Wednesday, April 4, 2012
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.