Remember Nixon’s Saturday Night Massacre? IIRC he went through the attorney general and deputy, before he found someone (Robert Bork) who would rather fire the special prosecutor than resign.
The thing is, most of these “obey or be arrested” scenarios require a whole series of people, all the way down to the foot soldiers, to obey the person defying the courts. So many foreign governments have toppled (ie. Shah of Iran) when it was becoming evident that the foot soldiers could not be trusted to carry out orders to go against what they believed in. The recent coup attempt in turkey is a stark example of this.
the simple rule in any confrontation is “don’t start a fight you can’t win” - unless your goal is to be a martyr. In the case of 1820’s Cherokees or 1950’s black people the powers that be were pretty sure they had a decent consensus for defying the court by the white majority. very few other such divisions in modern society will be so clear-cut, that the law enforcement, national guard and the military will come down on the side of defiance against the constitution. If the issue is particularly divisive, it may come down to civil war as it did in 1860. If I were the one sitting in the white house, I think I’d want to be sure the full military would stand with me before I defied the constitution. I have my doubts they would. Even Nixon only postponed the inevitable.
This is incorrect. While the Chief Justice did issue a decision, it was not a Supreme Court decision. The issue was never taken to the Supreme Court–Congress passed a law making it moot.
I do understand this. Imagine a scenario where a person is asking for injunctive relief because the President has failed to enforce the immigration laws and that case makes the way to the Supreme Court.
[QUOTE=Exapno Mapcase;19705641Because that’s the way the country works. We may get to a new equilibrium but if so there is no pathway in law to predict the route or the outcome. It’s like all those questions that are equivalent to: if you throw out science what is the science answer to this hypothetical? There isn’t one. Once you throw out all the rules you no longer get to make any meaningful statements.[/QUOTE]
So it is that way because it is that way? The concept of judicial review does not have to exist. In the UK, Parliament is Supreme. There is no intrinsic reason why the Supreme Court must have the absolute power to declare an act of Congress or a state legislature to be unconstitutional.
As the Wikipedia article spells out in more detail, there is some dispute over the capacity that Taney was acting in when he issued the opinion. In any event, it was a lawfully issued opinion by a court with jurisdiction over the matter which Lincoln flatly ignored and refused to follow.
In fact, the Supreme Court has a four-part test for injunctive relief:
If the Supreme Court throws out its own procedures and definitions, in favor of “It really doesn’t need a good reason for it other than one that satisfies itself.” then a revolution has happened. That’s possible - but unlawful. So nothing about it can be assumed.
So what? The US is not the UK.
The only reason is 227 years of history. You can’t dismiss that without dismissing everything else.
Marbury v. Madison was unprecedented because our founders were amateurs, and did an amateurish job at writing our Constitution. Somebody has to have the final word as to what the Constitution says, and the Constitution itself is silent on the question of who that is. As soon as it came up, we had a question for which the law had no answer, and so the Court did what someone always does when the law has no answer, and made something up. How could it be otherwise?
It would be better to say they did a *contemporary *job of writing the Constitution. They looked at the world around them and incorporated those pieces which appeared to work combined with their experiences in small town and colonial governments. They were inventing something completely new. No Supreme Court at an equal level to the other two branches had ever existed in the form ours now does, so they hardly can be faulted for not envisioning that. The changing world kept overtaking their assumptions and constructions, true, but the basic framework was sound. Much more importantly, it was flexible enough to normally incorporate these great changes without much fuss. A truly amateurish job would have cracked at a hundred points.
“What happens if the executive branch refuses to obey orders from the judicial branch”
The short answer is that that if the executive does this successfully, the rule of law has come to an end, and democracy cannot survive in the country in question.
The only amplification I’d give to what UDS said – which is essentially true – is that if the executive breaks the law in a big or significant fashion, then democracy could be imperiled.
Nearly every President has pushed at the law a little. Ronald Reagan unilaterally broke treaties, violating the constitutional “supreme law” clause. Bush the younger lied to Congress, a violation of the law.
But these are small enough potatoes that our democracy can survive it.
(The matter of detainees at Guantanamo is troubling; that’s no longer small potatoes.)
It’s non-transitive. A > B > C > A. Congress writes laws…and the President vetoes them. Congress overrides the veto…and the courts negate them. The Senate confirms the members of the court.
Etc. They all give orders to each other. It’s wonderfully involute!
Trinopus has it. Each of the three branches has its particular function, which the others may not usurp. The legislature makes the law. The courts interpret the law. The executive executes the law. If the executive wants to do something and the courts rule that the law does not give it the necessary power, then the executive will have to get the law changed (by, or under the authority of, the legislature) before it can lawfully do whatever it is that it wants to do. The rule of law in a nutshell!
Depends on the law. If people are being arrested and jailed over a law the courts say is unconstitutional, then the executive branch is SOL, because the judicial system is the only branch that can send people to prison. Unless of course Trump sends people to Gitmo or internment camps or something. But unconstitutional laws are the easiest things for the judicial branch to block.
But if it’s an executive action that doesn’t involve throwing people in jail, a President probably could defy it, as Jackson did, and get away with it unless impeached. In an extreme case, which has happened in Latin America from time to time, the Supreme Court may call on the military to arrest and depose the President. You see, the problem with a President defying the rule of law is that what’s good for the goose is good for the gander. The three branches are co-equal, and abandonment of rule of law by one can justify abandonment of rule of law by the other two in response, so long as the response is against the President and not against the public.
Emphasis added. I would like to see a cite for that. Actually, 2 cites. One that it happened, and 1 that if it did it would be “a violation of the law”. [Actually, please don’t try and cite the first part. That’s GD territory.]
Is it? “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution [or] the Laws of the United States.”
“X federal official is doing Y thing to me, and I think it is illegal, so please tell him to stop” is surely a case arising under the Constitution or laws of the United States, and deciding what the Constitution says is an integral part of deciding a case arising under it.
Andrew Jackson actually had more experience than Trump. And his Inaugural speech sounds reasonable–even though his subsequent actions were not. http://www.presidency.ucsb.edu/ws/?pid=25810
Yes, Jackson was a hotheaded duellist, a slavedriver–and he defied the Supreme Court to remove the tribes. Still, better than Trump. And he had a far better speechwriter…
“the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
Nothing to “fear”. That’s small potatoes in the process, as it’s not uncommon for some back-and-forth to happen before folks settle on what the final course of action will be. It also might be just a handful of employees not fully familiar with their duties under a court order.
We went thru a lot of this when SSM was decreed to be legal in the US and several counties tried to defy the order or stall. Surely you don’t think this is the first time a judge’s orders were not carried immediately, do you?