How a constitutional crisis gets worse
What happens after the courts rule?
So a judge ruled that Trump’s accountants had to comply with a Congressional subpoena and hand over documents to the House Committee on Oversight and Reform regarding the President’s finances. Hooray!
Representative Elijah Cummings, who chairs the committee, hailed the decision as a “resounding victory” for the rule of law and constitutional checks and balances.
So what now?
That’s the problem. President Andrew Jackson understood this problem when he reputedly said “John Marshall has made his decision; now let him enforce it!”
The context of that statement came about after the Supreme Court led by Chief Justice John Marshall handed down its opinion in Worcester v. Georgia. In that ruling, the Court held that native-American tribes have sovereignty that must be respected by the states and the Federal government. That holding, although it does not form the basis of the opinion and so is considered dicta, has become the basis of the relationship between the governments and native-American tribes.
Jackson, as a fierce Indian fighter — remember, he was responsible for the Trail of Tears, and much of his military experience prior to the Battle of New Orleans had included attacking unarmed Creek and Seminole Indians — was outraged by this decision. Like Trump, Jackson envisioned himself as a populist (unlike Trump, he did not avoid military service). As a result, he did not get along with the Courts or much of the government bureaucracy. In fact, the idea of a “kitchen cabinet” came from Jackson listening to advisers who were not in his actual cabinet.
Clearly, Jackson had as much respect for governing norms as Trump does.
Jackson saw part of his populist mission as being the removal of native Americans from the fertile, eastern United States — areas that had been their territory for millennia. The Court’s opinion in Worcester would be a barrier to that effort. As a result, when the Court ruled against him, Jackson chose to simply ignore the Court and pursue his genocidal policy anyway.
This is the point. Courts get their power from our collective agreement to abide by their rulings. If a large part of the federal government refuses to respect its judgments, especially if that part of the government includes the military, there is not a lot the Court can do.
As John Marshall once wrote in Marbury v. Madison, “it is emphatically the province and duty of the judicial department to say what the law is.”
In other words, the Court’s job is to say what the law is. Whether people respect that decision is up to society as a whole, but ultimately, Courts cannot enforce compliance.
In Jackson’s case, his policy was (to our national shame) very popular. It certainly had the support of the military and much of the Federal bureaucracy. As a result, when Jackson decided to ignore the Court, those other institutions were all to happy to go along with him.
Like Jackson, Trump might decide to thumb his nose at the Court, much as he has done with the other co-equal branch of government, Congress.
If Trump does take that road, we will be in a true Constitutional crisis. The Founders set up the Constitution to have three co-equal branches of government: the legislative, the executive, and the judicial branches. In the Federal Government, those comprise Congress, the President and his administration, and the Courts. Under our system, neither branch is superior to the other.
That fact has led to a concept called “non-justiciability.” In effect, that doctrine states that since Congress and the President are co-equal branches with the Courts, if they get into a dispute over a Constitutional issue, the Courts have no authority to decide that issue. They may advise, but they have no power over the other two branches.
This is why Congress was given its own powers to enforce its decisions, including through impeachment. Indeed, there is no doubt that Congress has the power to subpoena the documents. Nor is there any doubt that Congress has the ability to demand the President’s tax returns under the law. Finally, under long-standing precedent, Congress has the ability to issue and enforce subpoenas. This really wasn’t a tough call for Judge Mehta, and it’s why he declined to grant Trump a stay of his order pending appeal. The problem is that in turning to the Court, Congress has essentially abdicated its power to the Court. It need not rely upon the Courts to enforce its subpoenas — it has that power itself, including the power to jail those in contempt.
Trump is a bully who takes advantage of any strengths he has without any respect for others. His attitude toward Congress is only evidence of that fact. Obviously, he sees a weak Congress, divided between the sycophants of the Senate and the cowards in the House. The timidity of Congress in the wake of the White House’s disdain is simply playing into his bullying.
Ultimately, however, unlike Jackson, Trump is not pooh-poohing the other branches of government over a popular issue. Instead, he is trying to cover up evidence of his gross incompetence and dishonesty. Most people do not support him, and indeed, even many of his supporters acknowledge that he is a serial liar. As a result, perhaps there will be less willingness by society overall to look past Trump’s behavior than there was when Jackson discounted the other branches.
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