April 6, 2012
This Doesn't Happen Every Day: "The power of the courts to review the constitutionality of legislation is beyond dispute."
On April 3, 2012, Fifth Circuit judges asked the US Attorney General for the DOJ's position on the authority of courts to review Acts of Congress and to do so by April 5, 2012. The request came after President Obama stated his opinion that the Affordable Care Act should be upheld by SCOTUS. Well, of course, AG Holder did not argue that Marbury v. Madison and its progeny was just plain goofy. But in defense of his boss, the AG did remind the Fifth Circuit judges that Supreme Court precedent holds that Acts of Congress are "'presumptively constitutional,'" and added that President Obama's remarks were "fully consistent" with those principles. Text of AG Holder's prompt response.
Let's not get into the whole President Obama is some sort of conlaw expert like the talking heads do. See Obama’s Law Prof Says He Misspoke on Supreme Court ("Tribe, a constitutional scholar, said his former student 'obviously misspoke' when Obama said Monday that the Supreme Court would be taking an “unprecedented, extraordinary step” if it struck down the Affordable Care Act.") When teaching constitutional law at the University of Chicago, he was, after all, nothing more than an adjunct, instructor, whatever. At Chicago Law, that's a notch or two below Bigelow Teaching Fellows. Hell, even this guy had more conlaw teaching experience. [JH]