Executive Review

May 28, 2026

Courts have the power of judicial review. They use it to strike down unconstitutional laws and executive actions. This is a major feature of our system of checks and balances. The President has the same power to strike down unconstitutional laws or judicial rulings. This power, "executive review," is based on same reasoning that the Supreme Court used to justify judicial review. Any law, executive action, or judicial order that conflicts with the Constitution is null and void. Justices, judges, and presidents have the power, and the duty, to refuse to enforce them.


General Ken
	You have laid out why you think the current income tax is unconstitutional, but is there any way to fix it? Do you think the Supreme Court is going to strike down the income tax law?
Filius X. Publius
	Not very likely. The current Court has three members who are sure to resist any change to make the income tax rates just. They only need two of the other six justices to keep the current rates, and justices don’t like making major constitutional rulings if they can avoid it.
General Ken
	Are you hoping for some fix from Congress? Maybe they will sneak a flat tax into one of their various "tax reform" packages?
Filius X. Publius
	No. The Democrats won’t want to part with the progressive income tax. And few Republicans will want to fight them over it. They know the Democrats will accuse them of supporting tax cuts for the rich.
General Ken
	Does that mean you have no hope of achieving a just tax code? Is this all just theory?
Filius X. Publius
	Hope remains alive. There is a third branch of government.
Tall, Dark, and Handsome
	The Executive Branch? Do you now approve of the President governing with a pen and a phone?
Filius X. Publius
	I still oppose presidents issuing orders to take the place of laws. Laws that Congress did not pass. There are lots of things presidents can do with executive orders. Things that are constitutional.
Blayden Balance
	Do you think the President can order the Treasury and the IRS to use a single tax rate for all taxpayers?
Filius X. Publius
	No. Congress wrote the tax rates into law. Only Congress can change them.
Blayden Balance
	What type of fix could the President do? That is, what can he do without congressional approval?
Filius X. Publius
	He could declare the entire income tax unconstitutional. And then stop enforcing it. Stop accepting taxes withheld from paychecks. Require employers to return the money withheld to the workers who earned the money.
Tall, Dark, and Handsome
	I’ve never heard anything so outrageous!
Blayden Balance
	Where did you get the idea that the president can declare a law unconstitutional?
Tall, Dark, and Handsome
	Without the income tax revenue, won’t the government default?
General Ken
	How would the government be able to function without the tax revenue?
Filius X. Publius
	Excellent questions. Can we start with the power to declare a law unconstitutional? If I am wrong about that, we can skip the other questions.
General Ken
	Ok. Have at it.
Filius X. Publius
	Let’s start with signing statements. Presidents sometimes issue them when signing a new law.
Blayden Balance
	We can start there. Presidents have used them to interpret newly enacted laws. Sometimes they have disputed the constitutionality of parts of the new law. But they have never declared the entire law to be unconstitutional. If a president thinks a proposed law is unconstitutional, he should veto it.
Filius X. Publius
	Correct.
General Ken
	Wait. Why does anyone need a signing statement?
Blayden Balance
	Presidents have used them for different purposes:
	● To clarify ambiguous language
	● Limit constraints on the Executive by declaring some provisions unenforceable
	● Direct how executive branch agencies should enforce the new law.
General Ken
	So what does that have to do with a President declaring a law to be unconstitutional?
Filius X. Publius
	Those statements show presidents interpreting the Constitution. They have the power to read and interpret the Constitution. And the duty to do that when deciding how to comply with each law. And how to enforce each law.
General Ken
	What makes you think that extends to declaring a law unconstitutional?
Filius X. Publius
	Well, the oath of office is one major reason.
General Ken
	How so?
Filius X. Publius
	What should a president do about an unconstitutional law? Suppose there is a law on the books when he comes into office. An unconstitutional law. What can he do about it? What should he do about it?
General Ken
	In that case, he must enforce the law until the Supreme Court declares it unconstitutional.
Filius X. Publius
	You think he must take an oath to uphold the Constitution but also enforce an unconstitutional law? A law he believes is null and void? Does he need the Supreme Court’s permission to comply with the Constitution and with his oath?
General Ken
	How does he know a law is unconstitutional? Only the Supreme Court can declare a law to be unconstitutional.
Filius X. Publius
	He can know the law is unconstitutional the same way the Supreme Court does. He can read and interpret each law. And he can read and interpret the Constitution.
Blayden Balance
	That is a judicial duty.
Filius X. Publius
	It is also a legislative duty. And an executive duty. Congress has the duty to make sure each law it passes is constitutional. The Executive Branch has that same duty with complying with the law, and enforcing it.
General Ken
	That seems to be a problem in recent years.
Filius X. Publius
	It always is. It is easy and natural to concentrate on a problem you see in the country, and to put all of your attention and efforts into fixing the problem. It is too easy to forget the limits on what the government may do. Even those who remember the limits have problems. They face the temptation to ignore the limits so they can implement their current pet project. It is too easy for us humans to justify whatever we want to do.

