An article in Friday's editions incorrectly quoted from Marbury v. Madison, the Supreme Court case that established the principle of judicial review of the rest of the government. The citation should have read: "It is emphatically the province and duty of the judicial department judiciary to say what the law is."
A squabble between the executive branch and the judiciary--a sort of poor man's Marbury v. Madison--is under way over the question of what happens to the federal courts when the government shuts down, as it nearly did yesterday.
Simply put, the Justice Department believes that the courts are not "authorized to be in session" when no appropriations have been provided, and has told its U.S. attorneys to seek delays in non-emergency cases in the event of a shutdown.
Lawyers for the judiciary, in turn, have told Justice that whether or not the courts are "authorized" for anything is none of the executive branch's business.
"Nothing will be allowed to prevent the courts from carrying on their work in cases," Chief Justice Warren E. Burger announced in a statement late Wednesday, when he thought the government might close.
The problem is that the U.S. Constitution did not concern itself with such matters as continuing budget resolutions. "The Founding Fathers," said Associate Deputy Attorney General Stanley E. Morris, "never thought that we would be so silly as to inadvertently try to close the government down."
The result has been a rush of legal research on both sides, opinion-writing and exchanges of memos between legal counsel, with no apparent solution.
The judiciary's approach is "far-reaching and seems to authorize continuation of almost all activities," Deputy Assistant Attorney General Robert B. Shanks wrote in a March 24 memo expressing Justice's view that the Anti-Deficiency Act, which says agencies can't spend money they don't have, clearly requires a partial shutdown of the courts along with the rest of government.
The judiciary snapped back. "The constitutional prerogatives of the courts may not be abrogated by a housekeeping statute such as the Anti-Deficiency Act," said the memo by Robert K. Loesche, of the Office of General Counsel for the Administrative Office of the United States Courts.
He even cited Marbury v. Madison, the 1803 ruling that established the principle of judicial review of the government's actions: "It is emphatically the province and duty of the Justice Department to say what the law is."
William E. Foley, the judiciary's top administrator, said that, besides the separation-of-powers issue, it is important to keep the courts open to prevent defendants from escaping judgment because of trial delays. "It's really a speedy-trial question."
Morris isn't so sure of the importance of the debate. "Importance. Honestly? I guess I think it's interesting and perhaps funny. A lighter story."