Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Holder sends letter to Fifth Circuit: Courts are supposed to presume that laws are constitutional...
http://hotair.com/archives/2012/04/05/holder-sends-letter-to-fifth-circuit-courts-are-supposed-to-presume-that-laws-are-constitutional-you-know/ ^

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 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:

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."

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.

Carney (AKA Baghdad Bob) - "President Obama knows the law."


TOPICS: News/Current Events
KEYWORDS:
Navigation: use the links below to view more comments.
first previous 1-5051-68 last
To: chessplayer

Holder - “In considering such challenges, Acts of Congress are “presumptively constitutional,” Turner Broadcasting System, Inc. v. FCC

More weaseling from the White Hut weasels.
They don’t think the plebs will know that there are different types of presumptions. For examples, a presumption can be conclusive or rebuttable (rebut: `to refute, especially by offering opposing evidence or arguments, as in a legal case’).
The SCOTUS made it clear that they considered the presumption of validity rebutted by agreeing to hear the matter rather than denying the writ.
If I thought the Attorney General was working for me, I might consider a malpractice lawsuit.


51 posted on 04/05/2012 9:54:09 PM PDT by tumblindice (our new, happy lives)
[ Post Reply | Private Reply | To 1 | View Replies]

To: chessplayer
Courts are supposed to presume that laws are constitutional...

Just like black people, black "ministers," and liberals are supposed to presume white Hispanics who shoot black thugs are innocent until prove guilty?

52 posted on 04/06/2012 1:41:34 AM PDT by Right Wing Assault (Dick Obama is more inexperienced now than he was before he was elected.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: chessplayer

Not one Republican voted for it,it was done by reconciliation,the speaker of the House said we have to Pass it to see what was in it,and to this day it is not even fully implemented and we still dont know all of what is in it, so NO ONE can say it is Constitutional as a Whole but forcing someone to engage in something under threat of imprisonment just does not strike me as American,especially in the way it was shoved down the peoples Throat.


53 posted on 04/06/2012 3:40:25 AM PDT by ballplayer
[ Post Reply | Private Reply | To 1 | View Replies]

To: chessplayer

Seems like Witholder and his King believe that the Supreme Court has no real function any more in this country.

“The last remnants of the old republic have been swept away.”


54 posted on 04/06/2012 3:52:30 AM PDT by Fresh Wind ('People have got to know whether or not their president is a crook.' Richard M. Nixon)
[ Post Reply | Private Reply | To 1 | View Replies]

To: SkyDancer
The SCOTUS determines if the laws passed by the legislative branch of the government are constitutional. If congress passes a law they deem constitutional (according to you) then it doesn’t have to go before the SCOTUS. Like Obamacare then. Congress passed it so according to you it’s constitutional.

That's not what I'm saying. I'm saying that all three branches have a responsibility to ensure that laws are constitutional. The courts determine whether laws are constitutional, of course, but so does (or rather, so should) Congress and the President. Three co-equal branches of government is the basis for the checks and balances that make our Constitution work.

55 posted on 04/06/2012 4:48:31 AM PDT by Conscience of a Conservative
[ Post Reply | Private Reply | To 50 | View Replies]

To: chessplayer

All Judges take one (or more) of three purportedly solemn Oaths (or affirmations) to support the Constitution,and laws.
Now if Congress controlled by Democrats and Progressives— and the most anti-American President Ever push through bad law that violates the fundamental principles of Liberty then the Court has an obligation to support the Constitution and NO where do I see power granted to the Federal Government to mandate anybody participate in Commerce.


56 posted on 04/06/2012 4:54:46 AM PDT by StonyBurk (ring)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Conscience of a Conservative

Okay, understood. Thanks.


57 posted on 04/06/2012 6:43:52 AM PDT by SkyDancer (Talent Without Ambition Is Sad - Ambition Without Talent Is Worse)
[ Post Reply | Private Reply | To 55 | View Replies]

To: chessplayer
Holder - "In considering such challenges, Acts of Congress are “presumptively constitutional,”

Uh, no they aren't, you AFFIRMATIVE-ACTION IGNORANT RACIST KNOW-NOTHING CORRUPT MORON.

God, what an asshat.

58 posted on 04/06/2012 6:48:13 AM PDT by Lazamataz (Shut up and drill.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: doc1019
It is my understanding that our judicial systems must assume that all laws are constitutional until challenged by someone with standing. Otherwise every law passed would have to pass through the judicial system before becoming accepted law.

