Newt the Nullifier

Newt Gingrich channels the legend of Andrew Jackson*:

[Gingrich] told a forum of anti-abortion activists ahead of South Carolina’s primary election that as president he would ignore supreme court rulings he regards as legally flawed. He implied that would also extend to the 1973 decision, Roe vs Wade, legalising abortion.

“If the court makes a fundamentally wrong decision, the president can in fact ignore it,” said Gingrich to cheers.

Yes. Yes, he can. As long as he does not mind behaving lawlessly.

Gingrich was referring to the case of Boumediene v. Bush (2008) 553 U.S. 723, which is indeed still somewhat controversial. Boumedine, for whose who may not remember, held that a prisoner in Guantanamo Bay has a right to file a civil petition for habeas corpus, and therefore that a provision of the Military Commisions Act which purported to suspend that right for a detainee labelled an “enemy combatant” was unconstitutional.

Since the filing of a petition for habeas corpus is a judicial act, it’s hard to see how the President would stop the petition from being filed or argued. He could instruct the military to ignore an order under a successful habeas petition to release a prisoner. Which would in one sense be a little bit like Abraham Lincoln, who deemed the suspension of habeas corpus during the Civil War to be an urgent enough matter to both risk being labelled as lawless (which his decision was) and to bypass the lawful means for so doing (which would have been to have asked Congress to pass a law to that effect). But I cannot see similar exigencies or circumstances surrounding Guantanamo detainees.

In another sense, it would be a lot like the tyrannical kings against whom America revolted, ignoring some of the most fundamental individual rights in the Anglo-American legal tradition for political advantage.

The implication raised by the Guardian was that if elected President, Gingrich would similarly issue unilateral instructions to nullify by executive authority the “central holding” of Roe v. Wade. It’s difficult, again, to see how exactly this would manifest. If Roe v. Wade were overruled or repealed, the question of whether abortion was available or not would become a state matter. I cannot think of a time Federal law enforcement authorities intervened to facilitate an abortion; if such a thing has happened, it has been extraordinarily rare. IIRC, there are already prohibitions on Federal money being used to pay for abortions or abortions taking place in Federally-run hospitals (such as on military bases). Those more steeped in the issue, please correct me if that is incorrect.

So Mr. Gingrich appears to be grandstanding rather than offering something of substance, at least in the cases described here. But it demonstrates not merely the use of the courts as a political football and unpopular rulings as political whipping boys, but rather a willingness to defy the rule of law. If the President can ignore enforcing the ruling of a court at his pleasure, then why should we have courts at all?

Proposed: A candidate who promises to defy the laws his oath of office would require him to uphold and enforce, has in so doing disqualified himself from sober consideration for that office.

* The reality lacks some of the emotional punch of the legend, sadly.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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