[Home]  [Headlines]  [Latest Articles]  [Latest Comments]  [Post]  [Mail]  [Sign-in]  [Setup]  [Help]  [Register] 

"Analysis: The Final State of the Presidential Race"

He’ll, You Pieces of Garbage

The Future of Warfare -- No more martyrdom!

"Kamala’s Inane Talking Points"

"The Harris Campaign Is Testament to the Toxicity of Woke Politics"

Easy Drywall Patch

Israel Preparing NEW Iran Strike? Iran Vows “Unimaginable” Response | Watchman Newscast

In Logansport, Indiana, Kids are Being Pushed Out of Schools After Migrants Swelled County’s Population by 30%: "Everybody else is falling behind"

Exclusive — Bernie Moreno: We Spend $110,000 Per Illegal Migrant Per Year, More than Twice What ‘the Average American Makes’

Florida County: 41 of 45 People Arrested for Looting after Hurricanes Helene and Milton are Noncitizens

Presidential race: Is a Split Ticket the only Answer?

hurricanes and heat waves are Worse

'Backbone of Iran's missile industry' destroyed by IAF strikes on Islamic Republic

Joe Rogan Experience #2219 - Donald Trump

IDF raids Hezbollah Radwan Forces underground bases, discovers massive cache of weapons

Gallant: ‘After we strike in Iran,’ the world will understand all of our training

The Atlantic Hit Piece On Trump Is A Psy-Op To Justify Post-Election Violence If Harris Loses

Six Al Jazeera journalists are Hamas, PIJ terrorists

Judge Aileen Cannon, who tossed Trump's classified docs case, on list of proposed candidates for attorney general

Iran's Assassination Program in Europe: Europe Goes Back to Sleep

Susan Olsen says Brady Bunch revival was cancelled because she’s MAGA.

Foreign Invaders crisis cost $150B in 2023, forcing some areas to cut police and fire services: report

Israel kills head of Hezbollah Intelligence.

Tenn. AG reveals ICE released thousands of ‘murderers and rapists’ from detention centers into US streets

Kamala Harris Touts Mass Amnesty Offering Fast-Tracked Citizenship to Nearly Every Illegal Alien in U.S.

Migration Crisis Fueled Rise in Tuberculosis Cases Study Finds

"They’re Going to Try to Kill Trump Again"

"Dems' Attempts at Power Grab Losing Their Grip"

"Restoring a ‘Great Moderation’ in Fiscal Policy"

"As attacks intensify, Trump becomes more popular"

Posting Articles Now Working Here

Another Test

Testing

Kamala Harris, reparations, and guaranteed income

Did Mudboy Slim finally kill this place?

"Why Young Americans Are Not Taught about Evil"

"New Rules For Radicals — How To Reinvent Kamala Harris"

"Harris’ problem: She’s a complete phony"

Hurricane Beryl strikes Bay City (TX)

Who Is ‘Destroying Democracy In Darkness?’

‘Kamalanomics’ is just ‘Bidenomics’ but dumber

Even The Washington Post Says Kamala's 'Price Control' Plan is 'Communist'

Arthur Ray Hines, "Sneakypete", has passed away.

No righT ... for me To hear --- whaT you say !

"Walz’s Fellow Guardsmen Set the Record Straight on Veep Candidate’s Military Career: ‘He Bailed Out’ "

"Kamala Harris Selects Progressive Minnesota Governor Tim Walz as Running Mate"

"The Teleprompter Campaign"

Good Riddance to Ismail Haniyeh

"Pagans in Paris"

"Liberal groupthink makes American life creepy and could cost Democrats the election".


Status: Not Logged In; Sign In

U.S. Constitution
See other U.S. Constitution Articles

Title: Judicial Supremacy Has Its Limits ---- The Court’s decisions are not binding on the executive and congressional branches.
Source: National Review
URL Source: [None]
Published: Mar 27, 2016
Author: By John Yoo
Post Date: 2016-03-27 15:35:30 by tpaine
Keywords: None
Views: 1427
Comments: 14

Judicial Supremacy Has Its Limits

The Court’s decisions are not binding on the executive and congressional branches.

By John Yoo — July 6, 2015 - National Review

---- the Supreme Court cannot finally determine any fundamental constitutional dispute. Claims of judicial supremacy have appeared before, ranging from the odious (Dred Scott’s defense of slavery) to the courageous (Brown v. Board of Education’s condemnation of segregation). But these views mistake the Court’s right to decide cases or controversies under the Constitution for supremacy in its interpretation.

