Is the judicial branch the final say on the constitution?

[ihopehefails]

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.

 

[Abelian Sea]

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?

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.

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.

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.

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.

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.

My point is is that the judicial branch doesn't have the final say over the other two branches of government.

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.

 

[Oddball]

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.

Even though they weren't set forth to have such say-so, the decision in Marbury v. Madison seized that power for the judiciary.

 

[JakeStarkey]

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.

Even though they weren't set forth to have such say-so, the decision in Marbury v. Madison seized that power for the judiciary.

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.

 

[Liability]

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.

 

[CrusaderFrank]

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

 

[NYcarbineer]

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.

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.

 

[Abelian Sea]

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.

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:

Congress could still act, presumably. It is conceivable that they could initiate impeachment proceedings . . . .

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.

 

[Liability]

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

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.)

 

[JakeStarkey]

No retirement package if convicted and removed from office.

 

[Abelian Sea]

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

Yep. Using almost those precise words, in fact! "John Marshall has made his decision. Let him enforce it."

Which, I think, was a gross violation of the proper checks-and-balances systems. It is exactly the Executive branch's job to enforce the law, as created by Congress and ruled on by the Court.

In this instance, I think it was then Congress's job to take the President to task. They didn't, so he got away with it. So it goes.

 

[JakeStarkey]

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

Yep. Using almost those precise words, in fact! "John Marshall has made his decision. Let him enforce it."

Which, I think, was a gross violation of the proper checks-and-balances systems. It is exactly the Executive branch's job to enforce the law, as created by Congress and ruled on by the Court.

In this instance, I think it was then Congress's job to take the President to task. They didn't, so he got away with it. So it goes.

Good analysis. Lincoln ignored Dred Scott and the Republican Congress supported him.

 

[Liability]

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

Yep. Using almost those precise words, in fact! "John Marshall has made his decision. Let him enforce it."

Which, I think, was a gross violation of the proper checks-and-balances systems. It is exactly the Executive branch's job to enforce the law, as created by Congress and ruled on by the Court.

In this instance, I think it was then Congress's job to take the President to task. They didn't, so he got away with it. So it goes.

Poppycock.

It is emphatically NOT a requirement that the President violate his oath of office. As to the Jackson case involving Georgia and the Cherokee Nation, one can certainly argue that adhering to the SCOTUS ruling would NOT have violated the Constitution. But, the particular ruling from the SCOTUS may not have even been a legitimate SCOTUS ruling. It was arguably what the law refers to as "dicta." That is, the "directive" from the Court wasn't a necessary component of the dispute before them. Moreover, Congress happens to have been in agreement with the President not with the SCOTUS, so I'm not sure why you'd suggest that the President had some obligation to enforce the dicta of a Supreme Court decision that Congress had not legislated upon.

And more broadly still, if Congress passes a law that violates the Constitution, but the SCOTUS says it doesn't, then pursuant to his OATH, the President is still free to reject the law as unConstitutional. Prove to me that he has a "duty" to violate his oath. I doubt you can.

 

[Abelian Sea]

And more broadly still, if Congress passes a law that violates the Constitution, but the SCOTUS says it doesn't, then pursuant to his OATH, the President is still free to reject the law as unConstitutional. Prove to me that he has a "duty" to violate his oath. I doubt you can.

Well, let's see what it is exactly that we're deal with.

The oath:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Now what does the Constitution demand of the President? Among other things, (art. 2 sec 3)

"he shall take Care that the Laws be faithfully executed."

It is the Constitutional duty of the POTUS to execute the law.

So, let us imagine a situation in which our theoretical conflict arises.

To begin with, the President certainly vetoed the bill he so disagreed with. He would have no other reasonable first course of action. For the conflict to remain relevant, we must assume that Congress then overrided the veto.

Now the President is in a bit of a quandry, since a Congress united enough on an issue to override a veto (which requires a super-super-majority of 2/3rds of the whole Congress) has the political strength to tear out the President's political nuts over the issue. It would be one thing if the President could be sure the Court would agree with him, since he could then either stall until the law was struck down, or begin implementing it until a case came up for the Court to strike it down, but let's suppose, for the sake of keeping things interesting, that the President is reasonably sure (and he probably could be, in the time it took to get the veto overrid) that the Court would find the law properly constitutional.

In this case, the poor President faces a paradox: insofar as he is required to execute his office, he must implement the law, but insofar as he required to preserve the constitution, he must not implement the law.

At this point, I think the only fully conscionable decision he could make would be to remove himself from the situation. And this would happen if he failed to uphold the law anyway, since such a united Congress, with no judicial roadblocks, would certainly remove him for it in due time.

