Supreme Court

Can the President Lawfully Ignore a Supreme Court Decision?

Conservative legal pundits take aim at "judicial supremacy."

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Credit: White House / Flickr.com

Last month Hillary Clinton told a group of supporters that if she is elected to the White House in 2016, she will only put forward Supreme Court nominees who favor overturning the Court's 2010 campaign finance decision in Citizens United v. Federal Election Commission. In short, she will impose a litmus test.

But what if Hillary Clinton is elected president and then decides to pursue a different line of attack against Citizens United? What if President Hillary Clinton decides that Citizens United is so wrong, so contrary to the Constitution, that she is under no obligation to acquiesce in it? President Hillary Clinton then orders the Justice Department to ignore Citizens United and to enforce the very sort of campaign finance restrictions that the Court ostensibly wiped from the books in 2010. Would President Hillary Clinton possess the lawful power to act in this fashion and bypass a decision of the U.S. Supreme Court?

According to a pair of prominent conservative legal commentators, the answer to that last question is yes. Michael Paulsen, co-author of the new book The Constitution: An Introduction, denounces "judicial supremacy" as a "recurrent myth" that harms America. "The power of constitutional interpretation," Paulsen declares, "is not exclusively vested in the courts, with all other branches and officers of government bound to accept, unthinkingly and reflexively, whatever the courts decide." As an antidote to judicial supremacy, Paulsen defends what he calls "the propriety of executive and congressional non-acquiescence in judicial precedent that, in the independent judgment of these other actors, conflicts with the Constitution."

Writing in support of Paulsen's interpretation, National Review's Ed Whelan states the case more bluntly. "We live in a legal culture besotted by the myth of judicial supremacy," Whelan argues. "According to this myth, the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning." In Whelan's telling, the president is not duty-bound to abide by the Supreme Court if the president's "own readings of the Constitution" contradict the Court's unwelcome orders.

But the problem with the Paulsen-Whelan approach, as University of San Diego law professor Michael Ramsey points out, is that it would render "every branch a law unto itself, which seems inconsistent with the framers' idea of a written Constitution to check the branches' tendency to wrongfully augment their power and of an independent judiciary to keep the political branches within their constitutional boundaries." Indeed, as James Madison once observed, one of the chief benefits of having "independent tribunals of justice" in our system is that they can act as "an impenetrable bulwark against every assumption of power in the legislative or executive." Alexander Hamilton made a similar point in Federalist 78. "The courts," Hamilton wrote, "were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority." To say the least, the Supreme Court won't be able to serve as much of a bulwark in a regime characterized by "executive and congressional non-acquiescence" to Supreme Court rulings.

Furthermore, as Georgetown law professor Randy Barnett observes, the Paulsen-Whelan approach falls short when measured against the full historical backdrop that produced the Constitution. "What concerned the framers most was not the existence of the judicial power of nullification," Barnett notes, "but the likely weakness of the judiciary in holding the line. In this concern, they were prescient. As we saw with the challenge to the [Patient Protection and Affordable Care Act], courts more often find a way to 'defer' to the majoritarian branches than to stand in the way."

Ramsey and Barnett both cite a range of persuasive historical evidence to support their side of this debate, including the records of the 1787 Constitutional Convention in Philadelphia and the writings of various constitutional framers and ratifiers. Here's one more piece of founding era evidence which further undercuts the flawed Paulsen-Whelan interpretation.

In 1803 the Virginia jurist St. George Tucker published his View of the Constitution of the United States. It was the first extensive scholarly discussion of the new Constitution and it served as something of a legal textbook for several generations of lawyers and judges. Tucker's View still commands respect today, and has been cited in recent years by the Supreme Court as evidence of what founding era legal experts thought about certain constitutional provisions. In other words, Tucker is a helpful guide to determining the original meaning of the Constitution.

"If the legislature should pass a law dangerous to the liberties of the people," Tucker maintained, "the judiciary are bound to pronounce, not only whether the party accused hath been guilty of any violation of it, but whether such a law be permitted by the constitution." Put simply, if the accused is innocent of violating the law, he must be acquitted. If the law itself is in conflict with the Constitution, it must be voided. "Decisions in favour of the citizen are carried into instantaneous effect," Tucker continued, "by delivering him from the custody and restraint of the executive officer, the moment that an acquittal is pronounced."

Yet how can a Supreme Court decision go into "instantaneous effect" if, as Paulsen and Whelan allege, Congress and the president are each empowered to ignore the Court's order based on their "own readings of the Constitution"? The answer, of course, is that judicial decisions cannot reliably go into effect under this approach.

The judiciary, Tucker concluded, "is that department of the government to whom the protection of the rights of the individual is by the constitution especially confided, interposing its shield between him and the sword of usurped authority, the darts of oppression, and the shafts of faction and violence."

Tucker's view is consistent with Madison's conception of the judiciary as an "impenetrable bulwark" and Hamilton's description of the judiciary as "an intermediate body between the people and the legislature." The Paulsen-Whelan approach, by contrast, would turn Tucker, Madison, and Hamilton on their heads and transform the judiciary into no shield at all.

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  1. What does lawfully have to do with it? Does Scotus have an army?

      1. My understanding is that they swear to not enact or obey any unlawful orders, such as seizing firearms from all citizens, herding us into camps, etc. That’s a very different thing from serving as a standing, unpaid army/police corps to actively enforce something as unclear as this.

