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A rad idea or two

Okay, legal eagles, prepare to be shocked. This is a little exercise in fantasy legal-land for my education.

To begin with, what would happen if some state actually did enforce a law flatly at odds with Roe v. Wade, Doe v. Bolton, and all the rest? You can parse out the exact details of the hypothetical state law here in a number of ways. Rather than take time to do that, I'll just say that we should surmise that at the end of the process--in which the executive, judicial, and legislative branches of the state all had to cooperate--some abortionist has been tried, sentenced, and is in jail for performing an abortion that Roe and company "don't allow" states to prohibit.

What happens? Well, obviously, at some point along the way the abortionist's lawyers bring suit in federal court, and I think we can assume that the federal court issues a court order to the state to release him. Suppose the state officials refuse. What then?

I'm guessing (but this is one place where I'll accept well-supported correction) that the federal court orders federal marshals to go to the state and enforce the court order that he be released. Correct?

If that's correct, then try this question out for size: What would happen if, at that point, the President of the United States ordered the federal marshals not to go? After all, enforcement powers are supposed to lie with the executive branch, are they not? It's not as though the judicial branch just has a standing array of guns at its direct disposal, is it? Would it or would it not lie within the powers of the President to order that no such court order be enforced? If the court doesn't order the marshals to go but expects the President to do so, then things are even easier. He can just refuse to do so.

Wouldn't it be interesting if a candidate for the Presidency promised to do one or the other of these and, in effect, to nullify Roe v. Wade by refusing the power for its enforcement against the state?

Probably you don't like that idea. Probably even some of my more conservative commentators don't like that idea. Okay, how about this one, which would require more people to be involved. Congress controls expenditures. What if Congress wrote into a budget bill an express provision that no funds could be used to enforce any federal court orders to states to release any abortionist from jail? Presumably the federal courts would declare such a bill unconstitutional, but what if Congress ignored that and refused to pass a new bill taking out that language?

Just a few, shall we say, creative thoughts on overturning Roe from the federal level, but without passing a constitutional amendment.

Comments (46)

Didn't Andrew Jackson refuse to let Federal Troops enforce a Supreme Court ruling in Georgia? "He has made his decision, now let him enforce it" - is that the quote?

Graham

I have thought about that scenario. I think that probably the state officials would be charged some federal law. I don't know which federal law, offhand, but some office in the FBI or Justice Department, looking 24-7, will eventually locate a law that can be shoehorned into the situation as being violated. (Like abortion protesters being charged with RICO violations.) At that point, presumably either FBI or federal marshals will be sent out, perhaps with a federal subpoena, to arrest someone like the state attorney general, or the state prison warden, let's call him Bob. Then you will have a pretty severe pissing match between state and federal personnel. Since there is a decent chance that Bob will be convicted and sent to federal prison, the rest of the state apparatus won't want to just hand Bob over to the feds. Either the state has to be ready to surround Bob with state militia and tell the feds literally "over my dead body", or the feds will in fact get Bob, and will at least try him if not convict him.

The crux of the matter would be this: would the governor be willing to back up his stance by calling out the state Guardsmen? And would the federal FBI / federal troops refuse to fire on their own fellow citizens who are obeying their own governor? It's a road to civil war, or at least some kind of armed insurrection.

That does NOT, automatically, mean this is a bad idea. There are some things worth going to war over. This might not be one of them, but there ARE things lurking in the background that ought to make us think of trying this scenario.

In this scenario, Tony, I think the President (and presumably the US attorney general etc) is on the State's side, and refuses to send in Federal Troops.
Is there an historical precedent for this? I'm not defending Jackson, and this was some time ago, but didn't one President manage to ignore one Supreme Court decision?

My knowledge of US history is sketchy...

Graham

Tony, even if they didn't find a federal law, as long as the federal govt. is on the abortionist's side, they can (I think) just do it with a court order and federal marshals.

What I'm wondering is, to what extent could the President prevent that if the President were on the state's side?

For example, they sent in federal marshals to desegregate the schools forcibly (I think in enforcement of a court order), but in that case the President was definitely on the side of federal court order.

Naturally, states want to avoid any sort of actual guns vs. guns scenario with the federal government, and that's one (though only one) small part of the reason why no state has been this defiant. Could a President opposed to Roe remove that fear of a potential shoot-out?

