The Propriety of Presidental Non-enforcement

[Seth]

What if the duly-enacted law isn't so duly?

Wouldn't that be a matter for the Court to decide, not the President?

Well, judicial review isn't a Constitutionally sanctioned power either, and if it comes down do having a single elected official or a body of appointed ones decide law I'll take the former. Granted, ideally laws should be made in the Congress, and made with an eye towards the constitution, and towards common sense, but Congress has been passing mind numbingly stupid laws for more than 200 years, and if anything seems to be accelerating the pace recently, so some system needs to be able to correct mistakes. But surrendering so much power into the hands of so few with no democratic means of pressure or sanction doesn't strike me as the best method.

The system of checks and balances is incredibly complex and well-reasoned, and when it's used, it works as well as any system of lawmaking ever devised. Nothing is perfect, but in general things go pretty well. The problem with "mind-numbingly stupid laws" is not that Congress passes them, it's that Congress has unwisely (as a part of the Progressive plan to suborn the Constitution) abdicated it's lawmaking power to the Administrative State by granting broad regulatory authority that has the power of law to unelected bureaucrats. Remember, what one Congress passes another Congress can undo, but it becomes quite difficult when Congress creates agencies and then gives them near-plenary rulemaking authority, because Congress simply has no time to review, much less debate or vote to change the thousands and thousands of regulations that are what the Progressives intended to bury us under.

Congress works well when it does it's duty to actually make laws and does NOT grant administrative authority, because Congress can only pass so many laws a session, and it is that constraint on lawmaking that was intended to keep us free.

But with the abdication of rulemaking authority to bureaucrats, who breed like flies in shit on an exponential scale, the Administrative State quickly takes over and makes Congress all but irrelevant.

Anyway, about DOMA, the important distinction is enforcement verses defense. Not enforcing the law would violate the Constitution, but to my knowledge a vigorous defense of congressional acts is not required (why would it be without the concept of judicial review?) And as to the AG, I don't think Holder is legally required to carry out the President's desires, but that he serves at the pleasure of the President, so if he won't do it, someone else will.

And therein lies the problem. As I said, the AG is NOT the President's personal attorney, he's an employee of the people who has a duty to defend our laws, not the President's laws. In the same way that the CEO of a corporation would be violating his fiduciary duty to the shareholders if he were to prohibit the company attorney from defending a lawsuit brought against the corporation, and would be legally liable for damages if he failed to execute his fiduciary duty, the President has a legal, sworn duty to preserve, protect and defend the Constitution and to see that the laws are enforced. One of the most fundamental provisions of the Constitution is the Separation of Powers Doctrine that limits the President's legislative acts to the veto and the pardon, and denies the President ANY judicial authority except over the military.

Holder has a duty under the code of ethics for lawyers to represent THE PEOPLE, and our elected representatives, which includes Congress, and to vigorously defend our laws in all instances.

If Holder is being prohibited from doing so by executive command, that is an unlawful command and holder should ignore it, or he should resign in protest of the illegal order...if he is not as much a corrupt Progressive as Obama.

At some point, if every appointed AG stuck to his guns and performed his duty to the People as he is required to do, the Congress would be compelled to act to impeach the President for failing to abide by HIS duty to honor the Separation of Powers Doctrine, and for malfeasance in office.

[Elegant Mule]

The system of checks and balances is incredibly complex and well-reasoned, and when it's used, it works as well as any system of lawmaking ever devised. Nothing is perfect, but in general things go pretty well. The problem with "mind-numbingly stupid laws" is not that Congress passes them, it's that Congress has unwisely (as a part of the Progressive plan to suborn the Constitution) abdicated it's lawmaking power to the Administrative State by granting broad regulatory authority that has the power of law to unelected bureaucrats. Remember, what one Congress passes another Congress can undo, but it becomes quite difficult when Congress creates agencies and then gives them near-plenary rulemaking authority, because Congress simply has no time to review, much less debate or vote to change the thousands and thousands of regulations that are what the Progressives intended to bury us under.

