The Trust Problem

Listening to the news this weekend, it occurred to me that my standard lecture on Marbury v. Madison highlights why Trump is unlikely to get a deal with North Korea. (Bear with me here.)

As most readers of this blog know, Marbury  established that the Supreme Court is the final arbiter of constitutionality. The case arose because President Adams–in the last hours of his term–nominated a number of people for judgeships (packing the courts ahead of Jefferson’s assumption of office). In those days, these “commissions” had to be delivered to the appointee to take effect, and due to the timing, Marbury didn’t receive his. Jefferson refused to honor his predecessor’s appointment by having his Secretary of State, James Madison, deliver the commission.

Justice Marshall, who authored the opinion, was between the proverbial rock and hard place. If Jefferson didn’t have to honor the commitments of his predecessor, the new government would be weakened; if he ordered Jefferson to deliver the commission, and Jefferson refused (which was likely), the Court’s authority would be permanently compromised.

I’ve always thought Marshall’s solution was on par with that of Solomon and the baby. He ruled that a commission properly made must be delivered–but he also found the law under which the appointment had been made constitutionally defective, and the commission null and void. Jefferson (I’m sure grudgingly) acquiesced to the decision–including the proposition that the Court was the final voice on constitutionality– since he got the practical result he’d wanted.

When we discuss this case in class, I usually pose a scenario: I have a student assume he owns a car-towing business. He just got a contract with the city, and in order to service it, hired two new people and bought a new truck. Business is great. Then a new Mayor is elected, and refuses to honor the contract.

I ask the student “Would you ever do business with the city again?” The answer is always no. (Sometimes, “hell no!”)

Which brings me to Trump and Korea. And Iran. And the Paris Accords.

At the same time Trump is bragging about his deal-making prowess and suggesting that only he can get a binding agreement with North Korea, he is hell-bent on rejecting the United States’ “binding” commitments to Iran. He has previously refused to honor his predecessor’s decision to join the Paris Accords. (For purposes of this discussion, I will omit mention of the numerous “deals” he reneged on as a private citizen, and the myriad times he stiffed people to whom he owed money. I will also forego discussion of the times the U.S. has bailed on its promises in the past.)

If I were Kim Jong Un, I wouldn’t trust the word of a President who is currently demonstrating that the nation’s word is worthless.

Kim’s hair may be as silly as Trump’s, but I get the impression that he is a whole lot smarter than the un-self-aware ignoramus who currently shames all sentient citizens. Trump is likely to get rolled–and unlikely to realize it.