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President Trump Likes Power. The Constitution Is Supposed to Limit Executive Power.

Gutin & Wolverton July 15, 2019

How does it work?

First, here’s the historical case that established judicial review.
(a ScriptsLaw Article written by MARIAM MORSHEDI ).

Marbury v. Madison is an 1803 Supreme Court case that solidified the judiciary’s role in “checking and balancing” the other branches. The case came from a political dispute in the early days. Thomas Jefferson’s crew (third presidency) refused to deliver the cabinet appointments left by John Adams (second presidency), and the appointees sued. The Supreme Court acknowledged the appointments should have been valid, but the Court worried that if it ordered the executive to deliver the appointments it would simply refuse.

When elections got hot
George Washington was not a fan of political parties. He thought partisanship would burden the potential to rule. However, the first political separation emerged within his cabinet. Thomas Jefferson, the Secretary of State, began voicing strong opinions about how the government should function, particularly in economic policies, foreign relations and relations with the states. Thomas Jefferson came to lead the Democratic-Republicans, while Alexander Hamilton, Washington’s Treasury Secretary, held strong for the opposing views of the Federalists. See more history and the main political differences here.

The first contested election came when George Washington refused a third term. John Adams, Washington’s Vice President and a Federalist, took the win. But after a 4-year term, the Democratic-Republicans grabbed the reins.

This case arose during the turnover between Adams and Jefferson.
The Adams appointments Right before Adams was to leave office, he appointed several people into government positions. William Marbury was one of them. The appointments were not formally delivered before the Presidential turnover, so it would be Jefferson with the responsibility. Given the political differences, Jefferson refused.

The case
Marbury and the others who were refused their appointments sued directly in the Supreme Court. They asked the Court to issue a “writ of mandate” – a demand – for the new Secretary of State, James Madison, to get it done.

What, in theory, is a “demand”?
A demand is a request with a degree of authority. But the authority of the Supreme Court is based on the threat of executive power. Marbury was asking the Court to issue a command against the highest executive authorities – the same authorities responsible for enforcing court orders in the first place.

Judiciary, the apolitical branch
The Court was created to be the apolitical branch. Intentionally so, the judges don’t have to worry about re-appointment or re-elections; their salaries cannot be diminished. These features are meant to keep courts away from political influence.

However, this case highlighted a significant dependence of the judiciary. It was a weakness that allowed politics to creep into the Court’s decision.

See full Article here: