Separation of Powers

Who Decides These Things?

|The Volokh Conspiracy |

I'm a departmentalist, not a judicial supremacist.

Departmentalism holds that each branch of government has an equal authority to construe the meaning of the Constitution for itself when carrying out its own duties and responsibilities. The primary alternative, frequently asserted by the Supreme Court, is that the judicial branch has the ultimate and preeminent authority to interpret the Constitution.

Departmentalism was first and most elaborated articulated by the Jeffersonians. Confronted by a federal judiciary that enthusiastically supported the Federalist Party's Sedition Act of 1798, which was used to shut down Jeffersonian newspapers in the run-up to the 1800 election, the Jeffersonians looked for vehicles for explaining why the Sedition Act was unconstitutional and in violation of both enumerated powers and the First Amendment.

The Federalists, of course, thought the Sedition Act was constitutional on the merits. They also thought that the federal courts were the only institution entitled to evaluate the constitutionality of federal statutes. They sometimes even suggested that the Constitution was just whatever the courts said it was.

Jefferson thought it "a very dangerous doctrine indeed" to "consider judges as the ultimate arbiters of all constitutional questions."

The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. . . . I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.

Departmentalism has rarely held sway in American politics, and it has become weaker over time. Elected politicians have found plenty of reasons to pass the buck to the courts whenever possible. Sometimes it seems that they barely know how to meet their own constitutional responsibilities at all. Democrats in Congress today certainly seem uncertain about how best to understand or defend congressional authority under the Constitution.

Congress and the president frequently disagree about the scope of their respective institutional authority. Those disagreements can sometimes be intense, and each branch has its own set of political tools to advance its constitutional understanding and attempt to effectuate it. Presidents have sometimes asserted that Congress has encroached on their own exclusive constitutional domain, and legislators have sometimes resisted those claims. Presidents have sometimes claimed that Congress has abused its own constitutional powers or that Congress has interfered with the president's ability to perform his own constitutional functions. They have ways to act on those claims, and Congress has ways to push back.

I first became interested in studying the impeachment power because it was a constitutional domain in which courts had little sway. Congress construed its own authority to exercise the impeachment power, and Congress sometimes used the impeachment power as an instrument for advancing its constitutional understandings about the rules, norms and practices that would govern the American political system.

There are those who would prefer to judicialize all constitutional disputes. They would invite judges in to resolve not merely matters of individual right under the terms of the Constitution but also matters of interbranch relations. Matters that might be managed through political negotiation, compromise, norms and comity might instead by managed by reference to legal rules articulated by judges. The result might be tidier but it will be less flexible, probably less functional, and ultimately less democratic.

The impeachment power, like any other constitutional power, can be abused. The Senate sits in judgment of whether the House has misused its sole power to impeach federal officers. The people sit in judgment of whether the House and the Senate together have properly wielded this most formidable constitutional weapon. I know no safe depository of the ultimate powers of the society but the people themselves

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  1. I’m a vetoist in this context. The more chances to veto or repeal legislation, the better.

    About the only simple change I would make would be to let any chamber repeal any existing law by a simple majority petition which starts over every session. If a majority of members sign up, that law is immediately repealed. No Presidential approval/veto involved. The other chamber is out of luck. And it would be a petition, not a bill; any member can sign at any time, or unsign.

  2. The people sit in judgment of whether the House and the Senate together have properly wielded this most formidable constitutional weapon.

    Damned right. See you at the ballot box in November 2020.

    1. “Damned right. See you at the ballot box in November 2020”

      But 2/3 of the Senate won’t.

    2. No, “the people” do not sit in judgment. Thanks to anti-democratic measures like the electoral college, gerrymandered house seats and Wyoming’s ability to cancel out California in the Senate, “the people” do not get to decide much of anything. If they did, the Republicans would have been out of power in all three branches for most of the last 50 years.

      “The people” rule the United States in pretty much the same way Betty Windsor rules England — in name only, as a figurehead, and with near total irrelevance. We can debate whether or not that’s good policy, but stop the charade that “the people” are anything more than decorative.

      1. And yet if “the people” ruled with much more power, things wouldn’t be as they are today, and arguably few democrats would be winning.

        You can’t take “vox populi vox dei is good” only when it happens to align with what you want.

        Gentle reminder: the vote is just an abstraction of might makes right, and should be constrained as the dangerous thing it is.

        1. Krayt, go back and read what I actually wrote. I explicitly said i wasn’t taking a position on whether anti-democratic measures are good or bad; merely that we should stop pretending that the people’s opinions and votes actually matter.

