A Stitch in Haste

An astonishingly absurd op-ed in Wednesday’s OpinionJournal / Wall Street Journal, regarding the president’s constitutional duty to obey — or is it disobey? — the Foreign Intelligence Surveillance Act:

The real issue here is not whether the president is “above the law,” but rather which “law” he must see “faithfully executed” when there is a conflict between the Constitution and an inconsistent statute. His highest duty, I submit, is to the Constitution itself.

In 1803, Chief Justice John Marshall declared in Marbury v. Madison: “an act of the legislature repugnant to the Constitution is void.”

Of course, that’s not all that Chief Justice Marshall declared in that most famous of cases:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

Quoting cases out of context is, I submit, the last refuge of lawyers who know they’re wrong and are trying to pull a fast one.

Back to the op-ed:

Much contemporary debate over presidential claims of power to ignore “laws” fails to appreciate the modern congressional practice of enacting flagrantly unconstitutional statutes. This helps explain the increased use of presidential “signing statements” in recent decades.

Did you catch that? The presidential signing statement — a wholly extra-constitutional mechanism that is harmless executive dictum at best and insolent contravention of the Presentment Clause at worst — is a good thing because it helps uphold the Constitution. We must violate the Constitution in order to save it?

You will get no objection from me to the self-evident truth that there is a “modern congressional practice of enacting flagrantly unconstitutional statutes.” But the proper presidential response to such enactments is, of course, the veto.

If Congress routinely and conspiratorially passes unconstitutional statutes, then by this commentator’s reasoning, a president who signs a “flagrantly unconstitutional statute” is merely a co-conspirator in an anti-constitutional plot, pure and simple. A president who signs a “flagrantly unconstitutional statute,” and then defies it, is merely a back-stabbing co-conspirator, pure and simple. A president who signs a “flagrantly unconstitutional statute,” defies it, and then has the gall to insist that he’s doing so to “defend the Constitution,” is merely a lying, back-stabbing co-conspirator, pure and simple.

Remind me again what kind of president we have now?

As for a president who concludes that a law duly enacted before he took office is unconstitutional: he of course has the option — indeed has only the option — of suing over it. That would be the course of action that would display fealty to Chief Justice Marshall (and, of course to the Constitution). (And remember: FISA is not a “Carter-era law;” it is a Bush-era law.)

The notion that judicial review is even partially, let alone primarily or exclusively, the province of the executive branch as suggested in this op-ed would be flunk-the-final wrong in a high school civics class, let alone in a full-fledged jurisprudential analysis among legal scholars. To suggest that a renegade president willfully ignoring duly enacted laws is not only proper, but also a noble defense of the Constitution itself, is so shockingly preposterous as to make one wonder whether the proponent of such a thesis might not actually believe what he is writing and is instead testing the pliability of a passive audience to an ever-increasing volume of shrieking nonsense — comparable to the infamous Milgram experiment of the 1960s.

Either way, scary thoughts indeed in this Halloween season.