BREAKING: Attorney General Responds to Concerns About President’s Supreme Court Remarks


Attorney General Eric Holder, in response to a request from a panel of judges from the U.S. Court of Appeals for the Fifth Circuit, has attempted to mollify concerns from the court and criticisms of others regarding comments made by President Obama this week.

In the week after the U.S. Supreme Court heard oral arguments concerning the constitutionality of the Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148), President Obama made comments on two occasions that some interpreted as challenging the Court’s authority to review and strike down an act of Congress.

At a press conference on April 2, the president said, “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

On April 3, in remarks made before a luncheon sponsored by the Associated Press, the President noted (in what some saw as clarification of his remarks of the day before) that the Court had not overturned a law that was passed by Congress on an economic issue, since the 1930s. He said, “the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.”

He added, “I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has. As a consequence, we’re not spending a whole bunch of time planning for contingencies.”

On the same day, judges of the U.S. Court of Appeals for the Fifth Circuit, hearing oral arguments in Physician Hospitals of America v. Sebelius (No. 11-40361) sent a letter to Attorney General Eric Holder requesting the Department of Justice’s view on judicial review of the constitutionality of Acts of Congress. (The case before the Fifth Circuit is not related to the cases considered by the U.S. Supreme Court; this case involves a challenge to sec. 6001 of PPACA which prohibits new or expanded physician=owned hospitals from filing claims for health services covered by Medicare if there is a financial relationship between the referring physician and the hospital receiving payment.)

In his response delivered to the Court of Appeals on April 5, Holder noted, “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.”

He emphasized, “The power of the courts to review the constitutionality of legislation is beyond dispute.” He also noted, “In considering such challenges, Acts of Congress are `presumptively constitutional’ … and the Supreme Court has stressed that the presumption of constitutionality accorded to Acts of Congress is `strong.’”

He also noted, however, that “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. The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments.” Holder quoted Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329 (2006), in which the judges wrote that 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.”

Holder stated at the end, “the President’s remarks were fully consistent with the principles described [in Holder’s letter.]”