Holder Fires Back at Fifth Circuit Judges – President’s Health Care Case Comments on Solid Ground

April 5, 2012

by Jeremy Leaming

President Obama’s warning that the Supreme Court should avoid destroying health care reform has not only irked a federal appeals court judge, but has spurred Republican leaders in the Senate to rush to the defense of the lifetime-appointed justices.

Responding to a reporter’s question about oral arguments in HHS v. Florida, where Justice Antonin Scalia embraced the simplistic broccoli argument, Obama said the high court would be ignoring precedent if it were to invalidate or greatly hobble the Affordable Care Act. The president noted that Supreme Court precedent holds that Congress has broad power to regulate commerce and to tax and spend for the general welfare. “That’s not just my opinion, by the way,” Obama said. “That’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices who said this wasn’t even a close call.” (Obama was referring to appeals court Judges Laurence Silberman and Jeffrey Sutton, who ruled that the health care law’s integral measure -- the minimum coverage provision -- was a valid exercise of Congress’ power to regulate interstate commerce.)

As TPM reported, the president’s defense of the health care law apparently prompted Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit presiding in a challenge to a part of the Affordable Care Act to demand that Attorney General Eric Holder submit a letter to the appeals court stating the administration’s understanding of judicial review.

Holder responded in a letter to the appeals court judges in Physician Hospitals of America v. Sebelius that the DOJ “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.”

Holder noted that the question of judicial review was resolved in the 1803 case of Marbury v. Madison.

The attorney general also reminded the Fifth Circuit judges that judicial review was not an issue in the case before them.

“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,” Holder stated.

The president in reality did not say anything unusual this week. He said that great deference is given to laws enacted by Congress, and that precedent should not be easily overturned. Indeed legal scholar after legal scholar has written extensively about Congress’ broad constitutional powers to regulate commerce, as well as to tax and spend for the general welfare of the country. The federal government has argued that the minimum coverage provision, which requires some Americans to purchase health care coverage starting in 2014, is a permissible exercise of power to regulate commerce. (Yesterday, former Mich. Gov. Jennifer Granholm wrote about the health insurance market, and how costly and exclusive it is.)

For decades, Republican lawmakers and right-wing activists have groused that federal courts are too quick to engage in so-called “judicial activism.” But today Republican lawmakers, such as Senate Minority Leader Mitch McConnell, are loudly lauding Marbury and lambasting the president for daring to discuss the Supreme Court’s consideration of the landmark health care reform law.

McConnell blasted Obama’s defense of the health care law as “distasteful,” and claimed the president revealed “a fundamental lack of respect for our system of checks and balances.”

S.C. Republican Sen. Jim DeMint cried that Obama was a “bully,” The Huffington Post reports.

Holder concluded his letter to the Fifth Circuit judges saying, “The President’s remarks were fully consistent with the principles described herein.”