On Friday, Alan Keyes said that he believes it is the duty of the President to interpret the Constitution in much the same way the Supreme Court does. This, he reasoned, is the point of the oath to uphold, protect, and defend the Consitution.
Thus, if the Supreme Court ruled, in a specific case, that Mr. Jones cannot have a religious icon on his desk in his government office, President Keyes could discharge his role as a check-and-balancer by pardoning Mr. Jones. I’m not sure whether pardon is the right term here, but I do get his point. He can effectively “pardon” Jones by not enforcing the decision.
Keyes reasoned that, just as the court really does not strike down laws per se, but merely renders them moot by its refusal to recognize them as constitutional, so could he do effectively the same thing by enforcing only those laws that he believed to be in accordance with the Constitution that he is sworn to uphold.
As he says, the Supreme Court can’t do anything about his selective enforcement because they are co-equal branches of government. Only Congress can do anything about it by invoking the impeachment process.
What do you think about the President of the United States actively interpreting the Constitution? Is it an infringement on the judiciary, or is judicial review an infringement on the executive? Can (and should) such activism by the President be an impeachable offense? Would it be a high crime or misdemeanor?
It seems to me that this is pretty much what FDR did anyway, and pretty much what Harry Browne wants to do too. Who knows, maybe a president with *good[i/] principles could actually start securing our rights.
I don’t think that what Keyes is saying here is even close to remotely out-of-line (i.e., it’s a pretty conventional thought).
The President’s job is to enforce the laws; but by acting with discretion as to what laws and court decisions are actually to be enforced, the President directly controls policy- the difference between Eisenhower’s actions and Kennedy’s actions on Civil Rights were not due to new court verdicts or legislation so much as different interpretations of what “all deliberate speed” meant in Brown v. BOE.
Rather than infringement, such actions are expected as a part of the checks and balances between the branches of government. As for impeachable behavior, well, Andrew Johnson was impeached ostensibly for not executing a law the Senate had recently passed and that the SC would in short order find absolutely unConstitutional, so ‘impeachable behavior’ tends to rest more with ‘what the party that controls Congress thinks it can get away with’ more than anything else.
“John Marshall has made his decision. Now let him enforce it.”
President Andrew Jackson, under hearing that Chief Justice John Marshall’s Supreme Court had ruled in favor of the Cherokee Nation and their right to enforcement of the treaty granting them land in Gerogia. Jackson ordered federal troops to move the Cherokees off their land anyway.
Given the ample precedence for executive discretion in interpreting the Constitution, how did Roe v Wade get past twelve years of Republican presidency prior to Clinton? And for that matter, O’Hair v United States?
Why do they bitch and moan about stuff during their re-election campaigns that they could have unilaterally changed during their term?
Well, Roe v Wade was a decision that something isn’t illegal, so selective enforcement would not be an option for the pres to circumvent it. He’d have to actually enforce a law that doesn’t exist - a different kettle of fish.
How exactly does the president pick and choose anyway? Which of his duties does this entail? Don’t the police or, at best, the Justice Department actually enforce the laws? They fall under the POTUS, sort of, but he doesn’t AFAIK oversee specific cases day-to-day. If our municipal cops enforce a law passed by congress, what exactly can the president do about it?
I think any oversight of constitutional matters by his office would be in the form of explicit pardons or ordering some specific justice department action through the attorney general. I can see this being used in particular cases here and there, but it generally isn’t going to dominate law enforcement in the country as a whole.
Because Roe v. Wade said that anti-abortion laws were unconstitutional. There’s not much enforcement that can be done regarding that; sure, you can still have people arrested for having abortions, but the SC will just overturn the verdict time and time again.
Bascially, if the SC says, “you can’t do that”, nothing the President does (short of appointing SC justices of an opposite mind) will have an effect (Roe v. Wade); if the SC says, “you must do that”, it falls upon the President to decide how and when and even if (Brown v. BOE).
As for O’Hair v. U.S., I’m not even close to familiar enough to comment.
He’s the commander-in-chief. He can order the military to do anything he wants. Whether the military will obey is another question. If I were in the military, and I was ordered to arrest a woman for having an abortion, I’d refuse the order.
I’ve read that originally, the president’s veto power was thought of as what judicial review is now; if the president thought that a law was unconstitutional, he was supposed to veto it. Does happen that much, does it? Now the veto is more motivated by politics than constitutionality.
