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Hillary Clinton’s Foreign Policy Failures

Originally posted at AmericanThinker.Com

Do not be fooled by Hillary Clinton’s attempt to rehabilitate her term as Secretary of State ahead of the 2016 presidential election. From 2009 to 2013, Clinton embodied U.S. foreign affairs even as President Obama’s avowed policy of self-effacement descended into listless, desultory abdication. Notwithstanding her recent critiques of Obama’s performance, Clinton’s failures as Secretary of State helped bring war to Europe, an arms race to Asia, and inferno to the Middle-East. The U.S. and its international standing are weaker for Clinton’s tenure as Secretary of State.

Clinton’s mistakes began early, with her contribution to the misconceived and poorly executed Russia Reset. President Obama campaigned on a sunshine foreign policy platform, and one of his first foreign policy priorities was to improve relations with Russia. Bilateral relations froze when Russia invaded Georgia in August, 2008, and President Bush deployed warships into the Black Sea and facilitated Georgia’s recall of its combat troops from Iraq. Secretary Clinton’s first major assignment was meeting with Russian Foreign Minister Sergei Lavrov in Geneva in March, 2009. They drank, ate, talked, and posed for now-infamous photos in which the pair “pushed” a kitschy, red, plastic button mislabeled with the Russian word for “overcharge” instead of “reset.”

To give substance to the show, Clinton and Lavrov discussed the U.S.’s “flexibility” on plans made during the Bush administration to build installations housing missile defense interceptors in Eastern Europe. Russia vehemently opposes locating interceptors in Eastern Europe, and Poland and the Czech Republic incurred Russia’s wrath for agreeing to host the systems anyway. Six months after the Geneva meeting, the U.S. cancelled deployment of the systems, leaving Poland and the Czech Republic bereft of the economic and security benefits of the installations but still saddled with Russian anger.

In the first of what would become a pattern, the U.S. sacrificed allies’ interests to a rival in the fatuous hope that the rival would feel some sort of gratitude or obligation in return. The Wall Street Journal’s scathing editorial has proven prescient. The Journal warned that bowing to Russian pressure would only encourage it to demand ever more concessions and that “[n]ext time, perhaps, the West can be seduced into trading away the pro-Western government of Georgia, or even Ukraine.” The Journal continued that “inclusion in NATO and EU was supposed to have [ended great power use of Eastern and Central Europe as bargaining chips], but Russia’s new assertiveness, including its willingness to cut off energy supplies in winter and invade Georgia last year, is reviving powerful fears.” The Journal and a litany of foreign policy commentators rightly predicted that Putin would take such gestures only as an invitation to aggression.

Five years later, Russia’s annexation of Crimea is a fait accompli. Russian armored vehicles and tanks have moved across Ukraine’s border and it is unclear if East Ukraine will fall to rebels leavened with Russian Special Forces. Reports from late August indicate Russian paratroopers have been captured in Ukraine.

As was the case to a lesser degree in Georgia, the impetus for Russia’s invasion of Crimea and other aggressive behavior in Ukraine was Ukraine’s popular revolt against a Russian client government in favor of joining Europe. NATO’s failure to respond in any meaningful way not only raises doubts about the wisdom of nations from the former Soviet sphere orienting with the West, it has called into question the alliance’s very viability. If Russia moves on against the Baltic States, will NATO respond? In a contest of perceptions, does Russia think the U.S. and its allies will rouse themselves to meet their treaty obligations for some frozen, little country so far from core Europe?

Since 2009, Russia has also violated missile and nuclear test ban treaties, cracked down on domestic dissent, de facto criminalized homosexuality and sent nuclear bombers on sorties off the U.S. mainland. In 2010 and 2011, Clinton was deeply involved in the negotiations that culminated in the New START treaty and rewarded Russia for armament cuts it was making already. The new treaty provided no recognizable benefit to the U.S. other than political cover for the Obama Administration to cut U.S. nuclear weapons stockpiles.

Clinton has called the Russia Reset “brilliant.” It is a debacle.

