The judge is always caught in an intricate dance of power between opinion and the Constitution.
Section 3331 of the United States Code prescribes the oath of office for the House of Representatives. Rep. James E. Clyburn (D-S.C.) has taken it 11 times, which is enough to commit to memory its opening pledge—to “support and defend the Constitution of the United States against all enemies, foreign and domestic; [to] bear truth faith and allegiance to the same.” Anyone who promises to do the same thing 11 times can probably find a shortcut, and Clyburn has evidently identified one: outsourcing constitutional protection to another branch of government.
Politico, reporting on the President’s plans for an executive order on immigration, thus relayed this stunner from Rep. Clyburn, the House’s third-ranking Democrat: “Let’s let the courts decide whether it’s constitutional. That’s not for Congress to decide, that’s why we have courts to make that decision.”
Wait—why did we have Congress again?
According to the President, it is to serve his policy agenda. Thus, Thursday night, he did not attempt a constitutional justification for his executive order, instead describing it all but openly in terms of mere will:
And to those members of Congress who question my authority to make our immigration system work better . . . I have one answer: Pass a bill.
This is as much as to say that his authority derives from Congress’ failure to do what he wanted Congress to do. Clyburn has kicked Obama’s act of will up a notch by declaring that, as to the constitutional question, he simply does not care: “Let’s let the courts decide whether it’s constitutional.” To be sure, Clyburn once dared (link no longer available) an interlocutor who asked where was Congress’ enumerated power to regulate health care to identify a prohibition on the same. His constitutional ignorance is thus not so stunning after all. It is the constitutional abnegation for which it is harder to account.
Madison assumed a counteracting plenitude of ambition that would maintain the separation of powers. It is bad enough that members of Congress are willing to sacrifice their legislative prerogatives on the altar of expediency. At least in that case they have a reason for it. Crass, to be sure, but a reason nonetheless: the Chief Executive will enact their policy preferences. The deference to the courts, in contrast, is a simple abdication of responsibility.
More charitably, we might say the congressman has a facile conception of judicial review. Under this conception, there is a federal division of labor assigning constitutional interpretation to the courts and encouraging the other two branches to strain at every harness until the judiciary checks them. But this is not what Federalist 51 says about the political branches—their ambition is supposed to restrain others, that is, put them on the proper leash, not unleash themselves—and it is by no means what judicial review countenances for the courts.
True, Chief Justice Marshall declared that it was “emphatically the province and duty of the Judicial Department to say what the law is.” But as Louis Fisher has noted, to claim that duty for the courts is not to preclude other branches from its exercise. Marshall said the duty belonged “emphatically” to the judiciary—he did not say exclusively. The other branches are equally responsible for interpreting the Constitution, which is why the debates of the early Congresses were riven with strife over whether actions being contemplated were permissible under its terms.
Presidents are similarly bound by their oaths. Consequently—as Lincoln, warning against the deification of the Dred Scott decision, noted (link no longer available) —Andrew Jackson vetoed the national bank on constitutional grounds well after M’Culloch v. Maryland had reached a contrary conclusion. Jefferson had similarly said that “there is not a word in the Constitution which has given that power [to interpret the Constitution] to [the courts] more than to the executive or legislative branches.”
Jefferson and Jackson’s successors would, in time, not be so assertive in constitutional matters. As a candidate, George W. Bush raised constitutional questions about the McCain-Feingold campaign-finance measure; as President, he signed it. A change of mind is unobjectionable, of course, but Bush had not experienced one. His signing statement declared:
Certain provisions present serious constitutional concerns. . . . I believe individual freedom to participate in elections should be expanded, not diminished; and when individual freedoms are restricted, questions arise under the First Amendment. . . . I expect that the courts will resolve these legitimate legal questions as appropriate under the law.
Hamilton, by contrast, expected a President reaching such a conclusion not to sign the offending bill but to veto it.
The problems arising from this outsourcing of constitutional interpretation to the courts are manifold. It exalts the power of the judiciary beyond what the Constitution can possibly be understood to intend. (In Clyburn’s case, it is difficult to see how the courts could even exercise the authority with which he would crown them, since he pronounced the House’s lawsuit against President Obama to be a “misuse and abuse of the legal system” that was—cover the children’s ears—“undemocratic and un-American.”)
Worse, inflating the power of the courts in this way atrophies the elected branches’ capacity for constitutional conversation, which they badly need to cultivate. There is no need, the contemporary ethos holds, to debate the constitutionality of measures, just send them to that building at 1 First Street, N.E. Clyburn has at least done us the favor of declaring openly that this whole endeavor is someone else’s business.
On this reading, legislative self-restraint stemming from legislators’ interpretation of the Constitution—a display of the highest political virtue, one would think—is perverted into a constitutional sin. The separation of powers becomes a free-for-all in which the imperative is to head for, and bounce off, the guard rail in the act of grabbing as much power as possible.
This is not what ambition “counteract[ing]” ambition means. “The interest of the man must be connected to the constitutional rights of the place,” which is to say one’s own place. Ambition’s purpose, on Madisonian grounds, is to defend one’s proper turf, and confine others to theirs.
But the Constitution specifies that all branches of government swear loyalty to the document—not to an ethereal patriotism, and certainly not to a party—which is what is worst about Rep. Clyburn’s punt to the courts. Fidelity to the Constitution, which necessarily includes having an opinion as to its meaning, is not merely an authority. It is a responsibility. Giving it up is an abdication—and, having sworn an oath to do otherwise—an abrogation.