The U.S. Department of Justice today delivered on time a single-spaced, nearly three-page letter to the 5th U.S. Circuit Court of Appeals, explaining what most constitutional scholars already know — yes, courts have the authority to determine whether or not laws will be struck down.
The 5th Circuit requested the letter on Tuesday, 24 hours after President Obama said in a press conference that if the U.S. Supreme Court strikes down his signature health care law, it would be an “unprecedented” instance of “judicial activism.”
According to the letter, penned by Attorney General Eric Holder, “the power of the courts to review the constitutionality of legislation is beyond dispute,” though it should only be exercised in “appropriate cases.”
Holder went on to say “the Department (of Justice) 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.”
He also said “the president’s remarks were fully consistent with the principles explained herein.”
In an interview with the Fox News Channel, American Center for Law and Justice President Jay Sekulow said Holder “wisely said the courts have that right, and tried to cover the president at the same time.
In a somewhat testy exchange with the White House press corps, Obama spokesman Jay Carney said the president “was not understood by some people … he is a law professor, and he spoke in shorthand.”
Though some pundits, including one of Obama’s former Harvard Law School professors, have dismissed the incident as a case of the president “not saying what he meant,” it’s not the first time Obama has offended members of the judiciary. During his 2010 State of the Union address, he publicly chastised the Supreme Court justices — seated just feet away from him — about their ruling on the McCain-Feingold campaign finance case. Since then, some of the judges have refused to attend State of the Union speeches.
The silver lining in the situation, said Kelly Shackelford, president of the Liberty Institute, a religious-liberties law firm in Plano, Texas, is not only that it’s given citizens the opportunity to become better educated about constitutional law, but that it’s unlikely it will sway the Supreme Court one way or the other.
“I don’t think it’s going to change their minds about this one iota,” he told CitizenLink. “If anything, they may be more likely to hunker down harder than ever on the Constitution.”
For More Information
Read the Department of Justice’s letter.
Watch a video clip of the 2010 State of the Union Address.