Congress works well when it does it's duty to actually make laws and does NOT grant administrative authority, because Congress can only pass so many laws a session, and it is that constraint on lawmaking that was intended to keep us free.

But with the abdication of rulemaking authority to bureaucrats, who breed like flies in shit on an exponential scale, the Administrative State quickly takes over and makes Congress all but irrelevant.

Aren't you supposed to wait until the recession caused by deregulation is over before insisting that all the country's ills can be blamed on regulation, and call for freer markets? I know libertarian ideology has never been much for empirical results, but just as a matter of messaging, let us pick up the pieces first.

As I said, the AG is NOT the President's personal attorney, he's an employee of the people who has a duty to defend our laws, not the President's laws. In the same way that the CEO of a corporation would be violating his fiduciary duty to the shareholders if he were to prohibit the company attorney from defending a lawsuit brought against the corporation, and would be legally liable for damages if he failed to execute his fiduciary duty, the President has a legal, sworn duty to preserve, protect and defend the Constitution and to see that the laws are enforced. One of the most fundamental provisions of the Constitution is the Separation of Powers Doctrine that limits the President's legislative acts to the veto and the pardon, and denies the President ANY judicial authority except over the military.

Holder has a duty under the code of ethics for lawyers to represent THE PEOPLE, and our elected representatives, which includes Congress, and to vigorously defend our laws in all instances.

Granted, Holder isn't Obama's lawyer, but he isn't a publicly elected official either. He serves the administration, and in so doing serves the President. He is far closer to being Obama's lawyer than, say, a member of the Federal Judiciary. And to your CEO example, CEOs stop lawyers from mounting legal defenses all the time, by approving settlements. Any CEO who would refused to ever settle cases regardless of the facts or potential outcomes would be violating his fiduciary responsibility.

If Holder is being prohibited from doing so by executive command, that is an unlawful command and holder should ignore it, or he should resign in protest of the illegal order...if he is not as much a corrupt Progressive as Obama.

At some point, if every appointed AG stuck to his guns and performed his duty to the People as he is required to do, the Congress would be compelled to act to impeach the President for failing to abide by HIS duty to honor the Separation of Powers Doctrine, and for malfeasance in office.

Our last President was a war criminal, who also misused the federal judiciary, and was not impeached or even threatened. But who am I do deny right wing fantasies. Hell, Issa's probably working on this as we speak.

[Seth]

The system of checks and balances is incredibly complex and well-reasoned, and when it's used, it works as well as any system of lawmaking ever devised. Nothing is perfect, but in general things go pretty well. The problem with "mind-numbingly stupid laws" is not that Congress passes them, it's that Congress has unwisely (as a part of the Progressive plan to suborn the Constitution) abdicated it's lawmaking power to the Administrative State by granting broad regulatory authority that has the power of law to unelected bureaucrats. Remember, what one Congress passes another Congress can undo, but it becomes quite difficult when Congress creates agencies and then gives them near-plenary rulemaking authority, because Congress simply has no time to review, much less debate or vote to change the thousands and thousands of regulations that are what the Progressives intended to bury us under.

Congress works well when it does it's duty to actually make laws and does NOT grant administrative authority, because Congress can only pass so many laws a session, and it is that constraint on lawmaking that was intended to keep us free.

But with the abdication of rulemaking authority to bureaucrats, who breed like flies in shit on an exponential scale, the Administrative State quickly takes over and makes Congress all but irrelevant.

Aren't you supposed to wait until the recession caused by deregulation is over before insisting that all the country's ills can be blamed on regulation, and call for freer markets? I know libertarian ideology has never been much for empirical results, but just as a matter of messaging, let us pick up the pieces first.

The recession was not caused by deregulation, it was caused by greed, cupidity, corruption and redistributionist regulations. All of the laws necessary to prevent the housing bubble and the meltdown in the mortgage market existed long before it happened, but were ignored by federal regulators who were working at the behest of Barney Frank, Chris Dodd and their ilk in a plan to increase home ownership among the working poor and middle class.