I almost considered this point before posting my post, above. Yes, I guess Holder is a little smarter than I gave him credit for. He's right, they are presumtively Constitutional.

HOWEVER, that's not the point.

59 posted on 04/06/2012 7:01:49 AM PDT by Lazamataz (Shut up and drill.)
[ Post Reply | Private Reply | To 11 | View Replies]

To: Lazamataz
It is my understanding that our judicial systems must assume that all laws are constitutional until challenged by someone with standing. Otherwise every law passed would have to pass through the judicial system before becoming accepted law.

There is nothing untrue about this statement. Doesn't mean that later it can't be deemed unconstitutional PROVIDED someone can prove harm or challenged the law. There has to be a plaintiff, clearly most Constitutional scholars think the Louisiana Purchase was done in a unconstitutional way. But nobody complained about the real estate deal of the millennium so it stood, though most think the deal was blatantly unconstitutional

60 posted on 04/06/2012 7:14:45 AM PDT by central_va ( I won't be reconstructed and I do not give a damn.)
[ Post Reply | Private Reply | To 59 | View Replies]

To: central_va

I love you.


61 posted on 04/06/2012 7:54:47 AM PDT by Lazamataz (Shut up and drill.)
[ Post Reply | Private Reply | To 60 | View Replies]

To: chessplayer
Holder and Obama are idiots trying to stir up all the other idiots. An activist democrat congress without bipartisan support and ignoring their own parliamentary rules forced an illegal law on the American people who overwhelmingly did not want this illegal law approved. The only recourse for the people is the courts, the ballot box, and other means remaining to defeat power grabs that ignore the constitution. It is the courts job to check and balance an out of control Congress and or executive branch that ignore the law. The idiots can twist and lie and squirm all they want, but this illegal law is going down as it should and in the fall the fools that attempted to force this garbage on us will be defeated at the ballot box and than America can get back to work.
62 posted on 04/06/2012 8:35:43 AM PDT by Mat_Helm
[ Post Reply | Private Reply | To 1 | View Replies]

To: chessplayer

(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.


63 posted on 04/06/2012 8:49:13 AM PDT by Darren McCarty (Time for brokered convention)
[ Post Reply | Private Reply | To 1 | View Replies]

To: ConorMacNessa

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.


64 posted on 04/06/2012 9:01:22 AM PDT by central_va ( I won't be reconstructed and I do not give a damn.)
[ Post Reply | Private Reply | To 31 | View Replies]

To: lyby
NO MO BO FO SHO!
***********
Please let me know when you produce this bumper sticker! I WANT SEVERAL!

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!

65 posted on 04/06/2012 8:43:29 PM PDT by boatbums (God is ready to assume full responsibility for the life wholly yielded to Him.)
[ Post Reply | Private Reply | To 48 | View Replies]

To: Mat_Helm
Holder and Obama are idiots trying to stir up all the other idiots. An activist democrat congress without bipartisan support and ignoring their own parliamentary rules forced an illegal law on the American people who overwhelmingly did not want this illegal law approved. The only recourse for the people is the courts, the ballot box, and other means remaining to defeat power grabs that ignore the constitution. It is the courts job to check and balance an out of control Congress and or executive branch that ignore the law. The idiots can twist and lie and squirm all they want, but this illegal law is going down as it should and in the fall the fools that attempted to force this garbage on us will be defeated at the ballot box and than America can get back to work.

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.

66 posted on 04/06/2012 9:06:07 PM PDT by boatbums (God is ready to assume full responsibility for the life wholly yielded to Him.)
[ Post Reply | Private Reply | To 62 | View Replies]

To: SkyDancer

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.


67 posted on 04/06/2012 9:59:29 PM PDT by djf (Obama - the "OJ verdict" of presidents!!)
[ Post Reply | Private Reply | To 2 | View Replies]

To: djf

Thanks for the post - copied and will read it at leisure later. R/Janey


68 posted on 04/07/2012 6:44:10 AM PDT by SkyDancer (Talent Without Ambition Is Sad - Ambition Without Talent Is Worse)
[ Post Reply | Private Reply | To 67 | View Replies]


Navigation: use the links below to view more comments.
first previous 1-5051-68 last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson