Posted by: theoptimisticconservative | October 16, 2010

Judicial Review is not a Suicide Pact

This is a brief think-piece on recent jurisprudence and the dangers it poses.  The purpose is to get everyone thinking (I know many people already are) about what we are buying into with reflexive acceptance of unfettered judicial authority.

The first case under discussion is one I wrote about earlier this week:  the ruling of federal district Judge Virginia Phillips that the Don’t Ask, Don’t Tell (DADT) policy is unconstitutional, and her subsequent imposition of an injunction against enforcement of the policy.  My concern in the earlier piece was that she was overstepping her authority in issuing an actionable order to a department of the federal executive.  As I elaborated in an exchange with a reader here, it’s one thing for a judge to rule something unconstitutional.  It’s another for the judge to issue an order that purports to require positive action from the party ruled against.  And it is especially another matter if the party ruled against is an agency of the federal executive – not a state or local entity, but a coequal branch of the federal government.

If you do a little basic critical thinking, instead of simply repeating the “judicial review” mantra we were all taught in school, you will understand that there is more than one way to see this situation.  Does “judicial review” mean that judges have the authority to direct Congress or the executive agencies to change their policies?  Not necessarily.  In fact, a sound case can be made that that’s not what the Framers of the Constitution had in mind.  It is also hard to think of landmark cases that would validate the view that judges are empowered to direct policy.

There is a good argument, instead, that the proper effect of a judicial ruling like Judge Phillips’ is to advise the other branches of government that a policy they are pursuing is unenforceable, that it need not complied with, and that it can henceforth be the basis of lawsuits and the award of damages.  Under this interpretation, the ball is back in the courts of the other two branches to decide how to proceed.  There is even a possibility, if Congress and the executive are agreed on something, and if the people are with them, that they can effectively ignore even a ruling of unconstitutionality by the US Supreme Court.

We don’t have a clear-cut, universal sentiment on this, in the minds of the people or our political class, because it has only rarely and recently come up.  I would not claim that there is any fully articulated or absolutely “correct” view on the matter.  But this is in contrast to advocates who happen to like the decisions made by activist judges, and who simply proclaim that it’s obvious that the power of judicial review confers on judges the power to order the legislature and the executive to take actions.

That’s not obvious, however, and the DADT ruling brings up one reason why.  If DOD were to cease enforcing DADT right now, the default law in effect would require charging announced homosexuals under the Uniform Code of Military Justice (which still has sodomy on the books), whenever the gay servicemembers’ sexual relationships came to the specific notice of the chain of command.  We could get wrapped around whether this is a consequence the judge intends; i.e.,  she wants to strip away DADT so DOD will have no choice but to begin a series of unpopular disciplinary actions, which would function as a political goad.

But the more important point is that, whatever the judge’s intentions, there are foreseeable consequences from compliance with her injunction that would result in tremendous administrative hassle for DOD.  The Department cannot merely “cease enforcement”; it has to do something else.  (And it can’t even decide what that “something else” is; that’s up to Congress.)  If that aspect of the situation is not the judge’s responsibility, then she should not have the authority to bring these consequences down on DOD.  That is simply a basic principle of good government.  Judicial review cannot be a pact consigning us, at the hands of judges with no responsibility for execution, to administrative or legal chaos.  If it is, the people have every right to object to it and set limits on it.

Meanwhile, DOD is in the middle of a study of the administrative requirements for a change of policy.  This too is something the judge should not have the power to simply override.  Where judges have no responsibility for practical outcomes, they should not have authority to order actions.  Their authority lies in interpreting law, not in directing policy.

