5th Circuit Judge Jerry Smith orders DOJ lawyer to file letter regarding AG's and DOJ's position on Obama's statements on SCOTUS review of health-care overhaul

Usually, election-year politics aren’t front and center at oral argument before a U.S. Court of Appeals. But that tradition seems to be changing, judging by an exchange at the 5th Circuit involving the Affordable Care Act.

Opponents of the act, which mandates that people buy health insurance, want the law struck down, while President Barack Obama has defended the law as constitutional and passed by a majority of Congress. The Associated Press reports that the president recently made remarks about an “unelected” court possibly striking down his health care overhaul. The U.S. Supreme Court is currently reviewing the law.

The exchange at the 5th Circuit arose during April 3 arguments in Physician Hospitals of America, et al. v. Kathleen Sebelius, in which a group of doctors and hospitals is challenging a portion of the act that limits doctors from self-referring Medicare patients to doctor-owned hospitals.

The exchange was between Judge Jerry Smith (pictured) and Dana Kaervang, a U.S. Department of Justice lawyer who defended the law. The exchange excerpted here begins at 18:00.

Smith: “Let me ask you something a little more basic. Does the Department of Justice recognize that federal courts have the authority in the appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?”

Kaervang: “Yes, your honor. I, 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, 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 — he was referring, of course, to Obamacare — to what he termed a broad consensus in majorities of 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 actions of Congress or portions thereof in appropriate cases.”

Kaervang: “Marbury v. Madison is the law, your honor. But it would not make sense in this circumstance to strike down this statute.”

Smith: “All right. I would like to have from you by 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 regards 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 to, again, the position of the attorney general and the Department of Justice.”

Kaervang: “OK. And that’s our position regarding judicial review and the authority of the court?”

Smith: “As it relates to the specific statements of the president in regards to Obamacare and to the authority of the federal courts to review that legislation.”

A staff member in Smith’s office says he declines comment. Kaervang also declines comment.

Chris Kratovil, a member of Dykema Gossett in Dallas who clerked at the 5th Circuit, says the exchange between Smith and Kaervang is highly unusual.

“This does seem to go beyond the bounds of the case before the court. But, at the same time, I think Judge Smith is within his rights to demand that Department of Justice to clarify its position, simply to confirm that the president’s remarks were rhetoric and not policy,” Kratovil says.

“He’s a gentleman at oral argument, generally, and he’s been doing this for three decades, and he’s regarded as an even-tempered judge by most,” Kratovil adds.

And there’s one more unusual thing about Smith’s request of Kaervang, Kratovil says. “I’ve never heard of any court setting a page-length minimum. Usually they’re worried about” the briefs being too long, he says.

UPDATE: The Associated Press reports that U.S. Attorney General Eric Holder says the Justice Department will respond “appropriately” to Smith. According to the AP, "Holder defended the president’s remarks and acknowledged the courts have 'the final say.' "

-- John Council

Comments

[Bruce Lamon]

Can you recall another instance in which a lawyer was ordered by a judge to submit a legal argument disavowing an out of court legal position taken by a client regarding a case not before the judge?

If the judge wants to criticize the president, that is his right, but to order the president's lawyer to file a brief criticizing the president is contrary to a judge's duty of impartiality, an abuse of the judge's power and a repudiation of the lawyer's duty to his client of zealous advocacy.

The proper response would be a detailed statement of why the judge's order was improper and a request for its retraction.

[Rudram]

This judge has clearly injected politics into the courtroom; the President is certainly entitled to his opinion and has the obligation to voice it loudly... like Senators and a**h**** like Rush. Last I checked, judges don't use Presidential press conferences as a basis for opinions.

I hope Mr Holder puts him in his place ... a two bit appeals court loudmouth trying to gain cheap attention from the tea party crowd (which is amply represented here)

[Mike]

"Smith is nothing short of a domestic terrorist!!" James, everytime you and your lefty friends use over the top language like this, you completely lose your credibility and audience.

[Kathy Kucia]

Thank God for Judge Smith's experience and wisdom to call on this. This is a strike at the core of the United States structure of government. Obama wants to castrate the judicial branch of our government and grab yet more power for himself, his cronies and turn our Democratic Republic form of government into a dictatorship. Obama only experience is academic and from books, no real experience! He does not understand or respect our form of government because he was not raised in this country. He is trying to eroding our form of government and replace it with a dictatorship where the president has all the power and the people do as they are told. He does not understand why anything he says or wants is challenged and he does not like it. His goal is total unquestioned power.

[THOMAS J STORIN]

Why is it every time someone stands up to King Obama and his WASHBASIN D.C.cronies...Liberals get their knickers all wadded up..
The Judge was asking a question and wants an answer.
An it is ObamaCare...THAT is what his Court of Jesters call it....so I will also. There will be nothing Affordable about this Act. Look to Cuba, Canada, Europe.. Look at the Post Office, AmTrac...GM. Yea the government sure can run businesses....

[Harrison2253]

Granny, your right ! and we can thank God for the fact that at least 5 out of the nine see the law and the constitution as it should be interpreted.

How 9 justices can see the law and the constitution in starkly different ways is more than remarkable. Fortunately common sense is in the majority.

[Native Texan]

Obamacare? Surely the “learned” judge knows that it is called the Affordable Healthcare Act and not some partisan, dittohead lemming slogan? Unless of course...

Well here’s something for that partisan hack to consider, google Bush and “activist judges”. Where was Smith’s “outrage” then? How many letters did he demand from the AG?

Because he’s so transparent, he’s pathetic and precisely what Americans should fear.

[James]

Smith is nothing short of a domestic terrorist!! These right wing terrorists should be tried for treason by their peers and sentenced for the maximum penalty allowed under presiding law.

[Doug]

Kotors- The act has been referred to by just about everyone, including leading Democrats and the DOJ as "Obamacare." For good or ill, it is the president's signature domestic policy achievement. Further, by all accounts, Judge Smith is an experienced and even-tempered jurist. It is important for DOJ to clarify its position related to the constitutional role of the judiciary-- particularly in a related case involving a challenge to Affordable Care Law.
In other words, don't drink the Kool Aid quite so deeply before posting an knee-jerk defense of the President.

[james]

Whether we agree or not I just want every American to know that I believe Judge Smith has to have a wheel barrow to push his testicles around, and I pray you'll allow my comment to be posted as I have used the correct and proper medical and anatomical reference. Someone should build a statue of this brave man.

[Kotors]

pretty thin skin for a federal judge to pop off about the president's remarks, particularly when they were so tangentially related to the dispute in his court. plus Judge Smith loses his credibility when he refers to the Affordable Care Act as "Obamacare."

[Sandra Griffin]

I find it interesting that Judge Smith questions the comments of the president and
overlooks the fact that several of the Supreme Court judges have spoken at Koch brothers gatherings, assuming political postures; that Judge Thomas's wife is paid by a group that acts to undermine the opposite political party and the president and that he even failed to report her income on his tax report; that the supreme court ordered the recount of votes in Florida to be halted and then sited the failure to count those votes as a reason to find on behalf of Bush, when much later, the actual completed recount, found that Gore had won in Florida; that this supreme court found on behalf of Citizen's United that has now corrupted the election process by the allowance of unlimited amounts of money without need for identity of the donor, thus reducing the value of the vote by an ordinary citizen. Now, this judge
wants to question the President's statements? Let me guess, is Judge Jerry
Smith a Republican? There are millions of us who believe that the Supreme Court is now a more republican politically leaning body than a just judicial group! As a 69 year old grandmother, I find this ludicrous!

S. Griffin,
Tampa, Florida