US Vice President JD Vance recently declared that “judges are not permitted to control the legitimate power of executives.” Fired across the federal judicial bow, this shot threatens to confuse a long-standing understanding that the court should have a last word about the meaning and demand of the law. Vance’s challenge, such as ending birthright citizenship and dismantling Congress-approved administrative bodies, opposing the background of President Donald Trump’s constitutional suspects, is the United States. We are rushing to the unfolding constitutional crisis.
At the heart of the problem is a simple proposition. General elections are not constitutional treaties. Constitutional practices are idiosyncratic events that establish basic norms and procedures that regulate the legitimate exercise of state power. In 1787, the American Constitutional Treaty was a consensus that was restricted by the fundamental norms (personal rights and principles of legitimate processes and equal protection) that restrict the exercise of state power (democratic, federal). (Republic) was held to establish political and legal caves. and the procedures in which the constitution is enacted (ratification by the state).
The basis of the republic, which the US Constitution has established, is the idea that the functions of government must be carried out by three comparable branches in order to protect freedom against the threat of tyranny. Singular function. Congress therefore regulates policymaking and federal spending through legislative functions. Executives implement policies and defend national security. The court interprets what the law and constitution require.
Through elections, the people decide who will represent their interests in this constitutional order. An elected official is not free to change the framework. For example, they cannot simply end the election or negate the outcome of a free and fair election. Furthermore, the basic rules for the exercise of state power cannot be changed. For example, they cannot neglect individual rights or exempt them from the principles of legitimate processes and equal protection.
However, if an elected official, for example the president, decides that his opinion (not the Supreme Court) is negative about whether a particular executive order or action is in violation of the Constitution, then the situation is even more It’s sticky. The dispute emerged early in the history of the new country and was famously resolved in a landmark decision by the US Supreme Court of Mulberry v. Madison (1803).
Judge John Marshall, who wrote for the court, ruled that “by their nature, politically, or by the constitution and law, questions submitted to enforcement are never possible in this court.” Meanwhile, legal issues, particularly issues that involve interpretation of the Constitution itself, fall within the Ministry of Justice.
The symbolic status of the Supreme Court decision in Marbury comes from the following words: Those who apply a rule to a particular case will inevitably need to explain and interpret it. If two laws are inconsistent with each other, the court must decide on their respective operations. ”
In Marbury, the Supreme Court for the first time argued that having a last word about the meaning of the constitution and whether a particular legislative or administrative measure conflicts with the requirements is a singular state of the judicial division. If Congress believes it is not, and if it is a matter before the Marbury court, its power must be handed over to the superior powers of the High Court. The same can be said for the President.
Unless you’re that. For example, in Worcester v. Georgia (1832), the Supreme Court held that the Supreme Court constituted an independent political community in which Georgia laws were not applied. This meant that missionaries living among the Cherokee people could not be charged with refusing to take oaths to comply with Georgia law.
The story (Vance quote) is probably a foreign language, but President Andrew Jackson believes he has responded to the court’s ruling, saying, “John Marshall made his decision, and now he has made it enforced.” It will be. And in fact, the court’s decision did not prevent Jackson from sending federal troops to drive the Cherokees out of their land. As a result, there was a path of tears. It is a forced march on Indian territory (now Oklahoma) where an estimated 10,000 Native Americans failed to survive.
Resistance by the Southern State to the court’s authority to separate public schools, as mandated by Brown v. Board of Education (1954) tells a somewhat different story. Based on direct orders from President Dwight D. Eisenhower, federal forces restrain hostile mobs and safely guard young black students (known as “Little Rock Nine”) in public high schools previously all white I did.
But what if Eisenhower chose not to take action against separatist resistance to brown decisions? The United States will certainly be another country today.
The American Republic is currently at a similar crossroads. However, the question is not what national policies will be implemented by elected representatives. The bigger question is whether elected officials can change the constitutional order itself – through direct action or strategic inaction.
Despite Vance’s opinion, the US Constitutional Order has been well resolved that “to say what the law is is a state and obligation of the court (not the enforcer)”. By asserting its own advantage, Trump’s administrative division is trying to effectively change the American constitutional framework of checking and balance between comparable branches of government.
Trump lacks constitutional authority to implement this change. The current situation suggests that Americans can restore the Democratic Republic, which was founded only by asserting their original sovereignty, through elections, mass protests, or other forms of collective action.
Richard K. Sherwin, professor emeritus of law at the New York School of Claw, is a co-editor of contemporary cultural history (with Daniel Selermajer) (Bloomsbury, 2021).
(Source: Project Syndicate)