GOP's lawsuit against Obama, and Presidential Signing Statements

[Martin_Hyde]

@md2000

I’m not sure I understand the last few posts.

Marbury vs Madison said that Marbury was entitled to his commission according to the law, and it should be delivered.

Then it went on and reneged on that, saying that the law itself was unconstitutional; apparently saying that the constitution defined the ultimate limit of the powers of congress and the court.

Marbury v Madison never reneged on whether Marbury was entitled to the commission, Marshall simply noted that even though the law was on Marbury’s side, the actual law that gave the Supreme Court original jurisdiction on matters such as that was unconstitutional. As the constitution only allows Congress to alter the appellate jurisdiction of the Supreme Court, the narrow original jurisdiction of the SCOTUS cannot be curtailed or expanded by Congress, and only by expanding it was this case part of the SCOTUS original jurisdiction. Marshall essentially said “all matters of law favor Marbury, and there is a valid remedy–except, since this is a case filed directly with the SCOTUS, and in an area where the SCOTUS cannot constitutionally have original jurisdiction, it’s unconstitutional for us to do anything needed to redress the wrongs. Instead, we can simply note this case, constitutionally, does not belong in this court as a directly filed matter, the law that expands this court’s original jurisdiction is unconstitutional and void.”

I suppose in theory Marbury could have refiled with a lower court and appealed his case up to the SCOTUS and maybe Madison would have been issued a writ of mandamus requiring deliverance of Marbury’s commission. But he never did that, I don’t know the history of why or why not.

But unlike many court rulings, Marshall decided to establish precedent on issues that he did not need to in order to issue his ruling in Marbury, and some of that precedent is relevant to this case. Specifically, that yes, the executive branch has no discretion in executing ministerial functions and that yes, in general the judicial branch can issue writs mandating execution of those ministerial functions. Obviously the most important aspect of Marbury is when Marshall declared a law passed by Congress to be unconstitutional, which established judicial review (it was not explicitly established by the constitution.)

[As with all judicial branch rulings, just like Nixon could have ignored the order to turn over his tapes or etc the executive branch could likewise ignore the writ, but it would make it without doubt that the executive was behaving illegally at that point. Politically it’s far different to just ignore a court order than it is to engage in “creative” interpretation of the laws.]

I actually don’t see anything in the constitution that obliges the president to enforce laws; generally the constitution seems to be limiting the executive’s ability to enforce what is NOT in law. Congress has to sole authority to MAKE laws. The executive can fail to enforce them, and anyone directly and materially affected can then sue.

Except we have a Supreme Court ruling that obliges executive officers to perform their ministerial functions. Marbury was v Madison because Madison was the minister who was not performing his duty. It’s questionable if the President has such ministerial functions (and thus a suit would probably most appropriately be directed against the DHHS Secretary IMO.)

I suppose if someone gets a judgement and the entire apparatus of the state (executive) refuses to enforce it, then the problem is lack of democracy. If the court says “pay this man $1,000,000 for his damages” and the government fails to do so, the police fail to enforce the order, the banks refuse to debit from the government accounts when presented with a court order… Then the rule of law has fully collapsed.

The rule of law essentially will collapse if the President can decide which laws the legislature passes that he cares to enforce and nothing is done about it. What would stop the President from agreeing to “bargains” in which there are tax increases but some spending cuts, and then he just says “no, we’re going to keep spending whatever we want but I’m keeping the tax increases, too.”

Perhaps we’ll see a semblance of this when the courts start ordering the government to drop the pretence of “national security” on everything. But… not with Affordable Care.

We see executive discretion all the time. A person is charged with 20 crimes, then pleads down to 5 charges and a lesser sentence. The other 15 charges are ignored. Is this unconstitutional? As I said, the feds ignore enforcement of the federal marijuana laws in Colorado. Is this unconstitutional?

The question then - at what point is executive discretion unconstitutional?

When it’s an issue of declining to execute purely ministerial functions, for sure.

[Exapno_Mapcase]

@md2000

The question then - at what point is executive discretion unconstitutional?

When the Supreme Court says it is. [ETA for Martin Hyde. We do not know and probably will never know whether this issue is one of them.]

The issue that the last several posts have been turning on is that the Constitution does not, as you say, make this explicit. The Constitution is a framework for laws, not a law in and of itself. It sets boundaries, assigns tasks, and mandates a few things but doesn’t answer all questions.

The past 225 years have been a continuous dance among the three branches. For the most part, the Court has decided by not deciding. It simply refuses to accept cases on “political questions,” that is, on the supremacy of the Legislature or Executive branches when they are in dispute. They cannot be forced to do so and there is nothing in the Constitution that says a word about the subject.

This has nothing in common with plea bargaining. It’s not even an issue of the rule of law. It’s an inevitable result of the conflicting demands of three separate but equal bodies which each have legitimate claim to supremacy at a given time for a given issue. Two must give way or risk a crisis. Those ultimate clashes are few and none have developed into a full-blown crisis because someone always backs down.

The U.S. has three CEOs. That was not intended, and would have meant nothing to the framers anyway. We can always argue about which side should prevail and imagine worst case scenarios in which no one will yield. 225 years of actual yielding is pretty good precedent, though. Of all the things that could happen to the country, a Constitutional Crisis that destroys the rule of law is low of the list.

[Martin_Hyde]

@Exapno_Mapcase

When the Supreme Court says it is. [ETA for Martin Hyde. We do not know and probably will never know whether this issue is one of them.]

I agree with that, actually.

The issue that the last several posts have been turning on is that the Constitution does not, as you say, make this explicit. The Constitution is a framework for laws, not a law in and of itself. It sets boundaries, assigns tasks, and mandates a few things but doesn’t answer all questions.

I agree with this, my points in this thread notwithstanding–I don’t think this is a GQ thread because there can be no GQ answer. The House has never to my knowledge sued the President. Members of Congress asserting to represent legislative interests or other interests have sued the President in the past (I can think of a few cases in addition to Raines v. Byrd where this happened.)

Since there is not actual precedent, firmly established rules on standing of the House as a body, and the SCOTUS has actually said “We don’t know how we’d rule on such a case if instead of a few congressmen it was the entire congress” (let alone just one House, which is a separate question), there is no factual right/wrong. Only assertion.