	We excuse ourselves for such transgressions by lying to ourselves. It is always "just this once." Or the current need is "urgent." Or that the framers of the Constitution couldn’t have foreseen this problem. Or any one of many other plausible sounding evasions.
Blayden Balance
	That is why an independent judiciary is so important. The judiciary is the non-political branch of government. It won’t have pet projects. The judges and justices can pay more attention to the constitutional limits.
Filius X. Publius
	That was the framers’ plan, and it is a good one. Some other time we can discuss how well the judiciary is doing its job.

	The President has the duty to read, interpret and enforce the Constitution. That duty may require the President to declare a law unconstitutional.
Blayden Balance
	There are two more hurdles for you. The Supreme Court has already ruled that the income tax is constitutional. Even tougher, the Supreme Court has ruled that it is the ultimate interpreter of the Constitution.
Filius X. Publius
	It isn’t uncommon for two branches to disagree on if a law is constitutional. The three branches of our government are equal. No one branch can order another branch to agree with it. Even the Justices on the Supreme Court don’t always all agree with each other. We shouldn’t be surprised that the Court and the President might disagree.

	So the Supreme Court declared itself the ultimate interpreter of the Constitution. That seems self-serving and very convenient for the Court. Can we examine their evidence for that claim? Did they cite the clause in the Constitution that says or implies that?
Blayden Balance
	They didn’t cite the constitution. They did quote from Marbury v. Madison. That decision established judicial review. It has guided the courts for more than 200 years.
		Marshall, speaking for a unanimous Court . . . declared in the notable case of Marbury v. Madison that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution (citation omitted)
Filius X. Publius
	I’ve read the Marbury opinion. We can check their quotation.
Blayden Balance
	Do you think they didn’t get the words right?
Filius X. Publius
	Not at all. There is more than one way to misquote a source. In this instance, the Court quoted only the words that seem to support their claim that the Court "is supreme in the exposition of the law of the Constitution." Consider a longer quote from Marbury v. Madison:
		It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. . . . So if a law be in opposition to the constitution . . . the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
Blayden Balance
	Even your longer quote supports the Court. It says that interpreting the Constitution is a "judicial" duty.
Filius X. Publius
	Marbury said it is the essence of judicial duty. They didn’t say it is *exclusively* a judicial duty. It is fundamental for the judiciary to do its job. But others also have that duty.

	For a bill to become law, Congress has to enact it. That is, before the courts can "say what the law is," Congress must first "say what the law is." Congressmen also have the same duty to read and interpret the Constitution.

	Also, the President shares that duty. He must do it when enforcing the laws.
Blayden Balance
	Your quotation allows the view that interpreting the Constitution is a shared duty. It doesn’t require that view.
Filius X. Publius
	In Marbury, the Court only had to explain judicial review. We can see the Court’s reasoning for judicial review. And we can apply that same reasoning the executive. The same reasoning works equally well for both the judiciary and for the executive.
Blayden Balance
	That statement requires proof.
Filius X. Publius
	Okay. The best proof would be to walk through the Court’s reasoning and see if it matches both the Judicial Branch and the Executive Branch. The Court started by posing the question “can an act that is repugnant to the Constitution become the law of the land?” The Court’s argument started with certain long and well established principles:
		The people have the original right to establish our government and to organize it on whatever principles we consider best.
		For the people to exercise this right of creating and organizing the government is a great exertion, which cannot be repeated often (nor should it be repeated often).
		Therefore, the principles so established are deemed to be fundamental, and are designed to be permanent.
General Ken
	Permanent? What does that do to the idea of a "living constitution?"
Filius X. Publius
	It destroys it, but that is topic for another day. To continue with the well established principles:
		When we, the people, created our Federal Government, we delegated some powers to the branches of the government, and we also put limits on those powers.
		The Constitution was written so that those limits would not be mistaken or forgotten.
Spawn of the Torch Lady
	Clearly the written Constitution isn’t enough. We need something more to keep the government within those limits.
Filius X. Publius
	Again, that is another topic for another day.

