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Judicial Checks and Moral Hazard

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.

Reader Discussion

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on June 24, 2019 at 10:29:43 am

Excellent and important article. Jeffrey Tulis at the University of Texas at Austin has been making a related argument about the hazards of legislative deference.

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Anne Norton
on June 24, 2019 at 10:32:22 am

1. The Constitution reserves to Congress the power of the purse. Query: Why? For whose benefit?

Weiner seems to imply that when the Executive appropriates funds without Constitutional authorization, the sole aggrieved party is Congress. Are not citizens and taxpayers also aggrieved? Should they not have standing to object?

Weiner not only implies that Congress is the sole aggrieved party, but that Congress is a party. Yet even Weiner then acknowledges that the myriad Congressmen do not act as if they identify with each other as having a common interest in defending their institution’s prerogatives against encroachment. And why should they? If the Constitutional system for representative democracy—providing for direct elections by a busy, distracted public—results in a collection of legislators who align more closely with political party than with institution, why should we not regard this as the fulfillment of our Constitutional system rather than its perversion?

But if so, then citizens and taxpayers would look to Congress in vain to defend their interests in limiting the Executive. Thus the vindication of these interests fall to private actors and the courts.

2. Couldn’t find the text of the decision. Does the judge interpret the National Emergencies Act?

‘Cuz, notwithstanding everything I just said, at a gut level I can’t deny the appeal of aspects of Weiner’s argument. I’m not thrilled Weiner’s argument that Congress could exercise its prerogatives against an unlawful Executive by taking unrelated acts of retaliation against nominees, for example. But if Congress is simply grumpy about the consequences of its decision to delegate authority to the Executive—and SCOTUS just said that delegation is A-OK—then the obvious remedy would be to repeal the delegation. And presumably courts would agree, and therefore decline to grant any relief on that basis.

Thus I assume the judge in this case did not act on the theory that the Trump Administration is imply abusing its discretion, but rather that the Trump Administration had no discretion in this matter to abuse. And that conclusion would seem to require a finding that 1) the Administration violated the Constitutional purse powers, and the National Emergencies Act failed to grant relevant delegation (an argument that would require an rigorous analysis of the statutory text), or 2) that the National Emergencies Act was unconstitutional because of its delegation.

3. Larger philosophical question: Imagine the Democrats take control of both chambers and are persuaded that Trump acted in various ways that exceeded his authority. What safeguards should they put into place? In particular, should they repeal or modify the National Emergencies Act? Is there some magic language fix to preclude future abuses? Or is there simply an unavoidable tension between granting the Executive the discretion to take bold action during emergencies and the granting the Executive the power to abuse that discretion?

I reflect on the fact that the president who did the most for the cause of reining in Executive prerogatives was arguably Nixon: Following his resignation, Congress put a variety of policies in place.

In that vein, I fantasize about a libertarian president who would immediately set to work illustrating all the powers the Executive has to abuse, and daring Congress NOT to correct the situation.

“Congress has long dithered about whether to close Guantanamo Bay and restrict executive power to order people detained simply based on some conclusory statement of ‘national security.’ Congress is a deliberative body, so is justified in taking its time. But starting today, I’ve ordered the military to begin detaining the children of representatives as a threat to the nation—based on my say-so. We’ll pick up one each day, and hold them until I’m satisfied. We won’t acknowledge that we’ve got them, or permit any communication. And Congressmen are free to take as long as they like evaluating whether they think it is sound public policy to give the Executive such powers.

Some people may seek an injunction in federal court. I’d hate to see Guantanamo Bay fill up with federal judges. But if I say that they’re a threat to national security, well, what can ya do?

Oh, and one year from today I plan to launch a nuclear strike solely on my say-so. I’ll just throw a dart at a map on the wall. If Congress has an opinion on that, perhaps between now and then they could establish some safeguards. Otherwise, you may want to schedule that vacation for THIS year rather than next….”

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nobody.really
on June 24, 2019 at 10:48:56 am

"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 desire to avoid institutional accountability has been a driving force of federal politics since the FDR administration, and was supported at the time by the very judges on the SCOTUS who refused to say "no" to the unconstitutional delegation of powers by Congress to the Executive!

I agree that the judicial power is a dangerous one, but so is the judicial deference to a Congress "that has its reasons"...

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OH Anarcho-Capitalist
on June 24, 2019 at 11:13:06 am

[S]hould [Congress] repeal or modify the National Emergencies Act? Is there some magic language fix to preclude future abuses? Or is there simply an unavoidable tension between granting the Executive the discretion to take bold action during emergencies and the granting the Executive the power to abuse that discretion?

