UNITED STATES COURT OF APPEALS
For the District of Columbia Circuit
No. 25-5219
BRIEF FOR PETITIONERS
I. INTRODUCTION
This case presents the question whether the Executive Branch may unilaterally suspend a duly enacted federal statute on the asserted ground that the statute conflicts with the Administration's policy preferences. The answer, settled at the founding of the Republic, is no. As Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) established more than two centuries ago, "it is emphatically the province and duty of the judicial department to say what the law is." The Executive cannot displace that duty by administrative fiat.
II. JUDICIAL REVIEW IS A FOUNDATIONAL CHECK ON EXECUTIVE POWER
Under Marbury, 5 U.S. at 177, a law repugnant to the Constitution is void, and the courts have both the authority and the obligation to say so. That principle is not optional — it is the structural premise of Article III and the Supremacy Clause.
The Supreme Court has reaffirmed Marbury's central holding in every era. In Cooper v. Aaron, 358 U.S. 1 (1958), a unanimous Court (with each Justice signing the opinion) confirmed that Marbury's pronouncement is "a permanent and indispensable feature of our constitutional system." State and federal officials alike are bound by federal-court constitutional rulings.
III. ARGUMENT
A. The Executive's Asserted Power Is Subject to Judicial Review
The Executive's position — that this Court lacks authority to assess the legality of the suspension order — was squarely rejected in United States v. Nixon, 418 U.S. 683 (1974). Even when an Executive claim is grounded in the Constitution itself — there, executive privilege — "it is the province and duty of this Court to say what the law is with respect to" that claim. Nixon citing Marbury, 5 U.S. at 177. The Executive's far weaker claim here, grounded only in policy disagreement, cannot escape that same scrutiny.
B. Judicial Review Reaches Even Politically Sensitive Domains
In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court extended Marbury's principle to one of the most politically charged domains of executive authority — wartime detention. The Court held that Congress and the Executive could not strip the federal courts of habeas jurisdiction over Guantanamo detainees. If judicial review reaches that frontier, it surely reaches the routine question of whether the Executive may suspend an enacted statute by memorandum.
CONCLUSION
The Executive's suspension order is invalid as a matter of constitutional structure. This Court should set it aside and order the Executive to enforce the statute as written. Doing otherwise would abandon the judicial duty Marbury announced and the Republic has honored for 222 years.