So there we were, the missus and I, at a local eatery, chowing down on a late breakfast. At the next table there were some gentlemen talking about current events. I was not eavesdropping, but neither am I deaf, so I overheard one gentleman asking a question that seems to be on a lot of minds: “Where do these federal judges get the power to question the actions of the president of the United States?” The implication was that some new variety of skullduggery was being perpetrated on the republic by the folks in the Harry Potter gowns.

Well, as you might notice in the editor’s note following this column, in my other life I am an adjunct professor at the local Ivy Tech facility. As fate would have it, what I (try to) teach is government.

So when I heard the question, I was like a fifth grader jumping up and down in my seat, pumping my hand into the air, and chirping “I know! I know!!” in an attempt to attract the teacher’s attention.

I saw it as a teachable moment. One look at the missus was enough to send a message that she saw it as more likely to become a confrontational moment. I am not very bright, but neither am I stupid. To ensure continued domestic tranquility, I curbed my exuberance, and concentrated on my hash browns.

Nevertheless, the question is one deserving of an answer. So, sir, if you’re out there, here’s the answer. A bit dry, perhaps, but an answer.

The legal principle that federal judges have the ability to review the actions of the other federal branches of government, including the executive branch, is known as “judicial review.” It traces its origins to the 1803 decision in a case called Marbury vs. Madison.

Reduced to the bare bones, in Marbury, an act of the United States Congress gave the Supreme Court to power to issue, without restriction, something called a “Writ of Mandamus,” which is essentially an order from a court to a public official requiring them to do their duty. In this instance, the order was to require the Secretary of State (Madison) to deliver a valid judicial warrant to the complaining party (Marbury).

Clearly, the act of Congress authorized the Supreme Court to issue the writ.

However, Chief Justice John Marshall, writing for a unanimous court, pointed out that the Constitution also addresses the power of the Supreme Court to issue writs of mandamus, and restricted that power specifically to cases involving ambassadors, foreign ministers, or cases in which a state is a party. Marbury’s case did not fall into any of those limited categories. The statute granted more power to the Supreme Court than was granted to the court by the Constitution itself.

The ultimate question got down to this: If there is a conflict between an act of one of the branches of the federal government, and the Constitution, which prevails? Which is the supreme law of the land? The Constitution, or the act of a branch of the national government? Since the government derives its powers from the Constitution, the answer was obvious to Marshall: The Constitution prevails.

If the Congress, or an act of the executive, violates the Constitution, or grants powers in excess of those granted in the Constitution, can that action be enforced through the courts? Marshall’s answer was no.

Since the Constitution assigns to the judicial branch the power to determine what the law is, it is the courts that have the ultimate power to determine what is constitutional, and what is not.

The principle of judicial review was not immediately recognized, or accepted. America’s first “populist” president, Andrew Jackson, signed an order to remove the Cherokee nation from their land and move them, by force if necessary, to reservations further west. The Indians challenged Jackson’s order in court and won. The president’s order was unconstitutional. Jackson famously, or infamously, reportedly remarked: “John Marshall made his decision, now let him enforce it.”

Jackson ignored the judge’s decision and deported the Cherokee anyway. That deportation became known as the “Trail of Tears.”

(Perhaps it’s not coincidental that a portrait recently added to a wall in the Oval Office is that of Andrew Jackson.)

Despite such exceptions, over time, the principle of judicial review became so accepted in American jurisprudence that when the court ordered Richard Nixon to release the Watergate Tapes, he felt he had no option other than to do so – even if it meant the end of his presidency, which ultimately it did.

Who knows where this is all going to go from here, but if you’re out there, sir, this is essentially how we got to here.

It should be remembered that we have only seen the opening moves in this potential confrontation between the federal bench and the White House. The case is far from being heard on the merits – if it ever is.

I can’t resist adding my two cents. If this case ever goes to trial, and the travel ban is found to be only that, a ban on travel from specified countries, I suspect the administration will prevail on the basis of the power granted in the federal legislation.

On the other hand, if the travel ban is found to be a poorly disguised Muslim ban, as motor-mouthed Rudy Giuliani gleefully took credit for a couple of weeks ago, then I suspect there may be a conflict with the Establishment Clause of the Constitution, which bans discrimination on the basis of religious belief and association.

Which brings us back to the original question. If a presidential action violates the Constitution, even if authorized by an act of Congress, which prevails? The Constitution, or the unconstitutional executive action taken pursuant to the act of Congress? The answer – the Constitution – has been there since 1803.

Unless, of course, the executive chooses to pull a Jackson and ignores the court.

Watch this space.