The reaction I have seen to President Obama's remarks concerning the Supreme Court puzzles me. It shatters everything I have learned about the role that a constitution plays in the affairs of a sovereign nation. No, I am not a constitutional scholar or anything like that, but something happened when I was a teenager that got me interested in the subject. And ever since that time I spent countless hours pursuing my interest, but what I see now tells me it was all for naught. Was it?
It happened sometime in the late Fifties or Early Sixties of the Twentieth Century that I lived in Egypt at a time when that country was going through a transformation of sort. It had given itself a new Constitution, and I still remember President Nasser reading it on the radio. But this is not what motivated me to take up the subject. Rather, it was the teacher I had in the Arabic language class. He had an approach to teaching to which he gave a title that would translate into English as: Reading and Writing. But if I were to translate the title literally, it will have to be: Looking over and composition. This is because in Arabic you go to the library not to read or do research; you go to look over the subject. And you do not write a school assignment; you do a dissertation.
What the teacher had us do was follow the local and world events, pick a subject that may have sparked our curiosity, look it over (research it), compose a dissertation (write about it), then come and read it in class to then face questions from the other students. Impressed with the fact that the President took up the time to read something on the radio, and curious about the subject, I looked up and composed something about the constitution of nations. To this end, I read about the American Constitution among others, and picked up a few things which I pursued further when I came to this Continent and gradually replaced with the English language, the French and the Arabic I grew up with.
What I can say is that I never encountered a conflict in what I learned about the American Constitution until now. I always thought that the separation of powers meant the three branches of the American government were equal. This means that to maintain the separation of powers, one branch cannot compel another to do something or to stop doing it. But for the principle of checks and balances to work and have “teeth,” two branches of government can get together and oblige the third branch to comply with an order. Thus, a bill passed by Congress and signed into law by the President can be “struck” by the Supreme Court but cannot be reversed until the Congress or the President reverse their own prior decision and join the Court.
Let us look at two other examples. First, the President can sign a bill containing much of what the nation needs to function normally even if the bill contains a rider inserted inside it by a pressure group. If he does not like that rider, he can refuse to comply with it which would amount to implementing a line item veto that is not specifically provided for in the Constitution. The Congress can then try to impeach the President but he can go to the High Court and argue that the insertion of the rider was unconstitutional, and that it is contrary to the interest of the nation. He signed the bill under duress, so to speak but he will not implement that item. If the Court sides with him, the rider and everyone like it will have been rendered null and void.
Second example, if the President impounds a sum of money that was passed by Congress for a specified purpose, the Congress cannot impeach the President because impounding does not constitute an act of high treason or misdemeanor. Rather, it is a difference of opinion between two equal branches of the government. What the Congress can do is take the case to the Supreme Court and ask for an opinion. The fate of the impounded sum will thus be decided by the branch that wins the case.
As to the President telling the Supreme Court what to do, some of the people who commented on this matter and expressed indignation were lawyers, which is something that puzzles me a great deal. I happen to have read a few decisions written by courts of first instance, even by executive tribunals in which a lone and lowly judge warned the three judges of the Court of Appeal not to overturn his decision because: “I have had the advantage of seeing in person the antagonists and the witnesses which you, esteemed judges of the higher court, will not have.” If these people can talk to their bosses this way, why could not the President who is their equal?
I am puzzled. Please explain.