Two Cheers For DOJ On DOMA
February 24, 2011 13 Comments
Via Tom Maguire, Orin Kerr is troubled by the implications of the Obama DOJ’s decision not to defend the Defense of Marriage Act:
By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration.
I would have thought this was already the case, and am somewhat shocked that Kerr (perhaps correctly, for all I know) thinks it’s novel or radical for the Executive Branch to:
- independently evaluate whether it thinks laws are Constitutional, and
- decide whether or not to defend laws against legal challenge based on the results of that evaluation.
Couldn’t they do this already? Didn’t they do this already? If not, why the hell not?
I. What Does It Mean To Defend The Constitution?
I am not a lawyer so obviously this is all just my opinion. But let me just throw this out for discussion:
I do solemnly swear (or affirm) that I will [...] to the best of my ability, preserve, protect and defend the Constitution of the United States.
If this rings a bell, it’s because it is an excerpt from the Oath Of Office that is required – by the Constitution itself – of every U.S. President upon entering office.
Now, the Department Of Justice is a part of the Executive Branch, therefore answering to the President. Hence, the President is ultimately responsible for its actions or inactions. This means, it seems to me, that if the President orders, or allows by omission/neglect, the Department of Justice to do or defend something that by his lights violates the Constitution, then he is in violation of his Oath Of Office: he has failed to preserve, protect and defend the Constitution of the United States to the best of his ability.
The only question then is what violates the Constitution and what doesn’t. How is a President to know, prior to ordering the DOJ to defend or not-defend laws? Ultimately there is only his judgment, in coordination with and informed by whatever advisors and experts he has amassed around him. Could he be ‘wrong’ in this or that view of what the Constitution requires? Of course. He is a human. So can all the other humans in all the other branches of government. A President nevertheless takes an oath to defend the Constitution “to the best of [his] ability”. If that ability is seriously deficient or error-prone, that is another story altogether. But the activity itself of evaluating laws for their Constitutionality before deciding whether to defend them – it seems to me that not only should fall well within a President’s (thus Executive Branch’s) purview – but is an integral requirement of the office. Indeed, a President who does not do this would strike me as derelict in that regard (and thus, if Kerr’s characterization of precedent is accurate, I suppose all Presidents have been).
Because from what Kerr is saying, it’s a highly radical notion, and the status quo has been for the Executive Branch to blindly “defend the constitutionality of all federal statutes if it has a reasonable basis to do so”, whether or not it actually believes in that basis. Which doesn’t strike me as really defending or protecting the Constitution at all. So what am I missing? One thing’s for sure, clearly I won’t be getting tenure at a law school anytime soon.
II. Let Me Get This Out Of The Way
Now, as the preceding is meant as a discussion of general principles, I haven’t addressed the particulars of this situation in any detail. So let me get that, and my views on DOMA and gay marriage in particular, out of the way:
- First I’ll note in passing that ‘marriage’ means ‘a union of a man and a woman’. Words mean things. That’s the definition of this one. As a general rule, words ought not be redefined by legislatures. Instinctively I greet legislative attempts to radically redefine the word ‘marriage’ with the same disgust as I greet legislative attempts to redefine the number pi.
- That aside, ‘marriage’ as a social institution is one that predates the U.S. and just on general principles probably shouldn’t be messed with or redefined for no good reason.
- There really is no good reason here. The best reasons, are not so good:
- The equal-rights argument – ‘heteros can get married and gays can’t, so gays have less rights’. Not true: gays can get married. Remember: ‘getting married’ means, in part, ‘forming a union with a willing member of the opposite sex’. Nothing prevents homosexually-inclined people from doing this if they wish (and indeed, many have, historically!). What’s that? They mostly don’t wish? You don’t say! Similarly, I don’t wish to go fishing, hence I don’t partake of my right to apply for a fishing license. So what? Doesn’t mean I don’t have that right.
