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Attorney General Eric Holder assured a federal appeals court Thursday that the Obama administration believes judges have the authority to overturn federal laws, after President Obama's comments earlier this week raised concerns from the bench about his view of judicial power.
Holder, in a three-page letter to the 5th Circuit Court of Appeals, said "the power of the courts to review the constitutionality of legislation is beyond dispute," though it should only be exercised in "appropriate cases." He also claimed laws passed by Congress are "presumptively constitutional."
Washington (CNN) -- The Justice Department obeyed a federal appeals court's unusual order Thursday in a legal and political spat over the health care law championed by President Barack Obama.
Administration lawyers met their deadline and filed a three-page, single-spaced letter -- following the specific instructions of the 5th U.S. Circuit Court of Appeals, which is hearing a challenge to the health care law.
The letter affirmed the government's stance that federal courts indeed have the authority to decide the constitutionality of the Affordable Care Act -- and any other law Congress passes.
"The power of the courts to review the constitutionality of legislation is beyond dispute," said the letter, signed by Attorney General Eric Holder.
To no one in particular:
As far as the judges not having authority to demand a letter of explanation this very well maybe true. But do you think they will even consider not shooting this down if they get no response back?? It will be on auto-kill at that point. By responding DoJ will show it's weakness, but what can they do?
“Dear Judge Smith, Judge Garza, and Judge Southwick:
This Court’s letter of April 3, 2012 requested a response to questions raised at oral argument in this case, Physician Hospitals of America v. Sebelius, No. 11-4063 1. From the electronic recording of the argument, I understand the Court to have requested the views of the Depar1ment of Justice regarding judicial review of the constitutionality of Acts of Congress. The Court indicated that its inquiry was prompted by recent statements of the President.
The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.
The government’s brief cites jurisdictional bars to the instant suit and urges that plaintiffs’ constitutional claims are insubstantial. See Appellee Br. of the United States at 17-38. At no point has the government suggested that the Court would lack authority to review plaintiffs’ constitutional claims if the Court were to conclude that jurisdiction exists. The case has been fully briefed and argued, and it is ready for disposition. The question posed by the Court regarding judicial review does not concern any argument made in the government’s brief or at oral argument in this case, and this letter should not be regarded as a supplemental brief.
1. The power of the courts to review the constitutionality of legislation is beyond dispute. See generally, e.g. , Free Ente1prise Fund v. Public Co. Accounting Oversight Bd. , 130 S. Ct. 3138 (20 10); FCC v. Beach Communications, Inc., 508 U.S. 307 (1993). The Supreme Court resolved this question in Marbwy v. Madison, 1 Cranch 137, 177-78 ( 1803). In that case, the Court held that ” t is emphatically the province and duty of the judicial department to say what the law is.” Marbury, 1 Cranch at 177.
The Supreme Court has further explained that this power may only be exercised in appropriate cases. “If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” DaimlerChrysler C01p. v. Cuno , 547 U.S. 332, 341 (2006); see, e.g., Weinberger v. Sa/fi, 422 U.S. 749, 763-766 (1975) (addressing a statutory bar to jurisdiction). In the case before this Court – Physician Hospitals of America v. Sebelius, o. 11-40631 -we have argued that this Court lacks jurisdiction to hear the case. See Appellee Br. of the United States at 15-38. 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.
2. In considering such challenges, Acts of Congress are “presumptively constitutional,” Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1301 (1993), and the Supreme Com1 has stressed that the presumption of constitutionality accorded to Acts of Congress is “strong.” United States v. Five Gambling Devices Labeled in Part .. Mills,” and Bearing Serial Nos. 593-221,346 U.S . 441 , 449 (1953); see, e.g., Gonzales v. Raich, 545 U.S. 1, 28 (2005) (noting that the “congressional judgment” at issue was “entitled to a strong presumption of validity”). The Supreme Court has explained: “This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power.” Five Gambling Devices Labeled in Part .. Mills,” and Bearing Serial Nos. 593-22i, 346 U.S. at 449.
