In a national emergency, the president should be able to obtain extraordinary permission from the Supreme Court to “temporarily” circumvent a law.
However, should Congress elect Federal Judges who have top-security clearance and grant them unrestricted access to all the president’s communications to warn the president that something he (or she) is planning to do is not constitutional?
These special judges would listen in-person to everything the president says in the performance of his (or her) duties, and to everything others tell the president officially; they would also review all the president’s documents. To eliminate error or controversy, government technicians would record all the president’s official communications and save them in secret databases.
If the president executes an unconstitutional action, the judges would report it to Congress and the Supreme Court, and both branches would listen behind closed doors to the recordings as part of their investigation.
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Although imaginative, your idea would violate the “cases and controversies” clause in Article 3 of the Constitution. That clause has been interpreted to mean only actual cases in which a person who has really been affected or is about to be affected brings an actual controversy before the courts. US federal courts can not try to imagine how a law or Presidential act is going to play out and just decide it’s unconstitutional. Somebody always has to file an actual lawsuit or be charged with an actual crime before the courts have any power to do anything in our system — which sorta deflates the nonsense we hear about activist judges in this country.
In many other countries, including many European democracies, the system works differently. Those countries often have “constitutional courts” that basically check laws as they’re being made to decide whether they are going to be ok or not. If not, they are often returned to parliament to be re-worked. Of course, courts in general there work very, very differently from what we’re used to in the US, and they are not always an independent branch like they are here. That’s why it makes sense to limit the power of our federal courts by making them more passive, removing their ability to have a voice on subjects where no real trouble has yet arisen.
Also, the Constitution’s second Article gives the President a lot of trust and authority precisely so our country would have somebody in a position to handle emergencies quickly and without long debates. The President has a duty to keep secrets, even from the courts unless — yup, unless an actual case or controversy comes from a valid lawsuit or a criminal charge. Making the President keep members of the judicial branch around with him to hear all his secrets would violate the separation of powers that is so important to the structure of our republic.
In any case, we do have judges who sit in special federal courts, where the judges have top security clearance and are supposed to review the President’s activities, grant or deny him search warrants, and that sort of thing. Sadly, this President has decided that, despite what the laws say, he can ignore that court and its judges. I see little reason at this point to trust that he would cooperate with judges or obey their rulings in your plan any more than he already has in reality.
You are talking nonsense. You are an idiot.