Friday, September 15, 2017

A Thought Experiment

"the courts of America have never been the "President's Courts," but established under authority of the Constitution as a co-equal branch of government to the Presidency. " 
If any other branch has power over the Judiciary, it's the Leg, given Article III's construction, methinks.

I know what NTodd is saying here, and sticking to the text of the Constitution he's not wrong. Congress can establish courts as it sees fit, and give them jurisdiction as it wishes.  There are several types of federal courts which seldom make the news, but which are important in the nation's legal life.  U.S. Bankruptcy Court, for instance, is a federal court of limited, but at the same time worldwide, jurisdiction (depending on the bankrupt before it and its business relationships), but the judges on the bankruptcy bench sit for a set term, not for life.  The District and Appellate Courts which generate most of the headlines (and most of the Supreme Court cases non-lawyers pay attention to) are creatures of Congress, too, but here's where the thought experiment engages:

After Marbury, the Courts established themselves as a co-equal branch with Congress and the Administration.  However, if Congress chose to limit the jurisdiction of the Courts, or even just the Supreme Court (in a more extreme example) so that they could not decide the constitutionality of acts of Congress, could the Courts find that law to be unconstitutional?  Who, in other words, would be the authority then?

This is precisely the kind of case the Courts hate, because it so clearly provokes what the press loves to call a "Constitutional crisis."  But it's a live possibility, and if memory serves there was a time when the idea of such a bill was bandied about (possibly in the Gingrich era, maybe more recently than that).  It presents, of course, the problem of the Court giving itself authority not clearly spelled out in the Constitution; but who among us truly wants to see the Court stripped of its role as arbiter of what is "constitutional"?  That authority is really part of the balance of power, but rather like Emperor Napoleon, it is a power self-bestowed by the courts on themselves, rather than one granted to them by the superior authority of we the people.  Well, it has been now, but that makes it rather more than less like the unwritten constitution of Britain.  And then we're back to the question of who has the authority to enforce its orders in order to preserve the Court's authority as a court (and part of a co-equal branch of government)?  If the President can usurp it, then the courts are subservient to the Administration, and that would seem to violate Article III.  But if the courts don't assert their independence on this issue, who will?  And if they do, will that be a constitutional crisis?

Or will it be the pardon itself?


  1. That the amateurs who wrote the Constitution didn't specify that a president couldn't pardon his minions or others who broke the law, especially on his behalf, is a major problem when you have a president who has no sense of shame or honor and, given who sits in that office now, I'd say that's a flock of diseased fowl that have come home to roost.

    There are major and glaring problems with the Constitution that have been pending and are pending and, considering that "pending" has the idea of hanging in its etymology, those are going to hang democracy by the neck till it is dead.

    The whole thing needs to be overhauled the cumbersome amendment process and the corrupt motives of so many of those in state government make that an unlikely venue of change until the disaster hits.

    I'm more pessimistic than I have been in my long pessimistic life.