The DADT injunction is the first major case I can think of in which a federal judge issued an order for action to a federal department.  It follows other cases in which highly questionable orders were issued by the judiciary, but the previous cases of interest did not involve the federal judiciary and the federal executive.  The court-ordered school busing of the 1970s is an obvious example, but it dealt with federal court orders to local school districts.  The 1985 case in which a federal judge ordered Kansas City to raise taxes and spend more on its public school system is another clearly analogous instance, but again, this directive was issued to a local school district and not a branch of the federal government.  At the state level, an obvious case would be the Massachusetts supreme court ruling in 2003 that gay couples had the legal right to marry, and giving the state legislature 180 days to comply with the ruling.

It has only been within the span of my lifetime that we have become accustomed to judges issuing rulings that require the people’s money to be confiscated and spent, executive departments’ regulations to be changed, and legislatures to take action to “comply.”  Judicial rulings have been important tiebreakers throughout the life of the Republic, but in landmark cases from Marbury v. Madison to Dred Scott, Schechter Poultry Corp. v. United States (the “sick chicken” case that brought down the New Deal) to Roe v. Wade, Engel v. Vitale (school prayer) to Kelo, such rulings have been intended to set a legal and judicial environment in which the other branches of government know their limitations and requirements.  This is a very different thing, in its concrete effect, from the judicial branch directing specific actions – and especially actions that amount to the making of policy and the coercion of the people and their representatives.

It’s in this context that we have to consider the Michigan federal judge’s decisionthis month that the Obamacare insurance mandate is constitutional.  Whether it is or isn’t, what’s increasingly alarming is what judges might do about what they consider constitutional or unconstitutional.  Judge George Steeh’s argument in the insurance mandate case is summarized by Allahpundit thus:

Basically, … we’re all either already or potentially engaged in health-care commerce because none of us will fail to seek essential medical services if they’re required and none of us will be denied essential services if we can’t pay… That being so, the feds can regulate how those services are paid for.

… what the court is saying [is] “because you’ll eventually decide to avail yourself of life-and-death services that can’t be refused you, the federal government can make you help pay for them”…

… if we’re all necessarily “active” in health-care commerce at all times, theoretically there’s no limit to what sort of further activity can be mandated in the interest of spreading costs.

There are problems with this line of reasoning, of course, but we’re thinking too small if we think only in terms of whether Congress will take it too far.  What about judges?  If they can order the people to be taxed and agencies from the coequal executive branch to revise their policies, what can’t they do?

Consider the prospect of a judge combining the principles of the Phillips DADT injunction and the Steeh insurance mandate ruling.  Make the issue retirement funding.  By the principle of the insurance mandate ruling, everyone in America will participate at some level in “retirement commerce.”  All we have to do is fog a mirror, and continue to do so after the designated retirement age.  Therefore, the federal government, in the interest of regulating how this is paid for, can make us help pay for it – and it is not constrained to work solely within the framework of Social Security to do so, any more than it’s constrained to work within the framework of Medicare to make us help pay for health care.

Adding the principle of the DADT injunction to this one, we have the prospect of a judge issuing an order that goes beyond findings of constitutionality and requires federal agencies to take action.  The most likely basis for such an order would be a finding of “disparate impact” on different population groups relative to private-sector retirement earnings.  Disparate impact (racial, in that case) was the basis for the federal judge’s 1985 decision requiring Kansas City to raise taxes and spend more on schools.

Can you see how the judicial precedents may already be in place for the federal courts to order the confiscation by executive agencies of all private 401(k)s, as a means of eliminating the “disparate impact” of people’s different work choices on their retirement benefits?  It’s not just a matter of what Congress can do to us.  We also have to worry about judges ordering action by the legislature or the executive departments, based on the reasons those judges have used to award the other branches the authority to regulate and impose mandates on us.  Basically, if the government has the authority to impose a requirement on us, a judge can exercise that authority.

The appeals process for the DADT injunction and the first insurance mandate case will be of exceptional importance to our future.  If these rulings are not overturned on appeal, it is only a matter of time until a federal judge orders coercions of the people that even our legislative representatives would fear to enact.  Longheaded analysts foresaw this kind of prospect decades ago, as judicial activism extended its reach incrementally and in seemingly minor ways.  But now we are two appeals processes shy of a tremendously vulnerable condition: one in which nothing stands between us and autocratic judicial rule except a major constitutional crisis between the federal branches.