- Equal treatment under the law – i.e. ‘this denies homosexuals equal access to certain societal privileges, at least without marrying someone they don’t love, hence they’re not getting equal treatment under the law.’ This argument is slightly better, but only slightly. The privileges/conveniences alluded to here, as far as I can tell, consist of stuff like: 1. filing joint tax returns, 2. ‘hospital visitation rights’, 3. spouse benefits from someone’s employment, 4. um, probably some other conveniences, involving paperwork and stuff (mortgage applications? drawing a blank). These all strike me as highly petty and minor (when not cravenly materialistic), not to mention easily resolvable – in fact, in most places they are probably solved under current law already – by means other than redefining marriage (do hospitals really actively not let homosexual lovers visit each other? Even if they don’t, is gay marriage the only or even best remedy to that?). Also,
- There’s probably no good reason for most of those governmentally-allocated ‘benefits of marriage’ to exist in the first place. If I had my druthers I’d probably just do away with the benefits themselves & equalize things that way. Actually let me go one further,
- There’s probably no good reason the law needs to recognize ‘marriage’ at all per se. That said,
- Perhaps it’s true that (if only out of convenience/continuity) most of those legal recognitions of marriage, or of some union anyway, ought to stay in place. In which case,
- I have no problem extending those to homosexual couples as well. Big deal.
- Which is a long-winded way of saying I support civil unions, I guess. (Or, the ‘garriage’ solution, which I find cute.) I mean, if the government needs to be in the business of Officially Acknowledging With Whose Genitalia In Particular Its Citizens Like Their Own Genitalia To Primarily Come In Contact at all.
- But if civil unions must be done, that seems like a state thing. I mean, really.
- The DOMA says, in part, that one state need not recognize another state’s ‘marriage’/union definition. This doesn’t seem unconstitutional to me – indeed, the Constitution explicitly gives Congress the power to define the parameters of ‘full faith and credit’.
- It also defines marriage on a federal level as a union of a man and woman. I can buy the arguments for this part being unconstitutional. (I also don’t know why it was even necessary to throw in there.)
- I am not a lawyer.
III. Here’s A Radical Idea: Everyone Should Defend The Constitution
Anyhow, regardless of what you or I might think about DOMA, or gay marriage in general, one thing is pretty hard to dispute: President Obama, and the people who work for him, probably all do think the DOMA is unconstitutional. They may have good reasons or bad reasons for thinking this (I suspect mostly bad if not downright dumb), but that they think it, is not really in doubt. Given that this is what they think, then, what are they supposed to do when the law is challenged? Vigorously, legally defend a law they find unconstitutional?
Of course not. Were it up to me, I would have Executive Branches evaluating constitutionality on everything, not just on hot-button issues. The fact that they (I gather) don’t, is the real scandal here. It’s an integral part of their job for crying out loud!
Now keep in mind, just because DOJ isn’t defending the law, doesn’t mean the courts should knee-jerkily find it unconstitutional. The definition of ‘unconstitutional’ isn’t ‘whatever DOJ decides not to defend’. People are talking as if this move by DOJ settles the deal and the constitutionality challenge can now be rubber-stamped. I don’t understand why. Maybe indeed Obama/Executive/DOJ are wrong. The courts, too, have a responsibility to uphold the Constitution, by their lights. Obviously the more realpolitik analysis is that the courts here are ideological and this gives them political cover to do what they wanted to do all along. If so, that actually puts the courts more in the wrong than DOJ.
More broadly, if you take in the big-picture thrust of my comments, what I’m advocating for is a world in which all branches of government share the responsibility of defending the Constitution. Current doctrine believes this responsibility rests entirely with Judicial. If that’s what you think too, then I guess I can understand disapproving of this move by DOJ. But if you want a world in which the Executive Branch has just as much responsibility to defend the Constitution as the Judicial Branch does – a world in which President Bush would not have signed the McCain-Feingold Act despite having “reservations about the constitutionality” and believing that somehow only the Supreme Court could declare it unconstitutional – then you should be welcoming this decision by Obama’s DOJ. All things considered, for this administration, at least this has the surface appearance of a belief in actual principles worth defending and actual, legitimate deference to constitutional duties – even if it’s ultimately being done for insincere and ideological reasons.
Which is why, two cheers.
UPDATE: I probably have to take it down to one cheer, at most. In this column where he makes many of the same points I did above (i.e. that it’s not Only The Supreme Court that should concern itself with constitutionality), Jonah Goldberg informed me what I hadn’t known before – that Obama still intends to enforce this DOMA that he (purportedly) finds so unconstitutional. That, of course, is unconscionable and a violation of his Oath of Office – unless Obama is simply being disingenuous in claiming to find DOMA unconstitutional. It’s one or the other, really.
