Holder letter: A crafty piece of advocacy

AP Photo

Analysis

Attorney General Eric Holder's letter to appeals court judge Jerry Smith flatly says that President Obama's recent statements regarding the Supreme Court's review of the health care law "were fully consistent" with the long-standing principle that courts have the authority to review the constitutionality of federal laws. But Holder doesn't refer to any of Mr. Obama's statements, as Judge Smith asked -- and he takes a few subtle shots at the appeals court.

The letter is written as a two-and-a-half page legal explainer on the court's power to review federal laws, complete with citations of Supreme Court cases going back to Marbury v. Madison in 1803. But it's also a crafty piece of advocacy in the Court of Public Opinion.

Holder spends more than half of the letter arguing courts should defer to Congress, and that the Executive Branch -- in defending federal law -- has often urged judges to be deferential. Again, he cites cases -- although some are quite obscure (see, e.g., United States v. Five Gambling Devices Labeled in Part "Mills," and Bearing Serial Nos. 593-221). All this may be designed to back up the president's remarks that he believes the court should uphold the law -- but it can also be read as a bit of in-your-face legal writing.

Holder: Obama's remarks on judicial review "fully consistent" with precedent
Appeals court fires back at Obama's comments on health care case
Obama: Supreme Court overturning health care would be "unprecedented"

Holder also clearly indicates that while DOJ is responding to the court's order, it isn't going to bend over backward to honor the judges' demands.

In addition to failing to refer to Mr. Obama's specific statements, the letter is shorter than the "at least three pages" that the court ordered. What's more, it almost sounds causal at times, as when Holder said the DOJ lawyer accurately represented the government's position "at oral argument in this case a few days ago."

And at the outset, Holder frames the issue so he can respond without referring to the president's statements. He says he understood the court's question to be "the views of the Department of Justice regarding judicial review of the constitutionality of acts of Congress...prompted by recent statements of the President." And then he proceeds to recite the views of DOJ--with a slight jab at the appeals court to stress the government "at no point" in the litigation had ever suggested the judges lacked authority to review constitutional claims.

[marychgo]

I doubt this will change any (closed) minds, but let's try it one more time.

During the first third of the 20th century, the Supreme Court regularly overturned laws passed by a "duly elected Congress" that attempted to regulate commerce (which Congress is specifically authorized to do by the Constitution). After many battles during the early days of the New Deal, the Court came to a position that, if Congress demonstrated that what it was regulating actually WAS commerce, and demonstrated that its regulations were "necessary and proper," the Court would give deference to Congress' decision. That was the basis for a long string of Supreme Court decisions (aka precedents) about regulation of commerce over the past 75 years.

The Court HAS overruled Congress where it felt a specific law tried to stretch the definition of "commerce" too far (e.g., banning certain activities within 1,000 feet of a school), but where the subject of the regulation actually WAS "commerce," Supreme Court precedents clearly indicate PPACA is constitutional. That's why some of the most conservative (and thoughtful) jurists at the appeals level of the federal judiciary threw out the PPACA case.

I know that isn't what you're hearing from Rush and Fox, but it happens to be the truth. And it was that truth that Pres. Obama was referring to: that he couldn't believe the Supreme Court would disrespect BOTH a "duly elected Congress" AND 75 years of its own precedents to find PPACA unconstitutional.

[Mia_Alexander]

