CHICAGO – U.S. Attorney General Eric Holder said Wednesday that the Justice Department will respond “appropriately” to a federal appellate judge in Texas who demanded a letter recognizing the authority of the federal courts to strike down laws passed by Congress.
Holder spoke a day after 5th U.S. Circuit Court of Appeals Judge Jerry Smith questioned President Barack Obama’s remarks earlier in the week about an “unelected” court possibly striking down the president’s health care overhaul. Smith, during oral arguments in a separate challenge to the health law, asked the Justice Department for a three-page, single-spaced letter affirming the federal court’s authority.
On Wednesday, Holder acknowledged the courts have “the final say” and defended the president’s remarks. He shrugged off a reporter’s suggestion that reaction to Obama’s comments have become a distraction.
When asked what an appropriate response to Smith would be, Holder said, “I think what the president said a couple of days ago was appropriate. He indicated that we obviously respect the decisions that courts make.”
“Under our system of government ... courts have the final say on the constitutionality of statutes,” Holder said. “The courts are also fairly deferential when it comes to overturning statutes that the duly elected representatives of the people, Congress, pass.”
Obama’s comments didn’t break “any new ground,” Holder said at a news conference in Chicago.
“I think he said in some ways that which is obvious,” Holder said. “He talked about the way in which Supreme Courts have typically looked at legislation.”
Holder said he’s confident the Supreme Court will find the Affordable Care Act constitutional “given the adequate, able representation” the law had during arguments before the justices. He said Solicitor General Donald Verrilli Jr. “did a great job.”
Speaking at the same Chicago news conference, Health and Human Services Secretary Kathleen Sebelius said her department is continuing to implement the health care law without contingency plans for a Supreme Court ruling against it.
“We don’t have the luxury of pausing and waiting for the court decision,” Sebelius said.
If the court rules against the law, she said, “we’ll make efforts to deal with that. But at this point, to lay out the range of options and spend a lot of time and energy on what-ifs is not a very productive use of our time.”
Holder and Sebelius spoke to reporters during a meeting on health care fraud prevention.
On Tuesday, the Texas judge seemed to take offense to comments Obama made Monday that he didn’t believe the court would take the “unprecedented” step of overturning a law passed by a strong majority of Congress.
Smith said he wanted reassurance that Holder and the Justice Department recognized judicial authority.
“The letter needs to be at least three pages, single spaced, no less and it needs to be specific. It needs to make specific reference to the president’s statements,” Smith said during a case brought in part by a spine and joint hospital in East Texas that is challenging the constitutionality of a portion of the health care law.