The 2011 “pivot” to Asia has proven as bad. In theory, it meant refocusing American foreign policy on the tandem issues of China’s emerging military challenge and the region’s robust economic growth and importance. China’s impression that the pivot entailed a robust containment strategy is not all wrong. But in practice it has meant further abandonment of European obligations and abdication of responsibilities in the Middle-East without discernible benefit.

Perversely, the pivot may have destabilized Asia and damaged security. The U.S. declared its intention to bolster military capacity in Asia, but increased deployments haven’t materialized and the Department of Defense has said they “can’t happen” due to plummeting Department of Defense budgets. Promising to strengthen the U.S.’s military position in Asia and then admitting the inability to carry through projects weakness and invites challenge.

Recognizing the military incapacity implied by Obama and Clinton’s Potemkin Pivot, China has aggressively asserted specious territorial claims. Under China’s “Nine-Dash” policy it claims exclusive economic rights in approximately all of the South China Sea. The precise coordinates of the nine dashes bounding China’s claims are not public, but they decidedly exceed China’s legal boundaries and encroach on Japan’s, Vietnam’s and the Philippines’s internationally recognized rights.

To substantiate its demand for exclusive rights in international and foreign waters, China has built and annexed new islands and claimed existing islands already belonging to its neighbors. These fabricated “Chinese” territories give a patina of legitimacy to China’s nine-dash claims because, if legitimate, China would have economic rights to a zone surrounding those territories.

Challenged by China’s ruse and bereft of a U.S. counterbalancing force, Japan, the Philippines and Vietnam, the primary victims of China’s expansion, are acquiring arms to fight back. The badly-overmatched Philippines and Vietnam have already clashed with the Chinese Navy and its sea-going irregulars. The Philippines are now acquiring obsolete U.S. frigates explicitly to establish a minimum deterrent against China. Japanese Prime Minister Shinzo Abo has generously reinterpreted Japan’s constitution to allow robust military acquisitions and actions for the first time since the end of World War II.

In both the Russia Reset and the Asia Pivot, Obama and Clinton naively believed that they were uniquely able to woo or cajole Russia and China, even where administrations before them had failed. Instead, responding to signals that the U.S. lacks either the ability or fortitude to stand against them, Russia and China are both literally expanding, acquiring new territory at the expense of Western-oriented U.S. allies. Those allies and others similarly situated no longer assume the U.S. is capable of – or even interested in – meeting its foreign obligations, and are understandably looking for other means of protecting their own interests.

But while shrinking from geopolitical rivals in Russia and China is a severe error, Clinton and Obama’s most lasting legacy may be the slaughter in the Middle-East. Clinton was Secretary of State when the U.S. pulled all troops out of Iraq, the first inexplicable and obvious mistake that opened the door for the Islamic State (“IS,” a/k/a the Islamic State of Iraq and Syria (ISIS), a/k/a the Islamic State of Iraq and the Levant (ISIL)). IS began as an insurgent group in Iraq, a former al-Qaeda affiliate supposedly ostracized for being too extreme. Once U.S. troops left Iraq in 2011, IS expanded rapidly.

Clinton now claims she opposed Obama’s decision to withdraw all troops from Iraq. Some insiders corroborate parts of her story, including James Jeffrey, who was Ambassador to Iraq at the time. However, Obama’s rationalization for the precipitate troop withdrawal was that there was no Status of Forces agreement between the U.S. and Iraq, and leaving troops on the ground without such an agreement created legalistic dangers to U.S. troops to go along with the kinetic ones. While Clinton has blamed Iraqi Prime Minister Nouri al-Maliki for failing to reach an SFA, it was her job as Secretary of State to negotiate an agreement and she failed to do so.

The premature U.S. withdrawal left other gaps filled by adverse forces. As violence ramped up after the U.S. departure, U.S. influence over the Maliki government evaporated and Iran stepped into the void. Absent U.S. pressure and guidance, Maliki’s sectarianism asserted itself and he denied Sunnis access to meaningful participation in government, whereas American presence and pressure would have pushed broad inclusion. The excluded Sunni leadership, in turn, was more receptive to IS.

