Right, that's where this discussion started. What we are looking at right now is the erosion of that second piece, Congress's power of the purse. The Constitutional checks and balances (not the 20th-century stuff you detail) doesn't work as well without this key Article I power. I have not seen it explained under what principle this power of Congress has been arrogated instead to the Executive.
Marbury vs Madison established the judiciaries authority to review actions of the executive. That was in 1803.
Regarding rule of law, in that opinion:
> When the heads of the departments of the Government are the political or confidential officers of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
1) Isn’t part of the founding sources I mentioned. It was quite controversial at the time.
2) Stands for exactly the opposite of what you’re arguing. Marbury goes to great lengths to disclaim any authority over executive policymaking and discretion, and limit courts to compelling executive officers to act only when the duties are specifically assigned by law and ministerial:
> 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, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.
And even after determining that delivery of the already executed commission is a ministerial act, the Court went out of its way to invoke a jurisdictional escape hatch to avoid actually enjoining an executive officer. A fair application of Marbury would preclude the sweeping powers courts have asserted to micromanage executive action in response to private litigation.
In Marbury, the court ruled that Marbury had already been appointed when the previous president signed his commission, and the only thing that remained was the purely ministerial act of the secretary of state delivering the signed letter that was sitting in the president’s desk. But even then, the Court found a way to avoid compelling the secretary of state to actually deliver the commission! How would the Marbury court view the prospect of a district court ordering the president to turn around military planes being used to deport an admitted El Salvadoran citizen? Or district courts ordering the President to reach out to a foreign country’s president to demand the return of that foreign country’s citizen! The Marbury court wouldn’t have dreamed of it!
What Marbury stands for is that the judicial branch can declare the legality of laws and executive actions, but should bend over backwards to avoid actually compelling the executive to perform any action.
The primary check on the President is elections, not “the law.” Secondarily, there’s impeachment, and Congress’s power of the purse. Those are the main checks on the executive.
We have this 20th century conception of “the rule of law,” where we imagine this neutral, independent “justice system” as the base layer on top of which the elected branches operate. Like the lowest level of an operating system kernel. But if you look at the debates at the constitutional convention, and read the federalist papers and anti-federalist papers, that’s not the system the founders actually created. The founders didn’t trust anyone to neutrally enforce the law. You won’t find anywhere in those primary sources where the founders envisioned some “rule of law” where private litigants use the court to micromanage executive policy.
Instead, what we have is a game of rock-paper-scissors, where no branch is assumed to be “independent” and no branch is a “base layer of the operating system.” Courts can declare the law, but can’t force the President to do something. But if the President doesn’t listen to the court, he can be voted out of office, or impeached, or Congress can withhold funding for the administration. That is a complete system of checks and balances as it is.