Fed Appeals Court to DOJ: You Have Until Thursday to Explain What the President Meant by 'Unprecedented' & 'Unelected Group

A federal appeals court has ordered the Justice Department to clarify comments made by the president when he said yesterday that it would be “unprecedented” for the Supreme Court to overturn his signature health care law (“Obamacare”).

"I am confident that this will be upheld because it should be upheld," President Obama said.

“Ultimately I am 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.”

He continued:

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.

Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step.

And since making these remarks, a three-judge panel for the 5th Circuit Court of Appeals has told the DOJ that it has until Thursday to explain whether the Obama administration believes the courts have the right to strike down a federal law.

Fox reports:

One justice in particular chided the administration for what he said was being perceived as a "challenge" to judicial authority -- referring directly to Obama's latest comments about the Supreme Court's review of the health care case.

The testy exchange played out during a hearing over a separate ObamaCare challenge. It marked a new phase in the budding turf war between the executive and judicial branches.

Judge Jerry Smith asked the government attorney whether Attorney General Eric Holder believes judges can strike down federal laws.

"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?" Judge Smith asked.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes. The lawyer then cited Marbury v. Madison, "the landmark case that firmly established the principle of judicial review more than 200 years ago,” CBS News reports.

However, despite her response, Judge Smith was unsatisfied, specifically referencing when President Obama called the judges an “unelected group.”

"That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority," Judge Smith said. "And that's not a small matter."

He then told the attorneys that the DOJ must address this issue in "no less than three pages, single spaced" by noon on Thursday, according to Fox.

"I would like to have from you by noon on Thursday -- that's about 48 hours from now -- a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the president," Smith said.

"What is the authority is of the federal courts in this regard in terms of judicial review?" Smith asked.

But what’s really going on here? Allahpundit of Hot Air (“Hot Gas,” if you’re from Texas) offers some insight:

...Obama himself never went so far yesterday as to say that the Supreme Court lacks the power to overturn laws. He said overturning ObamaCare specifically would be “unprecedented,” but no true-blue Warren-Court-loving lefty like The One would ever seriously impugn judicial review.

And the Fifth Circuit knows it. What they’re doing here is humiliating him as a way of getting him to stop the demagoguery, with the letter acting as the equivalent of a kid writing on the blackboard as punishment after class. “I will not question Marbury v. Madison, I will not question Marbury v. Madison, I will not question…”

Since the appeals court issued its order, the Obama administration has responded via White House Press Secretary Jay Carney.

"Of course we believe that the Supreme Court has, and the courts have, as their duty and responsibility the ability of striking down laws as unconstitutional," Carney said Tuesday, according to Fox.

Carney said the president was specifically talking about "the precedent under the Commerce Clause" regarding a legislature's ability to address "challenges to our national economy."

Listen to the audio of Judge Smith's order to the DOJ here. (relevant audio starts about the 18-minute mark)

Update - Attorney General Eric Holder said Wednesday that the Justice Department will respond "appropriately" to a federal appellate judge in Texas who demanded a letter recognizing the authority of the federal courts to strike down laws passed by Congress.

On Wednesday, Holder acknowledged the courts have "the final say" and defended the president's remarks. He shrugged off a reporter's suggestion that reaction to Obama's comments have become a distraction.

"What the president said a couple of days ago was appropriate. He indicated that we obviously respect the decisions that courts make," Holder said at a press conference in Chicago.

"Under our system of government ... courts have the final say on the constitutionality of statutes. The courts are also fairly deferential when it comes to overturning statutes that the duly elected representatives of the people, Congress, pass," Holder said.

Obama's comments didn't break "any new ground," he added.

"I think he said in some ways that which is obvious," Holder said. "He talked about the way in which Supreme Courts have typically looked at legislation."

Holder said he's confident the Supreme Court will find the Affordable Care Act constitutional "given the adequate, able representation" the law had during arguments before the justices.

The story has been updated. The Associated Press contributed to this report.