Wednesday, April 4, 2012

Fifth Circuit Judge Orders Administration to State Position on Judicial Review

Judge Jerry Smith (5th Cir.) yesterday ordered a DOJ attorney to deliver a letter to the court stating the position of the AG and DOJ on judicial review.  The order comes in response to President Obama's statements the other day at a news conference on the ACA challenge at the Supreme Court.

This is an uncommonly silly order--serving no legitimate purpose, interfering with separation of powers, and undermining the credibility and seriousness of the federal courts (or at least the Fifth Circuit)--and the DOJ would do well to ignore it.  The President's statements the other day were plainly not a challenge to the idea of judicial review; they were simply a statement of the administration's constitutional position on the ACA, already articulated by the SG at oral argument and repeatedly stated by the administration and the President himself in other contexts.

Here's a recording (thanks to Steve Bussey radio), followed by the language:


I would like to have from you by noon on Thursday . . . 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.  That letter needs to be at least three pages, single-spaced, no less, and it needs to be specific.


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I agree with you that it is an uncommonly silly order and the judge looks stupid. However, I do feel for the poor government lawyer who just got caught in the middle of all of this. If DOJ ignores it I doubt that Judge Smith is going to just walk away, so someone is going to get an earful or more that they don't deserve.

Posted by: Daniel | Apr 4, 2012 10:12:35 PM

Personally, I don't think federal judges should be using the term "Obamacare," as it is unquestionably pejorative and partisan. I'm looking forward to reading the single-spaced DOJ response.

Posted by: Eric Washer | Apr 5, 2012 8:55:36 AM

UPDATE: Attorney General Holder complied exactly with Judge Smith's terms, submitting a three-page letter to the court today. The Wall Street Journal has the letter here:

Posted by: Ross Drath | Apr 5, 2012 1:48:49 PM

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