White House Press Secretary Jay Carney has put to bed any idea that the White House might further provoke the federal judiciary by refusing to respond to the 5th Circuit Court's call for a clarification of the White House's position on judicial review. In a press conference today, Carney said the White House would indeed be responding, and tried to offer further clarification on the issue:
"What the president said both yesterday and the day before was -- what he did was make an unremarkable observation about 80 years of Supreme Court history," he said. "Since the 1930s, the Supreme Court has without exception deferred to congress when it comes to Congress' authority to pass legislation to regulate matters of national economic importance such as healthcare. Eighty years plus. That is an observation and not a particularly remarkable one. It is a statement of fact."
You can watch the video of Carney's remarks below:
With any luck, the brief the administration will release will also take some time to clarify the president's remarks on Lochner v. New York - an infamous case frequently used as shorthand for judicial activism in legal circles (cases that involve judicial activism are referred to as "Lochnerizing").
However, as the Volokh Conspiracy has pointed out, Lochner is completely irrelevant to the Obamacare issue, because Lochner dealt with the issue of whether state governments can impose economic regulation. If the case revolved around Romney's Massachusetts health care law, this would make sense, but not a federal law, since it has never been seen as Lochnerizing to second guess the federal Congress.