Le Sabot Post-Moderne

Judicial activism is probably the worst in effect, but I think abuses by the executive branch are the most common abuses. One could cite any number of alphabet soup executive agencies whose existence has no authorisation, attempts by the executive to usurp the power of the legislature via executive order, and numerous instances of committing troops to various overseas adventures without a declaration of war (this could be lumped under legislative abuse though, since they seem all too happy to vote for resolutions that say "Do whatever you want, but don't blame us").

Rob Huffstedtler-

I'm with you up to a point. The Executive does exceed on a regular basis. But I think there the real guilt is on Congress, which passes legislation that massively overreachs its Constitutional constraints under the most tortured readings of the Commerce Clause, etc. The prez in turn has to apply these laws, and the alphabet soup just gets thicker...

As far as the executive orders, you also have a point there. These get pretty regularly abused, though with the massive growth of federal gov't, this is somewhat unavoidable. With the scope of government so widened, Congress simply CAN'T legislate everything. So the president fills the gap. I, of course, would rather them just reduce the scope of their intrusion. This would allow Congress to pass the laws, and the president to apply them (not to say the Executive branch would suddenly decide to stop legislating, but the necessity of it would diminish.)

Anyway, just some off-the-cuff thoughts at 6 am. :)

As Bruno Kirby said in "When Harry Met Sally," nobody's ever quoted me back to me before!

I'm quite honored, needless to say.

Regarding the executive orders, I'm no big fan of many of them either, but the reason I think the Supreme Court is a much worse problem is that there is no check on them. The Supremos are the end of the line, and cannot be overruled or reversed by anyone except themselves, which isn't true of the president. As I recall, GWB reversed several of Bill Clinton's outgoing executive orders in the first day of his presidency. But we get stuck with bad Supreme Court precedents for generations.

In theory, Congress can override the Supremes. In practice, you'll never get two thirds of Congress to vote to overturn a court ruling.

Nathanael,

Not to be contentious, but Congress cannot override the Supremes even in theory. The Supreme Court is final in constitutional interpretation. There is no constitutional check on even a calamitous Supreme Court ruling. Even if 100% of Congress agrees that a ruling is wrong, they are powerless to change it.

A case in point: all 100 senators, and all but a couple congressmen are in agreement that the ruling of the Ninth Circuit court in the recent Pledge of Allegiance/"under God" case is a travesty. But if the Supreme Court hears that case and upholds the ruling, the almost-unanimous Congress won't be able to do a thing to overturn it, in theory or in practice.

What Congress CAN do is impeach the justices or initiate an amendment to change the Constitution itself. But if they want to amend the Constitution itself, there must be a 2/3 vote in both houses, and THEN it must go to the states and be approved by 3/4 of them.

Also, the president can refuse to enforce the new ruling, whatever it is. As Andrew Jackson said when the Marshall court ruled in a way he disagreed with, "John Marshall has made his decision, now let him enforce it." But even this is only a flouting of a Supreme Court ruling, not an overturning of it. The ruling itself still stands.