We, however, are determined to learn whether responsible and disciplined—in a word, constitutional—government can survive the death of civic piety.
The ACLU has hailed a federal judge’s ruling last month that President Trump cannot redirect military construction resources to build a border wall that Congress refused to fund as “a win for our system of checks and balances, the rule of law and border communities.” It actually illustrates the decline of checks and balances. Worse, it risks the acceleration of that erosion.
The system of checks and balances elucidated in Federalist 51 assumes Congress will protect its institutional interests against incursions by the presidency and other actors. Instead, the recent trend is for legislators of both parties to defend their political interests at the expense of institutional prerogatives that, in turn, they assume the courts will protect for them.
The result is moral hazard: When the courts signal that they will do the Congress’ job, Congress—with political interests tugging against institutional authority—is less likely to do that work itself.
As the regime increasingly orbits around the Hobbesian principle of attraction or aversion to the sitting president, legislators have decided the best way to keep their jobs is to orient themselves similarly. One question is why they want these jobs if the cost of keeping them is draining them of authority. This collapse of the power motive among political men itself raises serious questions about the durability of the separation of powers, which depends on competing ambitions. But another question is why legislators should bother defending institutional authority at all if the courts will do it for them.
Constitutional calculus dictates that neither party’s legislators should want a president to use funds in a manner inconsistent with Congressional will, since they will know that those whose policy or political objectives are thus advanced will be on the losing end when someone else occupies the White House. In Madisonian terms, this calculus should yield the conclusion that all members of Congress—as members of Congress, not as members of a party—should work together to protect the legislature’s authority. Long-term institutional interests should, on these grounds, outweigh immediate political interests.
These are both normative and empirical premises. The normative premise is that Congress reflects the people’s deliberate will in the only manner in which it can be Constitutionally expressed. The empirical prediction is that politicians want power in order to use it. What reconciles the two, and maintains the separation of powers, is that members of Congress must think institutionally—which, in turn, requires moderation and compromise—in order to advance their policy and political goals.
But suppose members of Congress can behave politically right now while someone else comes to their long-run institutional rescue? That is the moral hazard of judicial remedies for conflicts between Congress and the President.
Enter Judge Haywood S. Gilliam of the Northern District of California, whose ruling in the border-wall case is logically defensible: Article I says only appropriated moneys may be drawn from the Treasury; Congress explicitly declined to appropriate the funds in question; therefore they may not be drawn from the Treasury.
What is missing is any sense of the judiciary’s proper constitutional place. Instead, Gilliam trotted out Marbury to suggest the courts must decide cases and controversies presented to them:
Assessing whether Defendants’ actions not only conform to the Framers’ contemplated division of powers among co-equal branches of government but also comply with the mandates of Congress set forth in previously unconstrued statutes presents a Gordian knot of sorts. But the federal courts’ duty is to decide cases and controversies, and “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule.”
Marbury does indeed say that constitutional disputes entail constitutional explication. What it does not say is that a dispute must be judicially resolved simply because it has been presented to a judge. To make this connection, Gilliam, in the ancient tradition of federal judges, used the most quoted and least understood principle of Marbury: that it is “emphatically the province and duty of the judicial department to say what the law is.” The essence of the pivot is reading “emphatically” to mean “exclusively,” which nothing about Marshall’s opinion supports.
In other words, nothing prevented Gilliam from operating on an equally sound Constitutional principle: that protecting Congressional prerogatives was Congress’ job, not his, especially since legislators specifically rejected that responsibility by passing the National Emergencies Act under which the President acted.
What this suggests is the danger of judges, like Burke’s professors of metaphysics, always pursuing Constitutional premises to their logical conclusions. This imprudence reflects an obsession not just with a constitutional perspective but with the judge’s right, even duty, to pursue that perspective regardless of whether the heavens fall. Equally important, it illustrates the importance of a judge’s disposition toward the use of his own unaccountable power, not just toward the logic of Constitutional interpretation. Judges are not compelled to resolve every Constitutional dispute, and a tendency to do so will relieve other branches of the responsibility of doing so themselves.
Both parties in Congress have been eager to unburden themselves of this responsibility. A Republican House, for example, sued President Obama to compel his enforcement of the actual provisions of the Affordable Care Act. President Trump has been the subject of multiple lawsuits—including Hawaii v. Trump, regarding immigration restrictions, and this latest case involving the border wall—accusing him of usurping legislative authority. We are more or less settling into a lasting pattern of both parties in Congress assuming it is the courts’ job, not their own, to protect their institutional power.
Missing in all these cases is the legislature acting like a legislature. It has ample tools with which to bring wayward Presidents who view themselves as the only legitimate expression of public opinion to heel. These include a refusal to enact presidential priorities, retaliation against presidential nominees, and the ultimate weapon whose defanging has blunted all the subordinate ones: impeachment.
To operate on these long-term institutional incentives, legislators must be willing to engage in the kind of compromise required to cooperate across partisan lines, which is to say across lines of loyalty or antipathy toward the president. The separation of powers requires members of Congress to recognize they occupy the same institutional boat. The real system of checks and balances offers them a choice: Eat your electoral cake or have your institutional power.
Allowing them to hide behind judicial robes while the courts protect them from the big, bad president—over whom they have ample constitutional power—circumvents such hard choices because it renders the exercise of legislative authority unnecessary. This is not a question of the ideology but rather of the disposition of federal judges. It is not just about methods of constitutional interpretation, which receive attention in the confirmation process. It is ultimately about the meta-interpretive question of whether they understand the Constitution to invest them with the responsibility to resolve all Constitutional disputes, whatever their philosophy for doing so might be.
Power is not generally a zero-sum game. On the contrary, it is judges who read “emphatically” to mean “exclusively” who act like it is. Giving judges more power does not necessarily detract from Congress’ ability to exercise its own authority. But the border-wall case illustrates how the former can discourage the latter.