March 17th, 2017

Judicial review and political shenanigans

If you had to study American history, you may recall that the 1803 SCOTUS case of Marbury v. Madison established the right of federal courts to review acts of Congress and declare them unconstitutional:

This conflict raised the important question of what happens when an Act of Congress conflicts with the Constitution. Marshall answered that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In support of this position Marshall looked to the nature of the written Constitution—there would be no point of having a written Constitution if the courts could just ignore it.

It may be obvious why I suddenly decided to revisit Madbury; if not, read yesterday’s post of mine about two federal courts’ blocking of Trump’s new executive order on immigration and travel.

I may have more to say about the issue of judicial review than I’ll be writing in this post, because it’s a very rich topic. But I’ll mention here that you’d do well to review the fact situation that led to Marbury and reflect on it. It might remind you—as it did me—that the tricky machinations of political parties back then were every bit as twisted and opportunistic as they are now, if not more so.

You might also want to take a look at what Jefferson had to say about Marbury’s flaws:

You [Justice Marshall] seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

Marbury concerns a very different fact situation from what’s going on today with President Trump’s EO and the courts. But it established the idea that federal courts are able to declare actions of another branch of Congress to be unconstitutional. This does tend to establish the Supreme Court as potentially supreme over the other branches, which is what Jefferson warned against (the only redress I can think of would be a constitutional amendment, notoriously difficult to enact).

Marbury concerned the constitutionality of an act of Congress, whereas the present-day Trump court decisions concern executive orders about immigration (as did the previous federal court decisions regarding Obama’s EOs). In other words, the constitutionality of executive actions is presently the issue. The Court decided it had the power to review executive actions in 1804, the year after Madbury was decided, in Little v. Barreme, in which “the Court found that the President of the United States does not have ‘inherent authority’ or ‘inherent powers’ that allow him to ignore a law passed by the US Congress.” You can see from that language that the issue in the case wasn’t just executive orders in a vacuum, but executive orders in contrast with conflicting acts of Congress.

One of the major bases for the challenges to Obama’s EOs on immigration was that they failed to carry out acts of Congress and the intent of Congress. In fact, I just found a concurring opinion by Justice Scalia in one of those cases, in which Scalia cites and discusses (pages 12-14 of this document) Little v. Barreme as it relates to Obama:

If Congress purported to vest the President with the unfettered discretion to enforce a law, or not, without any guidance, the executive would be engaging in a legislative act. He could not “execute” such a law, faithfully, or otherwise. He would be legislating.

A quick search I did just now seems to be indicating that most of the successful court challenges to EOs have occurred under similar circumstances, involving not just an EO but a Congressional statute as well, and/or conflicts between the EO and a Congressional statute. For example, Korematsu was the famous case in which SCOTUS declared the Japanese camps during WWII to be constitutional. They were originally established by EO, but shortly thereafter (about two weeks later) Congress enacted a statute authorizing the enforcement of FDR’s EO on the subject. Putting aside for now the weighty question of whether Court’s decision was right or wrong on the merits, I’m citing it merely to indicate the difficulty I had (so far) in finding a case in which a federal court overturned an EO without an act of Congress also being involved in some way (in Korematsu not only was there a statute backing up FDR’s action, but the Court upheld that action).

I’ll add that I haven’t yet had time to carefully read the two recent court opinions (Hawaii and Maryland), although I’ve read a couple of reactions to them,and I also have skimmed the Hawaii one. It’s my impression that the opinions don’t cite conflict with an act of Congress as the basis on which they made their decision—although the issue appears to have been one of many raised by the plaintiff in the Hawaii case. [see ADDENDUM below]

Andrew C. McCarthy has previously dealt with the issue of conflict between Trump’s EO and a Congressional statute in this article of his:

The [Trump executive order on immigration] has predictably prompted intense protest from critics of immigration restrictions (most of whom are also critics of Trump). At the New York Times, the Cato Institute’s David J. Bier claims the temporary suspension is illegal because, in his view, it flouts the Immigration and Nationality Act of 1965. This contention is meritless, both constitutionally and as a matter of statutory law.

I suggest you read McCarthy’s piece in its entirety to get the reasons why he says there is no conflict between Trump’s EO and that 1965 act of Congress; suffice to say for the moment that his arguments seem very persuasive.

It occurs to me that, if any of the cases involving Trump’s most recent EO go to the Supreme Court, the decision by Republicans in Congress to block Obama’s choice to replace Justice Scalia could loom larger than ever. Of course, if Scalia’s replacement by Trump isn’t approved soon by Congress, the Court would probably be issuing a tie decision if it agrees to hear any of these cases at all. And a tie would allow the injunction to continue.

I don’t necessarily consider it a matter of great danger if the temporary ban doesn’t go into effect; we still have ways to vet arrivals, and I hope that nothing terrible will happen in the meantime. However, the legal issues involved are of great magnitude, and the precedent being set here in terms of judicial power are terrible.

[NOTE: Also please read Alan Dershowitz on the matter, as well as David French.]

