Newt Gingrich put in a remarkable appearance on Face the Nation this weekend. In an interview with Bob Schieffer, the candidate extrapolated on his plan to scrap the constitutional separation of powers in favor of a state where federal judges are routinely intimidated and ignored by Congress and the president.
To summarize, Gingrich’s plan is to allow Congress to order U.S. Marshals to drag judges whose opinions they disagree with before them, and to allow the president to simply ignore court rulings he disagrees with. Here’s a key exchange:
Schieffer: Alright here's another one, this is now. Next year the Supreme Court is going to take up Obama's healthcare proposal. What if they throw it out? Can President Obama then say I'm sorry boys, I'm just going to go ahead and implement it. Could he do that?
Gingrich: The key question is, what would the congress then do? Because there are three branches...
Schieffer: But could he do that?
Gingrich: He could try to do that. And the congress would then cut him off. Here's the key -- it's always two out of three. If the president and the congress say the court is wrong, in the end the court would lose. If the congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the congress loses. The founding fathers designed the constitution very specifically in a Montesquieu spirit of the laws to have a balance of power not to have a dictatorship by any one of the three branches.
Of course, Republican attorneys general took the Affordable Care Act to the courts precisely because Congress and the president had agreed on it, and the courts were their last resort in the effort to stop the law from taking full effect. That’s how the system is supposed to work. But instead, what Gingrich is advocating is what Andrew Cohen at The Atlantic calls the “Rock, Paper, Scissors Constitution” – where, instead of the careful checks and balances envisioned by the founders, you have a system where two branches of government can always team up to crush the third. The courts have always been an important check on the power of the majority. Gingrich, it seems, couldn’t care less.
People For the American Way senior fellow Jamie Raskin has a new piece in the Huffington post discussing Gingrich’s deeply troubling plans for the judicial branch, and why Mitt Romney may not be much better for the courts. You can read it here.