Historical Gloss and the Erosion of Constitutional Safeguards

Guest Blogger

For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

Michael J. Gerhardt

Introduction

For our symposium on Curtis Bradley’s book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice,[1] I have (largely) resisted the urge to heap praise on his insightful, comprehensive, and compelling account of how “historical gloss” (or “the accretion of governmental practice”) has shaped the balance of power in foreign affairs.[2]  I agree with Professor Bradley that consistent historical practices over time may inform or shape constitutional construction.[3]  But rather than focus on our many areas of agreement, I aim to expand on and clarify some aspects of his account, particularly how to identify the use of historical practices as a legitimate basis for constructive as opposed to destructive constitutional interpretation.

More specifically, I examine how historical practices, as a gloss or in some other form, have not constructed but instead dismantled constitutional safeguards in the constitutional scheme of separation of powers. My concern is with how the accretion of historical practices can sometimes erode constitutional safeguards for the sake of aggrandizing one branch’s authority at the expense of another’s and the Constitution’s intricate system of checks and balances. In undertaking this inquiry, I revisit several examples from Bradley’s excellent book as well as several others not discussed to illustrate the erosion of constitutional safeguards primarily to shield against executive tyranny and misconduct. My purpose is not to construct some grand theory of constitutional interpretation or change. Rather, my purpose is to expand on Professor Bradley’s analytical framework to clarify the destructive side of historical practices and gloss. Sometimes, as I will show, the Court and/or other constitutional actors seek to expand their authority at the expense of another branch.

In Part I, I revisit the Supreme Court’s landmark decision in Youngstown Steel v. Sawyer, The Steel Seizure Case.[4] The case marked the high point of functionalism in separation of powers, that is, an approach to constitutional interpretation that favors balancing of competing interests and regards historical practices as relevant to the construction of constitutional meaning. But, in recent decades, the Court has largely rejected functionalism in favor of a pro-presidential, anti-congressional version of formalism,[5] which regards only text, original meaning, and structure as legitimate grounds for constitutional decision-making, and treats historical practices as illegitimate grounds for constitutional decision-making. This variation is best understood as executive departmentalism (the executive branch’s authority to render its own constitutional decisions). While the classic conception of departmentalism recognizes the authority of each branch to construe the Constitution as it sees fit,[6] the Court has increasingly championed a form of departmentalism popularly known as the unitary theory of the executive,[7] which posits that presidents should control the exercise of all executive power. While Youngstown had placed the Congress at the center of separation of powers disputes, the Court’s more recent separation of powers decisions have gone a different direction in which it has expanded presidential authority at the expense of congressional checks and balances.

In Part II, I examine how the political branches, in the absence of judicial review, have worked to erode three congressional powers – specifically, impeachment, treaty ratification, and advise and consent – that have each been crucial for checking executive tyranny and corruption.  The Constitution’s requirement of two-thirds approval for conviction, removal, and treaty ratification, in concert with the rise of fidelity to party and the unitary theory of the executive, have gutted the treaty, confirmation, and impeachment powers as checks on presidential abuse of power. Historical practices have helped to transform these powers into weapons of partisan destruction.  

The third and final part offers two modest suggestions for guiding the differentiation of constructive from destructive accretions of governmental practices. The reliance on historical practices as a basis for constitutional decision-making is most problematic when it is done to dismantle or abandon meaningful checks and balances, the major purpose for which was to prevent one branch from illegitimately dominating another. Reliance on historical practices as a guide to constitutional construction is most legitimate when the historical practices align with the basic purposes and design of the Constitution.  Accordingly, my objective is not to promote a scheme to dismantle the Constitution’s crucial network of checks and balances but instead, like Professor Bradley, to find ways both to preserve and to celebrate it.

I

The Rise and Fall of the Youngstown Framework

Youngstown is a landmark Supreme Court decision for a reason:  To begin with, it affirmed the power of judicial review to settle one of the most dramatic, if not most dramatic, constitutional conflicts between the President and the Congress in the modern era; delivered a rare rebuke of the presidency in  separation of powers conflicts; and featured several influential opinions on the appropriate methodology for resolving such disputes in the future.

