Yes, courts are supposed to block unconstitutional laws: A history lesson.

Today I saw a video of young White House minion Stephen Miller suggesting that, by staying the enforcement of the Administration's travel ban, the federal district court in Washington state and the court of appeals for the Ninth Circuit were acting as if the judicial branch is superior to the executive branch. Such conduct, he suggested, is inconsistent with the notion that the three branches of government are equal.

I hope that Mr. Miller did not mean to imply that courts are not supposed to block laws (including executive orders) that they find to be unconstitutional. If that is what he meant, then he was spewing what may be the most brash and dangerous propaganda I have ever heard. The notion that the courts are not empowered to review laws and executive orders when their constitutionality is called into question challenges the very core of our system of government.

Miller was right about one thing: the branches of government are co-equal. But he was wrong to suggest that the courts' actions in staying the enforcement of the executive order, based in part on their conclusion that the states of Washington and Minnesota were likely to succeed in proving the executive order unconstitutional, means that the courts have improperly assumed a position of superiority over the executive branch. Rather, the courts are simply doing their job, which is different from the job of the executive branch and different from the job of the legislative branch. For, while it is Congress's job to pass laws, and it is the President's job to enforce them, the courts have the final word in saying whether the laws the other branches make and seek to enforce are constitutional. Were it not so, there would be no check on the actions of the legislative and executive branches, and they would be free to exceed their constitutional powers.

The doctrine of judicial review - that courts may review the actions of the other two branches - is neither new nor controversial. It has been clear since 1803, when our first Chief Justice, John Marshall, authored the unanimous decision of the Supreme Court in Marbury v. Madison. The issue in that case was whether an act of Congress (the Judiciary Act of 1789), which purported to grant more jurisdiction to the Supreme Court than the Constitution granted it, was valid. The Supreme Court held not only that the act was invalid, but also that it was uniquely the job of the courts to make that determination. In language that would apply equally to a constitutional challenge to an executive order issued by a President, Chief Justice Marshall wrote:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. 

This is basic constitutional law. It has been the cornerstone of American jurisprudence for more than two centuries. It is taught to every law student in their first year of law school. It is the foundation for every ruling by every federal court concerning the constitutionality of any act of the President and of Congress. Without it, the Rule of Law, the Separation of Powers, and the entire structure of American democracy, would collapse. Attempting to subvert it would be tantamount to an act of treason.

The danger of statements like Mr. Miller's is that people unfamiliar with the Constitution and the doctrine of judicial review might believe him. And if enough people believe him, they might empower the President to ignore the courts. We would then face a full-fledged constitutional crisis unlike any this nation has ever seen.

In the same case, Chief Justice Marshall wrote: "The Government of the United States has been emphatically termed a Government of laws, and not of men." If it is to remain so, Americans must resist any attacks that may be launched on our courts. However one may judge the performance of the judicial branch now or historically, it remains our greatest safeguard against tyranny.