By RALPH CUSHMAN

All students of constitutional law recall the case of Marbury vs. Madison. 

In 1803, the Federalists had been successful in expanding central government powers, but in the 1800 election, Thomas Jefferson, a champion of states’ rights, was elected president and controlled both houses of Congress.

Outgoing president John Adams, a Federalist, attempted to place as many party loyalists into important civil positions as possible, hence the appointment of the “midnight justices” upon his exit. But some commissions were accidentally left undelivered. They were signed by Adams and sealed by his secretary of state, John Marshall, but in the confusion surrounding the appointment of Marshall to the position of chief justice of the Supreme Court, 23 commissions had been misplaced.

When Jefferson learned of this, he ordered delivery of 12 but told his Secretary of State James Madison to hold the other 11, one of whom was the prominent Federalist William Marbury. Marbury filed suit in the U. S. Supreme Court, pointing to the Judiciary Act of 1789, which had purportedly given the Supreme Court the power to issue writs of mandamus. Marbury wanted the Supreme Court to issue such a writ ordering Madison to deliver the commissions immediately.

For years, it had been fiercely debated whether the Supreme Court had the “judicial power” under the young Constitution to declare laws enacted by Congress and the president to be “invalid.” Jefferson and the Democrat-Republicans argued that none of the three branches of government had any more say in the matter than the other two.

Jefferson told Madison not to respond to Marbury’s suit and to let the court enter the writ. Then, they would show the Federalists who the boss was because the Supreme Court had no enforcement mechanism. (To this day, it still doesn’t vis-à-vis the president because he (or she) is the U. S. Marshalls’ boss.)

When Madison failed to respond to Marbury’s suit, Chief Justice Marshall realized that without cooperation from the president, all he had was a law clerk to send to enforce any writ he issued. It was shaping up to be an embarrassing exposition of the court’s weakness.

Marshall instead seized upon the moment to do what Marbury vs. Madison is famous for—he declared that the law vesting his court with the power to issue writs of mandamus was invalid because the Constitution did not give Congress the power to grant themselves or any other branch powers not granted in the Constitution. He avoided issuing an order he knew Jefferson would disregard, and he elevated the court to the status of “last word” on what violates the Constitution, at least in the eyes of history.

This “President vs. the Courts” drama is in high gear today, but C. J. Marshall would probably say Trump is right—no federal court has the power to issue orders to the president or his ministers. Here is how Marshall ruled on the issue:

By the Constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers who act by his authority and in conformity with his orders.

In such cases, their acts are his acts, and whatever opinion may be entertained of the manner in which executive discretion may be used still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.

In other words, even while saying the federal courts have the last word on what the Constitution allows and prohibits, opinion is the extent of their power. Courts can hear a case filed by an illegal immigrant gang member claiming his right to due process is being violated by the president or his ministers, but if the president is exercising the executive power granted him by the Constitution (in the president’s opinion, not the court’s), all the court can do is declare what the administration is doing is illegal and/or unconstitutional. It cannot issue orders to turn airplanes around, halt deportations or demand cause be shown why the U. S. Attorney General should not be held in contempt and jailed until she ceases and desists. 

And, if Trump has Jefferson’s nerve, he will continue exercising his executive authority the way he deems best for the country, telling the federal judges and justices they can issue all the injunctions, writs of mandamus and orders to show cause they want, but they cannot tell him how to carry out his Constitutional duties.

The case of transsexuals in the military is even more clear. The Constitution says the president is the Commander-in-Chief of the Army and the Navy (and state militias if called up). The notion that any judge can butt in and tell him (or her) how to do that job based on some alleged “equal protection” violation is preposterous, not to mention dangerous should we be in—or close to—a war, which is pretty much always the case these days.

It has to be this way. Imagine hoards of heavily armed drug cartel members storming across the southern U. S. border. Trump then sends the armed forces to push them back into Mexico—but then a District Court judge in Massachusetts jumps in at the behest of the ACLU and orders that Trump stop forcing the invaders back into Mexico without giving each one a hearing and appeal.

What the courts do—protecting an individual’s or group’s rights to due process, fairness, etc.—is certainly important, but it is not immediately vital to our country’s survival. What the president does or fails to do can easily precipitate the demise of the nation, leaving us begging people like Vladimir Putin to quit bombing us. Right or wrong, the president’s powers, while not endless, must be respected. We cannot allow him to be second-guessed by the judiciary.

Liberals will respond with something like, “So, if the president is summarily shooting shell-shocked deserters with Kristi Noem’s gun (like the Russians did in the movie Enemies at the Gate) the court cannot stop him?”

That’s right, no one can. The court can hear the grievance and declare the unlawfulness, but as C. J. Marshall said, the only recourse beyond that is political, not judicial—meaning that if Congress sees fit, it can impeach, and if the voters see fit, it can vote him out, but that’s it.

The Constitution was set up that way very deliberately. During the summer of 1787, drafts of the new “Articles of Confederation” (which turned into the Constitution) had the Supreme Court trying the president and other federal officers for impeachment. However, wisdom prevailed, and they shifted those tasks to Congress—one house voting to do it and the other acting as a tribunal. The framers realized that as “judicial” as trying charges supporting impeachment seemed to be, it would be a mistake to leave that authority with a court that might have been packed with partisans in the preceding term.

The framers made impeachment the only recourse, and by requiring that 2/3 of the Senate concur, they made conviction difficult, and for good reason—they knew the well-being, perhaps the very survival of the nation, might depend upon having a powerful president who would, in times of danger, have to go to extremes for the sake of the nation. If people of foreign origin get placed into internment camps after their country mercilessly attacks our Navy? Too bad, the ACLU can go pound sand. Some risks are not worth taking.

Strict Separation of Powers is no less important today. If a District Court judge, or even the Supreme Court, has the power to order the president around when it seems to them appropriate, then the executive power is not vested in the executive at all. And if they can order him in the exercise of his executive power, why cannot they also tell him to free the spies in the internment camps?

Trump needs to stand up for his constitutional powers and ignore the “dictator” epithets from the short-sighted. He should (respectfully, of course) remind the judges that in the exercise of his power as commander-in-chief and as executive executing the nation’s laws, even very old, forgotten ones like the Alien Enemies Act of 1798, he answers to no one except two-thirds of the Senate, should it come to that.

If Trump did that Chief Justice Marshall would be proud of him, and the nation would be better for it. It would not be a “constitutional crisis,” simply a constitutional clarification.

Ralph B. Cushman is an attorney in Anchorage.