	Next, the Court considered what to do if Congress enacted a law forbidden by the Constitution. Should they enforce that law? Or should they consider the law is really not a law?
General Ken
	The answer to that is obvious. The courts would strike down that "law."
Filius X. Publius
	Right. The Court ruled that a law that violates the Constitution is void.

	The Court asked itself if it must enforce a "law" even though that "law" was void? The Court thought was a gross absurdity. But the Court did give it more consideration. Based on those fundamental principles they had discussed, they then justified judicial review with these main points:
		The members of the Court must take oaths to uphold the Constitution.
		The Court must apply the laws to particular cases.
		If both the law and the Constitution apply to the case, the Court must be allowed to read and interpret the Constitution.
		If the law and the Constitution both apply to a case, and if they conflict, the Court must follow the Constitution.
		If the Court finds that the law conflicts with the Constitution, the Court has a duty to declare that law void, and refuse to enforce it.

	All of those points apply equally to the President.
		The President must take an oath to uphold the Constitution.
		The President must apply the laws to particular cases.
		If both the law and the Constitution apply to a case, the President must be allowed to read and interpret the Constitution.
		If the law and the Constitution both apply to a case, and if they conflict, the President must follow the Constitution.
		If the President finds that the law conflicts with the Constitution, the President has a duty to declare that law void, and refuse to enforce it.
Blayden Balance
	I’ll grant that the Constitution requires both the Justices and the President to take an oath to uphold the Constitution. But the President doesn’t apply the law to particular cases like the courts do.
Filius X. Publius
	Yes, he does. The President must enforce the laws. Many laws go unchallenged. No court has reviewed those laws. That leaves the President on his own. He must interpret each law and the Constitution. And enforce those laws in a constitutional manner.

	The President’s duties include investigating alleged crimes. If the evidence proves the suspect violated the law, the case moves to court. Only then does a court have to apply the law to a particular case.
General Ken
	The President doesn’t do those things. There are federal agencies for those tasks. They issue and enforce regulations. Collect tariffs. Spend the money. And investigate and prosecute crimes.
Filius X. Publius
	You are right about there being all those federal employees to help the President to carry out the laws. But all of them draw their power from the power of the President. The Constitution vests all of the executive power in the President.
General Ken
	All executive power? Does that mean the President could go along with the F.B.I. when they do a search warrant?
Filius X. Publius
	Yes, it does. It would be a poor use of his time. And it would give the Secret Service nightmares. But it would be a constitutional exercise of his executive power. Presidents usually rely on the Justice Department to carry out those day-to-day duties. That is why Congress created that department in the first place. But the President has both the duty and the power to direct their actions. The Executive Branch has limited resources, and Congress and the President should be the ones who set the priorities.
General Ken
	So presidents can tell the Attorney General to put a priority on civil rights cases? For example, go after cross-burners?
Blayden Balance
	An excellent example. The Supreme Court has ruled that burning a cross, even in public, can be an exercise of the right of free speech protected by the First Amendment.

	The Court has also ruled that burning a cross to intimidate someone is a crime.
Filius X. Publius
	The Executive Branch enforces the laws against intimidating others. When considering a cross burning case, it must consider the evidence. But it must also interpret both the law and the Constitution. The Judicial Branch only gets involved if the case goes to trial. Then the judge in the case must also consider the evidence, the law, and the Constitution.
Blayden Balance
	In this example, the both the Executive Branch and the trial judge can rely on Supreme Court rulings.
Filius X. Publius
	Partially. The Executive Branch might have a less generous reading of the First Amendment. It might want to punish a cross-burner. But the prosecutor might not bring charges, expecting the trial court will refuse to convict.

	If the Executive Branch might have a more generous reading of the First Amendment. In that case, it may decline to prosecute some cross-burners. Even if courts would allow punishing those cross-burners.
General Ken
	If the two branches have different interpretations, which one controls?
Filius X. Publius
	Neither. Keep in mind that the three branches are equal. All the courts must follow the Supreme Court’s interpretation. Everyone in the Executive Branch must follow the President’s interpretation.

