The Corner

Holder and DoJ Respond to Fifth Circuit Inquiry

Attorney General Eric Holder has responded to an inquiry from a three-judge panel on the Fifth Circuit Court of Appeals, which questioned the Justice Department on President Obama’s remarks about the Supreme Court striking down Obamacare — specifically, whether the president believed that the Court does not have the power to strike down a legislatively approved federal law, and that such a decision would be “unprecedented.”

Holder’s letter in response lays out three separate points:

First, he suggests that “the power of the courts to review the constitutionality of legislation is beyond dispute,” citing Marbury v. Madison. However, Holder notes that “the Supreme Court has further explained that this power may only be exercised in appropriate cases” and “we have argued that this Court lacks jurisdiction to hear the case.”

Secondly, Holder asserts that “in considering such challenges, Acts of Congress are ‘presumptively constitutional,’” and “and the Supreme Court has stressed that the presumption of constitutionality accorded to Acts of Congress is ‘strong.’” Therefore, he argues, “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.”

Finally, Holder suggests that, in some sense, President Obama’s remarks weren’t “unprecedented” either, because “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” and “the Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments.” Moreover, “the courts 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.”

Holder concludes that “the President’s remarks were fully consistent with the principles described herein,” and therefore represented no inappropriate or unorthodox view of the Court’s powers of judicial review.

Patrick Brennan was a senior communications official at the Department of Health and Human Services during the Trump administration and is former opinion editor of National Review Online.


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