Skip to comments.Holder sends letter to Fifth Circuit: Courts are supposed to presume that laws are constitutional...
Posted on 04/05/2012 6:56:00 PM PDT by chessplayer
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 wasnt going to use the letter as an opportunity to plead his constitutional case on ObamaCare. The court wanted a statement of the DOJs 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:
Holder - "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."
Heres Carney from todays 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 cant admit the real reason so this will have to do.
Carney (AKA Baghdad Bob) - "President Obama knows the law."
I love you.
(sighs). If rational basis review can strike down laws like Romer v Evans, which is a Colorado state law preemption against gays being protected class, it can surely strike down laws against the feds for exceeding the powers of the commerce clause, which it has in the past.
The SCOTUS can’t just take up a review of a law for the hell of it. A case has to be brought to them concerning a laws constitutionality. There has to be a plaintiff, in this case we are past that point. We do have a plaintiff in this case, several state Attorneys General. it is now under review, all is proper.
If I ever do, it'll have to be the magnetic type I can remove when I'm away from the car otherwise I have no doubts my car would be vandalized. Fo sho!
In a good and fair world, that SHOULD be how it works. However, the aforementioned "idiots" will not have gotten any smarter and will retain their easily-influenced mindset which may cancel out the way it should be how it works. All we can hope for is their laziness overcomes their desire for the status-quo and they stay home November sixth while those who detest the current occupier realize they MUST vote to dethrone him along with his co-conspirators and they show up en mass to welcome the way it should be.
Everyone at FR needs a course in Constitutional law. Especially Constitutional law as (mis)interpreted by the Supreme Court.
In the beginning, there were states. The word “state” MEANS COUNTRY!!
They each had governors, they each had legislatures, they had ALL the authority of a full fledged country to make war, make treaties, allow immigration.
Because of outside problems *threats from Spain and England, etc) they sent delegates and composed “The Articles of Confederation”
This was a firm bond between the states.
The Articles were weak in some respects, so they sent delegates to another convention with the SOLE power to amend them.
The delegates went whole hog and composed the Constitution. Many say the Constitution totally replaced the Articles of Confederation. This is simply not true. Volume one of the United States Statutes at large starts with “The Organic Acts of The United States”. Pages 1-4 contain the Declaration of Independence Pages 10-17? contain the Constitution of the united States.
Pages 5-9 contain the Articles of Confederation, which were NEVER repealed or amended. As recently as 2002 or so, Congress has re-affirmed the original Organic acts of the united States of America.
Now included in the Constitution there are references to the power of Congress. They have the power to exercise “exclusive legislative authority” over an area ten miles square (which is the seat of government) and forts and docks and ports of entry, etc.
No state can pass a law that has effect in those areas, that power and jurisdiction belongs to “the United States”.
And by saying “The United States” it MEANS “the federal government”
So everything chugged along good. For over 100 years.
Then, a series of cases came up to the Supreme Court. These were called “The Insular cases” and had to do with how federal legislation affected or could be interpreted in the TERRITORIES that “the United States” controlled.
Downes V Bidwell was one of these cases having to do with imports of sugar??? from the Caribbean islands, and whether or not the Constitutional limits on taxation applied.
In probably the biggest mistake ever made, the Supreme Court ruled that CONSTITUTIONAL RESTRICTIONS AND LIMITATIONS DID NOT APPLY TO AREAS THAT CONGRESS CONTROLLED WITH IT’S POWER OF “EXCLUSIVE LEGISLATIVE AUTHORITY”!!!!
It’s not just me saying that. Judge Harlan wrote a blistering dissent because he KNEW what they were saying was basically that we were being split into two countries (in a sense), one “The united States of America” where the Constitution applies, and another, “THE UNITED STATES” where the Constitution means squat.
“These are words of weighty import. They involve consequences of the most momentous character. I take leave to say that if the principles thus announced should ever receive the sanction of a majority of this court, a radical and mischievous change in our system of government will be the result. We will, in that event, pass from the era of constitutional liberty guarded and protected by a written constitution into an era of legislative absolutism.
Although from the foundation of the government this court has held steadily to the view that the government of the United States was one of enumerated powers, and that no one of its branches, nor all of its branches combined, could constitutionally exercise powers not granted, or which were not necessarily implied from those expressly granted (Martin v. Hunter, 1 Wheat. 326, 331, 4 L. ed. 102, 104) we are now informed that Congress possesses powers outside of the Constitution, and may deal with new territory, acquired by treaty or conquest, in the same manner as other nations have been accustomed to act with respect to territories acquired by them. In my opinion, Congress has no existence and can exercise no authority outside of the Constitution. Still less is it true that Congress can deal with new territories just as other nations have done or may do with their new territories. This nation is under the control of a written constitution, the supreme law of the land and the only source of the powers which our government, or any branch or officer of it, may exert at any time or at any place. Monarchical and despotic governments, unrestrained by written constitutions, may do with newly acquired territories what this government may not do consistently with our fundamental law. To say otherwise is to concede that Congress may, by action taken outside of the Constitution, engraft upon our republican institutions a colonial system such as exists under monarchical governments. Surely such a result was never contemplated by the fathers of the Constitution. If that instrument had contained a word suggesting the possibility of a result of that character it would never have been adopted by the people of the United States. The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces,-the people inhabiting them to enjoy only such rights as Congress chooses to accord to them,-is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution.”
Downes v Bidwell, 182 US 244,379
There is way, way more about this subject and I’m not going to go into it now, but it becomes a question of jurisdiction.
Thanks for the post - copied and will read it at leisure later. R/Janey