Thursday, April 5, 2012

How the Obama Administration Once Again Gets Marbury v. MadisonWrong

A quick read of Attorney General Eric Holder's statement to the 5th Circuit once again shows that the nation's most influential lawyers fail to understand Marbury v. Madison (1803)

He asserts that the United States Supreme Court cannot overturn duly passed legislation unless there is a very clear violation of a specific constitutional principle. Marbury is one of the cases cited within the document.

Marbury itself, however, is based upon a constitutional interpretation more than a clear violation. Chief Justice Marshall interpreted a clause in the Judiciary Act of 1789 to be unconstitutional because it gave the Supreme Court original jurisdiction in cases of writs of mandamus (orders to government officials to do their job.) Marshall saw no specific phrase in the Constitution that would have permitted that. He reasoned that Congress committed an overreach.

The Commerce Clause simply says this: that Congress has the power to "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" It was meant to keep states from erecting trade barriers against each other.

So Holder includes Marbury among his citations, even though it establishes an interpretational, not absolute, basis for judicial review and a strict construction of the original seven articles.

The attorney general's response has left the courts no room to support him, now that his statement is on the record. To preserve their judicial review authority, federal judges need to strike down the law in question. In this case, I mean the 5th Circuit (which they likely will.) By extension, this includes the Supreme Court.

Marshall's interpretation in Marbury was made in part to prevent the judicial branch from becoming subordinate to the executive. The Roberts Court may have to assert itself similarly until Obama is gone.

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