President Joe Biden recently boasted, “I have a pen that can veto.”
But with his memory fading, he may need to be reminded that the courts have the power to examine his vetoes and judge whether they are legitimately constitutional.
Under the U.S. system of checks and balances, neither a president’s veto nor an executive order can override a Supreme Court decision. The judicial branch has the final word on legislation.
It’s time for all Americans to remember this. The jubilant Democrats must not get carried away upon winning a slim Senate majority in the recent midterm elections.
The Supreme Court’s supreme power
It is the grave responsibility of the Supreme Court to rein in the exaggerated “rights” agenda being promulgated by the Democrats.
The Founders knew the wisdom of establishing three separate branches of government.
Way back in 1788, James Madison argued in The Federalist No. 47 that the federal government should honor “the political maxim, that the legislative, executive and judiciary departments ought to be separate and distinct.”
The legislative branch makes the laws, the executive branch implements them, and the judicial branch evaluates whether the other branches have acted in accordance with established constitutional principles.
And right here and now that wisdom is sorely needed.
In the next two years, the House may exercise the power of the purse and oversight committees. If employed wisely and efficiently, a great deal of harm done by Biden’s first two years can be wound back.
But it is the power of the Supreme Court that is critical.
Biden’s vow to codify abortion
Before the midterms, Biden boasted that his first action if the Democrats won the House would be to codify “abortion rights” in law. But he didn’t understand the constitutional complexities of so-called rights in regard to abortion.
In a constitutional republic, the legal principles set out and originally and solemnly agreed upon cannot be changed with a majority of democratic votes. A majority vote cannot retract, for example, the basic “no property in man” principle at the heart of the 13th Amendment. Majority votes and new laws cannot authorize a return to legal slavery. Nor can majority votes and new laws bring in legal abortion and ownership and killing rights over the smallest and newest human beings (members of “our posterity”) while in their mother’s wombs.
Before the election, Biden, asked in an MSNBC interview what he would do to protect abortion access should Republicans gain legislative control, said, “Veto anything they do.”
When a president signals before an election that he has no intention of entering into any bipartisan consideration of bills he dislikes, and will use his veto power to kill those bills, then it is the judicial branch that must use its non-partisan authority to pull the president into line with his constitutional duties.
Can the Supreme Court veto laws?
The complex role of the Supreme Court in the U.S. system of government lies in its authority to invalidate legislation or executive actions that, in the court’s considered judgment, conflict with the Constitution.
In a constitutional republic, no majority can render constitutional a bill that is unconstitutional, and it is the Supreme Court’s serious responsibility to judge such cases and to require Congress to amend the Constitution or alter the bill.
For example, it is within the scope and duty of the Supreme Court to judge whether or not the executive’s interpretation of laws allowing unrestricted migration across the southern border (over 3 million foreign illegals so far) is consistent with Article IV, Section 4 of the Constitution: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.”
I have argued that even a century ago, Americans realized the danger of unchecked immigration. Nothing in the text or original understanding of the Constitution establishes any authority to enable massive illegal entry into a sovereign country. It is a betrayal of the constitutional sovereignty of the United States of America.
It may well be judged by the Supreme Court to be a violation of constitutional principles and laws to knowingly and deliberately allow the lawful protective immigration measures in place to be overwhelmed or evaded. In the framework of the Constitution, the president has both the power and the duty to see that border laws are faithfully executed.
Can the Supreme Court override executive orders?
The judicial branch of a constitutional republic can override presidential executive orders when such orders are judged unconstitutional.
As of Monday, Biden had signed 104 executive orders.
Last week, Judge Mark Pittman of the U.S. District Court for the Northern District of Texas warned, “In this country, we are not ruled by an all-powerful executive with a pen and a phone.”
This federal court decision on Biden’s executive overreach is a good omen. It shows the way forward where and if it becomes necessary to reign in Biden’s “I have a pen that can veto” boast.
Pittman explained that the executive branch must have clear congressional authorization to use any delegated power to create a law of vast economic and political significance. “In this case, the HEROES Act — a law to provide loan assistance to military personnel defending our nation — does not provide the executive branch clear congressional authorization to create a $400 billion student loan forgiveness program.”
Regrettably, Sen. Elizabeth Warren, in a New York Times opinion piece, has exaggerated Biden’s authority and given him the wrong advice: “Where we can pursue legislative action, we should fight aggressively. When Republicans try to obstruct such action and the president can act by executive authority, he must.”
No, the primary “must” is for the president’s executive authority to be consistent with the Constitution. The president must be made to recognize that it’s the judicial branch’s solemn responsibility to ensure that constitutionality.
Biden should remember that he may issue executive orders that carry the force of law, but the Supreme Court can scrutinize those orders and declare them unconstitutional (Youngstown Sheet & Tube Co. v. Sawyer, 1952).
Congress also has the power to overturn an executive order by passing legislation, but a two-thirds vote in both the House and the Senate is needed.
But now, with midterms over and both the Senate and the House fairly evenly divided between the Democrats and the Republicans, Congress is unlikely to be able to pass legislation that supersedes an executive order. A divided Congress may not be able or willing to check any attempt by Biden to misuse executive fiat to sabotage U.S. course correction.
In this situation, the Supreme Court must step up to its duty to examine any Biden executive action or order for any unconstitutionality.
May God bless the Supreme Court in this mighty challenge.
This article appeared originally on The Western Journal.