Judge Fights Back Against Obama's Supreme Court Remarks -- With Homework

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By Dan Rivoli | April 5, 2012 7:06 AM EST

A federal judge is retaliating against what he says was an inappropriate comment on the judiciary by President Barack Obama, and he is doing so with an unusual tactic: he assigned administration lawyers to do homework.

Obama said the U.S. Supreme Court should defer to Congress and uphold the health care law. Those comments rubbed Judge Jerry Smith of the 5th Circuit Court of Appeals the wrong way.

Smith gave lawyers for the U.S. Department of Justice something of a homework assignment: submit a three-page, single-spaced legal brief outlining the Department's stance on "judicial review," a well-established legal doctrine since the early 1800s, with specific references to presidents' remarks.

The judge issued the order on Tuesday, in a separate health care law challenge from physician-owned hospitals, and was a clear consequence of remarks Obama made Monday about Supreme Court justices taking an "unprecedented, extraordinary step" if they overturned the 2010 health care law.

Recognizing that the Supreme Court does throw out Congress' laws, Obama Tuesday clarified his remarks by saying the justices stopped overturning major economic laws, like the Affordable Care Act, at the end of the New Deal in the 1930s.

But Obama's more pointed comments from Monday stuck with Judge Smith, who was appointed in the 1980s by President Ronald Reagan.

The legal brief due Thursday must include the administration and Justice Department's stance on "judicial review" and the judiciary's authority to strike down a law as unconstitutional, a power established in the landmark 1803 decision Marbury v. Madison.

"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," Smith asked, according to CBS.

"I'm referring to statements by the president in past few days to the effect, and I'm sure you've heard about them, that it is somehow inappropriate for what he termed 'unelected' judges to strike acts of Congress that have enjoyed -- he was referring to, of course, Obamacare -- what he termed broad consensus in majorities in both houses of Congress," Smith continued.

The statement Obama made referred to "conservative commentators" who have long railed against what they call "judicial activism" from the bench.

But coming from a president, Smith felt the remarks "troubled a number of people who have read it as somehow a challenge to the federal courts ... or the appropriateness of the concept of judicial review."

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