MARSHALL LAW

Posted on | by Ed

Someone posed a question to me over the weekend that may soon be relevant. In fact it seems inevitable that it will be relevant given the current president's shall-we-say rather unilateral conception of his legal authority.
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What happens when the Federal courts issue an order and the Executive branch simply ignores it?

It has been some time since I've taught Presidency, so I'm rusty on Andrew Jackson and Worcester v Georgia (the source of the infamous misquote, "John Marshall has made his decision; now let him enforce it!" He actually said the more mundane but identical in spirit, "the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.") With that caveat…

First, failing to execute a Court order would be as clear cut as grounds for impeachment could get. Since Article II requires the Executive to "take care that the laws are faithfully executed," failure to do so would be an open and shut case. Impeachment is not an automatic process, of course. So it is conceivable that the House GOP would not make an indictment even if the situation demanded one. That's where things get more complicated.

A Federal Court has the power to issue an arrest warrant through its quasi-enforcement branch, the United States Marshall Service. While issuing such a warrant for the President would be unprecedented and frankly sensational, the holder of that office is not above the law. I imagine that a president would have to push a court pretty far before it came to this, but it is not impossible.
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The President failing to follow a court order is not quite the same as the court issuing a warrant for someone who violated a statute, obviously, so there would no doubt be a lot of parsing of technicalities involved. Another (less likely) option is the Justice Dept., which resides in the Executive branch, bringing criminal charges of some sort against the president.
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There would be attempts to block this from the top, but one has to imagine that someone in the Department seeks glory and attention enough to run the risk of trying it and hoping to god that it works.

This would qualify as a clear example of the overused term "constitutional crisis." The functioning of our system depends on the very basic division of powers and responsibilities upon which the Federal government is built. Sadly, and without lapsing into undue alarmism, it appears that the current president is of a mindset to refuse to take orders from anyone other than himself.

Or the Kremlin, obvi. He takes plenty of orders from them.

44 thoughts on “MARSHALL LAW”

  • mago says:

    Haven't heard mention of the Kremlin connect in a couple of weeks. Now why is that?

    One of the many scary things about this gorilla's edicts is the way the minions jump to his orders.

    May I state the obvious and say that there's some seriously scrambled shit going down?

  • mainmata says:

    Any Constitutional crisis requires the Legislative Branch to recognize it as such. The GOP Congress cares only about its domestic agenda to destroy the social safety net in its entirety, destroy women's reproductive rights and enact massive tax cuts and deregulation for their billionaire and corporate masters. They couldn't care less about the rights of all those "foreign" people except for the small minority of them that are serious about national security in a thoughtful way. Meanwhile, no one cares about what the Democrats think anymore or the majority of the population they represent. Dark times. Resist is great but requires voting credibility. Not clear that Democrats have that with the population that actually shows up to vote.

  • Jack the Cold Warrior says:

    I hope SecDef Mattis adds a few new people to the contingent at the White House. Like a military aide to the President that's also a psychiatrist. Or to the team that handles the "Football". After enough observation go the the VP and Congressional leaders and recommend activating the 25 Amendment. Pence is an SOB, but not crazy.

    Trump is barking mad, SAS some British papers are saying. He's already getting people killed. (Yemen raid).

  • Lit3Bolt says:

    Bannon is making it an inevitability that terrorists will attack Trump properties and/or random innocent Americans. And then he will be the one on the National Security Council, whispering in the President's ear, while the other Republicans wait nervously and submissively for orders to carry out unquestioningly.

    The man is an agent provocateur. The endgame is to cripple the United States.

  • c u n d gulag says:

    Well, as long as t-RUMP's writing hand still works to sign bills that move money away from the people who need and rely on Medicare, Medicaid, Social Security, Disability, Workman's Comp, Obamacare, S-CHIP, public education, etc…, and move that money (in the form of massive tax cuts) to the top .0001%, then there's no chance for even a mild 'peep' from the Republicans in Congress, let alone having them hold impeachment hearings!

    And even if something happens to t-RUMP, then we get POTUS Mike "The Dense" Pence.

    And then, if he can't serve, we get Paul "Privatizin' Ryan!"

    We're fucked!

    But I'll try to go down fighting, if I can – but right now, my health's not up to fighting…
    So sad…

  • ConcernedCitizen says:

    I was genuinely surprised when I had about that executive order. An image sprang to my mind of Trump showing up at some customs area, pointing at a brown-skinned individual, belligerently asking their country of origin, and then saying in that god-awful accent, "No, they can't come in." I wondered, can he actually do that?

    It will be interesting to see how those court orders play out.