Youngstown marked a high point of functionalist reasoning in the Court’ adjudication of separation of powers questions. Of the nine justices, eight employed functionalist reasoning, the hallmarks of which were recognizing the legitimacy of balancing competing interests and relying on historical practices in constitutional decision-making. As Professor Bradley shows, two concurrences – one from Justice Felix Frankfurter and the other from Justice Robert Jackson – have provided an influential framework for assessing separation of powers issues.[8] And for at least the six justices in the majority, it was an important affirmation of the centrality of Congress – not the President – in managing separation of powers conflicts. The Congress has rarely benefitted more from a decision of the Court.      

Yet, the Court has undermined the Youngstown framework that is central to Professor Bradley’s account of constitutional authority in foreign affairs. It has largely done so through its support for a radical version of departmentalism known as the unitary theory of the executive.

A.          The Rise of Executive-Favoring Departmentalism

The focus on Justices Frankfurter and Jackson’s concurrences in Youngstown can obscure the alternative reasoning in the Court’s opinion, authored by Justice Hugo Black, the only formalist on the Court in that era.  As a formalist, Black believed that, in constitutional interpretation, only the text, original meaning, and structure are legitimate sources of constitutional decision making.[9] Nonetheless, his opinion for the Court joined in striking down Truman’s seizure of control over the nation’s steel mills. He explained that presidents may only exercise legislative-like authority if either the Constitution or the Congress has expressly given it to the President. Since Black found no constitutional or statutory text granting such power to the President, he concluded the President had none.

The Court’s embrace of functionalist reasoning in Youngstown received a boost almost three decades later in Morrison v. Olson,[10] a 7-1 decision upholding the constitutionality of the Independent Counsel Act, with a powerful, sole dissent from Justice Antonin Scalia, a formalist much like Justice Black had been.[11] But, unlike Justice Black, Justice Scalia put forward for the first time a robust defense of executive departmentalism grounded in the idea that the Constitution vested the presidency with complete control over the exercise of executive power. That notion, which is popularly known as the unitary theory of the executive, was based on Justice Scalia’s reading of the text of the Constitution (vesting the President with “The executive power”[12]) and inferences from the Constitution’s structure that such control was necessary to ensure the uniform enforcement of the law and presidential accountability for any exercise of executive power.[13]

In the years after Morrison, the Court systematically began whittling away its earlier functionalist opinions dealing with presidential power in favor of executive departmentalism, the notion that presidents have broad executive power that Congress may not limit or question. Many of these cases involved the Court’s striking down restrictions placed on the President’s authority to discharge officials exercising executive power,[14] but one of the clearest and most important of these cases is Zivotofsky v. Kerry.[15]  

As Professor Bradley notes in his discussion of the case in Chapter Three of Historical Gloss and Foreign Affairs, Zivotofsky ruled that the President alone had the constitutional authority to recognize Israel’s sovereignty over the Golan Heights. The Court reasoned that this authority was consistent with and an outcome of the fact that the President was the “sole organ” of the federal government in international relations. In reaching that conclusion, the Court did not employ the Youngstown concurrences of Justices Frankfurter and Jackson. The Court’s pro-presidential opinion put an end to any formal role for Congress in the recognition process. That role had allowed for balance, rather than presidential or congressional domination, of the recognition process.  Its elimination by the Court removed Congress as a meaningful check in recognizing foreign nations and thus, as Bradley explains, Zivotofsky “provides an example of how concerns about the ‘imperial presidency’ are not necessarily eliminated by judicial review. Before that decision, there was uncertainty about the extent to which Congress could regulate issues relating to recognition, and the political branches had to bargain over the issue. After the decision [, the President] now has a judicial trump card to prevent congressional regulation . . .”[16] Indeed, as Bradley notes, Zivotofsky “is an example of how more judicial review . . . might just lead to a greater entrenchment of executive authority.”[17] Zivotofsky was, in other words, a victory for executive departmentalism.

