Posted on by kenferriesblog

Small mercies — all we can hope for …

Happy one-eighth!

As of June 30, 2025, one-eighth of the term of our bombastic narcissist-in-chief is over!!! Yes, this means a mere seven-eighths of this not-so-magical carpet ride is still to come but thank heaven for small mercies.

Small mercies are all we can hope for from a Supreme Court that continues to be complicit in the disassembling of what used to be called the “United” States of America.

In a recent installment, the Supremes took up the issue of birthright citizenship –and then ducked it, by focusing instead on whether a single federal district court, or a combination of lower district courts, could put a nationwide stay on an executive order that most legal scholars – and the district courts where the question has been considered on its merits – have agreed is blatantly unconstitutional on its face.

Without wandering off into the legal weeds, which is where six of nine Supreme Court justices seem to be most comfortable operating, we now have a situation where each state can have a different definition of the meaning of the Fourteenth Amendment to the U.S. Constitution – a subject upon which prior Supreme Courts have ruled in the past – and each state’s definition can be acted upon unless, or until, the issue “percolates” back up the federal judicial system for a nationwide ruling at some indeterminate point in the future, should four justices ever agree to again take up the case they could have ruled upon, but didn’t.

In the meanwhile (and this is where “disassembly” comes into play), thanks to the cover provided by the executive order upheld by the Supreme Court, the issue of birthright citizenship will be treated on a state-by-state basis, rather than governed by a national standard that is the same from sea to shining sea, and all the flyover states in between. Should that happen, a baby born in one state might be considered a citizen by birth, but a baby born in another state might not be considered a citizen at all.

If a baby born in a state that recognizes birthright citizenship is then moved to a state that does not, will that baby still be a citizen of the United States? Can the baby be a citizen of the United States in one state but not in the other?

As near as can be made out, our president’s position is that Fourteenth Amendment Birthright Citizenship, a post-Civil War action ratified in 1868, was intended to apply only to the children of former slaves – and no one else. This includes the offspring of undocumented parents or “birth tourists,” people who come the United States temporarily just to give birth and provide their offspring with U.S. citizenship (something that was once highly prized, but increasingly maybe not so much).

Again, the president’s position, no matter how much support it might currently attract in an increasingly nativist America, has been consistently rejected in prior Supreme Court decisions dating back to 1898. It is not his call to change it by executive fiat, but that of the Congress acting through the constitutional amendment process. His executive meddling introduces an element of uncertainty into what has been a settled point of law for generations. That doubt creates an environment that invites chaos, which is a state this administration seems to believe is most conducive to its plans for the remaining seven-eighths of this term and (shudder) perhaps beyond.

This is not just about babies. The logic of the court’s decision can be applied to the effect of any of this administration’s questionable edicts. The president issues an executive order, however anti-democratic on its face, but no single federal lower court, or combination of lower courts across the nation, can issue a stay of that order. The order, no matter how anti-democratic or unconstitutional, will stand until the matter works its way up through the district and appellate courts and is taken up (maybe) by a Supreme Court predisposed to cater to the executive’s wishes.

This process will take a huge financial investment and years, if ever, until we have a decision on the merits of the issue.

Meanwhile, the executive branch, ruling through executive orders, successfully sidesteps the other two formerly co-equal branches of government. Added to the broad immunity granted to the president by the Supreme Court in 2024, we are well on our way to this administration’s apparent goal, the autocracy so feared by the founders of the Republic and so cherished by our current president.

But again, small mercies.

Happy one-eighth!!!

Posted on by kenferriesblog

Judicial review? Yes? No? Maybe?

Recently, Chief Justice John Roberts offered his thoughts on the role of the Supreme Court: “In our Constitution, the judiciary is a co-equal branch of government, separate from the others, with the authority to interpret the Constitution as law and strike down, obviously, the acts of Congress or acts of the president.”

Justice Roberts is talking about a concept called “judicial review.” The idea is that the Supreme Court, and the federal judiciary generally, have the power to review the acts of the other co-equal branches, executive and legislative, and rule upon the constitutionality of their acts. Should the court find unconstitutionality, the presumption is that the other branch is blocked from continuing to act “unconstitutionally.”

