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.