We have at least one US Representative (Alexandria Ocasio-Cortez of New York) and one US Senator (Ron Wyden of Oregon) openly calling on the Biden administration to simply ‘ignore’ a recent ruling from a federal court.
The ruling happens to be over whether the FDA can continue approval for a drug, but the particular issue doesn’t really matter.
What matters is that we might be nearing the end of an era, which began in 1803, in which the judiciary has been seen as ‘more equal’ than the other branches of government, with the ability to unilaterally amend constitutions and statutes just by changing the definitions of common English words (like ‘no,’ ‘not,’ ‘abridge,’ ‘infringe,’ ‘tax,’ ‘fee,’ and so on).
I hope the administration takes Ocasio-Cortez’s and Wyden’s advice to tell the judiciary to shove it. To say, as the grandkids like to say, You’re not the boss of me.
Not because I care about this particular issue, but because someone has to do it eventually, on some issue, to break the spell that John Marshall cast on the entire country when he declared, in Marbury v. Madison, that it is ’emphatically the province and duty of the judicial department to say what the law is.’
Which ruling itself effectively amended Article 1, Section 1 of the Constitution by replacing the word ‘all’ with the meaning of the word ‘some.’
I had hoped that Trump would pick this fight, first over travel bans and again over illegal immigration. But maybe, just as only Nixon could go to China, only Biden can ignore the judiciary.
In any case, what is necessary is that people get used to the idea that just because a court says something, that doesn’t mean it has the authority to do so. Because from there, it’s a short step to realizing that just because a legislature or an executive branch says something, that doesn’t mean that it had the authority to do so.
And that might one day take us into a new era, one in which it is emphatically the province and duty of the people to say what laws they consent to and to ignore laws to which they have never consented — finally giving us the government that we were promised in the Declaration of Independence.