My own opinion is that the current Supreme Court will reverse the insurance mandate ruling, and could very well invalidate the injunction issued by Judge Phillips regarding DADT.  We need not despair of where we are today, but we have to learn from it.  Judicial precedent can be the most dangerous quantity in our form of government, and we the people must change our own mindset about what it means, what judicial review means, and what authority we have, through Congress and the office of president, to define and limit it.  It has always been the case that ceding absolute power to the judiciary would lead to judicial autocracy.  We can no longer afford to pretend it’s not happening.

Cross-posted at Hot Air.



  1. ‘But there is a big difference between a law being unenforceable, and the judiciary having the authority to force the executive to take action relative to it. The latter proposition, I don’t see a valid precedent for’.

    If you don’t see it, it’s because of your ignorance, opticon. Federal courts make rulings that’s oblige action by the executive branch all the time.

  2. Court Issues Injunction Against FEC in Case

    The federal district court in Washington yesterday issued an injunction barring the Federal Election Commission from enforcing contribution limits against and its donors.

    A Preliminary Injunction to stop mandatory vaccinations has been issued in the United States District Court of New Jersey. This comes after a federal lawsuit opposing forced vaccines was filed in that court by Tim Vawter, pro se attorney, on July 31st with the federal government as defendant. When the judge signs the Preliminary Injunction, it will stop the federal government from forcing anyone in any state to take flu vaccine against their will

  3. October 11, 2010


  4. This stuff was sorted out quite some time ago, opticon.

    see Coke, Edward.

  5. What we need is an executive who refuses to enforce a judicial decision, and then we will see. Will such an executive be supported by the people? Be disobeyed by the police? Be impeached by Congress? Or, for that matter, a state that refuses to enforce a Supreme Court decision. Does the executive send in the National Guard? And what happens then? Sooner or later, a crisis will be forced, because the Left controls a good chunk of the judiciary and and will probably, at some points, control the “commanding heights” of it–and the Left can’t control itself. Mere self-respect on the part of the majority will ultimately force a crisis, then. We can only hope that the occasion is a favorable one, or is chosen wisely.

  6. What we need is an executive who refuses to enforce a judicial decision, and then we will see.

    See Stuart, Charles I.

    • For a similar proposal (taking a judicial decision as valid for the individual case, but no more), see Lincoln, Abraham, with regard to Dred Scot.

      • But I don’t really mind your example either–as I said, let’s see–a rightly chosen case, challenging a particularly outrageous Supreme Court decision–we’ll see who loses their (figurative, hopefully) head.

  7. “There is a good argument, instead, that the proper effect of a judicial ruling like Judge Phillips’ is to advise the other branches of government that a policy they are pursuing is unenforceable, that it need not complied with, and that it can henceforth be the basis of lawsuits and the award of damages.”

    This would mean that Congress and the Executive could avoid the Constitution so long as they were willing to pay the price. You can imagine situations where the damages would be small enough, that they’d be willing to do this. This can’t be correct, can it?

    Instead,you might argue that the courts be limited to awarding individual injunctions, rather than global injunctions. But, this would lead to the same result as the global injunction, just with more wasted resources in litigation, right?

    Perhaps you could argue for a stay pending appeal. That seems reasonable. Or you might even argue that judicial review is improper in certain areas, such as national defense. But to argue that judicial review in general is improper is quite radical.

  8. “The Department cannot merely “cease enforcement”; it has to do something else.”

    I really think you should flesh this out, as it seems to be the crux to your argument. Why exactly does the military need a policy for homosexuals? And even if they do, why can’t congress just create such a policy now (or even a temporary policy)?

    If the anti-sodomy policy is, in fact, constitutional, what’s wrong with them just enforcing that?

