The Obama administration has asked for the federal courts to reconsider its use of a controversial federal law that allows judges to issue an opinion in criminal cases in favor of defendants in civil cases, arguing that the law violates the Constitution.
The administration’s request comes as the Justice Department is reviewing whether to appeal a federal court decision that struck down a lower court decision allowing judges to defer to prosecutors in the civil rights cases.
The Justice Department argues that the federal law violates a principle of due process that was developed by the late Supreme Court Justice Louis Brandeis, who wrote that “the power to determine the law of a case is reserved to the judicial department.”
The Justice and State Departments argue that the government is still using Brandeas law as it has since at least the early 20th century, and that the use of Brandeans approach was “a source of much confusion and misunderstanding in the legal community.”
The Obama administration also said it believes Brandeys approach to law was the basis for the use by prosecutors of “an aggressive and expansive scheme” of prosecutorial discretion to avoid complying with court orders.
The Obama Administration’s request to the 10th Circuit Court of Appeals for reconsideration comes in a brief filed with the appeals court Friday.
The Justice Department argued that the courts should reconsider the ruling because it is unclear what the rule is or how it should apply to other federal civil lawsuits.
In a letter to the court, the Justice and Justice Departments said that they are concerned about the potential impact on civil cases and said that the administration should not be forced to review the constitutionality of the law, which the Justice Dept. says was not used in cases like the one in which it appealed the ruling.
In the filing, the administrations lawyers argue that there is “no dispute” that the “federal criminal code is a crime and that its use is unconstitutional.”
“The court should therefore vacate its injunction against the administration’s issuance of an opinion of a district court judge and instead hold that the court’s issuance is not subject to judicial review,” the Justice Deps lawyers wrote.
They argue that if a judge issues an opinion that is “not subject to review by a federal appeals court, there is no reason for a federal criminal court judge to issue a decision upholding the opinion of the district court.”
“Thus, there can be no basis for judicial review of the administration decision to issue its opinion,” the attorneys wrote.
The department has been arguing in court briefs that Brandeises use of the federal civil code as a basis for prosecutorial discretionary discretion was a violation of the Constitution’s Equal Protection Clause, which prohibits the federal government from depriving any person of due protection of the laws.
A spokeswoman for the Justice Office of Legal Counsel declined to comment.
But the Justice officials’ filing to the appeals panel echoes what the administration and its allies have been saying since last year, when the Supreme Court ruled that Brandes law was unconstitutional.
Brandeis argued in his seminal Supreme Court opinion that the due process clause protects only government actions and does not protect the private rights of citizens.
The ruling led to an era of sweeping federal civil rights and civil liberties laws, including laws barring race discrimination and the “heightened scrutiny” of police and other law enforcement agencies.
Brandes law led to a federal crackdown on voting and voter registration, as well as an onslaught on civil rights organizations, including the NAACP, the ACLU and the American Civil Liberties Union.
But his law also allowed prosecutors to pursue civil rights charges against individuals in cases in which the government was unable to prove that defendants had committed a crime.
The White House said Friday that the Trump administration believes that the justices ruling “is important because it confirms the importance of due processes and that it is critical to the integrity of our criminal justice system.”