As all who have been schoolchildren in the United States should
remember, the tripartite form of our federal government is supposed
to provide that no branch can get out of control, because of the checks
upon it by the other two.
In particular, the Judicial branch (the Supreme Court and inferior
federal courts) is supposed to be the guardian of the Constitution.
One problem with how they have chosen to do this is that they will only
rule when a case is brought before them.
There is nothing in the Constitution to prevent them from simply
observing, for example, the passage of a bill by Congress and
immediately declaring it void because it flouts the Constitution, but
they do not do so. I don't know if this was the first time, but there is a
famous incident in which President Roosevelt
asked the Supreme Court to tell him if an action he intended to take
would be constitutionally permissible; they replied that they would not
decide that question until after he did it, and even then, not unless
someone squawked. As far as I know, the lesson was learned and Presidents
since then have not asked. (Whether any of them would have anyway is a
This was a real problem when, on April 30, 1999, a lawsuit was filed
in federal court by Representative Ron Paul and 16 other congressmen,
charging that President Clinton was waging war in
Yugoslavia in contravention of both the Constitution and the
War Powers Act. The suit was thrown out by the court. The judges
cited several (specious) reasons, with one overriding decision that
the congressmen had no legal standing before the court, because Congress
had not passed a resolution requiring the President to stop the hostilities.
This is patently ridiculous, in my opinion, (apart from the point that
the question of legal standing should be moot because the court
should have acted on its own), because what the court said, in so many
words, is that a President can do anything he wants if two thirds of
each House of Congress won't confront him about it. And there's not
a darned thing that a Constitutionally minded minority of Congress can
do about it.