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What Would Happen if Biden Ignored Supreme Court Ruling
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Rick
Jul 24, 2023, 3:10:26 PM7/24/23
to
Recently a pair of law professors from Harvard and San Francisco State made
a recommendation to the president to essentially ignore Supreme Court
rulings he disagreed with. In their words:
"We urge President Biden to restrain MAGA justices immediately by announcing
that if and when they issue rulings that are based on gravely mistaken
interpretations of the Constitution that undermine our most fundamental
commitments, the Administration will be guided by its own constitutional
interpretations."
I started thinking about this and realize that the Court has no real
enforcement power, other than the good will of the other branches of
government. Let's take an extreme and probably unlikely example and say,
for example, Congress passes a law that states that any public criticism of
the President will be illegal and a federal offense, and subject the
perpretrator to imprisonment. Obviously such a law would probably not be
passed today, but let's say it gets passed and is immediately challenged and
taken to the Supreme Court and the Court rules 9-0 the law is
unconstitutional. If the president and his Department of Justice decide to
ignore the ruling and continue enforcing the law, what power does the Court
have to enforce its ruling?
In the example I give, Congress actually passed the offending law, but
suppose it's just an executive action by the president that is ruled
unconstitutional? Since the president controls the department of Justice,
he effectively controls the enforcement arm of the government, so as a
practical matter, what would happen if the president and Justice just decide
to ignore the Court? Unless Congress can get the votes together to impeach
and remove the president, what would happen?
a recommendation to the president to essentially ignore Supreme Court
rulings he disagreed with. In their words:
"We urge President Biden to restrain MAGA justices immediately by announcing
that if and when they issue rulings that are based on gravely mistaken
interpretations of the Constitution that undermine our most fundamental
commitments, the Administration will be guided by its own constitutional
interpretations."
I started thinking about this and realize that the Court has no real
enforcement power, other than the good will of the other branches of
government. Let's take an extreme and probably unlikely example and say,
for example, Congress passes a law that states that any public criticism of
the President will be illegal and a federal offense, and subject the
perpretrator to imprisonment. Obviously such a law would probably not be
passed today, but let's say it gets passed and is immediately challenged and
taken to the Supreme Court and the Court rules 9-0 the law is
unconstitutional. If the president and his Department of Justice decide to
ignore the ruling and continue enforcing the law, what power does the Court
have to enforce its ruling?
In the example I give, Congress actually passed the offending law, but
suppose it's just an executive action by the president that is ruled
unconstitutional? Since the president controls the department of Justice,
he effectively controls the enforcement arm of the government, so as a
practical matter, what would happen if the president and Justice just decide
to ignore the Court? Unless Congress can get the votes together to impeach
and remove the president, what would happen?
Roy
Jul 24, 2023, 8:02:11 PM7/24/23
to
The military swears an oath to support and defend the Constitution so
that buts a lot more weapons in their hands rather than the Justice
department.
The result would probably be a civil war.
Rick
Jul 25, 2023, 12:33:36 AM7/25/23
to
"Roy" wrote in message news:u9n3a2$qrr3$1...@dont-email.me...
But remember the military reports to the Commander-in-Chief, and
Chain-of-Command is also very important to military leaders. And for that
matter, the Secretary of Defense and Chairman of the Joint Chiefs are also
basically appointed by the president, though you do need advise and consent
of the Senate. Point is, we would have to hope that the officers in the
highest ranks of the military have enough integrity to stand up to possibly
corrupt leaders and overcome what could be a flawed chain-of-command.
--
Chain-of-Command is also very important to military leaders. And for that
matter, the Secretary of Defense and Chairman of the Joint Chiefs are also
basically appointed by the president, though you do need advise and consent
of the Senate. Point is, we would have to hope that the officers in the
highest ranks of the military have enough integrity to stand up to possibly
corrupt leaders and overcome what could be a flawed chain-of-command.
--
Roy
Jul 25, 2023, 12:59:02 AM7/25/23
to
illegal order. The Posse Comitatus Act limits the powers of the federal
government in the use of federal military personnel to enforce domestic
policies within the United States I would suspect some resistance by the
military
Also there are about 450,000 Nation Guard troops under the command of
the state governments who could resist federal orders.
Barry Gold
Jul 25, 2023, 1:17:35 AM7/25/23
to
On 7/24/2023 12:10 PM, Rick wrote:
Cordelia Vorkosigan watches some political maneuvering and finds it odd.
The phrase "pretending a government into existence" comes to her mind.
And then she wonders whether the place she came from (a democracy) also
does that.
