Under our system of checks and balances, the congress makes the laws, the Supreme Court interprets them, and the President executes the law. Article II of the Constitution says that the president “shall take care that the laws be faithfully executed.”
But what happens when the President refuses to obey a Supreme Court decision.? Can he do it? Would he do it?
This question has come up because a U.S. district judge in the District of Columbia, appointed by President Obama, said that he wanted to find out whether officials of the Trump administration violated his verbal command to immediately turn around two planes carrying illegal aliens to an El Salvador prison so that he could determine whether the Alien Enemies Act was applicable to them.
President Trump had invoked the Act in an executive order to deport alleged members of the Tren de Aragua, a transnational criminal organization originating in Venezuela. Trump campaigned on deporting illegal aliens in order to Make America Great Again. Trump won overwhelmingly. The U.S. Department of Justice, representing President Trump, said the judge has exceeded his authority in blocking the removals, arguing that Trump’s use of the law is unreviewable by the federal courts.
Trump has reportedly called the judge a “radical left lunatic” and a “trouble maker” and called for his impeachment, according to The Guardian. A member of Congress said that he will file articles of impeachment against the judge.
Chief Justice John Roberts, however, said that “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreements concerning a judicial decision. The normal appellate review process exists for that purpose.” ? Prophets of doom say that if the President refused to follow a court’s order, it would wreak havoc to more than 200 years of constitutional history. That is why they have to carry it out. For instance, President George W. Bush disagreed with a Supreme Court decision holding that detainees in Guantanamo Bay could challenge their confinement. He said: “We’ll abide by the Court’s decision. That does not mean that I have to agree with it.”
PRESIDENTS HAVE REFUSED TO OBEY A SUPREME COURT DECISION.
A president has actually defied a Supreme Court decision. In 1832, President Andrew Jackson defied the U.S. Supreme Court, reportedly saying: “John Marshall has made his decision, now let him enforce it.”
The case was Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), where the Supreme Court set aside the conviction of a missionary, Samuel A. Worcester, who was living and preaching the gospel in the Cherokee Nation in the State of Georgia without a license or permit and without taking an oath to support the laws of Georgia. The Court held that the Cherokee Nation was a distinct community occupying its own territory in which the laws of Georgia have no force. The Court ordered that Worcester be released. President Andrew Jackson refused to enforce the decision since he was a supporter of Indian removal, and his action led to the forced removal of the Cherokee people from their land, resulting in the Trail of Tears, a journey in which thousands died.
In 1861, during the Civil War, John Merryman, a citizen of Baltimore, Maryland, was arrested by a military force under orders of Major-General George Cadwalader of the U.S. Army. He filed a petition for a writ of habeas corpus with the Supreme Court. The officer declined to produce him, saying that Merryman was being held on a charge of treason and had in his possession arms belonging to the United States, and that the officer was duly authorized by the President of the United States to suspend the writ of habeas corpus for the public safety. The Court, in Ex parte Merryman, 17 Fed. Cas. 10, held, with Justice Robert B. Taney writing the decision, that the President cannot suspend the privilege of the writ of habeas corpus nor authorize a military officer to do it. Lincoln ignored Taney and did not release Merryman. He maintained that he had the power to suspend the writ of habeas corpus.
WHAT HAPPENED TO CHECKS AND BALANCES?
So, Presidents have refused to carry out Supreme court decisions. What has happened to checks and balances?
The question remains: Suppose the case in the District of Columbia goes all the way to the Supreme Court, what will the Supreme Court do?
Knowing that President Trump is determined to deport alien criminals in order to fulfill his mandate to “Make America Great Again”, it is unlikely that the Supreme Court will confront Trump with an adverse decision that Trump could ignore.
The Supreme Court could rule that the plaintiffs in the case have no standing to file the case on behalf of the aliens who have been already deported. The plaintiffs in the case are 5 Venezuelans who fear being deported and the ACLU. Article III of the Constitution provides that “The Judicial Power shall extend to all Cases, in Law and Equity, arising under the Constitution, [and] the Laws of the United States....” To have standing in order to invoke the judicial power, the plaintiff must have suffered a distinct and palpable injury as a result of the putatively illegal conduct of the defendant. The 5 Venezuelans and the ACLU have not suffered such a distinct and palpable injury.
The Supreme Court could also decide that the case has become moot and academic because the aliens have already been deported and the President of El Salvador is not likely to allow the prisoners he has taken in his jail to be returned to the U.S. He has a contract with the U.S.
The Supreme Court might agree that a presidential decision involving the Alien Enemies Act is unreviewable. That is what the Department of Justice has claimed.
Atty. Emmanuel Samonte Tipon was a Fulbright and Smith-Mundt scholar to Yale Law School where he was awarded a Master of Laws degree specializing in Constitutional Law. He graduated with a Bachelor of Laws degree from the University of the Philippines. He placed third in the 1955 bar examinations. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on constitutional issues, immigration law, and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publishers including Thomson West and Lawyers Co-operative Publishing Co. and writes columns for newspapers. He wrote the case notes and annotations for the entire Immigration and Nationality Act published by The Lawyers Co-operative Publishing Co. and Bancroft-Whitney Co. (now Thomson Reuters). He wrote the best-seller "Winning by Knowing Your Election Laws.” Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645. E-Mail: attorneytipon@gmail.com filamlaw@yahoo.com. Website: https://www.tiponimmigrationguide.com The information provided in this article is for general information only. It is not legal advice. Publication of this information is not intended to create, and receipt by you or reading by you does not establish or constitute an attorney-client relationship.
What's Up Atty 2025 03 24 Can President defy court decision
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