Attorney General Eric Holder, responding to the Thursday deadline set by a federal court, assured the judges that the Obama administration believes the courts have the power to strike down congressionally approved laws they deem unconstitutional, despite President Obama’s earlier claims to the contrary.
“The long-standing, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed,” Holder wrote to the Republican-appointed federal judge in Texas.
Holder was forced to explain the administration’s position on judicial review after Obama claimed that it would be “unprecedented” and “extraordinary” if the Supreme Court — described as an “unelected group of people” — struck down his health care reforms, which were approved by Congress.
The president’s remarks prompted 5th Circuit Court of Appeals Judge Jerry E. Smith, who was hearing an unrelated case on the health care law in Texas, to demand a Justice Department explanation of those remarks by Thursday. The White House immediately began to back away from Obama’s characterization of the judicial process, and Obama, who once taught constitutional law, eventually agreed that the Supreme Court “is the final say on our Constitution.”
Despite the backtracking, Republicans kept up criticisms of Obama for bullying the courts.
“The president crossed a dangerous line,” said Senate Minority Leader Mitch McConnell, R-Ky.
“Regardless of how the justices decide this case, they’re answerable, above all, to the Constitution they swore to uphold,” he said. “The fact that this president does not appear to feel similarly constrained to respect their independence doesn’t change that one bit. So respectfully, I would suggest the president back off.”
Administration officials said Obama’s original remarks lacked proper context and characterized those statements as an “unremarkable” observation of the last 80 years of legal history.
“The [Justice] 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,” Holder wrote in the three-page, single-spaced explanation the judge demanded.
Still, Holder reminded the justices that the courts hold the burden of proof — and therefore Congress gets the benefit of the doubt — in deciding the constitutionality of legislation approved by lawmakers.
That was the point that Obama was trying to make, administration officials said.
“The executive branch has often urged courts to respect the legislative judgements of Congress,” Holder wrote. “The court accords great weight to the decisions of Congress,” and “accords particular deference” when evaluating legislation that has national economic implications, he added.
The Supreme Court, meanwhile, has remained mum on the president’s remarks.
“We don’t respond to criticism,” Justice Antonin Scalia told an audience at the University of Southern Mississippi on Wednesday, according to the Associated Press. “Judges use what’s known as the rope-a-dope trick. It’s judicial tradition.”
