an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
There is almost nothing remarkable about the letter, other than the fact that it had to be submitted in the first place. But such a letter must surely be balm to the soul of a jurist who fears that others secretly doubt his ability to exercise the awesome power of judicial review.
Holder dutifully notes that "The power of the courts to review the constitutionality of legislation is beyond dispute," but that this power may be exercised only in situations in which a court has jurisdiction and the issue is justiciable. But "[w]here a plaintiff properly invokes the jurisdiction of a court and presents a justiciable challenge, there is no dispute that courts properly review the constitutionality of Acts of Congress."
The letter goes on to explain to Judge Smith that "In considering such challenges, Acts of Congress are 'presumptively constitutional,' and the Supreme Court has stressed that the presumption of constitutionality accorded to Acts of Congress is 'strong.'" Therefore "[i]n light of the presumption of constitutionality, it falls to the party seeking to overturn a federal law to show that it is clearly unconstitutional." That is, it is not the federal government, but the challengers to the Affordable Care Act who bear what Justice Kennedy called a "heavy burden of justification."
The letter reminds Judge Smith that "The Supreme Court has often acknowledged the appropriateness of reliance on the political branches' policy choices and judgments" and that "The `Court accords "great weight to the decisions of Congress"' in part because `[t]he Congress is a coequal branch of government whose Members take the same oath [judges] do to uphold the Constitution of the United States.'"
In particular, "These principles of deference are fully applicable when Congress legislates in the commercial sphere. The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends." Here the letter cites McCulloch v. Maryland, and NLRB v. Jones & Laughlin--which brought an end to the dual federalism of the so-called Lochner-era--as well as decisions upholding the Affordable Care Act by Judges Silberman and Sutton.
The letter concludes by emphasizing to Judge Smith, in case there was any doubt, that "The President's remarks were fully consistent with the principles described herein." In short, Judge Smith need have no fear: The President fully supports Judge Smith's right to strike down congressional statutes in an appropriate case.
One hopes that, in light of these remarks, a great weight has now been lifted from Judge Smith's shoulders. Perhaps now, having received assurances from the President of the United States that he actually possesses the powers of judicial review, Judge Smith can at last breathe a well-deserved sigh of relief. Armed with a new-found confidence, and the support of the Administration, perhaps he will now be able to put aside the distractions that have caused him such emotional turmoil in recent days. Perhaps, indeed, he may now, with equanimity, and a cheerful countenance, be able to return to the task of deciding the cases and controversies that are actually brought before him, as opposed to the remarks of politicians and media operatives that have almost nothing to do with his job.
Our prayers are with Judge Smith in his never-ending fight against anxiety and emotional upheaval. Surely there is no greater hell than that suffered by a person who cannot control his feelings of dread, and who finds himself buffeted about by a secret, gnawing fear that others do not accord him the respect and status that he craves. All of us can sympathize with the plight of Jerry Smith; all of us, in our own ways, have experienced our own dark nights of the soul. Your Honor-- and we use that term advisedly--we feel your pain. Posted
by JB [link]