The proper government solution to the meltdown of AIG was to let it fail, and allow all the investors in toxic mortgages to lose their shirts, which is how the free market resolves such issues. Instead, Bush and Obama BOTH made it worse by rewarding corruption and incompetence at the expense of the public debt.

As I said, the AG is NOT the President's personal attorney, he's an employee of the people who has a duty to defend our laws, not the President's laws. In the same way that the CEO of a corporation would be violating his fiduciary duty to the shareholders if he were to prohibit the company attorney from defending a lawsuit brought against the corporation, and would be legally liable for damages if he failed to execute his fiduciary duty, the President has a legal, sworn duty to preserve, protect and defend the Constitution and to see that the laws are enforced. One of the most fundamental provisions of the Constitution is the Separation of Powers Doctrine that limits the President's legislative acts to the veto and the pardon, and denies the President ANY judicial authority except over the military.

Holder has a duty under the code of ethics for lawyers to represent THE PEOPLE, and our elected representatives, which includes Congress, and to vigorously defend our laws in all instances.

Granted, Holder isn't Obama's lawyer, but he isn't a publicly elected official either. He serves the administration, and in so doing serves the President. He is far closer to being Obama's lawyer than, say, a member of the Federal Judiciary. And to your CEO example, CEOs stop lawyers from mounting legal defenses all the time, by approving settlements. Any CEO who would refused to ever settle cases regardless of the facts or potential outcomes would be violating his fiduciary responsibility.

And CEOs are responsible for doing so. Don't stretch the analogy beyond it's bounds. The point is that the AG works for us, not the President.

If Holder is being prohibited from doing so by executive command, that is an unlawful command and holder should ignore it, or he should resign in protest of the illegal order...if he is not as much a corrupt Progressive as Obama.

At some point, if every appointed AG stuck to his guns and performed his duty to the People as he is required to do, the Congress would be compelled to act to impeach the President for failing to abide by HIS duty to honor the Separation of Powers Doctrine, and for malfeasance in office.

Our last President was a war criminal,

So you say. Opinions differ on that.

who also misused the federal judiciary,

How so?

and was not impeached or even threatened.

Democrats and Progressives called for it often enough.

[Elegant Mule]

Our last President was a war criminal,

So you say. Opinions differ on that.

who also misused the federal judiciary,

How so?

and was not impeached or even threatened.

Democrats and Progressives called for it often enough.

Bush admits approving so-called 'enhanced interrogation techniques.' No one denies we water boarded detainees, and no one argued that water boarding wasn't torture when we executed Japanese soldiers for it.

I meant to refer to the Justice Department, not the judiciary, sorry. (It's hard to keep Bush sandals straight sometimes!)

And yes, someone will always call for impeachment of the other parties President. Someone will call for his execution. That doesn't make it a likely or justifiable outcome. Especially when the President's crime is nothing but a minor legal decision.

[Seth]

Our last President was a war criminal,

So you say. Opinions differ on that.

who also misused the federal judiciary,

How so?

and was not impeached or even threatened.

Democrats and Progressives called for it often enough.

Bush admits approving so-called 'enhanced interrogation techniques.'

And yet he's never been convicted of a "war crime." Therefore, he is innocent until proven guilty in a court of law beyond a reasonable doubt.

No one denies we water boarded detainees, and no one argued that water boarding wasn't torture when we executed Japanese soldiers for it.

I'm not aware of any cases where we executed Japanese soldiers merely for waterboarding someone. I believe there was a good deal more going on than that, which is why they were executed...such as the wanton execution of prisoners.

I meant to refer to the Justice Department, not the judiciary, sorry. (It's hard to keep Bush sandals straight sometimes!)

How so? The investigation into the firings of the US Attorneys was concluded rather recently, as I recall, and the final judgment was that there was no criminal wrongdoing. US Attorneys serve at the pleasure of the President, and the ones fired were fired for not adhering to administrative policy. They were, as I recall, among other things, refusing to prosecute particular cases despite being ordered to do so by their supervisors and the President.

And yes, someone will always call for impeachment of the other parties President. Someone will call for his execution. That doesn't make it a likely or justifiable outcome. Especially when the President's crime is nothing but a minor legal decision.

