Marbury v Madison is known for establishing “judicial review,” where courts exercise the power to declare laws unconstitutional. But is this a power or duty? An office holder has discretion to exercise a “power,” while an office holder must perform a “duty.” Judges take an oath to support and defend the Constitution (see 5 USC 3331), so it’s not in their discretion to allow unconstitutional laws to be enforced. Thus, courts have a DUTY to take on all cases where unconstitutional laws are being enforced, despite the widespread practice of courts to refuse to handle such tough cases.
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Interesting. I never thought about the difference between discretion and duty before