UPDATE: Tom Baugh has published this column about this issue, here. He and I are 180 degrees apart on the function of the Supreme Court. Tom states in his piece that striking down unconstitutional laws is the High Courts most important role. I say the Supreme Court, and the Judiciary in general, hijacked the Framer's Intent by packing Federalists into the Judiciary, consolidating and asserting their "Authority" to themselves in Marbury v. Madison.
The Framer's never, for a single moment, envisioned a FedGov in which nine robed men and women could decide for the republic what was Constitutional and not.
If you do not yet know where you stand on the issue, I hope you figure it out soon.
There will be a test, and it will be a hardcore Pass/Fail.
Thomas Jefferson: At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account.
~~
A Federal Appeals Court has given the DoJ 2 days to submit, in writing, whether or not the Executive believes the Judiciary has the Authority to overturn an unconstitutional law.
This strikes to the fundamental power of the Judiciary, folks. This is where the Enemies of Liberty too often take refuge, and have since Marbury v. Madison, to reach for Federalism and beyond.
You can count on this DoJ to concur with the Court, I would suspect, to further declare the matter to be "settled", so that generations of Courts in the future may continue to act in their interests.
The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.
The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.
Smith then became "very stern," the source said, suggesting it wasn't clear whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.
It is an interesting dynamic to watch. How fascinating would it be for a Left President to deny the fundamental power of the Supreme Court while they consider his centerpiece legislation?
This is a potentially Blue on Blue nightmare...for the Blue.
Here's the story.
Kerodin
III
