The Ninth Circuit Court of Appeals ruling on Mr. Trump’s executive order on immigration will be going to the U. S. Supreme Court. The Supreme Court has claimed, ever since Chief Justice John Marshall’s Marbury v. Madison ruling of 1803, that it is the final arbiter on the constitutionality of a given law. This was, in effect, an illegal seizure of power by the judicial branch of the government from the legislative branch. Thomas Jefferson feared that such a power-play would happen and thus was skeptical of the very existence of a supreme court. He suggested that the Court should play an advisory role on the constitutionality of laws rather than a coercive role. Yet critics may ask, “How can this practically work?” Below, I offer a suggestion.

Suppose there is a question concerning the constitutionality of a law passed by the U. S. Congress or by a state legislature, and the case reaches the Supreme Court. Suppose the court rules the law constitutional. Then it would remain law without further review. But if the court rules, that in the opinion of the majority, it is unconstitutional, then the law would be sent back to the legislative body that passed it for reconsideration based on possible unconstitutionality. If, after such reconsideration, the legislative body decides to rescind the law then the law is repealed. But if, after further review, the legislative body affirms the constitutionality of the law, then it remains law. In that way, the Supreme Court’s ruling is taken seriously, but remains only advisory. A flowchart is below:

supreme-court-reviews-law-for-constitutionality