Across the border in Syria, too, IS seized power because there was no substantive opposition force. Early in the Syrian Civil War a multitude of rebel groups jockeyed for men, arms and support, and the U.S. remained aloof of any of them. As Clinton told Jeffrey Goldberg, “the failure to help build up a credible fighting force of the people . . . left a big vacuum, which the jihadists have now filled.” The articulated reason the U.S. never provided substantial arms or materiel to help create a credible fighting force was that the U.S. did not have strong enough relationships with the rebel groups to feel confident that arms used against Assad would not someday be turned against the U.S. or its allies. As head of U.S. foreign missions, Clinton again bears responsibility for failing to create and foster those predicate relationships.

Allowing IS’s rise and the resultant carnage in Iraq and Northern Syria does not even touch on the horrors of the Syrian civil war itself. Hundreds of thousands have been killed. Millions displaced across borders to Jordan, Lebanon, Turkey and even Iraq threaten to further destabilize those countries. Assad has targeted civilian populations, used chemical weapons, and systematically raped, tortured and murdered. Despite intermittent reports that the U.S. would arm rebels, the U.S. still has done nothing of substance to bring Assad down.

At root, Clinton simply miscomprehended the conflict itself. More than two years ago, Clinton said “[i]t should be abundantly clear to those who support [Syrian President Bashar al- Assad’s] regime [that] their days are numbered.” If she had been right, and the Assad regime had collapsed in late 2012 or early 2013, IS may never have expanded into Syria, never consolidated anti-Assad forces under its banner, never gained notoriety, fame and growing international Islamist support. Without a base in Syria, IS may never have returned to terrorize Iraq. Maybe if Clinton were correct in her stated assessment of the Syrian war, IS would never have grown into the force it is today.

But Clinton was flat wrong, with horrific consequences she cannot run away from. Due to the administration’s combined failures of abandoning Iraq and abstaining from any practical role in Syria, the IS’s self-declared Caliphate now stretches across great swaths of both countries and threatens Lebanon, Jordan and Israel. IS is systematically destroying kafir holy sites, recently eradicated the nearly 2000-year-old Christian community in Mosul, is trying to exterminate the Yazidis, and is pressing Kurdish forces hard. The situation today is so dire that U.S. troops have returned to Iraq — without a Status of Forces agreement.

Clinton’s mishandling of the Arab Spring is another recurring theme, though nowhere so bloody as in Syria. In Egypt, decades of U.S. foreign policy reflected the calculation that the stability of an unpleasant but relatively benign strongman was better than the discord and disruption threatened by its near-certain Muslim Brotherhood replacement. In 2011, though, Obama and Clinton backed popular calls for political reform and then criticized President Hosni Mubarak’s first proposals.

Belatedly, Clinton backed off aggressive calls for Mubarak’s immediate departure. The Egyptian Constitution required elections within 60 days from the President’s resignation. The Muslim Brotherhood had been the only organized opposition party in the country for generations and was bound to dominate any snap elections. Clinton therefore called for an orderly “transition” that would allow other parties to organize and compete.

Too late. Mubarak stepped down and the Brotherhood dominated the ensuing 2012 elections. Predictably, the new president, Mohamed Morsi, imposed an Islamist agenda. Having thoroughly alienated the relatively urbane Cairenes within a year, Morsi was overthrown in a popularly-support military coup led by General Abdel Fatah al-Sisi. Sisi was elected President earlier this year.

There remains a chance that Sisi will transition to democracy, perhaps on the pre-Erdogan Turkish model in which a strong military is the guarantor of secular democracy. Steady, confident U.S. leadership would be critical, though, and the U.S. has shown neither constancy not trustworthiness in Egypt. Obama and Clinton criticized Mubarak’s slow reform, then backed a tempered transition, then supported free elections when Mubarak resigned, then backed Morsi even after the population turned against his extremism, then condemned Sisi’s overthrow of Morsi even though the population supported it. Pew polling shows favorable views of the United States among Egyptians have fallen from 27% in 2009 to 10% today. The U.S. generally and Clinton personally have precious little credibility or goodwill in Egypt.