From a conspiratorial perspective, it would be very convenient to have a blanket policy of defending everything: you can still pick and choose your battles by quietly telling your AG “ok, this one we don’t care about, so phone it in”, but you have the advantage that when you pick an unpopular battle (defending patriot act or something) you can wash your hands of it, “This is just the blanket policy, we defend every law!”
When defending laws they don’t like against constitutional challenges, I’m pretty sure that the ‘phone it in’ method is the one that administrations have traditionally been using anyway. In a sense all I’m arguing for here is to drop the facade and save everyone’s time/effort.
The problem is that when the government doesn’t defend the law, courts have to deal with questions on who has the legal right to defend it–commonly called “standing”.
This is how it worked in the case of Proposition 8 in California. The proposers of the amendment got enough signatures to put it on the statewide ballot, where it got a majority of votes. The governor and the AG, who is now governor, decided to not participate in the defense of the law. The court came very close to ruling in favor of the plaintiffs (who wanted the amendment overturned) in their argument that the proposers had no standing to defend the amendment they wrote. After all, there was no direct harm established to the proposers if the law fell, or so the reasoning went. Thus, the law was almost thrown out without any consideration as to the constitutional merits of either the law or the plaintiff’s position.
Let’s take another example. Current Miranda rights require the public defenders offices of the various states to pay for the defense of indigent defendants. You hear all the time that in the infamous movie line “You have the right to remain silent… You have the right to an attorney. If you cannot afford an attorney, you have the right to have one appointed for you.” What would happen if a state governor decided that he didn’t want to pay for this and those free attorneys for indigent defendants went away? Would we really believe that the governor should have the right to basically overturn the law as is now understood by both the Legislative and Judicial branches?
As far as the “mail it in” point goes, I’m not naive enough to say that doesn’t happen–of course it does. But while the government may not do a thorough job, they do give other organizations cover to file amicus briefs to a standing suit. This means that the case will be decided on the merits and law, not on some wild notation of standing that ends up excluding the majority of voters.
Peace.
Yeah, I’ve heard of this ‘standing’ thing and I guess my response is simply, I think it’s a bogus concept in this context. (And your example only makes it seem more bogus.) A government not abiding by the Constitution, is (in a sense) in violation of a contract it has with every single citizen. Thus, every citizen should a priori have ‘standing’ to challenge the Constitutionality of a law. Obviously this is only my view. But I don’t really understand claims to the contrary. ‘Who is directly harmed’ by a government which violates, and thus stretches and weakens, its social contract with the citizenry? The citizenry of course. Who isn’t harmed?
In your governor-not-paying-for-public-defenders example, if the governor sincerely believed that the state being forced to pay was unconstitutional, then sure, he should not do so. However, it’s safe to say such a view is highly unorthodox and I doubt that decision would survive scrutiny or legal challenge. So there would be a battle over it, either with his legislature or with the courts or both. And I doubt he would survive it. And the Constitution would be clarified and strengthened as a result. More realistically, no governor would try, knowing he would lose that battle – in large part because the Constitution is pretty clear. But that’s a consideration that only comes up if executives take the approach that they’re supposed to care what’s in the Constitution, of course.
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The executive also has the responsibility to enforce the laws.
If the President believes a law is unconstitutional why should his Justice Department enforce that law? After all, he took an oath to defend the constitution and if he is required to use his own judgment as to what is constitutional, that’s the next logical inference. What Obama should be doing is not enforcing the law. The Justice Department won’t do that without getting a ruling from some court.
The stance by the Obama administration on this is just a wink to the judicial branch to make a specific ruling – why does he even need a ruling if the executive branch can decide what is and isn’t “constitutional”? This is clearly a move to have it both ways – when the courts decide that DOMA is “unconstitutional” Obama will say his hands are tied.
I agree: the President should not enforce laws he believes unconstitutional. Not-defending them against constitutional challenge is the least he should do.
He needs a ruling because otherwise it will remain law. He can decline to enforce it during his term but, sooner or later a differently-inclined President would come along, and the law would still be on the books, and he’d enforce it. Also, a President declining to enforce existing law risks running afoul of the legislature – in the extreme case, he could be impeached. But nobody can be impeached for not-enforcing an unconstitutional law.
