Holder: Power of the Court is ‘Beyond Dispute,’ But ‘Deference’ To Congress Required
By Elizabeth Murphy | April 5, 2012 2:46 pm

Eric Holder responded Thursday to a Fifth Circuit Court of Appeals judge in Texas who demanded the Attorney General send him a letter explaining his stance on the federal court’s ability to strike down laws passed by Congress.

Holder wrote that the Justice Department follows the 200-some years of precedent in Marbury v. Madison, giving the court full judicial review and authority. But he also said that there is precedent for acts of Congress to be considered “presumptively constitutional,” and there is a heavy burden to overturn any such acts, he wrote.

“These principles of deference are fully applicable when Congress legislates in the commercial sphere,” the attorney general wrote in the three-page, single-spaced letter (a format requested by the judge.)

He continued: “The power of the courts to review the constitutionality of legislation is beyond dispute.”

Federal Appeals Judge Jerry Smith, who was appointed by President Ronald Reagan, asked Tuesday, during a separate health care case in Houston, whether the DOJ recognized the court’s authority to strike down federal laws. Smith said he was rankled by President Barack Obama’s earlier remarks in which he seemed to warn the conservative-dominated Supreme Court not to strike down the landmark Affordable Care Act.

Obama on Monday said the Supreme Court would be taking an “unprecedented, extraordinary step” if it struck down the health care law, adding that if would be a result of “judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”

Holder wrote in the letter that “the President’s remarks fully consistent with” the Justice Department’s understanding of the long-standing principles governing judicial review.

The letter can be viewed here.

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