 7:03:16 PM

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