  • Blakenator says:

    Trump is working with Darth Cheney's playbook: Just keep pushing the envelope until someone gets pissed enough to stop you. I just don't think he will be able to control himself and will be out of office before his term is up. IMO, he spent the entire campaigh trying to convince his "base" to not vote for him and I get mad every time I read a Trump remorse voter saying, "I didn't think he would do that." The good news is he seems to be on the road to join Bush the Lesser in a role as the "uniter" if the public outcry keeps up.
    BTW, Bannon is the real rabble rouser. I can't wait to see what happens when he gets the Donald to declare martial law because of the "unrest."

  • Death Panel Truck says:

    Nothing I'd love more than to see the Marshall Service frogmarch Cheeto Benito out of the White House.

  • Wim says:

    Trump believes he has absolute power as President to order anything. He has no notion or interest in governance; he fully expects to rule. And the supposedly hostile press breathlessly reports each executive order as though his word were law, even when Trump's decrees actually violate existing law, and of course, custom. We're in uncharted territory. Maybe we'll thrill to the spectacle of Marshals and Secret Service clashing on the White House lawn, but I wouldn't count on it.

  • ronzie says:

    @Wim

    Maybe we'll thrill to the spectacle of Marshals and Secret Service clashing on the White House lawn, but I wouldn't count on it.

    Didn't Trump keep his private goon squad after occupying the White House?

  • Robert Walker-Smith says:

    In "It Can't Happen Here", the despotic President Buzz Windrip eventually becomes a liability. His henchmen plot to murder him, but let him flee the country. Things. . . get even worse.

  • Spiffy McBang says:

    Part of me wonders if the House GOP wouldn't like a good reason to impeach Trump so they could make Pence the president. Short of unilaterally starting an actual nuclear war, Trump as president doesn't concern me nearly as much as Pence would.

  • Mo says:

    Spiffy – that's evidently the scuttlebutt being circulated by Robert Reich. The Trumpalos in the base, however, are likely to be lukewarm about Pence, with the possible exception of the abortion crazies. Pence just doesn't have the Woo! Rich Man! juice that thrills them. My fave description of Pence, courtesy of The Rude Pundit:

    Mike Pence, a man who looks like he slowly and angrily masturbates to kitten-stomping videos

  • anonymous bob says:

    The US marshalls work for both the judicial branch AND the US Department of Justice, and members of the DOJ in terms of employment hierarchy. Yes this can post a conflict of interest, something the comptroller general issued a report on in 1979 (http://archive.gao.gov/f0102/118371.pdf), but to date no president has dared violate a court order except andrew jackson, so it literally hasn't come up. Even Harry Truman, who during the Korean war seized striking steel mills to get production back on track; when SCOTUS ruled against him he complied.

    John Marshall wasn't willing to figuratively go to war over the issue – he himself wrote the opinion that gave the supreme court the power to strike down laws as unconstitutional, and was in a tenuous position if he went up against the executive – so he issued an opinion but never had it executed. He wasn't an idiot. He didn't want to ask his enforcers to execute an order and be told they wouldn't.

    Would US Marshals, now, enforce an order to hold the president in contempt? We'd like to think so, but it's never been done. Checks and balances all assume good faith. The constitution assumes if the executive refuses to obey the judiciary, the final adjudicator of that would be the legislature through impeachment.

  • Gerald McGrew says:

    I think the fate of president grabem's term is going to come down to one fundamental thing…..how much of the public sides with his version of reality versus how many go with actual reality.

    It's obvious that grabem and his people operate from a complete alternate reality, and are currently trying to get the public to buy into it. That's why they lie directly to the public, and then claim any media outlet that reports otherwise is lying and promoting fake news. I just heard Hannity say that exact thing on the radio today. Bannon tells the NYT that the media should shut up. Baghdad Kelly Ann tells Meet the Press that the administration works from a set of "alternative facts" and says if the media won't cooperate on that, the administration just might have to rethink their relationship. Sean Spicer chooses to favor obscure, fringe crackpot websites in his press conferences.

    It's all part of a coordinated, planned effort. The only question is whether the public buys it. If they don't, it's going to be a big problem for president grabem. If they do, it's going to be a big problem for the country.

  • mothra says:

    Ain't it grand we're at this point only one week into his term? And then we have Jill Stein tweeting this past weekend that Obama was just as bad. FFS.

  • Katydid says:

    @mothra, I had a serious discussion with a co-worker today who claims that it's not fair to examine what Trump says and does because *both sides do it* and *Obummer (sic) was just as bad*. Funny, I remember the "crises" of the last administration being the incredible brutality of Michelle Obama suggesting that school lunches contain a fruit or vegetable and that families go for a walk after dinner, not that 5-year-old American-born citizens be held at the airport for 20 hours with no food, water, or access to his mother because of his mother's birth country.

  • Gerald McGrew says:

    If you want a good indication of just how screwed up and delusional the Trump-supporting right wing is…..

