Attorney General Holder Agrees with the Fifth Circuit: Supreme Court Has the Right to Overturn Obamacare - Do you believe him?
Dear Judge Smith, Judge Garza, and Judge Southwick:
This Court’s letter of April 3, 2012 requested a response to questions raised at oral argument in this case, Physician Hospitals of America v. Sebelius, No. 11-40631. From the electronic recording of the argument, I understand the Court to have requested the views of the Department of Justice regarding judicial review of the constitutionality of Acts of Congress. The Court indicated that its inquiry was prompted by recent statements of the President.
The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The 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 government’s brief cites jurisdictional bars to the instant suit and urges that plantiffs’ constitutional claims are insubstantial. See Appellee Br. of the United States at 17-38. At no point has the government suggested that the Court would lack authority to review plaintiffs’ constitutional claims if the Court were to conclude that jurisdiction exists. The case has been fully briefed and argued, and it is ready for disposition. 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 goes on to review the relevant case law, and notes that “the Executive Branch has often urged courts to respect the legislative judgments of Congress.” Holder concludes by stating that “The President’s remarks were fully consistent with the principles described herein.”
Your move, Judge Smith."
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