Thursday, April 5, 2012
Attorney General Eric Holder today filed his three-page, single-spaced response to the order of the Fifth Circuit (by Judge Smith) the other day asking for the administration's position on judicial review.
There are obviously no surprises in DOJ's response; it's simply a short essay on judicial review. It's not clear that the response complies with the order in two respects, however: it's not at least three pages, single-spaced, and it only mentions President's Obama's comments in passing ("The President's remarks were fully consistent with the principles described herein.").
But it doesn't matter: This was a meaningless order in the first place, and the administration could well have (and should well have) entirely ignored it. The AG's response only legitimized this meaningless order and, thus, the courts' ability to bully the administration around to no particular end. AG Holder's response sets an unfortunate separation-of-powers precedent that the administration should have resisted.