WHITAKER: A RISK BEYOND TRUMP'S COMPREHENSION
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The appointment of Matthew
Whitaker to be acting Attorney General of the United States is far riskier than
our twittering President can understand. Reading the fake
news print media, I have learned all about Whitaker's i) preconceived notions
that the Russians did not interfere in the election that gave us President
Trump, ii) stated opinion that Mueller needs to be constrained, and iii) history of abusing his power as a
former US Attorney to threaten commencement of criminal proceedings against those
who complained of being cheated by a fraudster corporation of which he was a
board member. And the press has also reported on both sides of the legal
argument concerning the legality of his appointment.
And finally, we know how he
answered the question, "What, in your opinion, was the worst decision ever
by the Supreme Court of the United States?"
It is to the latter point
that I address these comments.
38% of the members of the
House of Representatives, and 55% of the Senators are lawyers. Among the latter, even Messrs. Grassley.
Hatch, and the newly opportunistic and bombastic Lindsay Graham must have been
rocked by Whitaker's answer. Whitaker passed over Dred Scott (U.S. born children
of freed slaves are not citizens,),
and Plessy v. Ferguson (racial segregation of public schools is
okay because it meets the "separate-but-equal" test.)
Nope, our new head of the
United States Department of Justice said the worst decision in U.S. history was
Marbury v. Madison.
For readers who are not
lawyers, and for those of us who are but have forgotten the details of the very
first case we were taught in the first week of Constitutional Law 101, I offer
up this brief refresher:
Mr. Marbury was a
"midnight judge," appointed in the last days of the Adams
administration and confirmed by the Senate. But when hyperpolitical Thomas Jefferson
beat the Federalists in the next election, he directed his hyperpolitical Secretary
of State James Madison, to refuse to give Marbury a copy of the Commission
evidencing his appointment. Madison, under the banner, "Politics Uber
Alles," or something like that, obeyed his boss.
"Judge" Marbury was pissed, and
brought a petition before the Supremes seeking an order directing Madison to
fork over his Commission.
Marbury lost his case.
Why? Technical, but important
stuff. Courts can decide only those cases over which they have jurisdiction. For example, if your
neighbor steals your copy of the morning newspaper, you can't start a lawsuit
against him in the U.S. Supreme Court because that court has no jurisdiction to hear that claim. Its jurisdiction is limited by
the document or documents that created that tribunal.
That was Marbury's problem. Except
for irrelevant exceptions, Article III of the Constitution gave the Supreme
Court appellate jurisdiction only.
But the Judiciary Law that
Congress passed in 1789 gave the Supremes original
jurisdiction as well, and that is undoubtedly why Marbury started his suit in
that court.
Which rule to follow, strictly
appellate jurisdiction granted by the
Constitution, or the original
jurisdiction granted in the subsequent statute?
Seems like an easy one to answer now, but that's only because more than
200 years ago, Chief Justice John Marshall laid it out for us.
He started out with the
oft-quoted principle, "The government of the United States has been
emphatically termed a government of laws,
and not of men."
Marshall clearly enunciated the
principle that we teach all law students, (as well as fourth graders in Civics class):
he said the Constitution is "fundamental" and its principles are
"supreme."
He then applied that rule to
reach a reasoned result. He wrote, (speaking of Congress), "What good is
the Constitution if the people restrained
by the Constitution can ignore its
restraints at will?"
and therefore
"It is a proposition too
plain to be contested that the Constitution controls any legislative act
repugnant to it ... ." Otherwise,
he reasoned, "the legislature [or
the President!] could simply "alter the Constitution by any ordinary act."
Therefore, it "must be
that an act of the legislature repugnant to the Constitution is void."
When a court has two
contradictory laws before it, it must decide which one "governs the case."
If one law is a legislative act, and the other a Constitutional proviso, the
Court must rule that the latter prevails.
Thus kiddies, is born the concept
of Judicial Review, which the esteemed Acting Attorney
General of the United States
has just peed upon.
Marshall went on to give some
examples that Trump acolyte Whitaker might chew on:
The Chief Justice noted that
Article I restrains the Legislature from passing any "Bill of Attainder or
Ex Post Facto law." He argued that if such a bill nevertheless were passed by the Legislature,
"must the Court condemn to death those victims whom the Constitution
endeavors to preserve?"
Otherwise, were the Legislature
to discover a drawerful of theretofore hidden documents proving Trumpian misconduct, and were those legislators
to then ignore the Constitution and enact a bill imposing a sentence of life
imprisonment upon Messrs. Whitaker, Trump, and all of the latter's descendants,
it would be orange jumpsuits for the whole gang.
Sigh, as satisfying as that
result might now seem on some level, even an unread lawyer like Whitaker could
get them all off by going to a federal court and citing Marbury v Madison.
A bientot.
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