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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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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.


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