11 November 2018

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.