Looks like it was Worcester v. Georgia, Graham, and La Wik says that the Jackson quotation is fictitious, FWIW:

http://en.wikipedia.org/wiki/Worcester_v._Georgia

Evidently there was some face-saving all around, and the court didn't actually try to get anyone to enforce the order (which _did_ involve releasing someone from prison), including federal marshals.

I looked up the federal marshals, and it looks like, though appointed by the President in the first instance, they are somehow affiliated with particular court districts. Does this mean they are solely answerable, once appointed, to the judges--that they really _have_ been turned into a kind of judicial army of enforcers over which the executive branch has no control? Interesting question.

Thanks Lydia

Shame about the Jackson quote.
Interesting that the Court usually asked for rulings to be enforced by Federal Marshalls, but did not in this case.

So Jackson, Van Buren and the State of Georgia never really acted illegally?

Graham

It doesn't look like Van Buren comes into this. He wasn't President then. Jackson evidently had nothing he was asked to do in the matter. Georgia did in a very leisurely fashion eventually comply with the otherwise unenforced court order to free Worcester. According to the Wiki article (I haven't researched the case otherwise) Georgia saved face by pardoning Worcester in exchange for his agreeing not to go back to the Indian reservation anyway, which was the crux of his disobedience to the Georgia state law that landed him in jail. Whether Georgia acted illegally or not depends entirely on how you regard the legality of dragging one's heels in complying with a federal judicial order backed only by the court's opinion on a question of constitutional interpretation. I'm not myself inclined to apply the term "illegal" too freely to that. After all, my main post more or less openly wishes that states would start doing something even more blatant than that--openly defying federal court orders based on court interpretation (crazy court interpretation) of the Constitution.

The scenario you describe, Lydia, is what legal scholars and historians refer to as a "Constitutional crisis." The Constitution is not really drawn in such a way as to provide immediate solutions to overreaching by one branch or another: the checks and balances are designed to discourage and correct lawless activity, but do not anticipate having to stop it in its tracks.

It also implicates several unanswered (or incompletely answered) questions about the structure of the federal system. For instance, what is the relationship between the president and the various civil-service employees in the executive branch? According to the "Unified Executive" theory, the president has all of the power granted by Article II and nobody else has any: so anyone working in the executive branch takes orders from him, full stop. The Unified Executive theory is almost certainly correct, but certainly not universally accepted. Suffice to say it is not at all clear what individual Deputy Marshals understand their chain of command and ultimate responsibility to be in doubtful cases.

The criminal statutes in this case are not hard to find: 18 U.S.C. §§ 401--402. The president, of course, is not subject to judicial process except via the impeachment procedure. I'm not an expert on criminal contempts, but I will say that "presence of the court" language in § 401 has been at times interpreted very, very broadly, so as to encompass things happening outside the courtroom.

A few other things to look at in this context: the Anti-Injunction Act, 28 U.S.C. § 2283; 28 U.S.C. § 1442 (providing for federal jurisdiction over all prosecutions of federal officers).

P.S. Re: the U.S. Marshal Service

The United States Marshal in an agent of the Department of Justice: he and his deputies answer to the Attorney General and the President. There is a Marshal, to the best of my understanding, for each federal judicial district. Each Marshal, in turn, has numerous deputies. Their function is to enforce judicial decrees and protect United States judges. It would be difficult for them to perform these tasks if they were not organized along the same lines as the district courts. But that does not mean, as I alluded above, that their orders come, in the final instance, from the judiciary.

Marshals perform a lot of functions that people have probably seen: they provide all of the security in federal court houses; they serve summonses, writs, and subpoenas issued by federal courts; they have guard, transport, and recover persons and things in the custody of the federal courts. In most of these functions, they in essence follow the judiciary's orders, but in theory only because they have been directed by the executive to do so as a matter of course.

A quick googling indicates that the statute in question has something to do with being in contempt of court, is that right, Titus?

It's clear that I was tacitly reaching for the "Unified Executive Theory" in my ideas, and that my understanding was the same as what you say here:

In most of these functions, they in essence follow the judiciary's orders, but in theory only because they have been directed by the executive to do so as a matter of course.

All of that would seem to indicate that, on this theory, the President could do what I envisage in the main post. Of course, the question then arises whether the marshals would see it that way if the federal court disagreed.