Many of our greatest leaders have understood that, in a self-governing republic, the people and not the courts must settle fundamental constitutional issues. President Abraham Lincoln, for example, believed that Dred Scott only decided a controversy between two parties before the court and could not bind the president and other officials. “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court,” Lincoln wrote in his first Inaugural Address, “the people will have ceased to be their rulers.” Instead, the people will have “practically resigned their government into the hands of that eminent tribunal.” Lincoln was right: the Civil War, not the Supreme Court, resolved the question of slavery.

While the Constitution does not grant the federal courts the final word, it implicitly gives the courts a right to interpret the Constitution. As Chief Justice John Marshall famously observed in Marbury v. Madison, which established the power of judicial review, “it is emphatically the province and duty of the judicial department to say what the law is.” When judges confront a case where one side relies on a federal statute and the other on the Constitution, they must choose the Constitution as the higher law and put aside the act of Congress. The judiciary’s power to interpret the Constitution derives from its responsibility to decide cases and controversies under federal law.

But the Constitution does not vest the courts with the exclusive right to interpret its meaning. It nowhere says that the Court’s reading of the Constitution bears superiority over the other branches of government. As Thomas Jefferson wrote to Abigail Adams in 1804 to explain his decision to drop existing prosecutions under the Sedition Act, “nothing in the Constitution has given [the judiciary] a right to decide for the Executive, more than to the executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them.” Indeed, the separation of powers means that the legislature and the executive also must interpret the Constitution in the course of performing their own unique functions. Congress should not pass bills that violate its understanding of the Constitution; the president should not sign bills that violate his.

Rather than give any one branch the final word, the Constitution creates three branches that can compete over its meaning. The separation of powers means not only that the President, Congress, and the Supreme Court are separate, but that they are also independent of one another. According to Jefferson, “the opinion which gives to the judges the right to decide what laws are constitutional, and what are not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch.”

— John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley and a visiting scholar at the American Enterprise Institute. A former Bush Justice Department official, he is the author, most recently, of Point of Attack: Preventive War, International Law, and Global Welfare (Oxford 2014).

Post Comment   Private Reply   Ignore Thread  


TopPage UpFull ThreadPage DownBottom/Latest

Begin Trace Mode for Comment # 3.

#1. To: tpaine (#0)

When judges confront a case where one side relies on a federal statute and the other on the Constitution, they must choose the Constitution as the higher law and put aside the act of Congress. The judiciary’s power to interpret the Constitution derives from its responsibility to decide cases and controversies under federal law. [...] According to Jefferson, “the opinion which gives to the judges the right to decide what laws are constitutional, and what are not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch.”

So what's the bottom line: a court ruling can put aside an act of Congress only for the parties in that particular case? If, say, the court rules that the Constitution overrides the Controlled Substances Act for Joe Smith, I have to bring my own case to get an analogous ruling for me? Sounds nutty.

ConservingFreedom  posted on  2016-03-27   19:05:56 ET  Reply   Untrace   Trace   Private Reply  


#2. To: ConservingFreedom (#1) (Edited)

So what's the bottom line: a court ruling can put aside an act of Congress only for the parties in that particular case?

No. If the SCOTUS decides an act of congress is unconstitutional, it applies to everyone.

Congress's only recourse is to rewrite the act, or -- congress and the executive can refuse to enforce the SCOTUS opinion.

tpaine  posted on  2016-03-28   17:15:15 ET  Reply   Untrace   Trace   Private Reply  


#3. To: tpaine (#2)

congress and the executive can refuse to enforce the SCOTUS opinion.

Does "refusal to enforce" include continuing to enforce laws that SCOTUS rules Congress had no authority to enact? If so, in what meaningful sense can SCOTUS "put aside an act of Congress"?

ConservingFreedom  posted on  2016-03-28   17:47:20 ET  Reply   Untrace   Trace   Private Reply  


Replies to Comment # 3.

#4. To: ConservingFreedom (#3)

So what's the bottom line: a court ruling can put aside an act of Congress only for the parties in that particular case?

No. If the SCOTUS decides an act of congress is unconstitutional, it applies to everyone.

Congress's only recourse is to rewrite the act, or -- congress and the executive can refuse to enforce a SCOTUS opinion that a specific law is unconstitutional.

Does "refusal to enforce" include continuing to enforce laws that SCOTUS rules Congress had no authority to enact?

Yep, both fed/state/local govts routinely enforce unconstitutional 'laws'. ---- It is up to the courts then, -- to refuse to prosecute and have trials of such 'laws'.

tpaine  posted on  2016-03-28 18:37:54 ET  Reply   Untrace   Trace   Private Reply  


End Trace Mode for Comment # 3.

TopPage UpFull ThreadPage DownBottom/Latest

[Home]  [Headlines]  [Latest Articles]  [Latest Comments]  [Post]  [Mail]  [Sign-in]  [Setup]  [Help]  [Register] 

Please report web page problems, questions and comments to webmaster@libertysflame.com