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Administration Concedes Courts’ Review Power

 by The New York Times
 Apr 06,2012

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WASHINGTON — The Obama administration stipulated the incontestable to a disgruntled federal court on Thursday, formally declaring that “the power of the courts to review the constitutionality of legislation is beyond dispute.”

Attorney General Eric H. Holder Jr., bowing to an unusual demand of the United States Court of Appeals for the Fifth Circuit, in New Orleans, made official the backpedaling of the past few days over remarks by President Obama about the Supreme Court’s coming ruling on the constitutionality of his health care overhaul. Mr. Obama said on Monday that it “would be an unprecedented, extraordinary step” for the court to overturn the law.

Ever since, the White House has been struggling to explain what the president meant. Mr. Obama himself tried to clarify things on Tuesday, explaining that “the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.”

The appeals court, where the administration is challenging jurisdiction over an unrelated lawsuit, took the unusual step during oral arguments of demanding a detailed memorandum addressing the executive branch’s view of the judicial branch’s power over the legislative branch’s acts — in short, the separation of powers.

“Where a plaintiff properly invokes the jurisdiction of a court and presents a justiciable challenge, there is no dispute that courts properly review the constitutionality of acts of Congress,” Mr. Holder wrote. His letter was filed in precise obedience to the court’s demands, which included a noon deadline, a three-page length, single spacing and a reference to the president’s statement.

But the letter also offered a reminder that the Supreme Court has presumed that acts of Congress are constitutional, and that the executive branch has frequently urged courts to respect the judgments of Congress.

“The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed,” Mr. Holder wrote, adding that he was unaware of any case in which the Justice Department had asked a court to reconsider or limit the court’s power in this regard.

Even so, the president’s statement on Monday has continued to reverberate.

Senator Mitch McConnell of Kentucky, the Republican leader, said just before Mr. Holder’s letter was released, “Respectfully, I would suggest the president back off.”

“The American people should be able to expect that their president will defend the independence of the court, not undermine it, safeguarding and strengthening our country’s institutions, not actively weakening them,” he said.

“The president crossed a dangerous line this week,” Mr. McConnell added. “And anyone who cares about liberty needs to call him out on it.”

Mr. Obama, himself a constitutional lawyer, never tried to defend the literal meaning of his words; apparently he meant either to express a more subtle thought or merely to voice a common campaign point about how judges sometimes overreach.

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” he said on Monday.

Because the vote by which the health care law was enacted was razor-thin and largely partisan, and because the court’s powers have been established since Marbury v. Madison in 1803, the president’s words were false on both counts, PolitiFact.com declared.

Mr. Obama and his aides have tried to explain what he meant, but they have relied on arcane arguments that may fall beyond the grasp of ordinary voters who have not studied the distinctions drawn over the commerce clause and the Lochner judicial era that preceded the New Deal.

In his letter, Mr. Holder argued that deference to Congress was particularly important in a case involving interstate commerce.

“The president’s remarks were fully consistent with the principles described herein,” he wrote in closing.

© 2012 The New York Times Company


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Comments (1 posted) 
  • I truly hope this would be settled in due time. The last thing that the nation would need is dispute within the government itself. It should be a unified body and not dispersed by misunderstanding.
  • (Posted on December 4, 2011, 12:01 pm Mesrianilaw)



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