posted on Apr, 5 2012 @ 02:02 PM
"Here’s Holder’s full letter to Justice Smith, provided by the Justice Department:
“Dear Judge Smith, Judge Garza, and Judge Southwick:
This Court’s letter of April 3, 2012 requested a response to questions raised at oral argument in this case, Physician Hospitals of America v.
Sebelius, No. 11-4063 1. From the electronic recording of the argument, I understand the Court to have requested the views of the Depar1ment of
Justice regarding judicial review of the constitutionality of Acts of Congress. The Court indicated that its inquiry was prompted by recent statements
of the President.
The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not
changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. 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.
The government’s brief cites jurisdictional bars to the instant suit and urges that plaintiffs’ constitutional claims are insubstantial. See
Appellee Br. of the United States at 17-38. At no point has the government suggested that the Court would lack authority to review plaintiffs’
constitutional claims if the Court were to conclude that jurisdiction exists. The case has been fully briefed and argued, and it is ready for
disposition. The question posed by the Court regarding judicial review does not concern any argument made in the government’s brief or at oral
argument in this case, and this letter should not be regarded as a supplemental brief.
1. The power of the courts to review the constitutionality of legislation is beyond dispute. See generally, e.g. , Free Ente1prise Fund v. Public
Co. Accounting Oversight Bd. , 130 S. Ct. 3138 (20 10); FCC v. Beach Communications, Inc., 508 U.S. 307 (1993). The Supreme Court resolved this
question in Marbwy v. Madison, 1 Cranch 137, 177-78 ( 1803). In that case, the Court held that ” t is emphatically the province and duty of the
judicial department to say what the law is.” Marbury, 1 Cranch at 177.
The Supreme Court has further explained that this power may only be exercised in appropriate cases. “If a dispute is not a proper case or
controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” DaimlerChrysler C01p. v. Cuno , 547 U.S.
332, 341 (2006); see, e.g., Weinberger v. Sa/fi, 422 U.S. 749, 763-766 (1975) (addressing a statutory bar to jurisdiction). In the case before this
Court – Physician Hospitals of America v. Sebelius, o. 11-40631 -we have argued that this Court lacks jurisdiction to hear the case. See Appellee
Br. of the United States at 15-38. Where a plaintiff properly invokes the jurisdiction of a court and presents a justiciable challenge, there is no
dispute that courts properly review the constitutionality of Acts of Congress.
2. In considering such challenges, Acts of Congress are “presumptively constitutional,” Turner Broadcasting System, Inc. v. FCC, 507 U.S.
1301, 1301 (1993), and the Supreme Com1 has stressed that the presumption of constitutionality accorded to Acts of Congress is “strong.” United
States v. Five Gambling Devices Labeled in Part .. Mills,” and Bearing Serial Nos. 593-221,346 U.S . 441 , 449 (1953); see, e.g., Gonzales v. Raich,
545 U.S. 1, 28 (2005) (noting that the “congressional judgment” at issue was “entitled to a strong presumption of validity”). The Supreme
Court has explained: “This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses
of Congress that an Act is within their delegated power or is necessary and proper to execution of that power.” Five Gambling Devices Labeled in
Part .. Mills,” and Bearing Serial Nos. 593-22i, 346 U.S. at 449.
In light of the presumption of constitutionality, it falls to the party seeking to overturn a federal law to show that it is clearly
unconstitutional. See, e.g., Salazar v. Buono, 130 S. Ct. 1803, 1820 (20 1 0) (“Respect for a coordinate branch of Govenm1ent forbids striking down
an Act of Congress except upon a clear showing of unconstitutionality.”); Beach Communications, Inc. , 508 U.S. at314-15.
3. 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. See, e.g. , Nature ‘s Daily. v. Glickman, 1999 WL 158 1396, at *6; State University of New York v. Anderson,
1999 WL 680463, at *6; Rojas v. Fitch, 1998 WL 457203, at *7; United Food and Commercial Workers Union Local 75i v. Bro·wn Group, 1995 WL 938594, at
The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments. See, e.g.,
Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329 (2006) (explaining that, in granting relief, the courts ‘·try not to nul lify
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’” (alteration in the original) (quoting Regan v. Time, inc. , 468 U.S. 641, 652 (1984) (plurality
opinion))); Turner Broadcasting System, inc. , 512 U.S. at 665-66. The “Court accords ‘ great weight to the decisions of Congress”‘ in part
because “[t]he Congress is a coequal branch of government whose Members take the same oath [judges] do to uphold the Constitution of the United
States.” Rostker v. Goldberg, 453 U.S. 57,64 (1981) (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102
(1973)). These principles of deference are fully applicable when Congress legislates in the commercial sphere. The com1s accord particular deference
when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish
constitutional ends. See, e.g. , NLRB v. Jones & Laughlin Steel Corp. , 301 U.S. 1, 32 (1937); McCulloch v. Matyland, 17 U.S. (4 Wheat.) 316, 408
(1819). See also Thomas More Law Center v. Obama, 651 F.3d 529, 566 (6th Cir. 20 11) (Opinion of Sutton, J.); Seven Sky v. Holder, 661 F.3d 1, 18-19
(D.C. Cir. 201 1) (Opinion of Silberman, J .)
The President’s remarks were fully consistent with the principles described herein.
[Filed and served via ECF]
Eric H. Holder, Jr.