A judge on the three-judge 5th U.S. Circuit Court of Appeals ordered the department to provide a letter of "at least three pages, single-spaced, no less," detailing the department's understanding of the judiciary's power to overturn unconstitutional laws by noon CDT Thursday, a United Press International review of an audio recording of the oral arguments indicated.
Judge Jerry Smith, appointed by President Ronald Reagan in 1987, ordered the department Tuesday to make sure the letter specifically address comments President Barack Obama made Monday that he was "confident" the Supreme Court would not "take what would be an unprecedented, extraordinary step" of overturning the 2010 Patient Protection and Affordable Care Act.
Obama said at a White House Rose Garden news conference, "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."
The healthcare case is a good example of just that, Obama said.
"And I'm pretty confident that this court will recognize that and not take that step," he said, commenting the healthcare-reform law "was passed by a strong majority of a democratically elected Congress."
The Supreme Court has asserted since 1803, in a landmark case known as Marbury vs. Madison, that federal courts have the power and a duty to strike down laws and treaties they interpret as unconstitutional -- a power known as judicial review.
Legal scholars say the ruling helped define the boundary between the U.S. executive and judicial branches of government.
Smith interrupted a hearing in New Orleans on a separate challenge to healthcare reform by physician-owned hospitals to ask Justice Department lawyer Dana Lydia Kaersvang if her department agreed the judiciary could strike down an unconstitutional law.
When she said yes, Smith spoke about Obama's comments, specifically about what Smith said was Obama's suggestion it was "somehow inappropriate for what he termed 'unelected' judges to strike acts of Congress that have enjoyed -- he was referring, of course, to Obamacare -- to what he termed broad consensus in majorities in both houses of Congress."
"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," Smith said.
He ordered the department to explain its understanding of "judicial review as it relates to the specific statements of the president in regard to Obamacare and to the authority of the federal courts to review that legislation."
The two other judges in the chamber -- Emilio Garza, appointed by President George H.W. Bush in 1991, and Leslie Southwick, appointed by President George W. Bush in 2007 -- said nothing during the exchange, the UPI review of the recording indicated.
The Justice Department and White House declined to comment on Smith's order.
Obama, a former constitutional law professor, elaborated on his comments Tuesday to an American Society of News Editors luncheon.
"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," he said in response to a question from the audience.
"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. And so the burden is on those who would overturn a law like this," he said.
"Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedents 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. As a consequence, we're not spending a whole bunch of time planning for contingencies."
A ruling from the Supreme Court is expected in June, during the thick of the presidential campaign.
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