Do you dispute that the House is designated by the Constitution to introduce all bills for raising revenue? I hope not. But that does not imply that they can repeal Obamacare by fiat. They can only function within the boundaries of government.
If two of the branches of government disagree on a fundamental matter, then the result is a constitutional crisis.
By definition, one side does not automatically prevail in a constitutional crisis. Your statement that “the Supreme Court is the ultimate arbiter of the Constitution” becomes meaningless in such a situation. There are some circumstances in which the Supreme Court would win, as with forcing Nixon to give up his tapes. Then the Court was seen as acting more properly and legally than the President, so it had the entire country’s confidence and backing. If the Supreme Court tried to declare itself King, it wouldn’t be seen this way and nothing it did would last a second.
This entire scenario postulates that one of the branches of government can dominate the other two. Not in these United States. It is a fundamentally mistaken view of how the country operates.
At least we’re now acknowledging that this would be a constitutional crisis. brazil84 is entirely correct that there is no constitutional mechanism for ignoring a Supreme Court order. It may be that Exapno is correct that at least some such orders would in practice be ignored, but if so, we are into the realm of coup and counter-coup. Once we’ve established that the Court can be ignored, we have started down the road to abolishing judicial review as we know it (over federal law, anyway).
And, of course, the establishment of such judicial review was itself arguably an extra-constitutional seizure of power by the Supreme Court, which the nation accepted and built into its constitutional structure. It’s not clear to me how this cuts, though: On the one hand, it’s support for the idea that judicial review is not fundamental and can be lived without, but on the other hand it supports a suggestion that the country is capable of absorbing a constitutional coup by the Court without harm.
As a practical matter, that’s not true. The jurisdiction of the courts is set up by the Constitution as well as by statutes enacted by Congress. That Constitution and those laws are then interpreted by the courts, including the Supreme Court.
There are literally hundreds of opinions written by federal court judges setting for decisions as to their own jurisdiction.
Anyway, I am trying to understand your position and it would be helpful if you would answer the questions I asked you:
Do you dispute that at least in theory, the Supreme Court is the ultimate arbiter of the Constitution?
Do you agree that if Ravenman says that the Constitution says X, and the Supreme Court says that the Constitution says Y, then Y will prevail, at least in theory?
When you claim that according to me, the Supreme Court has a “trump card to overrule all the checks and balances ingrained into the Constitution,” are you saying that this is my position as to theory or practice?
Please answer my questions so that I can understand your position.
I’m not sure I understand your point. “repeal Obamacare by fiat” means refusing to approve funding for it?
It depends whether you are talking about theory or practice. I was careful to include the qualifier “at least in theory” in my statement. Which you then conveniently omitted.
Please respond to the statements I actually make, and not the statements you wish or imagine I had made.
I have never said otherwise. Did you read my very first post in this thread?
Again, please respond to the statements I have actually made – not what you wish or imagine I have said.
By the way, I have never disputed that as a practical matter, the Supreme Court hypothesized in the OP would be ignored. Just look at my very first post in this thread.
You need to read the Constitution. Especially since you have to take someone’s word for revenue bills originating in the House.
I find your continual use of “in theory or in practice” to be a meaningless phrase that allows you to post unsubstantiated conjecture and pass it off as sounding authoritative. It’s of no use for me to respond to questions predicated on the “theory/practice” matter, because it seems clear you don’t really understand the constitutional law to the extent that such meaningless distinctions inform any of the matters at issue here.
Again, accepting judicial review at all is just a matter of custom. There is no binding mechanism of enforcing it in the first place. That is not theory, that is a fact. “In theory”, a power which only exists based on consent in the first place can easily be ignored and it doesn’t violate any of the legal principles of the Constitution.
It is a strong custom, strong enough that people from both sides would most likely reject any modern President or legislator who started a move to disregard an “ordinary” supreme court decision. It is not strong enough that the SCOTUS could have the custom respect if it did any of the outlandish things mentioned in this thread.
I would have been happy to look at whatever clause you wanted to quote. However you don’t seem interested in doing that.
I think most people understand what is meant by the statement that “in theory, the Supreme Court is the final arbiter of what the Constitution says.”
But if you do not understand what that claim means, there is no basis for us to have any discussion. In any event, since you won’t answer the question, it is impossible for me to determine what your position actually is. It doesn’t help that you refuse to quote the part of the Constitution which you think I am missing.
There is no binding mechanism for enforcing any aspect of the Constitution. Ultimately, it’s just a piece of paper signed by a bunch of men who have been dead for over a hundred years.
There’s literally nobody alive today in the United States who agreed to the Constitution (aside for some more recent amendments of course).
Same thing for the entire Constitution. Just words on a piece of paper, agreed to by men who have been dead for over a hundred years.
Please, you’re the one who keeps talking about legal theory. Under that sort of argument you’ll need to acknowledge the fact that judicial review is just “accepted custom.” So there isn’t actually any sort of “in theory” argument that the SCOTUS has absolute power to interpret every aspect of the constitution however it pleases. You’re confusing the word theory with “wild and unsubstantiated claims.”
When you say that “in theory” the SCOTUS could do various outlandish things you’re actually saying, “not based on the text of the Constitution, or the arguments of any learned scholars, I randomly speculate it would be technically legal for the SCOTUS to do that.”
The reason that doesn’t work is the parts of the Constitution that are not well fleshed out essentially operate based on custom, not based on “wild speculative powers.” The customs are akin to a concept of an “unwritten constitution”, not akin to something where “anything goes.”
What I’m saying is, the words of the Constitution are a matter of law. If someone goes on and on about some theory about government, they are clearly not talking about the law or the Constitution, so I’d like to read this theory that’s being discussed.
But my strong suspicion is that the “theory” being discussed is just one person’s opinions on his poorly-informed understanding of the law, and nothing more.
No, I am simply going by long established and long-accepted precedent.
Accordingly long-established and long-accepted precedent, i.e. written opinions of the Supreme Court, the Supreme Court is the final arbiter of American law.
You seem to be objecting that this is simply “accepted custom” and that there is “no binding mechanism” for enforcing this custom. And in a sense, you are right.
But the same thing is true of all law. Ultimately law is just words on a piece of paper. If everyone wakes up tomorrow morning and decides not to follow the law anymore, then the law won’t have any further effect.
It’s not random speculation since there is a lot of precedent that the Supreme Court is the ultimate arbiter of what the Constitution says.
A lot of brazil84’s statements sound like sovereign citizen / freeman-of-the-land logic. Basically SCOTUS has the magic word “unconstitutional” to do whatever it wants. The reality is that the Justices in question would be arrested and quickly impeached, convicted and replaced. Just like telling the traffic judge “I do not bind myself to this contract.” still gets you fined and jailed.
Yes – the fixation on “SCOTUS is the ultimate arbiter of the Constitution” is telling. Joe Montana may be the ultimate quarterback, but that doesn’t mean that he couldn’t ever be tackled.
I agree the five murderous justices would be impeached and removed from office so fast their heads would spin. And that would mean multiple vacancies to fill for whoever’s then living in the White House - imagine the fireworks on Capitol Hill!
I’ll ask directly: What is the legal mechanism for ignoring an order of the Supreme Court?
Let’s make it concrete: Sandra Day O’Connor, after drinking several Long Island Iced Teas in front of any number of witnesses in an Arizona roadhouse, staggers out to her car and gets behind the wheel. Because people are trying to stop her, she guns it hard out of the parking lot. Middle-of-the-road to the last, she swerves up onto the median and kills two pedestrians standing there. She’s arrested and taken to jail.
The next day, the Supreme Court on its own initiative issues a writ of habeas corpus ordering that O’Connor be released and enjoining any further proceedings against her. The writ is unanimous and per curiam, and no rationale is given. (Speculation is either that the Justices are fond of their former colleague, or that she agreed to tell them where to find Lincoln’s gold.)
You’re Sheriff Joe Arpaio. You’re holding an order that you know was issued with no briefing and no process, that conforms to no recognized procedure and no prior substantive law. Do you ignore it? If so, by what authority, and on what grounds? If the Supreme Court is not the final arbiter of the law in this case, who is?
This thread is deteriorating into people shouting past one another for a reason that is endemic to hypotheticals. One side is essentially asking the other to argue a rational process after something magic has happened. The Supreme Court going rogue is the equivalent of magic. Once that happens, any outcome can be plausibly argued and none can be rationally defended. In the extremely unlikely chance of it occurring in reality, the outcome would depend absolutely entirely on the specifics of the event, not on any rationale that was argued previously.
And that’s why “the Supreme Court is the ultimate arbiter of the Constitution” is only a half-truth. It becomes true if and only if you append the qualifier, “under ordinary circumstances and the standard procedures of the legal system.” If you remove that clause, the statement by itself becomes meaningless because it exists in a free-floating non-reality. And that’s true in theory as much as in practice. A “free-floating non-reality” is essentially magic.
If you throw out magic, you’re left with the Constitution. And the Constitution posits three co-equal branches of government. They are deferred to by each other as established in custom and law, but can clash because none of them are final under the Constitution.
For me, that undercuts whatever arguments brazil84 and Tom Tildrum are trying to make. The answer to, “Yeah, but what if something impossible happens, huh?” is, “whatever you want the answer to be.” In the realm of the possible, we’ve reached the limits of rational answers, let alone factual GQ answers.