Given that there _is_ such a theory, it would at least be possible (and to my mind extremely interesting) for a Presidential candidate to refer to such a theory and to indicate that he would be prepared to take this tack if he were elected and if a state arrested an abortionist.

The howls, of course, would be heard from coast to coast even at the suggestion, but at least he would not simply be making up a power out of nowhere.

I'm guessing (but this is one place where I'll accept well-supported correction) that the federal court orders federal marshals to go to the state and enforce the court order that he be released. Correct?

Or they'd federalize the National Guard. My guess would be that, not the marshals route, if the state presented a unified front. There's no point in sending in the marshals when the possibility that the state police would intervene to protect the elected government exists. Most state police forces are large enough to be a serious threat to such an operation if they agreed to use deadly force to protect the state officials against arrest by federal agents.

If the National Guard refused to follow orders, they'd just send in the the Army or Marine Corps depending on whose base was closest.

Or they'd federalize the National Guard. My guess would be that, not the marshals route, if the state presented a unified front. There's no point in sending in the marshals when the possibility that the state police would intervene to protect the elected government exists. Most state police forces are large enough to be a serious threat to such an operation if they agreed to use deadly force to protect the state officials against arrest by federal agents. If the National Guard refused to follow orders, they'd just send in the the Army or Marine Corps depending on whose base was closest.


It still goes back to the President, as all the of the enforcement bodies you mentioned are under the authority of the executive. If POTUS ordered the marshals, Guard, and military to stand down, the court's ruling would be a dead letter unless a commander or unit broke ranks and sided with the court. As Titus said, it would be a full-blown Constitutional Crisis.

Or they'd federalize the National Guard.

Only the President can federalize the National Guard or deploy units of the regular military. In Lydia's example, the President is helping instigate the crisis, not giving those sorts of orders.

It's possible, of course, that Lydia is positing a situation that Hamilton and Madison envisioned, even if the Constitution does not articulate precisely what to do. Recall the statement in the Federalist that the Judiciary lacks both "force and will." It is entirely possible that the Constitutional solution is merely that the President does as he prefers and the people address the quandary in the next election.

The "crisis" (and it would be such today) may be more of Marshall's making: if anyone is the father of the judiciary qua Great Lawgiver, he is. The belief that the law and everyone's obligations under it are whatever the Supreme Court says they are disrupts the parity between the branches because the institutional checks against the Court are comparatively weak. (While it is, as emphatically as Marshall said, the realm of the Court to say what the law means, Marshall's formulation about "what the law is" has had an unfortunate history that has revealed its imprecision.)

But suffice to say that if things like that start happening, given the way everyone thinks the system is supposed to work today, have your bug-out bag and extra ammunition ready.

Only the President can federalize the National Guard or deploy units of the regular military. In Lydia's example, the President is helping instigate the crisis, not giving those sorts of orders.

The President could not refuse to uphold such a court ruling in such stark terms without either a supportive Congress or a Congress cowed into submission by a President willing to bring the full might of the federal law enforcement system down on the head of any member of Congress with even the slightest whiff of corruption. If the President were in any other situation, he'd be out within a month by impeachment.

Yes and no. That is, if he had even a modicum of support in Congress, that support could bollix up the works of any attempt at impeachment for months and months. With luck, by the end of that time he could have muddied the legal waters sufficiently to make it look like any number of less imposing sorts of problems. We have precedent for THAT nonsense, not 15 years ago. What is the meaning of "is", anyway?

Or, he can shoot for other arguments: the 3 branches are co-equal, and so the president is ALSO required to follow the constitution according to the advice of his conscience. If it cannot be (by definition, supposedly) "bad behavior" for judges to render decisions that are controversial and problematic merely because that interpretation confounds natural moral law and cannot be found in the constitution, neither is it for the president to land on his own take and following it in directing the administration. Remember, his role is merely to NOT take action (via his administration), not to positively go out and take someone prisoner.

It would result in a constitutional crisis, but in my view this is long overdue, ever since the Supreme Court claimed sole right to interpret the constitution and be its final arbiter. Congress should have drummed out quite a number of judicial delinquents over the years, and since they haven't it falls to the executive to choose to act with its own proper powers in the balances and checks. One of those powers is to act, or not to act, in pursuit of a so-called law.

