In responding to the request of a federal appeals judge in Houston, U.S. Attorney General Eric Holder on Thursday affirmed his department's belief in the time-honored concept of judicial review and said nothing in President Barack Obama's recent comments on a pending Supreme Court decision should be interpreted otherwise.
"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 wrote in a letter to a three-judge panel of the 5th U.S. Circuit Court of appeals that is reviewing a case from East Texas involving an obscure element of the Affordable Care Act, the landmark health care law being challenged as unconstitutional. "The (Justice) Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation."
Justice Jerry Smith, a member of the panel, told a government lawyer earlier this week that he was concerned about the president's comments on the upcoming Supreme Court decision and demanded that the Justice Department submit a three-page letter clarifying its position on the role of courts in reviewing federal laws. Smith claimed the president "has troubled many people" with his comment Monday in support of the health care law. "I 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," Obama said.