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.
[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.]