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.
Judicial Monarchs: Court Power and the Case for Restoring Popular Sovereignty in the United States might be placed alongside the recent tome by Justice Stephen Breyer, Making Our Democracy Work, each representing a strand of the two major ways of thinking abut the power of judicial review. Breyer represents what may be called the judicial supremacist view, the view that is most deeply entrenched among the judicial and legal elites. William Watkins represents what may be called the coordinated powers approach, an older but, since the early twentieth century, less influential approach. On the Breyer view, the courts, especially the Supreme Court,…
In the past few months, we have heard a great deal about “judicial restraint.” In particular, Progressives have complained that if the U.S. Supreme Court strikes down the Obamacare mandate that all Americans carry health insurance, it will be a case of “judicial activism” on the part of the Supreme Court. And conservatives, they say, have long supported judicial restraint, rather than judicial activism. Some conservative commentators have asked whether this categorization is fair. That’s an interesting question from a party perspective, but it pushes aside another question: whether the idea of judicial restraint is compatible with current notions of judicial supremacy?