Since 1803, the law has been well settled that the United States Supreme Court has the exclusive “province and duty” to “say what the law is” with respect to whether a particular federal law is contrary to the United States Constitution.Marbury v. Madison, 1 Cranch 13, 177, 2 L.Ed. 60 (1803). The high court has consistently applied this principle, saying as recently as 2017: “And for more than two centuries it has been axiomatic that this Court–not state courts or legislatures–is the final arbiter of the Federal Constitution.”Arthur v. Dunn, 137 S.Ct. 725, 729-730 (2017).
This concept is perhaps one of the most abused concepts by media talking heads and politicians who banter the term “unconstitutional” around. Unless and until federal courts have determined that a statute or executive order is in violation of the Constitution, such law enjoys the status of being in conformity with the Constitution.
Indeed, it is equally well-settled law that a federal statute or executive order is presumed to be constitutional unless the federal courts strike down the statute or executive order.See, e.g., U.S. v. Morrison, 529 U.S. 598, 607 (2000)(Once duly enacted, federal statutes obtain a “presumption of constitutionality.”).
While it is possible for persons in the legislative and executive branches to hold views on the likely constitutionality of a particular law, it does not mean it is so. The bedrock test is whether the federal courts–particularly the US Supreme Court–have made a determination. Lacking such a judicial determination, a talking head’s smug pronouncement of constitutional status is simply air making noise out of a mouth.
© 2022 Ralph D. Davis