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Justice Department Agrees: “The power of the courts to review the constitutionality of legislation is beyond dispute”

by | Apr 6, 2012

By Dave Andrusko

Pro-abortion President Barack Obama and Attorney General Eric Holder

Faced with no alternative, the Obama Justice Department dutifully submitted (as ordered by U.S. 5th Circuit Court of Appeals Judge Jerry Smith) a three-page, single-spaced letter affirming that “The power of the courts to review the constitutionality of legislation is beyond dispute.” The letter was signed by Attorney General Eric Holder.

Judge Smith ordered the response in the midst of oral arguments in Houston on Tuesday in a separate challenge to another aspect of ObamaCare. Alluding back to President Obama’s controversial remarks made Monday, Judge  Smith said Obama’s comments troubled a number of people who have read them as a challenge to the authority of federal courts.

Judge Smith said,

“I’m referring to statements by the president in the past few days to the effect— and I’m sure you’ve heard about them — that it’s somehow for what he termed unelected judges to strike acts of Congress that have enjoyed — he’s referring of course to Obamacare — to what he termed a broad consensus and majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review.”

After putting a hapless Justice Department lawyer through her paces, Judge Jones ordered the response by noon Thursday what was to state ”what is the position of the attorney general and the Department of Justice in regard to the recent statements by the president.”

Earlier this week Holder stuck up for Obama. “I think that you know what the president said a couple of days ago was appropriate.” Speaking at a health care fraud prevention event in Chicago, he added. “I don’t think he broke any new ground in the comments that he made.”

Interestingly the Tampa Bay Times also looked at the President’s remarks, specifically his comment, “If the Supreme Court throws out the federal health care law, it “would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” According to its “Truth-O-Meter,” the statement was false.

The story can be found here.  In a nutshell,  the paper made some important (if obvious) conclusions.

First, the “strong majority”—please!

“The bill passed the House 219-212 on March 21,2010. Numerically speaking, neither vote reflects a very large margin of victory. In the Senate, 60 votes was actually the exact minimum needed to prevent a filibuster — not a vote more. And in both chambers, not a single Republican voted for the bill.”

Second, that if the Court threw out ObamaCare it would be “unprecedented.” The Times began with a polite demur:

“This one, we’ll acknowledge, puzzled us. The Supreme Court routinely reviews laws passed by Congress and either upholds or overturns them. For Obama to suggest that such an action would be unique in American history is something of a head-scratcher.”

The paper then cited a comment from a political scientist sympathetic to Democrats, who referred to an addendum Obama tacked on after he received blow-back.  “Obama’s elaboration a day later at least gives us more to think about,” the paper wrote, but going back to what Obama said originally, they concluded the President’s statement was false.

Suffice it to say that not only did many others find the President’s second explanation no more convincing than the first, but either way the President was publicly second-guessing an anticipated outcome only days after the Court had concluded hearing oral arguments over the constitutionality of ObamaCare.

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Categories: ObamaCare