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Fifth Circuit Judge Criticizes Obama's Supreme Court Comments

By Robyn Hagan Cain on April 03, 2012 | Last updated on March 21, 2019

A lot of people -- even non-lawyers -- are talking about Marbury v. Madison today. The case that established judicial review may not be as popular as Brown v. Board of Education or Roe v. Wade, but most Americans discussed it at least once during school.

The masses are talking, tweeting, and status-updating about Marbury because yesterday President Obama expressed faith that the Supreme Court will uphold the Affordable Care Act, saying "I'm 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." Obama's bravado was greeted with criticism that the president -- a Harvard-educated lawyer and former constitutional law professor -- was overlooking the fact that judicial review hasn't been "unprecedented" since 1803, says The Wall Street Journal.

Obama seems to have ruffled the Fifth Circuit Court of Appeals' judicial feathers with his comments. Tuesday, Circuit Judge Jerry Smith ordered the Justice Department to address whether the Obama administration believes that the courts have the power of judicial review, reports CBS News.

Specifically, Judge Smith wants Attorney General Eric Holder to send him a three-page, single-spaced letter by noon Thursday addressing whether the president's statements that the Affordable Care Act should be upheld reflect a belief that the judiciary does not have the right to overturn a federal statute on constitutional grounds, according to Becker's Hospital Review. Judge Smith made the unusual request during oral arguments for Physician Hospitals of America vs. Sebelius, a Fifth Circuit Court of Appeals challenge to the healthcare law.

President Obama softened his stance on judicial review of the Affordable Care Act on Tuesday, saying, "The point I was making is that the Supreme Court is the final say on our Constitution and our laws and all of us have to respect it ... It's precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly-elected legislature, our Congress," reports CNN.

Will presidential back-tracking be enough to excuse the Attorney General from his Fifth Circuit homework assignment? Was it appropriate for Judge Smith to demand a letter on judicial review when it clearly is a non-issue?

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