Brief prepared by: Jessica M. Donels, Section 4Case: Marbury v. Madison, 5 U.S. 137, (Supreme Court of the United States, 1803)Procedural overview: Petitioners filed for a writ of mandamus (an order from the court, in this case the Supreme Court) to force the Secretary of State to show cause for non-delivery of the commissions. An order was issued requiring the Secretary of State to show cause for non-delivery, and the Secretary did not show cause. At a later term, petitioners sought a second writ of mandamus to force delivery of the commissions. The appellate court found that the petitioners had a right to a remedy, but that they could not issue a writ to the secretary of state as it was not a power granted by the constitution.Summary of the facts: Federalist President John Adams had lost the election and the Congress to Thomas Jefferson of the Democratic - Republican Party. In a political move, the Federalist Congress passes the Judiciary Act of 1801, expanding the previous Judiciary Act of 1789 to create more federal courts and appoint new judges. With Congress’s approval, John Adams appointed several new judges, and gave the commissions to his Secretary of State to deliver (ironically, Marshall, who would later be the Justice who writes the majority opinion of this case). Several of the commissions are not delivered in time, including that of Petitioner Marbury—a non-revocable 5 year appointment as Justice of the Peace. Although the commission (contract stating their job) was written, signed, sealed by the secretary of state, he could not perform his duties without commission in hand. To make matters more confusing, thenew Democratic-Republican party passed the Judiciary Act of 1802 repealing the Act of 1803—making Marbury’s job as Justice of the Peace defunct—and suspended the activities of the Supreme Court for the year. Petitioner obviously wanted his appointment, and brought a petition to the Supreme Court, asking for the production of his commission. During the trial, several clerks and secretaries of the state were called, and were incredibly resistant to questioning. It appears as though the commissions existed, but the clerks did not disclose what happened to them or why they ceased to exist or were not delivered. It appears their existence was sufficiently proved for the purposes of the first trial. No cause was shown for why the commission was not delivered (other than political) so Petitioner brought another suit to order the production of his commissions. Constitutional language: Article III Sec. 2 Cl. 2 : “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” Issue: (1) Whether the Supreme Court can issue a writ of mandamus to the Secretary of State; (2) whether a writ of mandamus will lie against the Secretary of State in any case; and (3) whether one will in this particular case, where the commission has left the agency of the President and is within the sole control of the Secretary’s job as defined by the constitution. Holding: Although (2) a writ of mandamus will lie against the Secretary of State and (3) could lie against him in this case, it is (1) not within the power of the Supreme Court, as designated by the Constitution, to issue such a mandamus. Rather, their powers as enumerated by the Constitution are to defend the Constitution’s supremacy as law, by interpreting the constitution and determining whether new laws are constitutionally allowed. Justifications/rationale:(2) The opinion of the court states clearly that a writ of mandamus will lie against the Secretary of the State when he is acting in his capacity as the keeper of the laws and the Great Seal of the United States. The Secretary is not susceptible to a writ when he is acting as an agent of the Executive, but in the abovementioned cases, his capacity is distinct and subject to judicial review. Where he is directed by law to do a certain act affecting the rights of individuals, in the performance of which he is not placed under the particular direction of the president, and the performance of which, the President cannot lawfully forbid, and therefore is never presumed to have forbidden…in such cases, it is the duty of giving judgment, that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department. Pg 171The court states that without the power of the courts to lay a writ of mandamus against certain offices, person’s rights are certain to be harmed. The court does not go so far as to say that a writ of mandamus can lie against the executive office itself, and they are very careful to separate out the duties of the Secretary into actions against which a writ can lay and actions against which they cannot. (3) A writ of mandamus can lay against the Secretary of state in this particular case. In reaching this conclusion, the court examines whether (a) Marbury had a right to the commission granted to him, and (b) whether withholding that right is the sort of harm that can only be redressed with the application of a writ of mandamus. According to the Court, the Secretary of State has the duty to carry out the orders of the President, with the approval of Congress, had signed the commission, Petitioner Marbury had been officially appointed as the Justice of the Peace. Per the statute in force at that time, with the President’s signature, the commission was irrevocable. The Secretary of State only had two jobs: to affix the Great Seal of the United States (affirming that the signature was in fact the President’s) and to deliver the commission so that the holder of said commission had the proof of his appointment needed to act out the duties of his position. Because the commission had been signed and sealed, the appointment was official and irrevocable. Therefore, (a) withholding the commission was an injury to Marbury’s specific rights to have the job to which he was appointed. Because the Court cannot issue a writ of mandamus to the President, and cannot order him to re-create the missing commission, the only relief that can be given to Marbury is to have the original commission delivered. This can only be accomplished by a writ of mandamus, therefore (b) a writ of mandamus must can lay