Department of Justice files response to Fifth Circuit Court


http://twitter.com/#!/ShannonBream/status/187948018253840384

Do you remember the “homework assignment” assigned to the DOJ by Judge Jerry Smith of the U.S. Court of Appeals of the Fifth Circuit?

Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

[DOJ lawyer Dana] Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.

Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.

That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.

KaersvangMarbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –

Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.

The DOJ has turned in its response to the judge. FOX News’ Shannon Bream reveals:

DOJ: The power of the courts to review the constitutional ity of legislation is beyond dispute.

— Shannon Bream (@ShannonBream) April 5, 2012

DOJ: In considering such challenges, Acts of Congress are "presumptively constitutional" …

— Shannon Bream (@ShannonBream) April 5, 2012

DOJ: … and the Supreme Com1 has stressed that the presumption of constitutionality accorded to Acts of Congress is "strong."

— Shannon Bream (@ShannonBream) April 5, 2012

DOJ: While duly recognizing the courts' authority to engage in judicial review …

— Shannon Bream (@ShannonBream) April 5, 2012

DOJ: … the Executive Branch has often urged courts to respect the legislative judgments of Congress.

— Shannon Bream (@ShannonBream) April 5, 2012

DOJ: The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen …

— Shannon Bream (@ShannonBream) April 5, 2012

DOJ: … to exercise its enumerated powers including the Commerce Clause, to accomplish constitutional ends.

— Shannon Bream (@ShannonBream) April 5, 2012

DOJ ltr: Yes, single spaced. 3 FULL pages? No – about 2.5 … for those who asked ; )

— Shannon Bream (@ShannonBream) April 5, 2012

DOJ letter closing sentence: The President's remarks were fully consistent with the principles described herein.

— Shannon Bream (@ShannonBream) April 5, 2012

DOJ ltr: Yes, signed by Attorney General Eric Holder

— Shannon Bream (@ShannonBream) April 5, 2012

You can view the DOJ’s full response here.

The 2 1/4-page memo went over like a lead balloon. The DOJ simultaneously tried to do a walkback from President Obama’s statements the other day and save face on Obama’s behalf, and it just made them all look incompetent.

https://twitter.com/#!/jeffemanuel/status/187953993589338112

https://twitter.com/#!/jeffemanuel/status/187954217506447360

DOJ admits in its filing to the 5th Circuit that the doctrine of judicial review is settled law. What, did they just learn this?

— Christopher Metzler (@DrMetzler) April 5, 2012

Gregg Jarrett: We see 'even more parsing' in this three-page document.

— johnny dollar (@johnnydollar01) April 5, 2012

Question: We know from #fastandfurious that Eric Holder does not read memos addressed to him. Did he read the 5thCt memo signed by him?

— Michelle Malkin (@michellemalkin) April 5, 2012

By adding the last line in his letter, Holder lied to a federal court. http://t.co/tESl14t2 #tcot #p2

— RB (@RBPundit) April 5, 2012

Well-placed legal expert (POTUS) disagrees MT @ShannonBream: DOJ: Power of courts to review constitutionality of legislation=beyond dispute

— David Freddoso (@freddoso) April 5, 2012

Holder padded the margins like a high-school freshman to get this letter to three pages. Should be docked a grade. http://t.co/JDbSc53a

— Daniel Foster (@DanFosterType) April 5, 2012

https://twitter.com/#!/JulieRichards7/status/187958452209987585

***

Iowahawk’s take on it?

Mix up at DOJ: Holder sends machine guns to District Court judge, question responses to Mexican drug lord

— David Burge (@iowahawkblog) April 5, 2012

Read more: http://twitchy.com/2012/04/05/department-of-justice-files-response-to-fifth-circuit-court/


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