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Topics: 4

Posts: 497
Last Post: 8:15:20pm, 04/20/2019
TyVulpine posted...
Like I said, the president cant override Congress

He wouldn't be overriding them, though, because they didn't pass judgement (in fact, they *refused* to pass judgement). If the senate considered Garland and rejected his nomination, Obama couldn't just order him to be seated anyways - that *would* be overriding Congress, but you can't override a judgement that wasn't rendered.

The way it's supposed to work (for any federal judicial vacancy) is:

1) The President is required, by the constitution, to nominate someone to fill that vacancy
2) Congress is required, by the constitution, to provide their "advice and consent" - in lay terms, they have to consider and vote on the nominee.
3) If he secures the assent of Congress, the President then appoints the nominee to the court

The problem was that Congress was failing to fulfill their constitutional obligation to provide advice and consent to the President. By the way, as a side note I keep saying "Congress" here, but the real problem was Mitch McConnell, who adamantly refused to call a hearing a Garland because it was abundantly clear he would have enough bipartisan support to be confirmed and McConnell wanted the seat left open - it was a gross violation of democracy and Mitch's authority (since he - a single congressman - was denying both the President and the greater will of the senate) and it was constitutionally questionable to boot.

If Congress is refusing to fulfill their obligations under the Constitution, the President could, at least in theory, override them and fulfill that duty himself. Note that this argument also works in reverse - if, for some reason, Obama refused to nominate any judges to fill vacancies (perhaps because he wanted to wait until after a midterm election in the hopes for a more pliant senate makeup), Congress would, by the same logic, be able to appoint judges instead.

Would this argument hold up under the inevitable flurry of court challenges that would follow? Unknown, but there's plenty of constitutional scholars who think it would.

And, for what it's worth, there are some parallels in other parts of the law. For instance, say Congress passes a law that the President doesn't like. He can veto it, which would then send it back to Congress for an attempt to override the veto, but he does actually have another option - specifically, he can refuse to sign the bill. In this case, if a set period of time passes (10 days, IIRC, but I could be misremembering) and the President has not signed the bill, it automatically becomes law anyways even though he hasn't consented to it - in essence, by failing to fulfill his constitutional duty to execute the law, the President waives his right to be involved in the law's passage. Some past presidents have used this for political reasons to basically allow something to become law without giving it their tacit support.

TyVulpine posted...
and the Supreme Court apparently didnt care to step in and order Congress to obey the Constitution, which SCOTUS could do since it is their job to enforce the Constitution

SCOTUS cannot insert themselves into government; they are only there to act as referee in disagreements. Since Obama did not take Congress to court and challenge the constitutionality of their decision not to hold hearings on his nominees, SCOTUS had no grounds to intervene.

In fact, really the only way SCOTUS would get involved is under the circumstances above, where Obama basically says that since Congress isn't doing its job, he will do it for them.
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