Over at the Volokh Conspiracy, Orin Kerr has a post up about today’s oral argument in the Fifth Circuit Court of Appeals on a challenge to the ACA. In short, at the start of the DOJ attorney’s argument, one of the Judges on the panel asked her whether the DOJ believes that the federal courts have the power to invalidate an unconstitutional law. After the lawyer responded “yes” and “of course,” the Judge made clear that he was referring to these comments from President Obama yesterday:
Ultimately, 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. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.
With those comments as the background, the Court of Appeals Judge and the DOJ attorney engaged in the following colloquy:
Judge: Let me ask you just something a little bit more basic. 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?
Lawyer: Yes Your Honor, I, of course there would need to be a severability analysis. But yes.
J: I am referring to statements by the President in the past few days to the effect (and I’m sure you’ve heard about them) that it is somehow inappropriate for what he termed ‘unelected judges’ to strike acts of Congress that have enjoyed (and he is referring of course to Obamacare) to what he termed a broad consensus and 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 is not a small matter so I want to be sure that you are 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.
L: Marbury vs. Madison is the law, your honor. But it would not make sense in this circumstance to strike down this statute because there is no…
J: Well, alright, well I would like to have from you on noon on Thursday, that’s about 48 hours from now, 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 3 pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the President’s statements and to the, again, position of the Attorney General and the Department of Justice.
L: Okay and that’s our position regarding judicial review and the authority of the Court…
J: Judicial review as it relates to the specific statements of the President in regard to Obamacare and to the authority of the federal courts to review that legislation.
L: Yes Your Honor.
(I have not seen an official transcript of the argument, which just happened today, but the audio is available here. I listened and transcribed the colloquy to the best of my ability, leaving out “ums” and the like.)
People are, rightly I think, somewhat shocked by this exchange. But there’s nothing fundamentally strange or unfair about a judge asking a lawyer to clarify a position when the lawyer’s client (or the client’s spokesman) makes a public statement that seems contrary to the lawyer’s arguments in court. If I submitted a declaration or memorandum in a case representing my client’s position as “X,” and then the judge opens the newspaper to see a quote from my client stating “Not X,” then I’d better be ready for that judge to ask me what is going on with “X”; I’ll need to explain myself and my client.
But what the Court of Appeals did here goes far beyond that. The Judge did ask the attorney to clarify her client’s position. And she did so. She clearly stated, on the record, in a recorded proceeding, that the United States believes in judicial review.
The Judge’s request for a letter goes beyond clarification. He confirmed repeatedly that the letter must specifically and in detail refer to the President’s remarks. When the attorney deftly attempted to make the letter about the government’s view more generally, the Judge cut her off and once again demanded that the letter make specific reference to the President’s comments.
In other words, what the Judge seems to want is a letter from the DOJ quoting the President’s statement and then explaining, on the record, why the DOJ thinks the President was wrong. He wants a public document that will serve no purpose other than to (perhaps) embarrass the President. That seems to me to be a bit much.
However, the President may have made the DOJ’s job easier today, when he clarified and limited his remarks. Perhaps the DOJ lawyers can rely on today’s comments in their letter.