UPDATE: Whoops, I see that Orin beat me to this; I’ve closed comments and put the original post below the jump, but Orin’s post is the one you should be reading on this.
CBS News reports:
[A Fifth Circuit panel ordered] the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.
The order … appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would 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.” …
The panel ordered the Justice Department to submit a … letter … addressing whether the Executive Branch believes courts have such power, the lawyer said.
The panel is hearing a separate challenge to the health care law by physician-owned hospitals….
[Jerry Smith, one of the judges hearing the case said at oral argument] that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”
The full text of the order is: “As directed today, the panel has requested a letter referencing oral argument questions. The letter is to be no less than three pages, single spaced, and is due by noon on Thursday, April 5, 2012.” If anyone can point me to an oral argument recording or transcript, I’d be much obliged; I checked the Fifth Circuit oral argument recordings page and today’s arguments don’t yet seem to be posted.