          And no, it’s not just an abstraction of might makes right. It’s a recognition that in any political system, somebody is going to be making policy and it’s not a bad idea for that somebody to be accountable to the people for whom the policy is being made. Other than that it wouldn’t align with what you want, can you give me a principled argument for why the political minority is any better at governing than the majority would be?

          1. A smaller political minority that’s close in size to the largest political minority (because that’s what we’re talking about, right? It’s not like the Democrats have anywhere near a majority either) that’s made up of many small factions with local interests is more likely to be representative of the diverse and unaligned majority than a faction with fewer diverse interests that’s merely consolidated in major population centers and instead of changing things locally (which they have) instead seek the apply their will to those distant from them.

            Proof 1: TL;DR – that’s just a description of what we have. In the US all political factions are structural minorities because the franchise isn’t universal, but even if those with the franchise the faction-less make up the largest contingent. Of the two major contingents one is central located in a narrow geographic range, the other is spread across the whole geographic range.

            Proof 2: a majority of those who volunteer to take up arms belong to, or more closely align with, the distributed faction. Since in the end might makes right (or at least makes semi-permanent) any major change to the factions would require a realignment of the armed forces (including police and the unorganized militia).

            Related: Wyoming cancels out California only in the Senate, or were you trying to make the broader argument. If so, how? Representatives cover vaguely similar population sizes (vaguely is doing a bit of work there), and Wyoming hasn’t mattered in the electoral college since before my political memory, if ever.

            1. Wyoming has disproportionate influence in the electoral college because the ratio of Wyoming voters to electors is significantly smaller than the ratio of California voters to electors. If it were only Wyoming it wouldn’t matter, but when you factor in all the small population states having better voter/elector ratios, it significantly dilutes a California vote.

              But here’s the broader issue: The checks and balances you speak of are wonderful theory. In practice, they have given us political dysfunction unknown anywhere else in the Western world. In other countries, successful candidates can actually do what they promised the voters. We have a Congress that can’t even pass a budget, that regularly gives us government shutdowns. The impeachment shitstorm we’re currently going through would literally not be possible in any other Western democracy. Maybe you think all of that is a good thing; I mourn for the government we could have that would actually work if we had a different system.

              And if we’re going to suffer all those nasty side effects so you can keep the majority from governing, I think you need to at least answer my earlier question: What is the evidence that the political minority is any better at policy making than the majority would be? The only real support for the current system is from those who know they couldn’t win elections that were actually democratic in the sense that every vote counts as much as every other vote.

  3. Jefferson thought it “a very dangerous doctrine indeed” to “consider judges as the ultimate arbiters of all constitutional questions.”

    He was right but he let Marshal stay after Marbury so he f**ked up. Should have impeached or packed the court.

    1. Jefferson had the power neither to impeach Marshall, nor to pack the court. Those are legislative powers, not executive.

      1. And yet the belief that Presidents really are dictators seems universal across political boundaries, and even time. He’d have a better argument this century with Congress relegating most of its power to the Executive and the Courts going along with it – though in fairness that’s because the President at the time also effectively controlled the Congress and threatened to neuter the institution if they didn’t go his way, so maybe that’s when you should compare it to even though the a presidency has gained power since then.

  4. I’m a departmentalist, not a judicial supremacist.

    This is like saying “I’m a creationist, not an evolutionist”. Your belief is literally completely unimportant here, because there is a reality.

    In this case, the reality is that it is the province of the judiciary to say what the law is, and when the judiciary says it, the other branches are required to obey.

    Now, there is some room around the edges for executive and legislative branch representatives to interpret the law where there is either no controlling judicial authority or the controversy is nonjusticiable. But in the main, what the courts say goes, and whether you espouse belief in a different system is a completely worthless opinion.

    1. “In this case, the reality is that it is the province of the judiciary to say what the law is, and when the judiciary says it, the other branches are required to obey.”

      You obviously don’t read the Friday “Short Circuit” posts.

    2. “In this case, the reality is that it is the province of the judiciary to say what the law is, and when the judiciary says it, the other branches are required to obey.”

      Like with the federal laws against marijuana?

    3. In this case, the reality is that it is the province of the judiciary to say what the law is, and when the judiciary says it, the other branches are required to obey.

      This is an example of begging the question. Why are the other branches required to obey? The constitution requires the president to swear to “preserve, protect and defend the Constitution of the United States.” It therefore assumes that he or she is able to interpret the Constitution. Where does it say or imply that the interpretation of the Supreme Court takes precedence with respect to those matters?

