Marbury, Hayburn's Case, and the Separation of the Judicial and Executive Powers

Abstract

This is an early draft of a working paper. Many aspects of the holdings in Marbury v. Madison and Hayburn's Case, two famous early instances of federal courts refusing to give effect to unconstitutional congressional statutes, can be better understood by viewing the cases in the context of the executive functions previously exercised by courts in Britain and the colonies. Scholars often wonder how the first Congresses could have enacted the laws invalidated in Marbury and Hayburn's Case, given that those laws seem to assign responsibilities and jurisdiction to federal courts that clearly violate the dictates of Article III. The answer, this paper argues, may be that the concept of the power was not yet fully developed in the early American Republic. Courts in England and the colonies exercised a variety of administrative functions, and the British Crown considered courts a subset of the executive apparatus available to administer laws and policies and to supervise officials. This would explain both why Congress may have assumed that federal courts would play a similar role in the new order, and why the federal courts ultimately rejected that assumption as inconsistent with the notion of a distinct and independent judicial power. The new interpretation of Marbury and Hayburn's Case offered in this paper helps to clarify lessons about justiciability and separation of powers doctrines that courts and scholars continue to draw from these and other early cases, particularly with respect to the supervisory powers of the Supreme Court.