This has been an amazing week of developments, starting with the President’s comments on Monday delegitimizing the authority of the Supreme Court, following the judge of the 5th Circuit Court of Appeals requiring the Department of Justice to explain themselves.
Early in the week the president set off a flurry of reaction when he 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.”
Judge Smith demanded a three page, single space letter from the Department of Justice providing an explanation of the president’s remarks to make sure the administration understands and respects the separation of powers and authority of the Court.
Eric Holder came up with the three page homework assignment, noting in his letter that the power of the courts to review the constitutionality of legislation is beyond dispute.
Here’s what the letter said, “The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause to accomplish constitutional ends… The President’s remarks were fully consistent with the principles describe herein.”
There’s no other answer the Attorney General could have given; taking any different position would have been an earthquake for our constitutional structure. If the president will challenge the judiciary the American system is in trouble.
As a constitutional scholar President Obama knows very well Marbury vs. Madison, he knows the court has the absolute right to determine whether legislation is constitutional or not, yet he still jabbed them, which may have huge political ramifications. President Obama’s strategy was to blame the court if the legislation is struck down, but the DOJ’s letter proves that the Obama administration had to confirm that in fact it would be okay for the Court strike unconsitutional laws down. (duh!)