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06/09/2015

The Judicial Supremacy/Judicial Equality Debate Continues
Michael Ramsey

Ed Whelan responds to Randy Barnett here and here, at NRO Bench Memos.

Evan Bernick responds to Ed Whelan at Huffington Post: Judicial Equality and Its Critics: Dispelling the Myth of Majoritarianism.

I'm hesitant to prolong this discussion, but here's one further thought.  Barnett and Bernick seem to see the debate as mostly involving the powers of the Court versus Congress.  But I see it also (and perhaps even more so) about the Court versus the President.  At least the strong form of Ed Whelan's position really amounts to executive supremacy.  Consider:

1. The President seizes your property.  You sue to get it back.  The Court agrees that the President acted unconstitutionally and orders the property restored.  The President says that the Court got it wrong.  You don't get your property back.

2.  Congress passes a law saying the President must restore your property.  The President says the law is unconstitutional and he won't enforce it.  You sue under the statute.  The Court agrees that the President violated the statute and the statute is not unconstitutional.  The President says that the Court got it wrong.  You don't get your property back.

3.  You speak out against the President's abuses.  The President puts you in administrative detention.  You bring a petition for a writ of habeas corpus on the ground that the detention is not authorized by law.  The Court grants the writ. The President says that the Court got it wrong.  You stay in jail.

4.  Congress directs that the President end your administrative detention.  The President says the statute is unconstitutional.  You sue for your release.  The Court agrees that the statute is not unconstitutional.  The President says that the Court got it wrong.  You stay in jail.

5.  You sue a state official for acting unconstitutionally.  The Court agrees with you and orders relief.  The state official declines to comply.  You ask the federal government to step in.  The President says the Court got it wrong.  You don't get what you want.

6.  At your request, Congress directs the state official to stop acting unconstitutionally.  The state official declines to comply.  The President says Congress' statute is unconstitutional.  The Court says it is not.  The President says the Court got it wrong.  You don't get what you want.

The President, who controls enforcement, gets the last word.

Of course there are caveats.  Congress can impeach the President and remove him from office -- if it can muster two-thirds of the Senate to convict.  So it is really the President plus two thirds of the Senate who are supreme.

And, it will be said, Presidents won't take these extreme actions because of the public outcry they would produce.  That is likely true, at least most of the time, as things now stand.  But that is because most people don't believe the President has authority to refuse to obey a court decision, even an incorrect one.  If that changes, so will the cost to the President of refusing to comply.

In sum, I think it extraordinarily unlikely that the framers created a system of executive supremacy (even a system of executive supremacy qualified by impeachment/removal and by the possibility of popular opposition).