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Guest Article

(From the April 16, 2012 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)

Justice Department Responds to Appeals Court Request to Clarify President's Remarks

Judge Jerry Smith of the Fifth Circuit Court of Appeals recently asked a Department of Justice lawyer in a case before him to submit a letter stating what the position is of the Justice Department regarding the authority of the Federal courts, in light of recent statements made by the President about the Patient Protection and Affordable Care Act (Act) cases that are now before the Supreme Court.

Responding to statements Judge Smith apparently believes could be viewed as a challenge to the authority of the Federal courts or to the appropriateness of judicial review, he asked for a letter stating the position of the Attorney General and the Justice Department regarding the authority of the Federal Courts in that regard. The request was made of a Department of Justice lawyer who was before the Judge in another case in which different provisions of the Act (i.e., Medicare self-referral rules) are being challenged.

The Attorney General submitted the requested letter, which states in part:

The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation. ...
* * *
While duly recognizing the courts' authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress. [Citations omitted.] ...
* * *
The Supreme Court has often acknowledged the appropriateness of reliance on the political branches' policy choices and judgments. [Citations omitted.] ... 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." [Citations omitted.] ... These principles of deference are fully applicable when Congress legislates in the commercial sphere. ...

The information in this Washington Bulletin is general in nature only and not intended to provide advice or guidance for specific situations.

If you have any questions or need additional information about articles appearing in this or previous versions of Washington Bulletin, please contact:

Robert Davis 202.879.3094, Elizabeth Drigotas 202.879.4985, Mary Jones 202.378.5067, Stephen LaGarde 202.879-5608, Erinn Madden 202.220.2692, Bart Massey 202.220.2104, Tom Pevarnik 202.879.5314, Sandra Rolitsky 202.220.2025, Deborah Walker 202.879.4955.

BenefitsLink is an independent national employee benefits information provider, not formally affiliated with the firms and companies who kindly provide much of the content and advertisements published on this Web site, including the article shown above.