A federal judge in Texas has assigned the Obama administration’s Justice Department an essay: explain why federal courts can strike down laws.
The three-page, single spaced memo is due by mid-day Thursday.
The request — from 5th Circuit Judge Jerry E. Smith, a Ronald Reagan-appointee — seemed to be a direct shot at Obama, who said Monday that the Supreme Court would be guilty of an “unprecedented” act of “judicial activism” if it strikes down the health care reform law.
Obama’s comments have “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,” Smith told a Justice Department attorney during oral arguments in a case involving the health reform law’s limits on physician-owned hospitals. “And that’s not a small matter.”
Smith asked Justice Department lawyer Dana Lydia Kaersvang whether DOJ and Attorney General Eric Holder recognize the courts’ authority to strike federal statutes — a well-accepted principle established in the early 1800s.