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President Obama's comments spark Marbury v. Madison debate

President Obama's comments on the Supreme Court's decision on the health care law brought up the precedent set by Marbury v. Madison.

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President Barack Obama's comments on April 2, 2012 about the Supreme Court's decision in the health care law case sparked questions about the precedent set by Marbury v. Madison. (BRENDAN SMIALOWSKI/AFP/Getty Images)

President Barack Obama's comments on April 2, about the Supreme Court's ruling on the health care law have sparked a debate among political analysts about his understanding of judicial review and Marbury v. Madison.

On Monday, Obama said he was confident that the health care law would be upheld by the Supreme Court, stating, "I am confident that the Supreme Court will 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," according to The Guardian.

Obama added, "I'd just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law."

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The comments sparked debate in the conservative political sphere on whether the President, who was a constitutional law professor, failed to take into account the precedent set by Marbury v. Madison.

The Wall Street Journal published an editorial wondering if the President had somehow skipped teaching the historic case.

The editorial said: "In Marbury in 1803, Chief Justice John Marshall laid down the doctrine of judicial review. In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of those laws were passed by a "democratically elected" legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by "strong" majorities."

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On Tuesday, a day after his original remarks, Obama clarified his position, saying, "The point I was making is that the Supreme Court is the final say on our Constitution and our laws and all of us have to respect it. But it's precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly-elected legislature, our Congress," according to CNN.

The story didn't end there, however, as Judge Jerry E. Smith of the Fifth Circuit Court of Appeals in Texas challenged Obama's original comments on Tuesday and asked for a letter confirming the Attorney General and Department of Justice's position on judicial review, according to CBS News. He asked in court, "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?"

When the DOJ lawyer responded in the affirmative, Smith continued, "I'm referring to statements by the president in past few days to the effect, and 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 to, of course, Obamacare – to what he termed broad consensus in majorities in both houses of Congress."

Smith added, "I want to be sure you're 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," according to CBS News.

Attorney General Eric Holder responded to Smith's comments on Wednesday, saying, "I think what the president said a couple of days ago was appropriate. He indicated that we obviously respect the decisions that courts make," according to the Associated Press.

Holder added, "Under our system of government ... courts have the final say on the constitutionality of statutes. The courts are also fairly deferential when it comes to overturning statutes that the duly elected representatives of the people, Congress, pass."

White House spokesman Jay Carney also tried to clarify Obama's remarks, saying they were not meant to bully the justices. "It's the reverse of intimidation," he said. "He's simply making an observation about precedent and the fact that he expects the court to adhere to that precedent," according to the AP.

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http://www.globalpost.com/dispatch/news/regions/americas/united-states/120404/president-obama-and-marbury-v-madison