Is That Legal?

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July 22, 2007

The President's Power To Ignore Judicial Orders

ver at the Volokh Conspiracy, its namesake has a post endorsing the Bush Administration's position (based on a Reagan-era OLC opinion) that the executive branch has no legal duty to prosecute a case of alleged congressional contempt based on the witness's assertion of executive privilege.

The question begging to be asked -- and answered -- is whether, under the OLC memo and the administration's view of executive power, the president can direct all executive branch appointees to refuse to enforce a judgment of the Supreme Court?

Perhaps Eugene Volokh or Marty Lederman at Balkinization will address this question.

And I assume the answer requires something more than a reference to Marbury v. Madison or the mention of "judicial review" or even the president's Art. II obligation to see that the laws -- including judge-made laws -- are faithfully executed.

Art. II of the Constitution, or Articles I and III, say nothing about judicial review and, certainly, nothing about a president's duty to abide by a federal-court constitutional ruling. The Supreme Court has been the final arbitor because the other two branches have allowed it to be (although some say that Andrew Jackson refused to enforce the Supreme Court's ruling in the Indian-Removal cases).

And, sure, SCOTUS rejected the Nixonian argument that each branch gets to make the final call on the constitutionality of its own actions. But that takes us right back to the unstated principle in the Constitution of judicial review.

Finally, the president's constitutional duty to execute the laws proves nothing here. This administration -- and the Reagan OLC memo -- already believe that, regardless of a duly enacted law requiring the U.S. Attorney in D.C. to prosecute alleged congressional contemnors, the president can ignore that law when the contempt arises out of an assertion of executive privilege.

Not to overstate things, but the Constitution is hanging by a thread here.

Posted by shertaugh at July 22, 2007 8:34 AM