Separation of Powers

AG Holder Letter to 5th Circuit Affirms Judicial Power to Strike Unconstitutional Laws, Backs Obama

In a letter Thursday to three federal appeals court judges, U.S. Attorney General Eric Holder has reiterated what he calls “the long-standing, historical position of the United States regarding judicial review of the constitutionality of federal legislation.”

Although the judicial branch, appropriately, often opts to defer to the judgment of Congress, it nonetheless has the power to strike laws that it determines to be unconstitutional, Holder writes. His unusual letter was requested by the New Orleans-based 5th U.S. Circuit Court of Appeals panel on Tuesday after President Barack Obama suggested that a U.S. Supreme Court ruling against the administration’s position in a pending case over the constitutionality of his health care reform law would constitute extraordinary “judicial activism.”

Think Progress provides a link to the AG’s missive (PDF).

“While duly recognizing the courts’ authority to engage in judicial review,” Holder wrote, “the executive branch has often urged courts to respect the legislative judgments of Congress.” Tuesday’s remarks by President Obama, he concludes, “were fully consistent with the principles described herein.”

Earlier coverage: “Obama Says Overturning Health Care Law Would Be ‘Extraordinary’ Judicial Activism” “Fed’l Appeals Judge Tells DOJ to Write Memo by Thursday Explaining Obama ‘Judicial Activism’ Claim” “Holder Backs Obama’s ‘Judicial Activism’ Remark, Says DOJ Will Give 5th Circuit Judge Required Memo”

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