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Former Arkansas Gov. Mike Huckabee thinks current leaders need a basic civics refresher.
The Republican presidential hopeful has said current politicians have allowed the judicial branch to exert more power than the executive and legislative branches of government. If elected, he would not bow to what he sees as "judicial supremacy." On Fox News Sunday May 24, he said this "defies everything there is about the three equal branches of government."
He added, "We are sworn to uphold the Constitution and law. And it has to be consistent and agreed upon with three branches of government -- one can't overrule the other two."
We know from our own basic civics lessons about checks and balances -- that the three branches of government have the ability to limit each others’ power. So we wanted to dig into Huckabee’s claim that one branch, particularly the courts, "can’t overrule the other two."
On the one hand, Huckabee glosses over the fact that the Supreme Court can overrule laws passed by Congress and the president. However, he has a point that the Supreme Court doesn’t have to be the final word on the law -- the president and Congress have tools that can achieve certain goals in the face of judicial opposition.
"Working out the details of (his position) turns out to be quite complicated, but Huckabee is saying something located within one tradition in constitutional interpretation," said Mark Tushnet, a constitutional law professor at Harvard University.
The final word
One thing Huckabee and legal scholars across the political spectrum can agree on is that the courts have the power of judicial review. This means they can rule on the constitutionality of a law brought before the courts. To take just one example, in 1989, the Supreme Court effectively invalidated laws that prohibit flag burning by ruling that a Texan who burned an American flag was exercising his constitutional right to free speech.
Though judicial review was not explicitly laid out in the Constitution, several founding fathers called for it, and the Supreme Court’s 1803 ruling on Marbury vs. Madison confirmed the court’s prerogative. It remains a cornerstone of the United States’ judiciary system.
So the Supreme Court can clearly overrule the other two branches of government. Congress may pass a law and the president can sign it, but the court can invalidate it.
The Supreme Court, however, only has the ability to interpret laws-- not to draft or enforce them. So the president is obligated to enforce the law as determined by the courts, said Katy Harriger, a professor of constitutional law at Wake Forest University.
For instance, in 1954, the Supreme Court in Brown vs. Board of Education ruled that segregated schools are unconstitutional. The then-governor of Arkansas had decided that his state would not desegregate its schools to comply with the ruling, and in 1957, President Dwight Eisenhower sent the 101st Airborne Division to Arkansas to enforce the court’s decision.
"Deciding not to comply with a Supreme Court ruling would undermine the entire judiciary and have dire consequences for the separation of powers," said Elizabeth Slattery, a legal fellow at the conservative Heritage Foundation.
Slattery added that this doesn’t relieve the other branches of also upholding the Constitution. For instance, the president is obligated to veto legislation he believes is unconstitutional.
Additionally, while the president and the legislature can’t flat-out ignore a ruling, they can still achieve the same goals contrary to Supreme Court opposition. They could amend the Constitution, for example, or appoint new judges who align with their position.
"If the other branches of the federal government don’t back the court, it is true that the court has very limited power to enforce its judgments," said Kermit Roosevelt, a constitutional law professor at the University of Pennsylvania.
Several presidents have chosen to independently interpret the Constitution, such as Thomas Jefferson, Andrew Jackson and Abraham Lincoln. Lincoln disagreed with the 1857 Supreme Court ruling in the Dred Scott case, which concluded that people of African descent -- free or slave -- were not American citizens, and therefore could not petition for their freedom. So he pushed for the 13th Amendment to the Constitution abolishing slavery and the 14th Amendment established the right to citizenship, nullifying the Dred Scott vs. Sandford decision. (The 14th Amendment passed after his death.)
In other words, all three branches have at least some ability to go around the other branches when they disagree.
This is what Huckabee was trying to express, said Huckabee spokesman Hogan Gidley -- that the court’s decisions are not immediately binding because the court can only write an opinion, not pass or enforce laws. Court opinions do not automatically become law, he said, and in this way, the legislative and executive branch are co-equal with the judiciary with "numerous options" to respond to rulings.
That said, the other branches do tend to view the Supreme Court as the final arbiter of the Constitution, Roosevelt said -- and he and other legal scholars see that as a good thing.
"It would be difficult for our constitutional system of government to work if we did not have one body that had the last word on the meaning of the Constitution," Roosevelt added.
While sympathetic to Huckabee’s position, Josh Chafetz, a constitutional law professor at Cornell University, said it’s not often that the situation arises where the executive and legislative branches can push back successfully against an adverse judicial ruling. And to the extent that rulings often align with public opinion, it would not be politically expedient in some cases to try to go around a ruling that most of the country agrees with.
Defying the court through well-established means, such as a constitutional amendment, "is all perfectly legitimate. Each branch publicly contests with the others using the tools at its disposal," Chafetz said.
In trying to make the point that the judicial branch has grabbed too much power, Huckabee said the Supreme Court "can’t overrule the other two" branches of government.
But the Supreme Court indeed has the power to overrule the other branches through judicial review -- the court's ability to rule that a law passed by Congress and signed by the president is unconstitutional. While there are certainly tools the president and Congress can use to go around a Supreme Court decision it doesn't like -- such as amending the Constitution or selecting justices that support the alternate position -- these are difficult to accomplish and usually require years of effort, making them rare. The much more common result is for the executive and legislative branches accept a Supreme Court decision as the final word.
Huckabee may not like this state of affairs, but on balance, we rate his claim Mostly False.
Fox News Sunday, transcript, May 24, 2015
PolitiFact, "Newt Gingrich says Supreme Court crossed major threshold with 1958 case," Dec. 20, 2011
PolitiFact, "Obama attaches stark terms to possible Supreme Court ruling on health care law," April 4, 2012
Washington Post, "Volokh Conspiracy: The myth of judicial supremacy," May 19, 2015
LexisNexis, The American Constitutional Order: History, Cases, and Philosophy, published May 15, 2009
Interview, Huckabee spokesman Hogan Gidley, May 27, 2015
Email interview, Harvard Law professor Mark Tushnet, May 28, 2015
Email interview, Cornell Law professor Josh Chafetz, May 27, 2015
Email interview, Elizabeth Slattery, Heritage legal fellow, May 27, 2015
Email interview, University of Pennsylvania Law professor Kermit Roosevelt, May 27, 2015
Email interview, Wake Forest professor Katy Harriger, May 28, 2015
Email interview, Former Ambassador Douglas Kmiec, law professor at Pepperdine University, May 27, 2015
Email interview, NYU Law Dean Trevor Morrison, May 27, 2015
Email interview, Randy Barnett, director of the Georgetown Center for the Constitution, May 27, 2015
Email interview, Erwin Chemerinsky, dean of the UC Irvine School of Law, May 27, 2015
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