Matthew Whitaker's Supreme Court positions are incoherent, may cause constitutional crisis Matthew Whitaker criticized Marbury v. Madison, which granted the Supreme Court judicial review, but agrees when it comes to New Deal legislation.

Andrew Coan and Toni Massaro | Opinion contributors

In a widely reported 2014 interview, Acting Attorney General Matthew Whitaker criticized Marbury v. Madison, perhaps the most celebrated Supreme Court decision in American history. He also criticized the Court’s decisions upholding important New Deal legislation like the Social Security and Fair Labor Standards Acts. These comments have provoked rebukes of Whitaker’s extremism and ignorance of constitutional law, but almost no one has taken them seriously.

That is a mistake. At least for the time being, Whitaker is the nation’s highest ranking law enforcement officer. Besides the president and Supreme Court justices, perhaps no federal official wields more power over Americans’ rights and liberties than the attorney general. If Whitaker still holds the views he expressed in 2014, the implications are profoundly troubling.

Start with Marbury v. Madison. This 1803 decision is the canonical source for the Supreme Court’s power to declare federal legislation — and other governmental acts — unconstitutional. Although Marbury’s immediate impact on constitutional doctrine was modest, by the early twentieth century, the case had acquired its reputation as the very cornerstone of American constitutional law.

Whitaker's ideas may lead to constitutional crisis

Whitaker’s attack on Marbury was thus an attack on the Supreme Court’s well-established power to authoritatively resolve constitutional disputes.

As acting attorney general, Whitaker will have the means to put his contempt for the Court into action. First, he could refuse to enforce the decisions of the Supreme Court or other federal courts. Second, he could order the Justice Department, which includes the FBI, to defy court orders in cases that declare its actions unconstitutional. Either would spark a genuine constitutional crisis.

Recall the travel ban cases. Last June, the Supreme Court upheld a revised version of President Trump’s January 2017 order that critics called a “Muslim ban.” But the original order was far more punitive and several lower courts immediately barred its enforcement. If Whitaker had been acting attorney general at the time, he might have employed a variation of Andrew Jackson’s apocryphal dictum: “The courts have made their decision. Now let them enforce it.”

More: Sessions firing marks end of Mueller deniability for Republicans. Which side are we on?

Trump didn't realize Sessions was helping him by recusing. Now he'll pay for that mistake.

Here are 5 reasons why Matthew Whitaker isn't attorney general material

The term “constitutional crisis” is often thrown around loosely. But this scenario would meet even the most rigorous definition of the term.

Whitaker’s disdain for the New Deal cases is nearly as alarming. These decisions were the product of the nation’s last great constitutional showdown between Franklin Roosevelt and a Supreme Court bent on hog-tying the federal government in the midst of the Great Depression. Eventually, the Court backed down, upholding the Social Security Act and Fair Labor Standards Act. In the subsequent 80 years, the justices have placed a few modest limits on the outer reaches of federal legislative power, but they have never come close to reconsidering the core of the Court’s New Deal decisions.

Those decisions provide the constitutional foundations for federal laws ranging from the Clean Air and Clean Water Acts to the Civil Rights Act of 1964 to Medicare and Medicaid — and a whole lot more. By attacking them, Whitaker was signaling sympathy with an extreme conservative legal philosophy that views most of the modern federal government as illegitimate and unconstitutional.

Whitaker's judicial review position is incoherent

As acting attorney general, Whitaker could refuse to defend any or all of these laws against constitutional challenge. This would not be quite as dramatic as defying a court order. Private parties and the soon-to-be Democratic House of Representatives would step in to defend them. But such a refusal would still shake the federal government to its very foundations.

There is one last, ironic wrinkle. Whitaker’s skepticism of Marbury implies that he believes other branches are better at constitutional interpretation than the Supreme Court. But his rejection of the New Deal cases is actually a call for more aggressive judicial review. This not only makes Whitaker’s position deeply incoherent; it demonstrates his own ineptitude at constitutional analysis, further reinforcing the need for judicial oversight of the executive branch on his watch.

Of course, Whitaker may not act on his dangerous views. Other pressing issues will demand his attention, and the weighty responsibilities of power often temper ill-considered views expressed from the sidelines. Political factors, too, may lead him to chart a more prudent course. Even if they do not, resistance from within the Justice Department and other figures in its senior leadership could well thwart any truly radical designs. Whitaker’s appointment is also temporary, and he may be replaced by a less dangerous figure before he has time to do serious damage.

But these potential brakes on his extremism are no cause for complacency. The stakes are too high. Whitaker’s appointment is nominally temporary, but federal law allows him to serve for up to 210 days — and even longer if Trump sends a nomination to the Senate during that period. That is more than enough time to do grave damage.

Most discussion of Whitaker’s appointment has focused on the risk that he will kneecap Special Counsel Robert Mueller. But the threat Whitaker poses to the American constitutional order may run far deeper. The president should immediately withdraw his appointment.

Andrew Coan is a professor of law at the University of Arizona and author of the forthcoming book "Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law." Toni Massaro is dean emerita and Milton O. Riepe Chair in Constitutional Law, also at the University of Arizona.