TRUMP'S THANKSGIVING MENU: TURKEY AND APPLESAUCE

Sigh, ten days ago I posted an essay commenting on Acting Attorney General of the United States Matthew Whitaker's statement that the worst decision in the history of the Supreme Court was Marbury v Madison.  To demonstrate what a troglodyte that made Whitaker, my inner-lawyer prompted me to discuss that case in the simplest terms I could muster, so that my non-lawyer readers could follow my reasoning.

Well, I failed. I received complaints, (including one from my wife), that my efforts to simplify were not good enough.

So, for the purpose of this note, let me reduce Marbury to its core. The Supreme Court held two things:

1) If a statute [or an Executive Branch decree] is contrary to a Constitutional provision, the latter prevails because the Constitution is supreme. Neither the Congress nor the President can legally enact or declare a law or rule that is contrary to any provision of the Constitution. If they want to overrule a  Constitutional provision, they must follow the Constitution's provisions for amendment of the document.

Got that?

Therefore,

2) When a court is presented with a challenge to the validity of a statute [or a decision by a member of the Executive Branch], the court is obliged to decide the case pursuant the above principle.  If it finds that a statute or decree is at odds with a provision of the Constitution, it must say so, and declare the statute or decree to be illegal and unenforceable.

Marbury is famous because it is the first, and the definitive Supreme Court decision establishing and explaining this now universally accepted doctrine known as Judicial Review.

Whitaker thinks courts are an inferior branch of the government, and ought not have the power of Judicial Review. That would, of course, mean that the President or the Congress could totally ignore the Constitution and we would have no remedy short of violent revolution. We did that in 1776, but that was to get out from under the thumb of a foreign King, not our own President.

Ok, now back to  Trump's appointment of Whitaker. He is clearly a Trump loyalist, and while that is troublesome because it threatens the independence of the Department of Justice, (a branch of which is conducting a criminal investigation involving Mr. Trump, his family, and colleagues,) I want to focus back on Marbury v Madison.

Many lawyers, conservatives and liberals alike, have attacked the Whitaker appointment because it has not been confirmed by the Senate and therefore violates Article II of the Constitution, which reads:

"The President... by and with the 

Advice and Consent of the Senate, shall appoint ... Officers of the United States ... .

History and precedent have in effect modified that language so that not every federal employee needs Senate confirmation. Only "Principal Officers" do.

What is a "Principal Officer?" The Supremes tell us that means a person with "significant authority." That means, says the Court, we look to

 i) the importance of the issues in his portfolio,

ii) the finality of his actions, and

iii) the amount of discretion he has on reaching his or her determinations.

So to look at Whitaker's power visa-a-vis his control of the Mueller investigation, for example:

i) Absent recusal (which ain't gonna happen) few things in his portfolio at the Department of Justice are more important,

ii) Because he is at the top of the department, his decisions are not reviewable by anybody in the department. He reports only and directly to the President, and

iii) He has total discretion to reject any proposed Mueller subpoena, indictment, or expenditure.

The Administration argues the Whitaker appointment is authorized by a statute permitting "interim" appointments of Principal Officers, and the Justice Department's Office of Legal Counsel argues that Whitaker is not really a Principal Officer because his appointment expires in 240 days!  Moreover, it says, the government has, for many years, made interim appointments without Senate approval more than one hundred times!

All bullshit. I would love to see Anton Scalia's response. He would say,

 "Look he either is or he is not a Principal Officer, whether for a day or a year. If he is, then he needs Senate confirmation, and if a statute says otherwise, read Marbury v Madison. The Constitution is supreme and the statute fails. And if past administrations have violated the Constitution by applying this interim appointment statute, that certainly does not amend the Constitution. No statute, of whatever vintage and how often utilized, trumps Article II. Any contrary argument advanced by the Office of Legal Counsel is just plain applesauce."

A bientot.