March 31, 2009
— Ace Worth listening to; skip the interstitial Romney-bashing stuff to get to the actual phone calls.
If Ann Coulter is insufficiently conservative, then, um... okay.
Skip to 6:00 if you don't want to listen to the whole thing. The claim that Romney himself instituted gay marriage is, as Coulter says, crazy. I have heard this claim before; it's bunk. People who aren't lawyers simply don't understand how opinions are written or what they mean. The SJC claimed that it was unconstitutional to deny marriage licenses to gay couples; the clerks who issue them therefore had to comply, or could be held in contempt (or directed to issue the license with a quickly issued writ of mandamus, an order to "do your duty"). And if they balked at that, then would come contempt, and possible jailing, or judicial elevation of another clerk to the job of issuing licenses, etc.
The idea that Romney himself wasn't directed to issue the licenses is irrelevant. Since when has the governor himself ever issued marriage license? The duty was imposed on the petty state officials who actually do such things.
This is exactly the same as claiming that when the US Supreme Court ordered the military to treat illegal combatants as protected under the Geneva Conventions, it was actually done at Bush's initiative.
It should also be noted that when the courts rewrite the law, they usually do not direct the legislature to rewrite the law as they want it to be rewritten. They just announce, "This is the new law," the legislation on the books notwithstanding. (Indeed, there are many laws remaining on the books which are no longer actually binding law due to court fiat.) True, once in a while they do in fact to direct the legislature to promulgate a new law in accordance with their sudden discovery of what the law is; but usually they just say "Here's the law."
Same thing here. The SJC did not direct the legislature to recognize gay marriage. Nor did they direct the governor to order his inferior officers to issue licenses. They don't have to. They rarely do that. They instead order the inferior officers themselves to take the action they claim is now constitutionally required.*
The difference on this issue seems to be that Ann Coulter is a lawyer and the guy making this claim is an "activist."
The only argument even makable here is that Romney could have defied the court and provoked a constitutional crisis by ordering his petty clerks not to issue such licenses, and firing the ones who did. But that is always an option left open to the executive -- and Bush didn't defy the courts, either. Who does? Like, no one since Andrew Jackson. Because the courts will ultimately prevail, most likely, and even if the executive should prevail, a constitutional crisis like this is a scary thing.
I'm not saying it shouldn't be done sometimes. One could argue here it should have been done, so lawless were the courts. But the courts are frequently lawless-- why does Mitt Romney, and Mitt Romney alone, have this special obligation to go Andrew Jackson on the courts when we make no such demands of any other governor or President?
* They probably don't do this because the legislature and executive are co-equal branches, or at least the courts sometimes pretend they are. They balk from ordering governors and legislatures -- co-equals, not inferiors -- to do this or that. But they get around this by just rewriting the law at will -- no ordering the legislature to do it; just doing it themselves -- or by ordering about lesser executive officials to do this or that.
In effect, of course, there's no difference. When they order a petty executive official to take an action, that is in fact taking the true constitutional authority from the governor to act as that man's superior and giving it to themselves. But for the sake of formalities, of pretending they're not elevating themselves above the legislature and executive, they refrain from directly ordering their coequals to do anything.
Most demands imposed will be on, say, the warden of a prison, or the Secretary of Defense, or the director of the EPA, etc. Rarely do they demand the president or governor himself undertake an action, that he himself order his subordinates to take the action.
Sometimes, yeah. But rarely.
Posted by: esra erol at November 04, 2010 04:41 AM (2x3XE)
Posted by: muscle confusion at May 27, 2011 04:18 AM (nX5QT)
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