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Holder reaffirms Marbury

Attorney General Eric H. Holder, Jr. told a federal appeals court Thursday that President Obama and his administration do not quarrel with the authority of the federal courts to strike down an act of Congress, but argued that a court should not do so lightly. The letter was filed with a Fifth Circuit Court panel in response to a request on Tuesday for the government’s views.

The highly unusual exchange between the three-judge panel and the head of the Justice Department was apparently set off by remarks the President made on Monday, seemingly questioning the authority of the Supreme Court to strike down some or all of the new federal health care law. One of the judges on the panel, Circuit Judge Jerry E. Smith, apparently took offense at what the President had said and used a hearing on a pending case as a vehicle for challenging the Chief Executive and his administration.

The Circuit Court panel is considering a constitutional challenge by a group of Texas hospitals to a part of the new Affordable Care Act (Circuit docket 11-40631) . Presumably, Judge Smith and his colleagues on the bench wanted to be sure that their authority to decide the case against the law was not being questioned by the government.

Holder’s letter took a slight jab at the demand by the panel for the government’s views on judicial review. He told the panel that his letter was not to be considered a formal legal brief, intending for the judges to accept it as something outside the record of the case. That was at least an implied suggestion that the three judges should not have introduced the judicial review question while pondering the pending case.

The contents of the Attorney General’s letter were no more than a routine recital of long-standing acceptance of the notion that the federal courts do have, in an appropriate case, the undoubted authority to nullify the federal or state law if they find that it conflicts with the Constitution. That principle was established by the Supreme Court in Marbury v. Madison in 1803, and nothing in Holder’s letter questioned that precedent.

At the same time, however, the Attorney General emphasized that no federal court should reach out to strike down a federal law properly passed by Congress, and should never do so unless absolutely necessary.

Recommended Citation: Lyle Denniston, Holder reaffirms Marbury, SCOTUSblog (Apr. 5, 2012, 1:47 PM),