        1. Yeah, it would need to spread a lot more to thwart HILLTATOR.

          1. HILLTLER?

  2. Last month Hillary Clinton told a group of supporters that if she is elected to the White House in 2016, she will only put forward Supreme Court nominees who favor overturning the Court’s 2010 campaign finance decision in Citizens United v. Federal Election Commission.

    Broad… daylight.

    Someone said something bad about me… and I’m going to use all the powers of the presidency to stop them!

    1. To the approving braying of the Jackasses.

    2. Further evidence – if needed – of how trashy the Clintons are. Even if you sincerely thought the decision was wrong, if you had any class at all you would not lead the charge against it.

    3. “she will only put forward Supreme Court nominees who favor overturning the Court’s 2010 campaign finance decision in Citizens United v. Federal Election Commission”

      I thought that was the sort of thing that was not supposed to occur during a nomination process. Cherry picking based on how they will rule on specific cases. I also thought judges were not even supposed to answer those sorts of questions.

    4. To be fair she has to say this. The Left are so convinced that CU heralded a massive increase in big money politics that she has to oppose it. Otherwise she could be accused of being in favor of big money politics. Heaven forefend.

  3. In Whelan’s telling, the president is not duty-bound to abide by the Supreme Court if the president’s “own readings of the Constitution” contradict the Court’s unwelcome orders.

    But the president isn’t a legislator. There is an argument that the legislative branch can fight the Supreme Court. I don’t see how the executive branch can make its own law.

    1. All you need is a pen and a phone!

      /O!

    2. I don’t see how the executive branch can make its own law.

      It can’t, it is tasked with administration of the law. Hence, the mind-numbing contortions emanating from the White House in the form of executive opinions and letters.

      1. Look up the Administrative Procedure Act. It allows bureaucracies – executive branch – to make regulations that have the effect of law, without Congressional approval.

    3. I have Paulsen’s book. His assertion seems a bit contrary to many passages where he discusses the supremacy of the Constitution.

      Is it really a good argument to say that SCOTUS can be the only keeper of the Constitution as if they are completely faithful/trustworthy, that the other branches can’t be trusted? Can’t they be compromised as easily as any other group? Maybe easier since they have life terms?

      I don’t know what the answer is. Maybe a Battle Royale is required for landmark decisions? Best two out of three?

      1. Rock, paper, scissors?

      2. The president and legislature can change who’s on the Supreme court. See FDR’s efforts.

        Or of course, could pass a constitutional amendment clarifying things.

  4. Can the President Lawfully Ignore a Supreme Court Decision?

    The better question is who is going to stop them if they do.

    1. Absolutely agree. Who indeed? An armed mob?

    2. one word.

      Bronson

    3. The first time the executive branch blatantly and defiantly ignores a court decision, the courts cease to have any relevance or moral authority. That would also mean that DOJ could ignore the courts’ convictions AND acquitals and start making stuff up on their own. IOW, the complete end of the rule of law.

      1. Tell that to the Cherokees.

    4. This. Who is going to arrest the POTUS and throw him in jail if SCOTUS says he’s wrong? It’s one thing to say that the separation of powers is *supposed* to limit government. It’s another thing to say if it actually does limit government.

  5. Ye gods. What we need are more checks on more, not fewer. The courts have failed in the same way Congress has, in deferring too much to the other branches.

    1. I guess an elected monarch is better than a hereditary monarch. I can at least appreciate being able to choose the form of my destructor.

      1. +1 Stay-Puft

  6. I could learn to live with this, if it involved shootouts between the Secret Service and armed officers of the Supreme Court.

    1. “Bailiffs, hold that Executive Branch employee down!”

      *Justices swarm over hapless Solicitor General and stomp him to death*

      1. I think you meant to say:

        *Justices swarm over hapless Solicitor General and stab him to death with their Mordor blades*

        1. Clerk, bring our black horses, we ride!

  7. The Paulsen-Whelan approach, by contrast, would turn Tucker, Madison, and Hamilton on their heads and transform the judiciary into no sort of shield at all.

    The other problem with the Paulsen-Whelan approach is that by saying that the judiciary doesn’t have the final say on the constitutionality of a given law, they imply that the Exectuve does.

    1. Why not? The Executive writes and enforces de-facto law through its regulatory agencies. Why not give all the power to the Executive and just scrap the other two branches? All they do is get in the way of progress. As long as the right TEAM is in charge, then nothing could possibly go wrong.

      1. We’re well on our way there now. What with Congress abdicating nearly all legislative responsibility to the regulatory agencies (they’re experts! Congress can’t possibly do all that legislatin’!), the president always the willing middle-manager, eager to take on new responsibilities, and the Supreme Court rubber-stamping each new incremental bit of rot spewing forth from the aforementioned branches…

    2. Right, because the Executive has the guns.

      The whole point of a written Constitution with checks and balances is to make clear who gets to decide what, so that guns are NOT the important factor.

      1. ‘Who gets to decide what’ is separation of powers – not checks and balances. Checks and balances does not depend on anything written on a piece of paper. It is the process by which one power-hungry psychopath runs up against another power-hungry psychopath – and by fighting each other, leave the rest of us alone.

