Is the judicial branch the final say on the constitution?

[Abelian Sea]

Faithfully executing the Office involves a lot of things INCLUDING the obligation (the oath) to "preserve, protect and defend the Constitution."

He can only do that faithfully if he adheres to what the Constitution commands.

And the constitution PLAINLY commands that he execute the Laws. And we are talking here of a properly legislated and Court-upheld law.

The extreme situation we're imagining here, where a veto has been overridden and the Court supports the law but the president believes it to be blatantly unconstitutional, is a case where the President CANNOT fulfill his entire Oath.

There is, in such a situation, a conflict within the Oath itself: executing established statutory law (part of "execute the Office") versus not violating some other part the constitution (part of "preserve, protect and defend the Constitution").

[situation]

Now, then, tell me. In that scenario (no changing it): what SHOULD the President do? What would YOU do?

Should: Remand himself from the impossible situation; resign in disgust.

Would: I'd be strongly tempted to do the same as you would: tell the system to kiss off. May as well: since my ass would be getting fired shortly anyway (2/3rds united Congress + Court backing = screwed recalcitrant prez), I may as well keep my balls.

The thing that would give me pause, would be whether such a blatant act of defiance against the system would actually result in relevant armed conflict; i.e., I'd have to consider how strongly the military felt about it (would a significant portion of them side with me to the point of obeying my orders in defiance of statutory law?) and how the citizenry at large felt (would a significant portion of them side with me to the point of revolting?).

If being defiant, as opposed to resigning, would lead to a real breaking of the government, or bloodshed, I'd have to think long and hard about whether the issue was really worth it.

 

[Liability]

Faithfully executing the Office involves a lot of things INCLUDING the obligation (the oath) to "preserve, protect and defend the Constitution."

And it also includes executing the laws.

But as we know, a law passed in derogation of the Constitution is no law at all. I don't give a crap what the SCOTUS might say if the Constitution is obviously being violated; my allegiance is to the actual constitution not some absurd "finding" by the SCOTUS.

The situation we're imagining is a case where the President CANNOT fulfill his entire Oath. There is, in such a situation (where he has already expended his veto power to no avail), a conflict within the Oath itself.

Nope. The situation is PRECISELY where he CAN and SHOULD obey his oath and NOT political expediency.

He can only do that faithfully if he adheres to what the Constitution commands.

Which PLAINLY includes that he execute the Laws. And we are talking here of a properly legislated and Court-upheld law.

No again. We are talking about improperly legislated law and the Court upholding of that law is plainly itself a violation of the Constitution. This is why I set up the extreme example as I did. The improper legislation, by the way, is no law at all since it violates the Constitution regardless of what an error-prone SCOTUS may rule. Can anyone here say, "Dred Scott?"

[situation]

Now, then, tell me. In that scenario (no changing it): what SHOULD the President do? What would YOU do?

Should: Remand himself from the impossible situation; resign in disgust.

Exactly the wrong thing to do. Resigning is not even an effort to comply with his oath.

Would: I'd be strongly tempted to do the same as you would: tell the system to kiss off. May as well: since my ass would be getting fired shortly anyway (2/3rds united Congress + Court backing = screwed recalcitrant prez), I may as well keep my balls.

It is not absolutely clear that you WOULD get impeached. Just because some asshole Senators overrode a veto does not mean that they would also deem your refusal to implement that absurd law to constitute a high crime or misdemeanor. Maybe we'd have another Profiles in Courage moment in U.S. history. You know, where President Johnson evaded the Senate trial "conviction" by ONE vote of the courageous Senator.

But even if the Congress did impeach, so what?

The thing that would give me pause, would be whether such a blatant act of defiance against the system would actually result in relevant armed conflict; i.e., I'd have to consider how strongly the military felt about it (would a significant portion of them side with me to the point of obeying my orders in defiance of statutory law?) and how the citizenry at large felt (would a significant portion of them side with me to the point of revolting?).

Personally, I give the PEOPLE more credit than that. Maybe (just maybe) your act of defiance would spark the needed renewal.

If being defiant, as opposed to resigning, would lead to a real breaking of the government, or bloodshed, I'd have to think long and hard about whether the issue was really worth it.

I doubt the American people would fight to GET segregation re-implemented even if the d-bags in Congress thought it was the right remedy. But I don't think a President can lead out of some squeamish fear that there might be violence. Every day with every stupid ass protest in this land (like the idiots protesting the perfectly valid Az Immigration Law) there is always a chance of violence. That's never a good reason to refrain from doing what's right.

 

[CrimsonWhite]

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.

who cares what you believe.

you're wrong.

stop posting on this subject.

Why don't you quit trolling him.

That's twice now.

 

[Abelian Sea]

No again. We are talking about improperly legislated law and the Court upholding of that law is plainly itself a violation of the Constitution. This is why I set up the extreme example as I did. The improper legislation, by the way, is no law at all since it violates the Constitution regardless of what an error-prone SCOTUS may rule. Can anyone here say, "Dred Scott?"