  9. Optgicon:

    You are an excellent analyzer of all things military. And I generally agree with your political analysis. And your good cheer is wonderful.

    But – and I say this reluctantly and with great respect — you have no idea what your talking abour regarding legal issues. Your position is so erroneous, from a constitutional law perspective, that it would be an act of futility to even begin to detail the errors.

  10. Darkness — why don’t you clarify that for us? I don’t honestly see how it could be an act of futility to detail the errors you speak of. Until I see a counterargument, I don’t accept your judgment in any way.

    I appreciate that fuster has tried to suggest examples that refute my argument (I’m not convinced they do, but don’t have time to go into that right now). Thomas has addressed individual points, although his argument is mainly “I don’t understand what you’re saying about DOD having to ‘do’ something as opposed to ‘ceasing to do something.'” More on that later.

    But the fact that my discussion here calls into question what Americans think they learned in school about judicial review doesn’t make it comprehensively in error.

    The schools have taught for decades that the courts are the final arbiters of what is constitutional, but (a) that’s not true, since the people can amend the Constitution (a process requiring the collusion of the legislative and executive branch as well as three-fourths of the states); and (b) it doesn’t inherently mean the courts are empowered to issue judicial orders about anything and everything they find unconstitutional.

    Regarding issuing orders, per se: issuing them about judicial processes is one thing; that is squarely within the purview of the courts. Congress may assign certain functions to specified courts, as it has done with processing bankruptcies, for example, and exercising oversight of intelligence surveillance. Such courts obviously couldn’t function if they couldn’t issue executable orders.

    But nothing in the Constitution gives the court system the generic authority to order executive agencies or the legislature to take actions specified by the courts. There has been, rather, an iteration of instances in which court authority has been effectively accepted by the other branches through inaction (or failure to take counteraction), as in Massachusetts and the same-sex marriage issue, and the Boumedienne case, which awarded 4th Amendment rights to unlawful combatant detainees.

    There was much discussion, at the time, of the options the other branches had after both these rulings. Legal writers as well as politicians and all-purpose pundits were clear that there were, in fact, options other than merely complying. It was political intent or calculation, not the fully accepted authority of the courts to produce certain effects with their rulings, that motivated the other branches to accept the rulings rather than taking other action. The governor, the president, the legislatures — all decided not to make the rulings in question points of inter-branch confrontation (although both executives were urged to by some advisers and constituents, all of them represented by attorneys citing the legal basis for doing so).

    They could have done so, but chose not to. In politics and government, you do have to choose your battles. But there would have been nothing “unconstitutional” about choosing actions other than simple compliance with the courts.

    Something for everyone to think about is the possibility of a court ruling in a way that the LEFT doesn’t like. And surprise, surprise, we had exactly that situation this summer, when the district court judge upheld the injunction on Obama’s moratorium on deepwater drilling in the Gulf of Mexico.

    Ruling in favor of Obama would have meant upholding the drilling moratorium. Ruling against him meant that his agencies were enjoined from imposing the moratorium. Everyone remember what the outcome of that was? Two decisions against Obama, one in June and one in July, BUT THE DRILLING MORATORIUM REMAINED IN EFFECT.

    Why didn’t Obama just comply with the first ruling? Shouldn’t he have done so? Shouldn’t a judge’s decision be binding on the executive in every case?

    I commented at a Hot Air post (I think it was one of Ed’s), at the time of the first ruling, that I thought the judge had overstepped his bounds in issuing the injunction against the moratorium. I didn’t see a constitutional basis for him to issue that injunction — even though I agreed with the course of action it prescribed.

    But of equal (and perhaps greater) importance, Obama simply ignored both rulings against his moratorium, and implemented and enforced it anyway.