(more realistically, he would probably implement it so half-heartedly that it would barely have an effect, but even then he would be setting up himself, or his party's chosen predecessor, for a crushing defeat at the polls, because I don't think Congress could be so united unless there was similarly massive unity on the issue on the part of the voters)

 

[jillian]

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.

 

[Liability]

And more broadly still, if Congress passes a law that violates the Constitution, but the SCOTUS says it doesn't, then pursuant to his OATH, the President is still free to reject the law as unConstitutional. Prove to me that he has a "duty" to violate his oath. I doubt you can.

Well, let's see what it is exactly that we're deal with.

The oath:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Now what does the Constitution demand of the President? Among other things, (art. 2 sec 3)

"he shall take Care that the Laws be faithfully executed."

It is the Constitutional duty of the POTUS to execute the law.

So, let us imagine a situation in which our theoretical conflict arises.

To begin with, the President certainly vetoed the bill he so disagreed with. He would have no other reasonable first course of action. For the conflict to remain relevant, we must assume that Congress then overrided the veto.

Now the President is in a bit of a quandry, since a Congress united enough on an issue to override a veto (which requires a super-super-majority of 2/3rds of the whole Congress) has the political strength to tear out the President's political nuts over the issue. It would be one thing if the President could be sure the Court would agree with him, since he could then either stall until the law was struck down, or begin implementing it until a case came up for the Court to strike it down, but let's suppose, for the sake of keeping things interesting, that the President is reasonably sure (and he probably could be, in the time it took to get the veto overrid) that the Court would find the law properly constitutional.

In this case, the poor President faces a paradox: insofar as he is required to execute his office, he must implement the law, but insofar as he required to preserve the constitution, he must not implement the law.

At this point, I think the only fully conscionable decision he could make would be to remove himself from the situation. And this would happen if he failed to uphold the law anyway, since such a united Congress, with no judicial roadblocks, would certainly remove him for it in due time.

(more realistically, he would probably implement it so half-heartedly that it would barely have an effect, but even then he would be setting up himself, or his party's chosen predecessor, for a crushing defeat at the polls, because I don't think Congress could be so united unless there was similarly massive unity on the issue on the part of the voters)

Nice selectivity. But wrong.

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. This does NOT mean what some judges "interpret" it to mean, especially if he disagrees with their mere interpretation.

His oath is NOT to faithfully execute the musings of another branch.

His oath is to preserve, protect and defend the CONSTITUTION.

As I noted earlier, under such circumstances, it is possible that a Congress could try to use their check and balance powers by impeaching him and trying him and convicting him thereby removing him from the Office. But that's a fucking TALL order and depending on HIS rationale for determining that the act is in derogation of the Constitution, they would be hard pressed to qualify his determination as a high crime or misdemeanor.

Let's go with a quick hypothetical example. Let's say that in some dark future, Congress finds that racial disaffection has so badly affected the American society, the "only" recourse is to segregate the military by race. So they pass a law to that stupid effect. The President determines that the law is a facial violation of the the Equal Protection requirement imposed by the Constitution. But still, because his veto gets overridden, the law is enacted. He says, fuck that. I refuse to issue ANY orders to effectuate that law. Somebody sues relying on the law passed by Congress to avoid having to serve with some blacks or with some whites as the case may be. The case goes all the way to the SCOTUS.

I'd love to believe that the SCOTUS would agree with the President. But for this example, let's assume that the goal of achieving racial affection is such an important thing in the mind of the majority of boneheads then serving on the SCOTUS bench, that they kind of ignore the Equal Protection argument and uphold that stupid law.

Holy shit. What now? Should the President bow before the mighty command of the SCOTUS majority? Or should he, in effect, declare that they blew the call and announce that he will not dishonor his oath to support protect and defend the Constitution (i.e., what it actually says)?

Hm. I know I would tell SCOTUS to blow me. I'd tell Congress to blow me. I'd flatly refuse to enforce that patently unConstitutional law and I would NOT permit the erroneous determination of the SCOTUS majority to sway my judgment. Right is right and they would be wrong. And if the Congress tried to impeach me, I'd tell them (in more refined words, no doubt) to kiss my big fat ass.

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

 

[Oddball]

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

~Andrew Jackson

 

[Liability]

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.

As many people as care that you don't wish to hear what his belief is.

He's right.

And he should go right on posting on this topic. You are the one who is wrong (and kind of ) on this matter.

 

[Liability]

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

~Andrew Jackson

BEAT ya! http://www.usmessageboard.com/2268058-post9.html

 

[RetiredGySgt]

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.

The Judicial branch is not the final say unless the Congress and the people allow it to be. There is a thing called the Amendment process. If the Supreme Court determines something is not Constitutional then An Amendment can be created and passed that negates the claim by the Courts.