Just saw that last February Weiner wrote an entire essay on this matter--with the oh-so-clever line, "Two generations of crisis are enough." I don't know how I missed that one.

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nobody.really
on June 24, 2019 at 11:17:12 am

I think this judge is wrong. In fact, Congress did authorize the President to use this money in the Military Construction Codification Act of 1982. (see https://www.washingtonexaminer.com/opinion/why-trumps-border-wall-national-emergency-is-constitutional).

But your argument is almost equally absurd. The idea that it is proper for a judge to ignore his oath of office and not defend the Constitution, when a properly presented case or controversy is before him, is wrong. Judges have a duty that they swore to do, that of defending the Constitution. Is it possible for Congress to defend itself? Maybe they could, but that doesn't mean that the judges shouldn't also defend the Constitution.

Also, I ask, according to the Judge, Congress invoked the power of the purse to explicitly prohibit this. If that is the case, how is Congress to enforce their will against an executive that refuses to follow it? Unless they can impeach him with massive supermajority requirements (and what if he ignores that too?), Congress is, according to the judge, trying to use its powers to stop the executive: its power of the purse powers. Congress cannot use any of its powers if those powers can just be ignored by the executive branch.

While I think this judge is wrong (and hopefully corrected on appeal by the Supreme Court), that doesn't mean that judges have no role to play here. Policing disagreements between Congress and the Executive as to the scope of their authority is a core part of the job of courts.

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Devin Watkins
on June 24, 2019 at 11:42:58 am

The idea that it is proper for a judge to ignore his oath of office and not defend the Constitution, when a properly presented case or controversy is before him, is wrong.

I had a similar reaction. Then I remembered the Political Question doctrine. Not sure it applies in this context, however. Without having read the decision, I don't have a full understanding of what the context is.

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nobody.really
on June 24, 2019 at 12:01:33 pm

Political Question Doctrine is different in that, properly understood, is the judge declaring that the Constitution places the question solely in the hands of Congress or the President. The judge is fulfilling his oath of office by not going beyond his own authority to answer questions he does not have the power to answer. The judge is still defending the Constitution in such a circumstance because the judge not deciding that question is what the Constitution requires. The best example of which is questions concerning impeachment which the Constitution says are “solely” decided by Congress.

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Devin Watkins
on June 25, 2019 at 13:29:52 pm

Just read this statement in Justice Gorsuch's dissent in Gundy: "So when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. " https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf

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Devin Watkins
on June 27, 2019 at 09:23:31 am

And the simple answer to all this folderol is:

"...we must call foul when the constitutional lines are crossed."

Indeed - then simply reinvigorate the NON-Delegation doctrine, if the Black robes are actually interested in "calling foul" and not simply arrogating to themselves the authority to settle "political" questions under the guise of constitutional *explication*.

Gawd, I wish I could "explicate" my bank statements the way the Black Robes explicate the COTUS. My,Oh My, how it would grow!

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gabe
on June 27, 2019 at 10:06:17 am

And there is more:

Here is the (not-so-Great) Chief Roberts in Kisor v Wilke:

"The underlying regulation must be genuinely ambiguous; the agency’s interpretation must be reasonable and must reflect its authoritative, expertise-based, and fair and considered judgment; and the agency must take account of reliance interests and avoid unfair surprise."

and "Indeed, as Justice Roberts notes, “there is a difference between holding that a court ought to be persuaded by an agency’s interpretation and holding that it should defer to that interpretation under certain conditions.”"

Gee Whiz, Chief! How is that for a smackdown of Executive overreach.

Once again, we see the majority of Black Robes cleverly construing COTUS in such a fashion as to hold on to their *assumed* powers to decide any and all policy matters and REINFORCING the Executive's seizure of powers properly allocated to the Legislative Branch.

Perhaps, the clever Chief SHOULD have appeared on the Democrat Debate last night as his thinking mirrors that of last nights "Game Show."

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gabe
on December 10, 2019 at 17:00:10 pm

[…] property of citizens. Leaving such issues solely in the hands of the judiciary would risk a moral hazard by which the elected branches of government feel free to ignore constitutional questions on […]

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Image of The Supreme Court majority should resist the temptation to expand the Second Amendment | American Enterprise Institute - AEI
The Supreme Court majority should resist the temptation to expand the Second Amendment | American Enterprise Institute - AEI

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