Balkinization: Departmentalism: What Went Wrong?

Departmentalism: What Went Wrong?

Stephen Griffin

Some might be surprised by my title. What could go wrong with the venerable view that each branch of government must interpret the Constitution for itself? Well, if that’s all it meant, nothing. I’ve always been a strong supporter of the research agenda associated with departmentalism – that it is crucial to study the interpretations of all the branches of government in order to better understand how the Constitution actually works.

But in writing an overview of the law of executive power, I found myself sympathizing more than I had anticipated with what is normally called “judicial supremacy.” This occurred as I became familiar with how departmentalism has been deployed by scholars who might be called “executive enthusiasts.” To be sure, many different scholars (including some on this blog) blazed a trail for departmentalism in the 1980s and few of them had a special agenda to promote executive power. Nonetheless, it now appears to me as if this scholarship, to some extent, helped make more credible the notion of the exclusive or “preclusive” executive advanced by the Bush administration in the “torture memo” and elsewhere.

But why put this heavy freight on the back of departmentalism (also known as “coordinate construction”)? As an interpretive theory, surely departmentalism has no specific affinity for any branch. Rather, it emphasizes the co-equal status of each branch in interpreting the Constitution. Yet the experience of the Bush 43 administration should give us pause. Experience suggests that departmentalism changes when it is operationalized. Advocates of coordinate construction often criticize judicial supremacy. But what if the alternative to judicial supremacy was executive supremacy? Would we still perceive departmentalism as the warm and fuzzy alternative to judicial imperialism?

It is likely that our concept of what it means to be “supreme” in matters of interpretation is in need of rethinking. Similarly, the notion of interpretive “coordinate construction” requires greater scrutiny. But enough preliminaries. How did departmentalism encourage executive supremacy?

In the wake of conflicts in the federal courts over the Reagan administration’s unitary executive agenda and the Iran-contra affair, the link between departmentalism and executive supremacy was established by 1990 in an important article by Judge Easterbrook. Easterbrook essentially argued for executive parity with the Court in constitutional interpretation. But his discussion suggested that in some cases, parity would amount to supremacy. He used questionable historical examples to show that what he termed “presidential review” was already an accepted part of the American constitutional tradition. The general problem with his analysis was that he did not distinguish sharply between examples of presidential action that were made in contemplation of litigation or undertaken to enforce valid federal law and those that involved true defiance of the other branches of government. He listed Andrew Johnson’s violation of the Tenure of Office Act as “[t]he patriarch of cases of defiance.” Yet long before Easterbrook published his article, historians had made it painfully clear that Johnson’s failure to enforce reconstruction measures passed by Congress was one of the most troubling exercises of presidential power in American history. Easterbrook also wrote as if every president had validly objected to the War Powers Resolution (WPR) on constitutional grounds. But it turns out that this was true only of Republican presidents.

The other obvious difficulty with Easterbrook’s proposal was what to say about Truman’s seizure of the steel mills and the Court’s subsequent decision in Youngstown. Followed to its logical conclusion, the idea of presidential review would have entitled Truman to ignore any conflicting statutes on the ground that they unduly interfered with the exercise of his power as Commander in Chief. Easterbrook simply ignored Youngstown. Truman’s compliance with the Court’s decision (as well as Nixon’s compliance in the tapes case) implied acceptance that the Court was in charge of enforcing the Constitution in cases of a conflict between the branches.

Yet Easterbrook’s article (and an article by Mike Paulsen) spawned a forest of cites and further articles designed to show the legitimacy of presidential interpretation, including nonenforcement of laws (like the WPR) already on the books if the current president suddenly decided they were unconstitutional. Once the option of nonenforcement was raised, we were on the road to the hardline anti-Youngstown position taken in the “torture memo” that if a law violated the president’s exclusive authority, it was obviously “unconstitutional,” meaning the president could ignore it, regardless of what the Court said. Thanks to Peter Baker’s book Days of Fire, we know that some in the Bush administration advocated directly defying the Court’s ruling in Hamdan. Luckily they didn’t prevail, avoiding a constitutional crisis. But this shows once again that departmentalism and the doctrine of the exclusive presidency had real world consequences.

