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From TPM:

Appellate Court Judge Jerry Smith, presiding over a three-judge panel hearing a separate challenge to the health care law, lit into an Obama administration attorney.

“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. “I’m referring to statements by the president in the past few days to the effect … that it is somehow inappropriate for what he termed ‘unelected’ judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.”

Then he assigned the Justice Department homework. “I would like to have from you by noon on Thursday … 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, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.”

This was a bridge too far.

“The president was being cute in his statements,” Fitzpatrick said. “I don’t think he really believes courts ought to defer to the political branches; I don’t recall him expressing displeasure when the Supreme Court struck down Congress’s partial-birth abortion law, for example. But the president is a politician. He’s allowed to be cute. Federal judges are supposed to be above that. I suppose that’s what we get for giving them life tenure.”

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