Does Dahlia Lithwick find President Obama's view of the courts and Congress to be weird?

Last month, Slate editor Dahlia Lithwick criticized Senate candidate Christine O'Donnell's notion that legislators should determine for themselves if they believe pending legislation to be constitutional before voting for it:

I have been fascinated by Christine O'Donnell's constitutional worldview since her debate with her opponent Chris Coons last week. O'Donnell explained that "when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional." How weird is that, I thought. Isn't it a court's job to determine whether or not something is, in fact, constitutional? And isn't that sort of provided for in, well, the Constitution?

Hmm.  The Obama Administration hasn't made a decision yet on whether to appeal a district court ruling that the "don't ask, don't tell" policy is unconstitutional.  But it sounds like it will, because "President Barack Obama has made it clear he wants Congress to repeal the policy -- rather than having it blocked by the courts."

This is entirely consistent with the Obama Administration's decision to appeal a different district court's ruling that the federal Defense of Marriage Act was unconstitutional:

Although Obama opposes the law, a Justice Department spokeswoman said that the administration was defending the statute because it was obligated to defend federal laws when challenged in court.

But wait, "don't ask don't tell" is essentially codified at 10 USC s 571, which makes it a federal statute.  So presumably the same principle applies -- the Justice Department must defend it.

In any event, notice how "weird" this all is under Dahlia Lithwick's mindset.  President Obama disagrees with "don't ask don't tell" and with DOMA.  Courts have come to his rescue and struck both of those down.  Yet, President Obama opposes what the courts have done because he thinks Congress should have the last word.

True, there's a difference -- he wants Congress to decide on a policy basis, not because it thinks the statutes are unconstitutional.  But to take the decision away from the courts and to give it to Congress . . . doesn't that imply that he either disagrees with the merits of the decisions of the courts, or that he believes in legislative supremacy over the courts? That is, it sounds like President Obama is saying to the federal courts, "You may think these are unconstitutional, but these decisions are for us politicians to make, not you judges."

Obviously, I think Lithwick's criticism of O'Donnell is silly.  Marbury v. Madison does (more or less) stand for the proposition that when the Supeme Court strikes down a statute as conflicting with the Constitution, the political branches can't undo that decision except by constitutional amendment.  It does not, however, stand for the proposition that the legislators are thereby freed from the obligation or powerless to make their own determination of whether to vote in favor of legislation they believe to be constitutionally invalid.

Comments

[Nicholas Johnson]

I never, never thought I'd ever agree with Christine O'Donnell about anything. But I think she's right on this one.

Not only are federal legislators "not powerless" to make constitutional decisions, they are required to do so by Art. VI, Sec. 3 ("bound by oath or affirmation to support the constitution") and by their oath of office -- originally drafted by the first Congress and now reading: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."

Clearly, their decisions on such matters are not final and binding; that IS the role of the courts.

Nor does it make sense to make one's judgment about constitutionality the only test, the "litmus test": "if it's constitutional I vote for it; if it's not I don't." There are, after all, other considerations in ADDITION to constitutionality when deciding how to vote on legislation.

But one can hope that all Members and Senators would both inquire, and then decide, regarding each bill's constitutionality before voting on it.

Score one for O'Donnell.

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