Tag Archives: John Marshall

Marbury Versus Madison And The Kurds

When I teach my classes about Separation of Powers, I necessarily discuss Marbury v. Madison, the case that established the doctrine of judicial review.

The case was superficially simple. President Adams spent the waning hours of his term creating judgeships–packing the courts, in the view of Jefferson, who succeeded him. In those days, the “commission” appointing someone had to be physically received in order to be effective; time ran out before Marbury’s could be delivered.

Jefferson refused to deliver it, and Marbury sued.

Jefferson made it clear that he would ignore the order If the Court ruled that he had to deliver Marbury’s commission. But Marshall was aware of the damage that would be done if an official action by a preceding President could simply be disregarded by the current one.

At this point in the discussion, I usually pose a hypothetical to the class. Let’s say you own a towing company, and your city, under its current Mayor, awards you a four-year contract. You bought a new tow truck and hired a couple of additional workers in anticipation of the increased business. But a few months later, a new mayor was elected, who refused to honor the contract. How likely would you be to ever do business with the city again?

Students get it; they recognize the importance of government honoring its commitments. So did Justice Marshall, whose decision, in my opinion at least, was right up there with King Solomon’s proposal to cut the baby in half.

Marshall ruled that Jefferson was bound by his predecessor’s official action–or at least, would have been bound, had the law passed by Congress that created the judgeships been constitutional–which, Marshall also ruled, it wasn’t.

Marshall’s decision avoided the crisis that would have been precipitated had he given an order that Jefferson defied. It also established the court as the final authority on constitutionality. (Jefferson reportedly was unhappy with the terms of the decision, but he’d “won,” so he accepted it.)

Marshall had recognized how critically important it is that nations, like individuals, keep their word. If national commitments could be disregarded when an administration changed, neither our own citizens nor foreign countries would trust the government of our country,  a situation that would negatively affect everything from trade agreements to treaties.

Which brings me to the disaster that is the Trump Administration, and its betrayal of the Kurds.

It’s bad enough that the administration is roiling the economy by rolling back regulations that businesses have relied upon (however grudgingly), introducing unpredictability and inviting litigation–both of which are costly. Betraying commitments to allies is far worse. When that betrayal virtually guarantees the death of soldiers who have been fighting beside Americans and against our enemies, it is both damaging to national security and morally unforgivable.

The New York Times quoted a Special Forces soldier

“They trusted us and we broke that trust,” one Army officer who has worked alongside the Kurds in northern Syria said last week in a telephone interview. “It’s a stain on the American conscience.”

The American military’s strategy in Syria over the past four years has been dependent upon  trust and collaboration with the Kurds, who have been described as integral to routing ISIS, the Islamic State, from northeastern Syria.

The Kurds fought in Manbij, Raqqa and deep into the Euphrates River Valley, hunting the last Islamic State’s fighters in the group’s now defunct physical caliphate. But the Syrian Democratic Forces, or S.D.F., as the Kurdish and their allied Arab fighters on the ground are called, are being left behind.

Thanks to this profoundly ignorant and corrupt administration, America’s reputation and what remains of its honor are being left behind with the Kurds.

Words fail.