NATHAN: When the high court violates the Constitution

The Washington Times ^ | Monday, July 7, 2008 | Alan Nathan

[CampusKing]

The Supreme Court openly violated its separated powers under the Constitution by defying Congress' Article I, Section 9 authority to suspend habeas corpus "when in cases of rebellion or invasion the public safety may require it." Congressional Democrats cheer the decision because it provides them with political cover for what they could not accomplish legislatively - their preference to execute a battle as you might an indictment and prosecute a war as you might a trial. This once co-equal branch has morphed into a tyrannical tree and President Bush has foolishly said that he'll "abide by their decision."

Question: How do we put down a rebellion when the culprits in question are leading the government?

[CampusKing]

Nathan really nailed this one. What the Supreme Court did is nothing short of judicial tyranny. Maybe Congress should nominate Mr. Nathan to the High Court.

[RetiredArmy]

Question: How do we put down a rebellion when the culprits in question are leading the government?

You do like the stinking Frenchies did. But instead of cutting off heads, we put their sorry asses up against a brick wall and let a firing squad do the job. This country used to try in court and hang traitors and the enemy. Now, they are elected continuously to the US Congress.

[rawhide]

Each branch of government has checks and balances to prevent the tyranny of its power. The Supreme Court has a check and balance against it, if Congress would so choose to use it.

[Congressman Billybob]

I thoroughly agree with Nathan's attack on the Boumediene case. However, there is a far simpler solution to the problem than he offers. Read Article III of the Constitution; it's short and clear. See what power Congress has over the jurisdiction of the Court.

Congress has the power to strip the jurisdiction of the Supreme Court and all subordinate courts to hear any cases which are not in the "Original Jurisdiction" of the Court. Those cases amount to an average of one case per year.

THAT is the simplest and fastest solution to this problem. And if President Bush demanded that, the Democrats would be card-carrying fools to oppose it. (Yes, I know. A small number of Democrats are not only fools, they are proud of that. Dennis Kucinich comes to mind. LOL.)

Congressman Billybob

First in the series, "American Government: The Owner's Manual"

[xzins]

Don’t think it would get past the Senate filibuster.

[Congressman Billybob]

Look at the recent FISA "compromise" that gave the President what he wanted on security against foreigners. On paper, the Senate could have filibustered that forever. But not enough Democrats were willing to be on the wrong side of national security for a filibuster to happen.

I think the obvious insanity of the Supreme Court in the Boumediene case is of the same ilk. Once the issue was on the table in the Senate, too many Dems would run for cover and vote for it, for a filibuster to do its dirty work.

John / Billybob

[Libertarianize the GOP]

Nathan missed it on a couple of points; Judicial Review, allowing judges to ignore or void a law that conflicts with a higher law predates Marbury v. Madison. Then there is another way to reign in an out of control Supreme Court. Article III Section 2 of the US Constitution explicitly allows congress to limit the jurisdiction of the Supreme Court. In the after math of the Civil War Congress explicitly denied the courts Habeas jurisdiction over southern rebel, they could do the same thing today.
Jurisdiction Stripping
http://en.wikipedia.org/wiki/Jurisdiction_stripping

[xzins]

The libs get a lot of cover from the courts for their dirty agenda. They’d be reluctant to strip anything from the courts.

However, from your lips to God’s ears. At a minimum, I like to pray that you’re right.

:>)

[mojito]

Neither this congress, or the next, would strip the Federal Judiciary of of its newly discovered jurisdiction over foreign combatants and terrorists.

What is far worse is that the President is abiding by the decision. Yes, he's an unpopular President. But he should provoke a fight with the court on behalf of the legislature, saying that the court has overstepped its bounds, and only Congress can grant or deny habeas rights under the Constitution. He should state clearly he will not abide by the decision, nor will he abide by any subsequent habeas rulings in Federal District Court pertaining to enemy combatants - who are now going to exercise a remedy that they were only granted because of a rogue court (and Justice Kennedy's evolving standard of idiocy).