The historical roots of departmentalism and presidential unilateralism are, of course, quite complex. Departmentalists have gotten a lot of mileage out of two historical assumptions, both highly vulnerable. First, they have treated the issue of judicial supremacy as if it stands or falls with Marbury, rather than undertaking a deep excavation of the evolution of ideas about the role of the judiciary in the early republic. They have made much of Marshall’s endorsement of coordinate construction in Marbury. But contrary to what many scholars suppose, American constitutionalism was on the road to something like modern judicial supremacy in the nineteenth century. So the more general conceptual problem with this first assumption is that it is possible to make a developmental case for judicial review. I made this argument in my 1996 book, but for a much more detailed and updated version with specific reference to the issue of presidential nonenforcement, check out this well-researched article by Matt Steilen. And on the political science side, this is essentially the argument of Keith Whittington’s fine book, although Whittington is far more favorable to coordinate construction than I am.

Second, departmentalists have brandished Lincoln’s comment about treating Dred Scott as a “political rule” as if it single-handedly created a realistic institutional alternative to what I will call judicial “primacy.” This has led them to at least write as if they believe it would be easy to confine Court rulings to the immediate parties in the case, somehow avoiding the nationwide impact that most Court rulings have.

I will say more about these assumptions, but we need to reboot this inquiry by changing the terms of the discussion in a suitably helpful way. Why are we interested in extolling presidential “review” or slamming judicial supremacy anyway? I suggest the ground-level inquiry is whether and how the Constitution can be enforced. Having adopted the Constitution, we want to vindicate its promise that it will serve as our supreme law. Matt Steilen’s article provides plenty of evidence that the founding generation rapidly concluded that the courts were in the best position to enforce the Constitution. But we should also want to improve our understanding of how the Constitution is enforced in the present.

So I suggest we adopt the concept of judicial “primacy” in constitutional enforcement. People seem to associate judicial “supremacy” with all sorts of undesirable possibilities, like the Court’s interpretations always control the terms of political debate, or the notion that the Court always prevails over contrary political interests and social forces. Bracketing off such implausible positions suggests that what we normally call “supremacy” is more usefully regarded as a byproduct of judicial review by a hierarchal court system whose decisions are regarded by everyone as law. So, judicial “primacy” in interpretation rather than the imperialism connoted by “supremacy.”

Consider how two garden-variety exercises of judicial power from this Term of the Court support the plausibility of judicial primacy. First, Town of Greece. Some worry about the implications of this decision, thinking it could inspire more communities to adopt Christian prayers before governmental proceedings. But why? If Supreme Court decisions can be confined to their parties (by whom?), then we simply flick that decisional switch and go about our business as if the decision never happened. But that’s not the way the exercise of judicial review in a particular case has been operationalized within the federal court system. It’s a hierarchy, and the doctrines of issue preclusion and claim preclusion known to all able lawyers grant the Court’s rulings the nationwide impact with which we are all familiar.

This reality was pointed out forcefully by Larry Alexander and Lawrence Solum in their incisive HLR review of Larry Kramer’s book The People Themselves. I found the review difficult to accept because I support Kramer’s basic project, at least with respect to his evidence on the nature of early American constitutionalism. But I had to admit Alexander and Solum scored a big hit on departmentalism. They argued that (as they termed it) the “Lincoln-Meese” position was unstable in that judicial supremacy would reemerge even if everyone in the system somehow believed in the position as a matter of principle.

The other exercise of judicial power I have in mind is the Noel Canning case, where perhaps we will have a decision from the Court next week. It looks like a longstanding executive interpretation of the Constitution with respect to recess appointments is about to be rejected by the Court. But if you accept “presidential review,” why worry? After all, on this view the Court’s ruling is only advisory. Yet the fact that no one really accepts this shows not only the operation of judicial “primacy,” but that executive interpretations, no matter how well grounded in practice (or what some scholars are now calling “constitutional conventions”) are vulnerable if the Court thinks they conflict with the text. The text comes first in American constitutionalism and the Court, for better or worse, is in charge of textual meaning as a byproduct of the acceptance of judicial review. As I argued in my 1996 book and later, this creates the zone of the “legalized” (or judicialized) Constitution, in which constitutional change is managed by the Court. But this zone is not the whole story. War powers, for example, falls outside it. For further development of this argument, you can check out my book Long Wars and the Constitution. But this seems a good place to end this long post in which I have moved two or three steps away from my longstanding commitment to departmentalism.

Posted 5:54 PM by Stephen Griffin [link]