Holder says court power to review laws 'beyond dispute'

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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.

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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 !!

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.

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.

Can the courts address Executive orders in the same manor ?

You know that will be asked sooner or later.

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.

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 agree.

The fact that the actual "Mandate" has not taken effect yet is an issue !!

I think they were arguing whether or not the "Mandate" was a "Tax".

That in itself may have put Obama in a political or image catch22.

He had promised not to impose new "Taxes" on people with incomes

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?

If the IRS is the collection agency of this fine, no due process of law will exist at all. The IRS will simply levy the fine along with any "income" tax bill and demand payment. If an individual challenges it, that individual will be invited to enter into a "tax court" to dispute the fine. This scheme is absurdly unconstitutional.

The "ex-ante argument" may in fact save ObamaCare from the guillotine.

The "ex-ante" argument may backfire and the SCOTUS may uphold the legislation as Constitutional. If this is the case, this may convince the People that the issue is "well settled" and no more challenges brought against it. However, just because an "ex-ante" argument was brought before the Court does not mean that this precludes "ex-post" arguments once the mandate is imposed upon People.

Because it is the IRS doing the collection of fines, this runs the risk of unfairly holding only the "taxpayer" liable for the law:

(b) Taxpayer Notwithstanding section 7701 (a)(14), the term “taxpayer” means any person subject to a tax under the applicable revenue law.

The "taxpayer" has been statutorily defined by Congress in the tax code not once, but as the above definition indicates twice!

(14) Taxpayer The term “taxpayer” means any person subject to any internal revenue tax.

When these statutorily defined "taxpayers" learn that there are non-taxpayers out there flipping the bird at the federal government and refusing to acquiesce to the health care mandate, this becomes a demonstrable violation of the "taxpayers" rights, as even "taxpayers" have a reasonable expectation that this health care mandate applies to all, "taxpayer" and non-taxpayer alike. If any "taxpayer" can show that a non-taxpayer has escaped the punitive fines, this inherent unfairness - given it is not a tax - flies in the face of equality under the law.

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.

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 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?

This pickle led to the unusual case of both the Solicitor General and the Plaintiff arguing on the same side...that the fine was not in fact a tax...if it was...then Ex Ante would prohibit the case from moving forward....as Ex Ante is specifically related to taxes.

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.

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.

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.

Wow, Holder is still trying to tell the Judicial Branch how to do their job. Looks like there is a lot of spite and contempt in that letter. I wonder how the judges will take it?

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 etiquette, 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 President’s remarks were inconsistent with understood powers of the courts" or something like that...about as close as he is going to get saying wtf are you guys talking about.

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.

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.

I don't think it is conspiracy, but rather idealogical fervor at the expense of strategic thought. There are some on the right that view challenging the law before the elections to be a poor strategy politically as well as some conservative legal scholars that felt it would have been a more sound case after more of the law had gone into effect. Whether the eagerness to challenge the law as soon as possible in the SCOTUS was a good strategy...we'll know in June.

My personal prediction is Kennedy swinging and the law being upheld, but we have a wait in front of us to find out.

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.

Not to be short...but none of the above are possible. Courts can ask for opinions from the justice department for any inane thing they like, it might be embarrassing at times, but it is never grounds for abuse of power etc. Inquiries are not "unconstitutional"...

Holder did take the opportunity in the letter to provide a litany of case laws and citations describing the powers of and limitations of the judicial branch over history...so if you were to dig a little it would give light to where the Administration thinks courts should draw they line between "Judicial Activism" and "Judicial Restraint"...but in the end the SCOTUS will do what it chooses to with little consequence until the next appointment to the court.

reply to post by Indigo5


It may or may not be a conspiracy. I generally do not buy into conspiracy theories, but there is a long history of case law that I have read the strikes me as Plaintiff's making boneheaded arguments, and how boneheaded arguments actually make it all the way up to the Supreme Court is suspicious. My fear is certainly that Kennedy will swing in favor of upholding the legislation given the majority needed.

However, as I have stated before bears repeating, if this ex-ante strategy fails this does not mean that the courts can just simply deny victims - if there are indeed victims...and I'm inclined to believe there will be - the right to a redress of grievances with an argument that the Supreme Court heard the arguments before the legislation even went into effect and decided that no rights would be violated, so stuff it!

Individual rogue judges may try to go down this road - albeit a bit more respectful than I just presented it...but maybe not...but all they will be doing is going on record for denying and disparaging the rights of victims, which will certainly be ground for appeal.

I don't see how an ex-ante ruling can bind lower courts when hearing ex-post rulings, but if the lower courts do believe they are bound by this - admittedly speculative ruling that has not yet been rendered - their denials of standing will be grounds for appeal, which may find its way all the way back up to the Supreme Court.