Is the judicial branch the final say on the constitution?

Discussion in 'Law and Justice System' started by ihopehefails, May 1, 2010.

  1. ihopehefails
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    ihopehefails BANNED

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    I believe that the three branches of government are separate and equal to each other which means that the executive branch can't tell the judicial branch on how to interpret the constitution but this being said does the judicial branch have a right to tell the executive branch on how to uphold the constitution? For example: Lets say an executive decides to veto certain provisions of a budget that he believes are unconstitutional but the judicial branch says he can't do this. They do not have the right to tell the executive branch on how to 'uphold the constitution' as they see fit anymore than the executive branch has the right to tell the judicial branch on how they should uphold the constitution.

    My point is is that the judicial branch doesn't have the final say over the other two branches of government.
     
  2. Abelian Sea
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    No. They have a right to tell him, in the context of particular cases that come before them, what the constitution they're both upholding means.

    Like a line-item veto? I don't think the president can do that; he either signs the whole bill or vetoes the whole bill. If that's the case, and he tries line-item vetoing anyway, then yes, the SC could ultimately tell him he can't - specifically by telling him that the constitution says he can't. Of course a relevant case would have to come before them first; they couldn't just drive over and bat him on the nose with a rolled-up copy of the Constitution.

    Not normally, but in certain corner cases the Court could, directly or indirectly, change Executive practices.

    One case would be when the Executive is implementing an unconstitutional law. In that case the Court wouldn't change how the Executive is implementing law, but it would change the law that the Executive is implementing, which would result in some practical policy changes.

    Another case is if the Executive is implementing laws in ways that infringe on people's constitutional rights; that would be a more direct, "bad President, no you can't do that" sort of situation, rare but well within the Court's jurisdiction.

    In either case, again, the Court would have to wait for a case to come before them that bears on the situation. The Judiciary, structurally, is reactive rather than proactive.

    That's true. The Court works from the constitution, but Congress can change the constitution (or, preferably, rewrite laws that the Court strikes down so as to accomplish the same goal in a constitutional way), and meanwhile the President has a great deal of leeway when it comes to actually making the laws happen, whatever their nature or duration.
     
  3. Oddball
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    Even though they weren't set forth to have such say-so, the decision in Marbury v. Madison seized that power for the judiciary.
     
  4. JakeStarkey
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    That was not new to American legal and constitutional history. On judicial review, seven of nine convention members and nine of thirteen states approved of the concept, I have heard. I will go looking for that set of quotes. Of course, Jefferson and a whole host of prominent Americans since then have said, "hell no that's activism", unless the decision was one they liked.
     
  5. Liability
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    Well holy freaking moly. It turns out that on this topic, I'm all nuanced and shit.

    Marbury v. Madison WAS a power grab. The SCOTUS assumed and took unto itself a broad power that was not explicitly granted to them in the Constitution. That said, I will (speaking just for myself) concede that there is plausibility in the proposition that the power of the SCOTUS to judicially nullify a law passed by Congress and signed by the President if it transgresses the dictates of the Constitution IS an implied power derived from the powers which were granted to the Judicial Branch.

    Here's where it gets a bit nuanced.

    NO, they are NOT the final say. In most matters, perhaps, in the ordinary course of things, they COULD be. Often they SHOULD be. But nowhere is it written that the other branches cannot exercise (in some appropriate fashion) a combined CHECK on the determinations of the Judicial Branch!

    Moreover, just because the SCOTUS claimed FOR ITSELF the power to "say what the law is" (which is over-reaching nonsense), EVEN IF we concede that the Judicial Branch does have and should have SOME such power does NOT mean that their power is or should be exclusive.

    If Congress passes a law (perhaps overriding a veto) that the President deems unConstitutional and refuses to "enforce," a lawsuit might find its way to the SCOTUS to "determine" whether or not that law (in whole or in part, as written or as possibly executed) violates the Constitution. Suppose the SCOTUS gives it a clean bill of health. Does that oblige the President to give effect to it when HE (or she) determines that it is still unConstitutional? I say, "no way."

    I believe that in keeping allegiance to his Oath, the President would then be perfectly justified in pronouncing that, notwithstanding the determination of the SCOTUS, HE finds the law to be unConstitutional and that, therefore, he will deem it a nullity and refuse to enforce it in any way, shape, manner or form.

    The Court has no authority then to do diddly dick. Congress could still act, presumably. It is conceivable that they could initiate impeachment proceedings . . . . but that's a whole other question.
     
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    Last edited: May 2, 2010
  6. CrusaderFrank
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    Didn't Democrat Andrew Jackson ignore a SCOTUS ruling and challenge them to enforce it?
     
  7. NYcarbineer
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    The Court is a product of the other two branches. You can't get on the Supreme Court without the appointment and consent of the executive and legislative branches. The executive and legislative branches are a product of the People, therefore the court is a product of the People. Additionally the Constitution can be amended to say just about anything the People want.

    So the People have the final say.
     
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  8. Abelian Sea
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    I think it is the purpose of the Executive branch to implement the laws made by Congress (and, if it comes up, given the constitutional thumbs-up by the Court).

    Saying that the Executive branch, structurally, can decide which laws to enforce is, I think, a violation of the basic checks-and-balances of our governmental structure.

    In practice, of course, the Executive does have the ability so soft-pedal the enforcement of certain laws that those laws almost may as well not exist (say, for example, the existing laws designed to prevent massive illegal immigration). In such a case, Congress is the proper check (I can't really see how a case would make it all the way to the SCOTUS if the basic question was only whether or not the law should be enforced), but, again in practice, it would take a united and strong-spined Congress to do such a thing:

    That would be the proper remedy for a President who refused to enforce law.

    The only ways a President could get away with this are (a) if Congress just doesn't really care, or (b) if the law really is unconstitutional, in which case he should have the Court on his side and be exonerated by the law being struck down.

    If it's a case where the Court thinks it's constitutional and the Congress cares, then the President deserves to be removed from office for not implementing it. If he really thinks it was unconstitutional, then he will have the succor of a clean conscience to go along with his presidential retirement package.
     
    Last edited: May 2, 2010
  9. Liability
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    Yep. Using almost those precise words, in fact! "John Marshall has made his decision. Let him enforce it."

    (Jackson may have been a prick in that particular instance, but he at least understood some of the ramifications of the powers associated with the division of government into bfanches.)
     
  10. JakeStarkey
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    No retirement package if convicted and removed from office.
     

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