    I just read an opinion piece on the immigration ban at The Federalist. In justifying and defending the exec. order, they list polling data from Syrians that should concern all of us, including:

    "Eighty-two percent [of Syrians] said they believe the Islamic State was created by the United States and its allies"

    Did you catch that? Apparently that Syrians believe ISIS was created by the US reflects poorly on Syrians and justifies us not letting them into the country.

    But……TRUMP BELIEVES EXACTLY THE SAME THING!!!

    http://www.cnn.com/2016/08/11/politics/donald-trump-hugh-hewitt-obama-founder-isis/

    The utter cluelessness and blind tribalism that's going on with the right wing today worries the heck out of me.

  • Skepticalist says:

    The beat the press strategy Please, please keep at it Donald.

    Nothing proves to me just how insipid Trump and Company can be.

  • Shicho says:

    No worries about Bannon: According to section (a)(6) of federal statute 50, U.S. Code 3021, a civilian {Steve Bannon}must be confirmed/approved by the Senate in order to serve on the National Security Council as they do not fall into one f the five listed, pre-approved categories.

    And, no, asshole Nazi fantasist is NOT one of the categories.

  • Mo says:

    jc, the time for writing to representatives – or calling them, or faxing them, or confronting them at townhalls – seems to be over. They don't give a shit, and haven't for a long time.

    Now what? Vote them out of office in 2018? [insert derisive snort here]

    Rioting will be educational and fun

  • jcdenton says:

    @Mo

    Rioting doesn't ever actually do what you want it to do, since it rarely gets moderates on your side. There is enough research showing that peaceful protests have a greater impact on public opinion than non-peaceful ones (can dig up references, if you're interested).

    Also, you absolutely still have representative government as a tool (Democrats and Republicans can both be convinced or strong-armed to act in your interests: see John McCain, Susan Collins), so fucking use it.

  • Andrew Laurence says:

    @jcdenton: There aren't going to be any more elections. Trump will have complete control of all branches of government within three months, just as Hitler did. He knows he and his cronies couldn't win today, never mind after two years of his shit.

  • jcdenton says:

    @Andrew Laurence
    Then get your damn guns already. Seriously, you either believe that we're all done for, in which case you may as well quit your job and get yourself a good rifle and plates… or we're not and politics still has a role to play. Here is the thing, I honestly believe that this is a much more likely scenario (https://www.theatlantic.com/magazine/archive/2017/03/how-to-build-an-autocracy/513872/)… a kleptocracy ruled over by some form of semi-centralized power riding on the back of confusion, mistrust, disorganization and general malaise (see Russia, Hungary, Venezuela for a while). In that environment, your form of cynicism is actually pretty destructive. I also love cynicism myself, but in this case, I'm going to have to give it up cold turkey.

  • jcdenton says:

    @Mo
    I saw the military vehicle. I get what you're after. However, DAPL shows that not the entire military is full of turds. Lots of people joined the military to get a college degree. They are your best asset for sanity. Officers are often more classically conservative and are at least educated. They make think twice about just firing on American civilians. Again, as I've mentioned to Andrew Laurence above, this is a much more likely scenario: https://www.theatlantic.com/magazine/archive/2017/03/how-to-build-an-autocracy/513872/

    Defeating that kind of scenario actually requires less cynicism and world-weariness and not more. You have to build up trust in institutions, not tear them down. Do you think I'm earnest because I want to be? I'm deeply depressed and throughly cynical. But I'm earnest and honest because there is literally *no other way to be* that doesn't play into Trump's and Bannon's hands. Every time you throw your hands up in the air and sigh, they get a fucking win.

    I hope my position makes a modicum of sense to you.

  • Andrew Laurence says:

    I hope I'm wrong. I trust in our democratic institutions, but I believe they may not hold, or may hold only technically. If Drumpf controls all three branches, thi gs won't be good. We'll continue to have elections, but with more suppression of likely Democratic votes.

    But I'm not cynical and didn't mean to come off as such. I actually hope to be wrong.

  • democommie says:

    @jcdenton:

    I think that cynicism is completely okay in the current situation. I don't think that nihilism is okay, I don't think that wrecking shit is okay, unless it's your own personal shit.

  • jcdenton says:

    @Andrew Laurence
    I agree that things are going to get a lot worse. I just think that we just can't fall apart or retreat into survivalist fantasies in the face of it. I desperately hope that we're both wrong.

    @democommie
    I'm mostly afraid that cynicism will slide into inaction (I'm personally not immune to it).

  • democommie says:

    @jcdenton:

    Well, you're right. It might slide into inaction, I've been cynical since I found out that Santa Clasu was not a myth cherished by my parents but a scam foisted off on us by manufacturers and retailers! Seriously, cynicism is, at least for me, a well used tool. In my case, thinking shit is beyond repair doesn't mean I won't act as if I can do something. YMMV. But, as I said in the earlier comment, nihilism is not a good idea.

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