Trump running out the clock on Congressional subpoenas: why the Supreme Court is of little help to resolve it anytime soon

As I have discussed elsewhere, one constructive side-effect of the Donald Trump administration and its abundance of deliberately orchestrated constitutional crises has been to get me to reflect on what that document says and how it works to resolve or, more aptly, to fail to resolve the aforementioned crises.

The latest of these challenges to the constitutional order has to do with the president's decision to not comply with several subpoenas issued by the U.S. House of Representatives. The first of note results from the House Ways and Means Committee demanding Trump's recent tax returns from Secretary of the Treasury Steven Mnuchin. The second, emerging from investigations by the House Intelligence Committee, requires Attorney General William Barr to turn over the unredacted Mueller report. There are others.

To the extent that these disputes between the executive and the legislative branches constitute constitutional crises, a question begs be asked, "why can't these be resolved quickly with a Supreme Court decision?" Instead, we are faced with months-, perhaps years-long, litigation in the federal courts before any related case arrives at the SCOTUS doorstep. How did such an inefficient approach to a much-touted system of checks and balances come to be standard operation procedure for the federal government?

The first level of explanation lies in Article III, Section 2 of the U.S. Constitution which defines the "original jurisdiction" of the Supreme Court. Original jurisdiction, meaning the kind of cases that can go directly to the court, are pretty restricted. They are mostly limited to seldom employed disputes between representatives of foreign governments (e.g. ambassadors) and the United States and between the states themselves, the latter representing the lion's share of these original cases.

But wait, you might ask scratching your heads - as I did - why aren't disputes between the court's "co-equal" branches of government, namely between Congress and the president, included in cases that could go directly to the Supreme Court? The answer has to do with a deeper reading of Article III and the thinking that went into constructing it. It also has to do with a lie we continue to tell ourselves about the visionary system of checks and balances crafted by our constitutional founding fathers.

The lie emanates from the fact that, in many respects, the judicial branch of our government wasn't construed at first as being a co-equal branch of government at all. Indeed, Alexander Hamilton spends a fair amount of ink in Federalist Paper 81 assuring opponents of the yet-to-be-ratified constitution that the Supreme Court proposed in it would possess limited in power. He asserts that its original jurisdiction would be circumscribed, as I described above. In addition, Hamilton even goes so far as to say "there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution."  This latter claim may come as a shock to modern ears, as it should.

We tend to forget that Hamilton was making his case for the Supreme Court in response to anti-federalists who didn't want to see the creation of a separate judicial branch of government at all. They felt, as many others did at the time, that the legislature was the primary branch of government since it was most representative of the will of the people. (That's why it's positioned front and center as Article I in the constitution.) They did not want its power usurped by a bench of unelected judges, and they were fearful that these judges would overturn congressional acts at their discretion. Across the pond, Britain seemed to function just fine with a high court residing in the House of Lords, part of their legislature. Hamilton's task was to assuage opponents concerns about the proposed Supreme Court.

Needless to say, a lot has changed since Hamilton penned Federalist 81. As far as the Supreme Court goes, it only took a handful of years and Chief Justice John Marshall's opinion in the bedrock case of Marbury v. Madison to establish the doctrine of judicial review and so elevate the court toward the co-equal status it enjoys today. Sadly, in the intervening years, the primacy of the legislative branch - the central feature of government as imagined by the framers - has suffered depredations by the self-aggrandizing imperial presidency that we are stuck with today.

So, even though its currency has risen over the past couple of centuries, the Supreme Court is pretty much saddled with the restrictions of its original jurisdiction. This means that enforcement of congressional subpoenas directed at the administration will have to wind their way through an appeals process that begins in the federal courts. It's possible that these cases will be expedited, but in all likelihood, thanks to the reluctance on the part of the framers to position the judiciary to resolve disputes between Congress and the president, it looks like Donald Trump will be able to run out the clock on matters of accountability that are critical to our democratic form of government. So it goes.