	The Executive Branch has limited resources. It probably won’t bring cases if the judiciary won’t enforce the law. In those instances, the Judicial Branch’s interpretation governs.

	But there could be a case where the judiciary is willing to enforce the law. However, the President might believe enforcing the law in that case would infringe on one of the suspect’s constitutional rights. In such a case, the Executive Branch will not bring the case to court. In this case the Executive Branch’s interpretation governs.

	Sometimes conflicting interpretations may not matter. Not all government actions involve the courts.
General Ken
	Such as?
Filius X. Publius
	When one person sues another person in federal court, the Executive Branch may not be involved at all. It would only become involved if it must enforce a court’s ruling.

	Most government spending also avoids the courts. The usual pattern is simple. Congress appropriates the money. The Executive Branch spends the money. No one consults the judiciary.
General Ken
	But somebody has to be in charge!
Filius X. Publius
	No. None of the branches gets the absolute power to dictate laws and policies to the rest of the government. This is part of the checks and balances that protect the liberty of the people.

	The idea of the checks and balances system is that no branch is in charge. For most things that one branch might do, another branch can stop it from doing it. If any branch does something that endangers the people’s liberty, another branch can stop it. The government can’t really do much without at least two branches agreeing on what to do. The government is at its most dangerous when it tries to punish someone. In this case, all three branches must agree.
	● The government can’t just lock someone up. They must find a law that person violated. Which means that Congress must have enacted a law banning some actions.
	● The Executive Branch must agree that the law is constitutional. If not, then the Executive Branch should refuse to enforce the law.
	● The Executive Branch can’t just accuse someone of breaking the law; it must present evidence in court.
	● The judiciary must agree that the law is constitutional. If not, then the judiciary should refuse to enforce the law.
	● The judiciary must review the evidence. And it must agree that the evidence proves the accused is guilty.
General Ken
	Wouldn’t this make Congress the weakest branch? If both the other two branches could declare the laws unconstitutional, what powers would Congress have left?
Filius X. Publius
	The branches all have equal standing. Something is unconstitutional only if there is a real conflict between it and the Constitution. Any official, in the judiciary or in the executive, who finds such a conflict must be able to provide a clear explanation of the conflict. Only then should that official declare the law to be null and void.
Spawn of the Torch Lady
	There have been exceptions.
Filius X. Publius
	Yes, there have been exceptions. Everyone who has ever served in government has been a fallible human. Each of us has sometimes failed to live up to the standards.

	Executive review goes further than just reviewing laws. It also includes reviewing judicial orders. An Executive Branch official should not jump to obey a judicial order. He must review the order. If the order conflicts with the constitution then the order is null and void. No one should obey such an order.
General Ken
	How can a judicial ruling be unconstitutional?
Filius X. Publius
	A judge may use a power not granted to the judiciary by the Constitution.
General Ken
	Such as?
Filius X. Publius
	Judges cannot overrule political decisions. Judges must be non-political. They may review actions. Judges can act if someone did some action that a law forbids. Also, they can act if someone failed to do some action that a law requires. But they may not review policy decisions.
General Ken
	That requires an explanation. Better yet, an example.
Filius X. Publius
	Government building projects usually require an environmental impact statement (EIS). A judge might rule that the EIS doesn’t meet his standards. He orders a re-do. And work on the project must halt until he is happy.
Spawn of the Torch Lady
	Seems like that sort of thing happens all the time.
General Ken
	Why would it be a problem? Legally, I mean. Not that the judge has slowed down the project.
Filius X. Publius
	An EIS has some requirements spelled out in law. If the EIS doesn’t meet the legal requirements, that is an action, or an inaction, that a judge may review. But much of the content of the EIS represents political decisions. The judge may not review those political decisions.
General Ken
	You haven’t made it clear yet.
Filius X. Publius
	By law, an EIS must discuss alternatives. Such as using a different design for whatever the project will build. Or alternative building methods. Even other reasonable options for the end result. Including not going ahead with the project.

	One alternate building method might use more electric vehicles during construction. But the conclusion in the EIS may say that option isn’t reasonable because of cost. That recommendation is a political decision. No judge can overrule it. Even if the judge wants more EVs in use.