Yeah, he has an icecycle’s chance in Hell, but what if it is just a matter that he is being honest, whereas one or more of the others plan the same thing but simply say nothing about it? Like Emperor Roosevelt did.
That’s what I’ve been saying all along; glad you finally see it my way!
The President’s job, per his oath, is to ensure “that the laws be faithfully enforced.” As John Marshall noted 197 years ago, that includes the Constitution as the supreme law of the land. It is the job of the President, the Congress, and the Supreme Court to ensure that the Constitution is followed; where there is dispute as to whether something is constitutional, it is the job of the courts, as the entities qualified to say what the application of the law to a specific situation might be, to determine the constitutionality. We are conflating this task with the responsibility every American has to support and defend the constitution as becomes appropriate in his capacity in life. It is my job as a good citizen to make noises (in the papers, on this MB, by letters to my congresscritter) when a proposed or enacted law seems unconstitutional to me. It is Jodi, DS Young, or Melin’s job as a practicing lawyer to point out to the court before which the case he/she is arguing has been brought that the law in question is unconstitutional. And it is the hypothetical President Keyes (or Bush, or McCain, or Bradley, or Gore) who is charged with ensuring that the Administration does not enforce laws he/she believes to be unconstitutional. Then it is the courts’ responsibility to make the determination of whether the law is or is not constitutional, upon someone bringing a case for their review, with the Supremes having the final say: “We are not final because we are infallible; we are infallible because we are final.” - Justice R. Jackson, c. 1947
But, as Keyes points out, when the court makes a decision, it is only with respect to the case before it, and not a summary decision with respect to the law generally. Granted, Keyes won’t likely be president, but that doesn’t demerit his argument. I don’t see any reference to broad judicial review anywhere in the Constitution. Do you?
Lib., we’re headed for Havana non-stop at an altitude of 30,000 feet, with sunny skies. Let me know when you want to turn the plane back around. Here goes:
Whenever the Supreme Court renders a decision, that decision sets a precedent which courts, ceteris paribus, are obliged to follow. This being the case, the justice assigned to write the court’s opinion nearly always tailors it to set forth in (at least supposedly) clear language what the constitutional principle being set forth is. The decision is not just, Pine Slashings Rural School District may not impose a school prayer collaboratively written by all the ministers within the district, but no school district anywhere in the U.S. may impose a school prayer, regardless of how nondenominational it supposedly is, because that still represents a government establishment of religion. Any other court, right down to the justice of the peace in and for the hamlet of Pine Slashings, has the same right, duty, and privilege, with the provisos that (1) his/her decisions are subject to review on appeal by a higher court, and (2) his/her decisions are binding only on the area over which he/she has judicial jurisdiction.
You are certainly right, “judicial review” as a legal concept or a verbatim phrase appears nowhere in the written Constitution. Now, I presume you are familiar with the general concept in Marbury v. Madison. How, pray tell, is a judge supposed to rule, in the absence of “judicial review” and in accordance with the Constitution? Either the idea of the Constitution as supreme law of the land gets thrown out, along with every safeguard of your rights as opposed to the benighted opinions of any X number of your fellow citizens who by hook or crook get elected as a majority on your city/town/village/county legislative body (and note that the judges - Federal and most state - violate their own oaths of office in doing so), or the courts toss the law they find to be in conflict with the constitution back to the legislature for revision, which differs only in minor detail from judicial review as currently practiced.
You had posed the question of whether I saw any “broad judicial review in the Constitution.” The obvious answer to that question is a simple “No.” Since I have more respect for you than to assume you’re trying to score points off me, I inferred that you were implying an additional question, “Why, then, is judicial review practiced?” I proceeded to suggest an answer to that by reductio ad absurdam of the alternative. Then I asked your view on what alternatives you saw to judicial review as practiced, assuming you had a reason for raising the subject. Sorry if that got convoluted.
I don’t know, Poly. You know that I’m a bit wary of that. I guess there’s a lot of reasons a guy might scratch his head. He might be confused, or it might just be that his head itches.
In other words, if you ask me, when a car is totalled, it’s probably best just to junk it and buy a new one.
Sorry I was so dense. I have nothing but respect for you.
