I’m not a constitutional lawyer, but those who are have been sounding the alarm over the actions of a Supreme Court and President that are extra-constitutional. I write to point out that an official under a constitution who officially acts outside that constitution has undermined their legitimacy. The constitution remains but the official who sets it aside lacks legitimate authority.
As background let’s look at a few excerpts from the dissenting opinions in the Court’s Obergefell same-sex marriage decision: from Chief Justice John Roberts’ dissent:
[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.”
The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.
From Justice Antonin Scalia’s dissent:
“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”`
“[W]hat really astounds is the hubris reflected in today’s judicial Putsch.”
Here are some excerpts from a report on extra-constitutional actions of the President:
President Obama has said repeatedly that he would take unilateral executive action whenever necessary to achieve his political ends if Congress and the courts did not acquiesce to his demands. He declared openly and repeatedly that America “cannot afford to wait” on Congress or the courts to act on his agenda, and he made good on his threat to bypass the Congress and ignore the courts numerous times in his first term, as we documented in this report. After he was re-elected to a second term, Mr. Obama became even more brazen.
With his kitchen cabinet of czars in place a broader strategy to expand presidential power by executive fiat is unfolding. Obama’s “new normal” promises rule by executive fiat, plain and simple. On the issues of gun control, illegal immigration and fiscal policy, Obama has sneered at Congress and the judiciary.
Those who are called President and Supreme Court justices hold their offices by virtue of the Constitution they have sworn or affirmed to uphold. If they act extra-constitutionally, to that extent they undermine their claim to such an office. In short, their acts are not official acts, despite any outward appearance.