I would instruct the national security officials in a Gingrich administration to ignore the recent decisions of the Supreme Court on national security matters, and I would interpose the presidency in saying, as the commander in chief, we will not enforce this. And by the way, for our liberal friends, the source of that is Franklin Delano Roosevelt. In 1942 a group of German saboteurs were landed in Florida and Long Island. They were all picked up within two weeks. Roosevelt brought in his attorney general and said: They will be tried in a military court, they will be executed, it should happen within three weeks, and tell the Supreme Court if they issue a writ of habeas corpus, I will not honor, and therefore they should not issue it. I am the commander in chief in wartime. They aren't.
- Remark made by Republican presidential candidate Newt Gingrich in a speech to the Values Voters Summit in Washington, D.C., October 8, 2011. He repeated the comment the next day in an appearance on the CBS-TV program, "Face the Nation."
We checked the Constitution, and...
Candidate Gingrich's comment, like the quotation he cited from President Roosevelt, sounds like constitutional bravado. It is a rarity for presidents to simply ignore decisions of the Supreme Court, although it has been done. President Abraham Lincoln famously ignored Chief Justice Roger B. Taney's order finding unconstitutional Lincoln's suspension of habeas corpus rights in 1861, early in the Civil War.
But the example of Roosevelt and the German saboteurs is more complex than the Gingrich summary implies. The saboteurs, convicted of war crimes by a military commission, actually had their day in a civilian court -- in three courts, including the Supreme Court -- as they pursued (unsuccessfully) a writ of habeas corpus. They were not executed until after the Supreme Court had upheld the president's power to set up the military commission. There was never an occasion for Roosevelt to ignore the Court.
Presidents in general have tended to see it as their duty to obey Supreme Court rulings, and, at times, even to enforce them. For example, President Dwight Eisenhower called out the military in 1957 to enforce the Supreme Court's order to racially integrate the Little Rock, Ark., public schools. Eisenhower told the nation: "Whenever normal agencies prove inadequate to the task and it becomes necessary for the Executive Branch of the Federal Government to use its powers and authority to uphold Federal Courts, the President's responsibility is inescapable."
The Gingrich comment might be understood in a way that he did not explicitly mention: as an argument in favor of allowing each of the three branches of the government to decide for itself what the limits of the Constitution are as they apply specifically to that branch's powers.
A year after the Little Rock crisis, the Supreme Court reinforced the duty to desegregate those schools and others in the Deep South. In doing so, it issued what is probably its most fervent claim to have the last word on the Constitution's meaning. Citing Marbury v. Madison (1803) and its comment that it is the judiciary that is to "say what the law is," the Court in the Cooper case remarked that the Marbury decision "declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution...[That] is a permanent and indispensable feature of our constitutional system."Although Abraham Lincoln, before he became president, was already deeply troubled about the Supreme Court's Dred Scott decision enforcing slavery, he said in a Springfield, Ill., speech within weeks after that ruling in 1857:
"We think [the Court's] decisions on constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution."
Candidate Gingrich has made clear that his suggestion that the Supreme Court be ignored was aimed, in its most vigorous form, at two decisions by the Justices: the 2004 decision in Hamdan v. Rumsfeld striking down President George W. Bush's military commission plan for Guantanamo detainees, and its 2008 decision in Boumediene v. Bush, allowing Guantanamo detainees a constitutional right to challenge their detention in a federal habeas corpus court.
President Bush, though unhappy with both, offered no resistance to either.
The Gingrich comment might be understood in a way that he did not explicitly mention: as an argument in favor of allowing each of the three branches of the government to decide for itself what the limits of the Constitution are as they apply specifically to that branch's powers. That is called the theory of "departmentalism," and it can be traced all the way back to Thomas Jefferson.
It is plain, though, that the current Supreme Court does not accept that theory, and that, of course, is at the heart of Mr. Gingrich's complaint.
Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He blogs regularly for Constitution Daily.