Ah, so that's been the core of our disagreement.

See, I've been thinking that once a bill has been passed by Congress, then either signed by the president or passed over a veto, then it is a United States law. Until it is changed or overturned by the Court, it is in effect, and those whose job it is to enact and enforce laws have a duty to do so. (not that that always happens, but I'm talking abstractly, here)

Predictably (given human nature and the sausage-making process of legislation), some such laws will not sync with the constitution. The established remedy for this is for objections to the law to work through the courts, with the Supreme Court having final appellate jurisdiction and the ability, successfully grabbed/established over two-hundred years ago and retained ever since, to strike down the law if it is, in fact, found to be unconstitutional.

It was the assumption that this process is legitimate that led me to see the general situation in question (where the Executive is the only branch that thinks a law is unconstitutional) as a paradox for the president. But now I understand your objection: that in your scenario, the process was clearly not legitimate, and so the "law" produced is not a real Law, of the sort that the constitution insists that the president execute. Without such an insistence, the only relevant directive left to him is the "preserve, protect, defend" one, and his choice is clear.

Now that makes sense to me, at least in this extreme hypothetical case, where both the Legislative and Judicial branches were so flagrantly derelict.

The kind of scenario I've been thinking more about, though, is one in which reasonable minds could differ over the constitutionality of the law in question. The president thinks it is unconstitutional, but Congress is united enough about it to be able to override a veto, and the Court has decided that it does pass constitutional muster.

In this case, the legislative and court review processes have been followed in good faith, and with at least reasonably defensible results, yet the president feels sure it conflicts with a part of the constitution.

What then should be his duty? Should the president, in non-extreme cases, have the latitude to basically dismiss the other branches of government based on his personal opinion of constitutional law?

Personally, I think allowing the president that much latitude in normal circumstances is essentially a breach of checks and balances. If there is enough political will in Congress to overcome a veto (and consider how hard it would be to get 2/3s of them to agree on what color the sky is), and the top tier of the nation's judiciary system has judged it a legitimate law in accordance with the constitution, then it is the president's job to enact it. If he doesn't, he had better have a damn good reason.

In principle, I think it's kind of like a soldier disobeying orders: permissible, even obligatory, in certain extreme scenarios, but seldom anything more than a dereliction of duty - even if the soldier has convinced himself of the order's illegitimacy.

(of course, in reality the president can get away with a lot; if he's not enforcing something and Congress doesn't care, which happens, then there's not much to be done about it, except maybe a massive shake-up from the public)

 

[JakeStarkey]

A president who refused to enforce and carry out a bill in opposition to the expressed will of Congress and the ruling of SCOTUS may well be impeached successfully.

 

[Liability]

No again. We are talking about improperly legislated law and the Court upholding of that law is plainly itself a violation of the Constitution. This is why I set up the extreme example as I did. The improper legislation, by the way, is no law at all since it violates the Constitution regardless of what an error-prone SCOTUS may rule. Can anyone here say, "Dred Scott?"

Ah, so that's been the core of our disagreement.

See, I've been thinking that once a bill has been passed by Congress, then either signed by the president or passed over a veto, then it is a United States law. Until it is changed or overturned by the Court, it is in effect, and those whose job it is to enact and enforce laws have a duty to do so. (not that that always happens, but I'm talking abstractly, here)

Predictably (given human nature and the sausage-making process of legislation), some such laws will not sync with the constitution. The established remedy for this is for objections to the law to work through the courts, with the Supreme Court having final appellate jurisdiction and the ability, successfully grabbed/established over two-hundred years ago and retained ever since, to strike down the law if it is, in fact, found to be unconstitutional.

It was the assumption that this process is legitimate that led me to see the general situation in question (where the Executive is the only branch that thinks a law is unconstitutional) as a paradox for the president. But now I understand your objection: that in your scenario, the process was clearly not legitimate, and so the "law" produced is not a real Law, of the sort that the constitution insists that the president execute. Without such an insistence, the only relevant directive left to him is the "preserve, protect, defend" one, and his choice is clear.

Now that makes sense to me, at least in this extreme hypothetical case, where both the Legislative and Judicial branches were so flagrantly derelict.

The kind of scenario I've been thinking more about, though, is one in which reasonable minds could differ over the constitutionality of the law in question. The president thinks it is unconstitutional, but Congress is united enough about it to be able to override a veto, and the Court has decided that it does pass constitutional muster.

In this case, the legislative and court review processes have been followed in good faith, and with at least reasonably defensible results, yet the president feels sure it conflicts with a part of the constitution.

What then should be his duty? Should the president, in non-extreme cases, have the latitude to basically dismiss the other branches of government based on his personal opinion of constitutional law?

Personally, I think allowing the president that much latitude in normal circumstances is essentially a breach of checks and balances. If there is enough political will in Congress to overcome a veto (and consider how hard it would be to get 2/3s of them to agree on what color the sky is), and the top tier of the nation's judiciary system has judged it a legitimate law in accordance with the constitution, then it is the president's job to enact it. If he doesn't, he had better have a damn good reason.

