What Supreme Court case precedent is most relevant to the following hypothetical case?
Toward the end of Gerald Ford’s presidency, a vacancy occurred in the office of the Surgeon General, Dr. Angus Deftfinger. Ford appointed Dr. Fred Fumble. The appointment was confirmed by the Senate. Ford signed the commission. The Secretary of State, Henry Kissinger failed to deliver the commission to Dr. Fumble. Kennedy was inaugurated and refused to direct his Secretary of State to deliver the commission.
Fumble petitioned for a Writ of Mandamus to require Kissinger to deliver the commission. The law concerning the office of the Surgeon General provided once a commission was signed by the President, the Surgeon has a right to the office for five years, independent of the Executive. The appointment was irrevocable.
You are an assistance solicitor general and have been assigned the case of Fumble v. Kissinger.
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The events described in this hypothetical case are almost identical to those that led to Marbury v. Madison. This case is almost invariably remembered as the one in which Chief Justice John Marshall asserted the principle of judicial review by declaring part of a law unconstitutional. But the details of the case are often overlooked.
After Thomas Jefferson defeated John Adams in the presidential election of 1800, the outgoing president moved to put a number of Federalist judges in the federal judiciary. Known as the "midnight justices," these men included William Marbury. Marbury, appointed as a justice of the peace in the District of Columbia, was one of several appointees whose commissions were not delivered by Secretary of State James Madison, who was acting under order from Thomas Jefferson. Marbury petitioned the Supreme Court to issue a writ of mandamus that would have required Jefferson to deliver the commissions. His petition cited a section of the Judiciary Act of 1789 that empowered the Supreme Court to do so.
It should be clear that the scenario that led to Marbury is almost identical to the one described in your question. The Supreme Court's ruling in the case was complex. John Marshall declared that Marbury indeed had the right to receive the commission, and that it was Madison's duty to deliver it. However, he ruled that the Judiciary Act was unconstitutional because it invested original jurisdiction in the Supreme Court. Thus Marshall established judicial review.
The important precedent of Marbury v. Madison for the case mentioned in your question would be that the writ of mandamus could not be issued by the Supreme Court, but rather by a federal district court.
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