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Paulsen on Departmentalism versus Judicial Supremacy

I have started a series of posts on the departmentalism – judicial supremacy debate in an effort to explain my position, which inclines towards, but does not go all the way towards judicial supremacy.  But I am going to interrupt that planned series to briefly respond to a post written by my former Yale Law School classmate and OLC colleague Mike Paulsen.  Mike sets up a “horrible hypothetical” – one that involves a horrible situation – involving an awful law that prohibits speech that the First Amendment protects, punishes its violation with torture that violates the Eighth Amendment, and unconstitutionally prohibits the President from pardoning the persons convicted.  (It also violates other clauses as well.)  The Supreme Court then upholds the constitutionality of the law as to an individual. Mike asks, among other things, whether the President is constitutionally obligated to enforce the law.

Legally, the answer would seem to be clear.  The courts, with Supreme Court review, have issued a judgment that requires the torturous punishment and prohibits pardons.  But Mike’s horrible hypothetical appears designed to make us resist this conclusion – it is just such a horrible decision and outcome!  But there are several reasons that allow us to easily avoid the pull of this hypothetical.

First, the situation Mike envisions is extremely unlikely.  There is a wide consensus these days that the law would be unconstitutional.  It would not be enacted into law by both houses of Congress and the President.  And it would not be approved by the courts, including the Supreme Court.

A law professor can always come up with unrealistic, horrible hypotheticals.  We should answer them, but we should also eschew their emotional pull when they are unrealistic.  Mike is a believer in a broad Commerce Clause.  I could imagine hateful and horrible laws that Congress might enact that Mike would presumably believe were constitutional.  That does not make his reading of the Commerce Clause wrong (although I do believe in a much narrower reading of the Clause than he does on other grounds).

More to the point, one can easily change the hypothetical so that it pulls in the opposite direction.  Suppose that the President asserts the right to summarily execute people who criticize the government.  The executive arrests an individual, who successful seeks a writ of habeas corpus in the courts.  The President then refuses to follow the writ, claiming it is unconstitutional, and executes the person.  Pretty horrible as well – and one could easily add all kinds of wrinkles to make it worse.

Second, whatever one thinks about the First Amendment and Eighth Amendment violations, the violation of the Pardon Power is absolutely clear.  It is inconceivable that the courts would approve of this.  And if the Pardon Power were allowed, then the President has an easy response to the problem: he pardons the person who has been convicted.

Third, the hypothetical is problematic because it neglects the essentials of the rule of law.  The law, especially when it appropriately consists of rules, will sometimes lead to bad results.  That is the price we pay for the constraining of discretion that is essential to tolerable government.  The trick is to have rules and procedures that minimize the extent to which there are bad results.

The original meaning of the U.S. Constitution, as amended, does a good job of minimizing those bad results.  Mike has to come up with such an unrealistic hypothetical because our system would guard against this problem.  If one wants to make this type of argument – and it is not clear that such arguments are relevant to the original meaning – one needs to look at the overall consequences from the two competing interpretations.  And I am confident that we are safer with the checks from the courts than from the unilateral actions of a president.

Finally, let’s suppose that the law does get passed and approved.  What should the President do?  Even though he has a legal obligation to enforce it, I would argue that he should not do so.  The law is an important value, but not the only the value and not always the highest value.  The President could announce that he is going to pardon the individual, that he regards the law as seriously unconstitutional, and that the Congress can judge him as they will in any impeachment proceeding that they might decide to bring.

Reader Discussion

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on June 15, 2015 at 13:22:46 pm

"First, the situation Mike envisions is extremely unlikely."

Maybe, but the Court has done worse.

"The law is an important value, but not the only the value and not always the highest value."

If he would be violating his oath of office, wouldn't it be better for the president to resign, rather than setting the precedent that a government official should use his power to violate the law whenever he thinks doing so would be wise? Deliberately misusing legal power is an awful precedent, and I would think it should not be considered unless the lives of millions are at stake, not merely one life.

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Andrew
on June 15, 2015 at 13:24:30 pm

You say that it is "extremely unlikely" because there is a "wide consensus" that the courts decision would be incorrect in this case. I think that is true, but beside the point. To have a theory of what the constitution means, it should be able to answer any question before it within its scope. Your answer to the question seems to be that he has a "legal obligation to enforce it" but that the President should reject the constitution itself as immoral in such a situation and reject the constitutional obligation he swore an oath to uphold. I think this is just wrong on several levels. First you are wrong that the constitution would require the President to honor the opinion of the judges that executing this man is required by law. As I said before, the President swore the same oath that the Judges do, and he so he has the same authority that they do to read and judge the meaning of the constitution and declare some statutes unconstitutional (go back and read Marbury v. Madison 5 U.S. 137, 180 (1803)). That is perfectly within the law and meaning of the constitution. That doesn't mean the President can ignore any order of the court (such as an order NOT to execute the person), but that he can refuse to enforce the statute he thinks violates the constitution. His oath is to faithfully enforce the law, not whatever congress passes.