What we have in the US is something very like that. Our government works
as long as we believe in it. The Congress makes laws, the Executive
carries out those laws, and the courts rule on both the laws (meaning
and validity) and the facts.
As "Rick" noted, the Federal Courts have not direct enforcement powers.
They can make rulings, but it if they need somebody arrested, that is
done by the Federal Marshall's Service, part of the Department of
Justice. They can sentence someone to prison, but the prisons are run by
the Federal Bureau of Prisons, also part of the DoJ.
In the first part of the 21st century, an Alabama judge erected a
monument to the Ten Commandments in the courthouse. The Federal Courts
ordered it removed. The judge refused. The Alabama Commission on
Judicial Performance ordered him removed from office. They understood
something that he did not: if you don't pretend that orders from the
Federal Courts mean something, the whole system will fall apart.
Rick's hypothetical brings that point into sharp relief. The President
can ignore a court ruling, but the cost will be enormous because it will
call attention to the weak points in our system.
If the President ignores court orders that he doesn't like, then what
good are the courts? If he makes up laws (not just Executive Orders,
which are authorized by various laws passed by Congress), then what is
Congress for?
When the Supreme Court ordered President Nixon to give up the tapes of
conversations in the Oval Office, he complied(*). Even President Trump,
who had much less respect for the courts, eventually complied with court
orders to turn over papers etc. to Congressional committees.
Consider the following (from a CNBC report on the January 6 Select
Committee):
Trump planned to install a new acting attorney general, Jeffrey Clark,
to help spread his false claim that President Joe Biden’s electoral
victory was rigged through widespread fraud
Three ex-DOJ officials — former acting Attorney General Jeffrey Rosen,
former acting Deputy Attorney General Richard Donoghue and former
assistant Attorney General for the Office of Legal Counsel Steven Engel
— said they threatened to resign over the scheme and said hundreds of
others would do the same.
And I suspect something like that would happen if the President decided
to ignore a Supreme Court order and enforce a law or executive order
that the Court had ruled illegal.
(*) I probably would have started a policy of reusing those tapes after
a certain time period, as soon as Congress started investigating
Watergate. "Oh, those? They were over a year old and we didn't think
they were important."
--
I do so have a memory. It's backed up on DVD... somewhere...
Rick
Jul 25, 2023, 9:37:03 PM7/25/23
to
"Barry Gold" wrote in message news:u9nl1g$npa7$1...@dont-email.me...
At that point, Nixon had lost so much support in Congress and the public,
that he really had no choice. Ironically, he brought a lot of this on by
his initial ill-fated decision to fire the original special prosecutor,
Archibald Cox. Nixon ordered his highly respected Attorney General Elliot
Richardson to fire Cox and Richardson famously refused and resigned. Then
the Deputy AG William Ruckelshaus, who was now Acting AG, also refused to
fire Cox and was himself fired. It was finally left to the Solicitor
General, Robert Bork (who was later turned down for the Supreme Court,
largely due to his hard-line views on abortion) to fire Cox. Bork himself
also reportedly wanted to resign but was persuaded by Richardson to stay in
office to assure continuity of government.
When the dust finally settled on the Cox firing, Nixon had lost so much
support that by the time he appointed a new AG (the respected Republican
retired Senator Bill Saxbe), he had no choice but to let stand Saxbe's
appointment of Leon Jaworski as the new Special Prosecutor. The irony was
that Jaworski turned out to be even tougher and more tenacious than the
academically inclined Cox, and was probably much more aggressive in pursuing
the tapes in the court system. In retrospect, Nixon would have been much
better off to turn the tapes over when Cox originally requested them.
--
that he really had no choice. Ironically, he brought a lot of this on by
his initial ill-fated decision to fire the original special prosecutor,
Archibald Cox. Nixon ordered his highly respected Attorney General Elliot
Richardson to fire Cox and Richardson famously refused and resigned. Then
the Deputy AG William Ruckelshaus, who was now Acting AG, also refused to
fire Cox and was himself fired. It was finally left to the Solicitor
General, Robert Bork (who was later turned down for the Supreme Court,
largely due to his hard-line views on abortion) to fire Cox. Bork himself
also reportedly wanted to resign but was persuaded by Richardson to stay in
office to assure continuity of government.
When the dust finally settled on the Cox firing, Nixon had lost so much
support that by the time he appointed a new AG (the respected Republican
retired Senator Bill Saxbe), he had no choice but to let stand Saxbe's
appointment of Leon Jaworski as the new Special Prosecutor. The irony was
that Jaworski turned out to be even tougher and more tenacious than the
academically inclined Cox, and was probably much more aggressive in pursuing
the tapes in the court system. In retrospect, Nixon would have been much
better off to turn the tapes over when Cox originally requested them.
