Below is the full letter signed by
Attorney General Eric Holder, requested by the 5th Circuit Court of
Appeals following comments made by President Obama calling the DOJ’s
stance into question.
Judge Jerry E. Smith
Judge Emilio M. Garza
Judge Leslie H. Southwick
c/o Mr. Lyle W. Cayce
April 5, 2012
Clerk, United States Court of Appeals
for the Fifth Circuit
600 S. Maestri Place
New Orleans, LA 70130
RE: Phvsician Hospitals o[America v. Sebelius. No. 11-40631
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. 11-4063 1. 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 plaintiffs' constitutional claims are
insubstantial. See Appellee Br. ofthe 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 Cour1 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.
1. The power of the courts to review the constitutional ity of legislation is beyond dispute. See generally, e.g. , Free Ente1prise Fund v. Public Co. Accounting Oversight Bd. , 130 S. Ct. 3138 (20 10); FCC v. Beach Communications, Inc., 508 U.S. 307 (1993). The Supreme Court 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 held that " [i]t is
emphatically the province and duty of the judicial department to say
what the law is.” Marbury, 1 Cranch at 177.
The Supreme
Court has further explained that this power may only be exercised in
appropriate cases. “If a dispute is not a proper case or controversy,
the courts have no business deciding 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 jurisdiction). 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
the case. See Appellee Br. of the United States at 15-38.
Where a
plaintiff properly invokes the jurisdiction of a court and presents a
justiciable challenge, there is no dispute that courts properly review
the constitutionality 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 Court stressed that the
presumption of constitutionality accorded to Acts of Congress is
“strong.” United States v. Five Gambling Devices Labeled in Part .. Mills,” and Bearing Serial Nos. 593-221,346 U.S. 441 , 449 (1953); see, e.g., Gonzales v. Raich,
545 U.S. 1, 28 (2005) (noting that the “congressional judgment” at
issue was “entitled to a strong presumption of validity”). The Supreme
Court has explained: “This is not a mere polite gesture. It is a
deference due to deliberate judgment by constitutional majorities of the
two Houses of Congress that an Act is within their delegated power or
is necessary and proper to execution of that power.” Five Gambling Devices Labeled in Part .. Mills,” and Bearing Serial Nos. 593-221, 346
U.S. at 449. In light of the presumption of constitutionality, it falls
to the party seeking to overturn a federal law to show that it is
clearly unconstitutional. See, e.g., Salazar v. Buono, 130 S.
Ct. 1803 , 1820 (20 1 0) (“Respect for a coordinate branch of Government
forbids striking down an Act of Congress except upon a clear showing of
unconstitutionality.”); Beach Communications, Inc. , 508 U.S. at314-15.
3.
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. See, e.g. , Nature ‘s Daily. v. Glickman, 1999 WL 158 1396, at *6; State University of New York v. Anderson, 1999 WL 680463, at *6; Rojas v. Fitch, 1998 WL 457203, at *7; United Food and Commercial Workers Union Local 75i v. Brown Group,
1995 WL 938594, at *6.
The Supreme Court has often acknowledged the
appropriateness of reliance on the political branches’ policy choices
and judgments. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng.,
546 U.S. 320, 329 (2006) (explaining that, in granting relief, the
courts ‘·try not to nullify more of a legislature’s work than is
necessary” because they recognize that’” [a] ruling of
unconstitutionality frustrates the intent of the elected representatives
of the people’”(alteration in the original) (quoting Regan v. Time, inc. , 468 U.S. 641, 652 (1984) (plurality opinion))); Turner Broadcasting System, inc.,
512 U.S. at 665-66. The “Court accords ‘ great The “Court accords ‘
great weight to the decisions of Congress”‘ in part because “[t]he
Congress is a coequal branch of government whose Members take the same
oath [judges] do to uphold the Constitution of the United States.” Rostker v. Goldberg, 453 U.S. 57,64 (1981) (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee,
412 U.S. 94, 102 (1973)). These principles of deference 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. See, e.g. , NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32 (1937); McCulloch v. Matyland, 17 U.S. (4 Wheat.) 316, 408 (1819). See also Thomas More Law Center v. Obama, 651 F.3d 529, 566 (6th Cir. 20 11) (Opinion of Sutton, J.); Seven Sky v. Holder, 661 F.3d 1, 18-19 (D.C. Cir. 201 1) (Opinion of Silberman, J .)
The President’s remarks were fully consistent with the principles described herein.
[Filed and served via ECF]
Sincerely,
Eric H. Holder, Jr.
Attorney General
Case: 11-40631 Document: 00511812922 Page: 3 Date Filed: 04/05/2012
That's MY AMERICAN OPINION, respectfully submitted.
