Constitutional Crisis?


Well. it seems that Speaker Boehner is going to file for has filed for writ of mandamus to be served on Obama. “filed a lawsuit against the president for allegedly exceeding his authority and violating Article 1 of the Constitution which grants legislative powers to Congress.”

For those of you who do not know what this is, it is an order from the court to an official(s), or a lower court, to do his job as prescribed by law. This is the first case that the Supremes issued such a writ:

Marbury v. Madison


In the final days of John Adams’ presidency he appointed a multitude of justices of the peace under the “Organic Act” deliberately because the oncoming President Thomas Jefferson would not. The commissions were signed and sealed but were not delivered. President Jefferson later refused to honor the commissions because they had gone undelivered until Jefferson had held office and therefore felt they were invalid. Marbury, one of the appointees, later applied to the supreme court for a writ of mamandus, claiming that the Supreme Court could issue such write “…to any courts appointed, or persons holding office, under the authority of the United States.”


1- Is Marbury’s appointment valid?

2- Whether the Supreme Court can award the writ of mandamus.

3- Whether the Supreme Court has judicial review power.

4- Is offering the writ of mandamus the appropriate remedy for the court?


1- Yes. It is valid because the appointment was done in full while Adams was still President. He completed the entire task of the appointment process and did all he could do in such completion. The appointment is valid when the President undertakes his final act required for the appointment, not upon delivery of the appointment which is beyond the President’s control. Marbury is entitled to appointment as a remedy because it was a right given to him by President Adams. In this sense, Marbury was given “a specific right.” The very essence of government is to provide remedies to rights that are abridged.

2- Yes, the appointment was a legal right offered to Marbury; and for every legal right violated, the law must afford a remedy. As such, his remedy is the rightful entitlement to the appointment. The delivery of the appointment was simply “ministerial” and therefore was owed to him. The appointment had already occurred prior to the necessity of delivery; and once the appointment was granted, Marbury had a vested legal right.

3- Yes, but not in the instant case. The Judiciary Act of 1789 clearly gives the Supreme Court judicial review over writs of mandamus. However, Article III of the Constitution does not give the Supreme Court authority to review the writs. Therefore, the two laws are in conflict. As such, the Supreme Court – being charged with upholding the Constitution – must adopt Article III’s application. Justice Marshall argued that there would be no point for the Supreme Court to exist were it not to uphold the Constitution and strike down laws adopted by Congress that necessarily conflict with the Constitution itself. In so doing, Marshall established the principle of judicial review.

4- Yes, but in the instant case the Constitution conflict with the Judiciary Act of 1789 and therefore the remedy cannot be proffered. In this case, a writ of mandamus is appropriate because it is an order for a public official to carry out his duty. But for the reasons explained in (3), the order cannot be carried out.

So it seems to me that Boehner could be awarded a writ of mandamus on Obama, the question then would be if he followed it. I am interested in how he frames the issue . Instead of Obama being given a right he was denied, he has been accepted the responsibility to “fatefully execute” the laws of the United Sates of Americas which according to Speaker Boehner, and might add a lot more of us, he has failed to do.

Some think that that the lawsuit is feckless (a new word for me, had to look it up, means week), well time will tell. I think that the House should stop Obama’s funding until he complies with the laws as written, but they want do that because because Obama’s MSM friends would say mean things about the Republican controlled House.


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