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Bar News - September 16, 2011

Morning Mail: A Different Answer on Executive Power

In her Presidentís Perspective, "Could you pass the test?" (August 19, 2011 issue of Bar News), Jennifer Parent herself fails the test when she cites as an example of other peopleís lack of understanding of our Constitutionís system of checks and balances and separation of powers that "more than one-third of American adults believe that the President of the United States may disregard a US Supreme Court ruling."

There is nothing in the Constitution giving the Supreme Courtís understanding of the Constitution precedence or controlling authority over that of the President. Entirely to the contrary, the oath of office sworn by the President is to protect and defend the Constitution, not the view of it held by any five current members of the Supreme Court. Can it seriously be argued, for example, that if in the opinion of the President a decision of the Court constituted an attack upon the constitutional authority of the executive branch, it would not be merely his right, but his duty, to disregard it? Otherwise, would not the door be wide open to the executive branch gradually being stripped of all its authority by successive decisions of the judicial branch?

Opinions of the judicial branch impacting upon the distribution of authority among the three branches of government are undoubtedly entitled to respectful consideration, but they cannot logically be regarded as final or binding on the other two branches without first repudiating the very principles of checks and balances and separation of powers by conceding absolute power to the judicial branch.

The proper constitutional check on perceived presidential excess is not supine fealty to black-robbed latter-day substitutes for King George III, but quadrennial election and appropriations, oversight and impeachment powers of Congress.

Gregory M. Sorg

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