Presidential nullification, Bush-style
My good friend zak sent me this link, about the ABA deciding to investigate the 750 or so laws that Bush has violated while in office, and it just pissed me off. You see, like everything else Bush has done, there's the right way and the wrong way to go about nullification.
I actually support the notion of nullification, at all levels: by juries, by judges, and by Presidents -- so long as it is used to protect the rights of individuals.
Jury nullification derives from the fact jury deliberations are closed, and jurors cannot be questioned on their decisions (unless they want to blab, of course). This is a great vehicle for protection of individuals from odious laws, but in the national consciousness the most visible usage of jury nullification was in acquitting the murderers of three voting rights activists in Mississippi. So the Fully-informed Jury Amendment can be a hard sell, but jury nullification is an essential part of the protection of individual rights.
Judge nullification of a guilty verdict is also a different matter (it's not called nullification, either), and it's useful because it can thwart a misguided jury's attempt to use the force of government against an individual. If the judge could nullify a not-guilty verdict, of course, I would worry. But in this case the judge represents a check against the majority's inevitable temptation to trample the rights of the individual, even though in practice it might be as problematic as jury nullification.
The President can nullify a law, too. Such nullification is called a veto, and if Bush thinks an act violates his Constitutional perogatives as President, he should veto it, not sign it and ignore it. The latter course of action is basically imperial whim, making Bush think he can actually rule without any constraints. He can't, of course.
If the legislature overrides the veto, I might still support outright nullification of the law by the President, assuming it was stated up front and was an absolute rejection of the law. For example, Michael Badnarik, the Libertarian Party's candidate for President in 2004, promised to nullify drug laws, according to Marbury v. Madison, claiming that such legislation was "repugnant to the Constitution" (Marshall's words; Badnarik actually said "odious to the Constitution"). But again, Bush shows his administration's secret despotic nature by simply noting that he might ignore at his discretion the acts he otherwise signs.
Of course, it is clear that reasonable men might disagree on whether a law meets Marshall's standard of repugnance. It is not, therefore, appropriate for a President to unilaterally invalidate the law, especially given the profoundly twisted view the Bush administration has on the Constitutional powers of the Executive Branch. Given the divergent ideas on Constitutionality, it is necessary to involve the Supreme Court in such conflicts. This is said to originate in Marbury v. Madison, or in English legal tradition from 1610 or something, but it's already in the Article III of the Constitution: as the court of last resort, it is reasonable for the Supreme Court to rule on a conflict between the Executive and the Legislative branches on the Constitutionality of a law.
So Bush could deal with an overridden veto by refusing to enact a given law, pending a decision from the Supreme Court on its Constitutionality. Of course, military tribunals and refusing to seek warrants for wire-tapping and bank transaction moitoring demonstrates Bush's contempt for the independent judiciary.
Of course, Congress could get off its collective ass and impeach Bush. The man has violated the constitution in so many ways, I am completely perplexed as to Congress' refusal to do so. This failure to act is reason enough to view the 2006 elections as a referendum on Bush, because the Republicans are protecting their imperial despot for the benefit of their own party, not out of any concern for the Constitution (which, you know, they swore to uphold).
So Bush sucks, and only my moral opposition to the use of violence in the political sphere prevents me from saying more than that the fucking despot should be impeached. So also should every Republican legislator be, ahem, voted out of office in 2006. As Badnarik said of his running for President, impeachment of Bush is "the second to last resort". Those who have read the Declaration of Independence should know what I mean.
I actually support the notion of nullification, at all levels: by juries, by judges, and by Presidents -- so long as it is used to protect the rights of individuals.
Jury nullification derives from the fact jury deliberations are closed, and jurors cannot be questioned on their decisions (unless they want to blab, of course). This is a great vehicle for protection of individuals from odious laws, but in the national consciousness the most visible usage of jury nullification was in acquitting the murderers of three voting rights activists in Mississippi. So the Fully-informed Jury Amendment can be a hard sell, but jury nullification is an essential part of the protection of individual rights.
Judge nullification of a guilty verdict is also a different matter (it's not called nullification, either), and it's useful because it can thwart a misguided jury's attempt to use the force of government against an individual. If the judge could nullify a not-guilty verdict, of course, I would worry. But in this case the judge represents a check against the majority's inevitable temptation to trample the rights of the individual, even though in practice it might be as problematic as jury nullification.
The President can nullify a law, too. Such nullification is called a veto, and if Bush thinks an act violates his Constitutional perogatives as President, he should veto it, not sign it and ignore it. The latter course of action is basically imperial whim, making Bush think he can actually rule without any constraints. He can't, of course.
If the legislature overrides the veto, I might still support outright nullification of the law by the President, assuming it was stated up front and was an absolute rejection of the law. For example, Michael Badnarik, the Libertarian Party's candidate for President in 2004, promised to nullify drug laws, according to Marbury v. Madison, claiming that such legislation was "repugnant to the Constitution" (Marshall's words; Badnarik actually said "odious to the Constitution"). But again, Bush shows his administration's secret despotic nature by simply noting that he might ignore at his discretion the acts he otherwise signs.
Of course, it is clear that reasonable men might disagree on whether a law meets Marshall's standard of repugnance. It is not, therefore, appropriate for a President to unilaterally invalidate the law, especially given the profoundly twisted view the Bush administration has on the Constitutional powers of the Executive Branch. Given the divergent ideas on Constitutionality, it is necessary to involve the Supreme Court in such conflicts. This is said to originate in Marbury v. Madison, or in English legal tradition from 1610 or something, but it's already in the Article III of the Constitution: as the court of last resort, it is reasonable for the Supreme Court to rule on a conflict between the Executive and the Legislative branches on the Constitutionality of a law.
So Bush could deal with an overridden veto by refusing to enact a given law, pending a decision from the Supreme Court on its Constitutionality. Of course, military tribunals and refusing to seek warrants for wire-tapping and bank transaction moitoring demonstrates Bush's contempt for the independent judiciary.
Of course, Congress could get off its collective ass and impeach Bush. The man has violated the constitution in so many ways, I am completely perplexed as to Congress' refusal to do so. This failure to act is reason enough to view the 2006 elections as a referendum on Bush, because the Republicans are protecting their imperial despot for the benefit of their own party, not out of any concern for the Constitution (which, you know, they swore to uphold).
So Bush sucks, and only my moral opposition to the use of violence in the political sphere prevents me from saying more than that the fucking despot should be impeached. So also should every Republican legislator be, ahem, voted out of office in 2006. As Badnarik said of his running for President, impeachment of Bush is "the second to last resort". Those who have read the Declaration of Independence should know what I mean.
posted by heavynettle at 20:11
2 comments
