"President Trump Has To Obey The Constitution, But So Does Chief Justice Roberts"

Presented at the Orlando Federalist Society Chapter.

This evening I spoke to the Orlando Federalist Society Chapter, one of my favorite chapters, about a new topic. It was titled "President Trump Has To Obey The Constitution, But So Does Chief Justice Roberts." This speech is based on a forthcoming piece in Deseret Magazine. I've written quite a bit of late about the three Trump appointees. I thought it was time to focus on the Chief Justice as well.

I apologize for not writing about the birthright citizenship case yet. This speech took up much of my day. Stay tuned for more.

Comments

[Sam Bankman-Fried]

Blackman is at the “Vegas residency” part of his career just phoning it in and cashing checks…or maybe “Letterman on CBS” is the better comparison because Letterman has admitted he phoned it in whereas maybe Elvis in Vegas did a good job?? Or maybe “Trump’s second term” part of his career?? Either way, I will be waiting with bated breath for his post on birthright citizenship. 😉

[Stupid Government Tricks]

Where's your blog, O anonymous one?

[MollyGodiva]

The speaker criticizes SOCTUS for their end-run Good Friday ruling for not following proper procedure and not waiting till the 5th Circuit ruled. What he does not mention is that the detainees were already on the bus to the airport and any extra delay would have been too late.

When a president is as lawless and quick as Trump, the courts need to adapt. The alternative is Trump being able to issue illegal orders with effectively no limits.

[Riva]

Lawless? Give the silly projection a rest for a while. No one really believes it, not even you.

[MollyGodiva]

No one? Everyone does. The MAGAs like it and everyone else sees the fascism for what it is.

[John 4]

It’s almost as if Josh Blackman is a dishonest hack.

[Zarniwoop]

I’m shocked, shocked! that there’s gambling going on in here.

[JasonT20]

Your winnings, sir.

[Botaglove]

So who decides between them, Roberts or Trump, who is acting constitutionally? Trump of course, he has the wisdom, judicial temperament, historical knowledge and vast legal experience needed to reach a sound judgment. Roberts should just step aside, head low.

[Sam Bankman-Fried]

3 coequal branches of government. So first Congress took a couple shots at solving the constitutional crisis first with the Missouri Compromise and then in 1854 Congress passed the Kansas-Nebraska Act which didn’t solve the constitutional crisis and so then Taney attempted to solve it with Dred Scott which didn’t solve it and then Lincoln won the presidency and he solved the crisis.

[Botaglove]

I am curious how you would define the constitutional crisis that got solved?

[Katall]

I don't think Lincoln was proactive in solving the problems of the country. I think it would have continued to be a problem had secession not occurred. Once that happened, he had no choice but to either acquiesce or fight. For better or worse, he chose to fight. In hindsight, it was for better,the south at that time (and, probably, now) was in the wrong.

[JasonT20]

3 coequal branches of government.

I'd argue that this is a huge misconception, and that people that use it as part of an argument are often deliberately misconstruing how it is supposed to work as a way to give one branch more power than it really has or to reduce the power of a branch to be less than what it has.

The branches aren't "coequal". They each have the primary power within their realm, but the other branches are then supposed to have ways to check that power to prevent abuses.

Put more clearly:

Congress makes the law. No branch is "equal" in that function of government. In fact, no other branch has any authority to write new law.

The executive branch, well, it executes the law (enforcing it and otherwise putting the law into action and practice). No other branch has authority to do that.

The judicial branch's function isn't as simple to define, but I'll try. It judges how the law applies in specific "cases or controversies". This means that when there is a dispute between two or more parties over what the law requires, or when one party accuses another of violating the law, the courts examine the case and make a ruling over how the law applies and who should 'win' the case and what the remedy should be to any harm from the violation of law. This is what I think it means to "interpret" the law. No other branch has the authority to resolve disputes in this way.

Despite each branch having the sole authority within its area of function, it isn't 'supreme', because the other branches have ways to "check" or "balance" those powers. Congress has many ways to check the power of the executive, including the Senate's role in giving "advice and consent" to appointees, the ability to impeach, the power of the purse to limit the ability of the executive to fund its actions, etc. Conversely, the President can veto legislation. Really, though, that's about it. I think it is worth recognizing that the Constitution gives the executive really limited ability to check the legislative power of Congress. Even vetoes can be overridden. The President has no role at all in amending the Constitution.

The judiciary's ability to check both Congress and the executive branch is not explicit in the Constitution, however. Judicial review itself was created by the SC and holds up mostly because of the acceptance of it by the elected officials and voters. When people talk about it being a "constitutional crisis" if the executive branch (or Congress) were to ignore orders from the Supreme Court, they really mean that it would be a crisis in that history of acceptance of the authority of the Court to declare acts of Congress or actions by the executive branch to be unlawful or unconstitutional, and thus null and void.

[JoeFromtheBronx]

"Judicial review itself was created by the SC"

People, including James Madison, Thomas Jefferson, and Alexander Hamilton, generally thought the courts would practice judicial review. The first two though a bill of rights was useful partially since independent tribunals would be provided a means to address violations of rights by legislatures and executives.

Charles Beard's book over a hundred years ago put forth a pretty good case. There was a broad understanding the Constitution (or even any written constitution, including state constitutions) would include some judicial review. The ultimate question was the reach.

State courts began to practice judicial review in the 1780s. Federal judges did it before Marbury v. Madison, including stating the principle while holding it unnecessary to strike down the law.

For instance, a carriage tax was alleged to be unconstitutional as a direct tax in the mid-1790s. Some Jeffersonians supported the courts striking it down.

The Supreme Court did not while assuming the power to do so if required. If with a higher presumption of constitutionality than now used.

[BrotherMovesOn]

I'll take a shot. SBF is freestyling. I tend to enjoy it.
Each branch took a turn. The constructional crisis that he alludes to is the legality of human slavery.
My guess. But it's SBF so it might be a macguffin.

[Botaglove]

I don't see how the "legality" of slavery was the constitutional crisis, at least in the minds of the people at the time. It was the legality of Congress stopping the spread of slavery.

[JoeFromtheBronx]

No apologies necessary. Take all the time you need away from the blog.

[Stuart]

Since I am in a conciliatory mood (see my comment about your apology), you really need to get some sleep and not to work so hard. I know it's hard to believe, but the legal world will go on if you take a day off now and then.