Some recent comments by President Obama (later refined, but in some important respects legally erroneous) have induced a panel of Fifth Circuit judges to request (not order) a three-page, single-spaced letter from the Department of Justice. According to the transcript of the argument at ZiffBlog, the letter is to state “what is the position [of] the Attorney General and the Department of Justice in regard to the recent statements by the President, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review.”
The entire episode is unfortunate on both sides. But I am less interested at the moment in assessing comparative fault than in lamenting how the dynamic of this episode, together with much of the spectacle surrounding the healthcare litigation, only serves to reinforce judicial supremacy (as compared with departmentalism). The way that President Obama framed his remarks, the way that Judge Smith framed his questions, and the way that the DOJ attorney answered Judge Smith’s questions all show a common commitment to the idea that one role of federal courts is to “strike” or “overturn” statutes. Other commentators discussing the healthcare litigation have described the question as whether the Supreme Court will “repeal” the healthcare law. (See, e.g., James Capretta, John Fund, and Avik Roy, writing in the same NRO symposium).
These notions of a power to “strike,” “overturn,” or “repeal” legislation are convenient shorthand. In fact, it is often difficult to speak of what a court is considering doing without speaking of a constitutional challenge as being a challenge to a statute, which then brings along some notion that the court is being asked to do something to the statute (like strike it, overturn it, or repeal it). But this terminology can be misleading, and it is helpful every now and then to point out why.
The federal judicial power does not contain some unconditioned power of “judicial review” that results in the striking, overturning, or repealing of legislation. What we call “judicial review” consists of a negative power to refuse to execute an unconstitutional law and a positive power to enjoin someone properly before the Court from executing an unconstitutional law (as well as the power to accomplish the same result indirectly through a declaratory judgment). In short, “judicial review” consists of a power to order judicial remedies (including the remedy of non-execution), together with the giving of reasons in support of the judicial action taken. By dint of precedent and preclusion doctrine, the reasons provided may extend the scope of the judicial non-execution more broadly. But there is no stand-alone “judicial review” power that operates directly on statutes.