The Supreme Militia
As I write this, it is in the evening of 3 April, 2012, and we are facing a potential Constitutional crisis of epic proportions. The President, who happens to be a Constitutional law professor (scholar, lecturer, whatever), has made the assertion that it would be "unprecedented" for an unelected court (The Supremes) to strike down as unconstitutional a law passed by a majority of the elected Congress. We're all familiar with the superficial Constitutional issues, which is that courts do exactly this all the time. Because that is exactly their most important role. And, that it wouldn't matter one bit whether Congress passed the law unanimously; they could still strike it down. OK. We all have that.
What is more ominous is the potential crisis which would erupt if a President, riding the swell of righteous Constitutional indignation, or worse, ginned-up populist support, decided to enforce that law anyway (whatever it is doesn't matter). This isn't all that far-fetched, given how ludicrous the precipitating statement itself is.
OK, then what?
The Supreme Court can't enforce its judgments. Only the Executive can do that. But what if that Executive, of any administration, goes rogue and decides to simply ignore the ruling?
In the article Constitutional Quizzery, we discussed the concept that, constitutionally, the President owns your militia. So that's out.
In the article When to Shoot The Colonels, we discussed the fact that high-ranking military officials are political appointees, so the chance of them actually taking action against a sitting President is about nil.
This leaves Congress, which passed that law in the first place. Imagine that it is wildly supportive of whatever law was struck down. Beyond that, it has no enforcement power, either, so even if they impeach, then what?
What makes a sitting, impeached President step down anyway? Particularly if he doesn't want to? Or if his private security detail, provisioned from the Treasury Department, decides to take no action to remove him?
Not a damn thing, that's what. This would be, in effect, a bloodless military coup by the former Commander in Chief, and there is nothing in the Constitution to prevent it, other than gentleman's agreements to not. And, as we all know, the days of honoring agreements is long past gone in this country of double-breasted thieves. Oh, yeah, there's that Treasury thing again.
I'm not going to get into another long discussion of how the Constitution is broken. Been there, done that, doesn't matter anyway.
But I want you to consider this possibility. What if, instead of the President, the Supreme Court had authority, as the ultimate check and balance, to call out the irregular militia to enforce the striking down of laws which violate the Constitution should the President continue down the path he is currently on? Or to remove the former President if he and his team decide they don't want to leave? And to provide immunity from prosecution for these actions?
Imagine an order along the lines of "hit it local militias, take this long list of traitorous bastards out (or prevent this struck-down law from being enforced), and we'll make sure none of you get prosecuted." Because, after all, it is judges who judge.
I'm just saying.
Now, that would be the Supreme Militia.
So, what if this crisis continues to jump the tracks, and in desperation, the Supremes said just that?
By the way, to get your thumb on the pulse of the first barrier to local militia action, you might want to pose these questions to your local sheriff, who is on the other end of that constitutional pipeline:
1. Assume that the Supreme Court has struck down a federal law, but the DHS shows up in your county to enforce it anyway. What do you do? And no, you don't have time to consult with the state bigwigs, the DHS is busting down doors and hauling away your citizens, so you have to act now.
2. Assume that the Supreme Court has struck down a state law, but the state law enforcement officials show up in your county to enforce it anyway. What do you do?
I'm going to ask my sheriff exactly these questions. We'll see what he has to say, if anything. I'll let you know.
Because this wild-eyed crap isn't seeming so off the wall all of a sudden, is it?