Or, he can shoot for other arguments: the 3 branches are co-equal, and so the president is ALSO required to follow the constitution according to the advice of his conscience. If it cannot be (by definition, supposedly) "bad behavior" for judges to render decisions that are controversial and problematic merely because that interpretation confounds natural moral law and cannot be found in the constitution, neither is it for the president to land on his own take and following it in directing the administration. Remember, his role is merely to NOT take action (via his administration), not to positively go out and take someone prisoner.

Tony, I couldn't have said it better.

Besides, under the highly improbable circumstance that this President said he'd do exactly this thing while running for office and that he was elected under that campaign banner, is Congress really going to be likely to impeach him and remove him from office for following through?

I mean, while we're fantasizing...

To begin with, there's no need to talk about marshals. All the President has to do is:

1.) State that he no longer believes the Supreme Court is fit to continue in its tradition of judicial review, which has not even a penumbra in the Constitution. Such could be deemed political suicide, but it is within his power to do.

2.) Pack the Court like he's FDR.

3.) Remind the members of the SCOTUS that the Constitution has no provisions for their pay, benefits, location and conditions of the Courthouse (like an abandoned warehouse in the bad part of DC), nor the employment of a support staff or Secret Service.

4.) Arrest one of the Justices on child porn charges. It doesn't matter if the case is thrown out, or that it was an "accident". That justice will never be able to show his face in public again. Other justices will "get the point". Of course, he could just get the IRS to audit one of them. There's bound to be a law broken somewhere in the tax code.

There are probably plenty of other nasty things a president could do in using or even abusing his power.

Now here's a real doozy. Thirty-eight states pass a law stating no confidence in the Federal Government.

Other justices will "get the point". Of course, he could just get the IRS to audit one of them. There's bound to be a law broken somewhere in the tax code.

And then his opponents in Congress will file a charge of impeachment for the crime of malicious prosecution against the President the moment that the DoJ takes action since it'd be an obvious perversion of justice (politically-motivated prosecutions are at best, tenuous in their legality even if a crime was committed).

Patrick, I was trying to talk about something a President with a conscience could do. Filing false charges does _not_ fall within that description.

As for packing the court, that's pretty much impossible nowadays and a long process. Of course, pro-life candidates do sometimes promise if they get the opportunity to appoint justices who will be originalists or whatever, but I was looking for something a little more radical. "Packing" just doesn't seem to be an option, unless a bunch of justices die or retire on a particular President's watch.

Oh now you add in the conscience thing...

Packing the courts is easier than that, but it was politically damaging even to FDR. Essentially, since there is no Constitutional provision for the number of justices serving on the Supreme Court, or any appellate courts, etc., the President and Congress simply add more justices, making SCOTUS 11 members for instance.

Another, possibly more realistic way the constitutional crisis could arise would be if Congress, pursuant to its authority simply removed the federal courts' jurisdiction over the issue, and then passed laws overturning Roe.

At common law, courts always have jurisdiction to determine whether they have jurisdiction, so I'm sure that some court would find Congress' action defective and then overturn the new laws, at which point it would again be in the executive's lap.

Lydia, I'll see your President not enforcing a Supreme Court order, and raise you a President enforcing order and justice as he personally sees fit!

Lydia, I'll see your President not enforcing a Supreme Court order, and raise you a President enforcing order and justice as he personally sees fit!

Not quite sure I follow--in particular, I don't know if this is intended to be a sarcastic or satirical comment or not.

I, in fact, _don't_ advocate a President's simply making up laws as he goes along without the lawful input of Congress and enforcing them. That really _would_ be a one-man rule and a complete rejection of the constitutional order of the country.

The deal with Roe, in my opinion, is its own utter lawlessness as a self-evidently lying and fake "interpretation" of the Constitution. It therefore deserves no deference from the other branches of the government.

Another, possibly more realistic way the constitutional crisis could arise would be if Congress, pursuant to its authority simply removed the federal courts' jurisdiction over the issue, and then passed laws overturning Roe.

CJ, I grant that this is possible. I don't see why you would call it a constitutional crisis, though. The constitution clearly gives this power to Congress (to remove a matter from judicial review), and Congress has already exercised this power in other domains before.

