Lord, Give Me Constitutionalism, But Not Yet

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.

Reader Discussion

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on February 09, 2017 at 08:42:48 am

Quite thoughtful essay.

Totally awesome title.

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Image of nobody.really
on February 09, 2017 at 09:28:55 am


Absotively one of your best!

One does wonder, "Why all the fuss?" to maintain a Party majority when in fact neither Party is actually interested in exercising the delegated power assigned to the Legislative.

I will add a link from yesterdays Originalism Blog on the Executive,s inherent authority over foreign affairs that differs somewhat from your analysis. It is informative:


I am not certain if your claim that Congress having been specifically granted such power over immigration is sufficient to preclude the inherent "Executive" powers of the Chief Executive. Interesting.

Anyway, great essay!

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Image of gabe
on February 09, 2017 at 09:45:34 am

Your essay is very persuasive, however, I would only suggest, that Congress' failure to fully live up to its Constitutional legislative mandate is not an excuse for the Judiciary, also sworn to uphold and protect the Constitution, to assume those legislative powers unto itself, also in violation of the Constitution.

Whereas, while neither is the Executive constitutionally granted legislative powers, there has been an apparent constitutionally legal delegation of authority extended to the Executive by the Congress. Conversely, there is no evidence that 1) the Constitution grants any legislative power or executive power to the Judiciary, 2) Congress ever intended to delegate any of its legislative power to the Judiciary.

As such, in my view, until the court reverses itself on the constitutionality of Congressional delegation to the Executive, or narrows its scope, (which is probably more likely than Congress acting to rein in its delegative practices), any other ruling but in favor of the President's right to act in this instance for (delegated or not) National Security considerations, would still be a Judicial over-reach.

It seems to me, in this instance, the Judiciary has its hands bound by the Constitution and its feet bound by Congressional delegative authority. And, I would suggest, the leg shackles are self-imposed.

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Paul Binotto
on February 10, 2017 at 16:14:04 pm

"The case against judicial supremacy may depend on them."

The case has just grown a HELL of a lot stronger given the decision handed down by the 9th Circus.

Now for a bit of intemperate comments:

It is time to RESIST THE COURT and DEFY their order.

A constitutional crisis, you say!

Yep, but one that was initiated by the Black Robes with their brazen and blatantly POLITICAL overreach.

A constitutional crisis *a'brewin'*, you say.

Nope, one that has been festering for over six decades AND if it is not forcefully confronted by both the Executive and Legislative, we will cease to have a Republic but will instead be ruled by a select body of Black Robed Guardians.


Go to the People and MAKE YOUR CASE TO THE PEOPLE!
Let them storm the hallowed halls populated by the Black Robes.

Intemperate - too damn bad! The Court itself is intemperate! (as in *unrestrained*).

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Image of gabe
on February 13, 2017 at 14:00:30 pm

Very interesting essay! I think the issue of the Court needing to be the check to the executive actually arises from a different problem. The basis for the court being "the only check" is because in general discussion, Congress is not considered a legitimate part of the government unless it is controlled by the Democratic party. For the past 6 years we have consistently heard that any refusal of Congress to support the executive is illegitimate. In the case of the travel ban the fact is that the general population and Congress don't really object too much. It has a limited time frame, and will be reviewed. Assinine but legal is a realistic description. Pushing to speed up the review so it will effectively go away would be a very reasonable thing to push for. Declaring it illegal when it is merely stupid is an attack on the rule of law. Unfortunately I am afraid that the administration may be pushing on the weak support for the rule of law among Democrats, the press and the courts, in a way that will severely compromise our institutions. I have very little faith that any of those institutions will acknowledge the conflict between compassion and the rule of law quickly enough to avoid the damage.

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Image of mnemos
on February 14, 2017 at 15:06:56 pm

Sorry, but I have serious problems with much of what you call the evidence of congressional failure.

The courts could decide that congress is precluded from delegating or even cooperating with the executive. But that is not the state of constitutional law.
Further that is close to a binary proposition - either congress can in whatever instances it chooses work with the executive or ever transfer portions of legislative power to the executive - or it can not.
Any "middle way" would be unconscienably messy.

If congress can not delegate or work with the executive - you have a far bigger issue than an single Trump EO.

If congress can - then the enitre EO debate is moot.

Finally the author makes a common error in presuming that checks and balances always require congress and the executive to be at odds.

Much of the "checks and balances" is layered independent requirements for majorities support that essentially create a super majority requirement to accomplish anything.

When the electorate places the entirety of the federal government in the hands of one party, the objective of the checks and balances - assuring broad support before government can act is met.

It is irrelevant whether that broad support is acheived by putting one party in controller or by requiring two parties to cooperate.

personally I would prefer that the courts found that the nothing in the constitution permitted congress to share some of its power with the executive.

But that is not what the courts have done.
And any argument for a middle way is specious.

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Image of jbsay
on February 14, 2017 at 15:14:43 pm

Good points!

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Paul Binotto

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