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Imperial Branches

At times, the dispute between the Trump administration and the federal courts over the president’s executive order on immigration feels more like a WWE SmackDown than a considered statutory and constitutional dispute. Partisan critics of both branches leave one to imagine a sign over the entrance to Constitution Hall, reading “Tonight’s Main Match: ‘The Imperial Presidency’ versus ‘The Imperial Judiciary.’ ”

Such a dispute should not come as a surprise. Both branches have for some time been advancing their authority and reach, stretching respectively the meaning of executive and judicial power. It also shouldn’t come as a surprise since both the judicial and executive powers involve the interpretation and application of the laws—a fact that led John Locke, the political philosopher who first gave us the theory of modern separation of powers, to conflate the judicial power with the executive.

Indeed, if the Federalist Papers’ analysis is correct—that maintaining the constitutional order requires one branch’s ambitions to check another’s—then the occasional spat is to be expected and may sometimes be healthy. The push and pull means that each branch should be relatively clear about what its authorities are and be willing to argue in their defense. For the public, it can be a useful civic reminder that we do live in a constitutional republic.

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