President Obama is backtracking from his remarks challenging the Supreme Court's power to strike down congressionally approved laws after a federal judge demanded that the Justice Department clarify Obama's views.
Obama's remarks about the Supreme Court's power to kill his health care reform law simply lacked proper context, administration officials argued Wednesday.
"What the president did was make an unremarkable observation about 80 years of [judicial] history," White House spokesman Jay Carney said. "That's the opposite of intimidation."
Obama on Monday claimed that the "unelected" Supreme Court would be taking "an unprecedented, extraordinary step" if it struck down health care reforms approved by Congress. Republicans fired back that the president was out of bounds trying to dictate and outcome to the court as it considers the constitutionality of the health care law.
And on Tuesday, 5th Circuit Court of Appeals Judge Jerry E. Smith, appointed by Republican President Ronald Reagan, added to the uproar by questioning in open court what the president was suggesting, saying it "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 demanded that the Justice Department explain in three single-spaced pages why Obama believes the Supreme Court overturning the health care law would be "unprecedented."
In response, the White House is qualifying Obama's statements as "unremarkable" observations of the last eight decades of Supreme Court decisions that are limited only to matters of national economic importance, such as health care.
The Justice Department plans to respond to Smith's request by noon Thursday.
"What the president said a couple days ago was appropriate," said U.S. Attorney General Eric Holder. "Courts have the final say in the constitutionality of statutes. ... The courts are also fairly deferential when it comes to overturning statutes that the duly elected representatives of the people in Congress pass."
But constitutional law experts point to dozens of instances that run counter to Holder's assertion.
"Going back two centuries to Marbury v. Madison, the Supreme Court has struck down many laws passed by Congress as being outside of congressional power," said James Capretta, an expert on the health care law for the nonprofit Economic Policies for the 21st Century.
Capretta said Obama's remarks were meant to put pressure on the Supreme Court as it considers the constitutionality of the health care law, with the intention of issuing a judgement in June.
Now the president's tactic is backfiring and "probably angered some justices, as well as portrayed the administration's lack of confidence that the court will uphold the law," he said.
"He will have to put it in writing that the court has the power to overturn [the health care law] in somewhat of an embarrassing walk-back by the administration," Capretta said.