[From my Webnote series]
As noted in this Grok conversation, the US Supreme Court assumed the power to review legislation for constitutionality in Marbury vs. Madison—the power of judicial review. In this case, the Court was asked to issue a writ to place Marbury on a Court. The Court admitted he should be placed here but that the Judiciary Act of 1789, which seemed to give the Supreme Court original jurisdiction to issue such writs, was unconstitutional since it unconstitutionally expanded the Court’s original jurisdiction beyond what the Constitution specified. In other words, the Court appeared to decline a power but was only able to decline this power by assuming the power to review federal laws for constitutionality and declare them unconstitutional if found wanting.
We take this power of judicial review for granted now, but it was not so clear initially, and not all countries permit their courts to review legislation for constitutionality. However, this power quickly morphed into judicial supremacy—idea that only the judicial branch, in particular the Supreme Court, has the right, power, and obligation to pronounce legislation as unconstitutional; that what the Court says, goes: if the Court says a statute is constitutional, it is; if it says it’s not, it’s not. It’s up to the Court to decide this; not the other two branches.
But as I note in Judicial Activism and the Presumption of Unconstitutionality (draft, 2005), the theory of concurrent review makes more sense.:
Second, I agree with Jefferson’s theory of “concurrent review,” whereby each branch of the federal government (executive, legislative, judicial) has an equal right to determine the constitutionality of (federal) government action. Meaning the Supreme Court and the President can (and should) refuse to endorse or enforce a law it believes to be unconstitutional; Congressmen should refuse to vote for laws they believe to be unconstitutional, and so on. This is in contrast with the now-dominant doctrine of judicial supremacy, the idea that the Supreme Court is the sole and final arbiter of the Constitution and constitutionality. (On concurrent review, see David N. Mayer, The Constitutional Thought of Thomas Jefferson (University Press of Virginia, 1995), 131, 259, 263, 269-72; William J. Quirk & R. Randall Bridwell, Judicial Dictatorship, (Transaction Pub., 1995), xiv, 10-11, 13.)
But what this means is that the federal courts can “overturn” a federal law that they believe is unconstitutional by simply refusing to enforce it. This is because they are an intricate part of the very machinery of the federal government. If they refuse to go along with an unconstitutional law, it is essentially nullified. The same is true of the Presidency and the Congress–they can refuse as well.
In addition to concurrent review, which relates to the equal and independent obligation of each of the three branches of the federal government to refuse to enforce (or enact) an unconstitutional law, under federalist principles there is also vertical separation of powers in which the States also have a constitutional right to refuse to permit unconstitutional federal laws to be enforced in their territory (nullification), and/or to secede; the only remedy that the US Federal Government, or other States, has against a state that will not comply with federal law or even with the Constitution is to eject that State from the Union, much like a voluntary club or organization (a country club, NATO, the UN, the EU, and so on) and eject a member for not paying dues or not abiding by the organization’s rules.
See also this Grok conversation (excerpt):
The Jeffersonian Lens: Concurrent Review vs. Judicial Supremacy
To understand Trump’s move, consider the Jeffersonian theory of concurrent review, which holds that all three branches of government—executive, legislative, and judicial—share an equal obligation to uphold the Constitution. This contrasts with the notion of judicial supremacy, cemented by Marbury, where the Supreme Court positioned itself as the final arbiter of constitutional meaning. Thomas Jefferson and others warned against this, arguing that no branch should dominate the others in interpreting the Constitution. As legal scholars like David N. Mayer and William J. Quirk have noted, concurrent review empowers the executive to resist unconstitutional laws or delegations, even absent a court ruling.
Trump’s pushback against agency rulemaking aligns with this vision. If Congress has unconstitutionally delegated its legislative authority to agencies, the executive branch—under Trump’s leadership—has a duty to refuse to enforce or enable such overreach. This isn’t a power grab; it’s a reclamation of constitutional boundaries, leveraging the post-Chevron landscape where courts are now more likely to strike down agency actions lacking clear statutory backing.
