W<img class=" wp-image-4243 alignright" src="https://starspangledthinking.com/wp-content/uploads/2016/08/scotus-2.jpg" alt="Scotus 2" width="467" height="350" />ell, the Constitution is reasonably clear that they are equal. However, in reviewing the wording of and the Articles affecting each branch, it appears that the Judicial branch was a stepchild at the ratification of the Constitution.
In fact, the Constitution only created the Supreme Court (supreme is not capitalized in the Constitution) as the Judicial branch. It left it up to the Congress to create the inferior courts and the rules of the inferior courts.
The term “is it constitutional” only became an issue after Chief Justice John Marshall in 1803 rendered an opinion for Marbury v. Madison. The actual decision is not as important as Marshall’s extrapolation from the Constitution that the Supreme Court could declare a law or action of the Congress or Executive Branch to be “unconstitutional”. From then on, since this opinion was not challenged by the other branches, the Judicial branch had a new tool that arguably made them more powerful than or at least equal to the other two branches.
Once Congress established the inferior courts (district and appellate), the perceived authority of the Supreme Court was also, almost by osmosis, applied to these courts as well. In addition, nowhere is it written in the Constitution that the supreme and inferior Courts are the sole arbiters of what is constitutional.
Now for the “Political Question Doctrine”:
The “political question doctrine” was in play notably in 1803 with Marbury v. Madison, again in 1832 with Worchester v. Georgia involving Andrew Jackson and the Supreme Court, and numerous times in U.S. history with the most recent collision in 2017 being the Ninth Circuit appellate (inferior) court decision in the State of Washington; State of Minnesota, Plaintiffs-Appellees, v. Donald J. Trump, President of the United States; U.S. Department of Homeland Security; Rex W. Tillerson, Secretary of State; John F. Kelly, Secretary of the Department of Homeland Security; United States of America, Defendants-Appellants. This question deals with whether the Judiciary has any say in political, and now diplomatic, matters or any matters that transcend the law and the Constitution.
In 1803, the Executive branch complied as part of the matter was law. In 1832, the Executive branch – President Andrew Jackson, defied the court and continued his actions. In 2017, the Executive branch is unsuccessfully trying to find accommodation with the court ruling.
In fact, during accommodation, the matter was extended by two district judges, with one even contemplating ordering the President to take an action that is clearly in the political province of the President. So, I ask. Is the Judicial branch more important, and more powerful under our Constitution? We are not even talking Supreme Court here, but the inferior courts established by Congress. Really, have we come this far that our chief political arm is an inferior court?
What to do? The Executive Branch can follow the action of Andrew Jackson. Now, I am not arguing the merits of the Jackson matter, rather the authority afforded a president under the Constitution to manage international affairs. The Constitution does not provide for any authority to the Judicial branch in these matters and is explicit in providing both the Senate and the President such authority. To put it bluntly, the President should and authoritatively tell the Judicial branch to butt out of international matters.
Yes, I am saying the Executive branch needs to regain and retain the right of being equal and push back against grossly obvious Judicial overreach. President Trump needs to publicly notify the Judicial branch that a president can declare a decision or opinion of the court, whether inferior or supreme, to be unconstitutional. He needs to declare that he will continue his actions unless both Congress and the Judicial branch wish to jointly rein him in.
Further, it must be established that only a Supreme Court and the Congress can provide marching orders to the President. Congress, having established and made the rules for the inferior Courts needs to restrict the inferior courts from hearing any actions in the complaint of the President and/or Congress. Matters involving the Executive branch and the Congressional Branch should only be heard by an equal branch of government.