The instinct to support democracy abroad is a good one, but Clinton and Obama failed to distinguish between democracy in name and democracy in practice. There was good reason the Egyptian military and U.S. policy makers have long opposed the Muslim Brotherhood. Time after time Islamist organizations have taken power through elections and never left, repressing popular opposition and fomenting violence abroad. Egypt and the Obama Administration needed only look next door to the Gaza Strip, where Hamas (the Brotherhood’s Palestinian Branch) won an election in 2006 and has not allowed one since, choosing instead to militarize the territory and lob missiles at Israel. Clinton and Obama failed to recognize that the Brotherhood would abuse instead of embrace democracy.

In Libya, too, Clinton and Obama failed to foresee and prepare for the repercussions of decapitating the regime. Muammar Qaddafi was a cruel, evil man, an avowed enemy of the United State, and a terrorist. Nobody questions the decision to back his overthrow. But the United States never had a coherent plan in Libya, and leading from behind turned out to mean feckless spectating.

In the absence of a sustained Western influence, Libya has foundered. Once Qaddafi was gone — tortured, sodomized and murdered by the rebels — an Islamist insurrection began almost immediately. The U.S. Embassy in Libya, headed by Ambassador Christopher Stevens, requested additional security both at the Embassy in Tripoli and at the exposed consulate in Benghazi. Those requests were not honored.

On September 11, 2012, Stevens and three others Americans were killed when the Benghazi consulate and a nearby CIA annex came under coordinated attack. In the days following, Susan Rice, the U.S. Ambassador to the United Nations, claimed the attack was a spontaneous response to an obscure internet video. That claim was false. While the White House and State Department have not disclosed what they knew and when, the U.S. government knew in real time that Benghazi was a well-planned, coordinated attack and not merely a spontaneous demonstration gone terribly awry.

Benghazi itself was not a foreign policy failure, it was a terrorist attack. However, Clinton’s mistakes contributed both to the attack and subsequent government evasions. Clinton’s inability to foresee and prevent Libya’s descent into a terrorist safe haven is certainly a foreign policy failure. Otherwise, Benghazi is more a leadership failure. Clinton’s State Department failed to provide the additional security Ambassador Stevens requested and he and three others were murdered. Clinton failed either to properly educate Rice or to rein her in, and she attempted the video ruse. That is a leadership failure. When Mrs. Clinton later railed, “what difference . . . does it make” whether the attack was premeditated or spontaneous, it was deplorable hubris.

Meanwhile, fighting has reached Tripoli and Libya’s neighbors are now actively involved in preventing yet another failed Islamist state from arising.

At the opposite end of the greater Middle-East, Clinton and Obama failed to capitalize on a once-in-a-generation opportunity in Iran. Since its inception, the self-styled Islamic Republic of Iran has opposed the U.S. in every way. The Iranian revolution was consciously anti-American and post-Shah Iran’s first great act was kidnapping US diplomats in 1979. Since then, Iran and its Hezb’allah terrorist arm have conducted terrorist attacks against the U.S. and its allies, and more recently armed and trained insurgents killing U.S. troops in Iraq and Afghanistan.

One reason for optimism on Iran has been the disconnect between the mullahs and the Iranian population. Before the revolution, Iran was quite Westernized, and it has long been gospel in Foggy Bottom that the Iranian population is among the most pro-American in the world.

At last, in 2009, the tension between the anti-U.S. Iranian leadership and pro-U.S. Iranian population tore open. Ultra-radical Mahmoud Ahmadinejad was declared the winner in his reelection bid, but all three of his opponents claimed the election had been rigged. Protesters took to the streets in unprecedented numbers and staying power.

Yet the US did nothing. There were no pronouncements about the universal right to free expression and representation, no admonitions that Iran should abide the will of its people. There was no effort whatsoever to help the Iranian population improve their own lives and at the same time lessen the threat of terror and war in the Middle-East.

Isolated and unsupported, the protesters were crushed. The Iranian Revolutionary Guard Corps and its Basij militia beat, raped and murdered the protesters into submission. The Green Revolution died with the protesters.

Ahmadinejad proceeded to quite a successful second term at Clinton’s, Obama’s and the United States’ expense. He duped Obama and Clinton into deferring nuclear sanctions and meanwhile expanded Iran’s nuclear program. He consolidated Iran’s control and influence in Iraq and deployed troops and irregular assets to wage Assad’s war in Syria.

None of the various explanations for Obama and Clinton’s failure to support the Green Revolution is adequate. Some have opined they worried U.S. support for the protesters would inadvertently undercut the opposition by giving credence to regime accusations that they were Western stooges or CIA plants. Others have suggested more plausibly that Obama and Clinton simply prioritized “engagement” with Iran and believed that support for the protesters would undercut nuclear negotiations and the bizarre hope that Iran would help resolve the Israeli-Palestinian conflict. Whatever rationale they embraced at the time, Obama and Clinton squandered a unique opportunity to support democratic reform at the expense of an implacable theocratic enemy.

Clinton failed to understand and address myriad other international developments. On her watch, Boko Haram grew from a local disputant to a regional threat in West Africa, while al-Shabaab expanded in East Africa, and the Taliban resurged in Afghanistan. Venezuela remains benighted by incompetent socialist oligarchs and ruinous economic failure despite Hugo Chavez’s long illness and death. The U.S. angered England by abandoning longstanding policy (again) and seeming to back Argentina in the dispute over the Falkland Islands. Israel repeatedly found itself strong-armed into poor positions by the Administration’s headlong pursuit of an ephemeral deal at all costs.

While the vast majority of Clinton’s mistakes were criticized contemporaneously, some of them are admittedly made with the benefit of hindsight. However, Clinton wants to be President of the United States and appears intent on claiming her stint as Secretary of State as a qualification. And the U.S. deserves a successful president and foreign policy apparatus. That means understanding the cascading repercussions of seemingly isolated decisions; soberly assessing foreign counterparts’ good or bad intentions; quickly putting unfolding events into broader context and answering difficult questions correctly the first time even when the facts and circumstances are murky. Like any other assignment, good foreign policy must ultimately be judged by the results. As Clinton indulges hindsight revisionism at Obama’s expense, it is fair to ask why she didn’t live up to minimum expectations.

Yes, Clinton was merely a cabinet member, but all of the aforementioned mistakes fell squarely within her portfolio. If Clinton disagreed with Mr. Obama’s decisions, why did she fail to persuade him? Why didn’t she make the case more forcefully? More publicly? More successfully? Why didn’t she reach an agreement with Nouri al-Maliki? The Syrian rebels? Why did she pursue the reset debacle? Why did she back the failed pivot? Why were allies repeatedly left aghast as the U.S. took harmful decisions without consultation or forewarning? To the extent she was a dupe or merely the titular Secretary while somebody else wielded real power, why did she allow herself to be coopted? Why didn’t she do something?

No, Secretary Clinton is responsible for four years of U.S. backsliding on the world stage. It was her job to observe and interpret foreign events, advise the President, and formulate and execute policy to benefit the U.S. and its allies and confound U.S. enemies. It does not matter which component of her responsibilities she failed; the record is clear that U.S. foreign policy collapsed on Clinton’s watch and the world is a far more dangerous and far less free place as a result.

There Is No Middle Ground With The Islamic State

The scale of the Islamic State’s (IS) brutality against dissenters across swathes of Syria and Iraq give the West yet another opportunity to accept and embrace the civilizational conflict between Islamists and the modern world order. Since at least the 1960s and especially under the Obama Administration, a growing portion of Americans and Westerners generally have believed that humanity’s universal and inherent goodwill make any quarrel reconcilable with adequate discussion. While the fallacy has long been apparent, it has rarely been illustrated with IS’s tremendous alacrity.

IS’s basic motivation is establishing, or re-establishing, the khilafa – the Islamic Caliphate. According to IS’s brand of Islam, allowing the kafir – the unbeliever – to rule in any land that once was ruled by Islam is an offense to Allah. In this interpretation, once land has become part of Islam – dar ul-Islam – it rightly remains so in perpetuity. Thus IS requires all Muslims to wage war to “restore” the Caliphate, which shall include all of dar ul-Islam, which in turn is coextensive with Islam’s farthest expansion. IS proposes to undo at least 500 years of history, as it would claim the Iberian peninsula (Spain and Portugal), Eastern Europe to the gates of Vienna, the Caucuses, North Africa, parts of Italy and Sicily, and all of Central Asia, South Asia, Southeast Asia and the Indian Subcontinent.

For IS, any and all means are permissible for reestablishing the Caliphate. IS perpetrates mass executions, enslavement, kidnapping and forced marriages to eliminate potential enemies. Those who refuse to convert are executed. Mosul has no Christian population for the first time in 2000 years. IS razes Christian and non-conforming Muslims’ shrines, whether as anathema in-and-of-themselves, or to deprive dissenters of rallying points and hope.

In its attacks on other Muslims whom it deems apostates, IS illustrates its own extremism and one of the flaws in Western thought about Islamist terror. IS does not represent all Muslims; neither does al-Qaeda, Hezbollah, Hamas, the Taliban, Boko Haram, etc. These groups often hate one another with equal or greater passion than they hate Christians, Jews or anyone else. IS merely arrogates its interpretation as the unique, true Islam and self-identifies as Sunnis. Yet many Sunnis oppose them and Sunnis are but one sect of Islam. There are probably around 1.2 billion Muslims who would reject IS theology. So it is that Syria, Iraq, Iran, and the Kurdish Peshmerga are all battling IS despite often deep hostility to one another.

Despite the diversity of Muslim sects and beliefs, Western leaders insist on purveying the same superficial assessment that Islam should be treated as a benign monolith. Western leaders’ penchant for saying “Islam is…” reflects little but the speaker’s ignorance. Islam is not a religion of peace, of war, or of anything else in particular, even if various sects’ more illiberal adherents think it ought to be. Islam is a varied religion led by men who espouse wildly different interpretations and views. IS and its followers are motivated by an interpretation of Islam not only permitting, but requiring unrestrained violence in the name of Islam.

The Western world has no modern equivalent of such religious fanaticism. Europe’s religious wars essentially ended with the enlightenment, albeit with latent patches of religious violence and continuing socio-political battles along sectarian lines. Religious affiliation of any kind continues to wane in the West and committing violence for religious goals is virtually unheard of. There is no ability to internalize that anybody might have religious beliefs so strong, so deep and so harsh that it compels unadulterated violence against nonconformists.

The alienness of unadulterated religious belief that condones violence and ubiquitous rote proclamations that “Islam is a religion of peace” lead Western populations and leaders alike to suffer a sort of cognitive dissonance and avoidance rather than confront the implications of the ongoing, 21st Century religious war. Classical Western ideology holds individual rights including freedom of expression and conscious sacrosanct. IS and discordant other Islamist terrorist organizations believe they are obligated by god to destroy anybody and anything derogating from the universal imposition of their own interpretations of Islam. There is no common ground; only one civilizational principle can survive.

John Boehner and John Roberts, Meet John Marshall

Originally posted at American Thinker

If and when House Speaker John Boehner sues the President, John Roberts and his colleagues on the Supreme Court will confront a challenge that has bedeviled the judiciary for more than 200 years. When the executive disregards constitutional limitations on its own power, what can the Court do about it?

When confronted with the issue in Marbury v. Madison in 1803, then-Chief Justice John Marshall enhanced the Court’s power and prestige by declining to issue an order the executive might refuse to obey. Today’s Court will have to decide whether the Obama Administration’s recidivist disregard for constitutional and legislative limits warrants issuing an order the executive might simply ignore.

Marbury arose under political circumstances as volatile and acrimonious as anything we see today. From 1789 to 1801 Federalists controlled the presidency under George Washington and John Adams. From 1797 to 1801 the Federalists held both chambers of Congress.

But at the turn of the 19th century, Federalist dominance failed. In the 1790s, the French Revolution deeply divided American politics, and opposition to Federalists’ latent monopoly on government coalesced when Washington declared the United States neutral in Europe’s general war of the 1790s and Adams undertook an undeclared naval war against the French. The overwhelmingly unpopular Alien and Sedition Acts, allegedly enacted to bolster national security against French infiltrators and supporters, was seen by many as an effort to suppress anti-Federalist sentiment. Then in the election of 1800, the Federalist ticket split in as Alexander Hamilton ran against the incumbent John Adams.

