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Obama Health Remarks Draw Order for U.S. View on Court

A federal appeals court hearing a challenge to part of the 2010 health-care law ordered President Barack Obama’s administration to give its view on whether the U.S. Supreme Court can strike down laws it considers unconstitutional.

Obama, a Democrat, said April 2 that it would amount to “judicial activism” for the Supreme Court to throw out the statute. The high court last week heard three days of arguments on challenges to the Patient Protection and Affordable Care Act, which requires Americans to obtain health insurance.

U.S. Circuit Judge Jerry Smith, who was appointed by Ronald Reagan, a Republican, asked U.S. Justice Department lawyer Dana Lydia Kaersvang during oral arguments in Houston yesterday to supply the administration’s position on so-called judicial review. The appeals court is reviewing a provision of the law that blocks federal medical payments to certain hospitals.

“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 -- what he termed broad consensus in majorities in both houses of Congress,’’ Smith said during yesterday’s session, according to a recording posted on the court’s website.

‘Single Spaced’

The department must submit a written statement of “no less than three pages, single spaced,” to the New Orleans-based appeals court by noon on April 5, according to a court filing yesterday.

The president’s statement “has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority to the appropriateness of the concept of judicial review,’’ Smith said. “So I want to be sure that you’re telling us 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.’’

Kaersvang replied that while judicial review is “the law of the land,’’ the government believes “it would not make sense in this circumstance to strike down this statute.’’

Smith interrupted Kaersvang and ordered the Justice Department to clarify its position in writing, “as it relates to the specific statements of the president regarding Obamacare and the authority of federal courts to review that legislation.’’

Texas Doctors

The appellate panel is considering a bid by a Texas physicians’ group that sued U.S. Secretary of Health and Human Services Kathleen Sebelius last year. The group is seeking to overturn a provision of the law that restricts growth by physician-owned hospitals in ways that don’t apply to other hospitals, according to court papers.

Charles Miller, a Justice Department spokesman, declined in an e-mail yesterday to comment on the appellate court order. Scott Oostdyk, lead lawyer for the Texas doctors challenging the law, declined to comment in a phone interview yesterday.

The case is Physician Hospitals of America v. Sebelius, 11- 40631, U.S. Court of Appeals for the Fifth Circuit (New Orleans).

To contact the reporter on this story: Laurel Brubaker Calkins in Houston at laurel@calkins.us.com

To contact the editor responsible for this story: Andrew Dunn at adunn8@bloomberg.net

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