To be sure, in another case discussed by Professor Bradley, National Labor Relations Board v. Canning,[18] the Supreme Court recognized a realm of congressional or legislative departmentalism. There, the Court ruled that the Congress has complete control over the determination of when or even whether there has been a congressionally authorized recess and thus could block a president’s exercise of his recess appointment authority through a series of pro forma sessions in the Senate. As Professor Bradley notes in his discussion of the Canning decision, the Court “put significant weight upon historical practice,” which it read as supporting exclusive Senate control over determinations of when it was in session or not.[19] Ironically, that decision eroded executive power – specifically, the President’s recess appointment authority recognized in Article II of the Constitution. Together, Zivotofsky and Canning exemplify a movement toward judicial supremacy at the expense of both presidential and congressional powers.

B.          The Rise of the Unitary Theory of the Executive

Neither formalism nor departmentalism necessarily leads to a predominately pro-presidential regime, but it could, especially when they take the form of the unitary theory of the executive.  For the unitary theory of the executive is not mere departmentalism, which is premised on each branch’s autonomy in construing the Constitution as it sees fit. Rather, the theory, at least in its most robust form, is incompatible with the Youngstown framework, which allowed for the congressional establishment of independent agencies. The problem is that the very idea of an independent agency would allow for the exercise of executive power not under the direct control of the President. If the President lacks the power to dismiss people exercising executive power in ways he does not approve, it violates the unitary theory of the executive.

The unitary theory of the executive received a big boost at the end of the 2024 Term of the Court in Trump v. United States.[20] In that case, the Court recognized three kinds of presidential activity. First, it declared that presidential exercises of “core” powers were entitled to “absolute immunity.”[21] Such powers were beyond the authority of the courts or Congress to question or second-guess. Second, the Court declared that official actions of the President that were not exercises of core powers were nonetheless entitled to “presumptive” constitutionality.[22]  Third, the Court recognized that unofficial acts of the President were not entitled to any immunity.

In reaching its conclusions on the extent of a president’s immunity for his actions, the Court explained that it looked “primarily to the Framers’ design of the Presidency within the separation of powers, our precedent on Presidential immunity in the civil context, and our criminal cases where a President resisted prosecutorial demands for documents.”[23] Thus, the historical practices and possible historical gloss pertinent to the Court’s decision making were the Court’s own prior decisions.

Yet, the paucity of cases involving conflicts between presidents and the Congress over the scope of presidential immunity did not preclude the Court from expanding presidential immunity to unprecedented degrees.  For example, citing Youngstown, Chief Justice Roberts declared that “If the President claims the authority to act but in fact exercises mere ‘individual will’ and ‘authority without law,’ the courts may say so.”[24] But the Chief Justice did not end there. Nor did he end with the addendum that “once it is determined that the President acted within the scope of his exclusive authority, his discretion in exercising such authority cannot be subject to further judicial examination.”[25] He went further to declare, with reference only to the text of Article II and none of its prior decisions, that “the Constitution vests the entirety of the executive power in the President.”[26]  This was plainly a restatement of the unitary theory of the executive.

Moreover, the Chief Justice declared that the presidential “immunity we recognized extends to the ‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they ‘are not manifestly or palpably beyond [his] authority.’”[27] Thus, presidential immunity did not end at the outer boundaries of presidents’ official powers but extended further to encompass some actions that might violate the criminal law. Presidents required such immunity to be free to exercise their “discretion” without fear of reprisal in the form of criminal prosecutions.[28]  As the Court declared, “Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.”  Given that the Court emphasized that courts may not inquire into a president’s “motive” for the exercise of his official powers, Trump v. United States enables presidents to avoid any legal liability for their misdeeds so long as they have clothed them with the right labels.  

