Preventing Dictator Trump: Judicial Review and Separation of Powers

An important principle of our constitution that set ups our government is that of separation of powers. It is a part of checks and balances. Separation of powers has always been a hot topic especially in the Supreme Court. It keeps our government running smoothly. It helps determine the jurisdiction of each branch of government. In order to understand the separation of powers, you have to understand Judicial Review. In middle and high school history the concept of separation of powers and judicial review is taught. Mainly because it’s on the regents. Many students sort of zone out on it because it’s not all that interesting. Once again I want to take two Supreme Court cases and review them. After briefly reviewing each, I want to put some modern context on the separation of powers and judicial review. Let’s just say when an election rolls around with a controversial president being elected, my mind goes to thinking about how the constitution allows for checks and balances that keeps our democratic president from becoming a dictator. It’s really petty to blame the election results on Russia or voter fraud. A choice was made and we should deal with it by invoking the constitution. Without further or do, I want to present Marbury vs. Madison.

Marbury vs. Madison was decided by the court in 1803 by the Marshall Court. It was unanimous decision. Now you might remember some of the facts of case from high-school. If you don’t then I suggest you read up on it here. Like usual, I want to skip directly to the questions of the case and the majority opinion. The court had to decide whether or not the officers had the right to go court over the commissions and  whether or not Section 13 of the Judiciary Act was valid? The court held that because Adams had signed the commissions they were legal and should have been given out despite Jefferson’s order to not give them out. They also voided Section 13 of the Judiciary Act because it interfered with Article 3 section 2 of the constitution. The Court had an obligation to uphold the constitution over the congressional law. Here was what the Judiciary Act, section 13 says :

That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States. [NOTE:  Text in bold of particular relevance to Marbury v. Madison. (Source, here)

The Court invalidated the last part of this law in favor of the constitution.  The constitution goes against the Judiciary Act, more specifically Article 3, Section 2:

The judicial branch has jurisdiction over any case involving: 

  • The US constitution, the laws of the United States laws, treaties, or any cases involving ambassadors, other public ministers and consuls.

This particular quote is what the Supreme Court cited as their jurisdiction to hear Marbury’s case. Marbury essentially tried to argue for a broader Supreme Court jurisdiction. The Judiciary Act would have allowed that if not for the constitution’s strict view what the Supreme Court is allowed to do. Marbury vs. Madison was the first case to strike out part of a congressional law. Its become known as judicial review. This is only the first case of it, comes up again years later in the Dred Scott decision. (another blog post)

I want to go over just one more case before I bring it into a modern context. I think that one of the most interesting Supreme Court cases is McCulloch vs. Maryland. If you want to read the facts, then click here. The McCulloch vs. Maryland is not so much about judicial review but it does establish an important pecking order within our government. You may have heard of federalism. This is a case that shows what federalism. In this case, a uanimous decision was made that the state of Maryland could not tax the federal government. The question the court had to answer was simply one of federalism. Congress legally created a bank and Maryland tried to pass a bill to tax it. The court found on the basis of the 9th amendment (see my last post) or the enumerated powers amendment. The court set the precedent that federal government has constitutional power over the states. The federal government is allowed to establish banks because of the 9th amendment and the states can’t tax it because its a constitutional function. This is monumentally important case especially with the civil war later in the century. (case was decided 1819)

Marbury vs. Madison gave the Supreme Court the power to strike out congressional laws that are unconstitutional. McCulloch vs. Maryland gave the federal government the priority over constitutional functions within the states. So why are these cases so important today?  I alluded to the controversial election in the beginning of the post. I believe these two cases give the people some hope that President Trump won’t become Dictator Trump. Obviously, he has a favorable Congress and he might even get a favorable Supreme Court pending a successful nomination. But Trump and Congress still have to follow the constitution. In the end, the Supreme Court has a duty to uphold it. So no matter what happens with Trump, I think the separation of powers and judicial review will keep him in check.

Let’s quickly for example, take President Obama and his presidency. Obama’s biggest accomplishment (depends on how you look at it, failure is more accurate) is Obamacare or the Affordable Health Care Act. It was a very controversial becuase it mandated that everyone get healthcare or pay a fine. Parts of it went to the Supreme Court to be decided if they were constitutional. Some parts of it were unconstitutional and others remained. In my opinion there wasn’t enough struck down. However, I think that knowing that obviously unconstituional laws will be struck down is comforting. Nobody saw Trump getting elected. I think we all gotta have a little faith

This definitely won’t be the end of this topic, it went a little longer than I wanted but I hope to revisit it soon.  Thanks for reading!

 

Citations:

Chicago-Kent College of Law at Illinois Tech. “McCulloch v. Maryland.” Oyez. https://www.oyez.org/cases/1789-1850/17us316 (accessed December 12, 2016).

Chicago-Kent College of Law at Illinois Tech. “Marbury v. Madison.” Oyez. https://www.oyez.org/cases/1789-1850/5us137 (accessed December 12, 2016).

 

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s