[Regulator]

Interesting that Mr. Barton believes that judges who overturn referendum results are prime candidates for impeachment. I have one in mind who callously overturned the vote of 6 million people in California, whose last name is Pfaelzer. It probably wouldn't fly right now, due to the amount of time passed, but it would certainly be just. Oh well, I'll have to content myself with the ousting of Ms. Pfaelzer's unindicted co-conspirator, Gray Davis...

As far as the legislative branch being "first among equals", there may be some problems convincing the judiciary of that. I believe that it was Chief Justice John Marshall who claimed such primacy for his branch...everyone always jostling for power in this system.

[browardchad]

From the 9th Circuit decision:

Because the words that amended the Pledge were enacted into law by statute, the district court may not direct Congress to delete those words any more than it may order the President to take such action. All this, of course, is aside from the fact that the President has no authority to amend a statute or declare a law unconstitutional, those functions being reserved to Congress and the federal judiciary respectively.

Newdow nevertheless argues that because the 1954 Act violates the Establishment Clause, Congress should not be protected by the Speech and Debate Clause. This argument misses the jurisdictional, or separation of powers, point. As the Court held in Eastland, in determining whether or not the acts of members of Congress are protected by the Speech and Debate Clause, the court looks solely to whether or not the acts fall within the legitimate legislative sphere; if they do, Congress is protected by the absolute prohibition of the Clause against being "questioned in any other Place." Id. at 501. "If the mere allegation that a valid legislative act was undertaken for an unworthy purpose would lift the protection of the Clause, then the Clause simply would not provide the protection historically undergirding it." Id. at 508-09.

Although the district court lacks jurisdiction over the President and the Congress, the question of the constitutionality of the 1954 Act remains before us. While the court correctly dismissed the claim against those parties, it survives against others.

I suppose this would be business as usual to a lawyer, but what bothers me is that court makes its separation of powers argument based on a previous court decision, and not on the Constitution. In other words, the validity of the Constitution itself depends on the interpretation of the court?