A more balanced critique of the Attorney General's view of the scope of executive power would be both more persuasive and less polarizing.
The case of Washington v. Trump—in which a panel of the Ninth Circuit expressed apparent sympathy, during Tuesday’s arguments, for a district judge’s restraining order against the President’s pause on immigration from seven Muslim-majority countries identified as terrorism threats—has less to do with an overreaching judiciary than with an underperforming Congress.
The decisive current in the arguments pertained to whether the President’s order was reviewable by the courts. The Justice Department’s lawyer, Austin Flentje, said it was not, interchanging a claim that “national security judgments” were up to “the political branches” with another that “the president” was entitled to make “a national security determination.”
Yet there are two political branches. One is the executive. The other is the Congress. The false notion of the judiciary as the final check—the “last best hope,” in Laurence Tribe’s phrase—assumes a parliamentary system in which the executive and legislative powers operate symbiotically and are restrained only by independent judges. The Constitution, by contrast, assumes a genuine separation of powers in which the Congress operates independently of the President.
With respect to immigration, it has decided not to, at least where the phantasm of plenary “national security” power for the President is concerned. The 1952 statutory delegation on which the President’s executive order relied, 8 U.S. Code §1182, uses Congress’ Article I authority over immigration to specify classes of aliens ineligible for admission to the United States before proceeding to transfer the meaningful whole of that authority to the executive:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Andrew McCarthy is right to note that this Section seems to delegate sufficient authority in which to root the executive order. It is less persuasive to suggest the delegation was unnecessary because the President possesses a murky reservoir of “national security” power arising from the mists of Article II. No such blanket authority exists, especially where Article I has already spoken.
On the contrary, the problem is that the delegation of §1182 authority was so broad. The language so wholly gives away the store that the stocking of the shelves that precedes it is rendered nearly superfluous. That is the only reason the judiciary emerges as the sole check on an unimpeded President: namely, that the Congress—the other political branch, which used to be known as the first branch—has decided not to be one. Yet judicial supremacy is not the answer to presidential supremacy. The separation of powers is.
Federalist 51 assumes the ambition of each branch of government to exercise power will override other sympathies that might otherwise tend toward a concentration of powers. It does not account for a party system that makes a virtue of coordination. That James Madison is the theoretical father of both the separation of powers and the party system is one of the American political tradition’s historical ironies, but even he insisted on the prerogatives of Congress, which endured intact well into the 20th century. (Franklin Roosevelt vetoed 635 bills despite never facing opposite-party control of either chamber of Congress.)
Congress today aspires with unbecoming desperation to maintain power but seemingly harbors no ambition to exercise it. Capitol Hill staffers worked in secret with the White House unbeknownst even to their Congressional employers to help draft the executive order on immigration. There have been reports of confidentiality agreements. Speaker Paul Ryan diminished even this ominous question of process by saying that “Congressional staffers help the administration all the time.” In secret from their bosses?
If Ryan is correct, then at a minimum, the competition Madison assumed between the executive and legislature has broken down. That is not to say the competition must be gratuitous; Madison himself was an advisor to President Washington. It is to say the competition will tend toward institutional rivalry, especially when the question is which branch will exercise a given power. The President’s answer, invariably, is: I will, and don’t touch. The Congress’: Would you mind?
But what we have is parliamentarism inflected with a supreme executive, and it naturally leaves the judiciary as the only remaining check. It serves as a reminder that judicial supremacy over constitutional questions is a natural consequence of the debility of Congress.
Indeed, Congress has been pleased not only to transfer its power to the president but to defer to the judiciary, too. Consider Senate Majority Leader Mitch McConnell declaring on the one hand that “we need to be careful” about the immigration order because “we don’t have religious tests in this country” and on the other that “[u]ltimately it is going to be decided in the courts as to whether or not this has gone too far.” So that was a charitable use of “we,” a pronoun in which personal responsibility is normally subsumed. What McConnell really meant was that someone else needed to “be careful.” Lord, give me constitutionalism, but not yet.
This is an abdication. It is anti-constitutional. And it raises serious questions about why either party is so desperate alternatively to keep or to gain the majority in Congress or, for that matter, to be elected to individual seats if it is only to serve as a handmaiden or foil to the President. It is difficult to see effective reforms save those that change motives by attracting politicians to Congress whose interest is the exercise of power.
The case against judicial supremacy may depend on them. When Congress runs to the President, begging him to assume responsibility for the exercise of legislative authority, power becomes unrestrained unless the judiciary is left standing to check it. This is not the Constitutional design, but neither is it an unsurprising adaptation. Those who wish to see the courts subjected to the normal mechanisms of the separation of powers cannot consider the judiciary in isolation. Those mechanisms—including legislative power, oversight and impeachment—must function overall. Congress, now complacent, could stand to become impetuous again.