If thd President can ignore a Supreme Court ruling, I don’t see why he couldn’t ignore a Congressional impeachment and conviction. If the Army still obeys him, he can ignore the voters, too.
That’s because no one has written an article yet. Wikipedia is a work in progress.
That’s circular, isn’t it? Congress can take remove things from court’s jurisdiction (see judicial stripping). Other than “the country would wet itself” (which is a valid enough reason for not acting in the first place), is there a legal argument that Congress lacks this ability?
This, by the way, is simply the logical (and not all that slippery slopish) extension of many arguments for ‘originalism’ and ‘textualism’. Marbury, by not acting, is the first activist decision.
More commonly know as the Saturday Night Massacre.
It’s only circular if the right being stripped was based on constitutional principles. If the constitution guarantees a “right to privacy” which then guarantees a right an abortion, then it would take a cosntitutional amendment to negate that… which (IANAL) is I assume why the various later laws cannot significantly effectively restrict that right.
So on what basis exactly does Marbury rest? (IANAL, please enlighten…) If it’s a law, it can be superceded by a new law. If it’s a constitutional provision (according to SCOTUS) then it can only be supeceded by an amendment.
What effect does a law directing the courts to interpret the constition differently actual have? Seems to me, in effect the law could be sen as rewriting the existing constitution and so could be seen as invalid.
But that’s a different type of issue. Judicial Review is, arguably, not in the constitution. Impeachment and removal from office is explicitly in the constitution.
Of course, it all comes down to the police and military, if push came to shove.
I just added a link to the “Saturday Night Massacre” page to the “Night of the Long Knives” disambiguation page.
WRT judicial review, I would say calling it “tradition” is a bit misleading. There is a history of jurisprudence, going back to English Law (ie, prior to the existence of the USA) supporting the concept. I wouldn’t call those two terms synonyms.
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This is an official warning for trolling in GQ. Do not do this again.
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As Dewey said, this incident is known as the Saturday Night Massacre, not the Night of the Long Knives. It’s in Wikipedia under that name.
Thanks - I knew it had some interesting name. I’ll have to update Wikipedia so I don’t have to admit to my failing recollection.
I’m also reminded of the story of John Ashcroft refusing to sign an surveillance order he found unconstitutional while deathly ill and drugged; despite my and others opinions of the man and the administration, note that he had his principles, and they revolved around the constitution, and in this regard he stuck by them (And he was sharp enough to say that not only would he not sign, but technically he was not acting AG so it was up to Comey, which he had already refused to do).
So this is part of the issue presidents would face if trying to defy the court - people who put principle ahead of convenience and fanatic partisanship.
Any two lawyers can come up with a dozen different interpretations of how things are supposed to work according to any document or laws. Our government and society putter along because we have established traditions of who can do what. Those traditions don’t change on the dictates of one person, but rather after a lot of excited discussion by everybody involved and not involved.
Yeah, the President can ignore the Courts. But it would be a really bad idea. Our little Newtie has a problem thinking that rules and traditions apply to him. Let’s hope he remains a private citizen so he can bless us with the kind of ideas that nobody else would dare say aloud.:smack:
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Political potshots are not allowed in GQ.
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There is a perfectly good thread on this subject in Great Debates. Please keep this one on-track with factual answers and take the debates over to that one.
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I suppose it is a bit more than tradition. But if the POTUS has the support of the Congress, he might ask “How many divisions does the SCOTUS have?”
On a more general note can rulings that laws are unconstitutional just be ignored? Sure if the conviction is appealed all the way up it won’t stand, doesn’t help you when you’re arrested.
I can distinctly remember that the Dallas police department was arresting those without ID on them but that had committed no other crime, the Texas state supreme court ruled that this was not constitutional. The DPD responded that they would continue to arrest and charge people for it and that local DA had their back.
So what happens eventually assuming its an issue people care about?
Constitutional democracy depends on everyone working together in good faith and doing their best to comply with the Constitution as they understand it. When they strongly disagree, or start ignoring each other, a constitutional crisis can develop, and no one can ever know for sure what will happen. Politicians abhor uncertainty, or being on the wrong side of an issue such that they might lose public support or even an election, so they tend to try to avoid such situations.
In the Dallas situation which grude mentions (and about which I’ve never heard before), the court would have several means of getting local officials to obey its rulings, including holding the mayor or the chief of police in contempt, imposing fines, being receptive to multimillion-dollar lawsuits by citizens whose rights had been violated, or even (if Texas law permitted it) suspending or removing the offending public officials from office.
