The Department of Justice released a memo written at the request of the 5th Circuit Court of Appeals affirming the federal courts' right to overturn Congressional laws in the wake of Obama's much politicized comments on the topic that reads like Attorney General Eric Holder had to write an A.P. U.S. History paper. Holder writes:
"The power of the courts to review the constitutionality of legislation is beyond dispute. The Supreme Court resolved this question in Marbury v. Madison, 1 Cranch 137, 177-78 (1803)."
"The Court indicated that its inquiry was prompted by recent statements of the President ... The President's remarks were fully consistent with the principles described herein."
Obama created a fury on the right when he said this week he was "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." Conservative critics like Michelle Malkin declared that Obama didn't understand the concept of judicial review. Liberals, like Washington Post's Greg Sargent, reassure us that the President only meant "that the Court might not want to toss out a major federal law for the first time in decades without really good reasons."
This all got ratcheted up a notch when the conservative-leaning 5th Circuit Court of Appeals rather snarkily requested the Dept. of Justice submit a memo describing its position on whether courts have the right to judicial review. Mother Jones's Kevin Drum complained "These judges are acting like a middle school teacher handing out punishment to a student because of something her father said at a city council meeting the night before."
We don't think Holder will change anyone's mind on the meaning behind the president's words. This is already too ossified along typical party lines. (Though Politico notes that even some conservatives wondered at the 5th Circuit Court's move.) But with this memo on the record, it's official that quite literally everyone here agrees on the court's right to judicial review. They just disagree on whether they agree. Ah, politics.
This article is from the archive of our partner The Wire.
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