AG Barr’s Remarks on the Executive (Part Two)

Continuing from my prior post, let’s examine the rest of the Attorney General’s remarks. He concentrates most of the remainder of his address to the judiciary and its (according to him) encroachment on executive power.

In recent years the Judiciary has been steadily encroaching on Executive responsibilities in a way that has substantially undercut the functioning of the Presidency.  The Courts have done this in essentially two ways:  First, the Judiciary has appointed itself the ultimate arbiter of separation of powers disputes between Congress and Executive, thus preempting the political process, which the Framers conceived as the primary check on interbranch rivalry.  Second, the Judiciary has usurped Presidential authority for itself, either (a) by, under the rubric of “review,” substituting its judgment for the Executive’s in areas committed to the President’s discretion, or (b) by assuming direct control over realms of decision-making that heretofore have been considered at the core of Presidential power.  

The Framers did not envision that the Courts would play the role of arbiter of turf disputes between the political branches.  As Madison explained in Federalist 51, “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”  By giving each the Congress and the Presidency the tools to fend off the encroachments of the others, the Framers believed this would force compromise and political accommodation.

The “constitutional means” to “resist encroachment” that Madison described take various forms.  As Justice Scalia observed, the Constitution gives Congress and the President many “clubs with which to beat” each other.  Conspicuously absent from the list is running to the courts to resolve their disputes.

As has been a running theme, there is a veneer of truth to the statement, but it overstates the case. While there is no specific constitutional language granting the courts the authority to meddle in disputes between the executive and legislative branches, it can reasonably assumed to be an inferred power based on the nature of the judiciary.

Let’s take a look at Federalist 78, which marked the starting point of Hamilton’s analysis of the judicial branch. It’s most famous for describing the judiciary as the “least dangerous branch,” but there’s more to it than just that. Here Hamilton explains why it will be proper for the judiciary to interfere and declare legislative acts void:

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

A few things stand out about this. It is notable because this is language Chief Just Marshall will employ or least echo in critical rulings a decade later. Second, it’s interesting that Hamilton spends so much time discussing judicial corrections of legislative encroachment. This either indicates that Hamilton didn’t think executive encroachment would be a problem, or perhaps it’s a sign of which branch he thought would paramount in the federal system.

Most importantly, as it relates to Bill Barr’s remarks, is that even though this references judicial interpretation of legislative actions as opposed to refereeing interbranch squabbling, it contains an important insight about the nature of the judiciary and its role in our constitutional system. Let’s revisit the beginning of the second paragraph quoted above:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.

I think this remark has to be interpreted in light of contemporary events. I am of the firm opinion that even Alexander Hamilton would be appalled at both the growth in the importance and reach of the federal government and the extent to which the executive has grown in stature. Therefore I think it is reasonable to apply these remarks to certain aspects of the interbranch disputes Barr is talking about. Let’s apply this principle to perceived abuses of executive power, or to put it another way, to actions undertaken by the president outside of his clear constitutional authority. Many of the disputes that took place between Congress and the Obama administration had to do with Congress alleging that the Obama administration was acting outside its delegated authority. In almost every instance the Supreme Court sided with Congress – often unanimously.

I don’t think the Court is acting as some sort of referee here. Rather, the Court is adjudicating whether the president has acted within his prescribed powers. Just as it is legitimate for the Court to declare legislative acts contrary to the Constitution void, it is just as legitimate for it to declare executive acts contrary to the Constitution void. Thus the court striking down President Obama’s “recess” appointments not made during an actual recess is an action that is perfectly in accord with the Framers’ intent.

Barr is on more solid ground when he moves onto more specific instances of judicial overreach.

The Travel Ban case highlights an especially troubling aspect of the recent tendency to expand judicial review.  The Supreme Court has traditionally refused, across a wide variety of contexts, to inquire into the subjective motivation behind governmental action.  To take the classic example, if a police officer has probable cause to initiate a traffic stop, his subjective motivations are irrelevant.  And just last term, the Supreme Court appropriately shut the door to claims that otherwise-lawful redistricting can violate the Constitution if the legislators who drew the lines were actually motivated by political partisanship. 

What is true of police officers and gerrymanderers is equally true of the President and senior Executive officials.  With very few exceptions, neither the Constitution, nor the Administrative Procedure Act or any other relevant statute, calls for judicial review of executive motive.  They apply only to executive action.  Attempts by courts to act like amateur psychiatrists attempting to discern an Executive official’s “real motive” — often after ordering invasive discovery into the Executive Branch’s privileged decision-making process — have no more foundation in the law than a subpoena to a court to try to determine a judge’s real motive for issuing its decision.  And courts’ indulgence of such claims, even if they are ultimately rejected, represents a serious intrusion on the President’s constitutional prerogatives.

Without necessarily endorsing all of Barr’s arguments above, I do think a reasonable debate can be had over the extent to which the courts should be examining motive in the application of executive orders. Once again, though, I’m less comfortable with his insinuation that the judiciary should have a limited or no role at all in these matters. Rather, it’s the application that should be up for debate. I also think Barr is right to question whether a single appeals court or some other lower court should be able to halt an executive action. Again, this is something which should be up for legitimate debate, and so I don’t object to anything Barr says in regards to this specific issue. I also tend to agree with Barr’s assessment of Boumediene and some of the other related Supreme Court decisions rendered during the Bush administration. And once again I will restate that it’s the specific application of the judicial power that should be called into question, but not the nature of the power itself.

When all is said and done, I do agree with one of the Attorney General’s concluding remarks:

In this partisan age, we should take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure.

How true. And I would hope partisan passions would not entice constitutional conservatives to suddenly develop a fondness for a strong executive with almost unfettered authority to act as he deems appropriate. I’m not necessarily accusing Attorney General Barr of hypocrisy on this matter, but it was reported that his remarks received a warm standing ovation. That seems somewhat discordant considering his audience was the Federalist Society. As I said there are aspects of this speech which would be consistent with an originalist approach, the overall tenor of the remarks are – to put it mildly – not quite consistent with an originalist view of interbranch relations.

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