Conservatives Split on Gingrich's Courts Plan

For nearly a decade, 2012 contender Newt Gingrich has been floating some controversial ideas aimed at reining in the federal judiciary. He's called that branch of government "grotesquely dictatorial" and elitist. Should he become president, Gingrich says he'll ignore Supreme Court decisions if they don't square with his interpretation of the Constitution or what he believes the country's founders intended.

Gingrich says federal judges should be called before Congress to explain their decisions, suggesting Sunday that he'd even approve of arresting them if they refused to show up. It's an issue raised Thursday in Fox News' GOP debate in Iowa, with Gingrich responding, "I would be prepared to take on the judiciary if, in fact, it did not restrict itself in what it was doing."

Former Pennsylvania Rep. Bob Walker, a Gingrich supporter, says the proposals are spot on.

"What he's suggesting is a very, very important change in the direction of how we deal with the courts acting more like legislatures than like courts," Walker said. He adds that it's time to "rebalance" the system. For Gingrich, in some cases, that would mean abolishing certain courts altogether.

There are plenty of critics taking aim at Gingrich, including those who say he's misread the Constitution and Federalist Papers. Roger Pilon, vice president of legal affairs for the CATO Institute, says Gingrich is challenging the very system established at our nation's origins.

"If you're going to attack it, you're really attacking the (Constitution's) framers," he said.

Others who agree with Gingrich that the federal judiciary has often overstepped its bounds say the solutions he's proposing are unworkable.

As you say national security is a Constitutional obligation IOWs it's not a court decision. It is not an example of what I am talking about.

0bama has told the DOJ not to enforce Fed drug laws in regards to medical marijuana shops. (Now he has reversed that but...) Since Fed drug laws are un-Constitutional he has no obligation to enforce them. Even if they were Constitutional he has the authority to tell the DOJ to not enforce them and force the issue back to the courts or to Congress.

Same thing with DOMA. It is probably Constitutional but the president has the authority to not enforce it and force the issue back to the courts and/or Congress. The only cover Newt needs is the Constitution and numerous historical examples that he has given that have withstood time and SCOTUS scrutiny.

“As you say national security is a Constitutional obligation IOWs it’s not a court decision.”

That’s the point I’m trying to drive home. The president doesn’t decide what is or is not constitutional. If the president can, then there’s nothing wrong with Obama defying the constitution by refusing to enforce federal obligations.

“It is not an example of what I am talking about.”

Well, the problem is that your argument means that you are giving Obama carte blanche.

“0bama has told the DOJ not to enforce Fed drug laws in regards to medical marijuana shops.”

I don’t see how that’s different at all. There’s this little thing called ‘rule of law’. Obama just can’t get up and decide that he’s not going to enforce federal law. If he wants to change the federal law, then there are constitutional means by which he can get the law changed. Simply ignoring laws that he finds inconvenient is wrong.

“Since Fed drug laws are un-Constitutional”

Um, no they aren’t. The Federal government has always had the power to regulate the distribution of goods that enter the nation. Right there in the constitution, enables the federal government to both inspect goodand to pass tariffs. So yeah, regulations restricting goods that may or may not be imported into America is a constitutional power of the federal government. Prosecuting those who defy these laws, is also part of their powers.

This is why, fr’nstance the dept of Agriculture can inspect persons that may be transporting invasive species into America, whether it’s by choice or by accident.

“Even if they were Constitutional he has the authority to tell the DOJ to not enforce them and force the issue back to the courts or to Congress.”

Absolutely not. See, this is the Imperial presidency. What’s next, suspension of Habeaus Corpus as Lincoln did?

“Same thing with DOMA. It is probably Constitutional”

See, this one goes to Reynolds. It explicitly lays out that the federal government has the obligation to regulate marriage laws to a consistant standard wrt English common law. One man and one woman, with restrictions on consanguinity. It’s tied in with immigration. Since spouses are recognised and permitted to immigrate, the federal government has the power to regulate the provision of marriage licenses.

However, Reynolds goes on to explain that the marriage laws are just as much a part of English common law, as Habeaus Corpus. The government has the obligation to defend the law as it is written, it does not have the authority to change the definition (in Reynolds), to permit polygamy, or as we are seeing now, with homosexuality. Again, it gets back to that whole concept of rule of law.

“The only cover Newt needs is the Constitution and numerous historical examples that he has given that have withstood time and SCOTUS scrutiny.”

He does not have the authority. Saying that he does, effectively consolidates power in the hands of the executive, to the point, where the other two branches cannot effectively keep that branch in check. Newt needs to be saying that the constitution is above him, not that he is above the constitution.

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

I don’t see anything where it says that the president gets to decide what is or is not constitutional. That’s the power of the judiciary.

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