How America’s courts can keep the government in check

Αrt2617 Τεταρτη 15 Φεβρουαρίου 2017
How America’s courts can keep the government in check
The judiciary’s power to strike down laws and executive actions as unconstitutional dates from 1803
The Economist explains

OVER the weekend, Stephen Miller, a White House adviser, lashed out at the federal judges who have put the brakes on Donald Trump’s travel and immigration bans. On ABC’s “This Week”, Mr Miller told George Stephanopoulos that “the judiciary is not supreme”. On “Fox News Sunday”, he called the recent decisions by district and circuit court judges “a judicial usurpation of power”. Mr Trump’s authority to limit immigration, he said, is “beyond question”. This sweeping view of executive power is quite at odds with the judges’ view. In its ruling upholding the district court’s freeze on the executive order, the three-judge panel at the Ninth Circuit Court of Appeals depicted Mr Trump’s lawyer’s claims as out of bounds: “[T]he Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context”. It is “beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action”.

Each branch of government telling the other that its position is “beyond question” presents an impasse. Surprisingly, a glance at America’s constitution does not suggest a way out: while Article VI declares that the constitution “shall be the supreme law of the land” and every “thing in the constitution or laws of any state to the contrary” must bow before it, there is no provision granting the final word to any particular institution. What, then, is the basis for the judiciary’s power to serve as a check on a president’s executive actions?

The answer lies in Marbury v Madison, a case from 1803 in which John Marshall (pictured above), America’s fourth chief justice, brilliantly salvaged—and expanded—the power of the Supreme Court. Facing a case that pit Federalists against their bitter rivals, the Democratic-Republican party of President Thomas Jefferson, Marshall worried that a ruling in favour of the administration would look like capitulation but that deciding against it might lead Jefferson to defy the Supreme Court. In Marbury, Marshall managed to defang his political opponents with a nominal win while arming the court with a startling new power: judicial review. “It is emphatically the duty and province of the judicial department”, he wrote, “to say what the law is”.

Presidents generally respect this principle but not all—including Andrew Jackson, Abraham Lincoln and Franklin Delano Roosevelt—have always hewed to the Supreme Court’s line. Jackson, whose portrait Mr Trump hung in the oval office days after assuming the presidency, believed that “the Supreme Court must not...be permitted to control the Congress or the executive”. Scholars continue to debate the soundness of Marshall’s reasoning in Marbury, but the power of the judiciary to strike down laws and executive actions as unconstitutional has become a universal and long-lasting norm. 

Even Justice Clarence Thomas, who often shows little compunction about abandoning age-old precedents when they depart from his view of a constitutional rule, believes the courts are “the final arbiter” of the constitution’s meaning. In the words of Justice Joseph Story, in a book of legal commentary from 1833, the judiciary’s “interpretation...becomes obligatory and conclusive upon all the departments of the federal government”. For all of Mr Trump’s talk about “so-called judges” and the “political” ruling by the Ninth Circuit, he has not attempted to circumvent the judges’ decisions. For now, Mr Trump is permitting courts to check his power.


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