    It isn’t possible to argue that “everyone knows” exactly which branch has what authority, or that we are all clear and on the same page regarding the authorities of the judicial branch. There is nothing stupid about challenging the conventional, progressivist idea inculcated in every American over the last 50-60 years about the privileges of the judiciary. An unchecked judiciary IS a danger to us, every bit as much as an unchecked executive or legislature. We need to start the process of actually thinking about that again.

    • respectfully also, take DAN’s word for it. You’re correct that the injunction was overbroad, but otherwise your Con Law is entirely errant. Entirely.

    • On the contrary, OC’s Con Law is entirely sound so long as one has in mind plausible constitutional interpretation rather than the deviant gloss that has been superimposed on the Constitution (systematically over the last 7 and a half decades, sporadically prior to that – e.g. Dred Scott, Plessy). Still, Madison premised the functioning of the proposed constitutional government on each “Department” jealously guarding its own prerogatives and thus constraining the excessive accumulation (prospectively leading to abuse) of power in any department. If the legislature and executives branches are willing to submit to the courts as meekly as they did in the Massachusetts gay marriage case and Boumedene and are not constrained to resist by the electorate the constitutional scheme is undermined – and eventually collapses. And yet there is little evidence that there are prepared to even contemplate so resisting. Indeed even Jeff Session, (one of the 2 or 3 best U.S. Senators and perhaps one of a dozen or so best elected officials in the United States) an appropriately staunch critic of both the policy demanded by the Court in Boumedene and the constitutional authority of the Court to impose such, said in the immediate that there was nothing to be done in the aftermath of the ruling.

  11. “Two decisions against Obama, one in June and one in July, BUT THE DRILLING MORATORIUM REMAINED IN EFFECT.”

    I think that’s oversimplifying quite a bit. The Obama administration issued a new moratorium that was more specific and limited, as a way to comply with the order. Whether they, in fact, did comply would be a matter for the courts to decide, but the issue is now moot.

  12. It’s also worth keeping in mind that the President (and, I assume, members of congress) swears to protect and defend the Constitution, which implies that he must have some independent judgment regarding what the Constitution means. And he would be violating his oath if he obeyed an court order he considered unconstitutional, or signs a bill he considers unconstitutional.

    • No, adam, the president would not be violating his oath of office by obeying an order he considered unCon. His duty requires that he submit and appeal the order to the SCOTUS. Any other course would require that the president, and the principal officers of the executive branch, consider the oreder to result in an immediate danger to the nation that would exceed the consequence of refusal to comply.

      • With a lower court order, you may be right, but obviously that doesn’t help with an unconstitutional Supreme Court decision. I should have been clearer about that. Anyway, you don’t touch on the main point–that all three branches are coequal, equally obliged to protect the Constitution and therefore equally competent to interpret it.

        • They’re not equally competent to interpret it except int the sense that all people may read and venture opinions. One branch only is tasked with interpretation. The other branches have other functions.

          • According to whom? You put forth your view as if it were the most obvious commonsense, but you don’t address the basic issue: when the President swears to defend and protect the Constitution, what does that mean? If it means, defend and protect the Supreme Court’s interpretation of the Constitution, it could say so; or, somewhere in the Constitution, the Supreme Court’s monopoly on Constitutional interpretation could have been mentioned. Or in the Federalist Papers. Lincoln insisted that the Dred Scot decision was unconstitutional, and that the President should enforce the decision in that particular case, but shouldn’t treat it as a precedent or as establishing a principle that bound the executive. Was he wrong? Why would a President today who treated Roe v Wade or some future decision imposing same sex marriage be wrong if he approached it exactly that way? There is now a legal tradition by which the Supreme Court arrogates this power to itself, but it’s only a tradition, which may have saved us from violence once (in the Civil Rights era) but has since become a a very destructive one, because it leads to the unaccountability of the Supreme Court, and hence judicial tyranny.

