As you probably know, a three-judge panel on the Fifth Circuit Court of Appeals ordered Attorney General Eric Holder to submit a letter explaining whether his office adheres to the outlandish position on the Supreme Court and judicial review recently expressed by President Obama.
Leaving aside whether the Fifth Circuit should have taken this unusual step, the AG’s response was disrespectful and disturbing. Holder did affirm that the Supreme Court has the right of judicial review (how odd to be writing these words 209 years after Marbury v. Madison made it indubitably clear that this is the role of the Supreme Court). But Holder never rejected the president’s bizarre claims.
In fact, after admitting that the Court is charged with judicial review, Holder began to, in effect, warn the Supreme Court not to overturn the Affordable Care Act, known as Obamacare. As Grace-Marie Turner writes on National Review Online:
In his letter, Holder continued to press points that the president implied in his controversial statement on Monday.
Holder said that the Court is required to assume that any law passed by Congress is constitutional. The courts must consider that “Acts of Congress are ‘presumptively constitutional.’”
Further, “the Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments,” Holder continued — i.e., Congress and the president know best.
Holder also warned against the Supreme Court’s striking down the whole law if part (e.g., the individual mandate) were declared unconstitutional. Quoting a 2006 case, Ayotte v. Planned Parenthood of Northern New England, Holder wrote: “In granting relief, the courts ‘try not to nullify more of a legislature’s work than is necessary’” because they recognize that a “‘ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’”
The Court is required to determine if a law is in compliance with the Constitution. I think we all hope that Congress will only pass laws that are constitutional but, when they don’t, the Court is there to rule. The Court is supposed to “frustrate the will” of elected representatives who don’t follow the founding document of our government.
Conservatives have complained for years that judges on activist courts do what they want to and concoct constitutional reasons later. This is very different from trying to pervert the functioning of the third branch of government. We saw Obamacare rammed through Congress with deals and arm twisting; now, on behalf of that same law, we are seeing the historic arrangement of governmental power in the U.S. challenged.
Charles Krauthammer has a great column on what is behind the attack on the Coirt:
Democrats are reeling. Obama was so taken aback, he hasn’t even drawn up contingency plans should his cherished reform be struck down. Liberals still cannot grasp what’s happened — the mild revival of constitutionalism in a country they’ve grown so used to ordering about regardless. When asked about Obamacare’s constitutionality, Nancy Pelosi famously replied: “Are you serious?” She was genuinely puzzled.
As the coming battle with the Court indicates, we’re in a very ugly period of our history. I urge you to read Peggy Noonan’s brilliant column on why the president is behaving as he is and why Peggy yearns for some of the grace of the past. In particular, she cites a difficult Supreme Court John F. Kennedy had to deal with and how very different a man he was from President Obama. The column was the best thing I read last week. Please don’t miss it.