Well, the whole point is that the President doesn't get to make legal decisions that violate his oath of office and the constitutional requirement that he "faithfully execute" the laws of this nation. If he is so morally conflicted about the laws of this nation, and this particular law has been in effect since long before he was President, then he should resign his office rather than violate his oath and the document he swore to uphold.

Of course, if Obama were a moral and ethical person he never would have run for the office in the first place, since he's a Marxist Progressive whose entire political and social belief system is utterly at odds with the Constitution and the Founder's intent for limited government.

So, we know he's a lying sack of shit from the get-go, which leaves impeachment as one of the options. The other being unelection.

[JimC]

Seth wrote:

Of course, if Obama were a moral and ethical person he never would have run for the office in the first place, since he's a Marxist Progressive whose entire political and social belief system is utterly at odds with the Constitution and the Founder's intent for limited government.

You have such an absurdly wide definition of what a Marxist is, that your utterances descend into hyperbole everytime...

You may well have valid criticism of his policies, you may well dislike those on the left of American politics, but don't confuse Obama with a true Marxist.

Sandinista wouldn't spit on him if he was on fire...

[Rob]

He has implicitly stated he will continue to enforce to the degree required by his office. He simply is no longer defending it in court. The enforcement remains. Even if we don't regard this distinction it is by no means a precedent as presidents in the past(even your shining boys in red) have instructed various agencies to not enforce laws they do not deem constitutional. Hell even a Republican appointed judge made a point of saying that the President should not enforce a law he deems unconstitutional.

Politics as always amuse me.

[Elegant Mule]

The investigation into the firings of the US Attorneys was concluded rather recently, as I recall, and the final judgment was that there was no criminal wrongdoing. US Attorneys serve at the pleasure of the President, and the ones fired were fired for not adhering to administrative policy. They were, as I recall, among other things, refusing to prosecute particular cases despite being ordered to do so by their supervisors and the President.

Holder has a duty under the code of ethics for lawyers to represent THE PEOPLE, and our elected representatives, which includes Congress, and to vigorously defend our laws in all instances.

If Holder is being prohibited from doing so by executive command, that is an unlawful command and holder should ignore it, or he should resign in protest of the illegal order...if he is not as much a corrupt Progressive as Obama.

At some point, if every appointed AG stuck to his guns and performed his duty to the People as he is required to do, the Congress would be compelled to act to impeach the President for failing to abide by HIS duty to honor the Separation of Powers Doctrine, and for malfeasance in office.

So, if I have this straight, if you work in the Justice Department for a Republican you can be fired for not "adhering to administrative policy," but if you work in the Justice Department for a Democrat you should stick to your guns and the President should be impeached?

If you work for a Republican you serve and his pleasure, if you work for a Democrat you work for the people?

(For some reason I don't think further arguments will be fruitful...)

[Coito ergo sum]

That is a very good question and one I had not thought about before, Seth. Many people may praise Obama for his action regarding DOMA because they regard the law as unjust. But does that give various government officials the right to ignore such laws? It could truly be a double-edged sword.

It sets a bad precedent for the next GOP president to abuse.

Why is it not "abuse" now?

[Coito ergo sum]

What if the duly-enacted law isn't so duly?

Wouldn't that be a matter for the Court to decide, not the President?

But, is it a matter for ONLY the SCOTUS to decide, and not the President?

This is an interesting area for discussion, and not one that admits of an easy answer.

What provision of the Constitution gives the Court its power to decide that a law is not constitutional? Answer: there isn't one. The Court asserted that power in the case of Marbury v Madison in 1803, and held that it was an "implied" power of the Court as part of its judicial function.

What gave the Court the power to declare for itself that implied power? Nothing except an argument extending to itself the power to decide if a law does or does not violate the Constitution.

It may just as easily have been logically implied that the Congress decides what is Constitutional, and the court must interpret and apply the law as enacted by Congress. Also, if the Court can imply for itself that power, then can't the Congress and the President - all coequal branches of government - also imply for themselves the right to declare laws or actions of the others unconstitutional?

