Remember that dust-up way back in April between 5th Circuit Judge Jerry Smith, where he demanded that Attorney General Holder submit a letter stating whether he agrees that the courts have the power of judicial review? (One could wonder, of course, whether Smith’s request, and the resulting backlash, may have had any impact on the Chief’s decision of how to vote.)
Well the 5th Circuit, following the Supreme Court’s opinion in NFIB v. Sebelius, issued an opinion in Physician Hospitals of America, et al. v. Sebelius, acknowledging that it in fact has that power.
From the Tex Parte Blog:
The 5th Circuit vacated the appeal in Physician Hospitals of America on Aug. 16 and remanded it to the trial court for further proceedings, finding that the trial court did not have subject-matter jurisdiction to hear the case. The 5th Circuit wrote that the Physician Hospitals of America plaintiffs first should have pursued their claims through the DHS’ administrative process before filing their complaint in federal court.
“The plaintiffs had to proceed with the available administrative procedures,” wrote Judge Leslie Southwick in an opinion joined by Judges Emilio Garza and Smith. “Their failure to do so leaves us without subject-matter jurisdiction over the claims they have presented in this suit.”
Interestingly, the phrase “judicial review” appears 13 times in Judge Southwick’s opinion. Rubbing it in, maybe?
Anyway 5th Circuit, to quote Captain Planet, “The Power [of judicial review] is Yours!” Go Marbury!