Interpreting Presidential Power

Last week, Andrew wrote posted about the Supreme Court's very recent ruling on the legal rights of Guantanamo Bay detainees. Like most cases that make it to the Supreme Court, Boumediene v. Bush (pdf) carries implications for several different areas of constitutional law, the most prominent of which is the long-contested status of civil rights and liberties during wartime (in fact, the case began as a habeas corpus petition).

The extent of executive power was also at stake, though, and the Supreme Court ruled 5-4 against the Bush administration's enemy-combatant policies. As this article suggests, moreover, Boumediene is only the latest in a string of recent cases that all have the same president-curbing effect.

As the New York Times reported here, Bush responded to the Boumediene ruling by saying, "[w]e’ll abide by the court’s decision — that doesn’t mean I have to agree with it" -- a far cry from his 19th-century predecessor Andrew Jackson's announcement (in response to the Supreme Court's decision in the 1832 case Worcester v. Georgia, which entitled Native American tribes to federal government protection from state government actions to curtail their sovereignty) that "[Chief Justice] John Marshall has made his decision, now let him enforce it!" Nevertheless, it does highlight one significant weakness in the judicial branch's capacity to influence public policy in the United States: While the Supreme Court holds the power of judicial review -- that is, the power to declare an action taken by the president or Congress unconstitutional -- it ultimately relies on the executive and legislative branches to enforce its rulings.