--
Stuart O. Bronstein
Jul 26, 2023, 12:21:07 AM7/26/23
to
"Rick" <ri...@nospam.com> wrote:
> At that point, Nixon had lost so much support in Congress and the
> public, that he really had no choice. Ironically, he brought a
> lot of this on by his initial ill-fated decision to fire the
> original special prosecutor, Archibald Cox.
I remember that well. People were calling Nixon a Cox sacker.
> At that point, Nixon had lost so much support in Congress and the
> public, that he really had no choice. Ironically, he brought a
> lot of this on by his initial ill-fated decision to fire the
> original special prosecutor, Archibald Cox.
--
Stu
http://DownToEarthLawyer.com
--
This email has been checked for viruses by AVG antivirus software.
www.avg.com
RichD
Jul 27, 2023, 6:19:01 PM7/27/23
to
On July 24, Rick wrote:
>>> Recently a pair of law professors from Harvard and San Francisco State
>>> made a recommendation to the president to essentially ignore Supreme
>>> Court rulings he disagreed with. In their words:
>> >> "We urge President Biden to restrain MAGA justices immediately by
>>> announcing that if and when they issue rulings that are based on gravely
>>> mistaken interpretations of the Constitution that undermine our most
>>> fundamental commitments, the Administration will be guided by its own
>>> constitutional interpretations."
That was Washington's understanding - he would veto a law if
>>> Recently a pair of law professors from Harvard and San Francisco State
>>> made a recommendation to the president to essentially ignore Supreme
>>> Court rulings he disagreed with. In their words:
>> >> "We urge President Biden to restrain MAGA justices immediately by
>>> announcing that if and when they issue rulings that are based on gravely
>>> mistaken interpretations of the Constitution that undermine our most
>>> fundamental commitments, the Administration will be guided by its own
>>> constitutional interpretations."
he deemed it unconstitutional.
>>The professors are actually committing sedition.
abhor, they claim the court is illegitimate.
"illegitimate" needn't be enforced, yes/no? In fact, a
'patriot' would actively resist -
>> The military swears an oath to support and defend the Constitution so that
>> buts a lot more weapons in their hands rather than the Justice department.
>
> But remember the military reports to the Commander-in-Chief, and
> Chain-of-Command is also very important to military leaders.
> Chain-of-Command is also very important to military leaders.
> we would have to hope that the officers in the
> highest ranks of the military have enough integrity to stand up to possibly
> corrupt leaders and overcome what could be a flawed chain-of-command.
There was a scene in the Macarthur movie:
> highest ranks of the military have enough integrity to stand up to possibly
> corrupt leaders and overcome what could be a flawed chain-of-command.
"We owe our allegiance to the Constitution, not a temporary occupant
of the White House!"
--
Rich
Barry Gold
Jul 27, 2023, 7:11:13 PM7/27/23
to
On 7/27/2023 3:18 PM, RichD wrote:
>
>>> The military swears an oath to support and defend the Constitution so that
>>> buts a lot more weapons in their hands rather than the Justice department.
>> But remember the military reports to the Commander-in-Chief, and
>> Chain-of-Command is also very important to military leaders.
>> we would have to hope that the officers in the
>> highest ranks of the military have enough integrity to stand up to possibly
>> corrupt leaders and overcome what could be a flawed chain-of-command.
> There was a scene in the Macarthur movie:
> "We owe our allegiance to the Constitution, not a temporary occupant
> of the White House!"
Enlisted men take an oath to "Preserve, protect, and defend the
>
>>> The military swears an oath to support and defend the Constitution so that
>>> buts a lot more weapons in their hands rather than the Justice department.
>> But remember the military reports to the Commander-in-Chief, and
>> Chain-of-Command is also very important to military leaders.
>> we would have to hope that the officers in the
>> highest ranks of the military have enough integrity to stand up to possibly
>> corrupt leaders and overcome what could be a flawed chain-of-command.
> There was a scene in the Macarthur movie:
> "We owe our allegiance to the Constitution, not a temporary occupant
> of the White House!"
Constitution"
AFAIK officers -- whether from the service's academy or raised from
senior enlisted through Officer's Candidate School -- I believe are
taught about illegal orders and what to do about them.
Barry Gold
Jul 28, 2023, 1:48:38 PM7/28/23
to
On 7/28/2023 9:09 AM, Jethro_uk wrote:
>
> Does it confer any powers unavailable to a citizen >
> Does it allow them to act without orders ?
>
> Does it confer any agency ?
