Holder answers judge, defending both judiciary and Obama health care remarks

Attorney General Eric Holder rose to the defense of President Obama on Thursday over remarks he made earlier this week questioning the authority of the US Supreme Court to potentially overturn his health-care reform law.

“The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed,” Mr. Holder said in a letter to a three-judge federal appeals court panel in Texas that had raised questions about the president’s comments.

In a highly unusual exchange between the judiciary and the Obama administration, the judges had asked a government lawyer on Tuesday to produce – by Thursday noon – a three-page, single-spaced explanation of its position on the proper role of the courts in assessing federal legislation.

In his three-page, singled-spaced explanation, Holder quoted Chief Justice John Marshall’s 1803 landmark decision Marbury v. Madison: “It is emphatically the province and duty of the judicial department to say what the law is.”

But the attorney general also said in the letter that judges have traditionally granted deference to acts of Congress, and approached challenges to statutes with a presumption that the law fully complies with constitutional requirements. “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,” Holder said.

He told the Fifth Circuit jurists: “The president’s remarks were fully consistent with the principles described herein.”

Critics have suggested that Obama may have been seeking to intimidate the justices, trying to influence the outcome of a pending case. Others say he appears to be laying the groundwork to later accuse the justices of engaging in election-year politics rather than legitimate constitutional review.

The Fifth Circuit-Justice Department episode began in the midst of an oral argument on Tuesday, when Judge Jerry Smith, a Republican appointee on the Fifth Circuit, said he was concerned about Obama's statements the prior day suggesting that it would be improper judicial activism should the US Supreme Court strike down the Patient Protection and Affordable Care Act.

Since his initial statement, the president has backed off his use of the term “activism,” and has suggested that the courts have the authority to assess whether acts of Congress comply with constitutional limits and requirements.

Nonetheless, the Fifth Circuit panel instructed a government lawyer to produce an explanation of the Justice Department’s position on the issue.

“The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments,” Holder wrote to the panel.

The high court traditionally “accords great weight to the decisions of Congress,” Holder said, “in part because the Congress is a coequal branch of government whose members take the same oath [judges] do to uphold the Constitution of the United States.”

Holder said principles of deference fully apply when Congress legislates under its authority to regulate national commerce. “The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause,” he said.

Holder’s letter was delivered a few hours after Senate minority leader Mitch McConnell of Kentucky told the Rotary Club in Lexington, Ky., that Obama’s comments “should trouble every American” and that his comments demand an explanation from the White House.

“The president crossed a dangerous line this week. And anyone who cares about liberty needs to call him out on it,” Senator McConnell said.

“Apparently, President Obama didn’t like the tenor of some of the questions the justices asked about the health-care law during last week’s hearings,” McConnell said.

“The president did something that as far as I know is completely unprecedented: He not only tried to publicly pressure the court into deciding a pending case in the way he wants it decided; he also questioned its very authority under the Constitution,” the senator said.

McConnell said he had no idea how the high court might decide the health-care case. If the court upholds the law, he said, he would be disappointed and would work to repeal it through legislative channels. But McConnell said he would respect the independence of the judiciary.

“Here’s something I won’t do: I won’t mount a political campaign to delegitimize the court in the way some in Congress have been urging this president to do, and in the way he started to do earlier this week,” McConnell said.

“The American people should be able to expect that their president will defend the independence of the court,” he said, “not undermine it.”