What Grade Would You Give the Attorney General’s Homework?

Yesterday, the Fifth Circuit gave the Attorney General a homework assignment:

[A] letter stating . . . 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.

I added the emphasis above to make clear that the Fifth Circuit really really really wanted the letter to specifically reference the President’s statement.  I draw that conclusion from the fact that the Judge referred to the President’s statements three times and used the word “specific” three times.

Here is the Attorney General’s homework assignment, signed by Eric Holder himself.  What grade would you give it?

The letter is certainly a nice explanation of judicial review along with all sorts of Supreme Court precedent making clear that the Court does not and should not just go striking things down willy nilly.  But what about the “specific reference to the President’s statements”?  Where is that?

Well, at the end of the first paragraph, the letter notes: “The Court indicated that its inquiry was prompted by recent statements of the President.”  And then after two pages of legal analysis, the letter closes with a single sentence paragraph: “The President’s remarks were fully consistent with the principles described herein.”

Is that a sufficiently “specific reference” to the President’s statements? Based on my reading of the Judge’s request yesterday, I doubt this is what he was looking for. But I also doubt that he (or anyone else on the Panel) is going to make much of a stink over this.  I imagine the letter will put the issue to bed.

Also, on the three-page requirement:  The letter, including the signature line, makes it about half-way down the third page.  Teachers, what do you say?  Is that three pages?  Also, I wonder if every letter from the Office of the Attorney General includes 1.5-inch headers and footers (instead of 1-inch) and an eight-line address block, which is located four lines below the date on the first page.  Come on OAG, we’re wise to those tricks!


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