On Monday, Obama issued a direct challenge to the Supreme Court, saying he didn't believe the high court would take the "unprecedented" step of overturning a law passed by a strong majority of Congress.
U.S. 5th Circuit Court of Appeals Judge Jerry Smith said Obama's comments troubled a number of people who have read them as a challenge to the authority of federal courts.
"I'm referring to statements by the president in the past few days to the effect, 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 of course to Obamacare, to what he termed a broad consensus and majorities in both houses of Congress," Smith told Dana Kaersvang, an attorney with the Justice Department in Washington, D.C.
"I want to be sure that you are telling us that the Attorney General and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases," Smith said.
A somewhat surprised Kaersvang told Smith the Justice Department does recognize this power by the courts and made reference to a landmark 1803 case that formed the basis for judicial review.
However, Smith ordered Kaersvang to submit a letter to the appeals court by Thursday stating the position of U.S. Attorney General Eric Holder and the Justice Department on the concept of judicial review.