So - number 1 argument in defense of the President on this issue is that if the Court can imply for itself the power to declare laws unconstitutional and refuse to enforce them, then the President - who is of equal dignity with the Court - should be able to do the same, since there is nothing in the Constitution that addresses this issue either way.

Second - faithful execution of duly enacted laws does not mean that all laws receive equal vigilance from the Justice Department. There has to be decisions made as to which laws are most important, and which are more worthwhile fighting over, just like a prosecutor doesn't prosecute every case, but must employ prosecutorial discretion because of limited resources. It seems to me that the President can simply state that in my opinion the particular law is not Constitutional and therefore efforts in defending it will be a waste - therefore, we will put our Justice Department lawyers to better use on laws that are not as questionable. That, it seems, is essentially what has happened here.

So, I think the reactions to Obama's statement that the law is unconstitutional may be overreactions.

There is, of course, ample room here for a Constitutional Crisis - we could have the Court say "this law is Constitutional" even if the Justice department doesn't brief and argue the issue. In which case you have one branch of government declaring it constitutional and the other the opposite. I think in that instance, the President would likely bow to the two other branches of government and resume enforcement. However, that's just a guess. If the President refused even then, then we would have a situation like the "Trail of Tears" where Jackson received an opinion of the Supreme Court and famously announced "The Court has made its opinion, now let them enforce it."

[Coito ergo sum]

Well, the whole point is that the President doesn't get to make legal decisions that violate his oath of office and the constitutional requirement that he "faithfully execute" the laws of this nation.

He also took an oath to preserve, protect and defend the Constitution of the United States. Arguably, it is not preservation or protection or defense of the Constitution to enforce unconstitutional laws.

If he is so morally conflicted about the laws of this nation, and this particular law has been in effect since long before he was President, then he should resign his office rather than violate his oath and the document he swore to uphold.

I'm not getting the violation of the oath here. "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." I think he can make a persuasive argument that in order to faithfully execute his office, he has to opt to abide by the Constitution, rather than an unconstitutional law.

[Seth]

Seth wrote:

Of course, if Obama were a moral and ethical person he never would have run for the office in the first place, since he's a Marxist Progressive whose entire political and social belief system is utterly at odds with the Constitution and the Founder's intent for limited government.

You have such an absurdly wide definition of what a Marxist is, that your utterances descend into hyperbole everytime...

You may well have valid criticism of his policies, you may well dislike those on the left of American politics, but don't confuse Obama with a true Marxist.

Sandinista wouldn't spit on him if he was on fire...

That doesn't mean he's not a Marxist. He was raised by Marxists, taught by Marxists, all his political influences were Marxist, he admitted to seeking out Marxists, he's surrounded himself with Marxists in his administration. I judge the man by the company he keeps and what he does, and everything he has done has radical fundamental transformation of the United States into a Marxist tyranny as its ultimate goal, however circumspect and obtuse he may be in achieving that goal.

That he's a duplicitous, lying sack of shit who has successfully suppressed his radical pose for the achievement of the radical ends, like his good friend and adviser Van Jones recommended, does not mean he's not a Marxist. He's just very good at being a crypto-Marxist, which are the most dangerous variety.

[Seth]

The investigation into the firings of the US Attorneys was concluded rather recently, as I recall, and the final judgment was that there was no criminal wrongdoing. US Attorneys serve at the pleasure of the President, and the ones fired were fired for not adhering to administrative policy. They were, as I recall, among other things, refusing to prosecute particular cases despite being ordered to do so by their supervisors and the President.

Holder has a duty under the code of ethics for lawyers to represent THE PEOPLE, and our elected representatives, which includes Congress, and to vigorously defend our laws in all instances.

If Holder is being prohibited from doing so by executive command, that is an unlawful command and holder should ignore it, or he should resign in protest of the illegal order...if he is not as much a corrupt Progressive as Obama.

At some point, if every appointed AG stuck to his guns and performed his duty to the People as he is required to do, the Congress would be compelled to act to impeach the President for failing to abide by HIS duty to honor the Separation of Powers Doctrine, and for malfeasance in office.