To bolster its conception of broad presidential immunity, Chief Justice Roberts distorted Justice Jackson’s Youngstown concurrence. In that concurrence, Justice Jackson declared that “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”[29] Yet, the Chief Justice’s opinion for the Court in Trump v. United States did not include the whole quote. Rather, it proclaimed that a president’s exercises of his official powers were “conclusive and preclusive.”[30] While the Court maintained that Congress had the authority to rebut such “presumptive” and “conclusive” authority, that is not what Justice Jackson said. Indeed, he had said nearly the opposite.

But Youngstown was not the only Supreme Court decision to take a hit in Trump v. United States.  Its ruling also undermined the Court’s earlier, landmark ruling in United States v. Nixon,[31] recognizing presidents’ entitlements only to qualified rather than absolute privilege. While qualified immunity allowed courts to balance presidents’ need for confidentiality against the need for disclosure to vindicate constitutional rights or other interests, the Court in Trump v. United States read the Nixon case as recognizing “strong protection for the President’s confidential communications – ‘a presumptive privilege’ – but it did not entirely exempt him from providing evidence in criminal proceedings.”[32] What the Court conceded there, it took away with its direction that, in “dividing official from unofficial [presidential] conduct,” for which presidents could be personally legally liable, “courts not inquire into the President’s motives.”[33]  Thus, presidents’ claims of executive privilege are shaped by their asserted claims of exercising their core powers. In such circumstances, it makes little to no sense to speak of any qualified privilege to protect the President’s interests. For example, when presidents claim to be engaged in official actions, they are entitled, at least presumptively, to immunity from judicial review. As Chief Justice Roberts stated, the President “is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.”[34] It followed that neither Congress nor the courts had the authority to use, or access, communications made between the President and his counselors regarding his powers. That outcome is consistent with the unitary theory of the executive, which rests on the assumption that presidents are under no obligation to assist other branches when they are attempting to hold presidents accountable for their abuses of their official powers.

The expanded presidential immunity set forth in Trump v. United States has serious ramifications for separation of powers generally and for foreign affairs in particular. Its alignment with the unitary theory of the executive ensures that presidents can take bribes, benefit personally, and seek foreign assistance in harming their political enemies, with little or no personal accountability. If mechanisms such as impeachment are not practically available as checks against such presidential misconduct (as discussed further in Part II), presidents have greater incentives than ever before to engage in misconduct that sacrifices the nation’s national security or other interests for their own personal benefit. Put differently, the Court’s elimination or diminishment of a constitutional safeguard against presidential tyranny or corruption increases the burden on other checking mechanisms, such as judicial review or impeachment, to restore the balance of power among the branches that has otherwise been diminished. 

Under the Court’s reasoning, even a president who has been convicted of impeachable misconduct and removed from office is not subject to civil or criminal liability for his actions so long as they were undertaken as exercises of the core powers of the presidency.  As the next Part shows, the Court’s admonition that the Congress, too, may not inquire into the motives of presidents’ official acts complicates its role in checking presidential conduct that it regards as impeachable. 

II

Eroding Constitutional Safeguards Outside the Courts

         The previous part focused on how the Supreme Court may use or ignore historical practices to weaken constitutional safeguards.  This Part examines the phenomenon outside the courts – namely, how, in areas with little or no chance of judicial review, one or both of the political branches try to work around, if not nullify, constitutional safeguards and processes. Each of the three examples of this phenomenon that I examine in this Part involve unique powers of the Senate, which have largely been weakened or nullified.  

A.          The Demise of the Senate’s Treaty Power

The Constitution requires a high threshold – at least two-thirds approval of the Senate[35] -- for treaty ratifications for many reasons:  It ensured that treaty ratifications would not be easy to effectuate and thus reduced the likelihood of foreign entanglements. The two-thirds requirement was a check on the President’s judgments to facilitate such entanglements. It effectively ensured that treaty ratifications would depend on the formation of a bipartisan majority in the Senate. The two-thirds requirement presumably fostered greater deliberation over the formation of treaties and the need for significant consensus within the Senate on their necessity and propriety. The super-majority requirement for treaty approval virtually guaranteed fewer, not more, ensured international agreements over time.

In Chapter Four, Professor Bradley analyzes “the rise of international agreements . . . without the supermajority Senate consent called for by Article II.”[36] He notes the “use of the Article II treaty process has slowed to a trickle, so almost all binding international agreements concluded by the United States have been executive agreements. . . When the United States makes binding international agreements today, it almost never uses the Article II process.”[37] “Most executive agreements,” he explains, “are congressional-executive agreements, and the vast majority of them are of the ex ante variety, which means they are not voted on by Congress after they are negotiated.”[38]  Presidents have submitted fewer and fewer treaties to the Senate for ratification, with Clinton having “submitted 23 treaties per year; the George W. Bush administration submitted around twelve treaties per year; the Obama administration submitted only around five treaties per year; and the Trump administration submitted only five treaties to the Senate during Trump’s entire [first] four-year term.”[39]

The constitutional “debate today,” Professor Bradley explains, “is not over whether” congressional-executive agreements “are constitutional but rather over the extent to which they are freely interchangeable with Article II treaties.” He notes that the “influential Restatement (Third) of the Foreign Relations Law of the United States suggested in 1987 that they were completely interchangeable, and some scholars have agreed.”[40] But as Professor Bradley concludes the chapter, “the institution most affected by [these] development[s] [relating to congressional-executive agreements] is the Senate, which has lost some its historic authority, but it, too, has largely acquiesced.”[41]

The Senate’s Treaty Power “has lost some of its historic authority” but not due to judicial review. Instead, historical practices have eroded that power, and the beneficiary of that erosion has largely been the presidency. Not surprisingly, with the decline of treaties negotiated and the rise of executive agreements, presidents have increasingly asserted their entitlement to cancel treaties or other international agreements without congressional, or Senate, approval. These developments have been a victory for enhancing executive departmentalism at the expense of the Senate’s express constitutional authority to ratify treaties.

B.          The Limited Utility of Presidential Impeachment

The American Constitution rejected the British tradition of making everyone but the King subject to impeachment. It subjected “The President, Vice President, and all civil officers of the United States to impeachment, conviction, and removal for “treason, bribery, and other high crimes and misdemeanors.”[42] Of particular concern to many delegates to the constitutional convention was the need to subject presidents to the impeachment process for misbehavior in foreign affairs. As James Madison argued, presidential impeachment was “indispensable” because a president “might pervert his administration into a scheme of peculation and oppression. He might betray his trust to foreign powers.”[43]

Given the Supreme Court’s unanimous decision in Nixon v. United States[44] holding judicial challenges to Senate impeachment trial procedures as non-justiciable, historical practices have been the principal means for clarifying the scope of Congress’s impeachment power. While the House has initiated impeachment inquiries more than 60 times, it has impeached officials only 21 times, including three presidents (Andrew Johnson in 1868, Bill Clinton in 1998, and Donald Trump in 2019 and 2021).  All four times the presidents were acquitted, including Donald Trump once for his requesting a personal “favor” from a foreign leader and the second time for his involvement in the January 6^th riot at the Capitol of the United States.[45] too few to construct any historical pattern or gloss on the scope of this important power. Nonetheless, we can glean some important aspects of the federal impeachment process from its history and practice.

1.          Trump v. United States and Presidential Impeachment

In Trump v. United States, the Supreme Court rejected Trump’s most outlandish claim of presidential immunity. Trump’ claimed that Article I’s provision that impeachment judgments “shall not extend further than to Removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” and “the Party Convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law,”[46] implied that, if a president were not convicted in a Senate impeachment trial for certain allegedly criminal misconduct, he could not later be criminally prosecuted for the same offense. In other words, Trump could not be prosecuted for behavior for which he had been acquitted by the Senate.

The majority in Trump v. United States read the provision differently: It “both limits the consequence of an impeachment judgment and clarifies that notwithstanding such judgment, subsequent prosecution may proceed. By its own terms, the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted.” In addition, the Court found that Trump’s argument had “little” if any “historical support,” and that, “Transforming that political process [of impeachment] into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government.”[47]

Historical practices undercut Trump’s assertion that his Senate acquittal immunized him from criminal prosecution for the same misconduct. In the late 1980s, Congress proceeded with impeachment proceedings against three federal district judges after two of them had been prosecuted and imprisoned and the third had been acquitted.[48] It eventually impeached, convicted, and removed all three judges, and a federal appellate court rejected the judicial challenge brought by one of the judges, Alcee Hastings, that he should have been immune from impeachment proceedings for the same criminal misconduct for which he had been previously acquitted.[49] Even for presidents, Congress is under no constitutional compulsion to hold impeachment proceedings, though of course its members could choose to do so. Moreover, the Supreme Court in Trump v. United States relied on both Joseph Story’s landmark Commentaries on the Constitution and Federalist Paper No. 77 written by Alexander Hamilton,[50] for the proposition that the framers designed the impeachment process to function separately from civil and criminal proceedings, so that none of its decisions with respect to impeachment would have any effect on civil or criminal proceedings focusing on the same misconduct. Yet, a closer look at the impact of several developments on the design and functionality of the impeachment process reveals its limitations, especially when the subject is the President. 

2.          Why Presidential Impeachment Fails

The framers placed the supermajority requirement for conviction and removal in the Constitution as a means for republicanizing the process, that is, ensuring greater deliberation and consensus in the high stakes process of considering the ouster of an American president.[51] The high threshold, besides being difficult to satisfy even under the best of circumstances, has become an impediment for two reasons.

The first is the rise of fidelity to party among members of Congress has virtually ensured that presidents, who have become leaders of their parties in modern times, will not be convicted and removed from office. This phenomenon was apparent in at the ends of President Clinton’s Senate impeachment trial in 1999 and President Trump’s trials in 2020 and 2021, for in each of those the members of their party unified in opposition to conviction and removal.[52] It only takes a third of the Senate plus one to acquit an impeached official, and Democrats in 1999 and Republicans in 2020 and 2021 controlled significant more than a third of the seats in the Senate. While that trend might not yet be a gloss on the scope and nature of the Senate’s power to try impeachments, it is a disturbing pattern that demonstrates how easily presidents can thwart their convictions and remain in power so long as their fellow partisans in the Senate control at least a third of the seats.

Another factor that has helped to frustrate the utility of impeachment as a check on presidential misconduct is the unique capacity of the presidency to spread disinformation, use the Justice Department to assist with its defense, and rely on the unitary theory of the executive to thwart efforts to be held accountable in Congress. Presidents have every incentive to oppose their impeachment and none to cooperate with political forces aligned against them. While there is ample historiography showing that impeachable offenses were not limited to indictable offenses,[53] Presidents Johnson and Trump argued in their respective trials that presidential impeachment had to be based on their commission of indictable crimes and not on misconduct that was not indictable as a crime.[54] The 24-7 news cycle helped President Trump to spread the narrative of his defense, while his reliance on the unitary theory of the executive during his first impeachment bolstered his refusal to comply with House subpoenas authorized by the Democratic majority and his ordering everyone within the executive branch not to cooperate with the partisans seeking the President’s conviction and removal from office.

President Trump did not stop there. At his urging,[55] House leaders, including Speaker Mike Johnson, initiated impeachment inquiries against both President Biden and his Homeland Security Secretary Alejandro Mayorkas along party lines. Both failed, with House Republicans failing to muster a majority to impeach President Biden[56] and with Senate Democrats uniting to dismiss the charges against Mayorkas in record time.[57]  Impeachment driven by the needs to hurt Biden’s reelection chances and to deplete the impeachment process of any seriousness as a check on presidential misconduct had their intended effect of helping Donald Trump’s campaign to return to the White House in 2024, and I would expect that, with Republicans holding a thin margin of control in the House and a solid majority in the Senate, any movement to impeach President Trump in his second term, whether warranted or not, will go nowhere.

Impeachment may, however, still function as a deterrent to presidential misconduct.  The prospect of impeachment may lead presidents to refrain from certain misconduct, as perhaps demonstrated by President Trump’s decision in his first term not to discharge the special counsel investigating possible corruption in his presidential campaign[58] or possibly President Nixon’s choice to comply with the unanimous decision in United States v. Nixon rather than risk intensifying the impeachment process already underway against him in the Congress.[59]

It will, however, be difficult to substantiate the deterrent effect of impeachment because it depends on internal deliberations within the White House, which might not have been made public (perhaps based on claims of executive privilege) or communicated in writing. Presidents likely have little incentive to proclaim to the world their vulnerability to impeachment or to the rule of law.

C.          The Utility of the Senate Confirmation Process as a Safeguard against Presidential Cronyism

The paucity of presidential impeachments has not produced much constitutional common law, but the same cannot be said about the Senate confirmation process.  Historical practices are in abundance in this sphere, so much so that it can fairly be said that there has been a historical gloss that the Senate’s authority to give its “advice and consent” on presidential nominations[60] includes the discretion not to hold hearings on or approve presidential nominations for any reason at all. For example, there were plenty of Senate precedents for the Senate’s refusal to take any action on President Obama’s nomination of Merrick Garland to the Supreme Court.[61]

There has been another significant historical pattern in Senate proceedings.  It is the development of possibly conflicting historical glosses in the Senate confirmation process, one upholding a Senate filibuster against legislation[62] and another upholding the authority of a Senate majority to dismantle the use of filibusters to block judicial and executive branch nominations.[63] How long the Senate may therefore continue to allow filibusters of legislation thus depends not on the courts or judicial review but instead the determination of a simple majority to preserve – or discard – it. 

III

Historical Gloss in Future Constitutional Construction

In this Part, I offer two modest suggestions, both consistent with Professor Bradley’s analytical framework, for guiding the determination of when historical gloss or pattern is constructive or destructive in nature or effect. When there are harmful deviations from the allocation of constitutional powers and/or disruptions of the balance of power, the burden is on the offending branch or actor to demonstrate not just the constitutionality of their innovations but also the sacrifices they are demanding of other branches.  

A. Returning to the Passive Virtues in Judicial Review

For many years, it was fashionable among legal scholars to follow the lead of Yale Law School Professor Alexander Bickel in urging courts to exercise the “passive virtues,” that is, to find ways to avoid unnecessary constitutional decisions and, in their absence, to narrow their constitutional rulings as much as possible.[64] As we have seen, there are many risks with having the Supreme Court intervening in congressional- presidential disputes to determine on which direction historical practices may cut. That risk is greater when the Court abandons the passive virtues and instead asserts judicial supremacy in constitutional disputes among the branches.

It is easy to spot the destruction when the Court abuses its power of judicial review, as has been apparent with the wave of destruction in the wake of the Court’s movement toward the unitary theory of the executive. The Court’s recognition of the presidency as the sole authority to recognize foreign nations comes at the cost of weakening Congress’s role in the same sphere. The Court’s complete deference to the Congress’s authority over the determination of what counts as a recess comes at the expense of the President’s recess appointment authority.  Such rulings are not just steps in support of departmentalism, in which each branch construes the Constitution as it sees fit.  They are also steps on the path to the Court’s adoption of the unitary theory of the executive, an extreme version of departmentalism that will wreak havoc on the balance of power not just in foreign affairs but in every other area in which the President claims some authority.  

The unitary theory of the executive is designed to allow the President to stymy any attempts by the other branches to hold presidents accountable for their misconduct. That extends to supporting presidential entitlements to absolute executive privilege in disputes with Congress, an assertion of power that effectively enables presidents to undermine whatever is left of the federal impeachment power as a check on presidential overreaching and corruption. A president can simply do what Donald Trump did in response to his first impeachment – proclaiming that any information pertaining the conduct for which he was being impeached as being covered by executive privilege and ordering every executive employee to refuse compliance with any subpoena or order from Congress. The two checking mechanisms in response to such defiance were the electoral process and impeachment, but neither of these latter will work is a president’s partisan defenders support his efforts to undermine impeachment, the integrity of elections, or both.

Of course, departmentalism does not have to work this way. In Marbury v. Madison,[65] the Great Chief Justice recognized a crucial boundary on departmentalism. While departments (and their leaders) had complete, non-reviewable authority over discretionary choices (those that the law has left entirely within their discretion), they did not have the discretion to avoid compliance with the rule of law. As Chief Justice Marshall explained, “where the heads of departments are the political or confidential agents of the Executive, merely to execute the will of the President, or rather to act in cases in which the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable.”[66] In contrast, he emphasized that “where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.”

The rule of law, in other words, imposes duties on every constitutional actor, and neither the President nor any other executive branch official has the discretion to refuse to comply with what the law requires. Thus, for example, an executive branch that refuses to hire people based on the color of their skin will have its policy or practice overturned for violating the equal protection component of the Due Process Clause of the Fifth Amendment, and the officials in charge, including the President, who have pushed such a policy or practice should be subject to impeachment, conviction, and removal, for that violation.

B. Historical Practices Redux

         If historical practices conflict, then they of course cannot be said to have constructed a gloss on the scheme of checks and balances in the Constitution.  Indeed, such conflicts are not necessarily a bad thing.  They demonstrate the vibrancy of the Constitution and challenge the branches to consider possible compromise or accommodation.  For example, when the House of Representatives requested President John Tyler to turn over internal documents from his administration that related to his nominations to certain federal offices, Tyler responded with a well-reasoned Protest grounded on the idea that the House request encroached on executive prerogatives. But that was not the end of the matter: The House considered but failed to approve impeachment articles against Tyler, while the Senate, largely for partisan reasons, stymied many of his nominations, including eight to the Supreme Court.[67]  

         A theory of constitutional law or presidential power that short circuits the Constitution’s checks and balances is not good. In 1995, Laurence Tribe, in response to the article Professor Bradley discusses by Bruce Ackerman and David Golove defending the rise of international agreements other than treaties,[68] suggested that “free-form” constitutional analysis, one that is not anchored in the constitutional text and structure, is illegitimate.[69] I suggest one modification to Tribe’s argument – that the soundest constitutional arguments are grounded in the text, structure, historical practices, and purpose of the Constitution. To be responsible, constitutional construction requires good faith coordination (rather than the abandonment) of these sources.     

Reliance on history or some other basis that leads to the abandonment or erosion of constitutional safeguards has, however, gone too far. James Madison pointedly suggested in The Federalist Papers that the Constitution’s scheme of checks and balances provided that “ambition must be made to counteract ambition.”[70] But when one branch is allowed to eliminate constitutional barriers against its aggrandizement at the expense of another branch, then ambition no longer checks ambition and the system fails. Unbounded ambition, or personal or institutional self-interest, does not lead to justice, as Madison suggested it should.

Conclusion

         A final question that comes to mind after reviewing Professor Bradley’s Historical Gloss and Foreign Affairs is how do courts or other constitutional actors determine when historical practices have become so consistent that they have added a gloss to the Constitution. They do so when they are consistently implementing, rather than upending, the constitutional scheme of checks and balances. The point at which they erode constitutional safeguards is the point at which they have consistently undone that. Because that point may be difficult to spot, the historical practice has been to leave to the political branches to working the balance of power out over time with as little interference as possible from the courts. As Professor Bradley has demonstrated, one domain in which that dynamic is still viable is foreign affairs. His book is both a model for explicating constitutional construction outside the courts and a cautionary tale against the Supreme Court’s recalibrating the balance of power to expand its own authority at the expense of one or both of the political branches.

Michael J. Gerhardt is Burton Craige Distinguished Professor of Jurisprudence, University of North Carolina at Chapel Hill. You can reach him by e-mail at gerhardt@email.unc.edu.