Holder: Judicial review 'beyond dispute'

[PoliticAverse]

Source: United Press International

WASHINGTON, April 5 (UPI) -- The courts' review of a law's constitutionally is "beyond dispute" but the executive branch has urged deference to acts of Congress, the top U.S. attorney said.

In a letter to the 5th U.S. Circuit Court of Appeals, Holder clarified its position on judicial review after President Obama suggested Monday it would be "unprecedented" for the U.S. Supreme Court to overturn the Affordable Care Act, his signature healthcare reform law, The (Oklahoma City) Oklahoman reported.

"The power of the courts to review the constitutionality of legislation is beyond dispute," Holder wrote to the appeals court, which is hearing a separate challenge to the healthcare law.

"The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed," Holder wrote. "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"



Read more: http://www.upi.com/Top_News/US/2012/04/05/Holder-Judicial-review-beyond-dispute/UPI-71941333654830/

[PoliticAverse]

1. Holder's entire letter (.pdf) can be found here...

http://blog.pacificlegal.org/wordpress/wp-content/uploads/2012/04/Obamaletterbrief.pdf

[elleng]

2. Thanks, Averse.

[WheelWalker]

3. Personally, I found the President's remarks to be unremarkable.

Thanks for posting a link to DOJ's reply.

[shawn703]

4. Was it three pages, single spaced?

I hope not. I don't agree with any kind of response being given to this childish demand.

[PoliticAverse]

5. Yes, it was. n/t

[Pirate Smile]

6. Nope. I heard on MSNBC that it was 2 1/2 pages.

Heh

[Celebration]

7. why not just increase the font size?

That judge is crazy. This only makes the judge look bad and petty. Not sure why he did this.

[Dont call me Shirley]

8. The USSC does not have the constitutional right to jugde on the constitutionality

of laws passed by the democratically elected legislature and signed by the democratically elected president. This power was usrped by the SC in the 1803 Marbury vs Madison. President Thomas Jefferson did not think this was a good decision, being an intergral part of the writing of the US Constitution specifically did not give the USSC this right.

[Liberal_Stalwart71]

9. And to that point...

http://blog.pacificlegal.org/wordpre...etterbrief.pdf

Read, especially the information under Item #3. It is a brilliant response, ackowledging that the Executive Branch (i.e., the President) has often made public statements regarding the judicial review function of the Judicial Branch (i.e., the Courts).

What the president said the other day was neither inappropriate nor unprecedented.

This is what happens when right wing judges are appointed to the bench with political axes to grind.

It is further evidence for why elections matter!!!

[AZ Progressive]

10. The Courts are the one that have corrupted this country

From Marbury vs Madison to Santa Clara County vs Southern Pacific to Dodge vs Ford Motor Company to Bush vs Gore to Citizens United, the Courts are the ones that have ultimately corrupted this nation. The courts are the unelected body and thus, through their recognized powers and stare decisis, they have taken up king and queen like powers.

And yes, the Constitution never stated that the Supreme Court could declare a law unconstitutional. The Supreme Court was never intended as being a powerful body anyway, its jurisdiction was supposed to be narrow (was meant mostly for settling inter-state disputes). The Supreme Court has taken its powers by its own self.

[fasttense]

35. Very well said AZ

And don't forget Dred Scott v. Sanford which many people believe led to the civil war.

"Led by Chief Justice Roger B. Taney, the court declared that all blacks -- slaves as well as free -- were not and could never become citizens of the United States. The court also declared the 1820 Missouri Compromise unconstitutional, thus permitting slavery in all of the country's territories."

Look how they used that 1803 power that they took onto themselves in an attempt to make slavery legal throughout the US, forever.

Thank God they failed.

[rsdsharp]

11. It's certainly true that the express power of Article III

judges to decide the constitutionality of statutes does not appear in the Constitution. Jefferson, however, had no integral part in the writing of the Constitution. He was serving as minister to France at the time it was drafted.

[onenote]

14. So if Congress passes a law that is inconsistent with the constitution on its face, what happens?

Let's say a democratically elected House and Senate pass, and the President signs (or the President vetoes, but Congress overrides) legislation that states: the worship of frogs is hereby established as the sole and official religion in the United States and anyone engaging in the exercise of any religious practices not consistent with the tenets of Frogism, which are declared hereby to include the licking of toads each day in the presence of an armed member of the military, shall be charged with a criminal offense and subject to execution by starvation.

And you refuse to lick a frog. And you are arrested and brought to trial. And you can't deny you didn't lick the frog.Now what. The law on its face violates any number of constitutional clauses. What is the role of the courts, which are expressly given "judicial power" extending to "all cases, in law or in equity, arising under this Constitution."

What does a court do if it can't conclude that the law is inconsistent with the Constitution and thus uneforceable.

PS - I realize I'm probably talking to myself since you almost certainly won't respond. But hope springs eternal....

