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January 22, 2012

Power Balance

The tripartite balance of power between the President, Congress, and Supreme Court is only partly constitutionally enshrined. The courts were cut out of a clear share. The Supreme Court stole its power base fair and square in Marbury v. Madison (1803), when it unilaterally declared to have the authority to review acts of Congress and determine whether they are unconstitutional and therefore void. The bluff never got called. But that owes to the Supreme Court being very selective in punching its weight against the other branches. In Golan v. Holder (2012), SCOTUS 6-2 refused to call Congress on enacting copyright provisions retroactively. The new patent act has a slice of that same cheese, but any challenge is likely only to add to its ripening. The U.S. police state does as it pleases, the branches of government holding hands, velvet gloves over mailed fists.

Posted by Patent Hawk at January 22, 2012 7:13 PM | Case Law