According to this Guardian article here
is he correct? If so is this as scary as it sounds?
If there was any justice this would lead to Congress impeaching the President, I would imagine.
Short answer, no with an F.
Long answer, yes with a But.
From what I know about US politics he has no real chance of winning the primaries so talk like this is cheap.
It happens- remember Andrew Jackson’s famous quip? “Judge Marshall has made his decision- now let him enforce it.”
And when the Supreme Court wouldn’t accommodate FDR’s New Deal plans, he cowed them into submission* by threatening to pack the Court with additional justices. After all, the Constitution never says explicitly that there can only be 9 justices.
- Standard history books usually say the opposite, that FDR failed in his “Court packing.” But the Supreme Court got the message, and stopped blocking FDR’s plans.
I hope this is not completely off topic but how complicated would it be for the American people to take back some of the power the politicians have gained over time. The best I can tell from history FDR seemed to be the start of a landslide of political power gains. I am not knowledgeable in politics at all.
Also, it depends on the decision.
As others have said, the president could be impeached if congress also sided with the court. There’s the next election.
Finally, there’s underlings. The president is presuming that his people will follow like sheep or share his view that it is acceptable to ignore the constitution. A lot of people in high office (a) actually have principles or (b) are thinking of their career and the future after this president.
In the “night of long knives” IIRC Nixon fired 2 attorneys general before he found one that would obey his order to fire the special prosecutor - and that was not even a supreme court order.
Let’s say it’s something like the Brown desegregation order. That was famous for the troops that went in to enforce it. However, a civic-minded local authority, or even a local FBI office or local commander, could respond to a request (absent an order from their direct superior to stand down) and decide that civil order and peace required them to do something - then what? The president sends in another battalion to take out the first? Would that one obey orders? Would a court-martial work afterwards if the defence is that the president’s order is unconstitutional?
If it came down to this sort of seriosu pissing match, odds are it would be such a divisive issue that both sides would not back down. People all up and down the food chain would have to decide, do we want outright chaos and country-wide civil war, or do we want to follow the constitution even when we disagree? Other countries have plunged into anarchy over such issues. One way or another, things would not be the same.
Technically, no, although he might argue that Marbury v Madison was a Court decision, and it’s circular reasoning to say that the constitution allows judicial review because the SCOUTS has decided it says that. It would be a huge departure from established precedent, and I doubt a significant number of people in the US want to return to the days of Andrew Jackson.
But in practice, it would depend on how popular the decision was. If it’s a very unpopular decision, the House might be reluctant to take up articles of impeachment, and the populace might not hold it against him in the next election.
ex Parte Merryman.
Which means “Yes, if he can get the military to go along with it.”
The answer is Yes. There is no strong mechanism for making the three branches of government cooperate with each other. As noted, Congress can use impeachment to limit the president, but they can do this whether or not the POTUS is ignoring the SCOTUS, and have only used it twice, neither time involving constitutional issues.
Nothing but tradition maintains the cooperation between the three branches of the US government, in order to avoid a Constitutional Crisis.
ETA: The Johnson impeachment might be considered a constitutional issue, though generally considered a primarily political act.
Thanks for the replies here’s hoping the courts do not make any judgments which are ‘fundamentally wrong’ for the foreseeable future.
The simple answer is “constitutional crisis”.
The complicated answer is “that’s why we have separation of powers in the first place”. No branch of government gets the final say. They have to work together eventually to be effective. Ultimately, elections would have to decide any continuing issue, but it’s likely public opinion would sway one side or the other before it came to that.
I for one look forward to restoring power to banks and corporations and taking it away from my elected representatives. Of course the big problem is when we allowed the Feds to stop the states from having Jim Crow. Now I have to sit next to brown people at lunch.
Could congress take Constitutional law back to January 1803?
In some bizarre (or happy, if you like) turn of events, Gingrich gets elected to POTUS. Two years later, a groundswell of libertarianism gives him two friendly houses of congress. His concern for “activist” judges becomes an obsession.
They pass (and he signs) a law that says, in short, “Marbury v. Madison was decided wrongly. The jurisdiction of the Federal courts of the United States, up to and including the Supreme Court, is limited to the scope explicitly stated in the Constitution.”
For ease, assume that the bill has a comprehensive set of provisions for dealing with the transition–that all rulings are by default valid until Congress (or some congressional body) decides otherwise, etc.
Aside from upsetting tradition, what is* legally *wrong with that? There would be an identity crisis, but a Constitutional crisis?
If the courts review that law, and find it is unconstittional, I assume it would not be valid. If a law is unconstitutional, it never was in effect. An unconstitutional law cannot stand by saying “I am constitutional so the SCOTUS cannot touch me.” This would require a constitutional amendment.
Plus, if the issue is that divisive, then rogue elements all over the country will be arresting each other. If the generals are presented with the dilemma to obey an unconstitutional order, “arrest these people in defiance of the courts and constitution” how many will obey? Of course, the army cannot act unless the president declares there is an insurrection? That would follow from a gunfight between state troopers and FBI, or federal agents for vs. against the different sides…
Really, the question is - is it worth tearing the country apart and destroying the constitution to (hopeflly) win a point? Or should the president defer to the constitution?
A good example would be the abortion laws… some people seem to take their position so strongly they WOULD defy established law and precedent. But I suspect a lot of people, even on the anti-abortion side, would rather back a distasteful (to them) SCOTUS decision than plunge the country into chaos and civil war.
And of course, if the people who defied the president, or engaged in inter-service firefights to physically enforce their side are charged, they appeal all the way up to… The Supreme Court. What then does the president do when basically the court decides that those who agree with it go scot-free (or, dred-scot-free)? Arrest them and hold them without charges, as terrorists? As if congress would back a law permitting that…
Is there a mechanism for overturning the Supreme Court decisions? Or do they have total power in their decisions?
Probably passing a Constitutional Amendment that addresses the disputed decision would be at least one way.
The decisions can’t be overturned (except by a subsequent supreme court).
However they can be made moot by a Constitutional amendment or possibly by passage of a new law with a similar effect that avoids whatever Constitutional issue the first one ran afoul of.
Which “Night of long Knives” are you referring to in this context?
I can’t find the relation to Nixon there …