FEULNER: Constitutional confusion

By | Thursday, July 24, 2008

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COMMENTARY:

Every president, every senator, every member of Congress and every Supreme Court justice takes an oath to uphold the Constitution of the United States.

The way some of them behave, though, you have to wonder if they've ever read it.

The Constitution is clear and understandable. It gives Congress, the legislative branch, the responsibility of passing our laws. It gives the president, head of the executive branch, the responsibility of enforcing those laws. And it gives the courts, headed by the Supreme Court, the responsibility of interpreting them.

Yet in recent years, leaders of all three branches have expressed confusing - and incorrect - ideas about the Constitution.

Take the members of Congress who filed a brief with the Supreme Court urging it to strike down Washington, D.C.'s gun ban. Fortunately, the Court agreed. But Congress had the power to defend D.C. residents' gun rights all along.

Congress could have passed a law at any time removing the unconstitutional restrictions on gun ownership in the District. But it didn't. Now, as the D.C. Council considers new legislation to restrict gun rights, Congress continues to be silent, again leaving the question to the courts - when members have a duty to protect the Constitution, and the rights of D.C. residents as well.

Of course, the judicial branch is hardly blameless.

Courts frequently overstep their bounds, creating law rather than merely interpreting it. There are many examples, but one case proves the point. During its 2004 term, the Supreme Court ruled that detainees at Guantanamo Bay - enemy combatants captured on foreign battlefields - had the statutory right to file habeas corpus petitions in U.S. federal courts. It was a new right for enemy combatants.

Congress changed that. It passed the Detainee Treatment Act, which said, in part, "no court, justice or judge shall have jurisdiction to hear or consider" applications on behalf of Guantanamo detainees. That's crystal clear - lawmakers wanted to ensure detainees wouldn't be able to tie up federal courts with endless habeas lawsuits.

Then, in 2006, the Court decided another detainee case, this time finding that the president needed express authorization from Congress to establish military commissions. Congress took them up on this offer by passing the Military Commissions Act (MCA), and made it even clearer that the Courts are not authorized to hear habeas claims from Guantanamo.

Now the Supreme Court has moved the goalposts again. This year it decided, by a 5-4 margin, that the procedures Congress established (which the Court advocated for earlier) were inadequate and that the MCA was unconstitutional. Chief Justice John Roberts dissented. He wrote that the majority opinion was really about "control of federal policy regarding enemy combatants," and that's certainly correct. Here, the court is setting policy that should be - and in fact had been - set by Congress.

Finally, there's the executive branch.

In 2002, President Bush signed the McCain-Feingold campaign-finance reform bill. Even as he did so, he noted, "I also have reservations about the constitutionality of the broad ban on issue advertising." Yet, Mr. Bush added, "I expect that the courts will resolve these legitimate legal questions as appropriate under the law."

But that's the wrong approach. Upon inauguration, a president swears to uphold the Constitution. If he thinks a bill is unconstitutional, he is duty bound to veto it, not kick it down the road for the courts to rule on. And as it turned out, the courts allowed the questionable provisions to stand, so now they'll be harder than ever to fix.

Members of all three branches of our government should do some light reading this summer, and refresh themselves on their proper roles. After all, you can't uphold what you don't understand.

Heritage Foundation (heritage.org).

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