Judicial Review and Stephen Miller’s Usurpation

I know a lot of people who have served in the military; I also know a lot who have practiced law. I, in fact, practiced law for several years. In both professions, you have to follow certain rules. You have to keep in mind that the law is above your needs or wants–you must behave with a sincere respect for the law of the land, and you must understand that your actions and words carry meaning. Last night, Michael Flynn resigned as National Security Advisor after reports emerged that he engaged in improper (even unlawful) contact with Russian officials prior to his appointment.

This weekend, another Trump appointee, Stephen Miller, went on several talk shows and advocated that judges have no authority to review the President’s orders relating to national security measures. Speaking on the validity of Trump’s Executive Order 13769 “Protecting the Nation from Foreign Terrorist Entry into the United States,” Miller said, “the powers of the President to protect our country are very substantial and will not be questioned.” This comment flies in the face of 200 years of constitutional authority. Marbury v. Madison, 5 U.S. 137 (1803) (which all law students study in the first year of law school) provides for judicial review of executive actions.

Our Republican system is built upon the proposition (as stated in the Federalist papers) that no branch of government–and no one person who is appointed or elected to office–is supreme. Alexander Hamilton wrote the following:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. Fed. No. 78.

The courts check the power of the legislature, in other words, from substituting its will over the rights and liberties of the people. Hamilton viewed the judiciary as possessing alone the power to judge the constitutionality of actions taken by other branches. The Judiciary possessed no power over sword or purse, and in fact relied upon the executive branch to enforce its decisions. Fed. No. 78. While weak in some respects, the independence of the Judiciary meant that it alone could be trusted to remain impartial in disputes involving other branches of government, as well as the people who elected the legislative bodies and executive leaders. In Federalist No. 80, Hamilton held that the only proper place to hear a dispute between a citizen and the United States was in fact in federal courts.

Ever since the first cases brought before the Supreme Court under the leadership of John Marshall (who was the Chief Justice when Marbury was decided), the powers of the court to conduct judicial review have expanded, but courts have accepted that it is their duty to state what the law was:

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule.” Marbury, U.S. (1 Cranch) at 177.

Eighteen years later, the Court ruled that it may review state court civil cases, if they arise under federal or constitutional law in Martin v. Hunter’s Lessee. See 14 U.S. 304 (1816); see also Cohens v. Virginia, 19 U.S. 264 (1821) (applying same principle of judicial review to state criminal cases). The concept of judicial review was interpreted even more broadly in 1958, when the Court found that it had the power to overrule any state action, executive, judicial or legislative it deemed to be unconstitutional. See Cooper v. Aaron, 358 U.S. 1 (1958).

Said a unanimous court in Cooper:

“[Marbury] . . . declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by the Court and the country as a permanent and indispensable feature of our constitutional system“. 258 U.S. 1, 18.

Some conservative scholars, like former U.S. Attorney General Edwin Meese, have questioned the Court’s scope in Cooper. According to Meese, the Court took too much power to itself by declaring that it alone could interpret the Constitution, and perhaps Stephen Miller was echoing Meese to an extent, but there’s a far cry from arguing in what is still a minority opinion lacking any legal precedence that the Judicial branch is not the sole arbiter of the law and stating that “the powers of the President will not be questioned” and are not subject to judicial review.

At most, Meese argued that the Judiciary is not the sole arbiter of the law, but must share such powers with the other branches of government.[1] Miller takes it much farther than Meese ever did. If Miller’s position is correct, then the current President can write whatever Executive Orders he wishes, and the courts have no authority to review orders relating to national security. But perhaps the administration truly believes in executive powers so vast, so overarching, that a President may simply throw out two hundred years of precedence by fiat. What would a serious constitutional scholar like Edwin Meese have to say about such an argument?

I don’t think Meese would take it very seriously (but I may be wrong). And as it stands, the judiciary will be taking a hard look at the President’s Executive Order banning certain individuals from seven Muslim countries. The President and his advisors will also be taking a look at whether their efforts to protect the national security are constitutionally supported. Scholars will come down on both sides of the issue before the courts, but eventually, the constitutionality of the ban will be resolved by someone other than the man who signed the Order; in other words, the judiciary will rule on it.

Until then, we will see the President interview and vet possible replacements for Michael Flynn. Hopefully, the President will appoint a National Security Advisor who understands the rule of law, and who will accept that he or she must submit to it. The National Security Advisor, and the national security of our nation, is not above the rule of law.

And Miller will hopefully learn that his statements on judicial inferiority to the executive branch and to the head of the executive branch are plain wrong. Even the most adamant conservative legal scholars comprehend that the Judiciary is at a minimum equal to the Executive branch on issues of constitutional interpretation.

We as citizens, meanwhile, must educate ourselves and we must remain alert. Usurpation of the rule of law and disrespect for basic constitutional principles like judicial review are in play under the current administration. We must not stand idly by. It is axiomatic that courts have the power to strike down actions taken by the Executive branch or the legislative branch that are inconsistent with the federal Constitution. It is also axiomatic that appointed or elected officials must obey the law of the land—and the courts (not the President alone) determine what this law is.


[1] For a discussion on the invalidity of judicial supremacy, please see http://www.thepublicdiscourse.com/2015/02/14410/. “It is true that Chief Justice John Marshall’s opinion for the Court in Marbury holds that ‘it is emphatically the province and duty of the judicial department to say what the law is,’ and that Marshall argued that this duty requires the courts to treat the Constitution as a law of superior obligation, giving preference to it when it conflicts with the acts of the legislature or executive. At no point in the Court’s opinion, however, does Marshall claim that the Court ‘gets the final say on whether laws passed by Congress or implemented by the executive branch are constitutional,’ as Malor wrongly claims.

“On the contrary, Marshall’s argument points to the very thing that Malor is so eager to deny: namely, a legitimate authority in the elected branches to be guided by their own interpretations of the Constitution in the exercise of their own powers. The ‘framers of the Constitution,’ Marshall wrote, ‘contemplated that instrument as a rule for the government of courts, as well as of the legislature.’ If, however, the Constitution is equally a rule for legislatures as well as for courts, then the former have, no less than the latter, an obligation to act according to their best understanding of it, regardless of what the other branches may say.