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Devin Watkins
on June 15, 2015 at 13:59:42 pm

Incidentally, if we really want to give the president a green law to break the law sometimes for the sake of doing good rather than evil, then we may have a big problem. Per Justice Scalia:

"Nobody — remember this — neither Hitler, nor Lenin, nor any despot you could name, ever came forward with a proposal that read, 'Now, let’s create a really oppressive and evil society.' Hitler said, let’s take the means necessary to restore our national pride and civic order. And Lenin said, let’s take the means necessary to assure a fair distribution of the goods of the world."

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Andrew
on June 15, 2015 at 14:00:33 pm

"green law" >> "green light"

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Andrew
on June 15, 2015 at 15:06:06 pm

In response to the comments, please recognize that I did not present the reasons why Mike's Departmentalism is mistaken. I merely responded to the emotional appeal of his hypothetical. If you agree with Mike, please explain what happens when the President executes someone in defiance of a court order. I would argue that the incentives of judges are better than those of Presidents.

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Mike Rappaport
on June 15, 2015 at 16:38:27 pm

Fair question. For one thing, the President can be easily gotten rid of within less than four years. Judges not so much. More generally, I don't think one has to support presidential power to defy lawful court orders against executing someone, in order to support presidential power to defy blatantly illegal court orders to execute someone.

Perhaps it is possible to attach some standard limiting the presidential power to defy court orders. E.g. the court orders are in defiance of elementary constraints that are inherent in judicial power.

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Andrew
on June 15, 2015 at 19:22:08 pm

There's an important distinction between a judicial determination that a particular executive or legislative action is unconstitutional and a judicial order that one of the other branches exercise its powers in a particular mode-- a mode deemed unconstitutional by that branch. To hold that the first determination is binding simply gives the judiciary a veto on unconstitutional government action (which every branch possesses, albeit at different points in time, the judiciary being last)-- to hold that the second is binding gives the judiciary something more (if it can compel the executive to execute, can it compel the legislature to legislate?). In this case, I'd say that the President is not under an obligation to abide by a judicial order that he do something which he deems unconstitutional (although he could properly be impeached for his refusal to do so)-- certainly not an order of this kind, which, to my mind, is sufficiently beyond the bounds of what can properly be called "law" that it doesn't bind anyone. By contrast, if the President was determined to execute Paulsen pursuant to a statute held unconstitutional and was ordered not to do so, such an order would be binding-- even if the President deemed Paulsen's execution constitutional.

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Evan Bernick
on June 15, 2015 at 22:41:52 pm

I do agree with Mike Paulsen, I think he is exactly correct. The judiciary has the power to order the president NOT to use the power of government to do something (such as execute someone or keep them imprisoned). Should he refuse to follow the order by the judiciary to not use the power of government, then the court and congress should act as if it was done without congressional authorization (regardless of what the statute says, if the court has ruled it unconstitutional then it is as if it didn't exist). So that would mean impeachment in the congress for an act of murder by the president. And a direct bivens action in the judiciary for the taking of the person’s life without due process of law. And a criminal action by a state government against the president in which the person was executed for murder. Notice what happens if the president refuses to enforce what he thinks is an unconstitutional law though, nothing other then possible impeachment in congress if they believe the law was constitutional. There is a big difference between a judicial order to require the executive to execute the law, and a judicial order that orders the president not to use the power of government.

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Devin Watkins
on June 15, 2015 at 23:18:32 pm

Potentially the court could order that the president be thrown in jail for contempt of court, but I doubt that would work. The President is just going to refuse to go to jail and then who's going to enforce that? Technically I guess the Marshal of the United States Supreme Court could be ordered to try and enforce it and could then appoint deputies, but at that point you are almost in civil war. Also the President could just pardon himself of any such crime (as it falls under federal law, he cannot pardon state law) Very messy, better that the court leave the execution as to criminal prosecution to state law enforcement officers and congress, the court could still give the person's family who was wrongly executed money.

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Devin Watkins
on July 09, 2015 at 14:47:08 pm

[…] Rappaport, “Paulsen on Departmentalism versus Judicial Supremacy,” Library of Law and Liberty, June 15, […]

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Judicial Supremacy: Judicial Tyranny | POLITICS & PROSPERITY

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.