WASHINGTON -- Continuing the politically charged back-and-forth between the executive and judicial branches over President Barack Obama's health care reform law, Attorney General Eric Holder on Thursday submitted a letter to a federal appeals court affirming that the "power of the courts to review the constitutionality of legislation is beyond dispute," but reiterated the president's statement that courts should show strong deference to Congress' commerce-based regulations.
"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," Holder wrote. Pointing to the conservative appellate judges who upheld the Affordable Care Act's individual mandate, Holder concluded that principles of judicial restraint "are fully applicable when Congress legislates in the commercial sphere. The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends."
A Republican-appointed federal judge had demanded this statement of the obvious in response to President Obama's comments to reporters on Monday that he did not expect the Supreme Court to strike down his signature health care reform because to do so "would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
Those comments appeared to ignore the fact that the courts have had the power for more than two centuries to do just that. Senate Minority Leader Mitch McConnell (R-Ky.) said Obama's comments showed "a fundamental lack of respect for our system of checks and balances." Rep. Lamar Smith (R-Texas) said the president was "threatening" and "trying to intimidate" the Supreme Court.
Judge Jerry Smith, a staunchly conservative Reagan appointee on the U.S. Court of Appeals for the 5th Circuit, then inserted the federal courts into the partisan fray on Tuesday, when he interrupted a Justice Department lawyer in the middle of oral argument in another health care case to tell her that the president's comments "troubled a number of people who have read it as somehow a challenge to the federal courts, or to their authority, or to the appropriateness of the concept of judicial review. And that's not a small matter."
Smith, referring to the Affordable Care Act as "Obamacare" from the bench, ordered the lawyer, Dana Lydia Kaersvang, to submit "a letter stating what is the position of the attorney general and the Department of Justice in regard to the recent statements by the president, stating specifically and in detail, in reference to those statements, what the authority is of the federal courts in this regard in terms of judicial review."
Holder's response made a not-so-subtle jab at the 5th Circuit for going out of its way to call out the president. "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," the attorney general wrote. "The Department [of Justice] 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."
Soon after the 5th Circuit issued its order, the president on Tuesday walked back his comments. "The point I was making is that the Supreme Court has the final say on our Constitution and our laws, and all of us have to respect it," Obama said during an appearance before newspaper executives, noting that it had been more than 75 years since the high court overturned "a law that was passed by Congress on a economic issue like health care."
"It's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this," Obama said.
On Wednesday, Attorney General Holder confirmed that his office would reply to the appeals court's order, but defended the president's comments from Monday as "appropriate." At a briefing later that day, White House Press Secretary Jay Carney said Obama was "simply making an observation about precedent and the fact that he expects the Court to adhere to that precedent. It's obviously, as he made clear yesterday, up to the Court to make its determination."
Meanwhile, the Supreme Court justices in their public appearances this week have remained mum about the health care cases before them and the president's comments. "We don't respond to criticism," Justice Antonin Scalia told an audience at the University of Southern Mississippi on Wednesday, according to the Associated Press. "Judges use what's known as the rope-a-dope trick. It's judicial tradition."
Whether that was a dig at the 5th Circuit's order or a hint of the Supreme Court's upcoming decision, Scalia did not say.