So, if I have this straight, if you work in the Justice Department for a Republican you can be fired for not "adhering to administrative policy," but if you work in the Justice Department for a Democrat you should stick to your guns and the President should be impeached?

If you work for a Republican you serve and his pleasure, if you work for a Democrat you work for the people?

(For some reason I don't think further arguments will be fruitful...)

No, you misconstrue. If you work for a President who tells you to enforce a particular law, and you refuse to enforce that law, you get fired, because you have both a duty to enforce the law and a duty to obey the just and lawful orders of the President.

If you work for a President who tells you NOT to enforce a law, and you REFUSE to enforce that law (or defend it) anyway, in accordance with your duty to the People, then you SHOULD be fired, and the President should be impeached, because his telling you not to enforce the law is an unlawful and unconstitutional order which you are obliged to ignore. If you enforce the law and the President fires you, (as AG) that would be a matter for Congress to consider for impeachment.

Under no circumstance may an attorney, any attorney, who works for the People of the United States and in their employ, refuse to enforce or defend a validly-enacted law of Congress, even on the direct orders of the President of the United States. To do so is a violation of the canons of professional ethics for lawyers, nothwithstanding any political considerations, and any such abdication of the duty of obedience a federal government lawyer owes to the People is just cause for disbarment.

The US Attorneys under Bush had a duty to follow his lawful orders to enforce the law. The AG has a duty to DISREGARD Obama's order not to enforce or defend the DOMA, even if it gets him turned out of office by the President.

[Coito ergo sum]

No, you misconstrue. If you work for a President who tells you to enforce a particular law, and you refuse to enforce that law, you get fired, because you have both a duty to enforce the law and a duty to obey the just and lawful orders of the President.

If you work for a President who tells you NOT to enforce a law, and you REFUSE to enforce that law (or defend it) anyway, in accordance with your duty to the People, then you SHOULD be fired, and the President should be impeached, because his telling you not to enforce the law is an unlawful and unconstitutional order which you are obliged to ignore. If you enforce the law and the President fires you, (as AG) that would be a matter for Congress to consider for impeachment.

I think this misses the reality of the situation. If you are a lawyer in the Justice Department, and your boss tells you to enforce law X instead of law Y, then that's your job. You don't have an independent obligation to enforce every law you happen to see violated. There are authorities and hierarchies within the Justice Department and other government attorneys' offices which make determinations about which cases to pursue, and which to cut loose.

Under no circumstance may an attorney, any attorney, who works for the People of the United States and in their employ, refuse to enforce or defend a validly-enacted law of Congress, even on the direct orders of the President of the United States. To do so is a violation of the canons of professional ethics for lawyers, nothwithstanding any political considerations, and any such abdication of the duty of obedience a federal government lawyer owes to the People is just cause for disbarment.

You overstate this considerably. Moreover, the President made a determination that the DOMA law is not "validly enacted." As I noted above, if he seeks to enforce an unconstitutional statute, knowingly, then doesn't he violate his oath of office?

[Seth]

What if the duly-enacted law isn't so duly?

Wouldn't that be a matter for the Court to decide, not the President?

But, is it a matter for ONLY the SCOTUS to decide, and not the President?

This is an interesting area for discussion, and not one that admits of an easy answer.

What provision of the Constitution gives the Court its power to decide that a law is not constitutional? Answer: there isn't one. The Court asserted that power in the case of Marbury v Madison in 1803, and held that it was an "implied" power of the Court as part of its judicial function.

What gave the Court the power to declare for itself that implied power? Nothing except an argument extending to itself the power to decide if a law does or does not violate the Constitution.

It may just as easily have been logically implied that the Congress decides what is Constitutional, and the court must interpret and apply the law as enacted by Congress. Also, if the Court can imply for itself that power, then can't the Congress and the President - all coequal branches of government - also imply for themselves the right to declare laws or actions of the others unconstitutional?

