Marbury to Musk: The Executive and Judiciary's Centuries Old Tug of War

By Ritha Igout
Ritha Igout is a freshman studying International Relations and History in the College of Arts and Sciences interested in going to law school.  
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The relationship between the U.S. judiciary and executive has been marked by centuries of precarious protests over power. As the first nation to address Montesquieu’s concerns and successfully establish a large republic, the U.S. is often seen as a model of federalism. Much of this success stems from the separation of powers, a balance carefully curated by the quasi-sanctified Constitution. Although effective, the Constitution leaves many areas open to interpretation. These gray areas have fanned the flames of political debate for centuries, with one of the most persistent battles being the tug-of-war between the judiciary and the executive. With recent executive orders and Supreme Court decisions raising this issue to the surface once more, the question of power–and how much each branch should have–becomes more salient than ever. ​

In contemporary politics and law, the word of the Supreme Court has become a law unto itself. Yet, the Supreme Court’s power to shape U.S. law faces much criticism. Critics find fault in the unelected nature of the Supreme Court, arguing that appointing judges without popular sovereignty and guaranteeing life tenure goes against the democratic process. Why should unelected judges be able to rule that laws made by elected officials are unconstitutional? This critique of the Supreme Court’s most infamous power, judicial review, is not without its merits. However, the Court did not always have this power. The founding fathers, upon the inception of the Constitution, left a startlingly large amount of gray area when it came to the judicial branch. Article 3, which grants the judiciary its powers, is the shortest article in the Constitution. It mainly creates the Supreme Court, gives the Court original jurisdiction over international and interstate affairs, and grants provisions for the legislature to establish courts [1]. Nowhere in the Constitution is the Supreme Court vested with the power of judicial review.

Judicial review in the early Republic was a debated topic. Anti-federalists like Thomas Jefferson argued in a letter to Abigail Adams that “the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch [2]." His staunch political nemesis of the time, Federalist Alexander Hamilton, disagreed. In Federalist 78, Hamilton claimed that the Constitution was the apex of democratic will, and that laws that did not follow the Constitution were void to begin with. He argued that the people needed an independent judiciary with the power of judicial review in order to arbitrate between the masses and the legislature. While Hamilton supported judicial review, he also acknowledged its limitations [3]. Unlike the executive, the Supreme Court is a reactive rather than an active body;  it cannot enforce its rulings and can only decide on cases brought before it. This paradox–wielding significant power while lacking the authority to enforce–has made the judiciary a focal point of executive scrutiny. 

Round one between the judiciary and the executive unfolded in Marbury v. Madison, the court case that granted the Supreme Court the power of judicial review. In litigation between two administrations over the validity of a judicial commission, Chief Justice John Marshall found a way to solidify the Court’s authority. While he ruled that William Marbury deserved his commission, he also determined that the Court lacked the power to issue a writ of mandamus to enforce it. Marshall argued that the Judiciary Act of 1789, which granted the courts this power, was unconstitutional because Article 3 did not allow the Supreme Court to issue the writ [4]. Marshall managed to please President Jefferson by denying his political opponent’s appointment while simultaneously establishing the precedent of judicial review for the Supreme Court.
 While the judiciary won the first round, its authority was challenged in the 1832 case Worcester v Georgia. In this ruling, the Supreme Court affirmed the sovereignty of Native nations [5]. However, President Andrew Jackson refused to comply. Jackson is famously quoted saying “John Marshall has made his decision; now let him enforce it,” but his actual words were: “The decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate [6].” This case was one of the few times in American history where judicial power fell to deaf ears in the face of the executive. 
However, similar tensions have emerged in recent years, particularly under the Trump administration. Humphrey’s Executor v. United States, for instance, has been particularly relevant in contemporary political disputes. This 1935 case saw the Supreme Court decide that the President could not fire employees of independent government agencies without reason. The precedent set by Myers v. United States, however, still stands, allowing the President to fire whomever he wishes within the executive departments [7]. 

With Trump’s enthusiastic start to his second term, the public consciousness once again questions its faith in the balance of power. Since the start of his term, courts have blocked Trump’s efforts to end DEI programs, fire ethics watchdogs, and revoke birthright citizenship. On the other hand, the courts have also denied numerous requests by students, unions, and states to prevent Elon Musk’s Department of Governmental Efficiency (DOGE) from accessing sensitive government information from agencies like the Consumer Financial Protection Bureau and Departments of Labor and Health and Human Services [8]. This unprecedented access to government information and Treasury Department funds has left many jobless. Veterans, scientists, and other federal employees who considered themselves immune to Trump’s mass layoffs now find themselves in a state of limbo as Trump and the judiciary hash it out in court [9]. 
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Despite judicial challenges to some of Trump’s policies, DOGE is seeing striking success in court. This has spelled worry for many, especially givenVice President JD Vance’s recent remarks, stating that “judges aren’t allowed to control the executive’s legitimate power [10].”  In a practically prophetic statement he gave on a podcast in 2021, Vance argued Trump should “fire every single mid level bureaucrat, every civil servant in the administrative state, replace them with our people. And when the courts–because you will get taken to court–and when the courts stop you, stand before the country like Andrew Jackson did and say: ‘The chief justice has made his ruling. Now let him enforce it.’” Although his statements were made in the context of the Supreme Court challenging the President’s constitutional authority as commander in chief, they remain especially worrisome in light of the Trump administration’s mass layoffs, federal funding freezes, and legal battles over efforts to end birthright citizenship. Whether the judiciary will allow Trump and Musk to proceed unchecked or intervene through judicial activism is anyone’s guess. In the meantime, America waits with bated breath as another round of executive v. judicial tension tug of war unfolds–with the future of government hanging in the balance. 
The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

Bibliography
[1] https://constitution.congress.gov/constitution/article-3/ 
[2] https://famguardian.org/Subjects/Politics/ThomasJefferson/jeff1030.htm 
[3] https://guides.loc.gov/federalist-papers/text-71-80#s-lg-box-wrapper-25493470 
[4] https://www.oyez.org/cases/1789-1850/5us137 
[5] https://www.oyez.org/cases/1789-1850/31us515 
[6] https://www.georgiaencyclopedia.org/articles/government-politics/worcester-v-georgia-1832/ 
[7] https://www.oyez.org/cases/1900-1940/295us602 
[8] https://www.forbes.com/sites/alisondurkee/2025/02/21/major-lawsuits-against-trump-and-musk-judge-halts-trumps-dei-contract-ban-for-now/ 
[9] https://www.npr.org/2025/02/24/nx-s1-5305717/trump-layoffs-federal-workers-chaos 
[10] https://www.nytimes.com/2025/02/09/us/politics/vance-trump-federal-courts-executive-order.html