Court Time: Obama’s remarks and one steamed appeals court

April 11, 2012


(Editor’s note: The Supreme Court continues to issue significant rulings, and we’re going to continue to write about them throughout the month of April.)

Click here for the first post on strip searches for minor offense arrestees.

Monday of last week – the week after the Supreme Court heard oral arguments on the legal challenges to the Affordable Care ActPresident Obama spoke publicly about the case.

Specifically, in speaking at a news conference, Obama said, “Ultimately, I am 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.”

He also went on to say that overturning the law would be a “good example” of “judicial activism,” and that he was “pretty confident” that the Supreme Court “will recognize that and not take that step.”

Though those comments may have been innocuous in a less explosive political environment, Obama’s statement instead infuriated conservative commentators, who wondered if Obama was trying to intimidate the Justices against striking down the law or challenge the notion of judicial review.

Regardless of how it was intended, it was a political statement made during an election year, and should have been taken as such.

A three judge panel from the U.S. Court of Appeals for the Fifth Circuit didn’t quite see it this way.

During oral arguments for Physician Hospitals of America v. Sebelius, one of the judges on the panel, Judge Jerry E. Smith, referenced these comments made by Obama, and directed the U.S. Department of Justice to clarify the Executive’s position on judicial review.

In other words, Judge Smith was worried that Obama’s comments meant that the Executive no longer supported the notion that the Judiciary had the authority to strike down laws that are in conflict with superseding laws (such as the Constitution), an authority over 200 years old.

The Justice Department responded with a letter signed by none other than U.S. Attorney General Eric Holder.

In it, the Attorney General explained the obvious: that the “Department has not in this litigation, nor in any other litigation…ever asked this or any other court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.”

However, the letter also went on to say that in reviewing the constitutionality of federal legislation, the reviewing court must afford Acts of Congress a “strong” presumption of constitutionality.

Lastly, the letter, in plain support of the President’s remarks, stated that the Executive Branch “has often urged courts to respect the legislative judgments of Congress” while at the same time “recognizing the courts’ authority to engage in judicial review.”

This exchange between the Executive and the Judicial Branches is unusual, to say the least.

A federal court (very) liberally interpreted remarks by a sitting President – made outside the context of any judicial proceeding – to mean that the Executive was challenging the validity of one of the Judiciary’s most basic and potent powers.

This altercation could be the product of the contemporary political climate, but its cause is likely far more localized to the ACA.

Specifically, it seems that opponents of the health care law are particularly sensitive to remarks by Obama concerning the law’s constitutionality – especially if those opponents also happen to be sitting judges.

This tension will likely only increase between now and when the Supreme Court hands down its ruling on the law in late June, which, luckily, is only two short months away.

If things become much more escalated than this, though, it’s going to be a long couple of months.