Instead of responding to the 5th Circuit Court’s explicit request regarding President Obama’s untoward comments about the Supreme Court’s power to overturn congressional statutes, Attorney General Eric Holder sent the judges a law student-level brief on the propriety of judicial review. The letter intentionally ignored the judge’s main question, which was, in essence: does the Department of Justice and the Attorney General of the United States agree with the comments by the President of the United States? The letter focused almost exclusively on the deference courts must pay to acts of Congress. As such, the Department’s response will only make matters worse for the administration, as this issue will now remain in the public spotlight for some time.

Recall that on Monday of this week, in a Rose Garden press conference, President Obama was asked about the prospect of the Supreme Court overturning his signature legislative achievement, Obamacare. The President said, “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.”  He went on to express confidence that “an unelected group of people” would not “overturn a duly constituted and passed law.”  The not-so-subtle inference being that the Supreme Court did not have the authority to overturn a law that was passed by Congress.

It is clearly improper (and unprecedented) for the President of the United States, while a case is pending before the high court, to comment on the litigation in the manner in which President Obama did.  This is especially true where, as is the case here, the United States is a party to the litigation. The President’s comments were designed to intimidate members of the high court to vote the “right way,” and/or to incite public opinion if the Court rules in a manner that displeases the President.

Judicial activism is not when courts exercise their constitutional responsibility to overturn statutes that clearly violate the constitution. Rather, judicial activism is when courts ignore the constitution and instead rule on cases based on their policy preferences.

The three days of oral arguments in the Obamacare case last week demonstrated that there are serious constitutional concerns with Obamacare, most notably the individual mandate.  Whether the federal government has the power under the commerce clause to regulate inactivity by ordering everyone to purchase a private product (insurance) and penalize you if you don’t is a legitimate constitutional question.  The fact that the administration was not able to provide the high court with any limiting principle to their broad claims of constitutionality has left Obamacare vulnerable to being overturned, and the administration on the defense.

Unfortunately, Holder’s letter, rather than putting the issue to rest—which would have required them to acknowledge that the President “misspoke”—makes matters worse, and is further indication that the administration realizes that Obamacare may well be found unconstitutional.

DOJ Healthcare Letter 040512