Attorney General Eric Holder acknowledged Wednesday that the "courts have final say," and said his department would respond formally to an appeals court order to explain whether the Obama administration believes judges in fact have the power to overturn federal laws.
The attorney general, at a brief press conference in Chicago, made clear the administration thinks they do.
"We respect the decisions made by the courts since Marbury v. Madison," Holder said Wednesday, referring to the landmark 1803 case that established the precedent of judicial review. "Courts have final say."
The comments come after a three-judge panel for the 5th Circuit Court of Appeals on Tuesday ordered the Justice Department to explain its position by Thursday at noon. It marked the latest escalation between the two branches of government over the federal health care overhaul, after President Obama cautioned the Supreme Court against overturning the law and warned that such an act would be "unprecedented."
Holder said Wednesday that "we are formulating a response now." He also described the president's comments as "appropriate," saying that while the courts have final say they "are also fairly deferential when it comes to overturning the statutes that the duly elected representatives of the people -- Congress -- passed."
He said the department is "confident health care reform will stand constitutional muster."
Meanwhile, White House Press Secretary Jay Carney continued to defend the president's remarks -- sparring at length with reporters at Wednesday's press briefing.
Carney has argued that there's no dispute from the administration regarding the courts' authority to strike down laws. He says the president was instead referring specifically to the traditional deference the court has shown Congress when it comes to laws addressing challenges to the economy -- such as health care.
"What he did was make an unremarkable observation about 80 years of Supreme Court history," Carney said Wednesday. He went on to say, "It's the reverse of intimidation."
Though Carney says the president did not misspeak when he discussed the case on Monday, Obama was not quite so specific.
"I'm 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," Obama said on Monday. "And I'd just remind conservative commentators that for years what we've 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. Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step."
Obama reiterated his stance on Tuesday, saying the court has traditionally shown "deference" to Congress and that "the burden is on those who would overturn a law like this."
On the 5th Circuit Court of Appeals, a justice on Tuesday chided the administration for what he said was being perceived as a "challenge" to judicial authority -- referring directly to Obama's latest comments about the Supreme Court case.
The testy exchange played out during a hearing over a separate ObamaCare challenge. It marked a new phase in the budding turf war between the executive and judicial branches.
"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?" Judge Jerry Smith asked at the hearing.
Justice Department attorney Dana Lydia Kaersvang answered "yes" to that question.
Smith also made clear during that exchange that he was "referring to statements by the president in the past few days to the effect ... that it is somehow inappropriate for what he termed unelected judges to strike acts of Congress."
"That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority," Smith said. "And that's not a small matter."
Smith ordered a response from the department. The related letter from the court, obtained by Fox News, instructed the Justice Department to provide an explanation of "no less than three pages, single spaced" by noon on Thursday.
All three judges on the panel are Republican appointees.