Bush Steps Over Line With Opinion To Supreme Court

by Walter M. Brasch

This is the same President Bush who just after the November 2000 general election, while his political future was still undecided, gagged on a basic premise of the Constitution, telling the nation, "The legislature's job is to write law. It's the executive branch's job to interpret law." This is the president who so eloquently told an audience in St. Louis, Mo., "If affirmative action means what I just described, what I'm for, then I'm for it." The same President Bush who summed up his political and constitutional philosophy as "I know what I believe. I will continue to articulate what I believe -- I believe what I believe is right."

The Supreme Court will rule in March on that issue that could significantly modify or even overturn a quarter-century of affirmative action programs. While the basis of affirmative action is to provide disenfranchised minorities the opportunities they have long been denied by a majority culture, the University of Michigan extends the original concepts by allowing certain groups extensive "points" on the admissions tests on the basis of their race, while excluding admissions to highly-qualified and high-achieving whites.

The Michigan interpretation may very well be divisive, unfair, and even racist. The conservative base of the Republican party wants to end all affirmative action. President Bush, however, has supported limited affirmative action programs, although no one will ever confuse him with fellow Southerners Lyndon Johnson and Bill Clinton, who used the power of their office to force entitlement programs for all Americans.

The Constitutional issue isn't whether George W. Bush is right, but whether he is trying to use the power of the executive branch to influence the judicial branch. Presidents, through their attorney general and White House-appointed U.S. Solicitor General, often file legal briefs with the federal courts to influence decisions. Those actions are entirely within the Constitution. All presidents use liaison offices to lobby Congress to either kill legislation the President doesn't want or to move legislation the President does want. The President's people even move Congress to change policies and leaders. This became even clearer when President Bush and his senior staff decided that Trent Lott was an embarrassment to the Republican party and successfully removed him as Senate majority leader.

But the Constitution is clear about the separation of powers. When the Founding Fathers established the nation and its Constitution, they established the executive, legislative, and judicial branches as separate and independent. The system of checks and balances, which date to ancient Greece, was established to prevent the majority of the nation's leaders from ruling with dictatorial authority. In the first major test, Marbury v. Madison (1803), the Supreme Court forcefully ruled that "it is emphatically the province and duty of the judicial department to say what the law is." Several Supreme Court decisions during the past 200 years have reaffirmed that idea and warned that the "encroaching power" of both the legislative and executive branches upon the constitutional independence of the court system and each upon the other must not be tolerated.

During the past two years we have seen what could be a Constitutional crisis, one in which all three branches -- the Republican-dominated Congress, the Republican executive branch, and the Republican-dominated Supreme Court -- may be involved. It began with the Supreme Court voting 5-4, along political lines, to hand the presidency to President Bush. It was extended by public comments by a grateful President who may now believe he can issue "opinions" about how that Court should vote.

If this encroachment, no matter how small or insignificant, doesn't end, we may soon see a Supreme Court that will rule that the attorney general has every right to cut apart the nation's civil liberties and its First Amendment rights. James Madison and Thomas Jefferson, primary writers of documents that established the nation, had different political philosophies, and constantly fought over numerous issues. But, among the many areas they did agree upon was the need for a Bill of Rights -- and a separation of powers.