The Premise of Judicial Finality Requires Presidential Compliance with Judicial Rulings

President Trump’s continued defiance of a federal court order, embraced by the U.S. Supreme Court, to “facilitate” the return of Kilmar Abrego Garcia, in conjunction with the Court’s 1 a.m. ruling on Saturday that instructed Trump to halt removal of Venezuelan migrants under the Alien Enemies Act of 1798, “until further order from this Court,” raise anew the meaning of the Framers’ conception of “judicial finality.”  Did delegates to the Constitutional Convention vest federal courts with the power of judicial review to say what the law is, only to contradict that historic authority by subscribing to a theory that Congress and the president may defy judicial rulings?  By what manner of “Alice in Wonderland” logic may judicial finality be set at naught by the president, resulting in an interminable constitutional tug-of-war that vitiates the premise and promise of the rule of law?

     The Framers of the Constitution, we may safely say, spared the embryonic republic from such a calamity. As Alexander Hamilton wrote in Federalist No. 78, the courts were intended to serve as the “bulwarks of a limited Constitution” against governmental encroachments, which posits that Congress and the president are bound by adjudication. He labeled as “absurd” the assertion that judicial interpretation of the Constitution could be revised by the political departments.

     In 1788, speaking to colleagues in the Virigina Ratifying Convention, John Marshall, soon to become Chief Justice Marshall, did not ask, “To what quarter will you look for protection from an infringement of the Constitution, if you will not give the power to the judiciary?”, and James Wilson, a leading architect of the Constitution, did not proclaim the judiciary, in his seminal lectures in 1791, “a noble guard against legislative despotism,” only to secure executive and legislative reinterpretation in defiance of the judicial interpretation.

   At the founding, proponents and critics of judicial review acknowledged that the courts would have the “final” word on constitutional limitations. James Iredell, a member of the first Supreme Court, stated that, “if the power of judging rests with the courts, their decision is final.” Shortly before the gathering of delegates to the Virginia Ratifying Convention, R.H. Lee, author of “Letters of a Federal Farmer,” declared: “It is proper that the federal judiciary should have the power of deciding finally on the laws of the nation.”  Robert Yates, one of the leading critics of the proposed Constitution, complained that “the opinions of the Supreme Court would have the force of law” that would be binding and final. Judicial authority to prescribe boundaries for the political departments would have been ineffective if the president and Congress were free to disregard the rulings of courts.

     Yates’ observation that judicial rulings have the “force of law,” echoed by other delegates in both the Constitutional Convention and the various state ratifying conventions, carried special import for the president, who has the solemn duty under the “Take Care Clause” of Article II, to “faithfully execute the laws.” A duty to enforce the laws does not imply the authority to defy the laws. There is no implication to be drawn from the debates that the president was not bound by a judicial ruling.

       America’s constitutional history reflects suspenseful moments when doubts arose about presidential compliance with judicial decisions that would undermine assertions of executive authority but, in each instance, concerns were allayed when the president obeyed the rulings.  In 1974, amid the Watergate scandal, the nation held its breath in anticipation of a Supreme Court decision in US v. Nixon, on the question of whether Nixon was required to turn over the “Watergate Tapes, and whether Nixon, who had asserted an absolute executive privilege to withhold documents, the release of which would doom his presidency.  In 1952, The Supreme Court, in the Steel Seizure Case, ruled against President Harry Truman’s assertion of authority, in the face of a nationwide steel strike, to seize the steel industry to keep it open and operating to support the Korean War and the Marshall Plan.

     We should assume that President Trump, like his predecessors who pressed executive authority, will comply with court orders to retrieve Garcia from a notorious Salvadoran penal colony, to which his administration mistakenly deported him. The lesson is clear, as the Court held in Cooper v. Aaron (1958): “The federal judiciary is supreme in the exposition of the law of the Constitution.”

David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.