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.

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