It would certainly be a politically charged situation. Even without formally "overturning" Roe, various states would immediately pass new laws that skirt the penumbra, if not the umbra, of Roe and start enforcing them. So for law and order and the fallout, the first rung of consequences would simply be that certain abortion laws would begin to be enforced in those states that want to enforce them, and the rest would not enforce such laws. Then there would be a heck of a lot of political maneuvering among those up for offices in the various states, pushing for or against the regime in that specific state. There would be problems cropping up, but they don't make it a constitutional crisis.

It therefore deserves no deference from the other branches of the government.

The judicial issue is that although stare decisis is a valid principle generally, it is not the supreme valid principle that trumps all others in judicial work. The judges (and other arms of government) should recognize when they have laid an egg, and should admit that they need to undo the wrong decision and set a new formula in place. The social problem in this case is that most people, including most judges, want to retain the _possibility_ of abortion without retaining the completely wide-open scope of Roe-plus-Bolton.

I am back to my proposed amendment to the Constitution: it takes 3/4 of the states to amend the Constitution. It should take a smaller subset of states, but still in excess of a mere majority, to be able to tell the federal government "you screwed up, you exceeded the powers we states gave you." A supermajority of 60%, or maybe 66%, of the states should be able to do it. It should not take as many states to enforce the Constitution on the feds as it does to amend it, because the law as it already stands has preference over any change. When the feds change something in practice, some new way of acting that wasn't in force before, (claiming that it is valid under unchanged existing laws), that new change should not have as much presumptive force as the old standard that the feds are upsetting, and therefore it should not take a full 3/4 of the states to rein in the federal entity's attempt to make a change.

It is clear that the courts do not have sufficient check on their power. I think that check belongs in the states, but they don't have any avenue of reining in the courts.

As Andrew Jackson said, before shipping some of my relatives out West of the Mississippi, "Marshall has made his decision, now let him enforce it."

Well, shoot. Wouldn't you know that that Jackson quote was (allegedly) too good to be true?

Tony: "Or, he can shoot for other arguments: the 3 branches are co-equal ..."

That's the fable we're all taught in school; it isn't true. Congress is supreme and the federal courts -- all of them -- are creatures of Congress.

Tony: "... and so the president is ALSO required to follow the constitution according to the advice of his conscience."

That is true, at least in the short term. Ultimately, it is up to 'The People' and the States, not to the Black Robes, to answer Constitutional questions.

Ilion, I agree that there is a valid way to read that the lower courts are creatures of Congress. How can you say that of the Supremes, though? That court is written into the Constitution. Nor may their pay be diminished during their tenure. Sure, they would be greatly hampered by Congress refusing to vote them a budget for staff and such, but that's a "how to function" issue, not a "whether they exist" matter. Also, once a lower court exists, Congress cannot get rid of it simply by not voting to extend its validity: once in place, Congress can only get rid of those lower judges by impeachment. Unlike the CBO, or Hill committees which can be dissolved at a moment's notice by Congress, the courts have protections from Congressional whim in the Constitution.

As to the Congress being supreme: Congress holds the purse strings. But if the President refuses to actually spend money that Congress allocates because he doesn't want to carry out some administrative action, he can refuse. Although Congress may be the engine that is the source of motive force, the President is the transmission that converts the energy into motion. They are both necessary. The fact that the Constitution puts checks on Congress (as well as the President and the SC) means that no one branch is absolute, so "supreme" can only be true in a qualified, contained sense.

The President cannot impound funds anymore without congressional approval thanks to the Impoundment Control Act of 1974.

I don't see why you would call it a constitutional crisis, though.

Tony, the congressional act wouldn't create a crisis. It would be the (hypothetical) action of the court weasling out of the removal from judicial review.

If a state outlawed abortion (or the President took unusual steps such as those postulated by Ms. McGrew), any woman of means who wanted a legal abortion would just travel to a jurisdiction, such as Canada, where they could obtain one. This is precisely what is happening now with respect to euthanasia. Outlawing abortion only affects those who can't afford ex-juris abortions. Forcing the underprivileged to have children they don't want is a recipe for societal disaster. Be careful, you might just get what you wish for.

The President cannot impound funds anymore without congressional approval thanks to the Impoundment Control Act of 1974.

