"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.
A source inside the courtroom, speaking to Fox News afterward, described the questioning by Smith as pointed.
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."