[ADDENDUM: I just came across this article, which mentions that the Maryland court’s decision did indeed cite conflict with that 1965 act of Congress in the ruling, although the ruling seems to have been based on other issues as well.]

8 Responses to “Judicial review and political shenanigans”

  1. Geoffrey Britain Says:

    “—there would be no point of having a written Constitution if the courts could just ignore it.”

    Which is what these activist judges are doing in illegally blocking Trump’s Executive Orders.
    The remedy is of course impeachment but obviously congressional democrats with the possible collusion of RINOs will block any impeachment of federal judges.

    That creates the very oligarchic tyranny of which Jefferson warned.

    But the problem extends deeper than corrupt, oath breaking judges and politicians. The media ensures that LIVs remain ignorant. Thus half of America is either actively pursuing or ignorantly condoning the erasure of the American Republic.

    Hopefully a way will be found around this problem for if not and however distant, civil war lies at the end of this road. That’s not hyperbole, simply the logical consequence of leftist activism unchecked by law.

  2. Nitpicker Says:

    “But it established the idea that federal courts are able to declare actions of another branch of Congress to be unconstitutional.”

    Federal courts are a branch of Congress? Well, yeah, de facto that’s what they’ve become, but that’s not what they were intended to be.

  3. parker Says:

    I spent the morning planting rows of arugula, golden beets, lettuce, spinach and kale. I harvested the last spinach from the coldframe. Simple, satisfying work.

    It is not simple or satisfying to contemplate the ramifications of the courts usurping the prerogatives of the executive branch. The lower courts seem hell bent on revolution. I don’t think it is hyperbole to predict we are standing on shaky ground.

  4. Kae Arby Says:

    There is another possible outcome of these judges acting as just another group of partisans; giving Trump ample reason to either ignore, or defy, the courts alltogether. The judicial branch does not have any mechanism to enforce their rulings; that authority belongs with the executive.

    And it’s not without precedent.

    “John Marshall had made his decision; now let him enforce it!”


  5. Yancey Ward Says:

    Congress isn’t toothless here- there is impeachment and Congress controls the purse that pays for the courts. Congress also has plenary power over all of the lower courts and can abolish them all should it wish.

    We do need a constitutional amendment, though. Term limits for judges. I would say no more than 10 years total as a judge is a good metric.

  6. AesopFan Says:

    Yancey Ward Says:
    March 18th, 2017 at 2:11 am
    Congress isn’t toothless here- there is impeachment and Congress controls the purse that pays for the courts. Congress also has plenary power over all of the lower courts and can abolish them all should it wish.

    We do need a constitutional amendment, though. Term limits for judges. I would say no more than 10 years total as a judge is a good metric.
    * *
    I support either term limits or retirement ages for judges, but it appears the Problem Children here are Obama appointees, and not yet subject to either.

    Dershowitz echoes the astounding reasoning as in Lawfare’s speculations (originally by Josh Blackburn) here
    “That is, if Barack Obama selected these seven countries for extreme vetting, it would be lawful, because he lacks the animus. But because Donald Trump had that animus, it would be unlawful. ”

    “Imagine a world in which other actors have no expectation of civic virtue from the President and thus no concept of deference to him. Imagine a world in which the words of the President are not presumed to carry any weight. Imagine a world in which far more judicial review of presidential conduct is de novo, and in which the executive has to find highly coercive means of enforcing message discipline on its staff because it can’t depend on loyalty. That’s a very different presidency than the one we have come to expect.

    It’s actually a presidency without the principle that we separate the man from the office. It’s a presidency in which we owe nothing to the office institutionally and make individual decisions about how to interact with it based on how much we trust, like, or hate its occupant.”

    This is very scary ground.
    The Lawfare authors seem to think that this started with Trump, but I think it is just more blatant, and some judges have always made decisions based on their personal partisan feelings about the President.
    In the past they may have been more “partisan” than “personal” however (eg, supported Clinton or Obama even if they didn’t particularly trust him; or Nixon for conservative judges), but Trump combines both motives.

    Open rebellion by judges upturns every possible expectation of precedent and settled law, if they are willing to rule on everything based on personal objections to presidential RHETORIC, not actual policy mind you.

  7. Ymarsakar Says:

    Pray for the savior in DC to save you, if that is all you have. All it costs is your soul and the future. But that should be a small price for those that want to save this democratic republic.

  8. ELC Says:

    Historically, a presidential proclamation dealing with immigration would have been held to be outside the scope of judicial review.

    333 U.S. 103 – Chicago Southern Air Lines v. Waterman S.S. Corporation

    “15. The court below considered, and we think quite rightly, that it could not review such provisions of the order as resulted from Presidential direction. The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. Coleman v. Miller, 307 U.S. 433, 454, 59 S.Ct. 972, 982, 83 L.Ed. 1385, 122 A.L.R. 695; United States v. Curtiss-Wright Corporation, 299 U.S. 304, 319-321, 57 S.Ct. 216, 220, 221, 81 L.Ed. 255; Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 310, 62 L.Ed. 726. We therefore agree that whatever of this order emanates from the President is not susceptible of review by the Judicial Department.”

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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