'Back Off' High Court, McConnell Tells Obama; Holder Acknowledges Right of Judicial Review

The Washington Times (Washington, DC), April 6, 2012 | Go to article overview

'Back Off' High Court, McConnell Tells Obama; Holder Acknowledges Right of Judicial Review


Byline: Stephen Dinan and Paige Winfield Cunningham, THE WASHINGTON TIMES

The Senate's top Republican on Thursday warned President Obama to back off of the Supreme Court, three days after Mr. Obama appeared to question whether the justices had the power to rule his health law unconstitutional.

Ever since Mr. Obama said Monday that it would be unprecedented and extraordinary for the court to overturn a law enacted by a large majority in Congress, the White House has been trying to cool the furor.

On Thursday, the president's press secretary, Jay Carney, said Mr. Obama was using legal shorthand and that was why the president was not clearly understood by some people. Mr. Carney gave the explanation about the same time Attorney General Eric H. Holder Jr. was filing a brief with the 5th U.S. Circuit Court of Appeals affirming that the administration does, andalways has, accepted judges' right to rule on the constitutionality of laws.

The long-standing, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed, Mr. Holder wrote, citing cases dating back to Marbury v. Madison, the 1803 case that most legal analysts say solidified the doctrine.

Still, the Republicans sensed an opening as more legal scholars, including one of Mr. Obama's own teachers at Harvard Law School, professor Laurence Tribe, said the president misspoke.

Senate Minority Leader Mitch McConnell, who told Mr. Obama to back off, said Mr. Obama's initial comments seemed to be trying to pressure the court to rule in his favor.

The president crossed a dangerous line this week. And anyone who cares about liberty needs to call him out on it, the Kentucky Republican said. The independence of the court must be defended.

Mr. Obama ignited the controversy when, at a news conference with visiting Mexican President Felipe Calderon and Canadian Prime Minister Stephen Harper, he said he expected his health care law to be upheld.

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, he said, adding that it could be considered judicial activism if the justices reversed the law.

On Tuesday, speaking to news editors in Washington, he narrowed his claim specifically to cases under the commerce clause, saying that it has been decades since the court overturned a law that dealt with Congress' power to control interstate commercial transactions.

Let me be very specific: We have not seen a court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce - a law like that has not been overturned at least since Lochner, right? …

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