Holder sends letter to Fifth Circuit: Courts are supposed to presume that laws are constitutional, you know

They asked for three pages single-spaced. He gave them two and a half. Impeach.

Seriously, though, given the immense interest in this story when it broke Tuesday, there was no way O wasn’t going to use the letter as an opportunity to plead his constitutional case on ObamaCare. The court wanted a statement of the DOJ’s position on judicial review but Holder naturally gave them a little more than that. First, the obligatory — and slightly peevish — acknowledgment that, yes, Marbury v. Madison is still good law:

The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation…

The question posed by the Court regarding judicial review does not concern any argument made in the government’s brief or at oral argument in this case, and this letter should not be regarded as a supplemental brief.

Translation: The court should stop wasting time by demanding answers to questions that no one is asking, including the president. So much for judicial review. Then comes this part, which is aimed squarely at the Supreme Court and Anthony Kennedy:

In considering such challenges, Acts of Congress are “presumptively constitutional,” Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1301 (1993), and the Supreme Com1 has stressed that the presumption of constitutionality accorded to Acts of Congress is “strong.” United States v. Five Gambling Devices Labeled in Part .. Mills,” and Bearing Serial Nos. 593-221,346 U.S . 441 , 449 (1953); see, e.g., Gonzales v. Raich, 545 U.S. 1, 28 (2005) (noting that the “congressional judgment” at issue was “entitled to a strong presumption of validity”). The Supreme Court has explained: “This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power.” Five Gambling Devices Labeled in Part .. Mills,” and Bearing Serial Nos. 593-22i, 346 U.S. at 449.

In light of the presumption of constitutionality, it falls to the party seeking to overturn a federal law to show that it is clearly unconstitutional. See, e.g., Salazar v. Buono, 130 S. Ct. 1803, 1820 (20 1 0) (“Respect for a coordinate branch of Govenm1ent forbids striking down an Act of Congress except upon a clear showing of unconstitutionality.”); Beach Communications, Inc. , 508 U.S. at314-15.

It goes on from there. Remember Kennedy’s question to Verrilli on day two of oral arguments about the government’s “heavy burden of justification”? Holder’s arguing here that Kennedy has it backwards, that in fact the heavy burden is on the states to show that the statute somehow exceeds Congress’s authority under Article I. That’ll be a key dispute as the Court debates this behind closed doors, I’d bet. Should Kennedy presume that the statute is constitutional in deference to Congress or, per his now-famous point about the mandate fundamentally changing the relationship between the feds and citizens, should he take a more wary view? As is often true in law, where you start your analysis may determine where you end up. Although even if he follows Holder’s lead and resolves to err on the side of deference to Congress, it’s hard to see how a judge can uphold a law which he believes alters the constitutional order. That was my point in this post last week. If you want to tweak the “fundamentals” of the relationship between Washington and the public, logically your only remedy is Article V.

Here’s Carney from today’s press briefing, now in his third day of trying to explain how a constitutional law professor could tell the country on Monday that striking down the mandate would be “unprecedented.” He can’t admit the real reason so this will have to do.

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