In principle, I think it's kind of like a soldier disobeying orders: permissible, even obligatory, in certain extreme scenarios, but seldom anything more than a dereliction of duty - even if the soldier has convinced himself of the order's illegitimacy.

(of course, in reality the president can get away with a lot; if he's not enforcing something and Congress doesn't care, which happens, then there's not much to be done about it, except maybe a massive shake-up from the public)

As I say, I used the rather extreme hypothetical just to make the point. In the real world, the objection on Constitutional grounds might not be (probably would not be) anywhere near as clear cut. That WOULD indeed make the President's duty more uncertain. Nevertheless, if we agree with the basic principle, then IF he finds that a bill violates the Constitution, he has an obligation to refuse to lift a finger to implement at least so far as would permit the Constitutional infirmity to prevail.

As you and I have both noted (and Jokey now joins in belatedly and kind of pointlessly) it is certainly possible that such an act by the President could become grounds for a showdown leading to impeachment. I do not consider the threat (even if likely) to warrant a decision by the President to implement a law he has determined violates the Constitution.

Frankly, I'm not sure he wouldn't be just as guilty of violating his oath if he permitted the judgment of the SCOTUS to substitute for his own if he still considers the law UNConstitutional.

 

[ihopehefails]

Faithfully executing the Office involves a lot of things INCLUDING the obligation (the oath) to "preserve, protect and defend the Constitution."

He can only do that faithfully if he adheres to what the Constitution commands.

And the constitution PLAINLY commands that he execute the Laws. And we are talking here of a properly legislated and Court-upheld law.

The extreme situation we're imagining here, where a veto has been overridden and the Court supports the law but the president believes it to be blatantly unconstitutional, is a case where the President CANNOT fulfill his entire Oath.

There is, in such a situation, a conflict within the Oath itself: executing established statutory law (part of "execute the Office") versus not violating some other part the constitution (part of "preserve, protect and defend the Constitution").

[situation]

Now, then, tell me. In that scenario (no changing it): what SHOULD the President do? What would YOU do?

Should: Remand himself from the impossible situation; resign in disgust.

Would: I'd be strongly tempted to do the same as you would: tell the system to kiss off. May as well: since my ass would be getting fired shortly anyway (2/3rds united Congress + Court backing = screwed recalcitrant prez), I may as well keep my balls.

The thing that would give me pause, would be whether such a blatant act of defiance against the system would actually result in relevant armed conflict; i.e., I'd have to consider how strongly the military felt about it (would a significant portion of them side with me to the point of obeying my orders in defiance of statutory law?) and how the citizenry at large felt (would a significant portion of them side with me to the point of revolting?).

If being defiant, as opposed to resigning, would lead to a real breaking of the government, or bloodshed, I'd have to think long and hard about whether the issue was really worth it.

How can the president uphold the constitution and unconstitutional laws at the same time? If he took an oath to uphold the constitution and execute the laws then how can execute unconstitutional laws and still say he is upholding his oath to protect, defend, and preserve the constitution?

I see what you are saying about the president upholding the constitution by fullfilling his constitutional duties such as executing the laws of the federal government but where did courts get the power to not enforce unconstiutional laws since it is not specifically stated in the constitution? If we were to assume that upholding the constitution simply means executing the duties prescribed to that branch then the courts really have no power to whatsoever to 'nullify' any unconstitutional laws since it is not specifically stated in the constitution itself.

Where does the justification come from for one branch of the government to not uphold a law (the judicial branch) based on it being unconstittutional and the other one doe not?

 

[ihopehefails]

A president who refused to enforce and carry out a bill in opposition to the expressed will of Congress and the ruling of SCOTUS may well be impeached successfully.

Wouldn't it be better to impeach on the basis of not upholding the constitution instead since it is the highest law of the land?

 

[SFC Ollie]

John Marshall has made his decision, now let him enforce it!

~Andrew Jackson

I guess Uncle John didn't get along with Jackson, I know he didn't get along with cousin Jefferson either.

Yet he is still considered the Father of the Supreme court.

 

[JakeStarkey]

He certainly is the force behind judicial review and the Supreme Court. Jefferson did not have the power to fight Marbury. Why? He would have had to turn over Marbury's commission to him, a federalist, in order to keep the row going. TJ would not do that.

On the other hand, JM and the court had lost some mystique muscle by the late twenties. Georgia ignored one of the SCOTUS to realize an accused from state custody for wrongful conviction of murder; GA hung him anyway. And, of course, Jackson went right ahead with Indian removal despite the SCOTUS finding in Worcestershire.

The last SCOTUS ruling ignored by a president, that I know of, would have been Dred Scott by Lincoln.

 

[bodecea]

Didn't Democrat Andrew Jackson ignore a SCOTUS ruling and challenge them to enforce it?

Yeah...and we got the Trail of Tears out of that one.