The Washington Supreme Court today struck down the state's law against false campaign advertising [RCW 42.17.530]. I agree with the majority opinion, written by Justice James Johnson, with Justices Alexander, Owens, Sanders and Charles Johnson concurring:
The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment. Because RCW 42.17.530(1)(a) rests on the validity of this erroneous assumption, it must be struck down.In addition to the First Amendment problems, there's also a practical matter -- if government spent its time going after every lying politician, it would be too busy to accomplish anything else. Posted by Stefan Sharkansky at October 04, 2007 04:56 PM | Email This
"read my lips, no new taxes" George HW Bush
"I don't think our troops ought to be used for what's called nation-building" George W Bush
"I don't think our troops ought to be used for what's called nation-building" Rudy Guiliani
"we should rely on private markets to guide healthcare" Mitt Romney
Posted by: Travis Pahl on October 4, 2007 05:51 PMYou say this like it would be a bad thing.
Posted by: Huey on October 4, 2007 06:01 PM
You seem to have a difficulty telling the difference between a broken promise and a lie.
"Read my lips, no new taxes." = Broken promise, not a lie. Big difference. He thought it would be true when he said it, but later on, he broke his promise. Breaking promises isn't a good thing, but it's not the same as a lie.
A lie is something like this:
"I did not have sexual relations with that woman, Miss Lewinski, and I never asked anybody to lie." = This is a lie. He had already had sex with her, and he had already went about covering it up.
"I remember being in Cambodia on Christmas, with out Government denying that we were there." = Lie. He wasn't ever in Cambodia, and he knew it.
Had Clinton said "I WILL NOT have sexual relations with anyone but my wife," that would be a broken promise, but not a lie. But he didn't do that. He lied. To a judge.
Posted by: cliff on October 4, 2007 06:06 PMAnd this is a bad thing??????????????
Posted by: pbj on October 4, 2007 06:52 PMAs opposed to lying politicians going after private citizens?
To be overly generous, I guess not all politicians lie, but I a fairly convinced that all politicians are short on telling the truth.
Posted by: SouthernRoots on October 4, 2007 08:26 PMSure it would be a the bushes quotes regarding nation building and taxes would only be a broken promise if you beleive they did not indtend to break it when they said it. I don't.
Guiliani and Romneys quotes however are beyond promises already. Romney said his quote after messing with the market, guiliani said his after restricting rights of gun owners in NYC.
Posted by: Travis Pahl on October 4, 2007 08:59 PM"Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right."
This case is about being responsible for the abuse of the right. To publish a lie about someone is to libel them, and the libeled person can sue the liar and win damages in court if you can prove the statements were published, damaging, and were false. However, if the victim is a public figure, he or she must also prove that the liar had a malicious intent - the higher standard was created for these people because they have chosen to put themselves into the limelight where they will be the subject of public opinion. The supreme court held that this law was sufficient, and therefore the law was unnecessary in addition to being, supposedly, unconstitutional.
But as the minority pointed out, it is virtually impossible to prove maliciousness in political speech, and the damage will be done regardless of the motive of the lying candidate. There is a legitimate state interest in attempting to assure that when voters decide on which of two candidates shall represent them, they can rely on the public statements the candidates have made about each other. With this legitimate interest in mind (which is similar to the legitimate state interest in prohibiting speech that incites riotous behavior, for example) the state should be able regulate political speech to the extent of prohibiting candidates from knowingly lying about their opponents.
It wasn't a matter of the politicians policing speech (Pudge at #10) or the government being the arbiter of truth (Cliff at #1) - the candidate who was lied about had to file a complaint and then a court (i.e., a jury, which has always been a "fact finder" or "arbiter of truth") would have had to decide, base on evidence, whether the lying candidate actually lied. I can find no reason why this law was a)offensive, b)any more of a violation of free speech than the proverbial law prohibiting the false and malicious shouting of "fire" in a crowded theater.
Posted by: srogers on October 5, 2007 07:50 AMAnd I don't know why you think that a court isn't politicians. The judge commands the court, and the judge is elected in this state, and is therefore a politician. That is precisely what this is about: you're asking the foxes to guard the henhouse. You either think judges are above bias (ha!) or that juries will counteract the leanings of the judge (ha ha!!).