  13. Why would a President today who treated Roe v Wade or some future decision imposing same sex marriage be wrong if he approached it exactly that way?

    because it would mean that sovereignty would reside in the executive branch of the government instead of in a government designed to divide the exercise of sovereignty into three parts.

    what would stop a president from also defying any law passed by the legislature?

    my view isn’t the most obvious commonsense, it’s the most lesson of hundreds of years of experimentation.

    • We seemed to have reached the end of the discussion here. I’ll just say that I think Lincoln got it right: the executive would be obliged to obey the ruling in that particular case, but would not be obliged to give the Supreme Court the right to make abortion legal everywhere and always with that one decision. Divided sovereignty lies in the court’s right (all courts, along with the Supreme) to interpret the Constitution in the cases that come before it (and in those cases, to reiterate, the executive is obliged to enforce the decision, with very few exceptions). Indeed, judicial pluralism might better suit a system of checks and balances. I have never seen anyone note that if the lower courts simply ignored the Supreme Court’s rulings, their own rulings would ultimately get overturned, but it would often be much later, thereby weakening the effect of the original ruling. There are all kinds of ways of resisting judicial tyranny–in commenting on this post, I was hoping to suggest a few ways, in the spirit of Dyer’s concerns, to think about that, because rejecting judicial supremacy is central to the future of freedom. Your response isn’t much more than to say that he who would consider such things would be doing things differently than we do things now, which goes without saying.

      “The lesson of hundreds of years of experimentation” really doesn’t mean anything more than “the way things are now.” But I understand very well why Leftists don’t feel obliged to explain themselves. I won’t waste more of my time either.

      • I doubt that it’s a “leftist” position to hold that a single person should be Commander-in-Chief the armed forces and also have the last word on interpreting the law.

        That was the system called monarchy.

        • Not the last word–a word. How could the Commander-in-Chief not be responsible for his own interpretation of the Constitution? No President could hold onto a perverse interpretation in the teeth of Congressional and Supreme Court opposition; but he could put forth a sensible and reasonably popular interpretation against the perversity of an activist court. Or, at least, that’s the proposition I’d like to see some President with the courage to test.

          Unless you want to say the Constitution is just what the Supreme Court says it is, all branches, and each individual office holder, must have an interpretation of the Constitution to guide their actions. And if it’s just what the Supreme Court says it is, we are in fact ruled by 9 unelected officials who cannot be removed from office.

          • Each individual officeholder has a view of what the Con says.
            But in the end, he Constitution is just what the Supreme Court says it is, and sometimes we are in fact ruled by 9 unelected officials.

            see Nixon v US

            • The Constitution will be just what the Supreme Court says it is until (the likeliest scenario) some President, drawing upon substantial support from Congress, the states, and the people, demonstrates that it isn’t. And then it won’t be. So there.

  14. adam, Yes, members of Congress do swear to defend the Constitution. Originally the vow was – “I do solemnly swear (or affirm) that I will support the Constitution of the United States.”

    In 1884 it expanded a little to – “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”

    It’s the only oath they take upon entering office.

    • Which means the demand that they explain where they derive the Constitutional authority (or even necessity) for the laws they pass is a pretty reasonable one.

  15. A couple more comments:

    1. On the drilling moratorium rulings, the ultimate effect was that there was never, at any time, a resumption of drilling, in spite of two injunctions on the moratorium. Thomas’ details don’t change that fact. The judiciary didn’t “win” this one; in spite of ruling against Obama twice, it was unable to reverse the policy course he was determined on. Again, I think the policy course was wrong, but I am not necessarily upset that the rulings were, for all meaningful purposes, ignored.

    2. Regarding DADT and the need for policy on homosexuality in the military — only someone who has never been in the military would ask why a policy is needed. It’s needed for the same reason there is military policy on everything from adultery and fornication to grooming, tattoos, and jewelry.

