Looming constitutional crisis?: Let’s hope so
The recent decision by the Fourth Circuit Court of Appeals in al-Marri vs. Wright could set the stage for the most momentous constitutional crisis in history. Yet, the media have ignored the implications.
When Congress impeached Pres. William J. Clinton in 1998, they trumpeted it as a constitutional crisis. It was no such thing. The possibility of impeachment was a process that the Founders were fully aware of and had prepared for. A president had been impeached once before and the Republic had survived. The Senate trial was conducted and, by a single vote, Andrew Johnson was spared removal from office. One of the members, Alcee Hastings, of the very House that voted to impeach Clinton had himself been impeached and removed from the federal bench in 1989 on corruption charges. So it was an event with ample precedent.
The al-Marri vs. Wright decision by a 2-1 vote, has the potential for a full scale unprecedented judicial airing of the extent of presidential powers. I cannot recall any such case that can even approach this in possible scale.
The case will be appealed to the full Circuit Court and perhaps even to the Supreme Court if the full Circuit Court rules against the administration. The Fourth Circuit is viewed as one of the most conservative, in the current parlance, in the country and The Supreme Court is dominated by appointees of Republican presidents.
It’s obvious that Ali Saleh Kahlah al-Marri will not be released as a result of this decision, nor and adverse decision by the full Circuit Court. But how about if the Supreme Court rules against the administration? What if they still refuse to release him based upon the powers that the office has arrogated to itself under this president and other previous presidents? What then? That would be a constitutional crisis. And one that is long overdue.
Supposedly, Andrew Jackson, threatened to defy a Supreme Court decision, in Worcester vs. Georgia, with the statement. “John Marshall has made his decision. Let John Marshall enforce it.” That is in dispute but what isn’t in dispute was that the Supreme Court had no power to enforce the decision without the assistance of the executive.
Almost invariably, the major confrontations of my lifetime over Supreme Court decisions have revolved around disputes between the Supreme Court and the states. When Gov. Orval Faubus ofArkansas tried to defy a Court decision on integration at Central High School in Little Rock, Pres. Dwight Eisenhower federalized the Arkansas National Guard to ensure entry for the black students. Later, Pres. John Kennedy would federalize the Alabama National Guard to ensure the integration of The University of Alabama against the defiance of Gov. George Wallace.
But all three of these decisions were over the authority of the federal government vs. the states. In the latter two, the federal authorities were in sympathy with the court decisions. This could involve two branches of government that will be antagonistic toward one another.
There are just nineteen months left in this Bush presidency. Both sides will be introducing precedents some of which could go back to the very beginning of federal assault upon states’ and individual rights, including the very granddaddies of them all, the two Johns of judicial arrogance, Jay and Marshall.
This in and of itself begs for a question. Will this adminstration raise the obvious original question as to the Constitutional justification for the Supreme Court to decide what the document means? In itself would be revolutionary in scope.
The history of this republic under the Constitution has been one of destruction of the very idea of federalism and the superiority of the states and people over the federal government. The greatest violence to the Ninth and Tenth Amendments has been done under the most revered and reviled presidents, Abraham Lincoln, Franklin D. Roosevelt, Lyndon B. Johnson and now George W. Bush with the acquiescence of the Congress. It would be the epitome of irony if the people who have been applauding the ravages of the first two, are forced to re-examine their consciences over this president.
The arguments could rage back and forth. I think the greatest nightmare for the Beltway crowd would be a re-evaluation of their mindsets, if they still can actually think about the implications of what they espouse, which is doubtful.
And then the final question will have to be addressed. Suppose after all the agonizing arguments and an adverse decision is handed up against the administration and they still refuse to release him? What then? Who enforces it? And I think this president is just obsessed enough to do it. That would be a true constitutional crisis because there is no provision for it.
And what will it mean for all the pundits in the country? Will people like Ann Coulter and Rush Limbaugh reassess their endless equating things Republican with the good of the country? What about the insufferable Brit Hume who once dismissed the true constitutionalist, Ron Paul, as a crank? What about the Lincoln and FDR scholars who have made careers out of excusing their violence against the Constitution? Will they finally realize that the Constitution is not just a menu for a la carte selections?
Personally, I hope it goes just this way. We are in need of it.
“Published originally at EtherZone.com : republication allowed with this notice and hyperlink intact.”