Breaking Democratic Senate Can sue over McConnell’s Obstruction, says John Marshall in Marbury vs Madison

The result of Marbury vs Madison is this:

The Court can decide Appointments clause violations and fix them. Marshall said he could have put Marbury on the bench who was appointed under the prior administration. The reason Marshall gave was the Supreme Court wasn’t O.G., sorry OJ, original jurisdiction(kind of a cop-out since, public consuls section of original jurisdiction) Instead, said Marbury should have started off in the district court. The power to add to the bench to correct Constitutional violations implies the power to remove (similar to a president’s firing powers)

Any Senators whose Constitutional duties were abridged by Mitch McConnell’s Clear Constitutional Overreach have standing to bring a case against him. They have a clear Constitutional duty to Advise and Consent. Senators are representative of States, and States are meant to have a seat at the table when Appointments come to the floor. Likely means state AG’s also have standing when it comes to litigating Senate Appointment clause cases ()

One of the requirements to bring a claim in federal court is the establishment of Article III standing—that is, a would-be plaintiff must establish at the outset of a case that he or she has suffered (or imminently will suffer) a concrete, particularized “injury in fact” to a legally protected interest,

Advise and Consent, Constitutional duty  abridged by McConnell’s refusal to schedule a hearing

—  Check

that the injury is fairly traceable to the defendant’s challenged action,

McConnell’s refusal to schedule a vote is admitted


and that a favorable judgment would likely redress the injury.

Marbury vs Madison implies the Courts can unwind Appointments clause issues, 


So by the Court’s own dogma, by the accepted language of the day, this is a justiciable case by the Courts, the Senators have standing,  so really, why no case, now or before?

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Kentucky Senator Mitch McConnell- the full Constitutional Authority he wields, refused to schedule a vote for Merrick Garland in the Senate, because he knew Garland would be confirmed. The key point most miss in this is the Senate only acts through a vote. If no vote is called, the Senate didn’t take a position. If McConnell just refuses to put it on the Schedule because he doesn’t like Obama, that’s really only partially a civil matter, which is obviously justiciable, via the SuperPrecedent Marbury, which cannot be overturned. Mitch McConnell has been using this

Mitch McConnell also has been initiating the Appointments processes, starting with announcing no hearing on Associate Justice Scalia’s seat, the day of Scalia’s death, before President Obama nominated anyone. Later, this rationale became the Peoples choice in an election year (March) After Associate Justice Ginsburg passed, Mitch McConnell announced that there would be a hearing in an election year for President Trump (September)

Which one of these is not like the others?

In 1892, in United States v. Ballin, the Court held that while “the Constitution empowers each house to determine its rules of proceedings,” it “may not by its rules ignore constitutional restraints or violate fundamental rights.” The Court is obviously empowered to rule on whether 1. Senate Rules were followed or 2. Senate rules obstruct the Constitution. It seems unlikely the Court could strike Congressional actions but not Senate rules.

This means even the extreme use of the filibuster by McConnell may be in play, depending on the outcome of the nominations, which needs formal review.

Darrell Prince

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