No. It's supposed to remind them that, while they are supposed to obey
orders from their superiors, their ultimate allegiance is to the
Constitution. (Also, those words are lifted from the President's oath.)
> Yes, it *sounds* nice - and the sort of thing people who like to dress up
> and run around with weapons like to hear. But has it ever actually
> changed the case of a court case ?
I doubt that people who like to "dress up and run around with weapons"
(e.g., various right-wing militia) care about the Constitution (nor do
they AFAIK take that oath).
I don't know if it has ever come up in a court-martial, but a competent
defense attorney would use if the warfighter had refused an illegal order.
> And all of that is before we start asking the really hard questions. For
> example "What *is* the constitution ?". One point of view may be that
> it's a dusty copy somewhere under glass that needs "preserving,
> protecting and defending" and the values therein are merely ink on
> vellum.
>
> And ultimately, how sacred is the constitution ? As someone who uses
> their ability to think, I know it contains within it, the mechanism to
> amend itself. However that means a "constitution" from 1800 (when that
> oath was devised) differs from one in 1900. Or 1920. Or 1932. What then ?
Yes, but *because* the Constitution contains the means for amending
itself, each new version is, in turn, *the constitution* until it is
amended.
> Or do we just play the "well, we know what they mean" game that is how
> all republics fall ?
>
> I find it mildly amusing that the US political system was so consciously
> based in antiquity (benefits of an 18th century education) that it may go
> the same way. The idea of Trump as Caesar, and an invisible wall compared
> to the siege of Alesia being particularly droll.
I don't see what that has to do with this topic.
> On Thu, 27 Jul 2023 16:11:09 -0700, Barry Gold wrote:
>
>> On 7/27/2023 3:18 PM, RichD wrote:
>>> [quoted text muted]
>
>> On 7/27/2023 3:18 PM, RichD wrote:
>>
>> Enlisted men take an oath to "Preserve, protect, and defend the
>> Constitution"
>
> But what does that *mean* ?
>> Enlisted men take an oath to "Preserve, protect, and defend the
>> Constitution"
>
>
> Does it confer any powers unavailable to a citizen >
> Does it allow them to act without orders ?
>
> Does it confer any agency ?
No. It's supposed to remind them that, while they are supposed to obey
orders from their superiors, their ultimate allegiance is to the
Constitution. (Also, those words are lifted from the President's oath.)
> Yes, it *sounds* nice - and the sort of thing people who like to dress up
> and run around with weapons like to hear. But has it ever actually
> changed the case of a court case ?
I doubt that people who like to "dress up and run around with weapons"
(e.g., various right-wing militia) care about the Constitution (nor do
they AFAIK take that oath).
I don't know if it has ever come up in a court-martial, but a competent
defense attorney would use if the warfighter had refused an illegal order.
> And all of that is before we start asking the really hard questions. For
> example "What *is* the constitution ?". One point of view may be that
> it's a dusty copy somewhere under glass that needs "preserving,
> protecting and defending" and the values therein are merely ink on
> vellum.
>
> And ultimately, how sacred is the constitution ? As someone who uses
> their ability to think, I know it contains within it, the mechanism to
> amend itself. However that means a "constitution" from 1800 (when that
> oath was devised) differs from one in 1900. Or 1920. Or 1932. What then ?
Yes, but *because* the Constitution contains the means for amending
itself, each new version is, in turn, *the constitution* until it is
amended.
> Or do we just play the "well, we know what they mean" game that is how
> all republics fall ?
>
> I find it mildly amusing that the US political system was so consciously
> based in antiquity (benefits of an 18th century education) that it may go
> the same way. The idea of Trump as Caesar, and an invisible wall compared
> to the siege of Alesia being particularly droll.
I don't see what that has to do with this topic.
Barry Gold
Jul 28, 2023, 5:45:42 PM7/28/23
to
On 7/28/2023 11:33 AM, Jethro_uk wrote:
>> I don't see what that has to do with this topic.
> Caesars rise to power involved several contraventions of then Roman law.
>> I don't see what that has to do with this topic.
> Until eventually he (literally) became a dictator.
His main contravention that I can remember was "crossing the rubicon --
he disobeyed orders. He was already a patrician, so I don't think him
being in the Senate violated laws.
The Roman system had a formal rule for creating dictators. They had to
be nominated by one of the two Consuls (on recommendation of the Senate)
and then approved by Comitia Curia (electoral tribunal).
And they were supposed to serve only for the duration of whatever
emergency justified appointing one. Cincinnatus became a dictator to
deal with an invasion. When it was over, he went happily back to his farm.
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