Why an Obama "excellent adventure" as a Supreme Court Justice is a bad idea

There's a lot of buzz going around about the possibility of a future Democratic president nominating current Democratic president Barack Obama to the Supreme Court. I think that this would be a bad idea, and I'd like to tell you why.

Just to fend off some of the disapproval that I know I've already provoked, I want to say that I think Obama has the intellect, legal expertise, and the judicial temperament to make for a great Supreme Court Justice.

Indeed, the matter of temperament is of paramount importance. No one has shown more of a commitment to the dispassionate consideration of the most divisive issues facing this country than Barack Obama has over the last eight years, this in spite of relentless attacks on his efforts to reach sensible political compromise.

So what's not to like?

To put it simply, the presence of an Associate Justice Obama would turn the Supreme Court Building into a third ring of the the Washington political circus that now includes the White House and the U.S. Capitol. And a Justice Obama would suck the air of the room of any oral argument before the court.

The obvious objection to the above claim is that we've been there and done that. William Howard Taft, the 27th President of the United States (1909–13), served as the country's tenth Chief Justice (1921–30). The Supreme Court didn't crumble as a result of his tenure there, so there's no reason to believe that a repeat performance by the 44th President of the United States in the capacity of an Associate Justice should raise any cause for alarm.

In response, first of all consider that Taft took on his Supreme Court gig a good eight years after leaving the office of President. I suspect that this cooling off period went a long way toward making Supreme Court deliberations less fraught with the political issues that Taft had to deal with during his time as president.

Second, and more importantly, the power and prestige of the office of the President of the United States have changed immeasurably since 1921. To understand this, it's instructive to look at a story that comes from the ex-presidency of Harry Truman, a little more than sixty years ago.

In June of 1953, not much more than sixth months after leaving office, Harry Truman and his wife Bess packed up their Chrysler New Yorker and headed across country on a road trip. Just the two of them.

It's hard to imagine that the man who had been commander-in-chief of U.S. armed forces at the end of World War II - and who had also survived two assassination attempts - was out touring the country in the family roadster without the company of either a press entourage or a Secret Service detail. This presidential escapade is nicely documented in Matthew Algeo's "Harry Truman's Excellent Adventure: The True Story of a Great American Road Trip" (Amazon link).

If you imagine that Barack Obama's assuming a seat on the Supreme Court in 2017 would be not much more of a disruption than William Howard Taft becoming Chief Justice in 1921, then I invite you to consider how well an "excellent adventure" by the Obama family on a road trip alone into the American heartland would play out today.

Barack Obama is eminently qualified to a be a Supreme Court Justice in the same way that Cate Blanchett is eminently qualified to appear in a community theater production. But celebrity changes everything, and sometimes even the best qualified person isn't the right fit.

Holy Order Joins Challenge to Obamacare with an Anatomical Twist

By Marc Merlin

Published: January 5, 2014

WASHINGTON — A little-known monastic group, the Brothers of the Holy Appendix, has filed a friend-of-the-court brief in the case before the Supreme Court in which the Little Sisters of the Poor, an order of Roman Catholic nuns, have challenged requirements of the Affordable Care Act which require employers to provide insurance coverage for contraception or face related penalties.

Unlike the Little Sisters, whose reservations extend to the wide variety of safe and effective methods for family planning and for the low-cost reduction of sexually-transmitted diseases, the Brothers' objections are focused narrowly on the fact that the new healthcare law involves them either in the process of providing coverage for appendectomies or in informing a third-party administrator of their decision to opt-out of such coverage.

Citing First Amendment protections, Fr. Cecal Gorgonzola explained, "we consider the appendix a God-given feature of the human anatomy and any tampering with it, much less its removal, constitutes an abomination according to our religious doctrine." He continued, "compelling us to participate, directly or indirectly, in supporting even medically necessary appendectomies is an infringement of our freedom of conscience and freedom of speech and must be resisted."