Can Matthew Whitaker be named as Acting Attorney General when the Attorney General can only be appointed with the advice and consent of the Senate?
In my previous post, I noted that any obligation of the executive and Congress to follow court precedents – either a strong judicial supremacy or a milder obligation to follow a series of court decisions – would have its source in either an interpretation of the Constitution’s judicial power or federal common law. But that reading of the Constitution or the common law would require evidence that judicial precedents were seen as imposing such an obligation.
What then might that evidence be? One possible source of evidence are statements made by various framers at the Philadelphia and Ratification Conventions that Randy Barnett has recently blogged about. For example, he notes that James Wilson said:
If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.
One might read Wilson as stating that a judicial decision declares an unconstitutional law “null and void” and therefore the executive is obligated not to enforce it. But Wilson need not be read that way. As Ed Whelan notes, this statement might be understood instead as stating that the executive will as a practical matter not be able to enforce laws that the courts are unwilling to apply in adjudications.What I find more persuasive is that there is very little, if any, evidence of departmentalism at the time of the Constitution. I have not systematically investigated the law prior to the Constitution, but Joseph Story in his Commentaries claims that English law understood judicial decisions as determining the meaning of the laws. I am not aware of anyone who has provided evidence disputing this claim. Nor am I aware of any contrary examples until at least the Jefferson Administration. If these examples emerged in 1800 – and there was an earlier contrary practice – then these new examples can hardly be the original meaning. And of course Jefferson had strong political reasons – a federalist judiciary – to invent a new justification. Most significantly, apart from examples of nonenforcement, I am not aware of a practice of nonenforcement that has been followed during any presidency.
Of course, if the history differs from this account, that would be very important and one would want to take that into serious consideration. But I am not aware of anyone claiming something to the contrary.
Ed Whelan does provide an apparently contrary statement from James Madison, who states “The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” Whelan argues “and what is the claim of judicial supremacy but a claim that the judiciary has a “superior right” to settle the boundaries governing the executive and legislative branches?”
While Madison’s quote could be interpreted as Whelan does, that is not the only interpretation. Madison does not specifically say that the executive can ignore judicial precedents when enforcing the law. Instead, Madison might just mean that each branch has various powers that it can use to police the boundaries of the other branch’s powers without settling the matter. For example, a court might decide a case and then the legislature might impeach the judges for that decision. Neither the judicial decision nor the impeachment might settle the matter. And the norm of judicial supremacy might not extend to impeachment.
Of course, advocates of departmentalism sometimes argue that there is no principled reason why the legislature can ignore the bindingness of the judicial decision when engaging in impeachment but not in other circumstances, such as enforcement of the laws. But that is a mistake. The issue is not one of logical or principled distinctions. The question is what were the norms in 1789 and it is quite likely that the legislature was not bound by the judicial precedents when making impeachment decisions. The whole point of judicial impeachment is to check the judges.