In the resulting “Revolution of 1800,” the Democratic-Republican party swept into power. Due to a constitutional quirk since rectified, the two D-R candidates, Thomas Jefferson and Aaron Burr, deadlocked in the Electoral College, requiring the lame-duck Federalists in the House of Representatives to break the tie. The Federalists generally supported Burr, but Hamilton worked tirelessly against him, contributing to a prolonged deadlock in the House. It took thirty-six ballots, but eventually Delaware Federalist James Bayard switched his vote from Burr to Jefferson, giving Jefferson the election. Burr killed Hamilton in a duel less than four years later.

Before the new president and Congress were sworn in, the Federalists packed the courts. First, the Federalists enacted the Judiciary Act of 1801, creating new District Courts and Circuit Courts, adding judges to the Circuits, reducing the number of Supreme Court justices and empowering the president to appoint federal judges and Justices of the Peace. On March 3, 1801, the day before leaving office, Adams appointed what become known as the “Midnight Judges” to fill the new positions. On March 4, the last day of the Adams presidency and the 6th Congress, the Senate approved the Midnight Judges appointments.

John Marshall was a staunch Federalist and Adams ally. He was Adams’ Secretary of State from June, 1800, until the Federalists left office on March 4, 1801. He was also Chief Justice of the Supreme Court from January 31, 1801, to July 6, 1835, making him both Secretary of State and Chief Justice at the time of the Midnight Judges appointments.

In his role as Secretary of State, Marshall was charged with actually delivering the commissions to the Justices of the Peace approved by the outgoing Federalist Senate. Perhaps serving in two of the most important roles in the country simultaneously was too much, as Secretary Marshall did not deliver all of the commissions and left some number in the desk in the Secretary of State’s office.

Once sworn in, Jefferson set about undoing the Federalists’ court-packing scheme. One of his first steps was ordering Levi Lincoln, the stand-in Secretary of State until James Madison arrived in the District of Columbia, not to deliver the neglected commissions. Then the Judiciary Act of 1802 reversed the Judiciary Act of 1801, so the courts’ governance reverted to the Judiciary Act of 1789. The Judiciary Act of 1802 also cancelled the Supreme Court’s entire term for the second half of 1802.

One of the commissions that Secretary Marshall neglected to deliver and that was subsequently withheld by Jefferson, Lincoln, and, once he arrived on the scene, Madison, was slated for William Marbury. So Marbury sued Madison.

And Marbury sued Madison directly in the United States Supreme Court. Under the Judiciary Act of 1789 — again in force thanks to the D-Rs reversing the Judiciary Act of 1801 — the Supreme Court had original jurisdiction over writs of mandamus. Generally, a writ of mandamus requires or forbids a government entity from doing something or failing to do something. Marbury sought a writ of mandamus requiring delivery of his commission.

Federalist Marbury was asking Federalist Marshall to order D-R Madison to deliver the commission Secretary Marshall himself had failed to deliver; the D-Rs controlled the entire legislative function, had already prorogued an entire Supreme Court term, and by all indications were willing to hamstring the Federalist-controlled courts altogether.

Chief Justice Marshall responded with arguably the most important decision in U.S. judicial history, addressing two critical questions. First, the Court held that a political officer cannot refuse to perform a specific, legally defined obligation, notwithstanding any Presidential order to the contrary. In Marbury, once the commission had been signed, the Secretary of State’s duty was to stamp it and deliver it:

This is not a proceeding which may be varied if the judgment of the Executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the Secretary of State to conform to the law . . . He acts, in this respect . . . under the authority of law, and not by the instructions of the President.

As a result, Madison was not entitled to withhold Marbury’s commission.

Second, though, the Court held that it did not have the power to order Madison to deliver Marbury’s commission because the Court lacked original jurisdiction over Marbury’s suit. Without too much of a foray into the minutia of constitutional syntax, Chief Justice Marshall held that the Constitution precludes expanding the Court’s original jurisdiction, and therefore the Judiciary Act clause purporting to grant the Court original jurisdiction over complaints seeking a writ of mandamus was void. Since the Supreme Court lacked jurisdiction over Marbury’s suit, the Court could not issue the requested writ.

