Huck was right, Will is wrong

Hopefully Mike Huckabee sticks to his guns of late, because he is very much right on a legal issue more Americans need to understand: the limits of judges under our Constitution.  Huckabee recently complained on Hugh Hewitt’s show that any SCOTUS decision mandating that states conduct same-sex marriages would not necessarily be the law of the land, nor something the president must follow blindly.  Hugh was skeptical, and George Will even wrote a column comparing Huckabee’s position to Gov. Orval Faubus and his 1957 Little Rock confrontation with President Eisenhower.

The difference is, Huckabee is running to be president, not Arkansas governor again.  In our constitutional system, presidents are co-equals with the courts under the doctrine of “separation of powers.”  The analogy Will should have made was to President Eisenhower.  Had he simply declined to enforce the federal court desegregation orders in 1957, as his two immediate predecessors most likely would have done, that would have been the end of the story.  The U.S. Marshals, the military, the Treasury agents all work for the president, and the courts have no real power to make the federal executive do anything.  Sure, Congress can impeach and remove a president, if they think he is completely gone rogue, but that is a pretty rare threat, made only when a president is already a political goner, like Nixon in 1974.  The so-called "supremacy clause" of the federal Constitution matters only if the federal courts have the federal executive on their side of a court order.  This comes down to a matter of persuasion and political comity, not raw power.  Without the president’s assent, the justices are impotent in all matters.

Over the years, strong-willed presidents have shot down federal court action with impunity.  The Supreme Court in the Cherokee removal case Worcester v. Georgia was so sure Andy Jackson would not cooperate with their orders that they didn’t even bother tasking the U.S. Marshals with enforcement action against Georgia officials, thus avoiding a face-losing defeat.  Lincoln, during the Civil War swatted away Justice Taney’s attempt to interfere with his arrest powers in the famous Ex parte Merryman controversy.  And in more recent times, Bill Clinton defied the 11th Circuit Court of Appeals in the Elian Gonzales case to deny the boy his day in court, snatching him up with the phony pretext of a search warrant to send him back to Cuba’s island paradise.  While most of the time presidents work worth the courts, it’s pretty clear under our Constitution that they aren’t compelled to.  (Especially if it’s a matter where they feel strongly – for Jackson, it was sticking it yet again to the Indians; for Lincoln, saving the Union; and for Bill Clinton, doing Fidel Castro a solid.)

A president need not even completely defy or ignore the federal courts.  He may delimit them as well.  A good example is Nixon's desegregation policies, which are now widely admired.  When he took office in 1969, President Nixon was in favor of racial desegregation but thought the Kennedy-Johnson administrations along with the courts had made an awful mess of it.  He instituted a compromise policy between the state and local officials whereby they could fashion practical solutions with his DOJ and go back to the courts with agreed orders.  It was quietly made clear to the judges that this was a take-it-or-leave-it deal, getting good results and a lot fewer race riots.

Venturing farther along, Congress also has some remarkable powers when it comes to the federal courts.  The most salient of these involves the "exceptions clause" to the federal Constitution.  Congress may simply remove the federal courts' jurisdiction in practically any state issue, from marriage to abortion laws.

In any event, just because Justice Kennedy wakes up one morning and favors the other 319 million Americans with his wisdom, that doesn't necessarily make this law of the land.  I hope Gov. Huckabee and his advisers have the fortitude to continue this debate and not accept the noxious idea of Supreme Court supremacism.  Under the system the Founders left us, judges are there merely to apply and interpret the laws, not write their own.      

Frank Friday is an attorney in Louisville, KY.

Hopefully Mike Huckabee sticks to his guns of late, because he is very much right on a legal issue more Americans need to understand: the limits of judges under our Constitution.  Huckabee recently complained on Hugh Hewitt’s show that any SCOTUS decision mandating that states conduct same-sex marriages would not necessarily be the law of the land, nor something the president must follow blindly.  Hugh was skeptical, and George Will even wrote a column comparing Huckabee’s position to Gov. Orval Faubus and his 1957 Little Rock confrontation with President Eisenhower.

The difference is, Huckabee is running to be president, not Arkansas governor again.  In our constitutional system, presidents are co-equals with the courts under the doctrine of “separation of powers.”  The analogy Will should have made was to President Eisenhower.  Had he simply declined to enforce the federal court desegregation orders in 1957, as his two immediate predecessors most likely would have done, that would have been the end of the story.  The U.S. Marshals, the military, the Treasury agents all work for the president, and the courts have no real power to make the federal executive do anything.  Sure, Congress can impeach and remove a president, if they think he is completely gone rogue, but that is a pretty rare threat, made only when a president is already a political goner, like Nixon in 1974.  The so-called "supremacy clause" of the federal Constitution matters only if the federal courts have the federal executive on their side of a court order.  This comes down to a matter of persuasion and political comity, not raw power.  Without the president’s assent, the justices are impotent in all matters.

Over the years, strong-willed presidents have shot down federal court action with impunity.  The Supreme Court in the Cherokee removal case Worcester v. Georgia was so sure Andy Jackson would not cooperate with their orders that they didn’t even bother tasking the U.S. Marshals with enforcement action against Georgia officials, thus avoiding a face-losing defeat.  Lincoln, during the Civil War swatted away Justice Taney’s attempt to interfere with his arrest powers in the famous Ex parte Merryman controversy.  And in more recent times, Bill Clinton defied the 11th Circuit Court of Appeals in the Elian Gonzales case to deny the boy his day in court, snatching him up with the phony pretext of a search warrant to send him back to Cuba’s island paradise.  While most of the time presidents work worth the courts, it’s pretty clear under our Constitution that they aren’t compelled to.  (Especially if it’s a matter where they feel strongly – for Jackson, it was sticking it yet again to the Indians; for Lincoln, saving the Union; and for Bill Clinton, doing Fidel Castro a solid.)

A president need not even completely defy or ignore the federal courts.  He may delimit them as well.  A good example is Nixon's desegregation policies, which are now widely admired.  When he took office in 1969, President Nixon was in favor of racial desegregation but thought the Kennedy-Johnson administrations along with the courts had made an awful mess of it.  He instituted a compromise policy between the state and local officials whereby they could fashion practical solutions with his DOJ and go back to the courts with agreed orders.  It was quietly made clear to the judges that this was a take-it-or-leave-it deal, getting good results and a lot fewer race riots.

Venturing farther along, Congress also has some remarkable powers when it comes to the federal courts.  The most salient of these involves the "exceptions clause" to the federal Constitution.  Congress may simply remove the federal courts' jurisdiction in practically any state issue, from marriage to abortion laws.

In any event, just because Justice Kennedy wakes up one morning and favors the other 319 million Americans with his wisdom, that doesn't necessarily make this law of the land.  I hope Gov. Huckabee and his advisers have the fortitude to continue this debate and not accept the noxious idea of Supreme Court supremacism.  Under the system the Founders left us, judges are there merely to apply and interpret the laws, not write their own.      

Frank Friday is an attorney in Louisville, KY.