The Justice Department has filed the letter it was directed to write by a panel of appeals court judges in Texas about the authority of federal courts to strike down acts of Congress. The letter states well-settled law about the issue, but in doing so, it manages to make many of the points the Obama administration has stressed in litigation over the health-care case.
During oral argument Tuesday over a lawsuit challenging a part of the health law, Judge Jerry Smith of the Fifth Circuit Court of Appeals in Texas sought the following: "A letter stating what is the position of the attorney general and the Department of Justice in regard to the recent statements by the president, stating specifically and in detail, in reference to those statements, what the authority is of the federal courts in this regard in terms of judicial review."
The letter in response, signed by Attorney General Eric Holder, says, "The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed."
"The power of courts to review the constitutionality of legislation is beyond dispute," he says, citing cases from Marbury v. Madison in 1803 up to the present day.
But, Holder notes, acts of congress are presumed to be constitutional.
"It falls to the party seeking to overturn a federal law to show that is is clearly constitutional," he writes. What's more, "The Supreme Court has often acknowledged the appropriatness of reliance on the political branches' policy choices and judgments."
"The President's remarks," Holder concludes," were fully consistent with the principles described herein."