Letter from Mark Tushnet and Aaron Belkin to the Biden Administration (2023):
We do not believe that President Biden should simply ignore every MAGA ruling. The President should act when MAGA justices issue high-stakes rulings that are based on gravely mistaken constitutional interpretations, and when presidential action predicated on his administration’s constitutional interpretations would substantially mitigate the damage posed by the ruling in question. (emphasis added)
Steven G. Calabresi, Caesarism, Departmentalism, and Professor Paulsen, 83 Minn. L. Rev. 1421, 1433–34 (1999):
The President is obligated to execute all court judgments absent a clear mistake, even those that concern the scope of his constitutionally rooted executive privilege. (emphasis added)
Michael
Stokes Paulsen, Lincoln and Judicial Authority, 83 Notre Dame L. Rev. 1227, 1301 (2008):
But if, with
Lincoln, we think this notion of judicial supremacy wrong, then there is
nothing wrong with resistance, through all available legal means, to Supreme
Court decisions that one in good faith believes improper. The Constitution is
not the exclusive province of the Supreme Court. The Court’s decisions are not
the Constitution. And neither the Supreme Court nor any other authority
properly may declare resistance to judicial decisions to be illegitimate. (emphasis added)
Seth Barrett Tillman, Some Thoughts on How One Ought to React to Supreme Court Rulings?, New Reform Club (July 21, 2023, 12:37 PM), <https://reformclub.blogspot.com/2023/07/some-thoughts-on-how-one-ought-to-react.html>;
A view from the peanut gallery:
ReplyDeleteIt’s all about the rule of law, no? Who makes law, who enforces law, who adjudicates.
If the Article II dude / dudette disagrees with the Article III Supremes, s/he should pen a tirade / argument / opinion at least as substantial as that produced by the court’s majority. If the president can’t convince the Article I crowd to pass legislation to accomplish alternative law, the executive branch needs to provide a substantial argument for its alternative for the plebes to digest.
If the issue is this term’s affirmative action case, the dissent in that case doesn’t pass muster even if its glaring errors are corrected. The rest of the president’s branch therefore needs to promulgate a substantial alternative that might sway the plebes.
Should the plebes disagree, they can petition their elected representatives to add the charge to an impeachment inquiry.
I'm not a lawyer. But I guess my question to Tushnet and Belkin would be: can a President ignore a non-"MAGA" ruling? Is this a precedent for a future administration?
ReplyDeleteIt's too easy to spin fanciful hypotheticals. If the Supreme Court told you that the 14th Amendment obliged you to jump off the Brooklyn Bridge, would you be obliged to jump?
ReplyDeleteJudicial review has always had a nonjudicial compliance addendum.