So surely there is an important difference between getting a law declared unconstitutional altogether, and simply declining to enforce it during one’s finite term.
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But if he believes that it’s the President’s responsibility to decide on the constitutionality of laws then he shouldn’t want a ruling – such a ruling would preclude future Presidents from making their own decision on the constitutionality of the law. If the President has the obligation to decide as part of his responsibilites as President then he shouldn’t preclude future Presidents from coming up with different judgments.
If, on the other hand, he believes that he has an obligation to prevent laws he judges unconstitutional from being put into effect and that he should preclude future Presidents from reversing his decisions then he should refuse to give up the office to someone who has promised to enforce a law he finds unconstitutional.
There’s a spectrum here:
0) The Executive branch has a duty to interpret the constitution
1) This creates an obligation to veto legislation that the President believes unconstitutional
1a) or an option to veto
2) This creates an obligation to not legally defend laws the President (or AG or SG or any Justice Department lawyer) believes unconstitutional
2a) or an option to not defend
3) This creates an obligation to not enforce laws the President believes unconstitutional
3a) or an option to not enforce
4) This creates an obligation to ignore court rulings which the executive disagrees with.
4a) or an option to ignore
5) This creates an obligation to ignore other parts of the constitution that the President deems less important (like, say, the length of a term) if following those provisions will result in more important parts of the constitution being ignore (such as the part where it mandates gay marriage).
I don’t see how you can logically stop at 2 or 2a and not go on to 4 once you go past 1.
All of this is fine by me – let the President be a personal sovereign but I don’t think that most people would agree or even notice what they’re agreeing to – they’re really just concerned with the outcome of this particular case.
As far as running afoul of the legislature goes, well, this is just a wink at the process.
The executive says they will not defend a challenge in court, some case comes up before a judge appointed by the administration and the plaintiffs are paid by the executive (through various grants and such that get disbursed) – how is this not specific subversion of the legislature?
I don’t really follow you here. If the President thinks law X is unconstitutional, I am saying he should not enforce it, should challenge it, and certainly should let it be challenged without defending it. How do you get from there to ‘shouldn’t want a ruling’ so that ‘future Presidents’ can ‘[make] their own decision’. This doesn’t really follow. If X really is unconstitutional, a court ruling against it would be fine and great, and the President should want one. Future Presidents not making their own decisions – simply not doing X because it has been clarified already that X is unconstitutional – would also be just great, and the President should want that too. Both would help strengthen the Constitution. I can’t follow your logic to the contrary.
Similarly, for the President to ‘refuse to give up the office’ would be unconstitutional. So that doesn’t work as a method of protecting the Constitution either, nor can you credibly claim that this follows from anything I’m saying.
In your 1-5 chain, your #4 is an attempted stolen base. How did you get to ignoring court rulings he ‘disagrees with’. It’s not about ‘disagreement’, it’s about Constitutionality. And yes if a court ruling was plainly unconstitutional I would like to see the President ignore it. You bet. And #5 is, again, just absurd. I am not advocating ignoring some parts of the Constitution to defend other parts, as if that were possible. I am advocating ignoring precisely no parts. It’s the people who think that Only The Supreme Court can opine on the Constitution – a position not supported by anything actually in the Constitution – who are advocating that Presidents (and legislatures) ignore the Constitution.
Overall, it’s like you’re trying to use reductio ad absurdum against my stance, but by stretching and twisting the logic beyond recognition. The result is nonsense. You are trying to get away with pretending my stance is the equivalent of something it simply isn’t.
Every law was either signed by this President, a previous President, or the result of a congressional veto override.
I think you’d agree that every step in my progression above implies the previous steps? If so, then if this President should be applying his judgment of constitutionality to laws (anything above 2) then previous Presidents should have been applying their judgment to pending legislation (1); any President who chooses to not enforce a law that was signed by a previous President is saying that he isn’t bound by the constitutional interpretation of previous Presidents (first new thorny issue). At the very minimum, this invalidates the procedure for over-riding a presidential veto (for legislation that the President believes unconstitutional) – congress passes bill, President vetoes, congress overrides, President directs his subordinates to ignore the new law. Result? In effect, the President has an absolute veto. What’s to stop a President from applying this to any law and claiming that whatever laws he disagrees with are unconstitutional? If the President took office after the law was passed he also has a retroactive veto! The veto and override were both specifically described in the constitution, so clearly this can’t be the intended means of operation. Additionally, this would be a mess to live under – potentially a bunch of laws would change radically every four years (second new thorny issue). Courts at least pretend to be bound by precedent.
