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

An appeals court judge has given the Obama administration until Thursday noon to clarify comments made by the president about health-care reform. The judge's question: Does Obama acknowledge that federal courts can strike down federal laws?

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

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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.

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