I love the name myth - you certainly perpetuate it.
The 5th court does not support the executive branch using its influence to intimidate or shame the judicial branch - which is meant to be objective and shielded against political influence. Did you actually take 11th grade civics?
When the president comes out and makes the statements he made - he is violating an understanding that we all have - that the branches of power are supposed to be separate. The 5th circuit is simply asking if Obama believes that the supreme courts has the right to rule that legislation is unconstitutional - as outlined in Malbary vs Madison. Obama's comments certainly did not seem like the comments of a man who understands the separation of power and the problem with that is that he is the president and he should show some respect for the separations of power. But like any dictator - he believes his word to be all knowing and all powerful. The problem is - he's an idiot and in the wrong country.
I would love to see anyone on the left build a case based in fact, not rhetoric and emotion. I love that you talk about the GOP this and that, but this has nothing to do with the GOP and everything to do with the president stepping outside of his role to try to influence an impartial body. It is a shame:) that his solicitor general had no real case to present and that when he could actually complete a full sentence - that he could not figure out the difference between a penalty and a tax - which btw - was crucial to the Obamacare case. It was just sad and embarrassing. So in typical Obama fashion - he had to throw a public tantrum and kick and cry and call names. Its been three years - most of us are tired of being lectured by this child who can't add, lies like he breathes and shows nothing except contempt for this beautiful country that has given you the right to be disrespectful and entitled. Smith rocks and it is about time someone on the judicial side put Obama and his sycophants in their place!

[TimeToEvolve]

The Republicon party of violent extremists have gone completely off the deep end and have become a national and international joke. They have proven again and again they represent only rich white men. They could not care less if we continue or backward and miserably failed "health" care system.

This is not the Republican Party of yesteryear. This is a party that is a wholly owned subsidiary of big corporate America. The only reason anyone supports them is nostalgia and the fact they have massive corporate money and media to brainwash the uninformed American. The only reason. As soon as you look at their policies you realize the don't belong in ANY government position or other position of power.

[werbaz]

I will reply to you. I am a republican. My family blood includes negro, choctaw indian, scot irish and norse. I think your comments reflect a considerably closed mind and indicate a lack of the ability to face certain disturbing facts. (1) are you willing to swear that that obama birth certificate is, in fact, not a forgery. (2) are you in fact willing to swear that his selective service card is not a forgery. (3) are you willing to explain that social security number that he has. (4) are you willing to explain why obama has placed the burden of proof on the people when it is HE that is asking to be placed on the next ballot.

[Mia_Alexander]

TimeToEvolve - I think you need to clarify what you mean by Republican "violent extremists"
Can you provide one example of anyone on the conservative side that has committed a violent act in the name of our cause - that cause being freedom by the way? As far as I can tell - Fort Hood was at the hands of a terrorist that was allowed to stay in the military bc of left wing, politically correct fear in which we are no longer allowed to question those that make it perfectly clear that they hate our country. Then Gabby Gifford was shot and again turns out its some crazy democrat. Zimmerman - if the mainstream, bought and paid for media is to be believed is also a democrat. And should I remind you of the rape and theft that took place at the "Occupy" movement? Can you give me an example of a conservative that has acted violently in the name of our tea-bagging ways?
Or even better - can you give me one example of a positive, successful endeavor completed at the hands of Obama? Of course not - none of your sheet can.
Now as for the letter requested by the 5 circuit. I realize that the left sees no benefit in allowing the constitution to represent ALL OF THE PEOPLE, but for those of us that still believe in democracy - it is still very much applicable. Obama violated our rights by passing ObamaCare without the consent of the people. Even worse - he did it despite the public outcry against it. The when he could not pass it legally bc he did not have the votes he bribed government officials with the "Corn Husker and Louisiana Purcahse" deals - he basically bought the votes. Then when he still could not get this piece of crap passed he employed the use of "reconciliation" to pass the democratic ruled senate - even though years earlier he and Peloso both spoke out against this use of this financial tool to pass a law. Now he challenges the justices on the Supreme Court and tries to politicize the outcome before their June ruling- even though the judicial branch is supposed to be completely free of any such influence. I know it's hard to swallow, but your president is a corrupt, arrogant, ignorant, racist who is taking one last desperate attempt to create a dictatorship. I realize you have no regard for the freedom you clearly take for granted, but the Founders created the constitution in preparation for the day when a "man" like Obama would try to rule over and against the people. It really is as simple as that. Please stop regurgitating the inane babbling of the left. It just makes you sound ill-informed, petty and certainly not evolved.

