If and when House Speaker John Boehner sues the President, John Roberts and his colleagues on the Supreme Court will confront a challenge that has bedeviled the judiciary for more than 200 years.  When the executive disregards constitutional limitations on its own power, what can the Court do about it? 

When confronted with the issue in Marbury v. Madison in 1803, then-Chief Justice John Marshall enhanced the Court’s power and prestige by declining to issue an order the executive might refuse to obey.  Today’s Court will have to decide whether the Obama Administration’s recidivist disregard for constitutional and legislative limits warrants issuing an order the executive might simply ignore.

Marbury arose under political circumstances as volatile and acrimonious as anything we see today.  From 1789 to 1801 Federalists controlled the presidency under George Washington and John Adams.  From 1797 to 1801 the Federalists held both chambers of Congress.  

But at the turn of the 19th century, Federalist dominance failed.  In the 1790s, the French Revolution deeply divided American politics, and opposition to Federalists’ latent monopoly on government coalesced when Washington declared the United States neutral in Europe’s general war of the 1790s and Adams undertook an undeclared naval war against the French.  The overwhelmingly unpopular Alien and Sedition Acts, allegedly enacted to bolster national security against French infiltrators and supporters, was seen by many as an effort to suppress anti-Federalist sentiment.  Then in the election of 1800, the Federalist ticket split in as Alexander Hamilton ran against the incumbent John Adams. 

In the resulting “Revolution of 1800,” the Democratic-Republican party swept into power. Due to a constitutional quirk since rectified, the two D-R candidates, Thomas Jefferson and Aaron Burr, deadlocked in the Electoral College, requiring the lame-duck Federalists in the House of Representatives to break the tie.  The Federalists generally supported Burr, but Hamilton worked tirelessly against him, contributing to a prolonged deadlock in the House.  It took thirty-six ballots, but eventually Delaware Federalist James Bayard switched his vote from Burr to Jefferson, giving Jefferson the election.  Burr killed Hamilton in a duel less than four years later.

Before the new president and Congress were sworn in, the Federalists packed the courts.  First, the Federalists enacted the Judiciary Act of 1801, creating new District Courts and Circuit Courts, adding judges to the Circuits, reducing the number of Supreme Court justices and empowering the president to appoint federal judges and Justices of the Peace.  On March 3, 1801, the day before leaving office, Adams appointed what become known as the “Midnight Judges” to fill the new positions.  On March 4, the last day of the Adams presidency and the 6th Congress, the Senate approved the Midnight Judges appointments.

John Marshall was a staunch Federalist and Adams ally.  He was Adams’ Secretary of State from June, 1800, until the Federalists left office on March 4, 1801.  He was also Chief Justice of the Supreme Court from January 31, 1801, to July 6, 1835, making him both Secretary of State and Chief Justice at the time of the Midnight Judges appointments.

In his role as Secretary of State, Marshall was charged with actually delivering the commissions to the Justices of the Peace approved by the outgoing Federalist Senate.  Perhaps serving in two of the most important roles in the country simultaneously was too much, as Secretary Marshall did not deliver all of the commissions and left some number in the desk in the Secretary of State’s office.  

Once sworn in, Jefferson set about undoing the Federalists’ court-packing scheme.  One of his first steps was ordering Levi Lincoln, the stand-in Secretary of State until James Madison arrived in the District of Columbia, not to deliver the neglected commissions.  Then the Judiciary Act of 1802 reversed the Judiciary Act of 1801, so the courts’ governance reverted to the Judiciary Act of 1789.  The Judiciary Act of 1802 also cancelled the Supreme Court’s entire term for the second half of 1802.

One of the commissions that Secretary Marshall neglected to deliver and that was subsequently withheld by Jefferson, Lincoln, and, once he arrived on the scene, Madison, was slated for William Marbury.  So Marbury sued Madison.

And Marbury sued Madison directly in the United States Supreme Court.  Under the Judiciary Act of 1789 -- again in force thanks to the D-Rs reversing the Judiciary Act of 1801 -- the Supreme Court had original jurisdiction over writs of mandamus.  Generally, a writ of mandamus requires or forbids a government entity from doing something or failing to do something.  Marbury sought a writ of mandamus requiring delivery of his commission.

Federalist Marbury was asking Federalist Marshall to order D-R Madison to deliver the commission Secretary Marshall himself had failed to deliver; the D-Rs controlled the entire legislative function, had already prorogued an entire Supreme Court term, and by all indications were willing to hamstring the Federalist-controlled courts altogether.

Chief Justice Marshall responded with arguably the most important decision in U.S. judicial history, addressing two critical questions.  First, the Court held that a political officer cannot refuse to perform a specific, legally defined obligation, notwithstanding any Presidential order to the contrary.  In Marbury, once the commission had been signed, the Secretary of State’s duty was to stamp it and deliver it:

This is not a proceeding which may be varied if the judgment of the Executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued.  It is the duty of the Secretary of State to conform to the law . . . He acts, in this respect . . . under the authority of law, and not by the instructions of the President.

As a result, Madison was not entitled to withhold Marbury’s commission.

Second, though, the Court held that it did not have the power to order Madison to deliver Marbury’s commission because the Court lacked original jurisdiction over Marbury’s suit.  Without too much of a foray into the minutia of constitutional syntax, Chief Justice Marshall held that the Constitution precludes expanding the Court’s original jurisdiction, and therefore the Judiciary Act clause purporting to grant the Court original jurisdiction over complaints seeking a writ of mandamus was void.  Since the Supreme Court lacked jurisdiction over Marbury’s suit, the Court could not issue the requested writ. 

Chief Justice Marshall is often credited with creating judicial review by voiding an act of Congress in Marbury, but that is not entirely accurate.  Judicial review existed in English common law and was discussed favorably at the constitutional conventions.  However, Marbury is the first time the Supreme Court negated an act of Congress, thereby giving judicial review firm precedential footing.

Establishing judicial review was a major victory for Chief Justice Marshall and for the Court.  That goal explains two peculiarities about Marshall’s decision.  First, jurisdiction over a case is usually and properly determined at the beginning of a decision, since jurisdiction is a predicate to deciding the merits of a matter.  In Marbury, only the holding that the Court lacked jurisdiction is binding, and the discussion of executive officers’ obligations is non-binding dicta.  Chief Justice Marshall likely opined on Madison’s lawlessness first because he wanted to support his fellow Federalists, even though he then rendered his opinion moot. 

Second, if Marshall wanted to help his fellow-traveler and redeem his own mistake, why did he cast off his own power to do so by negating the Court’s original jurisdiction?  There are many good reasons, actually.  The constitutional interpretation in Marbury is objectively and generally accepted as the correct one; Chief Justice Marshall probably did not want long, tedious original jurisdiction matters diluting the Court’s appellate powers; securing judicial review required voiding the Judiciary Act of 1789 and so sacrificing Mr. Marbury’s commission.

In considering a potential Boehner suit, Chief Justice Roberts may be thinking of another reason Chief Justice Marshall disclaimed the Court’s jurisdiction in Marbury.  The Court has no independent means of enforcing its orders.  It relies on the executive.  If Marshall issued a writ of mandamus ordering Madison to deliver Marbury’s commission, Madison might have refused.  Marbury could have turned to the executive, but Thomas Jefferson was not predisposed to empower a Federalist at Madison’s expense.  Issuing an order that Madison and Jefferson might ignore risked undermining the Court, the Constitution and the republic.

Now recall that Speaker Boehner’s proposed suit would allege precisely that the executive is ignoring another branch’s constitutional powers.  A court order would either require or forbid the President’s doing something, whether it be unwinding past encroachments or refraining from future ones.  But the Court is no more able to enforce such a decision today than it was two hundred years ago.  No, President Obama is abusing the executive’s exclusive ability to change facts on the ground, and the judiciary cannot force him to stop or undo his overreach. 

Nevertheless, there are good reasons for the Court to risk today what Chief Justice Marshall refused to risk in 1803.  Chief Justice Marshall’s concern for the Court’s well-being is moot in 2014, as Judicial review and the Court’s prestige are well and deeply established.  While having an order ignored would highlight the Court’s limitations, it would not undermine the institution as Chief Justice Marshall might have feared.  Indeed, if President Obama ignored a Supreme Court order, it would damage him and his party far more than it would damage the judiciary.

In addition, the merits of a potential Boehner suit leave little room for maneuver.  Chief Justice Roberts has been pilloried for his 2012 decision in National Federation of Independent Business v. Sebelius, which upheld Obamacare by transmogrifying a fine into a tax.  Consistent with precedent and deference to the more democratic branches of government, that decision reflects the Court’s reluctance to interfere with legislation when there is any Constitutional basis upon which to uphold it.  But while Sebelius may have required strained reasoning, there is no reasoning upon which Mr. Obama could constitutionally rewrite the explicit deadlines in Obamacare or negate provisions in immigration law.  Chief Justice Roberts’ deference in Sebelius even enhances his credibility in a Boehner suit.

Finally, the Court has the power and duty to interpret and uphold the Constitution.  The Constitution provides that “[t]he judicial power shall extend to all cases, in law and equity, arising under this Constitution, [and] the laws of the United States.”  As Chief Justice Marshall wrote in Marbury, “[i]t is emphatically the province and duty of the Judicial Department to say what the law is.”  President Obama re-writes and ignores legislation as he sees fit, derogating from Congress’s Article I powers.  If the separation of executive and legislative powers is to have any substance, the Court must assert itself and perform its duty to say what the law is, no matter the practical or political challenges.

Incidentally, Marbury never received his commission.  Madison succeeded Jefferson as President, elected in 1808.

Jonathan Levin is an attorney and blogs at punditryandpontification.com