[AnthonyMouse]

>When anyone else or any other organization declares a law unconstitutional, then that's nice, nice to have their opinion, but mostly that's just their opinion.

Not really. If one of the other branches decides that a law is unconstitutional, that's pretty much the end of the issue as well. If the courts decided that operating Gitmo is constitutional but Congress decided otherwise, Congress could de-fund it and that would be the end of Gitmo. If Congress passed a law allowing indefinite detention without trial and the executive branch believed it to be unconstitutional, it could refrain from detaining anyone indefinitely without charge and there is very little anybody else could do to force them to do otherwise.

There are some circumstances where you can sue the government for failure to execute the law, but those cases pretty rare are hard to win. And even if you "win" all you end up with is a court opinion saying you won. If the executive subsequently says that it's still unconstitutional and they're still not going to do it, what then?

In practice this never really happens (because the executive pretty much never thinks anything is unconstitutional), which means there isn't a lot of precedent, but the courts don't really have any enforcement mechanism for their decisions against the executive other than reactions of the voters to the executive's defiance. If the executive is determined that something is unconstitutional and the electorate acquiesces then who is going to make them do it?

[graycat]

Good discussion. But all those places you said that the Executive or Legislative branches believed something was 'unconstitutional' and applied that belief to their actions, really they were just using the powers they had and could have done the same thing just saying that they just didn't like the law. So when such a branch says "unconstitutional" nice to have their opinion.

When the Supreme Court says "unconstitutional", that's different because there the court is using one of their fundamental powers. The court can't strike down a law just because they don't like the law.

[AnthonyMouse]

>When the Supreme Court says "unconstitutional", that's different because there the court is using one of their fundamental powers. The court can't strike down a law just because they don't like the law.

Neither can the executive. If they chose to do otherwise without any constitutional authority the courts should rule against them. Obviously the president can still just do whatever and defy everyone, but if the president is sufficiently in the wrong then you get subordinates siding with the constitution and impeachment proceedings etc., and ultimately a popular revolution if things go sufficiently badly.

Congress is different because they can just strike down (i.e. repeal) a law because they don't like it, but that doesn't change the fact that if they say "we're not passing this, it's unconstitutional," that's the end of the story and the thing in question is not happening, and they all swear an oath to do that when they take office.

[graycat]

I'm not sure we are really disagreeing here.

Or, I'm trying to say that when the Supreme Court says that something's unconstitutional, that's the 100% true, authentic, genuine, dyed in the wool, can take it to the bank position that all courts and the other two branches will honor.

If Senator Wyden says that something's unconstitutional and that is why he's voting the way he is, say, on the Senate Intel Committee, fine, but the courts and the Executive branch won't honor that yet. Or, for something hypothetical, the Senate could pass a resolution that the Patriot Act was unconstitutional, and then people would be surprised but otherwise nothing would have changed. If the Senate and House want to kill the Patriot Act, because it's unconstitutional or just because they don't like the title, then they just write such a bill and pass it by 2/3rds in both houses or pass it by 51% in both houses and try to get the president to sign. Also, Congress could repeal the Patriot Act, saying it was unconstitutional, on Monday and enact it again on Tuesday without mentioning constitutionality and give any reasons they want or no reasons.

Or, I can say something's unconstitutional and so can you and so can anyone, but when the Supreme Court says so, it really sticks. To me, this is a difference in kind.

Again I doubt that we disagree.

[AnthonyMouse]

>If Senator Wyden says that something's unconstitutional and that is why he's voting the way he is, say, on the Senate Intel Committee, fine, but the courts and the Executive branch won't honor that yet. Or, for something hypothetical, the Senate could pass a resolution that the Patriot Act was unconstitutional, and then people would be surprised but otherwise nothing would have changed.

I don't see how that's different than it is for the courts. If Justice Scalia writes a book describing his theory of constitutional interpretation and how he thinks specific cases should have come out, that doesn't mean anything the same as an individual Senator's speech or a Congressional resolution doesn't mean anything.

>Also, Congress could repeal the Patriot Act, saying it was unconstitutional, on Monday and enact it again on Tuesday without mentioning constitutionality and give any reasons they want or no reasons.

So can the Supreme Court. For example, Plessy v. Ferguson has since been overruled. Conversely, the modern interpretation of the commerce clause is a lot broader than it was prior to the New Deal. Granted the court is supposed to give a reason, but they don't actually have to, and in many cases the "reason" is just that they now disagree with the previous precedent (and the real reason is often that different people are now on the Court).

>Or, I can say something's unconstitutional and so can you and so can anyone, but when the Supreme Court says so, it really sticks. To me, this is a difference in kind.

I don't see how you're distinguishing this from when Congress "says so" by enacting legislation or the president "says so" through an executive order. Obviously they have to do so in their official capacity and (for Congress) have a majority in agreement, but so does the court.