Mike, maybe I misunderstand. The president can tell his administration how to carry out some provision of law, including by not to actually DO the actions the law envision, if the DOING is just administering law (rather than breaking a law, important difference). If the law says it is illegal to jaywalk, and Congress sets up 100 million "Jaywalk Initiative", as a separate unit of the Transportation dept. to study jaywalking, the President can tell his Secretary of Trans: go ahead and put the "Jaywalking Initiative" on the organizational charts. Do not spend any time operationally on finding persons to fill the posts until the following 300 priorities are complete: 1. fix the bridges, 2.... You see what I mean? The pres isn't violating a law and he is not impounding funds, he is merely prioritizing his administrative policies. Furthermore, just as the COngress can (and does) tell an administrative unit "you may not spend a dime on enforcing policy X you just announced", so also the president can tell his justice dept "you may not allocate one hour to locating, investigating, or prosecuting offenders of X law."

Ah, well, Atheist Missionary, people of means also travel to Thailand to have sexual intercourse with children. I guess that means our laws against that are also futile and might as well be scrapped.

By the way, that comment is rather humorously unlikely to move me given this tiny slice of my personal history: I was conceived out of wedlock pre-Roe by a young woman without a job who was in California at the time. She would have had the means to travel to Mexico, where the laws against abortion were not enforced. She heard, however, "stories" from other young women among her friends who had done so--evidently conditions weren't all that wonderful in Mexican abortion facilities--so she gave up the idea of abortion. She placed me for adoption at birth. The laws against abortion in the U.S., coupled with the conditions that led to negative stories about abortions in Mexico, saved my life.

Forcing the underprivileged to have children they don't want is a recipe for societal disaster. Be careful, you might just get what you wish for.

Subsidizing their having children is a much surer recipe... Oh wait!

Lydia: Yes I was being serious (about the president enacting and enforcing by personal fiat), but was unable to maintain my end of the conversation (being among the 53% and all). The King is, always and everywhere, the (positive) law. The myth, the illusion, that he too is under some "Constitution" (law) is the leading cause of our troubles. I do not say that getting back to the letter of the constitution would not be an improvement. It would. I actually support Ron Paul. But it would only get us back to a similarly unstable point. A republic governed by "the people" can only be as good as its people. America has gotten along fine for so long only because it had an astonishingly good people. Unfortunately, that is what has changed over the last century. It presents a problem then that cannot be fixed by law. The republic must be scrapped. Either that, or a new and better people needs to found. And the latter solution, I fear, will be much more bloody than the former.

Dear me, Steve N. You seem to have turned into a Mencius Moldbug clone. Suffice it to say, I'm not buying the idea of (hopefully beneficent) tyranny as the answer to our woes. I'll just leave it at that.

Another, possibly more realistic way the constitutional crisis could arise would be if Congress, pursuant to its authority simply removed the federal courts' jurisdiction over the issue, and then passed laws overturning Roe.

CJ, I grant that this is possible. . . . The constitution clearly gives this power to Congress (to remove a matter from judicial review), and Congress has already exercised this power in other domains before.

This would be more problematic than it appears. There is scholarly authority for the proposition that Congress cannot deprive the judiciary of jurisdiction necessary for the vindication of fundamental rights. A federal court would latch onto those theories, rule the jurisdiction-stripping statute unconstitutional, and then strike the statute overturning Roe. Fun, fun, fun.

Also, once a lower court exists, Congress cannot get rid of it simply by not voting to extend its validity: once in place, Congress can only get rid of those lower judges by impeachment.

This is not, strictly speaking, true, I believe. There is actually precedent, related to the reorganization of the Circuit Courts and the elimination of territorial courts, but I don't remember precisely what it says. The answer, however, I believe, is that Congress can eliminate a court, but would have to continue paying the judge's salary for life, even if no replacement court is created. What Congress could not do in all likelihood is eliminate a court and then create an immediate, identical replacement as a mechanism for evading the life tenure of the judge.

Long story short, the whole system is a cluster. I blame Marshall and Lincoln, not to mention that clown Warren. Calhoun should have gotten a nullification amendment adopted instead of just insisting that it existed.

I blame Marshall and Lincoln, not to mention that clown Warren. Calhoun should have gotten a nullification amendment adopted instead of just insisting that it existed.

Yes, I go double on that. Marshall and Lincoln set up huge problems for us, and Warren was a disaster. And I have been advocating a nullification amendment here for 2 years at least.

