When the High Court Violates the Constitution - Reigning in an Imperial Judiciary
By Alan Nathan
Published July 7, 2008

The Supreme Court openly violated their 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?

On June 12, the justices ruled 5-4 that Guantanamo detainee’s caught on the battle field may enjoy habeas corpus rights - the ability to challenge one’s incarceration before a judge. Justice Anthony Kennedy argued in the majority opinion that, “The laws and the Constitution are designed to survive, and remain in force, in extraordinary times.” Yes they are Mr. Kennedy, so why is your ruling on this case so dismissive of that very premise?

In both the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, Congress exercised their authority to suspend habeas corpus for anyone who “has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” If Congress wants Mr. Bush stripped of that additional tool in the war against terrorists, then it is its constitutional prerogative (and only its prerogative) to do so.

No government entity, including the Supreme Court, has the power to overrule an authority to which it is subordinate. Checks and balances are only possible because of separated powers, i.e., allocated authority uniquely vested in one branch or another by the Constitution. In short, none can do what another can stop, providing the encroached upon branch has the written infrastructural efficacy to thwart the breach in question. If it weren’t for each branch having certain absolute powers beyond the reach of the other two, checks and balances would be nonexistent as there would be no mechanism by which to implement them.

An example is the process for filling a vacancy on the Supreme Court. After the President selects a nominee, the Senate then confirms or rejects that person, and the Supreme Court has no jurisdiction over those two separated powers – like it or not. Just as the court may not reallocate those constitutional powers to its own authority, so it may not with all others – including the aforementioned Article 1, Section 9 prerogative.

The check on a rogue court is done either by Congress impeaching and trying the justices in question, or the President refusing to enforce their rulings by citing the court’s self-evident violation of constitutional laws. The presidential option is perhaps more efficient given that Thomas Jefferson’s 1804 sentiment still holds true today: “Removing Judges by impeachment is a bungling way.”

The President can then bolster that position through his power of the pardon, and accordingly insulate those working on his behalf from any charges that may arise from the original ruling.

If the voters feel that he has given a bad-faith rationale for such a dramatic move, they can always compel their representatives to impeach him in the House and fire him through the Senate. Fortunately, however, the option nonetheless exists as an emergency fail-safe. (The Framers had good reason to deny the Supreme Court any enforcement capability.)

Judicial review is the most frequent defense given on my show by attorneys and congressional leaders when explaining why the highest court may rule with impunity.

(Judicial review was born out of Marbury versus Madison, 1803, and became the Court’s authority to interpret the Constitution when determining whether or not challenged legislation passes constitutional muster.)

But as I’ve had to argue before, the license to interpret does not a right to unilaterally amend the Constitution make. Such a maneuver requires a proposal from two-thirds of Congress or two-thirds of the state legislatures, and must be ratified by three-fourths of the state legislatures or by national conventions held in three-fourths of the states.

Most understand that judicial review is necessary because there are times when the Constitution simply doesn’t have the corresponding language needed for a particular challenge. However, when the Constitution does have direct wording, and the court openly disregards the peoples’ founding directive on point, then a hostile act against the citizenry has been committed and must be stopped.

This sacred originating law of ours was never meant to be the domain of politicos and lawyers, but rather a protection against them. It’s our own check and balance measure of whether or not the branches are complying with the document from which their powers are derived and to which they are all subordinate. Hence the preamble wording, “We the people…do ordain and establish this Constitution for the United States of America.”

 





Alan Nathan, combative centrist, columnist, speaker and the nationally syndicated host of "Battle Line With Alan Nathan" on the Radio America Network.

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