        The main problem is that the two major ‘checks’ – the states and individuals – have been interpreted out of the Constitution altogether. So that what remains is three federal groups – cooperating on expanding the centralization of power and tussling only on the Kabuki/Potemkin stuff

    3. Ah, I’m familiar with this. The F?hrerprinzip, ja?

      1. You know who else believed in the Fuhrerprinzip?

  8. There is something to what they’re saying in that each branch is considered to be co-equal (though with separate powers), including having at least some independent right to determine the constitutionality of a law or government action under consideration. If a president refuses to act on constitutional grounds, he’s acting within his authority. It’s a little less clear if he doesn’t have a legal basis for refusing to act when otherwise required to. In other words, discretion and branch privilege only go so far.

    1. The image of preschoolers sitting on the floor throwing lettered blocks at eachother, comes to mind.

    2. It’s kind of complicated by how the Supremes got that power. Although the evidence is strong that the framers envisaged some form of judicial review, most of what I’ve read suggests they thought it would come through the states. Article III doesn’t even mention it.

      1. That’s right, it was a power usurped by John Marshall. But with the states basically gone, we need the courts.

        1. But with the states basically gone, we need the courts militia.

          Fixed it for you.

      2. To use an extreme example, the Constitution does not enumerate a right to breathe air, yet nobody reasonable claims its not a right. My sense is that they didn’t mention judicial review because it was understood by everyone that was one of the legitimate functions of the courts, particularly the upper courts. Also, why would they have established two levels of appeals if not for review? Remember that the courts of appeals and SCOTUS are not trial courts, not courts of original jurisdiction and are not fact-finding bodies. They exist soley to review.

  9. “According to this myth, the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning.”

    Nice capework, Bub. The Constitution means what the plain wording states.
    Unfortunately, we have allowed political expedience to cloud that meaning, along the way. Somehow or other, I don’t believe these “scholars” are calling for a return to a strict reading of the document. Otherwise, a lot of government employees are going to e out of a job.

    1. What was that post last week, about a certain area of law where SCOTUS is loathe to apply the plain wording of the constitution because their precedent has gotten so far afield from it?

    2. Also, the Constitution doesn’t say jack shit about cell phones, computers or the internet. It only says “papers.” Have yet to hear anyone here seriously claim that the 4A doesn’t apply to digital media, or that the 2A only applies to flintlock muskets. Pretty much the only context in which you hear about plain wording are those who wish to deny rights to the homos.

      1. I hear the one about muskets all the time. Usually “the Founders never thought such a thing could exist and would have regulated it”.

      2. What are “effects?”

        I don’t think plain wording is a problem. The 9th Amendment plainly makes up for those kind of potential cracks. Libertarians don’t champion the 9th enough. Even if the 2nd Amendment was repealed, the 9th would still guarantee our right to own a firearm. (Actually, even if the Bill of Rights were repealed, the Constitution would still not give the federal government the power to restrict any of the rights therein.)

  10. Generally, executive branch officials should obey court orders aimed at them personally, unless the court is clearly out of its jurisdiction, in which case I’d say a showdown is called for.

    But a mistaken decision doesn’t automatically invalidate a court’s jurisdiction, it would have to be something extreme like, say, telling a prosecutor not to prosecute homicides (to take a hypothetical example).

    Apart from court orders aimed directly at her, the Pres should use her own independent judgment in (say) vetoing bills and granting pardons. The courts can’t un-veto a bill or un-pardon a convict, even if the veto or pardon was based on constitutional reasoning the courts disagree with.

  11. Would blatantly defying the supreme court be an impeachable offense?

      1. Acquiesing to a blatantly unconstitutional edict from SCOTUS is also an impeachable offense.

        Not that anyone in Congress has seriously tried to enforce that.

    1. Personally, I think wearing a mismatched tie or leaving light on in an empty government room should be an impeachable offense.

    2. Anything that Congress deems impeachable is an impeachable offense. Anything that they choose not to impeach about is not impeachable.

  12. The real question is “Can the President, practically, ignore a Supreme Court decision.” And the answer would seem to hinge on whether a Court ordered arrest for Contempt would be enforced. And that in turn hedges on how the President’s security detail feels about him.

    Hear that, Shrillary? Might be a REALLY good idea to treat your Secret Service detail a wee bit more politely than has been your custom.

    1. And the answer would seem to hinge on whether a Court ordered arrest for Contempt would be enforced.

      The United States Marshalls Service is technically responsible or apprehending fugitives from justice, which is what a president who refuses to surrender to answer a contempt charge would be.

      While the Marshalls operate under DoJ if it really got to that point I’d imagine a whole lot of people would resign or rebel before complying with orders from a fledgling dictator.

  13. It’s all fun and games until somebody gets their Roe v. Wade put out.

  14. The Constitution means what it says. If SCOTUS wrongfully interprets the Constitution, the other two branches and all the citizenry are duty bound to ignore them. The problem is that the other two branches, and Hillary in particular, do not know or do not care how the Constitution restricts what they can do, and most of the citizens who elected these arseholes are similarly ignorant or non-caring.

  15. “Would President Hillary Clinton possess the lawful power to act in this fashion and bypass a decision of the U.S. Supreme Court?”

    The President is free to do anything for which they aren’t impeached and removed from office.

    It is also true that the President can be impeached and removed for office for on any reason our elected representatives see fit.

    Ultimately, the question is whether the American people would support impeachment under those circumstances.

  16. I can accept the assertion that the power of constitutional interpretation is not exclusively vested in the courts, in that the framers likely naively believed that Congress might not pass a law that it felt to be unconstitutional. But if either other branch could ignore a Judicial ruling on constitutionality, what exactly would the role of the Judiciary be? Advisory?

