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