If you are unaware of the legal battles surrounding the President’s healthcare overhaul, you must be living under a very large and soundproof rock. It’s time to emerge. Earlier this week, President Barack Obama opined that, should the Supreme Court strike down the law, such action would be an “unprecedented, extraordinary step.” That statement – and perhaps the publicity surrounding it – spurred the Fifth Circuit to confront a Justice Department lawyer (Dana Lydia Kaersvang) who happened to be arguing before the panel against a separate challenge to the healthcare law raised by physician-owned hospitals. Judge Jerry Smith, a Reagan appointee, began the pointed inquiry:
Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?
Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.
Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.
That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.
Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –
Smith: 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. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.
“Wow,” you might be thinking, followed soon thereafter with, “Thank goodness that’s not me!” Can you imagine, to put it into laymen’s terms, being called into the principal’s office because of something your boss said? Of course, the “boss” here is the President of the United States and his comments – according to some pundits – could be read to reflect a shift in the Executive Branch’s, and thus DOJ’s, policy.
At first blush, we might be tempted to chalk up the homework assignment to the proclivities of a conservative jurist snagging an opportunity to upbraid the President. Not so –unless the Ninth Circuit suddenly has renounced judicial activism and veered to the right while no one was looking. Apparently, this practice of requesting clarification based on out of court statements is more commonplace than initially thought. For example, earlier this year in February, the Ninth Circuit issued a “take home” assignment to the Obama administration concerning its announcement that ICE would exercise prosecutorial discretion in the removal of illegal immigrants with no criminal record and close family ties. At the time, the panel had been addressing the removal of an illegal immigrant tasked with caring for his 2 children who were American citizens. See http://www.ca9.uscourts.gov/datastore/opinions/2012/02/06/06-74444.pdf The same thing occurred when, while still enforcing the Defense of Marriage Act (“DOMA”), the Obama Administration announced it no longer would defend DOMA. Judges appointed by presidents from both sides of the aisle sought an explanation.
So, what are the two take-aways from the Fifth Circuit’s recent school chore assignment for Ms. Kaersvang? First, judges of all stripes despise ambiguity. Second, litigants – even (or especially) if they are the President of the United States – should be mindful of the impact their out of court statements may have. They just might wind up in the principal’s office.