In light of the presumption of constitutionality, it falls to the party seeking to overturn a federal law to show that it is clearly unconstitutional. See, e.g., Salazar v. Buono, 130 S. Ct. 1803, 1820 (20 1 0) (“Respect for a coordinate branch of Govenm1ent forbids striking down an Act of Congress except upon a clear showing of unconstitutionality.”); Beach Communications, Inc. , 508 U.S. at314-15.
----------------------------------------------------------------------------------
page 3
3. While duly recognizing the courts’ authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress. See, e.g. , Nature ‘s Daily. v. Glickman, 1999 WL 158 1396, at *6; State University of New York v. Anderson, 1999 WL 680463, at *6; Rojas v. Fitch, 1998 WL 457203, at *7; United Food and Commercial Workers Union Local 75i v. Bro·wn Group, 1995 WL 938594, at *6.
The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329 (2006) (explaining that, in granting relief, the courts ‘·try not to nul lify more of a legislature’s work than is necessary” because they recognize that’” [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people’” (alteration in the original) (quoting Regan v. Time, inc. , 468 U.S. 641, 652 (1984) (plurality opinion))); Turner Broadcasting System, inc. , 512 U.S. at 665-66. The “Court accords ‘ great weight to the decisions of Congress”‘ in part because “[t]he Congress is a coequal branch of government whose Members take the same oath [judges] do to uphold the Constitution of the United States.” Rostker v. Goldberg, 453 U.S. 57,64 (1981) (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 (1973)). These principles of deference are fully applicable when Congress legislates in the commercial sphere. The com1s accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends. See, e.g. , NLRB v. Jones & Laughlin Steel Corp. , 301 U.S. 1, 32 (1937); McCulloch v. Matyland, 17 U.S. (4 Wheat.) 316, 408 (1819). See also Thomas More Law Center v. Obama, 651 F.3d 529, 566 (6th Cir. 20 11) (Opinion of Sutton, J.); Seven Sky v. Holder, 661 F.3d 1, 18-19 (D.C. Cir. 201 1) (Opinion of Silberman, J .)
The President’s remarks were fully consistent with the principles described herein.
[Filed and served via ECF]
Sincerely,
Eric H. Holder, Jr.
Attorney General”
Originally posted by xuenchen
He says the courts do in fact HAVE the “authority”
To review and overturn Federal laws !!!!
Reality Check ..... in progress !!
Originally posted by Indigo5
Originally posted by xuenchen
He says the courts do in fact HAVE the “authority”
To review and overturn Federal laws !!!!
Reality Check ..... in progress !!
Straw man ...The President never said otherwise in any way, shape or form.
Reality check? I doubt it...But hope springs anew each day that the GOP will come back to earth.
BTW - The court can only overturn "unconstitutional" laws. They do not have any authority to overturn any law unless it is on demonstarted constitutional grounds.edit on 5-4-2012 by Indigo5 because: (no reason given)
Originally posted by Jean Paul Zodeaux
reply to post by xuenchen
Actually Indigo has a point. It may not be the point I am about to make, but the problem with this current challenge to the health care bill is that it is an ex-ante argument (before the fact) and it is much harder to prove that rights will be violated than it is to make an ex-post (after the fact) argument showing that rights have indeed been violated.
I think they were arguing whether or not the "Mandate" was a "Tax".
The "ex-ante argument" may in fact save ObamaCare from the guillotine.
(b) Taxpayer Notwithstanding section 7701 (a)(14), the term “taxpayer” means any person subject to a tax under the applicable revenue law.
(14) Taxpayer The term “taxpayer” means any person subject to any internal revenue tax.
Originally posted by xuenchen
Originally posted by Indigo5
Originally posted by xuenchen
He says the courts do in fact HAVE the “authority”
To review and overturn Federal laws !!!!
Reality Check ..... in progress !!
Straw man ...The President never said otherwise in any way, shape or form.
Reality check? I doubt it...But hope springs anew each day that the GOP will come back to earth.