    This is just Borkian “judicial restraint” theory writ larger, and is absurd on its face. The remedies for a “rogue judiciary” under the Constitution are clear — take greater care in appointing judges, take greater care in drafting laws to ensure they’re constitutionally constructed, and if all else fails, amend the Constitution.

    Much as I detest Hillary and support Citizens United her approach to fighting it seems much more sensible than the Jacksonian “Let them enforce it” that these clowns advocate.

    1. the framers likely naively believed that Congress might not pass a law that it felt to be unconstitutional.

      See my post above: they likely believed in some form of review/nullification by the states. Jefferson and Madison tried this with the Virginia and Kentucky Resolves which were attempts to nullify the Alien & Sedition Acts.

    2. Remember that judges can also be impeached by Congress, including SCOTUS justices.

      1. Generally only for misbehavior, not based on the decisions they make.

        1. Why not?
          What could be more of a “high crime” than a decision that goes against the plain wording of the Constitution?

    3. There are three branches. Any two of them have the power to over rule the third.
      If the president refuses to abide by a SCOTUS decision, and the Congress agrees, then Congress can either fix the law, or simply refuse to impeach the president. If Congress agrees with the Supremes, then they can impeach the president.
      Similarly, if Congress passes a law that both the president and SCOTUS disagree with, then the law gets struck down and never enforced.
      Etc.

  17. In general, if judge X tells official Y not to enforce Law Z, then official Y should obey (within certain limits). So if the judiciary thinks Law Z is unconstitutional, the judges will end up blanketing the country with injunctions to stop enforcement.

    This means that for a constitutionally-debatable law, the concurrence of Congress, the Pres and the courts are needed for the law to actually be enforced against you and me.

    But assume the courts say that “it’s totally constitutional to limit campaign speech, or hate speech, or to ban guns.” Congress and the Pres can still refuse to pass laws of this kind, and they can even invoke the Constitution, expressing blatantly their disagreement with the courts. What are the courts doing to do – order Congress to pass a law?

    And, as with the Alien and Sedition Act, if the courts uphold a criminal statute and the Pres thinks it’s unconstitutional, she can pardon the victims of the statute. What are the courts going to do, revoke the pardons?

    1. But the court saying you can, but you don’t – is not the same as the court saying you can’t, and you do.

  18. I learned in school that the doctrine of judicial supremacy was simply assumed by the courts, not actually mentioned in the Constitution, but that the idea wasn’t invented by SCOTUS but comes from older common law traditions. Since I’m an old fuddy-duddy that believes the purpose of law is to provide a stable, dependable, long-term set of guidelines and that constant changing of the law is a Very Bad Thing, I would not like to see the established order changed – but it might make things more interesting. The President ignores a ruling, the court simply overturns agency actions taken under the disputed ruling, the branches spend so much time fighting amongst themselves that they don’t have enough time to screw over the general public. Isn’t that how our Founding Fathers intended the system to (not) work? Those who favor a strong executive because that’s the only way to “get things done” won’t like that any more than they like the current “gridlock” that prevents things from getting done, but not getting things done may be the best we can hope for out of government. (BTW, I’m thinking of announcing my presidential candidacy, my slogan will be “Elect me and nothing will get done”.)

    1. I was taught the exact same thing, a view of judicial review that has only been confirmed by my personal studies on constitutional law and U.S. history. Marbury v. Madison simply confirmed existing practice, it did not create it.

  19. And the answer would seem to hinge on whether a Court ordered arrest for Contempt would be enforced. And that in turn hedges on how the President’s security detail feels about him.

    “Yeah, he’s here. Second door on the left. That doorjamb really needs to be painted, just in case you’re worried about him bumping into it on the way out. Just sayin'”

  20. There is only one way to genuinely force the President to do something, and that is by impeachment.

    It doesn’t matter if the President ignores the Supreme Court, declares war without Congressional approval, if the President accepts bribes from foreign governments, or if the President rapes and murders a child.

    The options are either to impeach or not to impeach.

    If Congress isn’t willing to impeach the President over it, then there is nothing that can be done.

    1. Even that can’t force a president to do anything. It can remove him from office with the presumption that his successor would do that thing or also face impeachment.

      1. Well, once the President is removed from office, he or she loses whatever protections there are from the separation of powers, etc. Then you might be able to throw the former President in jail, once convicted.

        Point is, there is nothing that can be done about a President who won’t follow the law if Congress is unwilling to impeach the President and remove the President from office. And the reason they’ve been reluctant to remove Presidents in the past (I’m looking at you Bill) is because it was unpopular to do so, so it’s ultimately about the support of the American people.

        If the American people want a President removed from office, the President will likely resign like Nixon. If the American people don’t want the President removed, the President will likely survive like Clinton. This is probably as it should be.

        But ultimately, there is no substantive check on the President’s power apart from the American people’s understanding of what I’d call propriety.

        http://www.merriam-webster.com…../propriety

        It could be argued that Obama has been an especially bad President from a libertarian perspective specifically because he’s actively sought to water down the American people’s sense of propriety. If it doesn’t matter what is good and proper to the American people anymore, then there really aren’t any substantive checks on the power of the President.

        1. It probably doesn’t need to be said, too, that violating Citizens United isn’t likely to generate enough support to impeach the President, much less remove the President from office.

          I mean, if Bush and Obama violating the Fourth Amendment rights of hundreds of millions of American voters was insufficient to generate enough public support to impeach the President–because they were trying to save us from terrorism, supposedly–then President Hillary probably won’t face much resistance if she claims she’s saving us from evil corporations either.

