Critics have suggested that Obama may have been seeking to intimidate the justices, trying to influence the outcome of a pending case. Others say he appears to be laying the groundwork to later accuse the justices of engaging in election-year politics rather than legitimate constitutional review.
The Fifth Circuit-Justice Department episode began in the midst of an oral argument on Tuesday, when Judge Jerry Smith, a Republican appointee on the Fifth Circuit, said he was concerned about Obama's statements the prior day suggesting that it would be improper judicial activism should the US Supreme Court strike down the Patient Protection and Affordable Care Act.
Since his initial statement, the president has backed off his use of the term “activism,” and has suggested that the courts have the authority to assess whether acts of Congress comply with constitutional limits and requirements.
Nonetheless, the Fifth Circuit panel instructed a government lawyer to produce an explanation of the Justice Department’s position on the issue.
“The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments,” Holder wrote to the panel.
The high court traditionally “accords great weight to the decisions of Congress,” Holder said, “in part because the Congress is a coequal branch of government whose members take the same oath [judges] do to uphold the Constitution of the United States.”
Holder said principles of deference fully apply when Congress legislates under its authority to regulate national commerce. “The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause,” he said.