BTW - The court can only overturn "unconstitutional" laws. They do not have any authority to overturn any law unless it is on demonstarted constitutional grounds.edit on 5-4-2012 by Indigo5 because: (no reason given)
Well at least Thee Administration cleared up all that.
""The court can only overturn "unconstitutional" laws""
That was the whole point.
Originally posted by Jean Paul Zodeaux
reply to post by xuenchen
I think they were arguing whether or not the "Mandate" was a "Tax".
This is so. It was, I think, a tremendous mistake made by Congress to put the collection of fines in the hands of the IRS. In doing so, the question of whether this is a tax is a valid question. It is fairly well determined that this is not a revenue raising scheme in that the fines imposed are intended to prevent "scofflaws" from "evading" this legislative mandate and if the threat of steep fines actually works then no revenue will be raised, thus it is not a tax. Given that it is not a tax, why has the collection of the fines been placed in the hands of the IRS?
Neither the Obama administration nor the private parties challenging the 2010 health law has asked the court to find that the tax law blocks them from hearing the case. Instead, the court appointed Washington lawyer Robert Long to make that argument in a 90-minute hearing Monday morning.
That is why President Obama specifically expressed "his confidence" that the court would not overturn a "duly constituted" law. There was nothing in his remarks that was inconsistent with precedent or the SCOTUS's powers.
He specifically qualified his remark with "duly constituted" and his confidence that the SCOTUS would agree.
These judges that challenged the remarks are bright enough to recognize the wording of the remarks, which means they were playing politics, which is dissapointing to see from judges, but alas...that seems to be the world we live in these days.
Originally posted by xuenchen
reply to post by Indigo5
That is why President Obama specifically expressed "his confidence" that the court would not overturn a "duly constituted" law. There was nothing in his remarks that was inconsistent with precedent or the SCOTUS's powers.
He specifically qualified his remark with "duly constituted" and his confidence that the SCOTUS would agree.
These judges that challenged the remarks are bright enough to recognize the wording of the remarks, which means they were playing politics, which is dissapointing to see from judges, but alas...that seems to be the world we live in these days.
And that makes people wonder why Holder didn't simply ignore the court order.
Maybe The Admin wants something in writing afterall.
Holder's response was professional ettiquete, whatever he might be able to easily assume about the judges motivations, that is just assumption and he should (and did) respond with the assumption first that they were genuinely confused, no matter how unlikely that would appear. So he responded to thier request with specific clarity and citations as if they were asking a legitimate question despite the likely urge to tell them to ef off. He did end the letter with something along the lines of "nothing in the Presidents remarks were inconsistent with understood powers of the courts" or something like that...a professional way of saying wtf are you guys talking about.
Originally posted by Jean Paul Zodeaux
reply to post by Indigo5
I wholeheartedly agree, although I would clarify that ex-ante is not limited to taxes alone. This is why I have been unwilling to celebrate any "victory" until one is rendered, and cannot help but remain suspicious of the Plaintiff's that have brought this case forth. This being a conspiracy site, I don't mind suggesting that there are less than noble people out there who would bring forth cases with the express purpose of failing to establish case law in favor of the the bill.
Originally posted by xuenchen
reply to post by Indigo5
Holder's response was professional ettiquete, whatever he might be able to easily assume about the judges motivations, that is just assumption and he should (and did) respond with the assumption first that they were genuinely confused, no matter how unlikely that would appear. So he responded to thier request with specific clarity and citations as if they were asking a legitimate question despite the likely urge to tell them to ef off. He did end the letter with something along the lines of "nothing in the Presidents remarks were inconsistent with understood powers of the courts" or something like that...a professional way of saying wtf are you guys talking about.
Unless of course a conspiracy exists.
Perhaps Obama's evasive wording was bait to attract exactly what happened.
Entice a high court to question something and demand something.
Now maybe Holder can claim the Court was over stepping authority ?
Or, abuse of power ?
Is that even possible ?
Maybe even the court order was unconstitutional ?
Hmmm.