Let’s put this into the perspective from which I view Representative Gephardt’s recent statement concerning the use of executive orders to “overcome” Supreme Court decisions.
I am not a particular fan of executive orders, but acknowledge their existence (I have no choice :), but find Gephardt’s statement to be a stretch in regards to what such an order can do-and I would have a hard time with any statement, made by any candidate or any political party, which inferred that the President has the authority, by stroke of pen, to nullify the acts of another branch (aside from the veto, of course).
Do you think President Bush can issue an Executive Order so that schools can ignore the Michigan rulings? What if Bush issued as Executive Order stating that Roe v. Wade had been voided? For one thing, there would be hell to pay, and for another, it wouldn’t work.
"You would always try to use an executive order to overcome things that you think have been done wrong. It may not be possible to overcome a Supreme Court decision if the decision had gone the other way, but there are times in the past where presidents have done important things through executive order that were legal."
Now, I do concede that executive orders can be used to try to lessen the effects of a given Court ruling, as I noted yesterday in regards to the use of executive orders in the past to limit abortion counseling in federal programs. However, such a move hardly qualifies as overcoming a decision. Presidents do not have the power to overturn Supreme Court decisions. This is plainly the case.
I actually am not a big fan of the Executive Agreement as a way of avoiding treaties, but 1) I cannot deny their existence, 2) they have at least been accepted by the courts and congress, so there is some consensus, and 3) at least there is a reasonable argument that one could infer such powers from the President’s stated powers in the realm of diplomacy. None of those three facts obtain to the idea of using executive orders to try to void Supreme Court decisions. In regards to Trade Agreements (such as NAFTA, as negotiated and passed under “Fast Track” authority, and as now exists under “Trade Promotion Authority”)-I can accept an argument that states that such agreement should be formal treaties, and further accept an argument that if the Congress wants the President to have this authority that we should amend the constitution, however, the fact remains that, again unlike Gephardt’s comment (that I really don’t get why Brett wants to defend it so badly ;) these are settled issues, passed at various times by both Democratic and Republican majorities in the Congress, and supported by both Democratic and Republican Presidents. It is like the proverbial apples and oranges.
Heck, if that’s the case, who cares who gets confirmed to the bench, just let the President issue some orders if he doesn’t like the way the Court rules.
Also, as Brett notes, Eugene Volohk has been involved in the debate as well (here and http://volokh.com/2003_06_22_volokh_archive.html#105639989388350744, for example). James Joyner's most recent comments is here (with a passing ref here), and the InstaOne has also commented here, here, and here).
Also, via InstaPundit, this post on EO's from Bill Hobbs is interesting.
(OK, I think I am now officially tired of this one :)
Thanks for the response, Steven. This is one where research interests and personal interests combine, which leads me to unleash the verbal hounds, unfortunately.
Should Nixon have "been allowed" to issue an executive order on the tapes? He is allowed to do so, and the Court is allowed to tell him he's wrong, and he's "allowed" to ignore the court. The punishment is a political process, namely, impeachment. If he can persuade a minority of Senators that he was acting in the interest of national security, for example, he wins. Nothing wrong with the whole scenario, in my book.
Posted by: Brett at June 26, 2024 11:46 AMI don't disagree, per se. As I think I said yesterday, one can try whatever one wants.
The real issue here is whether a given act is on its face problematic (which is a different issue than whether one could try it, or even get away with it), and, further, whether it deviates from legal expectations and politics norms. Surely you could concede that if Bush tomorrow issues an executive order "overcoming" the Michigan case, that would be considered an unorthodox move, shall we say?
I'll be honest, aside from the fun of it, I am at a loss why you seek to defend Gephardt's comment. I can understand the argument that Presidents should be allowed to combat the Court, so to speak, but don't understand the idea that EO's should be a tool (or even are a tool) aimed at attacking SC rulings.
Posted by: Steven at June 26, 2024 11:54 AMI like the idea of departmentalism and want to push it. I think that you can't complain about judicial overreaching one day but then pay an almost religious respect to it the next. But that's probably idiosyncratic!
Posted by: Brett at June 26, 2024 12:58 PM"Departmentalism" in what sense?
And you expect consistency from politicians? :)
Posted by: Steven at June 26, 2024 01:20 PM"departmentalism" in the sense that no branch has ultimate constitutional interpretive authority. It's a plausible view, I think. The Paulsen article I cited has a good statement of the view, I think. But this is also a case of the researcher falling in love with his subject matter. . .
Posted by: Brett at June 26, 2024 03:20 PM