      1. “The constitution requires the president to swear to ‘preserve, protect and defend the Constitution of the United States.’ It therefore assumes that he or she is able to interpret the Constitution.”

        Your conclusion does not follow from your premise. Soldiers who enlist in the armed forces also swear to protect and defend the Constitution. We do not conclude from this that they are as qualified to opine on the Constitution as are Article III judges. Heck, those enlistees also swear to follow the orders of those lawfully appointed over them… we expect them to do as they are ordered, not interpret those orders to suit themselves.

        1. Soldiers who enlist in the armed forces also swear to protect and defend the Constitution. We do not conclude from this that they are as qualified to opine on the Constitution as are Article III judges.

          Yes but the Constitution does not give soldiers the duty to interpret the Constitution, whereas the Constitution gives the president the duty to “take Care that the Laws be faithfully executed….” According to Marbury v Madison, the Constitution is a law, so the Constitution gives the president the duty to interpret it. It also gives the Supreme Court this duty but does not specify whether one duty is paramount to the other.

          1. ” whereas the Constitution gives the president the duty to “take Care that the Laws be faithfully executed….” ”

            True enough. And in whom does it grant the supreme judicial power? Not the co-equal judicial power, mind you…

        2. Yes we do require soldiers to evaluate the constitutionality of ever order, which is why all servicemen are not only permitted, but actively required to refuse to comply with an unlawful order.

          We sent our Chief Justice to a little town called Nuremberg a lifetime ago to enforce just that point.

          1. “Yes we do require soldiers to evaluate the constitutionality of ever order”

            Not so much. Much like cops, you have to prove that they knew the order was unConstitutional if you want to prosecute them for following it.

      2. “Why are the other branches required to obey?”

        Well, the Constitution says that the Supreme court is vested with the supreme judicial power, and the President, for example, makes an oath. Now, if the President breaks that oath, and decides not to follow the Constitution, you get a challenging situation. Most of the people who work for the government, including nearly all of the ones with guns, report to a chain of command that ends with the President.

    4. “In this case, the reality is that it is the province of the judiciary to say what the law is, and when the judiciary says it, the other branches are required to obey.”

      What makes this so, other than you saying it is so?

        1. Well, so far, the political branches have been willing to accept the Courts as arbiters of their powers. Outside the Great Unpleasantness, so have the states, mostly. Brown v. Board of Education brought some of them into open rebellion, but the President, and the 101st Airbourne, brought them back in line. It’s certainly possible that we have the first President who will openly defy the Court as well as Congress because he thinks he is the monarch rather than the executive.

          1. I don’t think he’s anywhere near the first, as I can think of examples from every president in my lifetime. The only difference is that they seem to be getting more and more brazen about it, and the incumbent’s personality makes him cry his defiance to the skies rather than whisper it in a corner, but open defiance has been the norm when it suited the President for decades.

            But that’s because the Congress is like a bad parent who keeps giving their kid whatever is demanded, even handing over things they have no business handing over, like car keys, or the ability to make laws that restrict the populace. It might be that this is merely the first time in a long time our erstwhile parent in Congress decides to enforce the organizational propriety.

            I doubt it though. If I were a betting man, and I am, I would bet that if the Democrats take both houses next year and succeed in evicting the current resident that they’ll nonetheless go back to kowtowing as soon as their guy takes the throne. If there were a way to lock the Congress into doing its job the Republicans might even join them (probably not, since there are terrible reasons they ceded power in the first place, and great distrust of any scheme to force them all to do their jobs), but alas, there is not.

            1. ” I would bet that if the Democrats take both houses next year and succeed in evicting the current resident that they’ll nonetheless go back to kowtowing as soon as their guy takes the throne.”

              I’d be betting the same side as you, but at different odds.
              One of the brilliant aspects of the federal government that has evolved from what the Founders gave us is that the boundaries between the branches can (and do) move. Eisenhower was happy to sit back and let Congress call the shots, for the most part. Following Watergate, Congress pulled back on the Presidency’s reins, and Ford ceded ground.
              When Congress gets some backbone, the can (and usually do) rein in the Presidency (particularly when they’re controlled by different parties) but sometimes they get so used to doing nothing, they do nothing when the President starts covering their turf. So the different branches’ powers brush up against each other from time to time (as they were designed to do) but usually one side cedes ground to the other, depending largely on popular sentiment at the time, and practical concerns.
              The same is true about power shared between the federal and state governments. For about four decades, Congress has been loathe to tackle the issue of illegal immigration, despite the fact that it’s obvious the problem needed to be addressed. As a result, you got all these sanctuary cities, because all those illegals are here and Congress isn’t going to do anything about it.

