Wednesday, April 4, 2012

It's John Marshall's Fault!

Barack Obama has found a new enemy is his war on, well, anything that seeks to check his power.

This time, his foe is the United States Supreme Court . . . of 1803.

Several recent statements from the president seem to indicate that he does not accept that the high court has the legal authority to find laws unconstitutional. All constitutional scholars, save Obama, agree that the Court assumed this power in the decision Marbury v. Madison.

In that case, the John Marshall Court ruled unanimously that it could find federal laws unconstitutional. Some years later, it assumed that power over state lawmakers as well. This authority was traditional in English law.

This decision formed the basis for first, the equality of state and federal power, but later, the central authority's dominance. In other words, without this power to strike laws down as unconstitutional, the federal government would never have prevailed in its struggle with states over who had preeminent authority.

The Supreme Court has to strike a balancing act at times. When it's decisions are popular, it is seen as a bulwark against popular passions. Its opponents usually complain that it is undemocratic. Obama complains that it is about to strike down a duly passed law by Congress (which everybody knows was spanked by an angry electorate in the subsequent election.) In the 1950s, it invalidated duly passed laws by state legislatures that kept blacks and whites in separate schools.

Obama seems to have completely lost his moorings. His assertion that the Supreme Court cannot invalidate his law caused the 5th Circuit of the federal court to take the unusual step of asking the Justice Department if Obama was denying the power of judicial review.

It is in the president's power to cause a constitutional crisis, by simply ignoring the ruling of the Court. Andrew Jackson did so in the 1830s when he seized Cherokee land. Abraham Lincoln ignored a judicial order out of fear that Maryland might rebel against the Union.

No other president has done so. Franklin Roosevelt came close, but incurred public wrath as a result.

These are the death rattles of a rapidly discombobulating presidency.

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