White House seeks to head off showdown with judges over health-care comments

The Obama administration is reacting to pushback from a federal appeals court judge and others over the president’s comments earlier this week suggesting it would be politically motivated activism for “an unelected group of people” on the US Supreme Court to overturn his health-care reform law.

The judge, Jerry Smith, of the Fifth US Circuit Court of Appeals, raised the issue with a Justice Department lawyer on Tuesday as the lawyer began her argument in an appeal in Houston involving an unrelated section of the health-care law.

“Let me ask you something just a little bit more basic,” Judge Smith said, interrupting the lawyer’s argument. “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?” he asked.

The government lawyer, Dana Kaersvang, was caught off guard and seemed momentary bewildered by the question. “Yes … your honor,” she said, according to a court-authorized recording of the session.

Judge Smith then asked the lawyer to prepare a three-page, singled-spaced letter to the appeals court panel stating the position of Attorney General Eric Holder and the Department of Justice regarding the authority of the courts to weigh the constitutionality of acts of Congress. He gave them until noon on Thursday to respond.

The unusual exchange and request was prompted by President Obama’s comments on Monday about the possibility that the Supreme Court might strike down the health-care reform law.

“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,” Mr. Obama said in a Rose Garden press conference.

“And I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.”

The president added: “Well, there’s a good example, and I’m pretty confident that this court will recognize that and not take that step.”

The next day, the president struck a decidedly more reserved stance on the issue. “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.

Obama added that given the court’s long history of deference to congressional power to regulate national commerce, “the burden is on those who would overturn a law like this.”

Some critics viewed the president’s remarks as a threat to members of the high court and perhaps an attempt to influence the outcome of a pending case. Others saw it as an effort by the president to begin shaping public opinion and lay the groundwork to attack the court’s reputation and brand it as a political institution, should a majority of justices strike down the Affordable Care Act.

It is not the first time the president has taken aim at the Supreme Court.

President Obama used his 2010 State of the Union address to sharply criticize the justices for overturning a portion of the McCain-Feingold campaign-finance law in the 2010 Citizens United case.

The criticism was particularly pronounced because six members of the high court were seated at the front of the House chamber in a ceremonial display of respect and support for the president.

On Wednesday, Attorney General Holder confirmed that the Justice Department would send an appropriate response to Smith.

Holder told reporters there was no question but that the president, he, and the Justice Department recognize the role and authority of the courts. But he also defended the president’s remarks.

“I think what the president said a couple of days ago was appropriate. He indicated that we obviously respect the decisions that the courts make,” Holder said, according to the Associated Press.

Meanwhile at the White House, spokesman Jay Carney on Wednesday was besieged by questions from reporters about the president’s comments. Mr. Carney denied that the comments were an attempt at intimidation. Instead, he said, the president, a former constitutional law professor, was merely making “an unremarkable observation” about the traditional deference the courts have shown to Congress since the New Deal.

“Since the 1930s, the Supreme Court has, without exception, deferred to Congress when it comes to Congress’s authority to pass legislation to regulate matters of national economic importance, such as health care,” Carney said.

“It’s the reverse of intimidation,” Carney added. “He’s simply making an observation about precedent and the fact that he expects the court to adhere to that precedent.”

The spokesman said: “He certainly was not contending that the Supreme Court doesn’t have as its right and responsibility the ability to overturn laws passed by Congress.”

Although it is generally true that the Supreme Court has upheld most laws passed by Congress under its Commerce Clause authority since the 1930s, there are exceptions. The high court struck down laws in 1995 and 2000 in which it said that Congress had overstepped its commerce authority.

Smith’s request for a Justice Department position statement was extremely unusual. It was made at the midpoint of an hour-long argument at the appeals court, and did not appear to relate to the case before the court.

Nonetheless, the court docket sheet shows that the request was being made not by Smith alone, but by the full three-judge panel. The others on the panel are Judges Emilio Garza and Leslie Southwick. All three jurists were appointed by Republican presidents.

After Smith’s initial question about the Justice Department’s stance on judicial review, Ms. Kaersvang seemed confused, according to a tape of the session.

Smith offered an explanation.

“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,” Smith said, “that it is 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 and majorities in both houses of Congress.”

The judge continued: “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.”

“That’s not a small matter,” Smith said.  “So I want to make sure that you are 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 responded: “Marbury v. Madison is the law, your honor.”

Her reference was to the landmark 1803 Supreme Court decision that established that it is the role of the courts to review the constitutionality of legislative actions.