  5. Today we see the obvious correlary of judicial supremacy, combined with a judicial activism by which courts constitutionality their personal beliefs about every major social issue, all around us. The other branches of government have atrophied. Whatever the courts permit — indeed whatever one calculates one can get away with, taking witnesses and rules of evidence into account — is OK. The other branches of government have no obligations to develop norms of behavior, to limit themselves in any way, or to learn how to resolve their disputes. That’s solely the courts’ business.

  6. Then why have a Constitution that limits Congress at all? Legislators, and their constituents, and the President, care about policy outcomes, not constitutionality. It is no great trick to invent a Constitutional argument to convince oneself, or willing followers, that a given piece of legislation passes muster, or doesn’t.

    The courts, or a fair percentage of judges, anyway, put weight on policy outcomes as well, but maybe constitutionality at least gets a hearing there, and sometimes a fair one.

    1. Entirely agreed on the practical application – it’s rarely in the legislatures interest to curb their own power, and never in the Presidents.

      Pretty sure we disagree on specific applications though, which might be the trick. “Regulate” meant to make regular, to standardize, so things like NIST (National Institute of Standards and Technology) is perfectly within the Congresses powers, but half of the other departments aren’t. The ATF would have to be renamed the A (because nothing they do with tobacco or firearms has anything to do with standardization, or enabling a militia).

  7. We hire judges as the subject matter experts on the Constitution. Add in that someone has to be final, and that finality must mean supremacy.

    It’s also operationally viable, unlike a regime wherein the people are supreme deciders of constitutionality.

    Are there any other constitutional republics in the world that have departmentalist structure for constitutional review?

    1. The Supreme Court is not final, and it has been “overruled” by amendment (the Civil War Amendments overruling Dred Scott), by Congress just re-authorizing legislation with a different legislative hook (the Gun Free School Zone Act for example) by ignoring the courts (see Brown) or by the courts backtracking after to much heat (death penalty and paper money). Therefore, the court is careful to make rulings that are middle of the road, usually.

      That said, this is an interesting post from Whittington, because of his posts against Trump exercising his administration’s interpretation of their authority under Article II.

      1. “The Supreme Court is not final, and it has been “overruled” by amendment ”

        True, but not completely true. The postwar amendments overruled Scot v. Sanderson, but the Slaughterhouse Cases overruled significant portions of the fourteenth amendment.

      2. The Supreme Court is final as per Constitutional review.

        Are you one of those who argues administrative agencies should be able to determine the authority granted by their own enabling act? Because even I don’t think that.

    2. “any other constitutional republics in the world that have departmentalist structure for constitutional review?”

      Not a republic but until the UK foolishly created a “Supreme Court” fairly recently [within last 20 years] Parliament decided if something was “constitutional” but of course they don’t have a single written constitution.

    3. What about the Sedition Act pardons? The courts upheld these convictions but Jefferson believed the law was unconstitutional and pardoned the victims. A threat to judicial supremacy?

      What about the Republicans and their campaign to have Congress ban slavery in the federal territories even though the Supreme Court said that was unconstitutional?

      1. The pardon power trumps judicial supremacy in the context you describe by design, right? Exercising the power is inherently constitutional, and no threat to judicial supremacy.

        1. Abigail Adams might beg to disagree:

          “…Abigail had her own list of transgressions committed by Jefferson, most salient of which was his pardoning of James Callendar, who had been jailed by the terms of the Sedition Act. “If the chief Majestrate of a Nation, whose elevated Station places him in a conspicuous light. . . so far forgets what is due to his Character as to give countanance to a base Calumniater, is he not answerable for the influence which his example has upon the manners and moral of the Community?””

          https://blog.oieahc.wm.edu/abigail-and-tom/

        2. “The pardon power trumps judicial supremacy in the context you describe by design, right?”

          The pardon power is intended for cases where the law was applied correctly, but the result was unjust.

          So, to use an example that came up around the time I was in law school, suppose you have a fellow who is unable to work regular jobs because of a medical condition. He lives in federally subsidized housing. He lives in a state that allows medical marijuana, and he follows the rules to get a prescription. But… federal law still say no MJ, so he gets kicked out and has to move. But he doesn’t have a car. So a neighbor helps him move, including his state-lawful MJ plant, and oops! they get pulled over, and the cop takes notice of the MJ plant. It’s owner pulls out his medical MJ card, so he’s in the clear. But the driver of the car has constructive possession of the plant, and he doesn’t have a medical MJ card, so he gets busted for possession, and convicted. A pardon is appropriate, because although the MJ was in his car, he doesn’t use the stuff and had no intent to keep possessing it once his passenger was delivered to his new residence.

