Bloomberg Anywhere Login


Connecting decision makers to a dynamic network of information, people and ideas, Bloomberg quickly and accurately delivers business and financial information, news and insight around the world.


Financial Products

Enterprise Products


Customer Support

  • Americas

    +1 212 318 2000

  • Europe, Middle East, & Africa

    +44 20 7330 7500

  • Asia Pacific

    +65 6212 1000


Industry Products

Media Services

Follow Us

Holder Memo Says Obama Didn’t Question Powers of Courts

April 5 (Bloomberg) -- The Obama administration never questioned the power of federal courts to review the validity of legislation, U.S. Attorney General Eric Holder told a panel of appeals judges in a letter.

U.S. Circuit Judge Jerry E. Smith ordered the Justice Department to give the appellate court a three-page, single-spaced memo detailing the Obama administration’s views on courts’ authority to overturn laws that judges find unconstitutional.

Smith made the request April 3 during oral arguments in a challenge brought by a group of Texas doctors against part of the Patient Protection and Affordable Care Act of 2010. The Obama administration’s health-care law was the subject of three days of oral arguments the preceding week in a broader legal challenge pending before the U.S. Supreme Court.

“At no point has the government suggested that the court would lack authority to review plaintiffs’ constitutional claims if the court were to conclude that jurisdiction exists,” Attorney General Eric Holder said in the letter drafted to Smith’s specifications. “While duly recognizing the court’s authority to engage in judicial review, the executive branch has often urged courts to respect the legislative judgments of Congress.”

‘Judicial Activism’

Smith ordered the Justice Department to peg its memo to Obama’s April 2 comment that it would amount to “judicial activism’’ for the Supreme Court to throw out the health-care statute, which requires all Americans to buy health insurance.

“I’m referring to statements by the president in the past few days to the effect, 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 -- what he termed broad consensus in majorities in both houses of Congress,’’ Smith said during April 4 arguments at a Houston session of the Fifth Circuit.

Smith, who was appointed by Ronald Reagan, a Republican, said the president’s statement “has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority to the appropriateness of the concept of judicial review.’’

‘Regarding Obamacare’

He ordered the Justice Department to clarify its position in writing “as it relates to the specific statements of the president regarding Obamacare and the authority of the federal courts to review that legislation.’’

The appellate panel is considering a bid by a Texas physicians’ group that sued U.S. Secretary of Health and Human Services Kathleen Sebelius last year. The group is seeking to overturn a provision of the law that restricts growth by physician-owned hospitals in ways that don’t apply to other hospitals, according to court papers. The act blocks federal medical payments to doctor-owned hospitals while allowing them for all other hospitals.

Holder said Supreme Court precedents “often acknowledged the appropriateness of reliance on the political branch’s policy choices and judgments.” Citing a 1984 high court decision, Holder said, “the courts try not to nullify more of a legislature’s work than is necessary because they recognize that a ruling of unconstitutionality frustrates the intent of the elected representatives of the people.”

The case is Physicians Hospitals of America v. Sebelius, 11-40631, U.S. Court of Appeals for the Fifth Circuit (New Orleans).

To contact the reporter on this story: Laurel Brubaker Calkins in Houston at

To contact the editor responsible for this story: Andrew Dunn at

Please upgrade your Browser

Your browser is out-of-date. Please download one of these excellent browsers:

Chrome, Firefox, Safari, Opera or Internet Explorer.