Constitutional Law Professor: Supreme Court Overturning Law "Unprecedented Extraordinary" Step

Really?

President Obama: "Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected congress."

Really?

WSJ: "The vote actually was close—it passed with 60 votes in the Senate, just achieving the supermajority needed to overcome a Republican filibuster, and by 219-212 in the House.


The Supreme Court sometimes overturns laws passed by Congress, as it did in 2010, when major parts of campaign-finance restrictions were nullified in the Citizens United decision. It would be more unusual for the court to strike down an entire law with hundreds of provisions over constitutional problems with just one part."

I mean--REALLY?

"For years, what we've heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law," he said at a news conference. The health-care case is a good example of just that, he said. "And I'm pretty confident that this court will recognize that and not take that step."

REALLY?

My head just exploded.

UPDATE:  Heh.  Interesting.  Excerpts:

...The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Overturning a law of course would not be unprecedented -- since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise -- despite the president's remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said...

UPDATE the second:

And then, this. Excerpts:

The Obama administration stipulated the incontestable to a disgruntled federal court on Thursday, formally declaring that “the power of the courts to review the constitutionality of legislation is beyond dispute...”

“Where a plaintiff properly invokes the jurisdiction of a court and presents a justiciable challenge, there is no dispute that courts properly review the constitutionality of acts of Congress,” Mr. Holder wrote. His letter was filed in precise obedience to the court’s demands, which included a noon deadline, a three-page length, single spacing and a reference to the president’s statement.

But the letter also offered a reminder that the Supreme Court has presumed that acts of Congress are constitutional, and that the executive branch has frequently urged courts to respect the judgments of Congress.

“The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed,” Mr. Holder wrote, adding that he was unaware of any case in which the Justice Department had asked a court to reconsider or limit the court’s power in this regard...

The DOJ's letter:

DOJ Healthcare Letter 040512