When can the President ignore the Supreme Court?


You must be shocked to see the title. How can the President validly ignore the Supreme Court's decisions? Well, you may be surprised that the 1987 Constitution of the Philippines does not mandate the other branches of government to follow decisions promulgated by the Supreme Court. While it is true that, in the Civil Code (Act 386) and the Administrative Code (Executive Order 292), Congress and the President have recognized the longstanding tradition of respect and obedience to the Court's rulings, such recognition is, purely and simply, a tradition.

In fact, in the oldest constitutional nations in the world, discussed below, it was necessary for the President to ignore the Highest Tribunal in one of its decisions.

SUMMARY

The Supreme Court of the United States of America (USA) ruled in one case that the freedom of slaves was unconstitutional as it would deprive slave owners of their property without due process of law. However, Abraham Lincoln, the 16th President of the USA, chose to ignore the decision, arguing that the President is an independent constitutional branch and judicial decisions are binding but interpretations may be ignored if unconstitutional.

Below is a part of a speech by Jeffrey Sikkenga who is an adjunct fellow of the Ashbrook Center and an associate professor of political science at Ashland University. For a complete copy of his speech and other contents, please go to https://ashbrook.org/villages0217/.

THE CASE

In March 1857, the Court handed down its decision in a case called Dred Scott v. Sandford. Dred Scott was a slave who had been taken to free territory in the West where slavery did not legally exist. So when he returned to Missouri, a slave state, he tried to sue for his freedom, claiming that once he entered a free territory, he became a free man. His case made it to the Supreme Court, which ended up declaring by a 7-2 vote that Dred Scott couldn’t sue for his freedom because a once-enslaved black man could not become an American citizen. There was a constitutional right to slavery in the Territories, the Court declared, and therefore the Missouri Compromise had to be struck down and Dred Scott himself had to remain a slave. The decision sent shock waves throughout the country, dividing it as never before. It also effectively declared the Republican Party ‘unconstitutional’ – because opposition to the spread of slavery in the West was the central plank of the Republican platform.

So what would Abraham Lincoln, one of the most prominent Republicans, have to say about the decision? Would he just give up now that the Court had ruled?

LINCOLN'S RESPONSE TO DRED SCOTT

Lincoln answered that question in a speech on Dred Scott in June 1857, a few years before he became president. Lincoln started from the basic belief that the Constitution should be understood according to the principles of the Declaration of Independence, and the Supreme Court’s job is to decide legal cases according to the letter of the law and the original meaning of the Constitution. As far as the Dred Scottcase itself, Lincoln said that he accepted that the Supreme Court’s decision was absolutely final for poor Dred Scott. He had to remain a slave. But Lincoln declared that the Court was wrong in believing that black men could not be American citizens and that slavery had the right to extend into the West. Those were just interpretations, Lincoln argued, and he denied that the Court’s interpretation of the Constitution in this one particular case was automatically binding forever on the president and Congress.

TWO USES OF JURISPRUDENCE

If you know about Lincoln’s background, his view of a court’s power is not so surprising. He had practiced for many years in Illinois in front of many judges, and he knew a thing or two about what powers a court has. According to Lincoln, a judicial decision has “two uses”:

Firstly, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called ‘precedents’ and ‘authorities’”. (Speech on Dred Scott, June 12, 1857)

This means that while for Lincoln every particular Supreme Court decision must be obeyed, not every interpretation is a binding precedent that must be accepted as the Word of the Lord. So the Dred Scottdecision had to be accepted, but the Dred Scott interpretation did not. It had to be obeyed only if it is what Lincoln called “fully settled”, which happens only when it meets some strict criteria.

UNANIMITY

First, Lincoln said, the decision must be “made by the unanimous concurrence of the judges”. Why? Because a unanimous decision shows that there is not likely a great constitutional debate about the issue in question, which is important because if there is such debate, then the issue may not be one of legal expertise but of broader constitutional principles in which federal judges are not necessarily more insightful than the President, Congress, or even the people themselves.