The liberals will scream bloody murder, of course. I say let them. What a fine idea during an election year! Democrats should defend the rights of terrorists at every opportunity from now until November. Then the American public can decide.

[MattinNJ]

Exactly-and then let them be on record as opposing it. They would cry foul, but they would be seen as defending the rights of terrorists-which they do. Pelosi may be safe-but the "conservative" democrats won't be. I wish Dubya would make a stand.

I also wish Jindal would make a stand on the child rapist death penalty case by refusing to accept federal jurisdiction over the right of a state to enact laws-but that's a topic for another day.

[Texas Federalist]

Each branch of government has checks and balances to prevent the tyranny of its power. The Supreme Court has a check and balance against it, if Congress would so choose to use it.

It did use it and the court ignored it in the Guantanimo decision.

[brityank]

Each branch of government has checks and balances to prevent the tyranny of its power. The Supreme Court has a check and balance against it, if Congress would so choose to use it.

Being as the Supreme Court and Congress and the Administration's EoP are all staffed with and beholden to (mostly) Lawyers, just how do you propose to effect that?

[Repeal 16-17]

Congress has the power to strip the jurisdiction of the Supreme Court and all subordinate courts to hear any cases which are not in the "Original Jurisdiction" of the Court.

The Nine High Priests of Justice would declare such legislation Unconstitutional on some BS grounds. What we need is for the People and the States to stand up to the Court. I don't trust a President or a Congress to do so; they'd only do it when it could increase their powers.

[Hebrews 11:6]

The Nine High Priests of Justice would declare such legislation Unconstitutional on some BS grounds.

But that's exactly the point: Congress would not pass such a stricture unless it was willing to enforce it. That means impeaching and removing any Justices who don't get who's boss.

[Hebrews 11:6]

Forgive my ignorance (or poor memory, which is the same thing), but has any President ever flatly refused to implement a Supreme Court ruling? Or even a Circuit Court ruling—that is, without bothering to appeal it to the Supremes?

[LibertyGent]

Yes, in 1832 the Cherokees found gold on their land, but Georgia said it was theirs. The Supreme Court ruled in favor of the Cherokees because they were protected by a treaty. President Andrew Jackson said, “Justice Marshall has made his decision; now let him enforce it.” Then he ordered the military to roust the Cherokees and he never faced any consequences.

Jackson was wrong only because the Court was OBEYING the Constitution on point (as Mr. Nathan might say). However, the real lesson is that the President can withstand the repercussions of stopping a rogue court - if the people accept the premise.

Jackson wrongly used his enforcement role against the Court, but that doesn’t mean that another president couldn’t rightly stop another Supreme Court. If a court really usurps another branch’s power and the self-evident language of the Constitution leaves no doubt, the President will have a strong case to use when explaining his decision to ignore the court’s ruling.

[Hebrews 11:6]

Thanks for your excellent reply. I had recalled Andy's "now let them enforce it" but couldn't place it and didn't Google it--you've filled in the blanks.

My reading of these potential Constitutional crises is that a President can get away with anything Congress doesn't remove him for. As you point out, being in the right would help.

[tacticalogic]

Was the Court any less in error when they caved in to FDR’s demands and let Congress turn the Commerce Clause into a blank check to assume control of anything they wanted?

[LibertyGent]

They were no less in error and we’re still paying for that disaster.

What’s most important to remember is that the “separation of powers” only work when each branch fully defends where it’s separated. If they don’t, we’re the ones hurt.

[Jacquerie]

Was the Court any less in error when they caved in to FDR’s demands and let Congress turn the Commerce Clause into a blank check to assume control of anything they wanted?

No, not at all, but by that time seven or eight of the nine clowns were FDR's nominees. Scotus did not cave, it agreed, and our Constitution has been "living" ever since.