Chief Justice Marshall is often credited with creating judicial review by voiding an act of Congress in Marbury, but that is not entirely accurate. Judicial review existed in English common law and was discussed favorably at the constitutional conventions. However, Marbury is the first time the Supreme Court negated an act of Congress, thereby giving judicial review firm precedential footing.

Establishing judicial review was a major victory for Chief Justice Marshall and for the Court. That goal explains two peculiarities about Marshall’s decision. First, jurisdiction over a case is usually and properly determined at the beginning of a decision, since jurisdiction is a predicate to deciding the merits of a matter. In Marbury, only the holding that the Court lacked jurisdiction is binding, and the discussion of executive officers’ obligations is non-binding dicta. Chief Justice Marshall likely opined on Madison’s lawlessness first because he wanted to support his fellow Federalists, even though he then rendered his opinion moot.

Second, if Marshall wanted to help his fellow-traveler and redeem his own mistake, why did he cast off his own power to do so by negating the Court’s original jurisdiction? There are many good reasons, actually. The constitutional interpretation in Marbury is objectively and generally accepted as the correct one; Chief Justice Marshall probably did not want long, tedious original jurisdiction matters diluting the Court’s appellate powers; securing judicial review required voiding the Judiciary Act of 1789 and so sacrificing Mr. Marbury’s commission.

In considering a potential Boehner suit, Chief Justice Roberts may be thinking of another reason Chief Justice Marshall disclaimed the Court’s jurisdiction in Marbury. The Court has no independent means of enforcing its orders. It relies on the executive. If Marshall issued a writ of mandamus ordering Madison to deliver Marbury’s commission, Madison might have refused. Marbury could have turned to the executive, but Thomas Jefferson was not predisposed to empower a Federalist at Madison’s expense. Issuing an order that Madison and Jefferson might ignore risked undermining the Court, the Constitution and the republic.

Now recall that Speaker Boehner’s proposed suit would allege precisely that the executive is ignoring another branch’s constitutional powers. A court order would either require or forbid the President’s doing something, whether it be unwinding past encroachments or refraining from future ones. But the Court is no more able to enforce such a decision today than it was two hundred years ago. No, President Obama is abusing the executive’s exclusive ability to change facts on the ground, and the judiciary cannot force him to stop or undo his overreach.

Nevertheless, there are good reasons for the Court to risk today what Chief Justice Marshall refused to risk in 1803. Chief Justice Marshall’s concern for the Court’s well-being is moot in 2014, as Judicial review and the Court’s prestige are well and deeply established. While having an order ignored would highlight the Court’s limitations, it would not undermine the institution as Chief Justice Marshall might have feared. Indeed, if President Obama ignored a Supreme Court order, it would damage him and his party far more than it would damage the judiciary.

In addition, the merits of a potential Boehner suit leave little room for maneuver. Chief Justice Roberts has been pilloried for his 2012 decision in National Federation of Independent Business v. Sebelius, which upheld Obamacare by transmogrifying a fine into a tax. Consistent with precedent and deference to the more democratic branches of government, that decision reflects the Court’s reluctance to interfere with legislation when there is any Constitutional basis upon which to uphold it. But while Sebelius may have required strained reasoning, there is no reasoning upon which Mr. Obama could constitutionally rewrite the explicit deadlines in Obamacare or negate provisions in immigration law. Chief Justice Roberts’ deference in Sebelius even enhances his credibility in a Boehner suit.

Finally, the Court has the power and duty to interpret and uphold the Constitution. The Constitution provides that “[t]he judicial power shall extend to all cases, in law and equity, arising under this Constitution, [and] the laws of the United States.” As Chief Justice Marshall wrote in Marbury, “[i]t is emphatically the province and duty of the Judicial Department to say what the law is.” President Obama re-writes and ignores legislation as he sees fit, derogating from Congress’s Article I powers. If the separation of executive and legislative powers is to have any substance, the Court must assert itself and perform its duty to say what the law is, no matter the practical or political challenges.

Incidentally, Marbury never received his commission. Madison succeeded Jefferson as President, elected in 1808.

Jonathan Levin is an attorney and blogs at punditryandpontification.com