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.
Well explained Ralph! Although I am not a lawyer, as a hobby historian my understanding of Marbury vs. Madison is exactly the same as your well written explanation.
And lets not forget Andrew Jackson’s famous response to the Supreme Court a quarter century later–“John Marshall (the Chief Justice at the time) has made his decision, now let him enforce it”.
I’ll take the assessment of the WSJ editorial board regarding the wisdom of this administration’s stance toward the judiciary and the rule of law over this clearly partisan attorney’s scattershot opinions. The ONLY thing USA citizens appear to support of Trump’s actions thus far is the securing of the southern border. And they haven’t seen the pricetag for that yet.
And we care what you think because???!
The problem Trump, and any rugged individualist, is the propaganda arm of the kommunist party is the MSM who would be screaming on every channel, in every media, 24/7 that Trump is become a dictator. Unfortunately more than half the country is well below average intelligence and easily swayed, the other 50%, 25% are downright stoopid with the rest, the minority, being above average intelligence or those who possess extraordinary reasoning abilities. While we would cheer the President on, everyone else would want him charged with treason. Even right now the demoncrap party is sotto voce calling for an assassination.
Acceptable analysis with obvious political spin that kind of worked up to the point where the author suggest Chief Justice Marshall would be proud of President Trump.
Great punch line for a very long joke.
Haahaa!
Good one Ralph.
Lost credibility when he referred to the US Marshals Service as………..”the U. S. Marshalls’
One branch (Congress) can add or subtract from another at a whim, one branch (Congress) can fire (impeachment) members of the other branches, one branch (Congress) has the responsibility to make law, one branch (Congress) has the responsibility to spend money, and one branch (Congress) has the responsibility to declare war. The executive and the judiciary are not equal branches to Congress with respect to power, even if Congress has spent decades trying to relinquish it. Yeah the judiciary can judge and the Executive can enforce law, lead, guide, and veto but ultimately Congress is supposed to be the branch of our government that holds the most power…at least according to our constitution.
Steve’s take on Congress is sound. Why the Congress has increasingly failed to fulfill their constitutional mandate is the result of multiple factors but one is the constant quest by the executive branch to grab power.
The democrats know they can’t stop trump on constitutional grounds. They know they can’t push anything through congress. So… a coalition of lawyers form blue states has formed. Their mission is to drag Trump down with lawfare, and they are dirty and dishonest enough to go through with it. They have many democrat activist friends in the judiciary, who are, of course, happy to take up their cause. These arrogant judges honestly believe that they have the authority to order literally anyone around. They don’t. I believe Ralph. Trump should ignore them.
Thanks for your analysis. But I’m having a hard time seeing how John Marshall would have sided with President Trump on the grounds that you discuss. Marshall simply said in Marbury v. Madison that Marbury could not seek his desired writ of mandamus in the U.S. Supreme Court via the original jurisdiction that had been granted to the Supreme Court by the Judiciary Act of 1789. Marshall ruled that the Act was unconstitutional in granting such original jurisdiction to the Supreme Court because the Constitution defined the Supreme Court’s original jurisdiction, and the Constitution did not extend the Court’s original jurisdiction to a case like the one Marbury had brought. So, even though Marshall concluded Marbury was entitled to his writ of mandamus he concluded the Supreme Court could not give it to him via original jurisdiction because the Court had no such original jurisdiction. In other words, Marbury should have brought his case in a lower federal court and sought his writ there–then, in that circumstance, the Supreme Court would have had only appellate jurisdiction over that case if it had then been appealed to the Supreme Court. One can surmise from the opinion that if the case had reached the Supreme Court via proper appellate jurisdiction, Marshall would have voted to grant Marbury his writ against President Jefferson and ordered delivery of Marbury’s commission. True, the Court would have had no enforcement power–i.e., it had no agents of its own to send to Jefferson’s office to take possession of and then deliver the commission to Marbury. But the Court would have had power to declare the law (Marbury was entitled to his commission), mandamus was proper (the writ of mandamus should issue), and then to direct that the writ be enforced and the commission be delivered to Marbury. If things had reached that point in a case under the Supreme Court’s appellate jurisdiction, it is total speculation to guess what would have transpired if Jefferson had continued to refuse to deliver the commission to Marbury. Would Jefferson have acted like President Andrew Jackson is asserted to have later, and said “Mr. Marshall has made his decision, now let him enforce it”? Or would he have obeyed the court order. No one knows because things never reached that point.
Mr. Cushman, would a contempt of court charge qualify as “high crimes and misdemeanors” for impeachment purposes? Though unlikely to pass this Senate, such a charge would disrupt the nation’s business for the remainder of Mr. Trump’s term – the Courts are hardly powerless. Lawfare is welfare for libtard lawyers – a fleecing tool for the aclu to solicit funds from gullible bleeding heart sheeple. Much as I would like to see President Trump put the courts and the aclu in their place, I suggest that proceeding cautiously and respectfully – allowing the left to bury themselves in their own ludicrosity – is a wiser course of action.
My guess is a key consequence within Court’s authority is the ability to disbar US attorneys who lie, omit, or misrepresent facts before the Court.
Example: The court disbarred then President Clinton for his disembling “meaning of what “is, is.”” I agree the Court may not be able to order a plane to turn around. However, lie before Court, including giving incomplete answers as the Court ordered, and I believe the Court has the ability to pronounce career ending consequences for those who practice Law.
My article as submitted made clear (by indention) that the following was a quote from John Marshall’s opinion:
“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.”
I don’t see how anyone could read that and think Marshall would have thought the Constitution gave him the power to override the president’s discretion as executive, much less Commander-in-Chief. He did not need to address the issue to reach his ruling, and yet he did, and pretty clearly.
The real problem we “partisans” have is that Dimocrats could not care less what the Constitution says — the federal courts are the ONLY way available to them to negate or at least impede Trump, so they want to see the writs and orders fly.
Ralph: But does this mean Justice Marshall would be a “proud” boy for President Trump?
About eight million people were let in under Biden, at least. Can you imagine the courts ordering every one of those people a due process hearing before they can be deported? It would strangle our court system and leave millions in the country. That’s probably what liberals are trying to do. I would consider that aiding and abetting criminal action. The Democrat party should be eliminated.
I think the internet joke says it best. “What is the difference between God and a District Judge? God doesn’t think he is also a District Judge.”
Bill Ball: Another example why reliance on the internet as authority is dubious.
The joke’s on you pal.
Now if only POTUS and his surrogates could explain this to the public. I don’t think it will make a difference to the rabid Progressives and their propaganda media arm but maybe it will also educate Congress. It only makes sense that the authority to make the final decision on an issue is vested in the only person elected by the country as a whole. As stated in the article, if the people are against the decision, POTUS can be impeached by 2/3 of the Senate or voted out next cycle along with his Party.
Three equal branches is a complete fictional analysis of the Constitution. Congress can dissolve these annoying district courts whenever it wants. They only exist at all through congressional mandate. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
I agree with you Ralph….You are a straight shooter!!
The federal district court judges that are issuing the injunctions and temporary restraining orders against President Trump’s executive actions are clearly exceeding their Article III authority and are usurping President Trump’s powers under Article II. The United States is rapidly becoming a juristocracy. That is, government by judges.
The author obliquely seconds the blatant racially discriminatory treatment of US citizens of Japanese ancestry, the 1943 internment case Korematsu v US. I think it was was wrongly decided then, majority opinion Wm O Douglas haha, and remains a stain on our national honor. Otherwise concur. Thanks for posting.
I have been saying this for years when the Alaska Supreme Court tells the Governor he must do something he should tell them to pound sand because they have no cops.