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Is Marbury v. Madison Still the Law?

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This is not about criminal law, but it is central to the question some of us thought had been resolved in 1803:  Does the judicial branch or the executive branch have the final say over the constitutionality of statutes?  President Obama, a former lecturer in Constitutional Law at the prestigious University of Chicago Law School  --  and now perpetually on the campaign trail  --  said the other day that it would be "unprecedented" for the courts to nullify the Affordable Care Act. 

Today, a Fifth Circuit panel directed an attorney for the government to state within 48 hours whether the President is serious about this nonsense.

My goodness.  Where is Ron Ziegler when we need to render some Presidential statements "inoperative?"

9 Comments

The New York Sun has an interesting editorial on this. (Yes, Virginia, there still is a New York Sun. Online.)

The branch with "final say" may have been "resolved" by John Marshall and the courts in 1803, but the executive branch hasn't always been on board. Andrew Jackson, for one, had rather strong feelings about the Supreme Court's inability to enforce its decisions. Lincoln, too.

Personally, I don't see any harm in reminding the unelected and life-term-serving judges on the federal courts that they are part of a government that derives its power from the consent of the governed.

Still, those sort of reminders are more effective on questions where the court insists on recognizing new rights and rules, and less where it may strike down laws. Obama's timing could be better.

As a general matter, you're spot on in wanting to remind the courts that democratic self-rule presupposes a restrained role for an appointed judiciary. That is exactly the reason the courts have been referred to as "the least dangerous branch."

I only wish Eric Holder had been aware of the need for judicial restraint when, as Deputy AG, he signed off on the Department's (successful) quest to have the SCOTUS overturn 18 USC 3501 -- a 1968 statute that modified Miranda's automatic exclusionary rule. Back then, Mr. Holder saw no problem with the Court's ability to nullify legislation and, indeed, eagerly sought to invoke it. This was true even though the Department's decision saw it lining up with the position of the criminal, Mr. Dickerson. The Court had to appoint an amicus (Prof. Paul Cassell) to represent the government's abandoned position. (It did the same thing in the recent Setser case, in which DOJ got embarrassed (one would hope) when the Court adopted the stance it spurned).

Of course there's a big difference between opposition to Section 3501 and opposition to Obamacare. In the former case, Congress's legislation sought only to re-establish the "voluntariness" test set forth in the text of the Fifth Amendment -- a test the Miranda Court walked past when it created the nowhere-in-the-text "warnings" test.

By contrast, the parties opposing Obamacare are challenging a statute that would effectively appropriate one-sixth of the economy to government control, and in doing so would, to paraphrase Justice Kennedy's words at oral argument, significantly alter the relationship between free citizens and the government. Contrary to the views of the former lecturer in law at Chicago, the legitimacy of judicial review is at its high point, not its low, when Congress has engineered an extension of federal power in ways the Founders would find unrecogizable.

IMHO, the Fifth Circuit panel is out of line. For a group of folks with life tenure and virtually unchecked power, they sure have thin skins.

Various judges on courts of appeals appear to have asked DOJ similar questions given the conflicting stances of the Administration on DOMA.

I think so, too. I witnessed a similar, but considerably worse, incident years ago at the oral argument in the Robert Alton Harris case.

Judge Noonan, red-faced and furious, berated the worker-bee Deputy Attorney General for public comments by the elected Attorney General of California (his boss's boss's boss's boss). There was nothing the guy could say. Judges Alarcon and Brunetti were so embarrassed by Noonan's behavior that Alarcon (presiding) called a recess, Noonan came back alone and had his tantrum, then the other two came back and the argument resumed.

The decision, BTW, was 2-1, and Harris was ultimately the first post-Furman execution in California.

The problem with these things is that the munchkin gets chewed out for the behavior of Mr. Big.

Obama invited blowback by his false, indeed absurd, statement that the striking down of statutes was "unprecedented," especially when the statute in question passed with the non-existent "strong majority."

Whether the Fifth Circuit was the appropriate vessel to provide that blowback is, to be sure, a different question.

It does not appear that Judge Smith was at all discourteous. And I don't think he was berating the lawyer for what Obama said. Whether the "homework assignment" was appropriate or not is a different matter.

My personal opinion is that when judges lose it, then their contempt power should go out the window. Somewhat akin to abandonment of rank in the military. A free society is embarrassed by a person being forced to endure abuse without the ability to respond in kind.

I agree with federalist's view of this, and would add only that we should stay focused on the primary problem.

The primary problem in this instance does not concern the behavior of judges; one may view the Fifth Circuit's demand for a letter as an overreaction, sure.

The primary problem is that the President of the United States, a former lecturer in constitutional law, stated that it would unprecedented for the Supreme Court to overturn a statute enacted by a democratically elected legislature. His statement was patently false.

It is also capable of being seen as attempting to influence the outcome of a case while deliberations are ongoing. If the executive branch feels like it left something out of its argument, it can file a motion to allow supplemental briefing. Short of that, the argument is over.

The President of the United States simply cannot act like some sleazeball ambulance chaser. The President's proper response at this stage is: "My views about the ACA are well known. The Solicitor General capably presented the argument that the ACA is within Congress's power to regulate interstate commerce. The Court now has the matter under consideration. Obviously I am hoping for a favorable decision, but I recognize that the Court has the last say in this matter, and I will respect its decision one way or the other. The rule of law, which is more important than the outcome in any individual case, requires such respect."

If you're teaching a high school civics class, would you rather have that to give to your students, or would you rather have some blatant falsehood doubting the Court's authority to do what it has had the authority to do for more than 200 years?

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