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From "the Economist Explains": How America’s courts can keep the government in check
Excerpt:
Shall we add Trump to that list of three names?
As a constitutional wrecking-ball I cannot imagine a more willing or able PotUS. Besides, who would dare question him?
He thinks he walks on water ...
Excerpt:
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: “The 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 (...), 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.
Shall we add Trump to that list of three names?
As a constitutional wrecking-ball I cannot imagine a more willing or able PotUS. Besides, who would dare question him?
He thinks he walks on water ...