          Incidentally, this is how republics die. Bismark ignored the legislature, set his own budget, told the tax authorities what to collect from whom, and everybody did what they were told. That was the end of Germany’s experiment with liberal government until the end of World War I. Hail Kaiser!

          Once the will of the people was vested in Caesar, rather than the Senate, it didn’t really matter whether Caesar crossed the Rubicon or whether they had Cicero’s tongue and hands nailed to the rostrum for all the things he’d said and written.

          It’s always been about hearts and minds. If and when the people’s sense of propriety goes out the window, it won’t matter what the Constitution or the Supreme Court says.

  21. Can the President Lawfully Ignore a Supreme Court Decision?

    That depends on what the definition of ‘is’ is.

  22. OK, but what is the restraint on the court from going off script as it were? For every Citizens United there is a Wickard or a penaltax.

    Judicial supremacy is fraught with its own problems as the other branches have used it as an excuse for unconstitutional laws and policies because determining compliance is the judiciary’s job (rather than each branch is responsible to police itself and
    keep an eye on the other two).

    1. As far as I’m aware, the only restraint on the courts is that Congress sets their jurisdiction. Beyond that, there is no limit. A few years ago, Mark Levin suggested an amendment which grants both Congress and the state legislatures the authority to overturn court decisions with the vote of three-fifths of both houses of Congress or state legislative bodies.

      1. Congress/the States do have the power to overturn court decisions – it’s called a Constitutional amendment germane to the actual issue they so disagree with. Until they do so, they can basically shut the fuck up and take what the Court gives them. A constitutional amendment giving them veto power over Court decisions is the stupidest thing I’ve ever heard of.

    2. Congress can always pass a new law, or if it comes to that pass a constitutional amendment.

  23. “President Hillary Clinton”
    Please stop writing that. I’m grying to keep mu lunch down.

  24. At this point, The President of the United States could commit an armed bank robbery in broad daylight and escape in Marine One, and have no reason to fear impeachment.

    1. That seems rather pointless since all they need to do is have another TARP bailout and let the Federal Reserve do the dirty work

      1. The prez might like to rob a bank just for the fun of it.

  25. A couple points:

    1 – Congress and the Executive do have roles in Constitutional interpretation. They do so by, among other things, only passing legislation they feel is constitutional, only signing bills they believe are constitutional, and by executing the laws in a manner they feel is constitutional. However…

    2 – The Supreme Court is the final arbiter of whether a law or executive order is constitutional, period. This power is limited by the case or controversy requirement, etc. To say that the other branches can ignore a decision issued by SCOTUS via a legitimate case or controversy just because they disagree with it is simply absurd. Not to mention, as the article notes, SCOTUS is extremely deferential to the other branches and will only declare a law unconstitutional if they have no other way of deciding the issue. They hardly legislate by their decisions, which is what these “judicial supremacy” fools seem to be implying.

    Of course, everything said above is how things are supposed to work, not that any of the branches necessarily follow these rules all the time (we all know that they don’t). Just my two cents, as an attorney.

    1. only passing legislation they feel is constitutional

      LOL. No.

      Congress regularly passes legislation which they know will be overturned by the courts on constitutional grounds. It’s called the appearance of doing something with a big side dish of blame shifting.

      1. Read my last paragraph:

        “everything said above is how things are supposed to work, not that any of the branches necessarily follow these rules all the time (we all know that they don’t)”

        LOL.

  26. President Hillary Clinton then orders the Justice Department to ignore Citizens United and to enforce the very sort of campaign finance restrictions that the Court ostensibly wiped from the books in 2010. Would President Hillary Clinton possess the lawful power to act in this fashion and bypass a decision of the U.S. Supreme Court?

    That’s more or less what’s happened with deferred immigration action and accommodating state laws on recreational marijuana under Obama (the former with lower courts, the latter with law already settled by SCOTUS). Which raises the question of how important procedure really is depending upon whose ox is being gored.

    1. I think there’s a substantial difference between choosing not to enforce laws under certain circumstances and choosing to enforce laws that were found unconstitutional. For one thing, the latter would have far greater impact on restricting liberty than the former. Since our default view should be more liberty, not less, I find Executive decisions not to prosecute far more palatable than Executive prosecutions conflicting with SCOTUS decisions.

  27. the Constitution means whatever five Supreme Court justices claim it means, and all other governmental actors are duty-bound to abide by that supposed meaning.

    Correct.

  28. This article ignores a distinction made by Abraham Lincoln, a 19th century constitutional lawyer who has achieved a measure of fame, though perhaps not so great as that of Henry St. George Tucker. As Lincoln explained, a court may, in a case before it, hold the governing statute to be constitutionally invalid, in which case the court will decline to apply the statute, which will therefore be a nullity in that case. The court’s decision, however, does not strike the statute from the books, and the executive is free to try again in a different case, if it believes the judiciary’s reading of the constitution was wrong.

    1. Ultimately that was the interpretation that also best fits the judiciary’s role in a common law system. In a common law system, the judiciary has almost exclusive de facto power over whether individuals comply with laws or not. They have virtually no role in a civil law system – so they had to carve out and define their role themselves in the Constitution.

      1. I’m a little confused by your post. Do you intend to suggest that we were a “civil law” system in 1787 or that the founders intended for us to become one? It’s late in my workday so maybe I’m just misreading your post.

