Consider an obvious contradiction.
The Congress of the united states once again overrun by progressives in the spirit of early 20th century progressives like Wilson passes a law mandating the reduction of the killer gas CO2. As a part of the statute they declare the executive must take illegal immigrants when caught and provide them as slave labor to construct windmills and solar farms to facilitate saving the planet. (unlikely as that may be… they could)
The new GOP President, a lover of freedom, liberty and individual rights, vetos. (as he can)
The liberal fascist congress then overrides his veto (as they can)
Is it now a law the President must enforce?
Obviously NOT, it is clearly unconstitutional and the President is bound by oathe (which you’ll find in the constitution) to defend the constitution, not legal nullities which are anethema to it.
The finding in marbury is that ALL departments, agencies and courts MUST consider laws which are anethema to the constituion as void. IOW a law which is anethema to the constitution is not and never was actually a law as the constitution itself nullifies them, not the courts. It does not say the departments and agencies should enforce legal nullities until a court tells them not to… it says to consider them void. Period.
Moving along, suppose some giant Krupp industries type corporation (GE perhaps) sues the federal government for the President’s failure to enforce the law which harms their business by not providing them with slaves to construct windmills and solar farms making them more competitive with evil big coal. Should the President and AG now defend the law? If so, the giant corporation wins by default. Obviously the answer is no, the President and AG should defend the constitution.
Suppose the district court rules in their favor because the district judge is an environmental whacko activists who cares more about propping up the green movement than he does the constitution (say Van Jones was appointed and thinks slave labor is every bit as good as prison labor – again, as unlikely as it seems its possible)
Should the President aquiesce and enforce the law until the case moves on? Obviously not, his duty is to the constitution, not the courts.
Suppose now the appelate court full of obamabots in the ninth circuit screws the pooch royally yet again and interprets the clause "except as punishment for crime" as justification for the statute and decides the law is a reasonable exercize of power under the clean air act to reduce the killer polutant CO2, completely ignoring the "cruel and inhuman" aspect and affirms the lower courts ruling.
Should the President now throw in the towel and enforce the law? No, not if he’s worth a ****.
Now the case goes to the SCOTUS which is over run by O’Fascialist Obama appointees in the mold of Kagan and Sotomayor who find it a reasonable exercize of governmental authority deciding that the real cruel and inhuman thing to do would be to leave these poor undocumented workers at the mercy of evil big business coporate executives who will take advantage of them by paying them less than scale, and that nanny state government is the best place to ensure their happiness, productivity, and contributions to society. They put in requirements like "no chaining after the shift is done, and lobster on fridays" to show how caring and benefficient we are.
Should the President now enforce the law?
Likely? No. Plausible? No. Possible under our system? Yes.
The Presidents duty is to the constitution, not to the courts. The courts duty is to the constitution not the law. It is not the courts which make laws unconstitutional, it is the constitution, and unconstitutional laws are unconstituional before the courts ever see them, and thus are "void" when written.
the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument. |
Bound by the instrument, not the courts.