[RCRawlings]

I was going to comment on this story but CBS conveniently buried it.
I can see why after they were exposed for their biased analysis of Eric Holders letter.
What else is there to say that wasn't already said by a few of the commenter's that hit the nail on the head concerning Ms. Crawfords piece.
So sad that the maintream media has lost the credibility and respect they once deserved long ago and far away in a different era.

[TimeToEvolve]

That's what happens when huge uncaring giant corporations take over for advancing their corruption and propaganda.

[myth1958]

Three cheers for attorney General Holder for resolutely supporting his president - something Republican Judge Smith of Texas doesn't approve of. This legalistic duel of sorts is akin to Congress parrying with the Executive branch: trying to stymie each and every initiative Obama has put forth no matter the value of his ideas. The hyper-partisan representatives and senators are now matched by the unseemly remarks by this odd judge: his reference to 'Obamacare' is clearly a repetition of the Tea Party lines around the health care legislation, and his petulant requirement that the busy Attorney General write a three page paper for him smacks of judicial arrogance - when has another president had to put up with a quack like this? Agree or disagree, the office of president deserves more respect than any GOP boy is going to offer. This shameful episode ought to be remembered come election day, and the Republicans deserve to be pushed into minority status in both houses for this outrage and for all the others they are fomenting. We have enough cracker judges already: Smith is one too many.

[hdc77494]

The supreme court is co-equal to the executive branch, not subservient to it. They don't have to be deferential to Obama at all.

[werbaz]

I would guess, then, that we would expect the President of Mexico to resolutely support holder for the folks his smuggled guns killed there. Holder is in charge, the buck stops there for any real man.
Holder I expect is not a real man, emotionally. Looks to me like bully and looks to me coward.

[aintfakin]

someone has to push back against those right wing political hacks on the court.

[werbaz]

Well, look who is calling political hacks. Have you read any of those desperate funding letters from democrat hacks begging for $3?
Have you wondered where the man who calls himself Barfack O'Bamma finds authority for Czars, for running up more debt in three years than all the presidents before him have in total? Have you seen his stumbles on TV? I would be careful about the pot calling the kettle black. You democrats are laughably transparent and have no sense of ethics, rules, good sense. All you want it to shot down dissidents....that is behavior usually labelled as Fascists.

[Mia_Alexander]

Aint fakin - What exactly has the right done to influence law or overstep its boundaries. Can you site an example please?
Let me fill you on the left leaning 9th circuit and the most recent overreach against the American people.
Overturning Prop 8 in California after the people had already voted
Saying that the words, "one nation under God" should be removed from the pledge of alligence

This is not the rule of the judiciary - to over rule the people and create cases out of thin air.
So please if your not fakin then you must be bakin' - cuz your just wrong...

[masaccio68]

Here's a song for Judge Jerry Smith: http://******/PkvgK courtesy of the Texas Bar and Grille Singers.

[involved_indi]

This administration is not only incompetent but also dangerous.

[iamproteus]

Please explain the reasoning for your unsubstantiated hypothesis.

[Obama4more]

Another right-wing activist judge from Texas...shocking!!!!!!

[Ken Valley]

Right wing activist? How about the 9th Circuit? The Judges there are not left-wing liberals? What about the Judges in Wisconsin who are in the pocket of the Unions and the liberals? Hypocrisy is your new name...loser!

[iamproteus]

Ken, you seem to have a habit of veering off on wild tangents. Which meds are you supposed to be taking?

[wfw3536]

Apparently, Holder couldn't even get his assignment right, which was to submit 3 single space pages, not 2 and half. I am still waiting for Holder to take responsibility for the 2 Americans who were killed along with 100's of innocent Mexicans who were killed because of Holder's failed gun running operation in Mexico.

[iamproteus]

It was not an "assignment". It was a request and an inappropriate one at that. Mr. Holder went further than he was obligated to and did a very good job of putting that arrogant judge in his place.