Holder: Courts' Power To Review Constitutionality Of Laws 'Beyond Dispute' - Sometimes

Craig Bannister
By Craig Bannister | April 5, 2012 | 3:11 PM EDT

In his court-ordered letter to the 5th Circuit Court of Appeals, Attorney General Eric Holder affirms that the power of courts to review the constitutionality of laws is “beyond dispute” – then proceeds to cite limitations and qualifiers regarding that power.

According to a copy of the letter posted on, Holder tells the court (emphasis added):

“1. The power of the courts to review the constitutionality of legislation is beyond dispute. See generally, e.g., Free Ente1prise Fund v. Public Co. Accounting Oversight Bd., 130”

But, the letter then goes on to dispute that judicial power, in some cases:

“The Supreme Court has further explained that this power may only be exercised in appropriate cases. "If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” DaimlerChryslerCorp. v. Cuno ,547 U.S. 332, 341 (2006); see, e.g., Weinberger v. Salfi, 422 U.S. 749, 763-766 (1975) (addressing a statutory bar to jurisdiction). In the case before this Court - Physician Hospitals of America v. Sebelius, o. 11-40631 -we have argued that this Court lacks jurisdiction to hear the case. See Appellee Br. of the United States at 15-38.

“Where a plaintiff properly invokes the jurisdiction of a court and presents a justifiable challenge, there is no dispute that courts properly review the constitutionality of Acts of Congress.”

The court requested the letter from Holder after Pres. Obama said on Monday it would be "unprecedented" for the Supreme Court to overturn the federal health care overhaul (Obamacare).

Holder’s letter concluded by claiming that the President's remarks were fully consistent with the principles described herein.”

So, does this mean that Holder believes the Supreme Court declaring Obamacare unconstitutional actually would be “unprecedented,” and that power of courts to review constitutionality is beyond dispute – except when it’s disputed?

Update: WH Employs People-Are-Too-Stupid Defense Of Obama's Comment

At a press conference today, White House Press Secretary Jay Carney argued that people just aren't bright enough to understand what Obama said, since Obama is a lawyer.

Apparently, Carney was even referring to Obama's former law professor and constitutional scholar Laurence Tribe.

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