By William Morris
Sometime this week, President Trump will likely issue a new, “tailored” executive order on immigration. An order that will hopefully address all concerns raised by the 9th Circuit earlier this month. The question many have on their minds, is whether the so-called “Nutty Ninth” will again block the order? And if they do, what then?
Today, many people believe the administration simply has no other choice, but to “fight it out” in the courts; perhaps rewriting the order, repeatedly ad infinitum, until the lower (or supreme) court rules favorably. This however, isn’t the case. The misimpression that the Judicial Branch is “always” the final arbiter on constitutional questions, is due generally to an incomplete understanding of Separation of Powers; and to frequent coincidental agreements (or lack of opinions), by other branches, regarding court rulings.
The first time the SCOTUS declared an Act of Congress unconstitutional, was the landmark case of Marbury v. Madison (1803).1 Marbury clearly established the court’s power of Judicial Review; and no one, then or now disputes the Court’s authority; only that the authority is somehow exclusive to the Court.
As “co-equal and co-sovereign” departments, a term Jefferson2 used at times, all three branches have review power. It is in fact, required to perform their respective roles in government. Legislative Review must be exercised any time Congress makes a law. Executive Review is exercised when creating regulations and in taking “care the laws be faithfully executed”. Clearly, each branch must be empowered to interpret the constitution, to fulfill even their most basic functions.3
What happens then, if an executive’s interpretation conflicts with that of the Courts? As long as they act within their constitutionally granted authority; presidents can and have acted according to their own independent, nonjudicial review.
The most famous to do so; and to do so famously, was Abraham Lincoln.1 Lincoln’s uncompromising public rejection of the Dred Scott v. Sandford decision (1857) was well known. He spoke against it during both his 1858 Senate campaign and two years later, during his campaign for the Presidency. Within three years Lincoln’s official actions as President, had effectively nullified the Dred Scott rulings.6, 7
Several other Presidents have exercised the right of Executive Review; and notably, all after 1803 and Marbury. (See Table Below)
Click Image to Enlarge
Is President Trump considering this alternative? I believe he was hinting at the possibility when he sent Senior Policy Advisor, Stephen Miller out on the Sunday talk show circuit last week (February 12). The oppositional news media, and even Fox News to some extent, reported Miller’s comments last week as over the top. Certainly his tone was confrontational; and it was his tone that seemed to cause the furor. However, it was what he said, not how he said it, that got my attention. Something he was in fact, careful to repeat in all four interviews. Most pointedly to Chris Wallace (Fox News Sunday), when he stated, “We don’t have Judicial Supremacy in this country. We have three co-equal branches of government.”
By having his advisor repeatedly drive these points home, President Trump, was sending the Judicial Branch a message; a negotiating gambit of sorts. Cautioning the Courts, that if they continued with, what his experts consider frivolous delay tactics, the Executive Branch could be forced to independently review the new order’s constitutionality?
It isn’t a huge stretch to see Miller’s performance; and the administration’s compliant rewriting of the order as negotiating tactics. One a carrot; the other a stick. Clearly, the political risk for the President substantial. He’s no Lincoln, and the Court’s position on immigration isn’t as obviously wrong, as was Dred Scott. There is as well, considerable risk for the Courts. They currently benefit from the misimpression discussed earlier, that the Supreme Court is ultimately supreme over everyone. Fighting that battle today, in full view of social media, could certainly dispel much of that thinking.
It promises to be an exciting week. If the Courts retreat, great, we can finally move on. If they challenge the order again, for spurious reasons, the debate continues and we may see history made yet again. In any event, many should understand what Hamilton meant when he wrote inFederalist 78; “...The judiciary has no influence over either the sword or purse; ...It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” 8
US~Observer Editor's Note: Concerning the interpretation of the Constitution; the Supreme Court has no authority whatsoever to interpret it - in doing so they simply pervert it. According to some knowledgeable historians, one major reason that Noah wrote his Webster Dictionary was to protect the words written in the Constitution. Sadly, in 2017, we find that our invaluable Constitution exists only in theory. Over the many decades since it was written, lawyers have replaced the meanings of many words with their lawyer language, and the courts have literally replaced the Constitution with “case law”.
1) Yoo, John (2015). Judicial Supremacy Has It's Limits. Berkeley Law (Faculty Scholarship).
2) Street Law, Inc. (2017). Landmark Cases of the Supreme Court. Thomas Jefferson’s Reactions (No. 5)
3) Tyler, David W. (2009). William & Mary Law Review, Vol 50, Issue 6, Art 7. Clarifying Departmentalism: Etc...
4) Chemerinsky, Erwin (2006). Constitutional Law Principles & Policies (3rd ed.). New York: Aspen Publishers.
5) Johnsen, Dawn E. (2004). Law & Contemporary Problems Vol67 pg105.
6) Franck, Matthew J. (2015). National Review, Bench Memos. Judicial Supremacy vs. Departmentalism
7) Ragsdale, Bruce A. (2007). Ex-parte Merryman and Debates on Civil Liberties During the Civil War
8) The Federalist Papers Project. (2017). Federalist 78: The Judiciary Department (Hamilton or pseudonym)
William Morris is a retired hardware designer and strategic marketing analyst with 25 years experience in the PC, embedded systems and mobile phone industries. He’s traveled extensively throughout the US, Europe and the South Pacific. Today he writes about conservative politics for 'Red Nation Rising' and the US-Observer.
William can be contacted on Facebook.