Update: I would disagree with Richard Epstein too. See the transcript excerpts from Epstein on Roman Law:
John Yoo (3:42): As usual, Charlie, I agree with you about 75% of the way. The 25% is the fun part to talk about. And I’m so glad that you are willing to volunteer yourself as a second target at which Richard has to shoot, because as we keep moving, it’s a target-rich environment for him, but he can’t concentrate on more than one target at a time. So, you know, first I agree with you. In a way, it’s a technical issue of federal courts law. How far does the power of a court run in issuing a remedy? And I find that kind of boring. I think the answer is actually quite simple, which is that the Constitution says federal courts decide cases and controversies, and the cases or controversies are just the people who appear before you in the courtroom. And so that’s how far the judge’s power goes, is to the people who appear. But as you said though, it contains much more important structural issues about the Constitution, and of course it has the most immediate political effect of letting, of unleashing President Trump’s agenda from these nationwide injunctions and preventing any single district judge from stalling the federal government in its tracks. Although, as you said, Charlie, this means that the Supreme Court is going to have to intervene faster and earlier in cases like the birthright citizenship case or a lot of President Trump’s executive orders. But the really big structural issue, I think, is one that’s raised most sharply by Abraham Lincoln and Dred Scott. I don’t want to overclaim here, but remember that Abraham Lincoln was faced with this problem of a Supreme Court that believed in its own supremacy and thought that it should issue a decision, Dred Scott, that settled the rights of all freed or escaped slaves throughout the country. And remember Lincoln said, because, right, Lincoln’s a member, the leader of the Republican Party. Lincoln’s, the Republican Party is founded out of opposition to Dred Scott and rises to prominence and wins the 1860 election because it’s opposed to Dred Scott’s holding, which is that slavery cannot be stopped by Congress and the president or even the freed states. And Lincoln said this. He said, I will obey the last line of Dred Scott, which means Dred Scott himself has to be handed over back to his original owner. And then Lincoln says, “I have no obligation under the Constitution to obey that opinion.” And he says, “It’s an opinion of the Supreme Court, the logic of the Supreme Court, and apply to every other case in the country. All those other slave owners can sue by the millions to grab back freed slaves, but I’m not going to go out and find them and voluntarily hand them over.” That’s essentially the same position, I think, that President Trump and President Biden and all the other past presidents are taking. I will obey the order of the district judge, but as an independent branch of government with the right to interpret the Constitution, too, I don’t have to bend the knee to the Supreme Court’s interpretation everywhere else. And I think that’s the deeper structural decision that the Supreme Court made here in this Cassa case. But surely, before we go to Richard, surely the Supreme Court said that it has the capacity to issue nationwide injunctions. It does, but I don’t know whether a president doesn’t also have the authority to take. Now, Lincoln also said that you should only do this when the Supreme Court’s really wrong on an issue of major importance like slavery. And Lincoln also said, in general, I will obey the Supreme Court nationwide, because I think that’s their job and they might be better at it than me. But he also said we would be giving up our right to self-government if we let the Supreme Court decide finally for the whole country on the Constitution’s meaning.
Richard Epstein (7:39): Interesting. So Richard, how much of that do you agree with? Well, I’m trying to catch my breath, but go back from Dred Scott 100 years later to Brown v. Board of Education, and all of a sudden now the Court’s the good guy on segregation, not the bad guy. And the great question was whether or not you would say about Brown v. Board, it only applied to the parties that were there and that every other southern state was free to do what it wanted until they themselves were directly sued. And what we did is we had exactly the opposite result in a case called Cooper v. Aaron, which says when the Supreme Court talks, it’s going to be a form, not of judicial parity, which was what John was pushing, but rather a form of judicial supremacy, which was the way in which this thing started to work out, and I think, in effect, talking about a nationwide injunction is not the form you want in order to deal with that debate. I think that it is also the case that most of the people in this country have accepted the Cooper v. Aaron solution was done for about 1958 or so. And that that would be today the law of the land. Well, which do I believe? Well, let me put it this way. I believe that the branch which is correct ought to have the final say. The problem is we never agree as to which that branch turns out to be. And so in this particular case, I think that the word you used, Charles, to say we don’t want to allow some random judicial court to have the power over the case was wrong. The reason it’s wrong is that you use the word random. And when people are starting to bring suits with respect to these kinds of cases, the last thing that happens is that a plaintiff who has the choice of forum is going to randomly go into the telephone book and say, “Well, I think I’ll go to the central district of Idaho for this particular case.” There are huge strategic advantages to going to one place or the other, and that means that the plaintiff is going to have a huge advantage, which means that these nationwide injunctions are going to be skewed in one form or another, and so I think what happens is that the correct rule, which is the old English rule of equity, is that when you start to issue an injunction, you bind only the parties to the particular case, and you don’t bind third parties, and they will be bound, if at all, by a doctrine of precedent, which means that the case can be used elsewhere in the American system. If you do something in the Third Circuit, that’s not going to be binding on the judges in the Fourth Circuit. So that you’re going to have, essentially, the Supreme Court to resolve them. And the problem with John’s position is that if the Court itself does not have an authority to do this, and you have splits in the circuit, and you have a congressional ace in the hole or a presidential view, what’s going to happen next? And this is another problem we have. Donald Trump, as the president of the United States, has taken the single most aggressive position on the scope of executive power that I’ve ever seen anywhere. The most recent manifestation of that had to do with the TikTok case, where he said, “Well, Congress had passed a statute which surely relates to foreign commerce. But I’m the president, and I have exclusive control over foreign affairs, and so that statute is not binding on me.” Well, that’s a complete sort of revolution from taking place, and you have this inter-mural fight, and it seems to me that the only body that can resolve it is going to be the Supreme Court. It said some very silly things in some of the earlier cases, cut back on them in some later cases, but I’m afraid I still believe, unhappily, in the doctrine of judicial supremacy. Why is it an unhappy situation? Because it turns out, no matter where you put the ultimate power, there are going to be cases where you miserably reject the result. And so what you have to do is to project over the full range of cases to see which of these doctrines is going to be least harmful. And in doing that, I think I come up with the Supreme Court for one very simple reason. We’re not in England, where parliamentary supremacy is unchallenged because you have one guy doing it. In the United States, you have a presidential system, and you have a federalism system. And if it turns out that the courts cannot resolve these problems, the inter-branch disputes that you’re going to see are going to be, to my mind, extremely dangerous. So I think that I thought the decision was right. I would want to decide it on somewhat narrower grounds. Anytime one wants to talk about 18th-century equity principles, that’s the stuff that I was raised on when I was a student doing law in England back in the 1960s. And so I’m very glad to see that they, I think, got that one right. I also think they were right not to say boo about the substantive merits of this particular case, which is going to be a titanic battle come the fall.
