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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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Comment Preferences

  •  Oathbreaker-in-chief (4+ / 0-)

    Is there nothing they won't twist to mean the opposite of what it says?   (Rhetorical question: I know there's nothing.)

    -5.63, -8.10 | Libertarian Liberal

    by neroden on Fri Sep 22, 2006 at 03:46:23 PM PDT

  •  By the time this one winds its way (0+ / 0-)

    through the Judicial process, Bush's term will be over, and the point mute. The next Prez, Dem or Rep, I believe, will throw every one of Bush's signing statements, interpretations, etc. right into the garbage.  Till then, try to avoid hanging with suspected enemy combatants or to the waterboard you go.

    "Go ahead and scream your head off! We're miles from where anyone can hear you!" - G.W.Bush as Pee-Wee Herman

    by Voxbear on Fri Sep 22, 2006 at 03:58:13 PM PDT

    •  There is hope. (1+ / 0-)
      Recommended by:
      Voxbear

      But do you really think some of the potential 08 candidates might feel the need to let this slide through? I would like to think the Dem candidates are all gonna be principled enough to reject this massive increase in presidential power, but like Frodos ring, the temptation to "use the power for good" might be too much for some of the egomaniacs and ambitious career politicians we see lining up. Do you think any of the DLC candidates or Hillary would be able to "carry the ring?"

      Besides two years is enough for the federal courts to be packed (or to finish it) before it is made moot.

      -- If we don't believe in freedom of expression for people we despise, we don't believe in it at all. * Noam Chomsky

      by NCrefugee on Fri Sep 22, 2006 at 04:11:42 PM PDT

      [ Parent ]

    •  btw -- points are "moot" not "mute" (1+ / 0-)
      Recommended by:
      Liberal Thinking

      Just one of my (many) pet peeves.

      Love and kisses,
      Cherry

      Build a man a fire, and he'll be warm for a day. Set a man on fire, and he'll be warm for the rest of his life. - Terry Pratchett

      by cherryXXX69 on Sat Sep 23, 2006 at 12:57:51 PM PDT

      [ Parent ]

  •  Recommended! (3+ / 0-)
    Frederick,

    Thanks for this diary.  Thanks for the lesson.  I've  often heard senators refer to Marbury v. Madison - until now I hadn't taken the time to learn it's significance.  Your diary is clearly written and compelling.

    ```
    peace

    •  Thanks! (6+ / 0-)

      Alas, my diary has now vanished into the ether, it seems, like 99% or so of the diaries.  Thirteen recommends, but that's not nearly enough to make the top ten list. Sigh.

      This bill is one giant leap on the road to dictatorship -- and not just for the reason I've highlighted. See Yale Law Prof. Jack Balkin’s blog for much more on this horror. I hope to hell the Dems filibuster this atrocity -- but I greatly doubt that will happen. Our side got rolled again, as usual.

      When we talk about war, we're really talking about peace. George W. Bush

      by Frederick on Fri Sep 22, 2006 at 06:35:37 PM PDT

      [ Parent ]

      •  Let's rock around the clock (1+ / 0-)
        Recommended by:
        peace voter

        instead of roll.

        Image Hosted by ImageShack.us

        Thanks for the diary.

        By the way, an NPR summary of the bill is online, and (heavens to Betsy!) raises a few pertinent questions: Compromise on Detainee Bill Leaves Much Unclear.

        Detainee Lawsuits

        According to the bill, detainees held by the United States at any overseas location cannot file a lawsuit challenging their detention. This wipes out both pending and future lawsuits. The bill also says no one can file a lawsuit claiming a violation of their rights under the Geneva Conventions.

        Presidential Power

        The bill gives the president the power to "interpret the meaning and application of the Geneva Conventions," a phrase that may clash with another part of the bill, which says, "Nothing in this section shall affect the constitutional functions and responsibilities of Congress and the judicial branch."

        War Crimes Act

        The compromise legislation would narrow the range of offenses prohibited under the War Crimes Act. This would protect civilians (such as CIA interrogators and White House officials) from being prosecuted for committing acts that would have been considered war crimes under the old definition. The change is retroactive to 1997, which means any crimes committed since 1997 would be prosecuted under the new standard, not the old one.

        Who wants all this, and why?

        •  Seems clear enough (2+ / 0-)
          Recommended by:
          musing graze, Liberal Thinking

          who wants this part of it, and why:

          This would protect civilians (such as CIA interrogators and White House officials) from being prosecuted for committing acts that would have been considered war crimes under the old definition. The change is retroactive to 1997,...

          And didn't Bush pout like a 3 year old and claim that "the program", interrogating terrorists (never suspected nor alleged terrorists), could not go forward without guarantees that the "professionals" couldn't be punished for doing the interrogating?

          The Republicans are defunding, not defending, America.

          by DSPS owl on Sat Sep 23, 2006 at 11:57:32 PM PDT

          [ Parent ]

    •  Ditto (1+ / 0-)
      Recommended by:
      peace voter

      The Republicans. The party of fear and smear.

      by Paleo on Sat Sep 23, 2006 at 04:28:47 AM PDT

      [ Parent ]

  •  Bush's Day in Court (1+ / 0-)
    Recommended by:
    musing graze

    Tony says:

    No, as a matter of fact the president has an obligation to preserve, protect, and defend the Constitution of the United States.

    This doesn't help them at all. All it does is reinforce the Court's right to review all laws. If he does otherwise, he is not preserving the Constitution. Article III, Section 2, Clause 1 says:

    The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution...

    In other words, the Court has the final say on disputes about the Constitution. The President is required to back up what the Court decides.

    Nor does Congress have the power to change this by law, since they can't change the Constitution without getting an amendment passed, and any bill they pass is inferior to the Constitution.

    Note also that there is nothing in the Constitution that says that the President's obligation to preserve, protect, or defend the Constitution gives him any powers outside those granted by the Constitution. If the signers intended for the President to have such powers, then they should have written a clause that said that the President could use "any means." They didn't.

    Liberal Thinking

    Think, liberally.

    by Liberal Thinking on Sun Sep 24, 2006 at 12:14:30 AM PDT

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