There has been a lot of recent attention given to President Trump's Executive Orders released (and continue to be released) during these first few weeks of his second term. Each one has its own individual issues and concerns but one overriding question for many is the constitutionality of Trump's actions. Many people are saying we are in the midst of a constitutional crisis. Given past and present comments by Trump, VP Vance, allies, aides and supporters, it is clear that the current Executive Branch administration believes it is the federal courts causing a crisis by interfering with Executive Branch "legitimate" authority. But is this exercise of authority actually "legitimate"? If not, what's next? To answer such questions, we first have to look at the source - the Constitution of the United States, written in 1787, ratified in 1788, and put into effect in 1789.
The US Constitution Article III, Section 1 states that, "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. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." But what exactly is "judicial power"?
The US Constitution Article III, Section 2 (as amended) states that, "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;— to all Cases affecting Ambassadors, other public Ministers and Consuls;— to all Cases of admiralty and maritime Jurisdiction;— to Controversies to which the United States shall be a Party;— to Controversies between two or more States;— [between a State and Citizens of another State;-] between citizens of different States;— between Citizens of the same State claiming Lands under Grants of different States [and between a State, or the Citizens thereof;— and foreign States, Citizens or Subjects.]"
The US Constitution Article III, Section 3 discusses treason issue and nothing else. Other articles in the Constitution provide some guidance for court organization such as appointment of judges and oath but really nothing else that would describe the court's power. But we still have no definition of just what is "judicial power". There was considerable debate amongst delegates to the Constitutional Convention with varying opinions but in the end those delegates only provided a very broad framework for the federal judiciary while leaving Congress to fill in the details later.
And in 1789, Congress filled in those details with the Judicial Act of 1789 signed by President George Washington. This Act established the foundation of the US federal court system and was the result of heated debate between the Federalists and Anti-Federalists. But still no clear definition of judicial power.
In 1801 Congress passed the Judicial Act of 1801 due to a power-play between the outgoing John Adams and the incoming Thomas Jefferson. One provision required that justice of the peace commissions were required to be delivered by the Secretary of State. James Madison was that Secretary and he refused to deliver William Marbury's commission as Justice of the Peace in the District of Columbia. Marbury petitioned the Supreme Court to compel Madison to deliver the commission. In the unanimous Supreme Court opinion written by Chief Justice John Marshall, the Court found that Madison violated the Act of 1801 with his failure to deliver the commission. However, the Court found that the provision of the Act of 1789 that allowed Marbury to petition the Court conflicted with Article III, Section 2 of the Constitution and was therefore unconstitutional. With this ruling in 1803, Chief Justice Marshall established the principle of judicial review as the power of the Supreme Court to declare a law to be unconstitutional.
Most people would consider this to be common sense. Someone needs to be the final arbiter of what is and is not constitutional. Obviously local and state court and elected officials cannot be given such power to be the final arbiter of the federal Constitution. To give such power to the President uproots all notion that this nation is not a monarchy or dictatorship. To give the power to Congress could create the same dictatorship when the majority of Congress is of the same political party as the President. While the Supreme Court's only political and partisan aspects should start and end with individual justice appointments, those justices do have their own ideological leanings which is what draws the attention of the President when appointing and the Senate when confirming. Individual justices will consider their own ideological views when hearing a case and all we can hope is that they fairly deliberate based on the law.
But today we have persons with considerable authority advocating that the President has the authority to ignore the courts. I would agree that the President can take action that many might believe to be unconstitutional, but until federal courts weigh in, just what is the President supposed to do? Those who believe the action to be unconstitutional need to petition the courts for relief. Until that court weights in, the President has no other legal barrier and should not be expected to stop because of public outrage. If he does, great. If he doesn't, voters should remember that. But once a federal court steps in with an order to either temporarily block the action or an official ruling against the action, can the President ignore the federal court order and continue with the action? I would argue no, based on Article III, Section 2 which gives judicial power to the Supreme Court AND its inferior courts. The President is always free to petition a higher court for relief but they need to respect the lower court's order until they obtain such relief. If the President ignores lower court orders, the nation may be risking a constitutional crisis. But if the President ignores the Supreme Court, that is without a doubt a constitutional crisis. This is not an imbalance of power but is a clear example of the checks and balances the Constitution envisioned between the three branches. So where does this leave us?
Before I go further, let me address a nuance that those promoting the idea of ignoring the courts may be thinking. When these individuals say that the courts cannot block basic executive authority, they may be thinking the authority to manage Executive Branch resources such as people and funds. But Congress has established the laws by which the Executive Branch manages those resources. This includes actions from how to hire and fire people to how to spend funds. It would be disastrous if the President had the personal choice for how to perform those actions. What civil servant would even want to work for the Executive Branch knowing that at any moment the President could wake up and decide to fire them for no reason? But if you took this idea of executive authority to manage resources even further, you will find nightmare scenarios. The President could say that it is their executive authority to direct the work of federal employees within the Executive Branch in any way the President sees fit. Like maybe direct the FBI to violate the rights of American citizens?
The US Constitution, Article II, Section 1, Clause 8 states, "Before he (President) enter on the Execution of his Office, he shall take the following Oath or Affirmation:– I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Given that it is the Supreme Court that has judicial review authority, its ruling that a Presidential action is unconstitutional ends all discussion and should the President ignore that ruling, their actions are unconstitutional. That President has now violated their oath to preserve, protect and defend the Constitution. So now what happens?
the US Constitution, Article II, Section 4 states, "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
Military officers take the following oath - "solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic,"
If any President ignores a Supreme Court ruling and Congress fails to
impeach and remove, military officers are bound by their oath of office to take
up arms and remove Trump from office. I don't want to see that
happen but I believe that a military coup in such circumstances would be better than a
future where the President is given the power to serve as a
Dictator.
And what if the Supreme Court chooses to side with the President? As I've argued, the Supreme Court is the final arbiter of what is and what is not constitutional. Any Constitutional check by Congress is null and void if the Supreme Court says there is no crime. A military officer's oath to defend the Constitution is not challenged if the Supreme Court says the Constitution has not been violated. It is then up to American citizens to take action. Hopefully in a peaceful manner via the voting booth. I would rather not consider the alternative.
Comments
Post a Comment