Judge Jerry E. Smith
Judge Emilio M. Garza
Judge Leslie H. Southwick
c/o Mr. Lyle W. Cayce
April 5, 2012
Clerk, United States Court of Appeals
for the Fifth Circuit
600 S. Maestri Place
ew Orleans, LA 70130
RE: Phvsician Hospitals o[America v. Sebelius. No. 11-40631
Dear Judge Smith, Judge Garza, and Judge Southwick:
This Court’s letter of April 3, 2012 requested a response to questions raised at oralÂ argument in this case, Physician Hospitals of America v. Sebelius, No. 11-4063 1. From theÂ electronic recording of the argument, I understand the Court to have requested the views of theÂ Department of Justice regarding judicial review of the constitutionality of Acts of Congress. TheÂ Court indicated that its inquiry was prompted by recent statements of the President.
The longstanding, historical position of the United States regarding judicial review of theÂ constitutionality offederallegislation has not changed and was accurately stated by counsel forÂ the government at oral argument in this case a few days ago. The Department has not in thisÂ litigation, nor in any other litigation of which I am aware, ever asked this or any other Court toÂ reconsider or limit long-established precedent concerning judicial review of the constitutionalityÂ of federal legislation.
The govenment’s brief cites jurisdictional bars to the instant suit and urges thatÂ plaintiffs’ constitutional claims are insubstantial. See Appellee Br. ofthe United States at 17-38.Â At no point has the government suggested that the Court would lack authority to reviewÂ plaintiffs’ constitutional claims if the Court were to conclude that jurisdiction exists. The caseÂ has been fully briefed and argued, and it is ready for disposition. The question posed by theÂ Court regarding judicial review does not concern any argument made in the government’s briefÂ or at oral argument in this case, and this letter should not be regarded as a supplemental brief.
1. The power of the courts to review the constitutionality of legislation is beyondÂ dispute. See generally, e.g. , Free Ente1prise Fund v. Public Co. Accounting Oversight Bd. , 130Â S. Ct. 3138 (20 10); FCC v. Beach Communications, Inc., 508 U.S. 307 (1993). The SupremeÂ Court resolved this question in Marbwy v. Madison, 1 Cranch 137, 177-78 ( 1803). In that case,Â Case: 11-40631 Document: 00511812922 Page: 1 Date Filed: 04/05/2012Â the Court held that ” [i]t is emphatically the province and duty of the judicial department to sayÂ what the law is.â€ Marbury, 1 Cranch at 177.
The Supreme Court has fm1her explained that this power may only be exercised inÂ appropriate cases. â€œIf a dispute is not a proper case or controversy, the courts have no businessÂ deciding it, or expounding the law in the course of doing so.â€ Daim/erChJys/er C01p. v. Cuno ,Â 547 U.S. 332, 341 (2006); see, e.g., Weinberger v. Sa/fi, 422 U.S. 749, 763-766 (1975)Â (addressing a statutory bar to juri sdiction). In the case before this Court â€“ Physician Hospitals ofÂ America v. Sebe/ius, o. 11-40631 -we have argued that this Court lacks jurisd iction to hear theÂ case. See Appellee Br. of the United States at 15-38.
Where a plaintiff properly invokes the jurisdiction of a court and presents a justiciableÂ challenge, there is no dispute that courts properly review the constitutionality of Acts ofÂ Congress.
2. In considering such challenges, Acts of Congress are â€œpresumptively constitutional,â€Â Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1301 (1993), and the Supreme CourtÂ has stressed that the presumption of constitutionality accorded to Acts of Congress is â€œstrong.â€Â United States v. Five Gambling Devices Labeled in Part .. Mills,â€ and Bearing Serial Nos. 593-221,346 U.S. 441 , 449 (1953); see, e.g., Gonzales v. Raich, 545 U.S. 1, 28 (2005) (noting thatÂ the â€œcongressional judgmentâ€ at issue was â€œentitled to a strong presumption of validityâ€). TheÂ Supreme Court has explained: â€œThis is not a mere polite gesture. It is a deference due toÂ deliberate judgment by constitutional majorities of the two Houses of Congress that an Act isÂ within their delegated power or is necessary and proper to execution of that power.â€ FiveÂ Gambling Devices Labeled in Part .. Mills,â€ and Bearing Serial Nos. 593-22i, 346 U.S. at 449.Â In light of the presumption of constitutionality, it falls to the party seeking to overturn a federalÂ law to show that it is clearly unconstitutional. See, e.g., Salazar v. Buono, 130 S. Ct. 1803 , 1820Â (20 1 0) (â€œRespect for a coordinate branch of Government forbids striking down an Act ofÂ Congress except upon a clear showing of unconstitutionality.â€); Beach Communications, Inc. ,Â 508 U.S. at314-15.
3. While duly recognizing the courtsâ€™ authority to engage in judicial review, theÂ Executive Branch has often urged courts to respect the legislative judgments of Congress. See,Â e.g. , Nature â€˜s Daily. v. Glickman, 1999 WL 158 1396, at *6; State University of New York v.Â Anderson, 1999 WL 680463, at *6; Rojas v. Fitch, 1998 WL 457203, at *7; United Food andÂ Commercial Workers Union Local 75i v. BroÂ·wn Group, 1995 WL 938594, at *6.Â The Supreme Court has often acknowledged the appropriateness of reliance on theÂ political branchesâ€™ policy choices and judgments. See, e.g., Ayotte v. Planned Parenthood ofÂ Northern New Eng., 546 U.S. 320, 329 (2006) (explaining that, in granting relief, the courts â€˜Â·tryÂ not to nullify more of a legislatureâ€™s work than is necessaryâ€ because they recognize thatâ€™â€ [a]Â ruling of unconstitutionality frustrates the intent of the elected representatives of the peopleâ€™â€Â (alteration in the original) (quoting Regan v. Time, inc. , 468 U.S. 641, 652 (1984) (pluralityÂ opinion))); Turner Broadcasting System, inc. , 512 U.S. at 665-66.
The â€œCourt accords â€˜ great Case: 11-40631 Document: 00511812922 Page: 2 Date Filed: 04/05/2012 weight to the decisions of Congressâ€â€˜ in part because â€œ[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.â€ Rostker v. Goldberg, 453 U.S. 57,64 (1981) (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 (1973)). These principles of deference are fully applicable when Congress legislates in the commercial sphere. The 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. See, e.g. , NLRB v. Jones & Laughlin Steel Corp. , 301 U.S. 1, 32 (1937); McCulloch v. Matyland, 17 U.S. (4 Wheat.) 316, 408 (1819). See also Thomas More Law Center v. Obama, 651 F.3d 529, 566 (6th Cir. 20 11) (Opinion of Sutton, J.); Seven Sky v. Holder, 661 F.3d 1, 18-19 (D.C. Cir. 201 1) (Opinion of Silberman, J .)
The Presidentâ€™s remarks were fully consistent with the principles described herein.Â [Filed and served via ECF]
Eric H. Holder, Jr.
Case: 11-40631 Document: 00511812922 Page: 3 Date Filed: 04/05/2012
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