        1. No. Neither. We were a common law system then and that was how the founders viewed the judiciary then. But the Constitution itself doesn’t address the role of the judiciary – and only mentions it to say that the exec and legislative are responsible for the appointment of judges.

          The Court had to create its role in interpreting the Constitution itself – and its perceived authority in interpreting the Constitution is derivative (from common law and maybe its role in judging impeachment proceedings of individuals) rather than explicit (as in a civil law system).

          1. As an aside – the judiciary still views us as a common law system even if most politicians probably don’t.

            1. Oh ok, I was just making certain. My bad.

    2. While Lincoln was a great president, he wasn’t a constitutional scholar by any means. Further, I think this distinction blurs the line between “as applied” and “on its face” unconstitutionality. Further, in practice, any executive that “tr[ies] again in a different case” for a statute declared unconstitutional on its face is simply a fool.

      1. His Cooper Union speech and the Lincoln-Douglas debates are, in/of themselves evidence that he was obsessed about and extremely knowledgeable about constitutional interpretation/limits/authority. Unless you have some weird definition of ‘scholar’ (eg they are forbidden from communicating their ideas in public or in English), he was definitely a constitutional scholar. It’s why he was nominated.

        1. I cringed using the word “scholar”, admittedly. A better way of putting it would be that Lincoln’s views on the Constitution are not generally seen as the “go to” guide like many other treatises. Do you have an example of when his view of judicial review was put into practice (I’m not being snide, I’m legitimately curious).

          1. His concern was more narrow – the issue of slavery in federal territories and the Dred Scott decision. Specifically as to judicial review – look at his Dred Scott speech

            http://teachingamericanhistory…..-decision/

            There’s nothing really surprising in it. But while he accords the Court respect, he does not consider the decision the final word on the subject for reasons that make a lot of sense. And as far as putting that into practice, Congress and he both legislated and made decisions during the Civil War that both overturned Dred Scott and created the legal basis for the Emancipation Proclamation. Long before the 13th Amendment.

  29. Of course the President can tell the Supremes to go fuck themselves. The President has Constutional powers and responsibilities as much as they do. And nothing in the Constitution gives the Supremes the last word.

    So the president has as much power and authority to interpret and enforce as they do, and neither has the power to enforce their will on the other.

    1. That’s simply not true. The President’s power of constitutional review is exercised through his veto power and the take care clause, Congress does so through its legislative power, and the judiciary does so through judicial review. To say the other branches have the ability to ignore the Court suggests a governmental structure that eliminates the power of the Court completely (and its usefulness) and destroys the benefit of having three branches.

      1. +1 Civics 101

      2. The President’s power of constitutional review is exercised any damn way he feels like. NOTHING in the constitution says ‘it has to be this way’.

        “The executive Power shall be vested in a President of the United States of America.”

        “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

        He has a constitutional mandate to preserve, protect and defend the constitution and the executive power to do so.

        Certainly there is nothing whatsoever requiring him to defer to the Supremes self appointed ‘power’ of judicial review’, which is not in the constitution. So, constitutional powers and a constitutional mandate say that he can’ in fact, tell the Supremes to go fuck themselves.

        1. Judicial review was not created by Marbury v. Madison, contrary to popular belief. It existed in some form before the Constitution was signed and significant literature exists showing the founding fathers fully intended for SCOTUS to have the power to declare laws unconstitutional. Further, from a structural standpoint (as I outline above) not having the Court be the final arbiter of constitutionality simply makes no sense. Lastly, thinking the Constitution can be read as if it is a contract written in 2015 without understanding the circumstances under which it was written and the language used at the time is misguided. I am generally a fan of the “plain meaning” rule, but it isn’t a dogma that should be followed without question. Just because the Constitution doesn’t say explicitly the words “judicial review” does not mean it didn’t intend to provide SCOTUS such a function.

          1. And yet despite all that the president is given the mandate of preserving protecting and defending the Constitution, not the courts.

            And the constitution is not written in code. It means what the words say. As for a legal last word, the constitution has something to say on that as well-

            Amendment X

            The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

            1. It’s not written in code but it is written in 18th century legal language and was written by people well versed in the law. The background and context of the document is incredibly important to its interpretation. We may just have to agree to disagree.

  30. Pretty much the only context in which you hear about plain wording are those who wish to deny rights to the homos.

    Somebody’s butt hurts.

    1. Truth hurts, eh, Brooksie?

  31. WTF is it about Citizen’s United that pisses off lefties so much? I honestly don’t get it.

    1. Mainly because they never read the actual opinion, methinks.

    2. Progs get pissed when their masters direct them to. It’s not their’s to reason why, but rather to do what told and lie.

    3. Citizen’s United involved, specifically, an anti-Hillary documentary. So we at least know why Hillary doesn’t like it…

    4. It deprived them of a tool to suppress opinions they do not like and triggered their weird neuroses about people organizing through corporations should not have rights in their corporate property. They apparently think a corporation is a sort of Frankenstein’s monster that operates beyond human control.

  32. I don’t think the argument is that the executive can ignore a Supreme Court ruling. The argument is that the ruling only applies to the case under consideration, and if that ruling was blatantly wrong, the executive and legislature do not have to apply the logic elsewhere. It seems like it’s just an argument against judicial review, which I agree with.

    It’s on everyone, including the states vis a vis the federal government, to interpret and defend the constitution. If Hillary’s new action is unconstitutional, the SCOTUS can strike it down again as a separate case.

