Holder letter: A crafty piece of advocacy

Attorney General Eric Holder testifies on Capitol Hill in Washington Feb. 2, 2012.
AP Photo
Attorney General Eric Holder testifies on Capitol Hill in Washington Feb. 2, 2012.
AP Photo


Attorney General Eric Holder's letter to appeals court judge Jerry Smith flatly says that President Obama's recent statements regarding the Supreme Court's review of the health care law "were fully consistent" with the long-standing principle that courts have the authority to review the constitutionality of federal laws. But Holder doesn't refer to any of Mr. Obama's statements, as Judge Smith asked -- and he takes a few subtle shots at the appeals court.

The letter is written as a two-and-a-half page legal explainer on the court's power to review federal laws, complete with citations of Supreme Court cases going back to Marbury v. Madison in 1803. But it's also a crafty piece of advocacy in the Court of Public Opinion.

Holder spends more than half of the letter arguing courts should defer to Congress, and that the Executive Branch -- in defending federal law -- has often urged judges to be deferential. Again, he cites cases -- although some are quite obscure (see, e.g., United States v. Five Gambling Devices Labeled in Part "Mills," and Bearing Serial Nos. 593-221). All this may be designed to back up the president's remarks that he believes the court should uphold the law -- but it can also be read as a bit of in-your-face legal writing.

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Holder also clearly indicates that while DOJ is responding to the court's order, it isn't going to bend over backward to honor the judges' demands.

In addition to failing to refer to Mr. Obama's specific statements, the letter is shorter than the "at least three pages" that the court ordered. What's more, it almost sounds causal at times, as when Holder said the DOJ lawyer accurately represented the government's position "at oral argument in this case a few days ago."

And at the outset, Holder frames the issue so he can respond without referring to the president's statements. He says he understood the court's question to be "the views of the Department of Justice regarding judicial review of the constitutionality of acts of Congress...prompted by recent statements of the President." And then he proceeds to recite the views of DOJ--with a slight jab at the appeals court to stress the government "at no point" in the litigation had ever suggested the judges lacked authority to review constitutional claims.

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    Jan Crawford is CBS News Chief Political and Legal Correspondent. She is from "Crossroads," Alabama.