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The Supreme Court's landmark 1803 decision in Marbury v. Madison established the power of judicial review: the Supreme Court's ability to strike down laws that it finds violate the Constitution. Marbury is generally considered the most important Supreme Court decision in history. Chief Justice Marshall wrote for a unanimous Court in Marbury that, "It is emphatically the province and duty of the judicial department to say what the law is."  In the intervening two centuries, the Supreme Court has come to be universally accepted as the final arbiter of the meaning of the Constitution. Until now. The pro-torture "compromise" recently approved by the Bush administration and those "courageous" Congressional Republicans (McCain, Warner, Graham) is nothing less than an attempt to destroy judicial review and give Bush, not the courts, the ultimate authority to interpret the Constitution. There's more after the fold:

The Supreme Court, in its historic decision less than three months ago in Hamdan v. Rumsfeld, held that the kangaroo court "military commissions" that Bush established to try detainees at Guantanamo violate the Geneva Conventions. The new Republican-approved bill provides:

3) INTERPRETATION BY THE PRESIDENT.-- As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions . . . .

Note that language.  As provided by the Constitution, Bush "has the authority for the United States to interpret the meaning and application of the Geneva Conventions." In other words, if Congress passes this monstrosity, and Bush signs it (the latter is a given), Congress and the President are agreeing that the Constitution gives Bush powers superior to those of the Supreme Court to interpret what the Geneva Conventions mean, and whether they apply.

That is horrible enough. It gets worse. Bush is attempting a direct attack on the principle, stated in Article III, section 1 of the Constitution, that the judicial power of the United States shall be vested in the Supreme Court and the lower federal courts, not the President. This bill appears to be the opening salvo in an attack on Marbury v. Madison and the very principle of judicial review.

Think I'm overstating things? Listen to what Press Secretary Tony Snow said at a press conference today:

[Eric Brewer]: But isn't it the Supreme Court that's supposed to decide whether laws are unconstitutional or not?

Tony: No, as a matter of fact the president has an obligation to preserve, protect, and defend the Constitution of the United States. That is an obligation that presidents have enacted through signing statements going back to Jefferson. So, while the Supreme Court can be an arbiter of the Constitution, the fact is the President is the one, the only person who, by the Constitution, is given the responsibility to preserve, protect, and defend that document, so it is perfectly consistent with presidential authority under the Constitution itself.

Since Tony Snow, as far as I know, is not a constitutional scholar, someone (David Addington?) must have written those lines for him.  Snow was quoting language from the last clause of Article II, section I of the Constitution, which states:

Before he enter on the execution of his office, [the President] shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Bush, aided and abetted by his lackeys in Congress, is attempting to use his oath of office as the constitutional basis for a claim that he, not the courts, is the final interpreter of the Constitution!

I think this is scary as all hell. If you agree, please recommend this diary.

Originally posted to Frederick on Fri Sep 22, 2006 at 03:34 PM PDT.

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