The ongoing interregnum in Washington could well prove as the final anecdote by which President Obama's presidency is remembered, and seems to be playing out in Capital Hill as a second act to the 2016 presidential race. Obama's constitutional right to nominate a supreme court justice unencumbered and have the senate participate in the process apolitically is at stake - its implications could reverberate beyond President Obama.

The age old abandage is true, that everyone has rights - even presidents have rights - and Obama is no exception. The most  famous case to date involving a president's rights is U.S. v. Nixon (1974), a crucial case, that limited presidential power  and states that a president is not immune to criminal prosecution in actions that are outside the scope of his office.

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Under the United States Constitution the president choses the supreme court justice who is then confirmed by the senate. Already the senate has stated clearly that it will not confirm any Obama nominee. What would be Obama's options in such a stalemate?

2016 could easily be the year of the case: President Obama v. U.S. Senate if Obama's supreme court nominee becomes politicized. The only option President Obama would have to secure his nominee is to sue the senate under the Supreme court's original jurisdiction to enforce a constitutional requirement.

The constitutional asks the senate to confirm the president's executive actions but it is silent on the power of the senate to render the President's actions as null and void. In other words, the President being the executive with the bigger mandate cannot be circumvented by the senate without a proper process involving a hearing.

A senate can refuse to confirm a presidential nominee and cite reasons but it cannot refuse carte blanche to meet any presidential nominee without a valid basis from the process.


A famous U.S constitutional law case Marbury v. Madison (1803) would seem to give some further insight here. In that case, a seminal case, the issue centered around the refusal of a judicial commission because the commission violated the Judicial Act. Now, under the supreme court's judicial review the Judicial act was reviewed and found to be unconstitutional.

Marbury states in sum and empowers the supreme court to say what is unconstitutional and states this as being implicit in an independent judiciary.If the U.S. senate decides it will not look at an Obama  supreme court nominee, the the supreme court would have to review this in light of the constitution and make a determination as to the actions of the constitutional nature of the senate's political malfeasance. 

The senate is uniquely position in the U.S government, as the upper house of the legislature; a powerful position because this is where laws originate. But when it affirms Presidential nominees and treaties it would appear to represent State executive interests; whereas Obama represent's the whole country's executive interest. Two governments ( State versus Federal) are set to collide with the supreme court determining who has overreached.


Ken Sibanda is an American Constitutional attorney, popularly known as "Tecumseh," for his work in literature. He is the author of the novel - Hannibal the Great.







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