Marbury is often cited in support of the principle of judicial review. In fact, however, it had nothing to do with judicial review in the modern sense. Marshall's holding was only that courts have to determine what laws are constitutionally valid for the narrow purpose of determining their own rules of decision. Marbury couldn't get the relief he requested from the courts because the statute he based the request on wasn't constitutional. Courts get to determine for themselves what their duties are under the Constitution. Fair enough, who could argue otherwise; hardly a world altering event.
Nothing in Marbury even suggests that the Supreme Court can tell the other branches of government what their constitutional responsibilities are. Courts, as Marshall observed, have to decide what they need to do to comply with the Constitution. So do Presidents (and for that matter Congresses).
The idea that the Executive branch has to dance to whatever tune judges choose to play is profoundly anti-constitutional. That isn't Marbury, it is modern leftism. Progressives have found the notion of judicial supremacy useful ever since the 50’s and that notion is as destructive of our constitutional order as every other aspect of progressivism. Obama is doing that notion a great deal of damage, it's an ill wind that blows nobody any good.
The Constitution doesn't make the Executive subordinate to the courts. The branches are equal, but the Executive with its monopoly on physical force is more equal than the others and all three are subordinate to the people. That's what the document says and that, by and large is how it has been understood for a couple of centuries.
To paraphrase RR, the problem isn't what you don't know, it's what you know that just isn't right.
BRAVO!
I think the question here is that the Executive is deciding that a law validly enacted by the Legislative Branch is on the face of it unconstitutional and doesn’t need to be followed. They are putting the burden on the people who created and approved the law to defend it - after it had already been passed and signed into law.
I don’t see how there is any precedent that allows the Executive to simply ignore a legitimate law. Obama and the gang could find a test case if they wanted to and then bring a challenge. But why should the burden be on the Legislative Branch to defend a law that it has already approved and in fact has been signed by the Executive? How can a new office holder simply decide that all bets are off, he doesn’t like the law, and he’s simply not going to abide by it?
If the Executive Branch and its legal arm get to do this, then we’re in banana republic territory. This is exactly what they do in Latin America. I have spent many years watching this happen. The attack on the judiciary, particularly the constitutional court, is the hallmark of a dictator.