On Executive Authority and Unconstitutional laws

[BenNatuf]

I do see what you are saying and in the end he could face impeachment for such actions.

Thats the check. And, its why a president can't take these actions lightly, if he's going to use his authority that way, he'd better be damned sure of himself. His only insurance against impeachment is the courts agreeing with him. Which so far, in almost every case, courts have. They do give great defferance to the executives interpretations, and only rarely decide against them.

 

[Leweman]

They may have ... Im not sure what specific cases you are referring to that the president didnt agree. Has there been a case where the president didnt agree but the courts ruled it constitutional? You can usually tell how a court will rule as they are just as partisan as any members of the executive and legislative branch though, idealy, they would be unbiased.

 

[BenNatuf]

I do see what you are saying and in the end he could face impeachment for such actions. Simple enough. Heck judicial review itself doesnt really exist in the constitution it was made up after the fact.

I think what a lot of people miss about Judicial review is that court decisions apply the law and are binding on courts. The executive 99.9% of the time aquiesces because in practice not doing so is a useless endeavor as the courts will apply the law the same way the next time as they did the first time. The other thing people miss is that in review most times the courts don't actually "interpret" the law, they adjudicate the executives interpretation. The president has a lot of fucking power, so do the courts, and so does the congress. But the president has more than most people would like to think about.

 

[Polk]

The president doesnt get to interpret the constitution last I checked thats the Judicial Branch. Something Obviously unconstitutional does not exist untill they say it does.

false. Courts do not make laws unconstitutional, the constitution does. The courts merely apply it. A law that is repugnant to the constitution is unconstituional when its written.

Also the idea that courts "interpret" the law is bogus, what courts do is apply the law based on the interpretive arguments of the parties before them. The executive in enforcing the law must first interpret it to discern its meaning, and most court cases are not about the court interpreting anything, they are the courts adjudicating the executive branches interpretation.

You're missing a key point. The Constitution does determine which laws are unconstitutional. However, the Supreme Court is the final arbiter of that determination (see United States v. Nixon). Otherwise, the President is, in effect, an elected absolute monarch.

 

[Leweman]

I agree with that. The congress has the most power as a branch, but the president has the most power as an individual person.

 

[BenNatuf]

They may have ... Im not sure what specific cases you are referring to that the president didnt agree. Has there been a case where the president didnt agree but the courts ruled it constitutional? You can usually tell how a court will rule as they are just as partisan as any members of the executive and legislative branch though, idealy, they would be unbiased.

I can think of many cases where the courts have ruled a law that was being enforced unconstitutional (if you think about it how repugnant is that), the only case I can think of off the top of my head where the President argued the unconstitutionality of a law and lost (other than executive privledge cases, which have a lot to do with the person of the President and not the power of the office) was Andrew Jackson. And in the end he defied the courts and I believe was impeached but not convicted. haven't realy read it through, but I believe thats it.

 

[BenNatuf]

The president doesnt get to interpret the constitution last I checked thats the Judicial Branch. Something Obviously unconstitutional does not exist untill they say it does.

false. Courts do not make laws unconstitutional, the constitution does. The courts merely apply it. A law that is repugnant to the constitution is unconstituional when its written.

Also the idea that courts "interpret" the law is bogus, what courts do is apply the law based on the interpretive arguments of the parties before them. The executive in enforcing the law must first interpret it to discern its meaning, and most court cases are not about the court interpreting anything, they are the courts adjudicating the executive branches interpretation.

You're missing a key point. The Constitution does determine which laws are unconstitutional. However, the Supreme Court is the final arbiter of that determination (see United States v. Nixon). Otherwise, the President is, in effect, an elected absolute monarch.

Yes, according to the courts the courts are the final arbiter (and in just about any conceivable case they should be), you'd expect them to say someone else is? if they cannot be checked we are governed by Judicial fiat... how is that any better? Also you are missing the point here, I didn't say the president was the "final arbiter", I said he gets the FIRST bite of the apple.

 

[Leweman]

Andrew Jackson was never impeached. You must mean Andrew Johnson.

 

[BenNatuf]

Andrew Jackson was never impeached. You must mean Andrew Johnson.

You are correct!! my bad, getting late

 

[Polk]

false. Courts do not make laws unconstitutional, the constitution does. The courts merely apply it. A law that is repugnant to the constitution is unconstituional when its written.

Also the idea that courts "interpret" the law is bogus, what courts do is apply the law based on the interpretive arguments of the parties before them. The executive in enforcing the law must first interpret it to discern its meaning, and most court cases are not about the court interpreting anything, they are the courts adjudicating the executive branches interpretation.

You're missing a key point. The Constitution does determine which laws are unconstitutional. However, the Supreme Court is the final arbiter of that determination (see United States v. Nixon). Otherwise, the President is, in effect, an elected absolute monarch.

Yes, according to the courts the courts are the final arbiter (and in just about any conceivable case they should be), you'd expect them to say someone else is? if they cannot be checked we are governed by Judicial fiat... how is that any better?

The Justices don't have command of an army to enforce their edicts, for starters.

Also you are missing the point here, I didn't say the president was the "final arbiter", I said he gets the FIRST bite of the apple.

Even that's not true. He has no more of a role in the process than Congress.

 

[Leweman]

It was relating to a tenure of office act he deemed unconstitutional and his opinion was upheld but nearly 50 years later. Which makes you think should that count anyway?

 

[Polk]

They may have ... Im not sure what specific cases you are referring to that the president didnt agree. Has there been a case where the president didnt agree but the courts ruled it constitutional? You can usually tell how a court will rule as they are just as partisan as any members of the executive and legislative branch though, idealy, they would be unbiased.