Just because something is illegal doesn't mean the best way to deal with it is through the courts or government. A case could pehaps be made that the law was not unconstitutional, I don't know. I am not commenting on the Supreme Court case specifically, I am just saying that the law is absolutely ill-advised.
Once again, we are told that we need government to solve our problems. We don't. Government would just make things worse in this case (as with most others), by muddying the waters and dragging things out and, of course, in spending weeks or months investigating false claims of lying. We don't want or need that. We are not children who need government to tell us what is truth and what is lie, and we do not trust the government to be able to do so anyway.
Posted by: pudge on October 5, 2007 10:01 AMI do, however, think you are a little off in your characterization of the law in question, and in your characterization of courts in general. The judicial branch of our government is the primary check on the power of the legislative and executive branches, and check on the power of the courts is in their function: only supreme courts have the authority to "say what the law is" (Marbury v. Madison), and they cannot, in any way, enact laws themselves.
More to the point, when a jury determines facts in a case (or in this case, when they determine if a candidate lied), they act independently of the judge. The judge can rule on the admissibility of evidence, or instruct the jury on possible verdicts given the wording of the laws that govern the matter before the court, but with only a few exceptions, the jury, and the jury alone, determines facts in dispute, and they do it based on evidence presented by the litigants, not the judge. The jury is composed of people like you and me - are you a politician?
Posted by: sroger on October 5, 2007 10:44 AMAnd also, no, Marshall did not say in Marbury v. Madison that "only" the courts have the authority to say what the law is, either. They are the ultimate judge of that, but not the only one.
Also, yes, juries can act independently of a judge, but a judge can steer them, and in some cases, overrule them, as you concede.
Posted by: pudge on October 5, 2007 12:07 PMYes, I know the power to form our government comes from the PEOPLE, but that is not a practical limitation on the actual power of government to make laws.
In Marbury, Marshal wrote "It is emphatically the province and duty of the judicial department to say what the law is." Whether implied or not, it is certainly true that there is no mechanism for anyone else to determine whether a law comports with the Constitution, so I have no idea what you are getting at when you say that there are other judges of "what the law is." I can say what the law is, and so can you, but we can't do anything about it other than wait to cast a vote.
Finally, judges can only steer a jury with respect to instructions based on the law as written by the legislature; they cannot and will not instruct it as to what is or is not true when evidence conflicts. And judges can only overrule juries in very limited circumstances. For example, judges can overrule excessive damages awards (but they have to show that the award is actually excessive based on something like history or legislative intent), or they can determine that a finding of fact is so absurd that the jury must have fundamentally misunderstood something (and again, there has to be a reasonable basis for that, the overrule is reviewable by a higher court, and the result would likely be a second trial so that the facts can actually be determined). On this point, you are just not correct.
On the bigger issue of the supreme court opinion, I have changed my mind. Go look at the comments to the second of Stefan's posts for today. Apparently the truth of a candidate's factual statement was not to be decided by a jury but by a politically appointed board. That is not apparent from the statute, but regardless, if that is true, as the majority states, then they were right to strike the law.
Finally, remember that the law was supposed to prohibit willfully false statements of fact about another candidate. The court made a big deal of the supposed chilling effect of such a prohibition on political debate, as if some panel was going to rule on the truthfulness of political opinion. That is a blatant straw-man argument - the court argued correctly against a threat that just wasn't there.
Posted by: srogers on October 5, 2007 01:46 PMThis is not merely a semantic argument. The point is that yes, it IS a practical limitation on the government: if we don't like what they do or say we can elect someone else.
In Marbury, Marshal wrote "It is emphatically the province and duty of the judicial department to say what the law is." Whether implied or not, it is certainly true that there is no mechanism for anyone else to determine whether a law comports with the Constitution
Not true at all. Indeed, the Legislature has to determine that when it passes a law, and the Executive when he signs or executes the law. All three branches are required to determine what the law is. They cannot do their job otherwise, because, as you know, the Court cannot answer such questions unless an actual case is brought before it. So until that happens, the Legislature and Executive must make such determinations.