	The judge might have a favorite "other option" that the EIS did not even discuss. The writer may have left it out because he deemed it not reasonable. Calling it not reasonable is a political decision. The judge may not review that decision.
General Ken
	What if it is a carelessly written statement? One obviously thrown together just to meet the bare minimum requirements?
Filius X. Publius
	Political decisions. Not reviewable by the courts.
Spawn of the Torch Lady
	That will upset a lot of political activists and judges. They won’t want judges kept out of political decisions.
General Ken
	Then what’s the point in having those statements? If they can get away without putting in any serious effort?
Filius X. Publius
	There is oversight. Deciding if an EIS is good enough is a political question. And all political questions belong to the political branches. Congress gets to decide if an EIS is good enough. The oversight committees do that.
Blayden Balance
	What if the law requiring the environmental impact statement said the courts can review the quality of the statements?
Filius X. Publius
	The Supreme Court has already ruled on that issue. As it turns out, that was a key issue in Marbury v. Madison.

	Congress passed a law expanding the Supreme Court powers. That particular power was a judicial power, but the Court said that power is only for trial courts. Not appellate courts. The Court said that the rule was unconstitutional. It was the first time the Supreme Court used judicial review.

	The Executive Branch can rely on that ruling. Any law granting a political power to judges is unconstitutional. The courts can review the legality and constitutionality of actions. But it is Congress’ role to review the political decisions.
Blayden Balance
	That would upset a lot of current legal practice.
Spawn of the Torch Lady
	It is sure to upset many political activists. They would lose one of their favorite tools. They love stopping or delaying building projects by just finding a friendly judge.
Filius X. Publius
	Anyone in the Executive Branch who has taken an oath to uphold the Constitution can use executive review. In fact, they have a duty to do so. For example, suppose the Secretary of the Treasury agrees with me that the progressive income tax is unconstitutional. Then he should declare that law unconstitutional. The law would be null and void. He must refuse to enforce it.
General Ken
	How would the government function? If you overturn the income tax everyone stop income tax withholding. Where will the government get money?
Tall, Dark, and Handsome
	The government would face default. That is unconstitutional. The President would have to keep collecting the income tax.
Filius X. Publius
	Income tax withholding payments would stop. The law ordering the withholding is unconstitutional. The government has no valid reason for accepting them.

	We finance payments on the debt through more borrowing. So a default shouldn’t be an immediate problem.
Tall, Dark, and Handsome
	What about defaulting on our moral obligations to make the payments on social programs?
Filius X. Publius
	That is not the type of default the Fourteenth Amendment refers to. The Amendment refers to payments on government bonds.

	The government could delay or reduce some non-debt-related payments. At least until Congress passes a new income tax and collections resume.
General Ken
	A new income tax? Right after the President struck down the old income tax?
Filius X. Publius
	Remember, the current income tax is unconstitutional because it fails the equal treatment rule. It does not have the consent of the governed. Congress could enact a new income tax that has everyone pay the same rate. Once the President signs it into law employers can resume sending in withholding.
Tall, Dark, and Handsome
	What about the lost revenue while there was no withholding? How would the government get that back?
Filius X. Publius
	Why is that necessary? Was the government ever entitled to those taxes? However, if the political branches feel they need that money, they could find a constitutional way to get it.
General Ken
	How?
Filius X. Publius
	That would be up to the political branches to negotiate. Perhaps Congress would want to set the new rate high enough for the a year or two to recover that "lost" revenue, and then have a lower rate for the following years. Perhaps some of the planned spending would just go unspent.
Tall, Dark, and Handsome
	That would be outrageous!
Filius X. Publius
	Is that too high a price to achieve justice?
Blayden Balance
	If presidents can start declaring laws to be unconstitutional that would upset our system of checks and balances. That damage could lead to a constitutional crisis.
Filius X. Publius
	Why?
Blayden Balance
	It would give the Executive Branch too much power over Congress. The President could simply strike down any law he didn’t like.
Spawn of the Torch Lady
	Is that what you think the Supreme Court does now? Do you think they strike down laws just because they don’t like those laws? Do they declare a law unconstitutional because they disagree with the political policy that the law implements?
Blayden Balance
	Are you trying to change the subject?
Spawn of the Torch Lady
	I don’t think so. You said it would be a constitutional crisis if the Executive Branch declared a law unconstitutional. You seem to be happy with the Judicial Branch doing that. What’s the difference?
Blayden Balance
	Judicial review is a long and accepted part of our system of checks and balances. The Court uses judicial review to keep the Congress and the Executive Branch in line with the constitutional limits.
Filius X. Publius
	What part of the checks and balances system keeps the Judicial Branch in line?
Blayden Balance
	Congress can impeach any judge or justice.
Filius X. Publius
	But judges have life-time appointments. They are safe as long they are in "good behavior." Should Congress start impeaching judges who don’t rule the way Congress wants?
General Ken
	That could result in each party impeaching the other party’s judges.
Blayden Balance
	Then everyone would think the judiciary is just another political branch of the government.
Spawn of the Torch Lady
	Some of us already think that.
Filius X. Publius
	Does the Court get to use judicial review to make policy changes?
Blayden Balance
	No. The Court uses the Constitution as its guide in all of its rulings.
Spawn of the Torch Lady
	Some of us would argue that isn’t true. The Supreme Court has been making policy choices for decades. They don’t limit themselves to reading and enforcing the Constitution. How about gay marriage and abortion as examples?
Filius X. Publius
	We should come back to that topic some other time.

