Our topic is whether President Trump, or any chief executive for that matter, can defy the U.S. Supreme Court. The beginning of the inquiry starts with the portrait of Andrew Jackson, our seventh president, which hangs famously or notoriously (depending on one’s political predilection) above Trump’s desk in the Oval Office. In the Supreme Case, Worcester v. Georgia (1832), the High Court sided with Native Americans and ruled against white settlers who sought to remove them from their land. President Jackson steadfastly refused to enforce the ruling informing the Court, “Chief Justice John Marshall has made his ruling, now let him enforce it.” Marshall did not take Jackson up on his offer and the order was never enforced.
Fast forward to the administration of Abraham Lincoln and his decision to suspend the writ of habeas corpus, a critical civil liberty protected by the Constitution. The Chief Justice of the Supreme Court, Roger Taney, ruled that only Congress, not the President, could take such constitutional action. Notwithstanding Taney’s abhorrent racist decision in Dred Scott, he was right on the law in this instance. Lincoln refused to enforce the Supreme Court order and was never challenged.
The above examples provide a precedential basis for President Trump to disobey an order from the Supreme Court, although Professor Loewy will adamantly disagree (no spoiler warning required). However, my view on this subject goes far deeper. There is no provision in the Constitution which expressly grants the U.S. Supreme Court the right to invalidate state or federal laws on the basis of constitutionality. In fact, the Federalist Papers, the definitive and singular source of the legislative intent behind the Constitution, makes clear that such power of review was never accorded. I will refer our readers to the writing of Alexander Hamilton who stated in Federalist Paper no. LXXXI that the Supreme Court was not granted such broad powers given the concern that it might exercise “Monarchical” authority contrary to the operation of a republican form of government. Said Hamilton, “In the first place, there is not a syllable in the plan (the Constitution) under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution.”
Explanation:
