Assuming that everything I said in my last article was true, and it is, the final say-so on virtually all constitutional issues (there are some exceptions) including cases involving the separation of powers, resides with the US Supreme Court (see last bullet point). The inherent power of judicial review under Article III, a judicial power the basis of which does not appear in the black letters of the law (now that we know what that means), but through a “hidden” power the Supremes gave themselves through their own interpretation of the Constitution. This power allows the Supremes to review all cases and controversies that arise under the Constitution and adjudge them constitutional or otherwise. As a practical matter, we can safely conclude that in this final analysis, the Constitution says whatever the Supremes says it does. Yes, you read that right. This includes cases involving legally cognizable skirmishes between the President and Congress.
You might be thinking how did this happen? Wouldn’t such a sweeping, influential and flat-out dangerous power have to be in plain, unambiguous writing within the four corners of the document to be “kosher?” What would the Founders have said? The case establishing the power of judicial review is Marbury v. Madison (1804). It involved two of the best known and influential of the Founding Fathers, John Adams and Thomas Jefferson.
When it comes to separation of powers the Legislative and Executive Branches have been fighting since the day the Constitution was ratified. Marbury is still a prime example of classic, churlish infighting between the President and Congress. After a nasty (even by modern standards) campaign involving countless incidents of mudslinging, character assassination and a hefty amount of balderdash, the incumbent Federalist candidate John Adams was defeated by the somewhat more radical Republican-Democratic Party candidate Thomas Jefferson. In an act of naked partisanship, on the evening before he left office, John tried to appoint 100 or so of his Federalist allies to life-time commissions in the Federal government. For the most part he succeeded, however, out of what was probably a haste makes waste moment he left several appointment letters behind in ye presidential desk drawer.
Thomas found the letters and summarily refused to deliver them, thereby denying the intended recipient their cozy, crony commission. One potential public servant denied his post as Justice of the Peace was John Marbury. He sued Jefferson’s Secretary of State and another Hall of Framer, James Madison, to deliver his appointment letter post-haste. Madison told Marbury to poundeth sand and the fight was on. Who was right? The still controlled by Federalists Congress wanted the appointment. The President did not. The Constitution has no express provision for this kind of conflict between branches. In a bind, they asked the Supremes to decide. In what still is the biggest constitutional power grab, John Marshall, the Chief Justice Supreme said, “let me think about it.” And he did. Several months later, he published his decision. In the first part of the opinion, Marshall has to decide whether the Supremes have the constitutional power to interpret the Constitution. Not surprisingly, the politically savvy Marshall decides yes. The Supremes do have the power to hear, interpret and render a decision in the case.
In the much shorter second part of the decision, we find Lady Liberty is not so lucky for Marbury. Marshall finds the Supremes do not possess the power to compel the Executive branch to deliver the letter, the sooner the better, or otherwise.
What did the Founding Fathers have to say? Nothing. They let the decision stand, judicial review and all. Greatest usurpation of power in American history, right under their collective white wigs and powdered, perfumed noses.
In conclusion to last week’s earlier conclusion, does Trump have an Article II power to do whatever he wants? Now I’m not saying Marbury is a blanket ruling under which the Supremes can never order a President to do, or not do something. Each case has unique facts including some of far greater significance that whether Marbury became a Justice of the Peace. With Herr Trump, it doesn’t seem likely Justice Roberts would approve of such a far reaching declaration of presidential power. Not likely to be sure, but now you know you never know until the fat supreme sings. It’s like that. Yes, it is.
[Ed.s Note: You can see the many previous Rants of Dean Drucker at:
https://losangelesfreepress.com/testimonials-to-the-la-free-press/ as well as here under the Today’s Rant Tab. Interesting reading, we think. And, too, we think that in these upcoming months, he will be a vital resource, a go-to Expert on the on-going attempts of the White House to turn America’s most cherished values into sludge.
>>Additional ‘Rants’ are posted every Tuesday, and if we are all lucky, he’ll also have one up on Thursday. Best to check regularly. Or, too, so you will receive them automatically you are welcome to take advantage of today’s Subscription Special at: https://losangelesfreepress.com/subscribe-to-the-la-free-press/
I’ll add this, too, as I personally hope you make the most of our Historic Archives, as well ~ they begin in 1964 and are, literally, among the very finest records of that pivotal era. And, as a Subscriber, you may make Requests for our articles on those seminal events – FOR FREE 🙂
>>Not sure where to begin? See the most remarkable – and eerily coincidental??? – articles at our ’50-Year Throwback Thursday’ Tab… up at the top of the page.
>>Now, Phil, now that we know that the Supremes have as much power as they do, what can ‘we’ do to ensure that America stays its course of high-ideals? Hope to see you all, automatically, on this Thursday… please go on back up and check out that link to the Subscription Special!]