The Separation of Powers – Buz Blog

Our Constitution separated our government into three separate branches: the legislative branch (Congress), the executive branch, (the President), and the judicial branch, (the courts headed by the Supreme Court). The checks and balances in the Constitution were meant to ensure that one branch of government didn’t enhance its own power or restrict the proper power of the other branches. While historically, Supreme Court rulings have, in practice, been considered final, there is nothing in the Constitution that declares it the final arbiter of what is Constitutionally legal.

Both Congress and the President have an obligation to ensure that their actions, the laws they pass, and the executive orders they implement, are Constitutional. Many legal scholars have argued that Article II, Section 3, (that the President “shall take Care that the Laws be faithfully executed”), implies that the President must enforce Supreme Court rulings. At best, that is an indirect phrase in a Constitution that gives many direct powers to the three branches. Still, until recent administrations, the presidents, for the most part, have taken care that all of the laws are faithfully enforced.

President Biden seemed to be trying to establish a precedent of not enforcing duly enacted federal laws or Supreme Court decisions when he blatantly ignored immigration laws and Supreme Court decisions about forgiving student loan debt. Throughout our history only two other presidents have defied Supreme Court rulings. President Andrew Jackson ignored a ruling in 1832 in the case of Worscester v. Georgia, when the Supreme Court ruled that the Federal government had control over American Indian affairs and the state of Georgia could not pass laws that affected the Indians. Andrew Jackson thought that his power to decide the Constitutionality of an issue was equal to that of the Supreme Court and he ignored that ruling.

In 1861, President Lincoln issued an order that suspended that privilege of the writ of habeas corpus. Supreme Court Chief Justice Taney, acting as a federal circuit court judge, issued a court order, Ex parte Merryman. The order was for the commanding general at Fort McHenry to bring John Merryman to court and explain the legal reasoning for his arrest. General George Calwalader, acting under President Lincoln’s authority, refused. Justice Taney could do nothing to enforce his order, In 1863, Congress passed the Habeas Corpus Suspension Act which retroactively legitimized Lincoln’s earlier suspension.

The reason for this brief history lesson is that there might be another conflict brewing between the President and the Supreme Court. President Trump has made no secret that he loves tariffs and believes they are a tremendous help to our country, both financially and diplomatically. With the Democrats and their allies going to court for any reason, in an attempt to thwart Trump’s agenda, it was only a matter of time before they sued to stop any or all tariffs. In the case currently before the Court, the justices could rule that all of the tariffs are illegal without Congressional approval, that some of the tariffs are illegal or that they are all legal. Or they could come up with some patchwork solution.

The Trump Administration has said that they have a Plan B if the Court rules against them, but that could mean a financial disaster for the country until that plan went into effect. Many trade agreements with other countries would be up in the air. The chaos the Democrats predicted would probably occur. Another option would be to go to Congress and get them to enact “tax” laws that would allow the tariffs, but that would take time. The last option would be for the President to ignore a Court decision that ruled the tariffs illegal. Many legal and Constitutional scholars have said that this would precipitate a “Constitutional crisis”. One wonders why this would be a crisis if it finally resolves a question that has been waiting to be answered for a couple of centuries?