So - number 1 argument in defense of the President on this issue is that if the Court can imply for itself the power to declare laws unconstitutional and refuse to enforce them, then the President - who is of equal dignity with the Court - should be able to do the same, since there is nothing in the Constitution that addresses this issue either way.

Second - faithful execution of duly enacted laws does not mean that all laws receive equal vigilance from the Justice Department. There has to be decisions made as to which laws are most important, and which are more worthwhile fighting over, just like a prosecutor doesn't prosecute every case, but must employ prosecutorial discretion because of limited resources. It seems to me that the President can simply state that in my opinion the particular law is not Constitutional and therefore efforts in defending it will be a waste - therefore, we will put our Justice Department lawyers to better use on laws that are not as questionable. That, it seems, is essentially what has happened here.

So, I think the reactions to Obama's statement that the law is unconstitutional may be overreactions.

There is, of course, ample room here for a Constitutional Crisis - we could have the Court say "this law is Constitutional" even if the Justice department doesn't brief and argue the issue. In which case you have one branch of government declaring it constitutional and the other the opposite. I think in that instance, the President would likely bow to the two other branches of government and resume enforcement. However, that's just a guess. If the President refused even then, then we would have a situation like the "Trail of Tears" where Jackson received an opinion of the Supreme Court and famously announced "The Court has made its opinion, now let them enforce it."

You bring up a salient point about Marbury v. Madison, at least in the philosophical sense. It is problematic because it declares that of necessity and by historic construction, the Court exists to settle cases and controversies, and one of the most fundamental controversies is whether an Act of Congress complies with the Constitution. But what people don't understand about Marbury v. Madison is that nowhere in the ruling does the Court assume plenary and supreme power to determine what is constitutional and what is not. It can only pass judgment on cases brought before it, and it cannot act sua sponte to declare a law unconstitutional. Furthermore, the Court acknowledges, and has reiterated several times, including quite recently in the gun control cases, that it is subservient to the will of the people properly expressed.

The ultimate arbiter of constitutionality is the People, and, in order of supremacy, the chain is the People, their elected representatives in Congress, and the Supreme Court. But NOWHERE in this chain of supremacy does the President reside. As I said, his ONLY legislative authority lies in the veto and the pardon. Once he has exercised that constitutional authority, his role in determining the constitutionality of a law is at an end, and he is obliged to defer to superior legislative and judicial authority.

This is necessarily so because to grant constitutional authority to the President to effectively choose which laws will and will not be enforced is to place him above the Court, the Congress and the People, and that is the very definition of a tyrant.

The key to the Separation of Powers Doctrine is not that the three branches are co-equal in authority or dignity, it is that each has a carefully defined function, and may not go outside those constitutional boundaries. The President has absolutely NO lawmaking or judicial powers whatsoever. Because all power flows from the People, they are the ultimate judge of what the Constitution contains and means, and it is their plenary right to change that document as they see fit, to best serve their freedom and happiness. But even this "fourth branch" of government is constrained by its own rules, which means that in order to overrule the Congress and the Court, the People must amend the Constitution itself. Short of that exercise of plenary authority, the Congress makes law, and the Court determines how it fits within the existing constitutional boundaries. The President's role is limited to, again, the veto and the pardon.

For the President to enforce a duly-enacted law, even if he believes it to be unconstitutional, is his duty and obligation. When it conflicts with his obligation to uphold the Constitution, his course of action is to place the law before the Court for review, or even before the People, which he is certainly empowered to do, for judgment. If the result of the Court's examination displeases the People, they may amend the Constitution to overrule the Court and, for that matter, the Congress, and always the President.

Jackson's words were illuminating, but not determinative, since that particular Court ruling was overruled by Congress and the Cherokee were removed in accord with constitutional authority. The real test came with Andrew Johnson and the Tenure in Office Act, where Johnson was impeached, but escaped removal by a single vote in the Congress. And this impeachment was about Johnson's removal of his Secretary of War during the Reconstruction when radicals in Congress wanted the Congressionally-approved person to remain in office.

The current situation is much worse, because it's an arrogation of illicit authority by the President in declaring a law to be null and void, which is outside his powers. For that, he should be impeached and removed from office.