    1. “if that ruling was blatantly wrong, the executive and legislature do not have to apply the logic elsewhere”

      I actually kind of like this, but just to clarify, by “apply the logic elsewhere” do you mean to other statutes or other cases/controversies under the same statute? I like the former, dislike the latter.

      1. A perfect example is Lincoln and Dred Scott. Lincoln did not seek to free Dred Scott himself. The Supreme Court had decided in his particular case.

        He – and the Republicans – did NOT accept the broader parts of the decision – declaring the Missouri compromise unconstitutional, allowing slavery in both all federal territories and in transit thru free states, overruling the Missouri law that allowed slaves to sue in court for their freedom, overruling naturalization for free blacks and for immigrants, overruling the NY law that prohibited its citizens from owning slaves outside the state, etc. Essentially the broader decision there nationalized slavery and made it technically illegal for free states to even enforce their own laws to be free states.

        Its why the South seceded – because they viewed that slaveholder victory as absolute, permanent, and total. And the Republican victory in 1860 meant that it wouldn’t be crammed down on the free Western states/territories. Slavery would be limited to the southern part of the US – which meant that the land/soil would soon be worthless (since slavery was also a ‘trash the soil and move on’ form of agriculture). So they seceded while a)King Cotton still had the power to force the remaining union to its knees and while b)control of New Orleans could strangle the pre-railroad economies of the Mississippi River Basin.

  33. President Hillary might want to give a thought to the precedent she’s setting. Someday a GOP President might choose to ignore something the proggies like.

    Aside from that, it would be ludicrous for President Hillary to try to stomp Citizens United. After all, if she’s been elected President it doesn’t seem as if Citizens United stopped her from being elected. For that matter, it didn’t stop Obama from being re-elected.

  34. Congress owns the ultimate override: passage of constitutional amendments (with states’ agreement), a power which the courts can’t do anything about.

    Yes, it’s harder to pass an amendment than for a judge to issue an opinion striking down a law. At the same time, Congress passes many more laws than the Supreme Court will ever adjudge. There are not-declared-but-most-likely-unconstitutional laws being enforced every day. So it’s a fair if imperfect trade.

    The Executive is the only branch left out. But it has appointment authority over the judiciary which is pretty powerful.

    1. Congress has another arrow in its quiver.
      Though the compensation of a jurist may not be reduced (except by the hideous hidden tax of inflation) during his tenure in office, the Constitution is silent on Congress being required to provide him/her with a telephone, or heat, or lights, or staff.
      Oops!

  35. The Executive can ignore the decisions of the Court and proceed on its own, but would be in danger of having its moves challenged in those courts and being found not-lawful.
    The courts at all levels would end up being clogged with cases that would consume them, and to what end: A reversal at the next election?

  36. She gets billions in ‘donations’, then decides too much money in Politics, from ‘certain people’.. but not the hundred or so Foreigners she has received money from… or from the media… or Goldman Sachs, or the ONDCP…
    Okay thennnnn!

  37. “Yet how can a Supreme Court decision go into “instantaneous effect” if, as Paulsen and Whelan allege, Congress and the president are each empowered to ignore the Court’s order based on their “own readings of the Constitution”? The answer, of course, is that judicial decisions cannot reliably go into effect under this approach.”

    They can’t reliably go in to effect NOW, perhaps, but at the time of writing of the Constitution the Executive wasn’t in possession of a multi-deparmental militarized police force and a permanent standing professional army to act on every contrarian whim, impulse and opinion.

  38. Reliving Clinton Mob history never gets old.

  39. I will have to check out the book, ty

  40. King Obama, Lord of the Drones, may do as He wishes for his insight is true and dazzling.

    Yes, He has studied the constitution, what He doesn’t say is that it is the communist constitution.

  41. “As an antidote to judicial supremacy, Paulsen defends what he calls ‘the propriety of executive and congressional non-acquiescence in judicial precedent that, in the independent judgment of these other actors, conflicts with the Constitution.'”

    People who think these things are horrible. People who actually write them down for anyone to read are terrifying.

    Anyone who could look at the executive branch–you know, the one with all the blunt-instrument power–and then believe that the chief executive should be the one determining the “lawfulness” of some bit of legislation is a pure authoritarian. Talk about concentrating absolute power in the hands of the few–the executive could ignore literally any law, any ruling, any precedent it wants “in its independent judgment” and impose totalitarian rule on the nation.

    The weak-sauce protections of stare decisis and checks and balances–which worked just great reining in Abe, Teddy, Woody, and Frank–would be utterly gone. Absolute power in the hands of whatever genius the electorate threw into office these four years.

    Thank you, “legal scholars,” for reminding me what I think of you and legal academe in general.

  42. And “lawful” means nothing when your idea of law is some words scribbled down on a piece of paper by a self-important etatist who can ignore them sans consequence. Legal positivism has rendered the world of emergent morality into a confused madhouse of codes, regulations, and arbitrary legislation that can be amended, ignored, or twisted at will by the people wielding the clubs or their lapdogs among the “intellectuals.”

    Arbitrary commands are not, and will never be, law. I’m tempted to buy a bunch of thumb drives, load them up with Leoni and Hayek, and then mail one out to every bloviating positivist who publishes apologia for totalitarianism.

  43. Dear Commentariat,
    I like the threads about The Law, such as this one. Even better are the ones about Economics. The ones about Replicrat politicians or what some dumbass college girl says on Twitter, those are bad, not even funny. Try to do better. Post about ideas about The Law and Economics, please, even if the articles themselves are moronic.