Posted by: pudge on October 5, 2007 04:10 PMFirst, you quote one of my sentences out of context to make me say something I didn't say. I never meant that the power exercised by the people in the ballot box is not a limitation; I meant that it isn't as powerful as the supreme court's power to strike down an unconstitutional law. To me, this power and duty makes the Supreme Court the primary check on the power of the other branches, who make and execute the laws. If you think this power is secondary to the peoples' power exercised every two years, and which cannot affect existing laws (there is no federal right of referendum), fine. I don't think anything of value will be gained by arguing over this.
But your second point is just absurd. Yes, legislators can argue whether a law will or won't be constitutional during the law making process, or as a basis for repealing a law, and yes, the President may opine as to the constitutionality of a law when signing it (if applicable) or vetoing it, or in deciding how vigorously to execute it, but the judiciary, and only the judiciary, is empowered to declare a law unconstitutional and to invalidate it. Supreme Court precedent is dispositive in lower court cases involving constitutional issues; legislative discussion or intent, or the opinions of individual legislators regarding the constitutionality of potential laws is not only not dispositive, but seldom even considered by lower courts when considering whether the law, once enacted, is constitutional.
If you read Marbury (and the many cases expounding on it, as I did in law school), you'll see that this exclusive judicial power is what was meant by the phrase "say what the law is." Marshal meant that the court had the power and duty to pass judgment on laws created by the legislature, and to base their judgment on the supreme law, the law that is superior to any that the legislature may pass: the Constitution.
The power of the representatives of The People is limited by the words, spirit and jurisprudence of the Constitution, and the judiciary is the mechanism for assuring the limitation is effective. Otherwise, (if "the legislature or the executive made such determinations") they could simply vote to ignore the Constitution, or disband the judiciary, or do away with elections, or even impose absolute socialism, or its close cousin, fascism. There would be no real limitation on governmental power at all.
Posted by: srogers on October 5, 2007 04:52 PMThis law would have pitted opinions vs. facts, and that is very dangerous. No better than the "Fairness Doctrine."
Posted by: Elaine on October 5, 2007 08:23 PM(1) It is a violation of this chapter for a person to sponsor with actual malice:
(a) Political advertising or an electioneering communication that contains a false statement of material fact about a candidate for public office. However, this subsection (1)(a) does not apply to statements made by a candidate or the candidate's agent about the candidate himself or herself;
(b) Political advertising or an electioneering communication that falsely represents that a candidate is the incumbent for the office sought when in fact the candidate is not the incumbent;
(c) Political advertising or an electioneering communication that makes either directly or indirectly, a false claim stating or implying the support or endorsement of any person or organization when in fact the candidate does not have such support or endorsement.
(2) Any violation of this section shall be proven by clear and convincing evidence.
If you actually read this statute, you will see that statements like the one you quote from Bill Clinton's would not have been prohibited by it. The law only prohibited factual statements made about another candidate, with malice. Political opinions, statements like Clinton's about what he himself did or didn't do, or any other statements not pertaining to another candidate would not have been the subject of the law.
I have been convinced that the law was flawed by allowing a politically appointed board to determine whether a candidate's statement about another candidate was knowingly and maliciously false, but your criticism is wrong. The law would not have "pitted opinion vs. facts" since opinions are not "statements of material fact about a candidate for public office."
Posted by: srogers on October 5, 2007 10:55 PMFirst, you quote one of my sentences out of context to make me say something I didn't say.
No, I did not.
I never meant that the power exercised by the people in the ballot box is not a limitation; I meant that it isn't as powerful as the supreme court's power to strike down an unconstitutional law.
But you SAID it "is not a practical limitation on the actual power of government to make laws." I say it is. Shrug.
To me, this power and duty makes the Supreme Court the primary check on the power of the other branches, who make and execute the laws.
And I disagree. The Federalist is quite clear that the people are the primary check on the legislature, NOT the Court. Yes, the Court is a check, but not the primary one. Indeed, the Court is more of a check on the will of the people, as expressed through the legislature, than it is a check on the legislature itself: making sure that the democratic will of the people does not violate the rights of others.
But your second point is just absurd.
Only because you misunderstood what I actually wrote, and the intent behind it.
Yes, legislators can argue whether a law will or won't be constitutional during the law making process, or as a basis for repealing a law, and yes, the President may opine as to the constitutionality of a law when signing it (if applicable) or vetoing it, or in deciding how vigorously to execute it, but the judiciary, and only the judiciary, is empowered to declare a law unconstitutional and to invalidate it.
First, you underestimate the importance of what the other branches do in regards to determining Constitutionality. And frankly, your view is part of the problem we've got today. I'll get back to the first point after I show why it's a problem.
Just tonight I was talking to someone about how part of our problem is that we act like selfish children, thinking that if the Court says something is OK (or doesn't say it isn't OK), that therefore it's acceptable. So the Court doesn't say SCHIP is unconstitutional, therefore it doesn't violate the Constitution, therefore it's OK!
But that's nonsense. That is now how our system was designed. Indeed, conservative jurisprudence requires that sometimes, clearly unconstitutional laws (like Social Security) be allowed to stand, because to invalidate them in Court would lead to chaos. It falls to our elected representatives to resist the temptation to violate the Constitution just because the Court won't stop them from doing so.
The Court cannot fully do the job you charge it with, to be the bulwark against violations of the Constitution, because it has such limited power to control the effects of its rulings, and, again, because it can only adjudicate specific cases. If we are to rely primarily on the Court to protect and defend the Constitution from unconstitutional laws -- which is, of course, what we've been doing in recent years -- then we are without hope, because the Court is incapable of doing the job on its own.
I am not saying that the determination of the other branches can supercede the Court's, and I am not saying it has any significant jurisprudential significance (other than legislative intent, but that's different than what I am talking about). I am saying that the other branches make a determination about constitutionality of many laws, and that this determination matters, not merely for their own sake and in their own minds, but in many practical ways.
So the SCHIP program is a good example again here. Congress determines it is not unconstitutional, so they pass the law. Then the President is required to determine whether he thinks it is unconstitutional, before signing it. But the next President who comes along may make a different determination and decide to not execute that law.
Because -- again, as you know -- we cannot simply ask the Court if this law is constitutional, the determination of the constitutionality of the law, by the Executive, is all we have until the Court hears a case on the issue.
And this becomes even more "interesting" in such cases as warrantless wiretapping, where the Congress prohibits the President from doing something that the President says the Congress has no right to prohibit. Whose determination rules? Necessarily, it's the President's, of course, since he has the practical authority, until Congress impeaches or sues him, or a case is otherwise brought.
Again, you wrote, "there is no mechanism for anyone else to determine whether a law comports with the Constitution." But the Congress and Executive do that all the time, and it matters a lot more than what the Courts do, because it happens so much more often.
There's one more mistake you've made which I'll get to in a moment.
If you read Marbury (and the many cases expounding on it, as I did in law school), you'll see that this exclusive judicial power is what was meant by the phrase "say what the law is."
Again, no, Marshall didn't say that power was exclusive.
Further, to wrap up the point above, the Court does not determine constitutionality any more than the other branches, at all The Court cannot tell us what is and is not constitutional. Its determinations are not Truth. They are, just like the determinations of the Executive branch, merely their view of what is constitutional.
What the Court "determines" about constitutionality is no different than what the Congress or Executive does, except in that the view of the Court overrules the view of the other branches. That's it.
As Justice Felix Frankfurter (whom you surely read in law school) said, the hallmark of constitutionality is what the Constitution actually says, not what the Court has said about it.
The Court does not, and cannot, say that something is, in fact, constitutional or unconstitutional. It only says what the law must be, and we are absolutely free to disagree, though we must follow their ruling. Which is no different from when the Executive determines whether something is constitutional, except that there's more possible recourses: impeachment, lawsuits (which can lead to overruling in Court), various Congressional activities, and election of someone else.
You may dismiss this as semantics, but I dismiss such dismissals. We're talking about fundamental principles of republican governance here, and as I said above, I believe one of our greatest problems in this country is that most of us have illogically succombed to the view that only the Courts say whether something is constitutional, freeing our elected representatives to violate the Constitution with no recourse when the Court -- for one of many good reasons -- refuses to act.
It's not mere semantics. It's important.
Posted by: pudge on October 6, 2007 01:17 AMI personally think that the single greatest tragedy that ever occurred in Constitutional jurisprudence was the expansion of the bench by President Roosevelt so he could obtain, by appointment, a bench who would disregard the principles contained in the Constitution and come up with specious arguments based on the words of the Constitution alone so that the clearly unconstitutional laws he was pushing through Congress (WPA, Social Security, etc.) would be declared constitutional. In this case, the court clearly failed to act as a check on the other two branches.
You wrote: What the Court "determines" about constitutionality is no different than what the Congress or Executive does, except in that the view of the Court overrules the view of the other branches. That's it.
Except that this difference is the key difference in my argument. The arguments during Congressional debate rarely bring up Constitutional limits, they are more often policy arguments relating to cost/benefit analyses, who is hurting and needs helping, how we are the only industrialized nation that does or doesn't do ____, how if we fail to act, the environment will be destroyed, etc. Most laws that are enacted are part of large packages that the President signs without comment, and when he does comment, there is no grand "determination" of Constitutionality. No, you overstate the importance of Constitutional reasoning by the political branches of government, and again, neither the President, nor the Congress, has the power to strike an existing law based solely on its legal judgment that the law is unconstitutional.
This difference in power isn't semantic, its important. Its what is wrong with this statement of yours: "The Court cannot tell us what is and is not constitutional. Its determinations are not Truth. They are, just like the determinations of the Executive branch, merely their view of what is constitutional." I fact, the court's "determinations" are more than the political arguments of the Legislative and Executive branches because 1) they become precedent and effect future jurisprudence in a way that the other branches' "determinations" cannot, and 2) they can have the effect of invalidating an existing law, which is a power the other branches do not have.
That's all I'm saying. Take this statement of yours: "So the SCHIP program is a good example again here. Congress determines it is not unconstitutional, so they pass the law. Then the President is required to determine whether he thinks it is unconstitutional, before signing it. But the next President who comes along may make a different determination and decide to not execute that law.
Because -- again, as you know -- we cannot simply ask the Court if this law is constitutional, the determination of the constitutionality of the law, by the Executive, is all we have until the Court hears a case on the issue.
Congress and the President may opine as to whether SCHIP is constitutional (or whether the current court will uphold it or not), and there may even be statements such as this in the Congressional record or as a reason for vetoing it. But once a law such as this is enacted, the President can do nothing to change it. He must execute it. Congress can repeal it, but there won't likely be the political will, at least in the near term, because a majority of the two bodies will have just voted to enact it. And as you say, the law may not come before the supreme court for some time, but the fact remains that there is no other body existing in government that can strike down the law, on purely constitutional grounds, except the Federal Appeals Courts or, ultimately, the Supreme Court. Most of Roosevelt's initial socialistic laws came up for review within months of enactment, and they were overturned; which is why he packed the expanded court with socialists who would disregard the constitution and refuse to exercise their unique power.
Posted by: srogers on October 6, 2007 09:45 AMThe Truth is not a religious concept, but merely a philosophical one. That doesn't change your point, except that I disagree with your implication that it's unimportant, because you seemed to be saying -- and most people believe -- that what the Court says goes, and if the Court doesn't say anything, well, then it is therefore allowed. We give the Court far too much credit.
Except that this difference is the key difference in my argument. The arguments during Congressional debate rarely bring up Constitutional limits
Right, and that is a perfect example of the problem. We don't require our legislators to care about the Constitution, because we incorrectly believe it's not their job to care. That it's for the Court to decide.
For more than a decade now, the single greatest reform in Congress that I've advocated for is that every single bill voted on in Congress includes a section that points to the authorization in the Constitution for that bill. It won't ever happen, and if it did they'd make it weak so they could find ways around it, but if implemented well, it would be a huge win for liberty.
No, you overstate the importance of Constitutional reasoning by the political branches of government
No, I do not. Not remotely. Every time the Congress or the President does anything, they implicitly determine that it is Constitutional. And they do a lot of things. And most of those things are, in fact, unconstitutional.
and again, neither the President, nor the Congress, has the power to strike an existing law based solely on its legal judgment that the law is unconstitutional.
Sure they do. Congress can strike an existing law for ANY reason. And while the President cannot strike a law, he can refuse to execute it, for that reason. I am not sure what brought you to that incorrect conclusion.
I fact, the court's "determinations" are more than the political arguments of the Legislative and Executive branches because 1) they become precedent and effect future jurisprudence in a way that the other branches' "determinations" cannot, and 2) they can have the effect of invalidating an existing law, which is a power the other branches do not have.
Again, you're wrong that Congress cannot invalidate a law because of its determinations. Of course it can. At any time. And the President can refuse to execute a law, or ignore it, based on his determinations (until the Court overrules him). But moving on ...
I never said it was mere semantics, or that it was unimportant. What I said is that the only difference is one of degree, but that it does not -- as you claimed -- mean that the Court is the only body that makes such determinations. I can decide that I should have a fence in my yard. I can be overruled by any number of government bodies, for one reason or another: does that mean I am not allowed to make such a determination? No, it just means my determination is inferior. However, my determination stands until it is overruled, which may never happen.
Congress and the President may opine as to whether SCHIP is constitutional (or whether the current court will uphold it or not), and there may even be statements such as this in the Congressional record or as a reason for vetoing it. But once a law such as this is enacted, the President can do nothing to change it.
Sure he can.
He must execute it.
False. Absolutely, utterly, false. There is no truth in that statement, of any kind, whatsoever. Indeed, if this were true, then you would be saying that Congress has a right to determine constitutionality, not just for itself, but for the President, which would violate separation of powers.
The President has not just the right but the obligation to determine for himself whether a law is constitutional, and act accordingly based on that determination.
Perhaps this is the root of our disagreement: I was assuming all along that you understood the fact that the President has no obligation to enforce a law he believes is unconstitutional.
Posted by: pudge on October 6, 2007 11:32 AMFalse. Absolutely, utterly, false. There is no truth in that statement, of any kind, whatsoever. Indeed, if this were true, then you would be saying that Congress has a right to determine constitutionality, not just for itself, but for the President, which would violate separation of powers.
The President has not just the right but the obligation to determine for himself whether a law is constitutional, and act accordingly based on that determination."
With the exception of your statements of falsity, this is a well stated opinion with which I happen to disagree. Assuming this link works, here is a very thorough discussion of the issue which includes a presentation of both sides of the debate.
http://www.law.duke.edu/shell/cite.pl?63+Law+&+Contemp.+Probs.+7+(WinterSpring+2000)
(if the link doesn't work, let me know and I'll give you more info so you can find it).
I'm not saying I agree or disagree with the author, but I present it because 1) its very interesting and I think you may also find it interesting, and 2) it illustrates that this is an ongoing, current debate in legal circles, and thus your blanket statements of falsity simply show your adherance to one side of the debate, they are not intrinsically correct. In the end we will likely just continue to disagree, because both points of view fit well within the framework of our governmental structure, and becuase there is no ultimate authority on which to rely for determining which of us is "right."
At least we are arguing for the right reason, that is, I believe you are arguing for an interpretation that maximizes liberty and limits the power of government, and I believe that I am doing so as well. That's a far better discussion than those that I usually have in this and other fora.
Posted by: srogers on October 6, 2007 12:19 PMThere are many issues on which I recognize that both sides have some validity. This is not one of them. If the President were required to follow whatever Congress said, unless the Court stepped in, then that would give Congress the power to completely destroy any power of the Presidency.
It literally makes no sense. Let's say on the eve of a treaty negotiation, Congress passes a law saying the President cannot sign a treaty without prior approval of the Senate. Why should the President even consider following that law, which violates the Constitution? This leads to a complete surrender of the powers of the Executive branch to the Legislative.
Yes, there is a provision in the Constitution that the President faithfully execute the Laws. But The Laws includes The Constitution (ah, I see this point is also touched on by the author, via former Acting Assistant AG Flanigan ... who needs law school? ;-).
The Ninth Circuit's reasoning -- as usual -- was poor. Passage of a law and execution of a law are two different things, and likening nonexecution of a law (or acting against a law) to a veto is specious (which is apparently the point the author makes, as I skim quickly).
As I said from the outset, and as this author appears to agree, both branches make their own determination of constitutionality for themselves. Congress has no right to tell the President what is constitutional. Its right is to sue or to impeach. Or as Harrison said, paraphrased in the article: "There is no special finality rule that allows Congress (unlike, perhaps, the judiciary) to bind another branch (nor for that matter, any individual) to its views regarding the constitutionality of statutes."
I agree with the author that simply ignoring statutes is a poor course of action. But that is for political reasons, and I am arguing strictly from the law here. The President has the authority to ignore any law he sees fit, if he believes it to be unconstitutional. Period, end of story. If Congress doesn't like it, they can take him to court, or impeach him. That's how the game works, it's how it's always worked (well, since the court asserted a role for itself in Marbury), and it's a good system.
And yes, I have no problem with you personally. I appreciate your perspective and applaud your motives, and see them as very similar to mine. I do, however, disagree with you. :-)
Posted by: pudge on October 6, 2007 12:52 PMFinally, regardless of all these fine and subtle arguments, I want to try one more time to make my original point - the Judiciary is the branch of government that is empowered to strike (or invalidate) an existing law. Congress cannot do that. Repealing a law, even for constitutional reasons, is not the same as judicially invalidating it. In addition, repealing a law does not establish one whit of judicial precedent. I think we can agree that repealing a law has the same effect as striking it (except for the establishment of legal precedent), but they are not the same thing. (One requires 5 people and a legal argument based on an annunciated interpretation of the Constitution and Constitutional Law, the other requires a majority vote in both houses based on simply any persuasive argument). The President may, at least in some cases, perhaps at will, refuse to execute a law, but he cannot repeal or invalidate it. These are all separate and uniquely different powers, and therefore I stand by my original statements. And the court's legal power to invalidate a law is not set forth explicitly anywhere in the Constitution - it arises from the jurisprudence following Marbury v. Madison establishing the Supreme Court as the final arbiter of the constitutionality of laws.
Posted by: srogers on October 6, 2007 01:56 PMIt is clear to me that the Executive has both the duty and the obligation to execute laws in compliance with how HE interprets the Constitution, ONLY UNLESS the Court overrules him. I see no justification for substituting the judgment of the Congress for his own, and I do not consider this a constitutional crisis of any kind. This is not veering away from the rule of law at all: it is the President following, to the best of his ability and understanding, the law. Following the law is not tyranny.
the Judiciary is the branch of government that is empowered to strike (or invalidate) an existing law. Congress cannot do that.
It can and does.
Repealing a law, even for constitutional reasons, is not the same as judicially invalidating it.
Of course, only the judicial branch can "judicially" do ANYTHING. :-) I don't think that is an interesting way to phrase it.
I think we can agree that repealing a law has the same effect as striking it (except for the establishment of legal precedent), but they are not the same thing.
No, not exactly the same thing in every way, but both branches can determine a law to be unconstitutional, and take action to nullify that law. That's the point. You said only the court can do that. And that's not true.
The President may, at least in some cases, perhaps at will, refuse to execute a law, but he cannot repeal or invalidate it.
True enough, but his action (or inaction) can have the effect of nullifying it.
And the court's legal power to invalidate a law is not set forth explicitly anywhere in the Constitution - it arises from the jurisprudence following Marbury v. Madison establishing the Supreme Court as the final arbiter of the constitutionality of laws.
I disagree with that too. The Constitution seems pretty clear to me on this matter: "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." That seems to me to necessarily include the power to invalidate unconstitutional laws, if not in fact, than in effect: just as the President may effectively nullify a law by not executing it, the Court is allowed to, by the text of the Constitution, to forbid the execution of a law that conflicts with the Constitution: otherwise their enumerated power to adjudicate cases in law arising under the Constitution and the laws of the United States has no real meaning.
Posted by: pudge on October 6, 2007 11:28 PM