Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: jackbenimble
We would be getting into an interesting legal paradox if the Supreme Court overstepped their Constitutional Authority by unconstitutionally making a ruling in an area of law where Congress had constitutionally limited their jurisdiction.

In the end, the judicial branch has no enforcement options. It simply makes rulings. It would be an interesting set of events to watch pan out though. The Congress, has enforcement by force options, a luxury the judicial branch doesn't have. A bit like Dred Scott, the court ruled, the legislative and executive branches didn't concur so they just ignored the ruling. If nobody backed down, the Congress would ultimately win either by default or impeachment of the judges.

Cordially,
GE
274 posted on 11/04/2005 12:09:55 PM PST by GrandEagle
[ Post Reply | Private Reply | To 254 | View Replies ]


To: GrandEagle

"In the end, the judicial branch has no enforcement options. It simply makes rulings. It would be an interesting set of events to watch pan out though. The Congress, has enforcement by force options, a luxury the judicial branch doesn't have. A bit like Dred Scott, the court ruled, the legislative and executive branches didn't concur so they just ignored the ruling. If nobody backed down, the Congress would ultimately win either by default or impeachment of the judges."

Congress doesn't have many force options at all. The Executive has the executive departments in his control. Congress controls the purse.

I can predict how it would pan out.
It would depend entirely on the issue involved, and where the public stood on it.
If Congress were seeking to do something that was massively popular and the Supreme Court was resisting, such a move would likely result in a Congressional win. The New Deal would have been an example. The President was immensely popular. The Democrats controlled Congress. The Supreme Court kept striking everything down, and this made everyone, not just the President mad. Of course, in that instance, FDR advanced his court-packing plan, and the People and Congress sided with the court. Suppose, instead, in a circumstance like that, Congress makes the move you suggest: passes a law that the Supreme Court doesn't have the power of constitutional review over that set of decisions. Suppose the President signs the act, so both elected branches are on board.
If the people are with the Congress and President, the Supreme Court can do a few things, two of which are:
(1) rule striking down the law, and the let the President and Congress decide to ignore it, or (2) decide not to hear the case, thereby avoiding the confrontation in that instance.

But now let's look at a different issue. Say, abortion or the 14th Amendment citizenship right. If the current Congress buzzsawed through a law to that effect, and the President signed it, the Supreme Court would strike down that legislation 9-0 as a usurpation of authority.
Then what?
Well, then the Democrats as a whole, plus plenty of other people in the independent and libertarian variety, not to mention more than a few Republicans (like me) would stand by the Supreme Court and loudly, strongly, and unrelentingly oppose the Congress and White House.

The ruling party that did that would lose power, the opposition would be swept in, and the Supreme Court ruling would be upheld.

Judicial review has been a feature of American democracy for 203 years. To try and sweep it away by some sort of legerdemain would be nothing short of an attempted revision of the constitutional order without an amendment. The people would, rightly, fear and oppose such a radical attack on the established order.

Majority rule in Congress cannot - and SHOULD not - be able to strike down constitutional opinions of the Supreme Court.


281 posted on 11/04/2005 1:29:07 PM PST by Vicomte13 (Et alors?)
[ Post Reply | Private Reply | To 274 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson