Executive Review of Laws

cropped-bob-shapiro.jpg   By Bob Shapiro

The US Constitution is the highest law of the land.

The US Constitution does not include any other document – the Federalist Papers are NOT part of the Constitution, the past Supreme Court Decisions are NOT part of the Constitution, all the Laws and Executive Orders on the books are NOT part of the Constitution, and the Bible, Torah, and Koran are NOT part of the Constitution.

Only the exact words written in the US Constitution are the US Constitution. Everything else is just interpretation and subordinate to

the Constitution. That includes what I’m about to say.

US Constitution

Let me recap what the US Constitution says (but verify it for yourself).

The Preamble says why bother.

Article I – Sets up a Legislative Branch, describes what it can & can’t do, etc. Generally, the Congress makes the Laws, which still are subordinate to the Constitution.

Article II – Sets up an Executive Branch, describes what it can & can’t do, etc. Generally, the Executive carries out or enforces the Laws so long as they conform to the Constitution.

Article III – Does the same for the Judicial Branch.

Article IV – Lays out the Rights & Responsibilities of the States to each other, how new states may be added, and the federal government’s rights & responsibilities to the states.

Article V – Allows for Amending the Constitution.

Article VI – Sets out the supremacy of the Constitution, and Laws & Treaties of the US (under the Constitution) as being above any state laws.

Article VI – Ratification of the Constitution.

The Constitution contains 27 Amendments. These Amendments ARE part of the Constitution. The first 10 Amendments – known as the Bill of Rights – specifically limit the powers of the federal government.

Please read the US Constitution.

All Members of Congress, the President and the other Major Members of the Administration, and all Justices and Judges are required to swear an oath to Protect and Defend the US Constitution.

3 Branches

The three branches of our government are separate and are equal. No branch may act within the realm of what is granted to another branch. No branch is above another. Congress makes the Laws, the President and his Administration carry out the Laws, and the Supreme Court and lower courts rule on the Laws.

Any Law which has gone into effect may be repealed by Congress – either the same Congress which originally passed the Law or a subsequent Congress. While the repeal may be because Congress determined that the Law was Unconstitutional, Congress need not say that was the reason. (There is no way to know if this ever happened, but it could have happened.)

In 1803, the US Supreme Court decided that, since the Constitution is the highest law of the land, if another Law is in conflict with the Constitution, then that Law… is no law. In this, and many subsequent rulings, the Supreme Court ruled a Law made by Congress to be Unconstitutional. This has come to be known as Judicial Review.

The Courts may not change the language of a Law, or substitute new wording. The Courts may not “legislate from the bench.” All they can do (which is quite a bit) is say that a specific Law is null and void because it is Unconstitutional.

The right of Judicial Review of a Law’s Constitutionality has been acknowledged for 211 years, the right of Congress to repeal any Law has been in effect since the Constitution went into effect, and all three branches are set up as equals.

I would like to propose that there also exists, though it has not as yet been declared, a right of Executive Review.

Just as with the Judicial Branch, if the President must choose between two Laws, then he MUST choose the higher Law. If one of those Laws is the Constitution, then the other Law MUST be declared Unconstitutional. Just as with the Supreme Court, or with Congress, the President may invalidate a law.

No Law

The President may not create a law. He may not say that a Law means something other than what the Law says. But he does have the power to declare that a Law no longer is a law.

This new concept may seem like a stretch for many people, so let’s examine this with an example. Suppose Congress had enacted a Law, and that the Supreme Court had ruled that the Law was Constitutional. Let’s choose something that is over the top so that nobody will doubt that the Law should be Unconstitutional.

So, let us suppose the law says, (blah, blah, blah) “that all black people shall be rounded up and executed,” (blah, blah, blah). I don’t want this, and I can’t imagine anyone wanting it, or anyone thinking this could be Constitutional.

Although the President has sworn to uphold the Constitution, both the Congress and the Supreme Court have said they think the Law is Constitutional. But the President disagrees and believes this Law is Unconstitutional. Under his oath of office, the President MUST declare it Unconstitutional. He MUST declare this Law to be null and void. The President MUST implement the doctrine of Executive Review.

Action Item: The President shall declare the right and responsibility of Executive Review of Laws which are in conflict with the US Constitution to declare those Laws to be null and void.

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5 thoughts on “Executive Review of Laws

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