FREEDOM FROM POLITICAL BIAS

Second, the decision must be “without any apparent partisan bias”. Division in the Court along partisan lines – Democratic appointees voting one way, Republican appointees another – shows that the issue is less one of legal doctrine and more one of “constitutional controversies” about which the country (and the politically parties) are divided (First Inaugural Address, March 4, 1861). In Lincoln’s mind, slavery in the Western Territories was not a legal question – the Constitution, the Supreme Law, didn’t say anything about it – but a moral and political question over which the country itself was divided. If the pro-slavery Justices vote in favor of the extension of slavery, maybe the decision was more political than constitutional.
NON-DEVIATION FROM THE OTHER BRANCHES

Third, Lincoln said, a decision must be “in accordance” with what he called the “steady practice of the departments throughout our history”. Is the decision an unexpected shock? Does it deviate wildly from what the President and Congress (and the states) have been doing for many years? Dred Scott did. For years, America had been dealing with the slavery issue by compromise (like the Missouri Compromise in 1820), treating slavery as a necessary evil to be tolerated but contained. But Dred Scott overturned that whole approach by declaring that slavery was a constitutional right in the Territories. Lincoln argued that the Court made serious mistake in ignoring how presidents and Congresses (and even the states) have acted throughout our history. Their actions, Lincoln maintained, help to fill out the meaning of the Constitution in areas where the “Constitution does not expressly say” what it means (First Inaugural Address, March 4, 1861). The president and Congress interpret the Constitution when they make and enforce the law. Just like the Supreme Court, they are constitutional officers whose constitutional opinions matter.

Think about these criteria. A decision must be unanimous, with no partisan bias, and consistent with the other branches of government. How many Supreme Court decisions meet all of them? Dred Scott certainly didn’t – it wasn’t even close.

CONSTITUTIONAL CRISIS BETWEEN THE THREE GREAT BRANCHES

So what should a president do, according to Lincoln, if a Supreme Court decision falls short? In the first place, Lincoln said, even an unsettled interpretation merits what he called “very high respect and consideration” (First Inaugural Address, March 4, 1861). It needs to be taken seriously as the president thinks about his constitutional powers and duties. He needs to read it, study it, and give it a lot of weight.

And if the Supreme Court re-affirms the same interpretation over the course of years, the interpretation will have been accepted in different specific circumstances by different Courts with different Justices, nominated by different presidents and confirmed by different Senates. The legal profession (and other judges) will have had an opportunity to consider its validity, and more importantly so will the people and their representatives (Speech at Ottawa, August 21, 1858). If an originally unsettled decision is constantly re-affirmed over time, Lincoln believed, we can be reasonably sure that the Court’s interpretation is truly a legal decision guided by the American public’s understanding of the original meaning of the Constitution.

That last part is critical. For Lincoln, the president and Congress need to remember that it is “We the People” who give the Constitution its authority. The Declaration of Independence calls this “the consent of the governed”. The Supreme Court operates under the Constitution; it is not the owner of the Constitution. The Constitution belongs to the American people and our elected representatives, including the president. If one of the Court’s interpretations is “fully settled”, the president cannot ignore or reject it. But as Lincoln said, “when… we find [a Court decision] wanting in all these claims to the public confidence, it is not resistance… it is not even disrespectful, to treat it as not yet having quite established a settled doctrine for the country” (Speech on Dred Scott, June 12, 1857). So, for Lincoln, fight against the spread of slavery was not over. The Supreme Court’s Dred Scott decision had not decided the fate of the country forever.

THE PRESIDENT'S LEGISLATIVE AGENDA

As President, Lincoln practiced what he preached. For example, in 1862 he encouraged Congress to outlaw slavery in the Western Territories, even though the Dred Scott decision had said Congress couldn’t do it. Congress responded and passed the law, and it served as an inspiration for freedom for all men during the hard and grueling fighting of the Civil War.

As you might imagine, Lincoln was attacked for his view on the Supreme Court, which unsettled some people in the 1850s and 1860s. I’m quite sure that it would unsettle a lot of people today who are used to thinking that only the Supreme Court can say what the Constitution means. But consider, Lincoln said, what it really means to say that “constitutional questions are to be decided by the Supreme Court” – and only the Supreme Court. As he declared in his First Inaugural Address in 1861:

… the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal”. (“First Inaugural Address”, March 4, 1861)

NOT A GOVERNMENT OF THE COURT BUT OF THE PEOPLE

Lincoln believed that the people could never had over their government to the Supreme Court – it was, after all, a “government of the people, by the people, for the people” (Gettysburg Address), not of, by, and for the Supreme Court.

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