Who Holds the Power?

Q: Sometimes a legislature will pass a law and then a judge will make a decision that it cannot go into effect. The legislature can override a Presidential veto, can it also override the judiciary?

A: As a good citizen, you know that our government is comprised of three separate, though equal, branches of government: the Legislature, the Executive, and the Judicial. Our United States Constitution vests all the lawmaking powers in the Legislature: the Senate and House of Representatives.

(Sidebar: Did you know you do not have to be a Congressman in order to be the Speaker of the House? In fact, the 105th Congress gave two votes for former Congressman to serve as speaker. It has me thinking of a career change.)

The Legislature, however, is powerless to put those laws into action. The Executive (the Presidency), therefore, exists to implement and enforce the laws passed by the Legislature. The Judiciary cannot make law, nor can it enforce the laws; however, in the words of one venerable U.S. Supreme Court jurist, it can, “say what the law is.”

If the Executive does not like a piece of proposed law, it can reject the work of the Legislature, known as a “veto.” In very rare instances, this will rile the Legislature enough that it will invoke its Constitutional right to override the Executive by a supermajority (a 2/3’s vote). But this seems a far cry different from when a judge declares a certain law – legislated by the Legislature, executed by the Executive – to be “unconstitutional.”

The framers of our Constitution recognized that government must have an independent branch review the law being produced and executed. If the Constitution were to have any effect, it could not be undermined by legislation contrary to its stated goal of forming, “a more perfect Union.” Hence, it falls to the Judiciary to approve of legislation and how it is being executed.

Thus, when a judge declares that a given law is unconstitutional, the court is saying that the law is inconsistent with the standard by which we have consented to be governed: the Constitution.

While the Legislature is not given a veto over the Judiciary, it can change the law that’s been deemed unconstitutional. In other words, the Legislature can fix the fatal defect and, therefore, achieve a quasi-veto over the Judiciary. Or, the Legislature could attempt to amend the Constitution so that the law previously deemed to fall outside of the Constitution would now fall squarely within the ambit of its protection.

This is why your civic duty of voting is so important. It falls to us, the citizens of America, to select representatives and senators who understand our Constitution and who will institute laws consistent with it. Good lawmakers understand the Constitution and their role in making laws that will, “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity . . ..”

Remember to vote on Tuesday. (And tell your Congressman to vote me in as Speaker of the House!)

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.