WHOA, NELLY!! OR, WHEN AND WHY BUSH SHOULD "OVERCOME" A BAD RULING BY THE COURT!

Eugene Volokh wants to school Dick Gephardt on the duty of presidential deference to judicial views of the Constitution. Here is part of his post.

Do we really want a President who thinks that the President has the power to overcome "any wrong thing the Supreme Court does" using an Executive order? I know lots of people think various actions of the Bush Administration are unconstitutional; I too disagree with some of the Administration's positions, for instance on the alleged power to detain all unlawful combatants (including U.S. citizens captured on U.S. soil) with no judicial review. I hope the Supreme Court agrees, and decides against the Administration. But I'm pretty confident that if the Supreme Court does so decide, this Administration will comply with the Supreme Court's order.

Gephardt and Kucinich are promising that they'll flout those orders. Seems to me that they should be taken to task for this, and severely.

Sounds good, right? President Bush wouldn't defy the Court, would he? And no one would actually defend such an action, would they?

Not so fast. First, we would need to imagine some more detail about the hypothetical case and the hypothetical ruling to understand what options President Bush might have if he wanted to reasonably claim that he was using executive orders to "overcome" the bad thing that the Supreme Court would have done, in his hypothetical view. No such detail is provided here. It's hard to think about these kinds of cases in the abstract. In an actual situation, however, smart pols and ambitious, young lawyers in the White House could probably be counted on to think of an appropriate reaction that "overcame" the decision in an actual case challenging the President on national security.

But, secondly, it probably never will. Plaintiffs in terrorism-related cases (where the Executive branch invokes national security concerns) are having a hell of a time trying to get their cases up to, let alone past, the circuit courts. The Supreme Court is not going to hear a challenge to the 4th Circuit's rulings in the Hamdi litigation, for example. The reasons why are partly political, to be sure. Even if the judicial "liberals" on the Court wanted to take these cases -- and they might not -- they'd probably have to reckon with the unlikelihood of the success of their preferred positions. In addition, and more fundamentally, courts generally defer to the executive during wartime. Steel Seizure (the Court challenging Truman on the seizure of steel mills during the Korean War) and Merryman (the attempt by Taney to challenge the detention of John Merryman during the Civil War) are the exceptions, not the rule. Think of Dennis, Korematsu, Quirin, etc. (and read, generally, Sanford Levinson's essay "What is the Constitution's Role During Wartime," here).

It's worth remembering why Steel Seizure and Merryman are the exception, not the rule. In Merryman, the executive branch simply ignored the Court. And the Court has to know the following: if President Bush is serious about the dire consequences to national security that could result from, say, lawyer-induced silence on the part of terrorist suspects, then he would be remiss if he simply complied with a hypothetical Supreme Court ruling directing him to provide the suspect with a lawyer. Perhaps the President could even direct the suspect to be shipped off to Guantanamo, to "overcome" the harm that the Court would have (hypothetically) wrought -- again, this option depends partly on the particularities of the actual case, to be sure. Even so, thinking through the damages to the Court that could result from such (arguably justified) Presidential resistance, politically smart Supreme Court Justices are not going to put the President in that situation. And they don't have to acknowledge this chain of prudential reasoning in public: they can simply speak of some version of "deference to the judgment of the executive," as the 4th Circuit did in Hamdi, even though in Hamdi all the executive did was hand the court a piece of paper and tell them that somebody named Mobbs was telling the truth about Hamdi being an "enemy combatant." End of story for Hamdi, probably.

Moreover, even if the SC went wild and attempted to challenge the President by commanding him to do something that he claims would irretrievably damage national security, the President shouldn't be impressed with "parchment barriers" from precedent (Cooper v. Aaron, say) that seem to establish judicial supremacy. He should resist. If he's serious that national security would be damaged if he followed the Court's ruling, then he would be negligent in his duty if he allowed that damage to happen just because nine (or five?) folks in robes told him to. The Court can't do anything about it aside from throw paper at him. Maybe they could talk to the Chicago Tribune as well, for example, but that's hardly a policy that could compel the President to follow the ruling. In such a situation, he would ultimately have to appeal to the public and to Congress and prepare for a defense in an impeachment trial in the Senate.

In such a situation, we'd hear a lot of bold rhetoric about the "rule of law" and a lot of attempts to establish judicial supremacy as a principle higher than national security. A lot of this rhetoric would come from Democrats. And on the other side of the aisle, someone, inevitably, would defend a departmentalist view of constitutional interpretation. Republicans would re-discover their "liberal court"-bashing rhetoric, and they'd find interpretations that would bolster the President's cause: in the Federalist -- perhaps in Madison's statements about the ineffectiveness of "parchment barriers," and in his statements about the independence of the executive; they'd give Marbury a working over, and note the relatively weak textual foundations for judicial supremacy; they'd read more about Lincoln's defiance of the Court and his other questionable actions -- thus allowing them to reclaim the title of "Party of Lincoln"; they'd probably call Stuart Buck to give this kind of testimony. Maybe they'd even call political scientists to testify, although I doubt it. George Will would wax poetic about the President's sacred duty to protect the nation. Rush Limbaugh would whip up his followers with harangues on something like the "real role of judicial review," on how the Court had overstepped its bounds, and on how the framers -- properly understood -- didn't intend the executive branch to defer to the judicial in questions of national security.

(Maybe I should take a few months off and actually write this novel!)

In the narrowest sense, all of this just goes to show that Volokh's hypothetical doesn't take him as far as he would like. Presidents have much wider political and constitutional lattitude in areas of national security than (perhaps) I would like, but it's easy as pie to spin out a scenario in which the President would seek to "overcome" a bad Supreme Court ruling.

I don't want to be unfair here, but it seems to me that the real issue here for Volokh isn't the actual set of limitations on Presidential power, but a) the fact that Gephardt was talking about affirmative action, something Volokh opposes (and I'm not so sure on), and b) the fact Gephardt was talking to the Rainbow/PUSH folks and can thus be accused of pandering to a liberal and minority audience, as he quotes Instapundit as claiming. But those are much more subtle questions than whether or not Gephardt's claim was "ridiculous" or evidence of a deficient understanding of the constitutional limits on Presidential power, "constitutional illiteracy," or any of the other simplistic things I've read in the blogosphere on this subject. Framed as a discussion of whether or not Presidents can attempt to "overcome" Supreme Court decisions that they strongly disagree with, the answer has to be yes. And we should want Presidents who are willing to do so, albeit judiciously and not recklessly. Whether this would be the case with all imaginable executive challenges to affirmative action per executive order, my answer would be no, but if the President disagrees and is willing to pay the political price, let him or her go ahead and do it. The sky is not going to fall.

In a later post, Volokh limited his attack on Gephardt's claim to the following:

if Gephardt really does take the view that Supreme Court decisions about state laws should be reversible simply by the President issuing an Executive Order, that's fine

I don't think this is a fair representation of what Gephardt said, however. And as the quote above indicates, Volokh's original attack is much broader.

MORE: See also the Curmudgeonly Clerk's post, here, with some helpful links!

MORE: Steven disagrees with me (and probably thinks I'm a little crazy; his post is thoughtful and worth a look!), and the Clerk thinks I'm on to something.