Interestingly, and perhaps significantly, there is nothing in the Constitution about “judicial review”.

It isn’t there.

There is no legislative action that codifies the concept of “judicial review” into law.

It isn’t there.

“Judicial review” traces its pedigree back to a single legal case decided by the Supreme Court in 1803, Marbury v. Madison.

Without getting sidetracked into the weeds, the Marbury decision held that the federal courts could not enforce provisions adopted by Congress that violated the Constitution. In denying itself the power to enforce an unconstitutional provision, the Supreme Court claimed the power to render decisions concerning the constitutionality of the actions of a co-equal branch. A review of the matter at issue – by the court – was necessary to determine the question of constitutionality in the first place, i.e. Judicial Review.

It had always been presumed that the federal courts could review state actions. If an action by a state was determined to be contrary to the provisions of the federal Constitution, the court could nullify the state action as being “unconstitutional.”

The Marbury case was different. What the court was reviewing was not a state action, but the action of a co-equal branch of the federal government.

Again, there was not then, nor is there now, any statutory or constitutional basis for such a power.

Nevertheless, over time, the outcome in Marbury v. Madison became accepted case law. Judge Roberts’ statement accurately states the current understanding of what is “judicial review.” For more than 220 years, this landmark decision crafted by the legendary Chief Justice John Marshall has defined the balance between the judicial branch and the other two co-equal branches,

But is that the end of the matter?

When asked recently if he was responsible for upholding the Constitution, our current president pleaded ignorance (never mind that oath he swore on Jan. 20, 2025) and passed off the question of “whose” responsibility it was to his “brilliant lawyers.”

Brilliant lawyers are still capable of coming up with less than brilliant answers, especially if the prime qualification for their job is unwavering loyalty to a single individual.

If, as Roberts claims, the federal courts have the “authority to interpret the Constitution as law and strike down, obviously, the acts of Congress or acts of the president,” in the absence of specific constitutional or statutory authorization, from whence does this “authority” come?

Is “judicial review” simply a power created by the federal judiciary by itself, for itself? If this is the case, are the other two branches bound by the pronouncements of this co-equal branch?

In other words, if the courts find something to be unconstitutional, is that finding merely advisory, or is it binding, on the other branches? Can the other branches come up with their own findings and act upon them?

Recently, presidential advisor Stephen Miller commented that the “Constitution was the supreme law of the land.” Note that he did not say that the Constitution,   “as interpreted by the Supreme Court” was the supreme law of the land.

Can a president, relying on the advice of his “brilliant lawyers” and convinced in his own mind that he has the power to do so, come up with his own interpretation of the Constitution and act upon it in defiance of the court’s interpretation?

Andrew Jackson, our president’s favorite president, came very close to doing precisely that in the forced removal of the Cherokee nation from Georgia to what later became Oklahoma.

Should our president defy the judiciary, what power does the judiciary have to block him? Alexander Hamilton called the judiciary the “least dangerous” branch of government because it had neither the “power of the sword” (the law enforcement powers controlled by the executive) nor the “power of the purse” (access to funds controlled by Congress) to enforce it decisions.

The power of the court rests on nothing more substantial than the willingness of the other branches to follow a more than 220-year-old tradition of deference to the court’s interpretation of the law and public support for its decisions, in other words, public pressure. If public opinion of the Roberts court is nearing the basement at about a 40 percent approval rating, it might not be wise to bet the farm on the public’s rallying to the court’s defense in the case of a showdown between the executive and judicial branches. The third branch, the legislative branch, has been broken for years as too many of its members care more about keeping their jobs than doing their jobs. It would likely be a non-factor in any presidential powerplay.

If acceptance of the ruling in Marbury v. Madison were to be aggressively challenged, the outcome could be far from certain.  A result putting Marbury v. Madison into question could lead to major chaos by kicking away one of the foundational supports of the entire judicial system to satisfy the druthers of a president who has demonstrated his predilection to operate in a chaotic atmosphere.

Hopefully, none of this will ever happen.

But what if it does?