The President, the Congress, and the Supreme Court

Over at Poliblog, Dr. Taylor has posted an entry about The President, the Law and Foreign Invasion which I take some minor issues with. The post deals largely with the Alito hearings and some of Senator Biden's comments and questions, particularly about the Presidents right to launch invasions and the Supreme Courts role in punishing a president.

His first point,

First off, the question really is whether any President can so do. The specifics of Bush are a distraction. As are the specters of invasions of Iran and Syria.

I have no problem with.

His assessment of the rights given to the President by the War Powers Act, I have no problem with.

I guess my problems begin with this paragraph:

Now, the inference that I took from Biden's line of questions was whether the President could mass troops and engage in an invasion on the scale of the invasion of Iraq without Congressional approval. However, if Bush today starting massing troops on the Syria-Iraq border, in preparation of an invasion of Syria, I am guessing that a) the Congress (and the whole world) would find out about it, and b) it would extremely difficult, if not impossible, to convince Congress, or the American public, that such an invasion was warranted. Such things do matter.

It seems to me that Taylor is equating approval with knowledge which are certainly two different things. One can certainly know that something is about to happen without approving of it. But I will agree that without Congressional funding such an invasion or military action could not continue for very long. However, sometimes the logic could be employed that what the President starts, Congress will have to finish.

Taylor goes on to suggest that this line of question is somehow inappropriate or simplyinflammatoryy because it does not really deal with the duties of a Supreme Court justice.

As such, a scenario in which a President went on a wildcat invasion of another country, the power to deal with that move would be squarely in the laps of the Congress, not the Supreme Court, despite the fact that Biden's questions seem to dump the question in the lap of the Court.

With this observation I also take some issue. It is true that issues of impeachment are to dealt with by Congress not the Supreme Court. However, the point I was trying to make in my comment was that the roles of the different branches of the US Federal Government are not always static over time. Just as the role of the President has grown over time, taking over role traditionally held by the Congress (as evidenced by the War Powers Act), so might the role of the Supreme Court change during the time that Alito could realistically serve on the Supreme Court. I am not saying that the Supreme Court will gain this power, but that it could become an issue at some point in the future, so what does it hurt to address the issue. Maybe Biden was trying to be inflammatory, I'm not saying that he wasn't.

The role of the Supreme Court has changed before. It was not initially given the power of Judicial Review, but later gave itself that power through precedent. And in 2000, the Supreme Court was given the power to settle a dispute over a slate of presidential electors (from Florida) even though in 1876, that same issue arose and was settled through an action of Congress. Things can change. The Constitution is not a dead document carved in stone. It is open to interpretation and the roles of the different branches often change or evolve over time. Such an evolution, or change, could take place at anytime in the near future. That doen't mean they will, but they could.

That was the point I was trying to make. Hopefully I made it more clearly here than I did in the comments section at poliblog. If not, I'm sure I'll hear about it.