[elleng]

16. I'll respond, onenote.

What happens? Chaos. Hence, Marbury v Madison.

[onenote]

20. Bingo.

To quote the irrefutable logic of that case:

It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.

If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

[elleng]

17. Shirley, this is Article III of the United States Constitution.

One does have to understand what constitutes Cases and Controversies.

Section 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

[izquierdista]

12. Thom? Someone didn't get your message.

Doesn't Thom Hartmann do his show from DC? Maybe he can go over to the Justice Department and give Holder some remedial history lessons.

[elleng]

18. Thom's the one who needs the lessons.

[izquierdista]

22. I am in the Thom camp on this one.

Because I was taught this lesson in my high school civics course. And it's stuck with me ever since.

[onenote]

23. You were taught that the Supreme Court lacks the power to decide if a law is consititutional?

Wow.

[elleng]

27. REALLY!!!

[izquierdista]

29. That they usurped that role

My civics teacher (who would be 97, if he were alive today) went over Marbury v. Madison very thoroughly. Had his own way of scribbling EL/J on the blackboard to indicate that the executive and legislative branches had become subservient to the judicial, since they decided that they would be the ones to interpret all the laws. Referred to them as the "first among equals". He made us think.

I get the idea that civics has gone out of fashion in high schools.

[liberalhistorian]

13. Had I been Holder, I would have told this

so-called "judge" in no uncertain terms where to stuff it and how to handle it after he'd stuffed it. There was NO legal reason for the DOJ to have complied with such an unbelievable demand, none whatsoever. That judge needs to be removed and disbarred for incredibly unprofessional, unethical, unjudicial conduct and abuse of judicial power. Period.

WTF is happening with the federal judiciary in this country lately? There was the federal judge in Montana who used his government computer to email a horribly racist, offensive joke against Obama that "warmed his heart", which alone should have been a removable, dis-barrable offense. They are so blinded by their hatred of a black man in the WH that it's resulting in an unprofessional meltdown.

[onenote]

15. Which is why you'll never be Holder.

The letter actually is a brilliant document that takes the opportunity given by the Judge's unhappiness with President Obama's declaration to repeat essentially the same point over and over for three pages: that court's have the power to strike down laws as unconstitutional but should be cautious in exercising that power. With citations and everything.

[elleng]

19. Right, onenote; Holder did a fine job.

[onenote]

21. and more people will read that letter and hear about what it says

than ever will have read or heard the arguments in the underlying briefs. Its a terrific sythesis of both a legal and a political argument into an easily digested whole.

And it further makes the judge look like an idiot.

[elleng]

25. I agree. Hope DUers will 'get it.'

[WheelWalker]

24. I agree with you and onenote. I viewed the request, as apparently did Holder,

as a request for supplemental "issue briefing". Such a request is hardly irregular in my experience, let alone grounds for removal and disbarment. IMO, Holder did a fine job in response. And FWIW, I have always taught that if one can't brief an issue in 2 pages, one doesn't understand the problem.

[onenote]

26. In a brilliant twist, Holder expressly disclsimed that he was filing a supplemental brief

Thereby making it very hard for the other side to ask and receive leave to file a brief, unless the court wants to further embarass itself.

[elleng]

28. GOOD ONE!

[Psephos]

30. Holder didn't write that lettter.

His job was to sign it.

[elleng]

31. His staff wrote it; he approved and signed it.

[liberalhistorian]

32. Oh, I understand that and I agree.

Especially since it makes him and the DOJ look far better and more reasonable than the judge. Which probably drove the nutty judge even crazier. I was just venting, but secondly, trying to make the point that he was in no way whatsoever legally required to comply at all and this judge's hateful partisanship was way beyond unprofessional.

[elleng]

33. May or may not have been 'legally required,'

but sure wouldn't be good tactic to ignore one of the judges sitting on a case wherein DOJ/Administration is a party. (Like when a traffic cop stops one, wisdom is to say, 'Yes, sir.')

[Igel]

34. DOMA.

Roe v Wade.

Lots of other cases in which long-standing tradition and precedent were overturned or attempts are currently underway to overturn legislation.

Cake and the difficulty of both maintaining it on one's plate while simultaneously holding it in one's alimentary canal.

[PoliticAverse]

36. Followup: Eric Holder on ‘Obamacare’ Homework Assignment: ‘It Was Under Three Pages!

The morning after completing a homework assignment for a federal judge explaining the administration’s stance on courts’ role in overturning laws, Attorney General Eric Holder was beaming at how well he thinks he completed his task.

...

"It was under three pages!” Holder exclaimed to ABC News this morning before Obama spoke to women at an economic event at the White House.

Read the rest at: http://abcnews.go.com/blogs/politics/2012/04/eric-holder-on-obamacare-homework-assignment-it-was-under-three-pages/