Obama faced criticism for his comments on the Supreme Court. Federal judge hits back at Obama

Think the federal judiciary is taking kindly to President Barack Obama’s pre-emptive attack on the Supreme Court? Think again.

A federal appellate judge in Texas on Tuesday demanded that the Justice Department write a three-page, single-spaced memo by midday Thursday explaining why the federal judiciary can strike down federal laws on constitutional grounds. He said it “needs to make specific reference to the president's statement and again to the position of the attorney general and the Department of Justice.”


The request — from 5th Circuit Judge Jerry E. Smith, a Ronald Reagan-appointee — seemed to be a direct shot at Obama, who said Monday that the Supreme Court would be guilty of an “unprecedented” act of “judicial activism” if it strikes down the health care reform law.

Obama's comments have "troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review," Smith told a Justice Department attorney during oral arguments in a case involving the health reform law's limits on physician-owned hospitals. "And that's not a small matter."

Smith asked Justice Department lawyer Dana Lydia Kaersvang whether DOJ and Attorney General Eric Holder recognize the courts' authority to strike federal statutes — a well-accepted principle established in the early 1800s.

Smith was one of three judges who heard a case Tuesday challenging limitations on physician-owned hospitals. It's a lesser-known provision of the health reform law, which Smith called "Obamacare" on Tuesday.

Obama faced criticism Monday for his comments on the Supreme Court. On Tuesday, the president softened his tone and put the remarks in a more historical context.

"The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress," Obama said Tuesday. "Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there. I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has."

A partial transcript of the oral argument is below:

Judge Jerry E. Smith: Let me ask you just something a little bit more basic. Does the Department of Justice recognize that federal courts have the authority, in appropriate circumstances, to strike federal statutes because of one or more constitutional infirmities?

Dana Lydia Kaersvang: Yes, your honor, of course there would need to be a severability analysis, but ... Smith: I'm referring to statements by the president in the past few days to the effect— and I'm sure you've heard about them — that it's somehow for what he termed unelected judges to strike acts of Congress that have enjoyed — he's referring of course to Obamacare — to what he termed a broad consensus and majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that's not a small matter. So I want to be sure that you're telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases. Kaersvang: Marbury vs. Madison is the law, your honor. It does not make sense in this circumstance to strike this statue because there's no... Smith: I would like to have from you by noon on Thursday — that's about 48 hours from now — a letter stating what is the position of the attorney general and the Department of Justice in regard to the recent statements by the president. Stating specifically and in detail, in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president's statement and again to the position of the attorney general and the Department of Justice.

This article first appeared on POLITICO Pro at 6:12 a.m. on April 4, 2012.