	For now, let’s assume that the Court does rely only on the Constitution.

	Why do you assume that any President would strike down laws just because he doesn’t like them? Why can’t won’t the President follow the Constitution just like the Court?
Blayden Balance
	The Executive Branch is a political branch. The President is part of a political party or movement. He has policies he promised to implement.
Filius X. Publius
	One political branch appoints all of the judges and justices. The other political branch confirms them. All the politicians in the Executive Branch take an oath to uphold the Constitution. So do all the politicians in Congress. So do all the judges and justices. Do you think only the judges and justices keep their oaths?
Blayden Balance
	It’s not a matter of trying to keep their oath of office. I am willing to assume that all government officials intend to keep their oaths to uphold the Constitution. The problem is the distractions of their day-to-day duties. Those duties are different for judges than for congressmen or presidents.

	Judges spend a lot of time interpreting and applying laws and the Constitution. They don’t have policies they try to implement. Presidents spend a lot of time implementing policies. It is easier for the President to lose sight of the Constitution when he focuses on policy objectives.

	An independent judiciary is important to the checks and balances. The judiciary can concentrate on enforcing the Constitution. Even if it means interfering with the President’s policy objectives.
Filius X. Publius
	I agree with that. I am not arguing against judicial review. But the same arguments used in Marbury also work for the Executive Branch. When a law conflicts with the Constitution it is null and void. The Executive Branch can declare that. When judges use powers not granted by the Constitution their orders are null and void. Any Executive Branch Officer can declare that, too.

	It isn’t a Supreme Court ruling that makes the law void. It is the conflict between the law and the Constitution.
Blayden Balance
	But it is the Supreme Court’s job to find and fix those conflicts.
Filius X. Publius
	I would argue that it is the Federal Government’s job to find and fix those conflicts.
	● If Congress is the first to find the conflict, then it should repeal or re-write the law.
	● If the Executive Branch is the first to find the conflict, then the President, or some Executive Branch Officer, should declare the law or judicial order unconstitutional and stop enforcing it.
	● If the courts are the first to find the conflict, they should declare the law or Executive Branch action unconstitutional and refuse to enforce it.
Blayden Balance
	That would upset 200 years of legal practice.
Filius X. Publius
	No, it wouldn’t. The Executive Branch stopped enforcing the Alien and Sedition Acts when Thomas Jefferson became President.
Blayden Balance
	The Sedition Act expired the day before Jefferson was sworn in as President.
Filius X. Publius
	Well, there goes what would have been a great example. There are some more examples, but they aren’t as dramatic as the Alien and Sedition Acts would have been.
Blayden Balance
	You’re advocating allowing the Executive Branch to use a judicial power.
Filius X. Publius
	I’m advocating that Executive Branch Officers obey their oaths of office. That they should uphold the Constitution. That includes refusing to enforce a law that conflicts with the Constitution.

