Just when I thought was done with Departmentalism vs. Judicial Supremacy, they pull me back in again! In my last post, I quoted Abraham Lincoln’s famous statement about Dred Scott in his first inaugural: “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers” (emphasis added). I noted that one might interpret this as expressing the view that a series of decisions might…
Yesterday, I completed my series of posts on departmentalism and judicial supremacy. My main point is that the issue turns largely on the history and that, while more research is needed, one real possibility is that the correct rule is a moderate judicial supremacy. Here are the original five posts: Departmentalism versus Judicial Supremacy – Part I: Some Preliminary Distinctions Departmentalism versus Judicial Supremacy – Part II: Getting from Departmentalism to Judicial Supremacy Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System Departmentalism versus Judicial Supremacy…
In this post, I want to draw together some of my earlier posts to explore what the norm of judicial supremacy might be. Let me remind the reader of two points from my prior posts: First, the content of the executive and legislative obligation to follow judicial precedents turns in significant part on the relevant practice at the time of the Constitution’s enactment. Second, there is a similarity between the argument for judicial precedent (which require courts to follow judicial precedent) and the argument for judicial supremacy (which require the executive and legislature to follow judicial precedent).
While I have said that there does not appear to be evidence of genuine departmentalism at the time of the Constitution – of the executive and legislature being entirely free to ignore judicial precedents – it is not clear what the practice was. One possibility is that the executive and legislature were bound to follow the courts once a single case (that is, precedent) was decided. Another, in my view more likely, possibility is that a series of decisions by the courts reaching the same result were required before the executive and legislature were obligated to follow the judicial precedents.
One bit of evidence for this latter view is that this appears to have been the rule as to a court’s obligation to follow its own precedent. A single precedent did not appear to obligate a court to follow that precedent. Such a precedent needed to be considered, but it was not binding. Rather, it was a series of precedents that obligated a later court to follow the precedent. See here.
In my last post, I noted that the advocates of departmentalism do not rely on pre-constitutional practice to found their view. Instead, they tend to argue that the Constitution adopted a new system, one in which each of the branches is equally entitled to interpret the Constitution. The problem with this argument is that it lacks support. The Constitution both relied upon the preexisting English and state systems as well as establishing some innovations. The question for departmentalists is to show that the Constitution actually adopted departmentalism. Here is what I regard as the basic textual problem with arguing that the new…
In my previous post, I noted that any obligation of the executive and Congress to follow court precedents – either a strong judicial supremacy or a milder obligation to follow a series of court decisions – would have its source in either an interpretation of the Constitution’s judicial power or federal common law. But that reading of the Constitution or the common law would require evidence that judicial precedents were seen as imposing such an obligation.
What then might that evidence be? One possible source of evidence are statements made by various framers at the Philadelphia and Ratification Conventions that Randy Barnett has recently blogged about. For example, he notes that James Wilson said:
If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.
One might read Wilson as stating that a judicial decision declares an unconstitutional law “null and void” and therefore the executive is obligated not to enforce it. But Wilson need not be read that way. As Ed Whelan notes, this statement might be understood instead as stating that the executive will as a practical matter not be able to enforce laws that the courts are unwilling to apply in adjudications.
After a short detour responding to Mike Paulsen, I am back to elaborating on my view of the departmentalism/judicial supremacy debate. As I noted in my last post, the basic question turns on whether the executive or Congress must follow judicial precedents.
What might obligate the executive or Congress to follow judicial precedents? One starts, of course, with the text of the Constitution. The judicial power extends only to “cases” and “controversies.” Therefore, in the absence of anything else, a judicial decision cannot bind other than as to the judgment. The judgment decides the case; the precedent is about possible future cases that have not arisen. This is part of the core of the case for departmentalism.
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.
Since I was away on vacation when this debate began, I am coming late to the party. But I have some distinctive views on this issue and so I thought I would write some posts about the matter.
I should start out by saying that I have something of an intermediate view of the matter – I recognize that both sides have some strong points to make. In the end, I stand much closer to the judicial supremacy side, but for different reasons than at least some of those defending the position.
I originally encountered this issue in law school and especially at the Meese Justice Department when Attorney General Meese gave a speech defending departmentalism. I initially was attracted to a moderate departmentalist position, but over time I began to have second thoughts. By the time I published this paper (here and here) in 1993, I had already moved towards seriously doubting the departmentalist position. And I have only become more skeptical over time.
Over at the Volokh Conspiracy, John Elwood notes that President Obama signed the Defense Authorization Act, but will not enforce — or as he euphemistically puts it, reinterpret — certain provisions that he regards as unconstitutional. This is standard fare as to large spending type bills like this one. But I can’t resist noting that critics on the left used to go crazy when Bush did it; not so much when Obama does.
While this is the practice these days, I think this action of signing a bill and then not enforcing a provision is always unconstitutional. (I said this when George Bush was President — in fact, when each of the two Bushes was.) And this is true, even if one is a Departmentalist who believes that the President has an independent obligation to enforce the Constitution. I first made the argument in 1992 here in the Northwestern Law Review. I then developed it further in this article.