Ultimately, some branch has to have supremacy with regard to constitutional interpretation – every law will either be enforced or not. If every law passed (veto, blah blah blah) is enforced, the supreme branch is the legislature. The presumption would be that congress passing the law proves it is acceptable under the constitution. If every law is enforced unless a court says not to, the supreme branch is the judicial but the judicial branch is passive. If laws may not be enforced until a court says that it is ok to do so then the judicial branch is supreme and active. If all laws are enforced unless the President chooses not to enforce them (because he judges that law to be unconstitutional) then the executive is the supreme branch. If laws are enforced unless the President believes them unconstitutional and the judicial branch can override laws then you have a hybrid system. It sounds to me like your system would be this one.
Once you go there you get into very tricky territory (which is what I was trying to get at above). What if the Supreme Court and President disagree on the constitutionality of a law? The hybrid system I think you’re advocating would imply that anyone can say “no” to a law. What if one branch decides that some action must be taken and the other disagrees (example, judicially ordered school busing, rules on prisoner treatment, etc.)? Lots of cases involve the judicial branch ordering the executive branch to change the way it operates. How do you handle those? This doesn’t even get into the issues raised by the whole “words mean exactly what I want them to mean” school of constitutional interpretation. At least now, only one branch gets to pull those tricks. That branch is unelected, has small turnover, and tries to avoid changing its rulings. Going back to my 4 & 5 above, what if some President believes that some law is unconstitutional but the President-elect disagrees? How important is one part of the constitution (the part where a President serves a four year term) versus another part (the part where gay marriage is required)? The current President has a huge incentive to view one as more important.
Your point about judicial supremacy not being in the constitution is an important one. I think this is just another example of the constitution being an unworkable document to use in setting up a government. There are no provisions for disagreements between branches outside of vetoes and overrides. There are limits on government power proscribed with no way to enforce them. There are grants of powers with no entity doing the granting (at least, no entity that could revoke them). Judicial supremacy solves some of these issues and makes it a more workable system – until the judiciary gets corrupted and starts issuing rulings favoring the interests of the permanent government. Giving that type of power to the executive will add chaos without solving the problem (as I think we both see the main problem of government – it serves the interests of the extended bureaucracy or as you put it, the Smart People).
I don’t agree with your progression (specifically #4) and said so. I do agree that future Presidents should not be ‘bound by’ the constitutional interpretation of preceding ones (if N consecutive Presidents think slavery is constitutional, I’m ok with President N+1 not feeling ‘bound by’ that judgment, and if you want to call that a ‘retroactive veto’, go right ahead).
‘What’s to stop’ a President from applying this to any law he disagrees with? Absolutely nothing, except of course the threat of, say, not getting re-elected, or in the extreme case, impeachment. But that’s only a strike against me if you’re comparing my suggestions against perfection. In reality, there’s no perfect ironclad system of enforcing the Constitution; ultimately there are only checks and balances, which is to say, other (imperfect) people. One sometimes gets the impression that people mentally compare a proposed constitutional order with some sort of Constitutional Computer that perfectly enforces the Constitution and admits no loopholes; in reality, there is no such thing.
You are right that in the extreme, if Presidents really did invalidate laws as unconstitutional willy-nilly, the result would be chaos and unpleasant. The bulwark we have against that is the same bulwark we have against any Presidential bad behavior, no more no less: 1) don’t elect him in the first place, 2) if you do, don’t re-elect him, 3) the Supreme Court issues rulings and orders against him and hopes he obeys, 4) Congress impeaches and removes him….etc. Again, if you’re looking for a Perfect Constitutional Safety Mechanism, I don’t have one to show you. But such a thing doesn’t exist anyway.
In reality, such things tend not to happen. And that’s because, although people are imperfect and have base motivations and so on, overall we have a pretty decent system of checks and balances, between the branches, and answerable to the people in the form of elections. So that’s ‘what’s to stop’ these hypotheticals you raise: checks and balances, and ultimately, public opinion. If you find that insufficient, you should find that insufficient now, because that’s all we have now.
