John Yoo and Robert Delahunty write for the Federalist about the new administration’s adherence to the Constitution.
Under the Constitution, “the President is invested with certain important political powers, in the exercise of which he is to use his own discretion.” For his decisions, “he is accountable only to his country in his political character, and to his own conscience.” His choices cannot be questioned in court because “the subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.”
Who penned these outrageous words? Democrats and many pundits might answer Vice President J.D. Vance. Over the weekend, Vance provoked an onslaught of criticism for suggesting that federal district judges “aren’t allowed to control the executive’s legitimate power.”
But the usual suspects would be wrong. The right answer is John Marshall, the greatest chief justice in Supreme Court history. And he did not squirrel this view away in a private journal. Instead, Marshall publicly explained that courts could not review presidential decisions on “political” subjects “entrusted to the executive” in a Supreme Court opinion.
He announced this principle not just in any case, but in Marbury v. Madison, the greatest opinion in Supreme Court history. The very same Marbury that concluded that federal judges should reject unconstitutional statutes, also recognized that courts could not intrude into the president’s exercise of his constitutional — dare we say “legitimate” — powers. Marshall’s opinion has given rise to the “political question doctrine,” which prohibits courts from reviewing decisions vested in the Constitution in the other branches, such as making war, prosecuting cases, and conducting impeachments.
Nevertheless, Democrats and pundits have exaggerated Vance’s remarks into a “constitutional crisis.” They claim that the Trump administration is threatening to defy court orders before overthrowing the constitutional structure, governing by presidential decree, and ruling without regard to the law. To be sure, all of us ought by now to be accustomed to such bizarre and overwrought reactions from Trump’s and Vance’s critics — and to write them off. Marshall himself would have seen these claims as a deliberate misrepresentation of the separation of powers. Americans should today as well.