	You seem to be more concerned with who fixes the conflicts, rather than with getting the fixes done.
Blayden Balance
	Let’s go back to that problem that the presidency is a political job. What checks and balances are available to Congress if the President declares a law unconstitutional for policy reasons? What if there is no real conflict between the law and the Constitution?
Filius X. Publius
	What checks and balances are available if the problem is the courts? What if the Supreme Court declared a law unconstitutional for policy reasons? If there is no real conflict between the law and the Constitution?
Blayden Balance
	Congress can re-enact the law, perhaps with a clear statement of Congress’ interpretation of the law’s constitutionality. Congress can impeach and remove from office any judge or justice that abuses his constitutional authority.
Filius X. Publius
	Congress would have those same checks and balances on a President. In addition, Congress has the power of the purse. Also, the Senate can hold up the confirmation of appointments.
General Ken
	The Senate holds up appointments so often now that it might be difficult to know when they are doing that for a specific reason.
Filius X. Publius
	Impeachment is rare for judges and, until recently, presidents.
General Ken
	Was anyone ever impeached for a disagreement over interpreting the Constitution? I mean before the Democrat Party started impeaching President Trump for fun and profit.
Blayden Balance
	Actually, that has happened. Congress impeached Andrew Johnson, the first President ever impeached, over an constitutional interpretation. They disagreed about whether a President could fire an Executive Branch Officer. Congress thought Senate confirmation protected those confirmed.
General Ken
	I thought that was a given.
Blayden Balance
	It is a given today largely because President Johnson did fire Secretary of War Edwin Stanton. Although Congress impeached President Johnson, it did not remove him from office.
General Ken
	You mentioned the "power of the purse" as one of the checks Congress has on the President. How could that come into play if the President declares a law unconstitutional and Congress thinks the law is constitutional?
Filius X. Publius
	The Executive Branch can’t spend money unless Congress appropriates the money. Congress can deny the President funding for his programs until he comes around to agree with their interpretation of the constitution.
General Ken
	That sounds like blackmail. It also makes for inefficient government.
Blayden Balance
	The most efficient government is a dictatorship, like you get with absolute monarchs, fascism, socialism and communism.
Filius X. Publius
	Yes, our government is inefficient. That is by design.

	Efficiency is not why we have a government. The Declaration makes it clear. We created our government to protect our God-given rights.
Blayden Balance
	He’s right about that. The Constitution starts with the list of its goals, and efficiency didn’t make the list: to strengthen the Union, provide for Justice, Domestic Tranquility, Common Defense, and our General Welfare, and to protect our Liberty.
Filius X. Publius
	The Constitution includes our system of checks and balances to protect the freedom of the American people. Not to make government more efficient.
Spawn of the Torch Lady
	I don’t know how well they did on achieving those goals in that list, but we sure didn’t get efficient government.
Filius X. Publius
	Our Federal Government can occasionally be efficient, but only when all three branches agree. When those occasions arise, the Federal Government can get the most work done, but it is also those times when our freedom is most at risk.

	In World War 2 we locked up American citizens of Japanese descent in internment camps. All three branches of the government agreed with the policy. We closed the internment camps after the war. Congress voted to reimburse those interned for property losses. It wasn’t until 1988 that Congress voted restitution payment to each survivor of the camps.
Blayden Balance
	What about the responses that would happen if a President used executive review to declare the current progressive income tax unconstitutional?
Filius X. Publius
	Well, we could expect a lot of people to sue. They would ask the courts to overturn that order. Also, all of the "swamp dwellers" would eagerly impeach the President. The swamp dwellers love their "tax the rich" mantra. They will not let anyone take that away from them. Such an offense cannot go unpunished.
General Ken
	The impeachment might depend on how the people react to their take-home pay increasing when the income tax withholding stops.
Filius X. Publius
	Yes, that is a consideration. Perhaps Congress would hold off on impeachment until they saw how popular, or unpopular, the executive review order was.
Blayden Balance
	What about the lawsuits?
Filius X. Publius
	Those lawsuits might not even come before the Supreme Court. The lower courts could throw those cases out.
Blayden Balance
	Why would they do that?
Filius X. Publius
	The judges would be on the horns of a dilemma. Suppose a judge ruled that executive review doesn’t really exist. That ruling would declare that the reasoning for executive review is invalid. But the reasoning for executive review is the same as for judicial review. Such a ruling would also overturn both Marbury and judicial review.
		The courts can’t use judicial review if they overturn Marbury. They can’t declare anything unconstitutional. Not even executive review. So the President could continue to use executive review.

	Or:
		If Marbury is still a valid precedent, then its logic applies to the President. Then the courts must declare executive review constitutional. So the President could continue to use executive review.

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