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  45. Isn’t the point of an appeals process to get the court(s) to reconsider decisions one believes are incorrect?

  46. Funny how the gov people seem to think free association is such a threat. It’s like they won’t be happy until people freely associate behind their rifles.

  47. At its best, the judiciary is “no shield at all”. At its worst, it gives legal (moral) sanction to tyranny.

    The Founding Fathers gave us a republic for the sole purpose of protecting our rights. No republic had done so. The American Republic failed also.

    Who will protect us from our protectors?

  48. All Power To The Lawyers?

    The Japanese Supreme Court rarely strikes down laws as unconstitutional and has a history of deferring to the government on defense-related matters. How un-American!

    Judges are lawyers although legally they need not be. Lawyers killed the Roman Republic. Lawyers are killing the American Republic.

    The Anti-Federalists opposed the powers given to the U.S. Supreme Court, Never before had so much power been given to a handful of unelected lawyers. Even in Britain, the courts answer to Parliament. Subsequently, over the years, the Court has usurped even more power. Well, we’ve seen the consequences; they aren’t pretty.

    The U.S. Congress represents the people. The President has the power to veto congressional legislation. The Congress has the power to override that veto.

    The nine justices, three of whom now are Jews of The Left with one of the three a lesbian, and none of whom is a WASP-male, hardly represent the composition of the American public. For the Japanese court to defer to its legislature, especially on military matters, makes much better sense than the anti-democratic, unrepresentative, judicial system here in the USA .

    http://inescapableconsequences.com/ .

  49. Even if the President wanted to violate longstanding custom, the proposed lawlessness would be impractical. The offending corporation would be fined by Clinton’s FEC, and would promptly get a court order barring any collection of any fine. The officers carrying out the order would be held in contempt. Now, the bank gets a levy anyway. What does it do? The levy, even with Clinton’s hand written signature, has as much legal validity as if it was sent in crayon by a trained monkey in Madagascar. The money to pay the fine is staying just where it is, unless Clinton, in advance of her anti-corporate agenda, wants to declare martial law. Really, she’s not that bad.

  50. This article’s blather is all deceitful perversion of the Founders as Whelan showed over at NR http://www.nationalreview.com/bench-memos , because as Lincoln showed, the SCOTUS is only one of three coequal government departments/branches as the Constitution meant them to be by its articles, not over the other two with virtually nothing to stand in its erring way as has regrettably happened, for the usual “impenetrable bulwark” it’s become is rather against the Constitution itself as in Dred Scott’s successor, Roe v Wade/Doe v Bolton. Power corrupts no less for judges, no matter Reason’s Damon’s manifestly unreasonable opinions. Judges wear robes to cover up their threadbare justice.

  51. John Marshall’s decision in Marbury v. Madison that initially defined judicial review directly tied that authority to the oath to support the Constitution sworn by the Justices. Congressmen also swear an oath to support the Constitution. If the Justices couldn’t do their job under their oath without considering Constitutionality, how could the Congress? The President swears an even more strict oath. How could he/she do his/her job without considering Constitutionality?

    Each group has a duty to support the Constitution, each with different recourse. The Court can strike down a law. The Congress can legislate a change to the law. The President can refuse to enforce a law, or pardon someone being punished under that law. All if they find a law to be “repugnant to the Constitution”.

    The problem at hand is that various Presidents have expanded extra-constitutional powers for the office. The President is duty bound to faithfully enforce the law. While the President can refuse to enforce an unconstitutional law, the President has no actual authority to make law himself. Is it done? Certainly. Is it Constitutionally based? Show me. I can’t find it anywhere.

  52. The court is meant to interpret the law, as written. Congress, if they don’t like the way it’s been interpreted is allowed to write a new law, and the President, to sign such. Amendments to the constitution have a process, which lo and behold has been followed before. But, I’m damned sure that NONE of the amendments were enacted by Executive Orders alone. If you don’t like the way the court interprets a law, clarify it. YOU can do that, congress (not you, President.)

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  57. The only president, that I know of, that defied the US SUPREME COURT, was Andrew Jackson. When the Supreme Court went against Jackson when he was removing all the Native Americans from the south and transplanted them in the Oklahoma territory, Jackson said, “FINE, THE SUPREME COURT MADE THEIR RULING, NOW LET THEM ENFORCE IT”. I don’t know whether OBAMA will defy the Supreme Court, if and when the Supreme Court decides on all those issues now in their docket. What with OBAMA CARE, or whether to legalize same sex marriage, or the immigration debates that the court has already ruled on, I really don’t know. However, since OBAMA has a very timid congress and senate, he just may do so.

  58. The President can ignore SCOTUS decisions he determines to be unconstitutional. If a law passed by Congress is null and void from the beginning so would be a court decision that runs contrary to the Constitution.

    While the Framers believed in judicial review, they never believed in judicial supremacy. Even in Marbury Marshall stated that the Constitution could not be closed to other judges, yet isn’t that exactly what our system now dictates? Judges are no longer bound by the Constitution but by SCOTUS decisions. It also stands to plain reason that the Constitution is not closed for the other branches to examine and to determine if the court is in error. Marshall also did not order Jefferson to give Marbury his commission because he knew Jefferson would ignore and could ignore such an order.

    The problem we have today in our courts is not an abundance of legal and judicial knowledge but the courts are full of judges with political ideology that they feel depending on the case is greater than the Constitution and the law.

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