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Attorney General: Courts can strike federal laws, but must presume validity

Attorney General: Courts can strike federal laws, but must presume validity

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In a memorandum to a panel of federal judges hearing a challenge to the federal health care law, U.S. Attorney General Eric Holder backed comments made recently by President Barack Obama that courts ought to tread lightly when considering challenges to laws passed by Congress.

But Holder said the president’s comments in no way reflected a change in the Justice Department’s views on judicial authority, nor did they imply that courts do not have authority to consider constitutional challenges to federal laws.

“The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago,” Holder said in the memo to 5th Circuit Judges Jerry E. Smith, Emilio M. Garza and Leslie H. Southwick.

The memo was requested by Smith last week during a hearing in a challenge to the health care law.

According to media reports, Smith became concerned about comments made by President Barack Obama after the U.S. Supreme Court heard oral arguments on the constitutionality of the health care law. In those comments, Obama said that overturning the federal law or its individual coverage mandate would amount to “judicial activism.”

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said during a news conference April 2.  
“And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint – that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.”

After the remarks, Smith asked the Justice Department to clarify its position on courts’ authority to rule on constitutional challenges to federal laws, and whether the Department’s stance on judicial authority had changed.

Though Holder emphasized that the “power of the courts to review the constitutionality of legislation is beyond dispute,” he stressed that such power should “only be exercised in appropriate cases.” Further, Holder wrote, in those cases, “Acts of Congress are [to be considered] presumptively constitutional.”

“The President’s remarks were fully consistent with the principles described herein,” Holder wrote at the end of the three-page memo.

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