    All these things affect work environment, morale, cohesion, uniformity, and effectiveness. And if you strip away these quantities, you don’t have a military any more — you just have Wal-Mart, Fed-Ex, or the National Football League. In combat, you don’t have the option of letting your shipmates down, quitting because you hate the boss, doing as little as possible because you don’t really agree with the assigned objective, or having a personal breakdown because your boyfriend done you wrong. These liberties we take for granted in civilian life, soldiers and sailors don’t have.

    Sexual tension of all kinds interferes with morale and unit cohesion. Of COURSE gay sexual tension will do so. Straight sexual tension does. That’s not a showstopper, but what it is, is a situation requiring administrative and disciplinary policy.

    Gays and lesbians bunk with members of their own sex, so the policy issues are different from those attending the straight situation. Gays and lesbians are also the subjects of very activist political advocacy, something that will hit the military’s administrative system like a freight train as soon as the 1993 law is repealed. (Organizations like the Lambda Legal Foundation have been preparing cases for years with the intention of bringing them immediately on repeal.)

    It is irresponsible to suggest that a judge who has no responsibility for any of this should be able to issue an injunction against a policy that will, inevitably and demonstrably, require replacement.

    That, incidentally, is the key element missing in the injunction situations fuster provided links to. An injunction on DADT isn’t analogous to those situations. It would be much more analogous to something like a judge issuing an injunction against enforcement of the CAFE standards for motor vehicles. It’s obvious that issuing such an injunction would leave federal agencies and automakers confused about what to do, but equally obvious that, if they accepted the injunction, they would have to DO something.

    The military has to administer people in a situation in which morale, cohesion, uniformity, and effectiveness are paramount. A judge can ignore this, and her sympathizers can insist that there is an abstract sense in which issuing an injunction doesn’t imply that the enjoined policy must be replaced. But insisting doesn’t make it so. The people expressing this view are simply wrong. Of course the military has to have a policy on homosexuality. It has PEOPLE in it, living and fighting together.

  16. That, incidentally, is the key element missing in the injunction situations fuster provided links to. An injunction on DADT isn’t analogous to those situations.

    Whether other injunctions are analogous or not is entirely immaterial. You were stating that judges don’t and can’t order the executive branch to do or abstain from doing things. That’s absurd and that’s what I was pointing out.

    I’m entirely in agreement with you in saying the injunction far too broad and not in keeping with the scope of the judge’s authority, but otherwise it was nothing startling. Telling everybody else what to do is exactly what judges do.

  17. “The judiciary didn’t “win” this one; in spite of ruling against Obama twice, it was unable to reverse the policy course he was determined on”

    I think this is probably due more to the limited time frame for the moratorium. If it had extended indefinitely, I’m sure you would have seen challenges to the more limited moratorium, and a court would have decided whether the administration was complying with the law.

    “The military has to administer people in a situation in which morale, cohesion, uniformity, and effectiveness are paramount. A judge can ignore this, and her sympathizers can insist that there is an abstract sense in which issuing an injunction doesn’t imply that the enjoined policy must be replaced. But insisting doesn’t make it so. The people expressing this view are simply wrong. Of course the military has to have a policy on homosexuality. It has PEOPLE in it, living and fighting together.”

    You still haven’t addressed why Congress can’t act to remedy this.

    Would you be ok had the judge provided a stay of 1 year for Congress to put in place a new policy?

  18. Although I would very much like an answer to the above question regarding congressional action, I would like to put forward the following hypothetical.

    Suppose, due to morale issues following an incident similar to the Ft. Hood shooting, Congress passes a law that Muslims cannot openly serve in the military. Surely, a court would find this unconstitutional and issue an injunction against its enforcement. You, however, would seem to suggest that, because it would require a new policy, the executive could, if it so chooses, ignore the court order and continue enforcing the unconstitutional policy. If the policy was politically popular, it would continue to be enforced until political winds changed.

    Do you really find this to be acceptable?

