[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.