      2. Again, not Constitutional review.

        1. “Add in that someone has to be final, and that finality must mean supremacy.”

          But sometimes the courts aren’t final.

          See also the Senate’s definitions of impeachable offenses.

          And, indeed, what about the Republicans vs. Dred Scott? Did the Republicans, as their enemies said, cause the Civil War by launching an attack on the Constitution itself (the Constitution as expounded by the Taney Court)?

          1. Did the Republicans, as their enemies said, cause the Civil War by launching an attack on the Constitution itself (the Constitution as expounded by the Taney Court)?

            No.

            1. I appreciate you agreeing with me. I take it you reject the judicial-supremacist premises of this attack on the Republicans?

              After all, if the Constitution is whatever the Supreme Court says it is, then attacking Dred Scott, as the Republicans did, is the same thing as attacking the Constitution!

              1. I reject the notion that SCOTUS decisions cannot be criticized.

                Whether that constitutes “attacking the Constitution” is simply a semantic issue. In any case I think attacking the Constitution is a perfectly reasonable and common thing to do. There is hardly a day here in Volokhland that does not feature the poster or some commenters doing just that, especially if we include criticisms of SCOTUS decisions.

                1. “I reject the notion that SCOTUS decisions cannot be criticized.”

                  So does the Constitution. Not only can Congress make not law abridging free speech, but they can’t interfere with petitioning the government for redress of grievances, either.

            2. Did the Republicans, as their enemies said, cause the Civil War by launching an attack on the Constitution itself (the Constitution as expounded by the Taney Court)?

              No.”

              No, indeed. Because (duh) the Republicans launched an attack on the Constitution itself, as expounded by the Taney Court, in the 13th, 14th, and 15th amendments, which, as people who passed history class can tell you, came AFTER the war.

  8. If you mean the courts should block policies they deem unconstitutional, while Congress should repeal laws it deems unconstitutional (even if upheld by the courts), and the President pardons victims of unconstitutional laws (even laws upheld by the courts), etc., etc., then with such a perpetual rock-paper-scissors game I’d have no quarrel.

    1. Congress can repeal laws congress passes, but they cant repeal laws written by the judiciary. Like the law that created homosexual marriage. Congress cannot repeal that law.

      1. That was a fashionable policy which happened to catch the fancy, not just of the court, but of state and local governments, and perhaps Congress itself.

        Let’s not let the Court off the hook, but let’s not give them too much “credit,” either – they follow fashions in policy like some people follow fashions in clothing.

      2. ” Congress cannot repeal that law.”

        Sure they can, although they also need help from the legislatures of 38 states.

  9. “Departmentalism has rarely held sway in American politics, and it has become weaker over time.”

    Something tells me that if the Dems win the Presidency but not the Senate, Departmentalism will get a fresh look. Especially if Trump appoints more SCOTUS judges.

  10. Repeal laws? I’m not so sure. The courts could declare the congressional action of repealing a law unconstitutional. We know executive orders cannot be be reversed, by executive order.

    1. That’s just TrumpLaw, it’ll pass in time.

  11. “Departmentalism holds that each branch of government has an equal authority to construe the meaning of the Constitution for itself when carrying out its own duties and responsibilities. The primary alternative, frequently asserted by the Supreme Court, is that the judicial branch has the ultimate and preeminent authority to interpret the Constitution.”

    Allow me to offer a third path to the offered pair. The judicial branch may overrule the other branches, but only in specific circumstances, which are well known to legal scholars as the “current case or controversy” requirement.
    If Congress writes a law, and the executive branch proceeds to attempt to enforce it, Congress is undoubtedly superior in their understanding of what they were trying to pass. The executive, in actually having to apply it to the real world, may well understand and agree with Congress about what they’re supposed to be doing. In that case, no need for judicials to weigh in. But if Congress is going one way and the executive-branchers another one, all of a sudden the judicials have a role to play… and they aren’t necessarily bound to what Congress wanted.
    The same is true when either of the other two branches decide to interpret the Constitution. If the decision is reasonable and straightforward, no need for judicial interpretation. But if the interpretation is flaky, it becomes controversial and therefore subject to judicial oversight.

  12. OK, but what happens when two departments are at loggerheads over what is, or is not, constitutional? Somebody has to resolve the conflict. In fact, under any system, there will have to be somebody who gets the last word.

    1. Under our current system of government, the President simply says what he wants to be true, and around a third of population believes him, and facts that say otherwise are “fake”.

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