Gingrich: Congress, president can ignore courts

Republican presidential hopeful Newt Gingrich on CBS' "Face the Nation," Oct. 9, 2011.

Republican presidential candidate Newt Gingrich maintained on Sunday that Congress should have the authority to ignore federal judges, because he believes they have become "dictatorial and arrogant" and "pretend they are the dominant branch" of the government.

Gingrich, speaking on CBS' "Face the Nation," defended a Saturday remark in which he said as president he'd ignore the Supreme Court if he fundamentally disagreed with its decision.

"Today you have judges who are dictatorial and arrogant, who pretend that they are the dominant branch and who issue orders that clearly are against the Constitution," he told CBS' Bob Schieffer on Sunday.

When pressed on how such a thing would be possible, Gingrich suggested the use of the subpoena.

But, Schieffer argued, "They don't have to honor the subpoenas."

"Bob, if that's true, then the court can't say something to the Congress either, can it?" Gingrich responded. "By your standards, this Supreme Court cannot dictate to the president and cannot dictate to the Congress. But they do. And there are clear provisions in the Constitution to re-balance it. There's a judge in San Antonio that issued a ruling so anti-religious, so bigoted, and so dictatorial on June 1st. He should be called in from of a committee and they should ask him, 'By what right do you dictate to the American people?'"

While it is true that Congress could subpoena a judge for a matter such as judicial misconduct, judges are protected by common-law judicial privilege, which protects inter-chamber communications. Thus, the subpoena could not apply to the details of a court case.

Even if that were not the case, subpoenaing a judge involved in a court decision would not grant either the executive or congressional branch of the government any authority to ignore that court's ruling; the decision would have to be appealed to the court of appeals and the Supreme Court. Acting in any other capacity would violate the Separation of Powers doctrine.

Schieffer pressed Gingrich for details on the logistics of his plan.

"You said in the Gingrich administration you would just tell the national security officials to ignore the Supreme Court's recent rulings on national security," Schieffer prompted. "Do you just follow only the laws you wish to follow under your doctrine? How does that work?"

"You follow the law," said Gingrich. "I think the commander in chief has the power to defend this country ... the recent court decisions in which the court intervened in national security, they're taking on their shoulders defending America. They are totally unprepared to do it. It is unconstitutional. Somebody should stand up to them and say no."

When Schieffer suggested that acting in such a manner would set off a "constitutional crisis," Gingrich responded that it was a crisis of the courts' own doing.

"The courts have created this crisis," he said. "The courts have again and again and again since 1958 asserted an ability to redefine America."

"If the president could ignore the Supreme Court, could he also ignore the Congress, which is another branch?" asked Schieffer.

"He could, and presidents can and do," Gingrich responded.

"Could the Congress ignore the president?" Schieffer pressed.

"Here's the consequence: The Congress cuts off the money," Gingrich said. "There's a balance of power. The Congress doesn't have to pay for something. And if the president gets too far out of line they just won't give him the money."

He continued: "The president doesn't have to automatically do what Congress wants. He can veto bills. He can interpret bills. The court is also subject. It is a balance of power. And people can go to and see the entire paper which backs this up which cites the dean of Stanford Law School. This is not a trivial argument but a fundamental question about the nature of the American Constitution."