I can think of many cases where the courts have ruled a law that was being enforced unconstitutional (if you think about it how repugnant is that), the only case I can think of off the top of my head where the President argued the unconstitutionality of a law and lost (other than executive privledge cases, which have a lot to do with the person of the President and not the power of the office) was Andrew Jackson. And in the end he defied the courts and I believe was impeached but not convicted. haven't realy read it through, but I believe thats it.

The Supreme Court never said the Tenure of Office Act was constitutional. In fact, when they finally got around to ruling on the principle, in 1926, they declared such laws unconstitutional.

 

[BenNatuf]

It was relating to a tenure of office act he deemed unconstitutional and his opinion was upheld but nearly 50 years later. Which makes you think should that count anyway?

Which of course makes you wonder why the courts didn't just follow Marbury's precedent when it came to the unitary executive and the presidents power to fire people in his administration.

And it counted while he was alive and President which was the only time he could have been impeached... but yeah, i get your point. It would seem that except for cvlaims of "executive privledge" where criminal activity is suspected the presidents determinations are batting 1000.

 

[Polk]

It was relating to a tenure of office act he deemed unconstitutional and his opinion was upheld but nearly 50 years later. Which makes you think should that count anyway?

Which of course makes you wonder why the courts didn't just follow Marbury's precedent when it came to the unitary executive and the presidents power to fire people in his administration.

And it counted while he was alive and President which was the only time he could have been impeached... but yeah, i get your point. It would seem that except for cvlaims of "executive privledge" where criminal activity is suspected the presidents determinations are batting 1000.

Worcester v. Georgia?

 

[BenNatuf]

They may have ... Im not sure what specific cases you are referring to that the president didnt agree. Has there been a case where the president didnt agree but the courts ruled it constitutional? You can usually tell how a court will rule as they are just as partisan as any members of the executive and legislative branch though, idealy, they would be unbiased.

I can think of many cases where the courts have ruled a law that was being enforced unconstitutional (if you think about it how repugnant is that), the only case I can think of off the top of my head where the President argued the unconstitutionality of a law and lost (other than executive privledge cases, which have a lot to do with the person of the President and not the power of the office) was Andrew Jackson. And in the end he defied the courts and I believe was impeached but not convicted. haven't realy read it through, but I believe thats it.

The Supreme Court never said the Tenure of Office Act was constitutional. In fact, when they finally got around to ruling on the principle, in 1926, they declared such laws unconstitutional.

Then what was he impeached for? Oh, thats right, defying the courts order to obey it. Are courts in the habit of ordering compliance with unconstituional laws? When they make a determination to apply the law do they say "This law is constitutional"? Are you arguing for arguments sake?

 

[BenNatuf]

It was relating to a tenure of office act he deemed unconstitutional and his opinion was upheld but nearly 50 years later. Which makes you think should that count anyway?

Which of course makes you wonder why the courts didn't just follow Marbury's precedent when it came to the unitary executive and the presidents power to fire people in his administration.

And it counted while he was alive and President which was the only time he could have been impeached... but yeah, i get your point. It would seem that except for cvlaims of "executive privledge" where criminal activity is suspected the presidents determinations are batting 1000.

Worcester v. Georgia?

Not familiar with it... synapsis?

 

[BenNatuf]

To be honest I'm kinda tired and am going to turn in. Thankyou both for the discussion and debate, and Polk, I'll look up that case tomorow and post something on it. Sorry, but I'm noddin' off here.

 

[Polk]

Which of course makes you wonder why the courts didn't just follow Marbury's precedent when it came to the unitary executive and the presidents power to fire people in his administration.

And it counted while he was alive and President which was the only time he could have been impeached... but yeah, i get your point. It would seem that except for cvlaims of "executive privledge" where criminal activity is suspected the presidents determinations are batting 1000.

Worcester v. Georgia?

Not familiar with it... synapsis?

State of Georgia convicts seven missionaries for living in the Cherokee territory with a license. They refuse to leave and were arrested. Supreme Court rules 6-1 that Georgia did not have jurisdiction. Jackson refuses to force Georgia to release the prisoners.

 

[BenNatuf]

Worcester v. Georgia?

Not familiar with it... synapsis?

State of Georgia convicts seven missionaries for living in the Cherokee territory with a license. They refuse to leave and were arrested. Supreme Court rules 6-1 that Georgia did not have jurisdiction. Jackson refuses to force Georgia to release the prisoners.

What does that have to do with the President finding a law passed by the Congress to be unconstitutional and not enforcing it? There is no constitutional provision declaring he must obey the edicts of the court with regard to the authorities of the states. The courts ordered GA to release them, the issue it would seen was between the court and the state of GA. GA did not comply, and I can find nothing that declares the Perisdent must enforce its opinions. The President does not serve the courts.

Off the top of my head, still haven't read it.

 

[Greenbeard]

No, I'm saying that the courts determine the constitutionality of the law in its application, and the executive must make every effort to reconcile enforcement of the law with the constitution, but if he can't, he has the option of non-enforcement (in fact it would be his duty)... which would then go through the system when someone sued to compel enforcement.

What does that have to do with the President finding a law passed by the Congress to be unconstitutional and not enforcing it? There is no constitutional provision declaring he must obey the edicts of the court with regard to the authorities of the states. The courts ordered GA to release them, the issue it would seen was between the court and the state of GA. GA did not comply, and I can find nothing that declares the Perisdent must enforce its opinions. The President does not serve the courts.

Perhaps you're correct but I'm curious about this view of the supremacy of executive whim. Does this imply that if a bill is duly passed by both chambers of Congress, signed into a law by a president, and subsequently struck down by the courts as unconstitutional, the president is in fact duty-bound to continue enforcing or implementing that law as long as he's fervently convinced of its constitutionality?