GEPHARDT RESPONDS — well, via a spokesman quoted in ABC’s The Note:
Dick Gephardt knows the law. The president can not overturn a Supreme Court decision. That’s not what he said. He was simply expressing his commitment to diversity and his willingness to use the tools of his office to promote affirmative action programs to the fullest extent possible. It’s important to remember that Harry Truman used an executive order to integrate the military.
Yeah. But that’s certainly not what Gephardt was talking about. I don’t think I can improve on Eugene Volokh’s comments on this:
Harry Truman’s executive order was very important — but it had nothing to do with an attempt to overcome a contrary Supreme Court decision. It’s hard to see how it’s evidence that a President can successfully “overcome” Supreme Court decisions that prohibit things that he thinks are good. (The Court had ruled, 50 years earlier, that segregation was permissible, but it certainly didn’t say it was mandated, and Truman’s court order wasn’t remotely a response to that decision. In fact, by the date of Truman’s order, the Court had begun its path towards desegregation, see, e.g., Missouri ex rel. Gaines v. Canada (1938) and Sipuel v. Oklahoma (1948), so Truman’s decision was actually quite consistent with the trend of Supreme Court decisions.)
Furthermore, Gephardt was speaking about the University of Michigan affirmative action case — a case involving a state university’s admissions policy. What Presidential executive order could have possibly “overcome” a decision upholding the policy?
More broadly, Gephardt said he’d “do executive orders to overcome any wrong thing the Supreme Court does.” I’m not trying to stick him with a too literal interpretation of the “any,” but I assume that he was at least saying he’d fight via executive order a broad range of the sorts of decisions that Democratic audiences would disfavor. So if the Court holds there’s no constitutional right to an abortion, he’d issue an executive order to — do what exactly? How would he overcome that “wrong thing the Supreme Court does” with an executive order? Or if the Court reverses Miranda, what precisely would he order? (He could of course order federal officials to follow the old rule, but federal law enforcement is a tiny fraction of all law enforcement.)
So it seems that, given the Gephardt office response, Gephardt’s statement was still wrong, though perhaps in a more traditional way: He was promising the audience something that he must have known he couldn’t possibly deliver (an “overcoming” by Presidential executive order, addressed to federal employees, of a hypothetical Supreme Court decision that held unconstitutional a state university policy).
I guess, then, the Gephardt response translates to “Gephardt’s not a constitutional ignoramus, or an incipient dictator. He’s just your standard-model lying politician!”
Woohoo! That gets my vote.
UPDATE: Yale Law professor Jack Balkin is pretty critical of Gephardt’s remarks, though he disagrees with Bryan Preston’s statement that they’re comparable to Trent Lott’s.
ANOTHER UPDATE: Another law professor reader, who prefers to be anonymous, sends this:
On Gephardt, the better comparison is not Trent Lott, but John Ashcroft.
If you care about civil liberties, you criticize both Gephardt and Ashcroft (as you do).
For those lefty bloggers who refuse to criticize Gephardt, I’ll just have to remember that when they criticize John Ashcroft, they wouldn’t be doing so if Ashcroft were a Democrat–that their own political bias is one of the things determining whom they consider OK to criticize.
Indeed.
YET ANOTHER UPDATE: Daniel Drezner weighs in: “I’m even more alarmed by Gephardt’s casual assumption that he knows more about constitutional law than the Supreme Court. Shudder.” And, sadly, this comment from a reader may be true:
The key difference between the Democrats handling of Gephardt’s statement and the Republican’s handling of the Trent Lott fiasco is that the Republicans were actually ashamed and embarassed by Senator Lott’s comments.
The Democrats are thrilled and encouraged by those of Rep. Gephardt.
Yeah. And as quite a few readers note, we’re not hearing any comments about the inherent illegitimacy of 5-4 decisions, today.
ANOTHER UPDATE: Reader Dan Ward emails:
To my mind, you missed one of the most important parts of the Gephardt aide’s dismissal/backpedaling on the Executive Order stupidity. The aide’s quote started with: ‘ “The fact that this question comes from libertarian law professors should speak for itself,” spokesman Erik Smith wrote in an e-mail.’
Ah. Well. Obviously all libertarians are out of their minds and have no thoughts worth considering.
I’m a former anarcho-socialist and I’m still about as far from being a libertarian as you can be without being actively Communist. But come on. Dismissing someone’s question about your candidate’s recorded statements because you don’t like his political background is mental arteriosclerosis.
Mental arteriosclerosis is, unfortunately, the order of the day in the Democratic Party, which is why I am no longer — as I once was — a card-carrying member.