“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:– I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” (U.S. Const. art. II, § 1)
In 1803, William Marbury had a problem. President John Adams had just lost the election to Thomas Jefferson. Before turning over office, however, Adams appointed a multitude of judges to the federal judiciary, attempting to stack the courts with members of his party to limit Jefferson’s power. He was signing these commissions faster than they could be sent, and when Jefferson did take over office, a few of the commissions hadn’t yet been delivered. So, knowing that these commissions were meant to work against him, Jefferson asked his Secretary of State, James Madison, to simply leave them undelivered.
Maybe you can see where this is going, but these undelivered commissions were the root of William Marbury’s problem, because one of those commissions was supposed to go to him.
So, instead of heading to the courts as a federal judge, he went as a plaintiff. Marbury sued Madison for a writ of mandamus (a court order to make an official fulfill their duty), hoping it would result in him finally receiving his commission.
Accordingly, the Supreme Court heard his case and agreed that yes, Marbury should legally receive his commission and yes, a writ of mandamus is the way to do so. This is all great for Marbury, who is one step away from victory…until the court tells him that they cannot issue writs of mandamus.
Huh? So why did he even sue for one? Well, under article 13 the Judiciary Act of 1789, the court can issue writs of mandamus in this situation (original jurisdiction). However, Justice John Marshall took a look at article 13 and said “scrap that, it conflicts with Article III of the Constitution” or something along those lines. In saying this, he both created the power of judicial review and removed the power that would win poor William his writ of mandamus. All of this to say, William Marbury never did get his commission, even though he was legally entitled to it.
Ok, why do we care? Marbury and all of his problems are long since deceased. That may be true, but the vital powers invested in our federal judicial system by this case are still alive and thriving. This case determined that one, the Supreme Court is the master interpreter of the Constitution and is free to strike down conflicting laws or clauses as they wish; and two, the Supreme Court does not have the power to enforce the very law of which it seeks to perfect. The justices knew that Marbury deserved his commission, but they did not have the power to ensure he received it.
Well then who did have that power? Here’s where it gets tricky, because the only people who had the authority to get Marbury his job were the very people that ensured he did not: President Jefferson and his administration.
In general, America’s court systems rely on the executive and legislative branches to enforce their rulings. It’s a system that only works some of the time, because people do not enforce rulings they don’t believe in. See: book bans. By a number of precedents, book banning is a complete violation of the First Amendment. Are enforcement agencies stomping around Florida and wherever else arresting the local book ban-ers? No. Because in reality, the fact something is illegal doesn’t necessarily make it an enforced issue. Madison’s refusal to deliver Marbury’s commission was illegal, but not enforced. It’s not like Jefferson was going to tell Madison to undo the illegal thing that Jefferson had asked him to do in the first place.
All right, we have a basis of knowledge for the balance of judicial power and enforcement. Remember that and fast forward to today, to life in Modern America™ where President Trump and his questionably staffed administration continue to challenge the Constitution. Whether it’s trying to ban birthright citizenship (14th Amendment), permit himself to run for a third term (22 Amendment), or hold himself above the law in any number of ways (per all of the Constitution, the president is not a king) — the Trump administration is outright trying to disable the most fundamental principles of our country.
As we just learned, it doesn’t matter how many courts rule his motions illegal if Trump just stops following court orders. Rulings do not matter if nobody is willing to enforce them. Unfortunately as it seems today, everybody with any semblance of control over the man in charge wants nothing but to appease him. It’s a dream presidency for Trump, and a tragedy for our country. No matter what political party you’re in, the rapidly slipping control the law has on the President and his companions should be frightening. The Constitution is the United States government. While I do think it could use some updating, tyrannical changes were not the updates I had in mind. A great country is one that follows its own laws; with every irony intended: make America great.