Embassy Row: Marbury v. Madison redux

The legal battle between the State Department and Iranian dissidents fighting to be removed from the U.S. terrorist list evolved this week into a brief lecture on one of the most famous Supreme Court cases, which established a fundamental constitutional principle more than 200 years ago.

Viet Dinh, a former Justice Department lawyer and now attorney for the People’s Muhajedeen Organization of Iran (PMOI), cited Marbury v. Madison in the latest round of legal briefs that began in February, when he filed his original motion in a federal court in Washington.

The 1803 case pitted James Madison, then secretary of state, against William Marbury, a wealthy Maryland resident who had been promised a judicial office in Washington but had not received his commission to authorize him to take the position as a justice of the peace.

Marbury appealed directly to the Supreme Court to order Madison to do his duty and deliver the commission. In legal terms, he was seeking a “writ of mandamus.”

Marbury’s case resulted from the bitter political battle between John Adams, who appointed Marbury and other judges only hours before the end of his presidential term, and Thomas Jefferson, who defeated Adams in the contentious election of 1800 and later refused to authorize many of Adams’ judicial appointments.

Chief Justice John Marshall ruled that Marbury had a right to his commission. Madison was ignoring part of his official duties, which at the time included some domestic responsibilities.

However, Marshall also concluded that the Constitution gives the Supreme Court no explicit authority to issue writs of mandamus and struck down a congressional act of 1789 that sought to expand the court’s jurisdiction to include that power. The Supreme Court mostly hears appeals from lower courts and has limited authority to hear cases filed directly with the high court.

The Marbury ruling was the first time the Supreme Court declared a law unconstitutional.

Mr. Dinh’s reference to the case centered on the authority of lower courts to issue writs of mandamus and on his contention that the State Department is ignoring its obligations, much as Madison did.

In his latest brief, he criticized the Justice Department, representing Secretary of State Hillary Rodham Clinton, for its response to his Feb. 27 request that the U.S. Court of Appeals for the District of Columbia issue a writ of mandamus and order the State Department to remove the Iranian dissidents from the foreign terrorist list.

The Justice Department argued that Mrs. Clinton has a full schedule minding U.S. foreign policy and will review the PMOI request as soon as possible.

Two years ago, the same court ruled that the State Department is legally obligated to review the status of the PMOI, which originally asked to be taken off the list in 2008. U.S. law gives the State Department 180 days to respond to such appeals and decide whether a group on the list still presents a terrorist threat.

The 3,300 dissidents of the PMOI, who have been based in Iraq since the 1980s, gave up their weapons to U.S. forces in 2003 after the ouster of Iraqi dictator Saddam Hussein.

“The government’s opposition to the PMOI’s petition for a writ of mandamus boils down to a general assumption that the secretary is too busy and her work too important to be bothered with the laws of Congress and the mandates of this court,” Mr. Dinh said.

“Marbury vs. Madison disposed of that argument.”

MEETING THE PRESS

The Hungarian official who helped write the country’s controversial new constitution has added a news conference to his visit to Washington this week.

Jozsef Szajer, a member of the European Parliament from Hungary’s ruling Fidesz party, will meet with reporters at 4 p.m. Thursday at the National Press Club.

Hungary’s constitution has been criticized for placing restrictions on churches and on the media.

• Call Embassy Row at 202/636-3297 or email jmorrison@washingtontimes.com. The column is published on Mondays, Wednesdays and Fridays.