Jake Lo: What judge is going to believe that?
Agent Westey: My judge.
After a district judge in Hawaii once again issued a temporary restraining order on President Donald Trump's revised travel ban, I heard several opinions this week suggesting that Trump should simply ignore the TRO and implement his executive order. If Trump would defy the absurd and ridiculously worded ruling of this judge, then he would be engaging in nullification.
In the context of constitutional law, nullification means ignoring a law or ruling deemed to be unconstitutional. Nullification was frequently employed prior to the Civil War. For example, it was used by states to combat oppressive federal laws such as the Sedition Act of 1798 and the Tariff of Abominations of 1824.
Should Trump choose to ignore the judge's TRO, then his nullification would challenge the legal principle of judicial review. Judicial review is a term concocted by Chief Justice John Marshall in the case of Marbury v. Madison. Judicial review is the power of the Supreme Court and all federal courts to examine statutes and presidential behavior, and to declare them void if found to be inconsistent with the Constitution. Of course, it is debatable whether contemporary judicial review regularly contemplates the constitutionality component.
The concept of judicial review carries some intuitive appeal. Courts should be independent, anti-democratic entities that preserve the constitutional rights of individuals when legislative and executive force intrudes. Viewed in this manner, the Courts are the last line of defense for liberty.
On the other hand, notable individuals such as Thomas Jefferson saw judicial review as an intrusion on liberty. In Jefferson's view, the Supreme Court's opinion on constitutionality should carry no greater weight than the legislative or executive branches, and in fact the Constitution does not grant the Court such interpretive authority. Moreover, Jefferson questioned, did it make sense that the people of the United States would fight a bloody revolution only to put the fate of liberty in the hands of nine (five, really) tenured-for-life judges?
Tom DiLorenzo suggests that we have become such a 'lawyereaucracy' today. Find judges friendly to your point of view and have them issue decrees that institutionalize it and put down dissent. DiLorenzo suggests nullification as a way to counter lawyereaucracy.
As an example of a president defying the Court's wishes, DiLorenzo offers Andew Jackson's veto of the recharter of the Second Bank of the United States. While Jackson's veto was in response to a Congressional bill (not a court order), Chief Justice John Marshall had himself vociferously opined that the central bank was constitutional. In his veto response, Jackson (about half way down) argues that it is the duty of Congress and the Executive to decide on the constitutionality of bills that they introduce and approve, and that the opinion of judges on this matter has no more authority over the other branches than the authority that the other branches have over the Court.
Jackson, further channeling his inner Jefferson, also states, "The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears the he will support it as he understands it, and not as it is understood by others."
DiLorenzo suggests that if Donald Trump does defy the district judge's TRO then he would be acting in accordance with his presidential role model.