Holder: Obama's remarks on judicial review "fully consistent" with precedent

Attorney General Eric Holder, left, and President Barack Obama. CBS

Obama, Holder
CBS

Updated at 3:21 p.m ET

In response to a request from a federal appellate judge, U.S. Attorney General Eric Holder on Thursday offered reassurance that President Obama respects the Supreme Court's ability to interpret the constitutionality of the nation's laws.

In a three-page letter to appeals court judge Jerry Smith, Holder said recent comments from the president are "fully consistent" with longstanding views of judicial review.

Holder's letter is the latest step the administration is taking to clarify remarks Mr. Obama made this week regarding the Supreme Court's consideration of the 2010 health care reform law. Mr. Obama said Monday that if the law were overturned, it would be "unprecedented."

"Ultimately, 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," Mr. Obama said.

Amid criticism the comments did not accurately reflect the court's role, the president sought to clarify his remarks Tuesday, telling a group of journalists that "it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress."

The appellate judge nevertheless asked Holder to clarify the president's position on judicial authority.

Referring to the health care case, Holder wrote to Smith, "The 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."

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Holder went on to explain that Mr. Obama's remarks were in line with the established belief that it is appropriate for the Supreme Court to pay heed to Congress.

"While duly recognizing the courts' authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress," Holder wrote. "The Supreme Court has often acknowledged the appropriateness of reliance on the political branches' policy choices and judgments... 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."

On Thursday, White House Press Secretary Jay Carney said that Mr. Obama was simply making the "unremarkable observation" that since the New Deal era, "there has been a longstanding precedent set where the court defers to Congress and to congressional authority in passing legislation to deal with and regulate matters of national economic significance."

Carney pointed out that health care makes up 15 percent of the national economy, so its national economic significance is not a matter of debate.

In spite of the White House's attempts to play down Mr. Obama's remarks, Senate Republican Leader Mitch McConnell in a speech today charged that they amounted to the beginning of "a political campaign to delegitimize the Court."

"He looked at the line that wisely separates the three branches of government, and stepped right over it," McConnell said at the Lexington, Kentucky Rotary Club. "But what the president did this week went even farther. With his words, he was no longer trying to embarrass the court after a decision; rather, he tried to intimidate it before a decision has been made. And that should be intolerable to all of us."

When asked Thursday whether Mr. Obama would mount a political attack against the court should it overturn the health care law, Carney said, "The president believes that the Supreme Court has the final word on matters of judicial review on the constitutionality of legislation. He would, having been a professor of law."

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