Pretty much everyone is piling on President Obama in connection with his airy dismissal of the concept of judicial review. The Department of Justice backtracked today in the form of a letter from Eric Holder to the 5th Circuit panel that asked for clarification of DOJ’s position on that topic. In his letter, Holder admits the obvious:
The power of the courts to review the constitutionality of legislation is beyond dispute. … The Supreme Court resolved this question in Marbury v. Madison, 1 Cranch 137, 177-78 ( 1803). In that case, Case: 11-40631 Document: 00511812922 Page: 1 Date Filed: 04/05/2012 the Court held that ” [i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury, 1 Cranch at 177. …
Where a plaintiff properly invokes the jurisdiction of a court and presents a justiciable challenge, there is no dispute that courts properly review the constitutionality of Acts of Congress.
Holder inserted the foreseeable boilerplate about statutes being entitled to a presumption of constitutionality, etc. No quarrel with that. But he concluded with this howler:
The President’s remarks were fully consistent with the principles described herein.
But they were not. Obama said:
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.
There is no way to put Obama’s statement next to Marbury v. Madison and claim they are consistent. For Holder to assert that they are is almost childish.
Michael Ramirez pictures Obama as the dunce that he increasingly appears to be: