Chuck Noe, NewsMax.com
Wednesday, June 25, 2003

The congressman said he would use executive orders to overcome Supreme Court decisions he didn't like, not overturn them, the spokesman emphasized. "He's standing by it."

Smith said, "Dick Gephardt knows the law, and he knows he can't overturn" the court's decisions. "He's simply expressing his commitment to diversity" and to using every tool available to promote "affirmative action."

Asked if Gephardt, D-Mo., would find it acceptable if President Bush boasted he would use executive orders to overcome Supreme Court rulings, Smith insisted that Bush and other presidents did use executive orders that way.

In a clip shown today on Fox News Channel, Gephardt said, "It was a basic statement that you would say about anything." He admitted, "It may not be possible" to overcome the court with executive orders, but said that President Harry Truman used an executive order to integrate the military.

Fox's Brit Hume on Tuesday night ran a clip of Rep. Dennis Kucinich, D-Ohio, telling Rainbow/PUSH that if elected president he would "write a series of executive orders that will enshrine affirmative action in housing and education in every area of our economy."

Hume introduced the footage of Gephardt's comment by saying, "Missouri Congressman and fellow candidate Dick Gephardt went much further, seemingly promising to flat-out defy the Supreme Court if necessary."

A spokesman for one of the other Democrat presidential campaigns, who did not want to be identified, told NewsMax that Gephardt's statement in Chicago "jumped out at" him. "What does that mean?" he said he asked himself.

He wryly suggested that NewsMax contact experts in constitutional law to explore the issue further.

That Pesky Constitution

Gephardt's pledge to Rainbow/PUSH contradicts "our current understanding of how the system works," said Paul Rosenzweig, a senior fellow at the Heritage Foundation and law professor at George Mason University.

He cited Marbury vs. Madison, the landmark decision of 1803 that designated the Supreme Court as the arbiter of the Constitution with the power to declare congressional actions, and by extension presidential actions, unconstitutional when exceeding the powers granted by the Constitution.

As for Gephardt's comment about Harry Truman integrating the military, Rosenzweig told NewsMax he was unaware of any court ruling overturned by that executive order. Truman did exceed his powers, and was overruled by the Supreme Court, when he tried to nationalize the steel industry, the professor said.

Rosenzweig disputed Smith's charge that Bush and other presidents undermined court rulings with executive orders. He noted that Bush had not tried to nullify Roe vs. Wade and could not, for example, write an executive order banning abortions in all federal hospitals.

Executive orders apply only to someone else in the executive branch, not to the Supreme Court or any other part of the judicial branch, legal analyst Judge Andrew Napolitano noted this afternoon on Fox News Channel. Gephardt "seems to think he can overrule them with an executive order, but in fact it's the other way around," a clearly amused Napolitano said.

Rosenzweig thinks Gephardt knows better and was merely making a campaign promise to an audience that wanted to hear it. "He can't possibly mean what he sounds like he means."

Read more on this subject in related Hot Topics:
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2004 Elections
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