Not sure if this will stay in GQ because the question will prolly beg for debate, but at the moment I’m more curious about a possible factual answer to my question. If things get lively, I know the mods will of course move it to whatever forum is most appropriate.
So, here’s what happened.
A judge in Houston, Texas today was hearing oral arguments in a case involving a doctor-owned hospital that was challenging the PPACA’s prohibition on such facilities expansion or from building new facilities.
But then is when things, I think, got really weird. The judge then ordered this attorney to write a letter to the court, with pretty specific requirements for the form and contents of the letter.
Can the judge really do this? Couldn’t this be cause to request a new judge? I mean, not only the letter but also referring to the PPACA as “Obamacare” in court proceedings? It seems to me he’s announcing his disposition with these actions, and I can’t see why the Justice Dept. would want to continue the trial under his purview.
The judge can order the attorney to do whatever they want.
A local state judge has no authority to compel the federal government to do anything, I would imagine.
Worst case, the case is decided against the federal government (letter is not specific enough, say?) and then it gets appealed.
The judge cannot “order” an attorney to say their client’s point of view is something it is not. He can ask for a statement on the litigant’s assetion of what they believe the applicable legal issues are.
I imagine the result would be something along the lines of “ultimately, if constitutional issues are at stake, the judgement of the supreme court is final.”
Why would the feds bother to get into a debate with a judge about the limits of judicial activism when said judge seems inclined by his hostile attitude to rule against them; more likely it will be happy platitudes repeating the standard law school pablum “the president believes in the law of the land and the right of a judge to independently decide how that law applies, using established precendent.”
Cranky and abritrary behaviour by judges tends to disappear the further up the food chain you go.
Well, this was not some rinky-dink JP out in North Texas somewhere, this was before a three-judge panel of the Fifth Circuit Court of Appeals. The only court higher than this (in the Fifth Circuit, which comprises Louisiana, Mississippi, and Texas) is the Supreme Court of the United States.
So, yes, the DOJ will submit a short letter brief going over the hornbook law on the federal judiciary’s power of judicial review (Marbury v. Madison and its progeny). Nobody really doubts that the federal judiciary has this power, so this really is empty posturing. Sure Barry may have started it, but the political branches (i.e., the President and the Congress) have a little more leeway to do this. Political posturing, for them, is one of their tools of the trade. It is the tradeoff for having to stand for election every two, four, or six years. On the other hand, federal judges are not elected and enjoy life tenure, so it’s not unfair to ask them to resist the temptation to grandstand.
It is unfortunate (and wasteful of time and taxpayer dollars) that a federal judge has inserted himself needlessly into a political debate and unseemly that he is having the DOJ write a brief in response to the President’s remarks at a press conference.
Judge Smith doesn’t need to be impeached, but this is certainly an embarrassing tantrum on his part.
As for calling it “Obamacare,” I think it is well settled that is the most common shorthand used by both its supporters and its detractors. I think it would be somewhat overwrought to attempt to make ethical hay over it. (And, it seems to me, to make such hay would be of a piece with the same kind of overt politicization that I have criticized in the supplementary briefing assignment.)
This might be an appropriate sanction if the remarks in question were made in court, in some sort of contumacious behavior that more directly challenged the authority of the court. But to spank the Justice Department because of some remarks made by the President in the context of political campaigning seems overbroad.
This isn’t some “John Marshall has made his decision…” moment. This is the President trying to soften a possible political blow to his signature project. That’s what Presidents do, and they are not undermining judicial authority in any meaningful way when they do.
What’s really odd is that this is exactly what the DOJ’s lawyer said to the judge at the time. The judge asked whether, in light of President Obama’s ambiguous comments, the DOJ believed the judiciary had the power to overturn laws; she said “yes”, and cited Marbury v Madison. The judge then ordered her to draw up a three page letter repeating that anyway. Doesn’t do much for the reputation of the court for a senior Republican-appointed justice to blow symbolic raspberries at a Democratic President in the middle of an active case.
I think there’s a little more to it - the judge was asking the attorney to square the DOJ’s stance on judical review with the President’s statement - not to simply summarize Marbury.
Unfortunately, neither party has raised Marbury or judicial review as an issue. This brief will be entirely irrlevant to the questions on which the court is being asked to pronounce. So this really is a case of the judge making a hobbyhorse out of the President’s remarks in a non-judicial forum.
The court can no more ask the DOJ to “square [its] stance” on this issue than a federal judge could have asked an AUSA in a drug prosecution to submit briefing on the legitimacy of presidential signing statements.
The court can actually do pretty much whatever it wants. (eta: which is exactly why they shouldn’t, and usually don’t, engage in any kind of political grandstanding).
Perhaps. But when your actual ability to punish is limited to banging a gavel (it is other people, after all, who put you in jail or freeze your bank accounts), you have to rely on other people thinking you’re not unhinged and agreeing that they should follow your orders. And not prompting your circuit’s chief judge to call you up and talk to you about going into senior status.
More generally, occasionally courts will request additional briefing about a point that comes up at oral argument, either requesting a formal brief or a “letter brief” on the point. The additional briefing may relate to a point the court thinks the parties have overlooked or to developments that occurred after the originally briefing of the matter.
If, for instance, the government had announced new regulations or a major policy shift with regard to a matter it was litigating, a court might ask for further briefing on the implications of the change.
As a legal matter, this request for a letter brief on the implications of the President’s statement falls into this category of additional briefing. The wisdom and politics of such a briefing request are, of course, for another forum.
Okay, let me sum up: Yes, the judge can do this, but it’s pretty much petty grandstanding by a judge who seems to be using his gavel and robes to malign the President because the judge doesn’t agree with what the POTUS said at a news conference.
That’s about what I thought, too. Thanks for the answers everyone. Glad to know I understood that correctly.
Obama needs the refresher course, not the judge. This isn’t a monarchy. Whatever the case may be, what it did was get the issue into the news and probably reach many who weren’t paying attention before.
That’s ridiculous. Obama’s statement was the lead story on the AP, CNN, FOX and every other news outlet I saw the day he made it; it was already in the news. All this did was ensure that many people who had never heard of Judge Jerry Smith will now think he’s a petty spiteful nincompoop.