Having thus demonstrated his agreement with some of the worst and most harmful legal doctrines in American history, he then endorses another one: massive resistance.
“Massive resistance” is the label arch-segregationist Sen. Harry Byrd (D-VA) gave to his state’s plan to openly defy Brown v. Board of Education and maintain Virginia’s segregated schools. Although Gingrich’s speech gives no indication that he supports segregation, the former speaker proudly embraces Byrd’s tactic of simply refusing to comply with court decisions that he disagrees with:
I would instruct the national security officials in a Gingrich administration to ignore the recent decisions of the Supreme Court on national security matters, and I would interpose the presidency in saying, as the commander in chief, we will not enforce this. And by the way, for our liberal friends, the source of that is Franklin Delano Roosevelt.
In 1942 a group of German saboteurs were landed in Florida and Long Island. They were all picked up within two weeks. Roosevelt brought in his attorney general and said: They will be tried in a military court, they will be executed, it should happen within three weeks, and tell the Supreme Court if they issue a writ of habeas corpus, I will not honor, and therefore they should not issue it. I am the commander in chief in wartime. They aren’t.
President Roosevelt lifted America out of the Great Depression. He laid the foundation of a modern social safety net and ushered in three generations of American dominance and prosperity — and he defeated the most horrific dictator the world has even known to boot. Roosevelt rightfully is remembered as one of America’s greatest presidents, but anyone with even a passing understanding of FDR’s record on civil liberties in wartime knows that it stands as a shameful stain on an otherwise heroic record.
Moreover, Gingrich’s account of Roosevelt and the German saboteurs leaves out several very important details. Most notably, the Supreme Court upheld Roosevelt’s decision to use a military tribunal to try, convict and sentence the Nazi agents in a case known as Ex parte Quirin. Accordingly, Roosevelt never did what Gingrich suggests — openly defying a decision of the Supreme Court.
If presidents have the power to simply ignore court decisions they disapprove of, then literally no law is safe. If Gingrich can defy national security decisions, than he can defy court orders requiring his administration to pay Medicare benefits despite Republican opposition to that program. His Department of Justice can refuse to enforce voting rights or even actively come to the aide of efforts to disenfranchise poor and minority voters, no matter how many times he is ordered to obey the law.
And he can also do things that are far, far worse.
Elsewhere in the speech, Gingrich praises President Andrew Jackson’s contempt for a Supreme Court decision upholding the constitutionality of a national bank, but Jackson is also infamous for a much more significant conflict with the justices. After the Supreme Court determined in Worcester v. Georgia that Native Americans retain their rights to their tribal lands, Jackson probably never actually uttered the words “John Marshall has made his decision; now let him enforce it.” But he did forcibly relocate tens of thousands of Natives in open defiance of the Supreme Court. Thousands died during Jackson’s Trail of Tears.
Obedience to the rule of law is what separates American presidents from dictators and what ensures that our most fundamental freedoms are not vulnerable to a powerful official’s mere whim. If a president can defy one court decision, he can defy any court decision, and the Constitution and the law itself are the ultimate casualties.