The US Department of Justice (DOJ) [official website] responded [letter, PDF] to a request by the US Court of Appeals for the Fifth Circuit [official website] to explain whether federal courts could overturn laws passed by Congress. The federal court made the request [JURIST report] on Tuesday in response to comments last week from US President Barack Obama [official website] urging "unelected" courts not to make the "unprecedented" [CNN report] move of overturning a "duly constituted and passed law." The court demanded an explanation of whether the Obama administration and the DOJ thought it was "inappropriate" for federal courts to overturn congressional laws and whether they recognized the power of federal courts to overturn such laws. The DOJ responded that congressional acts have a presumption of constitutionality, but that federal courts have had the power of judicial review since Marbury v. Madison:
The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.After the hearing on Tuesday, Obama clarified his statements, stating that the Supreme Court absolutely has the final say on the constitutionality of the country's laws, but that it had also traditionally been very deferential to the elected legislature, especially in the area of economic laws. JURIST Guest Columnist Craig Jackson of Texas Southern University Thurgood Marshall School of Law says that the criticism of Obama's comments has been unduly harsh [JURIST op-ed].
Debate over the law has been ongoing since Congress passed [JURIST report] comprehensive health care reform in March 2010. The US Supreme Court [official website] heard oral arguments in the case of United States Department of Health and Human Services v. Florida over the course of an unprecedented three days last month. On day one of oral arguments [JURIST report], the court heard arguments on the issue of whether the PPACA is is barred by the Anti-Injunction Act of 1867 (AIA) [text]. On day two [JURIST report], the court heard arguments focused specifically on the constitutionality of the "individual mandate" provision [text], which requires every person, with some exceptions for religious and other reasons, to purchase some form of health insurance by January 1, 2014, or be subject to a penalty. On the final day [JURIST report], the court heard arguments on the issue of whether the "individual mandate" can be severed from the rest of the PPACA. The Supreme Court agreed to rule on [JURIST report] the health care law case in November of last year on appeal from US Court of Appeals for the Eleventh Circuit [official website], which ruled in August that the individual mandate is unconstitutional but severable [JURIST report], upholding the rest of the law.