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Imperial Branches

Thursday, March 2nd, 2017

Gary J. Schmitt

February 27, 2017 | The Weekly Standard


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.

It would help in this particular instance if the president were not confusing his branch’s constitutional and statutory arguments with inflammatory tweets and schoolyard name-calling about the character of the judges involved. But the idea that previous presidents have not had serious, even angry, tangles with the judiciary is nonsense. And not all have followed the orders given in a court decision.

Thomas Jefferson, for example, ignored a circuit court ruling that challenged the president’s authority to instruct customs collectors to prevent ships carrying certain cargoes from moving along the coast, instructing customs officials to do as he told them. And, far more significant, Jefferson, frustrated by a federal court system populated with Federalist appointees to the bench, was determined, according to his Senate whip, to use the tool of impeachment “for the purpose of giving” those seats “to men who will fill them better.”

Andrew Jackson, the president most often compared with Donald Trump, did not enforce a court decision in a case involving the state of Georgia’s arrest and jailing of missionaries to the Cherokee Indians living there. The Supreme Court, under Chief Justice John Marshall, found that Georgia had acted against both the Constitution and the treaties of the United States in arresting the missionaries and ordered them released. It was then that Jackson is reported to have said, “Well, John Marshall has made his decision; now let him enforce it.”

Similarly, when Chief Justice Roger B. Taney declared that Abraham Lincoln did not have the constitutional authority to suspend the writ of habeas corpus (instead, it was Congress’s prerogative) and ordered the release of the arrested Marylander John Merryman, Lincoln refused to let him go and continued to exercise the power unilaterally for another two years.

And while Franklin Delano Roosevelt never acted on his plan to “pack” the Supreme Court by adding additional judges favorable to his New Deal agenda, he was not opposed to defying the Court. In one case, he prepared a radio message to that effect involving the government’s power to drop its gold support for the dollar and, in a second, told his attorney general that he would refuse to comply with a possible writ of habeas corpus involving captured German saboteurs if the Court rejected his decision to create a special military commission to try them under his commander-in-chief authorities.

As Lincoln and other presidents have noted, the president takes a unique oath to “preserve, protect and defend the Constitution,” along with his obligations to “faithfully execute the office of President” and “take care that the law be faithfully executed.” What the Constitution does not say is that a president must preserve, protect, and defend the Constitution as the federal courts interpret it, or as they interpret his powers and duties.

However, it is also true that a theory holding that each branch is the sole and final judge of its own powers raises the problem of an intra-branch struggle without resolution when those powers appear to, or arguably do in fact, overlap. In the case of the president and Congress—say, for example, in a dispute between a president’s decision to withhold information from the legislature by declaring “executive privilege” and Congress’s need for information for oversight and legislation—the two branches have sufficient tools between them to force the matter to a resolution. That’s less clear in the case of a dispute between the judicial branch and the executive, where, as Alexander Hamilton notes in Federalist 78, the former “is beyond comparison the weakest of the three departments of power.”

The paradoxical answer is that, although “the weakest” of the branches, the Court and the courts have the greatest sway in the public’s mind as the branch most closely associated with upholding the rule of law. As a result, while there have been those instances noted above, most of the time, presidents are judicious in publicly challenging the courts and typically do so only when they believe it is essential. To do otherwise is to stir the anti-monarchical sentiment lurking just below the surface of America’s democracy, leaving the chief executive a singular figure appearing to exercise unconstrained power.

But this pragmatic constitutional dance only works to the extent that judges and justices are seen as “judges” and not governmental censors whose decisions appear to be based more on what they think the right policy is than on a correct reading of the law. As a matter of their own discipline, judges have, among other things, insisted on placing limits on who can bring a case before a court (“standing”), left so-called “political questions” to be resolved between the president and Congress, and given considerable deference to a common sense reading of laws passed by Congress.

Yet it is precisely these judicial norms that U.S. District Judge James Robart and the Ninth Circuit appeared effectively to ignore in deciding whether to issue a temporary ban on the Trump administration’s immigration executive order. They mainly asked questions about whether there was any justification for the policy itself and then only secondarily came up with the decision that “the Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to an individual’s ability to travel.”

Being watchful of the new president’s wielding of executive power is a no-brainer. His executive style, his abusive language towards elected and duly appointed officials, and his apparent lack of knowledge of the Constitution itself all point to such a need. But it would be a lot easier if the federal courts were not fueling the fire and giving the president easy targets because of their overreach. Playing “Chicken Little” with the Constitution is a recipe for even more constitutional dysfunction and populist disgust with America’s most important institutions.

Gary Schmitt is director of AEI’s Program on American Citizenship.