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Departmentalism versus Judicial Supremacy – Part I: Some Preliminary Distinctions

Since I was away on vacation when this debate began, I am coming late to the party. But I have some distinctive views on this issue and so I thought I would write some posts about the matter.

I should start out by saying that I have something of an intermediate view of the matter – I recognize that both sides have some strong points to make.  In the end, I stand much closer to the judicial supremacy side, but for different reasons than at least some of those defending the position.

I originally encountered this issue in law school and especially at the Meese Justice Department when Attorney General Meese gave a speech defending departmentalism.  I initially was attracted to a moderate departmentalist position, but over time I began to have second thoughts.  By the time I published this paper (here and here) in 1993, I had already moved towards seriously doubting the departmentalist position.  And I have only become more skeptical over time.

Let me start by drawing some distinctions.  In general, departmentalism is the view that each department or branch of the federal government makes decisions as to the law based on its own views.  Thus, the courts are not bound by the decisions of the Congress or the President.  And the Congress and the President are not bound by the decisions of the courts.  By contrast, judicial supremacy is the view that the Congress, the President (and the states) are required to follow the decisions of the courts.  (The recent debate has focused on constitutional questions, but it need not do so.  To conform to what others are discussing and to avoid making things too complicated, I will generally limit myself to constitutional matters.)

This general statement of departmentalism, however, glosses over a key distinction – the distinction betweeen departmentalism as to judgments and departmentalism as to precedents.

Departmentalism as to judgments holds that the executive (and the Congress) are not required even to follow the judgments of the courts.  Consider the following extreme example.  The executive branch imprisons an individual, who seeks a writ of habeas corpus and prevails in the courts.  While the courts order the executive to release the individual, the President disagrees with the court’s view of the Constitution and refuses to follow the order.  Under departmentalism as to judgments, the President’s action here is lawful, because he is not bound by the constitutional views of the courts.

By contrast, under departmentalism as to precedents, the President’s action here would be unlawful.  While the President is not obligated to follow the court’s constitutonal views in future cases, he is required to follow the judgments of the courts in specific cases.  Thus, the President must release the individual involved in this example.  In a future case, the President would not be required to follow the court’s decision – its precedent – until a court issued a judgment.

For the most part, I will ignore the departmentalism as to judgments position – even though a few commentators appear to hold it – on the ground that it is an extreme minority position and one that has very little basis in the original materials.  I know of no real originalist evidence that supports it and it has the enormous problem of rendering judicial decisions to be effectively nonbinding, which is inconsistent with a large amount of originalist evidence.

Thus, the real question is whether judicial supremacy or departmentalism as to precedents is the correct position.

Reader Discussion

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on June 11, 2015 at 23:50:21 pm

I believe in departmentalism as to judgments, but only a more limited form then you suggest. I believe that the executive branch is not required to follow court orders to enforce what the court declares to be a constitutional law. But, the executive branch is required to follow all orders to stop enforcing a statute, or to stop using governmental power (this includes the holding of an individual prisoner). The way I see it, there are three constitutional vetos, once in congress (which can repeal or not enact the statute even over a veto or impeach those that act without a statute), once in the executive (which can refuse to enforce an unconstitutional act of congress even if passed over his veto), and once in the judiciary (which can order an act to not be enforced). For a use of governmental power to be constitutionally valid (at least as to positive law), all three branches must agree that it is constitutional. Of course this also includes departmentalism as to precedents.

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Devin Watkins
on June 12, 2015 at 00:55:37 am

To my mind, there may be circumstances where the President's action in Professor Rappaport's hypothetical would be lawful despite what the federal courts may say by way of judgment.

For example, suppose Congress has taken action to deprive inferior federal courts of jurisdiction, or abolishes inferior federal courts altogether, and yet inferior federal courts are still purporting to order the president around. This violation by the inferior federal courts would be so blatant as to warrant presidential disobedience, and if the matter is appealed to SCOTUS then the same would be true of SCOTUS which cannot lawfully accept appeals from courts that have no jurisdiction or that do not even exist.

When Congress strips jurisdiction from the inferior federal courts or abolished them or denies them the ability to issue the writ of habeas corpus, that is not necessarily the slightest bit unconstitutional assuming that state courts fill the gap. Many of the framers of the Constitution (e.g. Roger Sherman) explicitly anticipated that Congress might not even create any inferior federal courts, and would instead leave the interpretation and application of federal law entirely to the state courts, except for an ultimate appeal to SCOTUS.

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Andrew Hyman
on June 12, 2015 at 22:03:55 pm

Andrew:

I have a question (and I admit that my memory may be failing me here). As I recall, did not the Congress specifically state that the courts would not have jurisdiction over "unlawful combatants" yet in Hamdan the Court acted as if the Legislature had not so stated. ( I am simplifying here).
If my memory is incorrect here, just disregard; if however, the Congress did so state, then what then?

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bongo
on June 13, 2015 at 16:22:28 pm

The relevant statute in the Hamdan case stated: "Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider...an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba...."

Additionally, Justice Scalia argued in Hamdan that petitioners such as Hamdan held outside the territorial jurisdiction of the United States lack the right to the writ of habeas corpus.

The Court rejected Scalia's argument about extraterritoriality. As to the jurisdiction-stripping, the Court did not address its constitutionality. Instead, it merely said that it was not expressly applicable to pending cases, and therefore as a matter of statutory interpretation did not apply to pending cases.

The Hamdan opinion explicitly stated that, because DTA did not bar it from considering the petition, it was unnecessary to decide whether laws unconditionally barring habeas corpus petitions would unconstitutionally violate the Suspension Clause.

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Andrew
on June 14, 2015 at 10:12:52 am

Ok thanks!

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bongo
on June 14, 2015 at 10:40:00 am

Sure. :-)

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Andrew
on June 15, 2015 at 10:46:10 am

[…] Departmentalism versus Judicial Supremacy – Part I: Some Preliminary Distinctions […]

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