  19. Write the law
    Enforce the Law
    Interpret/Judge the Law

    what is so flippin tough about this concept people? 3 branches of gov that do different things, if everyone tried to do the others job than eventually they get smacked down by the other two branches.
    Besides the scope of the judges authority is controlled by the judges over her that can halt any decision she made. This is not a case of an autocrat but of a republican system working like it’s suppose to. But you really are having trouble with the concept of separation of powers. Would you like to watch the youtube video about it? it’s animated.

  20. An update to the discussion. Here is the argument used by the Holder Justice Department in its request for a stay of the Phillips injunction:

    (DOJ attorney) said her nationwide injunction was unrealistic, and will hurt military effectiveness because it does not allow enough time for the military to conduct its training and education to implement the new regulations.

    “You’re requiring the Department of Justice to implement a massive policy change, a policy change that may be reversed upon appeal,” Freeborne told her.

  21. Link for that:

  22. Thomas — regarding whether Congress can act to remedy this, you are turning the argument around by posing the question that way. My point is that nothing in the Constitution COMPELS Congress to “remedy” the situation as you suggest. If Congress did that, it would be acting on an assumption that the federal district judge has the authority create effectively ungoverned situations and that the only remedy is for Congress to act in accordance with the judge’s POLICY directive.

    Regarding your hypothetical about Muslims serving, the question is not which policy outcome I would find acceptable. It’s whether a judge’s authority to rule on constitutionality inherently includes an authority to order policy changes by coequal branches of government.

    It’s worth noting again that Marbury v. Madison did not establish any such directive authority. What it did was give an incoming administration the excuse to not deliver a justice-of-the-peace commission awarded by the previous administration. That is a much narrower outcome, and one that required no positive action by anyone, in either a public or private capacity.

    Notably, however, Jefferson was convinced that SCOTUS had overstepped its authority with the ruling. The idea that it’s some form of arcane dementia to question the flow of judicial tradition ensuing on Marbury v. Madison is a modern one, inculcated by the one-sided teaching of shibboleths in our schools and not by its constitutional obviousness. There are a number of legal thinkers writing today who urge Americans to think more critically on this topic. One of the most important things to know is that modern jurisprudence, of the activist-directivist kind we’ve been discussing here, dates to about the 1940s. It’s not by any means as old as the Republic.

  23. “Phillips, who is expected to issue a final ruling Tuesday, said the government has not proven that her order would harm troops or in any way impede efforts to implement new regulations for the military to deal with openly gay service members.”

    Remember that the DOJ has had since July to mention any problems.

    Here is another website for you

  24. “If Congress did that, it would be acting on an assumption that the federal district judge has the authority create effectively ungoverned situations and that the only remedy is for Congress to act in accordance with the judge’s POLICY directivet”

    First, the judge made NO policy directive, other than stating that the current policy is unconstitutional.

    Second, if, as you suggest, judges do not have the authority to strike down laws if the result would be that an area is ungoverned, there would essentially be no judicial check on congressional authority. EVERY law passed by congress seeks to govern an area that is ungoverned. If the governed/ungoverned distinction became problematic, you could imagine congress repealing all previous laws in an area before creating new ones. It’s very difficult to reconcile this with a Constitution that supposedly creates checks and balances.

    “Regarding your hypothetical about Muslims serving, the question is not which policy outcome I would find acceptable. It’s whether a judge’s authority to rule on constitutionality inherently includes an authority to order policy changes by coequal branches of government.”

    The hypothetical was supposed to point out the structural problems created by your interpretation. The judicial branch would essentially become an advisory panel with regard to federal laws. This would mean that constitutional rights would be enforced based solely on political will in the executive and legislature. This, you must admit, is problematic.

    As a separate, but related note, I understand that the Constitution does not explicitly provide the judiciary with such authority (although you could certainly argue it’s contained in the “judicial power” vested under Art. III). However, considering the structural problems associated with the judiciary not having such authority, mainly that constitutional rights will be protected ONLY by political branches, it’s very difficult to believe it does not exist.

  25. Well said Thomas, my point exactly

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