Reply To: In denying Snyder petition, Supreme Court upholds Sixth Circuit ruling

Robin Vander Wall
Robin Vander Wall

States are sovereign. The only timelines states have are those which they establish for themselves or those to which they have bound themselves in agreements with other states or by virtue of having ratified the Constitution (which places hardly any obligations upon the states regarding dates and times).

Each state has divided (separated) branches of government which are co-equal. And each branch typically operates by its own set of rules and timelines. It is not uncommon to see legislatures (and even courts) attempt to dictate times and deadlines to other branches of government, and, depending upon the targeted action, such requirements may or may not be constitutional (for that state…and under that state’s own constitution).

This case has returned to the lower court: a federal District court. A federal court has the authority to require the state to do this or that by such and such time. However, it’s not entirely unprecedented for a state to ignore or even rebuff a federal order ESPECIALLY when the federal court has no power to enforce its order. This is where the executive power of the federal government becomes exceptionally important. Federal judges can rule this or that as unconstitutional. But the judiciary has no power to enforce its own orders without the help of the president and the attorney general.

Drawing from a historical perspective, let’s consider the Civil Rights movement. Without Eisenhower’s decision to nationalize Arkansas’ state guard in 1957, Orval Faubus would have successfully prevented black students from enrolling at Central High School in Little Rock. Likewise, and a few years later, without the Kennedy brothers deciding to face-off with Alabama Gov. George Wallace in 1963, the public school system would not have capitulated to desegregation.

I apologize for the length of this answer. But I’m just trying to illustrate how important it is to have an administration that is ready to stand behind the federal judiciary when it comes to enforcing unpopular orders. It would not surprise me to see the Michigan Legislature, or its governor, to attempt to a version of this kind of “constitutional crisis” and put President Trump in the very uncomfortable position of having to enforce an extremely unpopular order. If that were to happen, I wouldn’t offer any wagers on how Trump will respond.

In sum, yes, there will likely be some kind of deadline, but we have no idea what it will be at this point in time. But, even supposing there is one, there’s no compelling reason to believe that the state of Michigan will abide by it. I wish I could provide greater assurance, but I can’t. We will all have to wait and see how the thing unwinds. And there is likely to be more litigation in the effort to force the state’s compliance.