The U.S. Constitution has several glitches/easter eggs or what have you that would technically permit weird things to happen, some of them have never been tested and some of them have. What they all boil down to is “if the public and the other branches stand for it, it can happen.” That’s how a President can ignore the Supreme Court. It takes a majority of the House to impeach and a supermajority in the Senate to remove the President. If the President is ignoring a SCOTUS ruling and enough Senators refuse to vote for removal from office, then essentially the President “can do it.” But to really pull it off takes more than just a sliver of the Senate, it really takes a very strong public backing. Under extreme opposition from the public most Senators, even those who agreed with the President, would be unwilling to fall on the sword to keep the President in office and would vote for his removal.
Because of ill-defined and infrequently tested portions of the Constitution there are also a few different ways to hack your way around SCOTUS rulings. The first one, which truly isn’t a hack, is just to change the Constitution itself. That’s a totally valid procedure, if the SCOTUS says the constitution says something you don’t like, change the constitution itself and their hands become tied. Of course, this is a very difficult matter, but I believe at least the 11th Amendment was directly passed in response to a gravely unpopular SCOTUS ruling.
Another way to essentially “counter” a SCOTUS ruling would be by utilizing jurisdiction stripping. Aside from a narrow class of cases that are considered to be the SCOTUS “original jurisdiction” most cases the SCOTUS rules on are considered part of its “appellate jurisdiction” and the constitution explicitly says the Congress gets to decide what is part of that appellate jurisdiction. In the past, when Congress has stripped the court of appellate jurisdiction over certain matters, the court essentially says “It is within the power of the Congress to do this, and so we cannot rule on this matter.” It’s happened a handful of times.
The way you would use it to overrule a SCOTUS ruling would be to pass a new law identical to the one that was deemed unconstitutional and then strip the SCOTUS of the jurisdiction to rule on it, meaning it would be “unconstitutional in spirit” but without the SCOTUS able to rule on it then it wouldn’t be “technically unconstitutional.” But the lower Federal courts would most likely respect the SCOTUS original ruling, and any cases involving the matter the lower courts would probably issue rulings consistent with the original SCOTUS ruling. So for example if Congress passed a law criminalizing wearing the color purple, and the SCOTUS struck it down as unconstitutional, and then Congress stripped the court of the power to rule on such matters and passed identical legislation then I suspect in the first trial of the first person arrested for violating the statute the judge would probably still defer to the spirit of the SCOTUS ruling and throw the case out. Of course, Congress can always create special courts to handle specific types of cases, and can dissolve any court other than the SCOTUS that it pleases.
It can also remove all of the SCOTUS justices via impeachment, or add 500 justices to the bench.
At the same time the SCOTUS could rule that they interpret say, the 1st Amendment to mean that the President is actually God-Emperor of the United States and serves an unlimited term. There is no technical barrier to these things, only very serious practical ones.
By my calculations, there have been eight constitutional amendments which changed the Constitution in response to Supreme Court rulings:
[ul][li]XIth Amendment (state immunity from federal court jurisdiction), overturning Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793);[/li]
[li]XIIIth Amendment (abolition of slavery), overturning one aspect of Dred Scott v. Sandford, 60 U.S. 393 (1856);[/li]
[li]XIVth Amendment (citizenship of all individuals born within the jurisdiction of the United States), overturning another aspect of Dred Scott;[/li]
[li]XVth Amendment (right of citizens not to be denied based on race or prvious condition of servitude) overturning yet another aspect of Dred Scott[/li]
[li]XVIth Amendment (authorising federal income tax), overturning Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895);[/li]
[li]XIXth Amendment (women’s suffrage), overturning Minor v. Happersett, 88 U.S. 162 (1874);[/li]
[li]XXIVth Amendment (abolition of the poll tax qualification in federal elections), overturning Breedlove v. Suttles, 302 U.S. 277 (1937);[/li]
[li]XXVIth Amendment (lowering minimum voting age to 18), overturning one aspect of Oregon v. Mitchell, 400 U.S. 112 (1970).[/li][/ul]
But decisions whether a law is constitutional are a fundamental SCOTUS jurisdiction. I don’t believe you could remove any law from the right of the courts to rule on its constitutionality without altering the constitution.
If I read Marbury right, it says that the constitution automatically gives SCOTUS the power to review laws and detemine if they fit within the constitution. Otherwise, what good is a constitution that can be overridden by the next law that comes along. That’s why there are constitutional amendments.
(In the Dallas case, a police and prosecutor who enforce an action that they know is not legal are willfully disregarding the law and can personally liable and the city as employer is liable… Wouldn’t want to be a taxpayer there. )