- The Washington Times - Thursday, April 5, 2012

The Justice Department on Thursday said it accepts the federal courts’ power to overturn laws passed by Congress — embracing the doctrine of judicial review just days after President Obama publicly questioned whether judges had that right.

Attorney General Eric H. Holder Jr. submitted a three-page, single-spaced letter to the 5th U.S. Circuit Court of Appeals — fulfilling a demand made by Judge Jerry Smith earlier this week — in which the country’s top lawyer said the administration always has accepted judges’ right to decide on the constitutionality of laws.

“The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed,” Mr. Holder wrote, citing cases dating back to Marbury v. Madison, the 1803 case that most legal analysts say solidified the doctrine.

Mr. Holder does go on to say that courts regularly have shown deference to acts of Congress, giving them “the presumption of constitutionality” and saying challengers clearly must show a law crosses the line for it to be struck down.

And the attorney general said Mr. Obama’s “remarks were fully consistent with the principles described herein.”

The Supreme Court last week held three days of oral arguments on challenges to the constitutionality of Mr. Obama’s health care law, which passed Congress in 2010. On Monday, the president said he thought the law would be upheld, but he went further to say it would be “unprecedented” for the court to overturn a law passed by a “strong majority” in Congress.

“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, adding it could be considered “judicial activism” if they went down that path.

The health law did pass 60-39 in the Senate, but only by a narrow 219-212 vote in the House. No Republicans in either chamber voted for it.

But beyond the bill’s legislative history, legal scholars and Republicans alike said the president appeared to be challenging the court’s claim of power to pass judgment on laws.

On Tuesday the president narrowed his complaint, saying it would be the first time in decades that the court would have overturned a law Congress passed under its Commerce Clause powers.

Still, the remarks reverberated across legal and political lines.

In Texas, Judge Smith, part of a panel hearing another challenge to the health law, ordered the Justice Department to write up the three-page letter saying whether the department agreed with Mr. Obama’s statements.

And on Thursday, Senate Minority Leader Mitch McConnell pointedly told Mr. Obama to “back off.”

“The president crossed a dangerous line this week. And anyone who cares about liberty needs to call him out on it,” Mr. McConnell, Kentucky Republican, said. “The independence of the Court must be defended.”

But the president got backing from some Democratic allies in the Senate, who said Mr. Obama was correct both in his reading of the court and the constitutionality of the law’s individual mandate, which requires all Americans to obtain health coverage.

“I think the president seemed very calm and measured,” said Sen. Sheldon Whitehouse, Rhode Island Democrat. “I happen to agree, as a lawyer and an appellate lawyer who’s looked at this issue, that it would be an activist jump for the Supreme Court to deny that a mandate is constitutional after 40 years of it being supported by the Republican Party, from Richard Nixon to [former Rhode Island Sen.] John Chafee to the Heritage Foundation.”

“I think there comes a point when you have to be able to tell the truth about a Supreme Court that is activist and threatening to become even more activist,” he said.

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