A federal court would latch onto those theories, rule the jurisdiction-stripping statute unconstitutional, and then strike the statute overturning Roe. Fun, fun, fun.

Titus, is there any understanding of the impeachment prerogative, and the "good behavior" clause protecting judges, that would give Congress the proper scope to impeach judges that damage the body politic with bad / evil "interpretations" of the Constitution that are far from actually found in the Constitution? It is certainly not the usual explanation of "good behavior" that is given, so I feel like it is probably wrong, but SOME of the judges ought to have been (a) not consented by the Senate, or (b) impeached after a few of their idiotic opinions (like, "air and rocks have rights" opinion in a 9th Circuit court). Is there some way to thread a course between pure partisan getting rid of judges that disagree with your politics, and leaving in place judges that can't follow a syllogism when it slaps them in the face just because their behavior outside the court is not shameful?

Titus, is there any understanding of the impeachment prerogative, and the "good behavior" clause protecting judges, that would give Congress the proper scope to impeach judges that damage the body politic with bad / evil "interpretations" of the Constitution that are far from actually found in the Constitution?

Chief Justice Rehnquist actually wrote a book (and a good one at that) on the topic. Rehnquist argues that the acquittal of Samuel Chase on impeachment for essentially those grounds effectively established that the content of a judge's decision making was not grounds for impeachment. The failed impeachment of Andrew Johnson confirmed that the judgment of a government official could not constitute an impeachable offense.

Inferior federal judges have, of course, been impeached since, but I am not aware of any who were impeached for anything other than actual felonies (in one particularly notorious case, a district judge was actually drawing a judicial salary while in prison for several money-laundering or embezzling offenses). I don't know where one would look for a comprehensive taxonomy of such charges, but it would be interesting to see.

As an empirical matter, Rehnquist is certainly correct: the Chase and Johnson impeachments were contentious and momentous affairs, and neither was a particularly strong case. Like in other places in history, the advocates of a particular theory shot their wad in a manner that left little room for their successors to make similar arguments. As a theoretical matter, it is not at all clear that egregious decision-making should not be impeachable. Surely if the Framers thought that impeachment was an effective check on the judiciary, they had to have believed that it was available for something other than the commission of common crimes.

Surely if the Framers thought that impeachment was an effective check on the judiciary, they had to have believed that it was available for something other than the commission of common crimes.

That's exactly what I was thinking. If impeachment is ONLY about crimes off the bench and not bad judgments from the bench, then there isn't any kind of effective check on judicial power. This seems contrary to the whole scheme of the 3 arms having governmental powers split up.

I have often thought that we do need something a lot like Mike T's proposal: a way to mandate that Congress take up an issue and put it to a legislative vote. There are lots of issues that are much more suited to the give and take of making a law than what the judges try: (attempted) setting forth of so-called distinction of principle where it is all gray area, and the principle is pretty arbitrary. When you let judges stick their oars in to create a "standard" that is completely inflexible as well as arbitrary, you short-circuit legislative methods that can be fixed readily when then don't work.

Ms. McGrew, your analogy falls face flat. I'm not sure how the US legal systems works but Canadians who travel to Thailand for child sex face prosecution in both Thailand and Canada for that offence. The fact remains that whatever states do with their abortion laws, American residents will be welcome to travel to Canada and receive safe abortions. That is an undeniable fact.

Forgot to add (re: your personal anecdote), South African philospopher David Benatar would argue that you would be far better off to never have been. I'm not sure if you've read his Better Never to Have Been: The Harm of Coming into Existence (Clarendon Press, 2006). A radical, shockingly counter-intuitive thesis and intriguing read.

That's real charming and all, but to be even marginally relevant, the title would have to be "Better to Have Been Torn To Pieces While Very Young: The Harm of Escaping Early, Violent, Deliberately Procured Death." At which point, it would obviously be the writing of a lunatic, hence, ignorable.

But why can't the title be "Better To Have Never Been David Benatar and If You Have the Grave Misfortune of Being Him, Better to Have Never Been Published"? See, the thing is, even someone as unfortunate as David Benatar has the capacity to ensure that he doesn't publish, thereby doing himself AND the world much good.

Much better if he were to have written, say, a 36 volume opus titled "The World of 'Q' and the Important Place of the Article 'The' In It". He still wouldn't be published, and that would be infinitely better than what we have now.

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