Yes, I suppose what I’m arguing for is a ‘hybrid’ system. More precisely, I’m arguing for a system in which no single branch has ‘supremacy’. One in which, instead, you might say the three branches ‘check’ and ‘balance’ each other, in a perpetual jockey for position (and public opinion), but no single branch definitively holds sway. You know, the system set up by the U.S. Constitution! And yes, I suppose it is ‘tricky territory’, but I haven’t seen a better system.
So many apocalyptic what ifs you raise. What if the Supreme Court and President disagree on the constitutionality of a law? What if one branch orders the other to do something? What if an incoming President disagrees with the lame-duck President? (As if that’s never happened!)
Frankly the answer to all these is “I don’t know; we would see how it would play out.” Look, the branches only have the power they have, and all their powers ultimately stem only from the people. The Supreme Court can issue a strongly-worded ruling. The President can (and has!) say ‘they’ve made their ruling, let them enforce it’. Congress could step in and impeach (if they think the President is wrong), or not (if they think the Supreme Court is wrong). The President’s subordinates can resign, or hold fast (depending on how they come down on the issue). The bureaucratic foot soldiers tasked with enforcing, or not, the President’s decision can double down, or ignore the order if they disagree. There could be civil disobedience. And so on, and so on. Basically, politics will take place. Some resolution will emerge victorious. I can’t tell you in advance who will be the winner, or that the winner will always be the Correct one.
But no one can. No one can now. There is no Constitutional Computer alternative on offer. The only thing we can say is that right now, for whatever reasons of history and fashion, both of the other branches seem to defer to the Judicial Branch on constitutional interpretation, to the extent that they’ll even pass laws they suspect are unconstitutional and in so doing abdicate all role in abiding by the Constitution, saying essentially, ‘what can we do, only the Supreme Court can declare this unconstitutional’. I am saying that that view of the branches’ relative powers is absolutely wrong, and not supported by anything in the Constitution. You think my view wouldn’t solve any problems, but you mentioned the problem yourself: the deference to the Judicial branch and its bureaucracy. I want battling, competing bureaucracies, handcuffing each other and binding each other in red tape. That’s a feature not a bug of what I’m seeking.
Similarly, as you point out, the Constitution doesn’t set up an ironclad ‘way to enforce’ many of its provisions. What you call a weakness, I actually think is a strength. How would a founding document set such a thing up? There would have to be an enforcement branch. Who would populate the enforcement branch? What if they were wrong? Etc etc.
These are all human institutions. Ultimately, all of these things boil down to human decisions, motivations, and allegiances, flawed as they are. The checks are pretty good in my view; you’re right that they’re not perfect. I don’t think that’s an option however. What is an option is argument, and persuasion. I can hope to argue and persuade my fellow citizens that XYZ is unconstitutional, and convince them to elect legislators and/or executives who see it the same way, and thereby ultimately prevent XYZ from being in effect. It makes it much, much more difficult however if two out of three branches throw up their hands all the time and exclaim – INCORRECTLY – that they’re ‘not allowed’ to conclude XYZ is unconstitutional, because only the unelected Supreme Court has that authority. That is simply wrong, and I am saying nothing more nothing less.
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“In reality, such things tend not to happen. And that’s because, although people are imperfect and have base motivations and so on, overall we have a pretty decent system of checks and balances, between the branches, and answerable to the people in the form of elections. So that’s ‘what’s to stop’ these hypotheticals you raise: checks and balances, and ultimately, public opinion. If you find that insufficient, you should find that insufficient now, because that’s all we have now.”
I think we’re on the same page with a description of the President taking / being granted constitutional interpretation power. It would result in much more “politics” – the government would be much more responsive to popular will (for a while at least). Right now, public opinion on every matter is basically: “if the courts say it’s ok, it’s ok and if any other branch gets into a dispute with a court, the court is right”. This change would push the system strongly towards a “democratic” one where everyone has an opinion on every matter. Presidents and the courts and the congress would have disputes that would ultimately be resolved by the opinions of congressmen, the President and judges thought the public would support.
