Holder answers judge, defending both judiciary and Obama health care remarks

Attorney General Eric Holder affirmed Thursday that the judiciary has power to review laws of the land, in reply to a US judge who had taken umbrage at an Obama comment questioning judicial review of his health care law. Obama's remark was consistent with that principle, Holder added.

Attorney General Eric Holder rose to the defense of President Obama on Thursday over remarks he made earlier this week questioning the authority of the US Supreme Court to potentially overturn his health-care reform law.

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?The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed,? Mr. Holder said in a letter to a three-judge federal appeals court panel in Texas that had raised questions about the president?s comments.

In a highly unusual exchange between the judiciary and the Obama administration, the judges had asked a government lawyer on Tuesday to produce ? by Thursday noon ? a three-page, single-spaced explanation of its position on the proper role of the courts in assessing federal legislation.

In his three-page, singled-spaced explanation, Holder quoted Chief Justice John Marshall?s 1803 landmark decision Marbury v. Madison: ?It is emphatically the province and duty of the judicial department to say what the law is.?

But the attorney general also said in the letter that judges have traditionally granted deference to acts of Congress, and approached challenges to statutes with a presumption that the law fully complies with constitutional requirements. ?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,? Holder said.

He told the Fifth Circuit jurists: ?The president?s remarks were fully consistent with the principles described herein.?

Critics have suggested that Obama may have been seeking to intimidate the justices, trying to influence the outcome of a pending case. Others say he appears to be laying the groundwork to later accuse the justices of engaging in election-year politics rather than legitimate constitutional review.

The Fifth Circuit-Justice Department episode began in the midst of an oral argument on Tuesday, when Judge Jerry Smith, a Republican appointee on the Fifth Circuit, said he was concerned about Obama's statements the prior day suggesting that it would be improper judicial activism should the US Supreme Court strike down the Patient Protection and Affordable Care Act.

Since his initial statement, the president has backed off his use of the term ?activism,? and has suggested that the courts have the authority to assess whether acts of Congress comply with constitutional limits and requirements.

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