|A short lesson in US goverment
||[Jan. 30th, 2017|09:49 am]
I see far too much sanguine trust that, somehow, the bedrock that is America will survive Trump. Do not fall into this trap. Our system of checks and balances is not a law of nature like gravity or thermodynamics. It is a gentleman's agreement, one of long standing, but not unbreakable.|
Let me tell you a story. Back when the USA was a wee babe, and our Founding Fathers were still a bunch of idealistic but extemely argumentative men, defeated President John Adams appointed a bunch of people to positions on his way out the door. But those appointments were not official until the appointees actually received the physical order. And when Thomas Jefferson took office, he instructed Secretary of State James Madison not to deliver those appointments.
One of the disappointed appointees, William Marbury, decided not to take this lying down. He sued James Madison, claiming that as the valid appointment had been made the new president had the obligation to carry it out. This case ended up in the Supreme Court: Marbury v. Madison.
No one going into this case had any idea that a petty, pissing match between Adams and Jefferson would end up shaping our entire government.
You see, Justice John Marshall delivered a decision that basically proclaimed the Supreme Court as the ultimate arbiter of the constitutionality of laws and orders. He wrote Article III of the Constitution gives the court the authority to determine who wins when there is a constitutional question. He wrote that Marbury *did* have a right to the commission, and that the laws of the country did provide him with legal recourse.
And then, Marshall did a very canny thing. He said that Marbury's method of asking for relief was improper, and that therefore Madison (and, by extension, Jefferson) won the day. This legal jujitsu meant that Jefferson had no reason to say, "Well, I don't have to do what you say!" and create a Constitutional crisis right there in 1803. Instead, he was forced to accept the decision. And he was *pissed* about it. Wrote that it was the creation of an oligarchy, that it gave the courts too much power. But the path was laid: the courts were to be the interpreters of constitutionality.
For 200+ years, the courts have carried out this role. Our system of checks and balances has meant that the will of the majority did not overrun the rights of the minority (Benjamin Franklin famously called straight democracy "A lamb and two wolves deciding what's for dinner). Presidents have--sometimes reluctantly and resentfully--respected the rulings of the court. Where states have refused, such as Brown v. Board of Education, presidents have sent in the National Guard to enforce the law of the land.
We have convinced ourselves that this is a strong and stable system. But it is a system built on cooperation. The federal court system does not have an army; it has some marshalls, and a history of being respected.
This weekend, we came close to the edge of the administrative branch of government looking at the court system and saying, "naw, we don't have to obey you." We balanced at the edge of constitutional crisis. Through narrow obedience--interpreting the judge's ruling as local and following it in Boston--we avoided facing the question of whether this administration is going to respect the judiciary. Unless the pace of confrontation decelerates soon, that question is pretty much inevitable.
The question then will become, what will Congress do about it? How far will it allow the executive branch to go in ignoring Constitutional rights before it acts? If the court tells President Trump, "You cannot Constitutionally do this thing," and the president says, "Too bad, I'm doing it anyway," we have only Congress to check him, to legislate against whatever unconstitutional act he is taking. If he thumbs his nose at them, they are left with the power to impeach him.
Will they have the fortitude to do so? I hope they do. If they don't, the government of the United States as we have known it, is over. Whatever emerges may still look the same, but it will be a very different creature.