What I was clumsily trying to get at initially (I think I was a bit clearer in my reply to your reply) was that this is radically different from what we have now. Most people who support the President on this aren’t thinking much beyond “gay marriage good” clearly you are. However, being radically different it could be better or worse – there’s really not a lot of experience to guide us on what such a system would look like. There will be things that weren’t issues before that would now be issues some things that were issues won’t be any longer (Supreme Court retirements and appointments wouldn’t be nearly as important, for example).
Historically, democracy doesn’t seem very stable. In the long run, any democratic system seems to have three possible end states:
1) Rule by smart people – they set the opinions so they’re free to simply rule as they see fit. If the public disagrees the public will have their minds changed (if not the living generation, the next).
2) Communism – the class war that is democracy is won by an alliance of the smart people and the poor over the propertied and the middle class.
3) Fascism – the class war is won by an alliance of the propertied and the middle class.
I think the problems are inherent to democracy and that every democratic system is destined to end up like one of the three above. The great mass of the people don’t seem to be a particularly good sovereign – this very case seems to prove it to me. Most people who are even aware of this issue are completely unconcerned with the structure of government and are merely interested in a particular result.
It would result in much more “politics” – the government would be much more responsive to popular will (for a while at least).
In reality, I don’t even think it would. Or, at least, that ‘while’ would be a very short while. In reality, the parameters of the Constitutional boundaries would be pretty clear to all concerned except for very fuzzy borderline cases, and no President would want to waste a bunch of political capital fighting a bunch of fights (remember: there would still be fights, if the disagreements were serious; if there weren’t fights, that’d probably be because the issues weren’t important or the President had a point) that he’d lose for no good reason. So, it would be an arrow in his quiver, but not one he’d be quick to fire. Probably. (But can I guarantee this? Of course not. no one can guarantee anything, anytime, under any system.)
The thing is, it also wouldn’t be a huge change. See the references to ‘phoning it in’ above. To me, there is not a huge substantive difference between ‘phoning it in’ on the defense of a law, and not defending it. Similarly, the President has broad authority in what he tells his underlings to execute, etc., while keeping up a pretense that he is satisfying the law’s requirements. So you keep worrying about what if we ‘gave’ or the President ‘took’ this power, but I think he basically already has it, it’s just that (most of the time) he wields this power incognito, in subtle/underhanded ways. Whereas all I’m arguing for is above-board honesty about it.
What I was clumsily trying to get at initially (I think I was a bit clearer in my reply to your reply) was that this is radically different from what we have now.
I think the differences mostly boil down to
1. greater honesty and transparency in interbranch dealings (because again, I think the branches will tend to disobey each other in genuine disputes *already*, but just pretend that’s not what they’re doing – “who, us?”), and – more importantly –
2. all branches would have a recognized and acknowledged role in defending the Constitution (they wouldn’t be able to hide behind the Supreme Court). But they absolutely should have such a role, and it’s scandalous that they pretend otherwise nowadays! Isn’t it?
there’s really not a lot of experience to guide us on what such a system would look like.
Well we do have isolated examples such as Andrew Jackson’s ‘they have made their decision, now let them enforce it’ comment. But overall, my sense is that the doctrine that Only The Supreme Court can speak to constitutionality, is not exactly one that has held since forever – it has evolved and grown over time. First there was the idea of judicial review (which was novel in itself!), and then the authority increased and increased, for a while (e.g. FDR years) the Supreme Court was obviously just rubber-stamping the President. There were ebbs and flows..
But since then this idea that the Supreme Court has the final say has evolved into the Supreme Court having the only say and the other branches not even thinking about constitutionality till it gets there. Really it was only in the 2000s (with campaign finance reform) that you had such a blatant example of the other two branches explicitly saying they were going to pass a probably-unconstitutional law, because they liked it, and only the Supreme Court could opine on its constitutionality. If there’s an example of that occurring prior to CFR, I’m not aware of it; I think in times past, the other two branches usually felt compelled to at least feign a belief in the constitutionality of laws they pushed through, and a belief that they would survive judicial challenge. President Bush basically said he wasn’t sure!
What I’m trying to get at here is that the other two branches have turned judicial review, and the Supreme Court’s supremacy, into a fig leaf that lets them dodge questions about whether what they’re doing is constitutional. I don’t think they should be able to dodge those questions and all else equal, I see any signs that they aren’t – albeit probably disingenuous ones in this case – as healthy developments.
best