The Supreme Court has given House Speaker John Boehner the green light to sue against President Obama’s abuse of executive power. Taking on the imperial presidency is a good thing — but not if it further strengthens the imperial judiciary.
Resisting excessive power in the hands of the executive — the president and the administrative state behind him — is in keeping with Republican tradition. The Republicans were the heirs of the Whigs, who formed in the 1830s in opposition to the unprecedented acts of President Andrew Jackson — King Andrew the First, they called him. They took the name Whig from 17th- and 18th-century opponents of royal absolutism in England. They believed that the legislature, being closest to the people, should be the predominant branch of the government.
Republican Theodore Roosevelt is usually called the first “modern” president. But his Progressive executive activism was controversial within his own party. His successor, William Howard Taft, was more of a “regular” Republican who deferred to Congress. TR rebelled and ran as an independent Progressive in 1912. This GOP schism put Democrat Woodrow Wilson in the White House and consummated the marriage of executive power and the Democratic party. After a Republican hiatus and return to “normalcy” in the 1920s, that marriage gave birth to Franklin D. Roosevelt and the New Deal, the establishment of the executive-led administrative state as we know it today.
Republicans continued to resist the aggrandizement of executive power, but their resistance weakened as the post-war decades proceeded. Dwight D. Eisenhower talked in Whiggish terms about restoring executive–legislative balance, and liberals at the time perceived him as a weak president. Scholars have since shown that Ike was in fact a vigorous president, but one who wielded his power behind the scenes with a “hidden hand.”
Since Ronald Reagan’s restoration of the American presidency, both parties have embraced executive power when they have been in the White House and denounced it when they have been out. But President Obama’s abuse of executive power is a matter not of degree but of kind. It has rightly awakened in Republicans a constitutional, rather than a merely partisan, response.
It is unfortunate that the response will come in a lawsuit, giving still more power to the judiciary, rather than by Congress’s reclaiming its own constitutional responsibilities. One can say the same thing of judicial power as of executive power — that both parties favor it when they have it and decry it when they don’t. In the first part of the 20th century, cries of judicial activism and “government by judiciary” came from Progressives and New Dealers. After FDR got a New Deal Court, and especially after Earl Warren (who, like many liberal judicial activists, was appointed by a Republican president), conservatives complained about judicial power. Neither side got anywhere. Judicial power has grown inexorably, gaining strength even from its apparent setbacks.
The matters that Speaker Boehner wants to litigate — issuing waivers or exemptions from laws, selectively enforcing others, creatively interpreting laws via executive orders — are all what used to be called “political questions.” Before the Warren Court, the principle that some questions are not “justiciable” — not able to be settled by a lawsuit — was an important limit on judicial power, which the Constitution restricts to genuine “cases and controversies.” The case usually cited as establishing “judicial review,” Marbury v. Madison, essentially involved a “political question.” (Mr. Marbury was entitled to his office, Chief Justice Marshall held, but the Court had no power to enforce that right.) Many of the most controversial decisions by the Supreme Court have come in contrived cases, where lawyers and judges found ways to turn political questions into legal ones.
If the Court now arbitrates controversies between the other two branches, we no longer have checks and balances. This would affirm what the Court said about its own power in Cooper v. Aaron (1958): that its interpretation of the Constitution is the Constitution, the “supreme law of the land.”
Most of the problems of the imperial presidency and the administrative state have arisen from Congress’s irresponsible delegation of its legislative powers to the executive. It should not compound this by inviting the judiciary to clean up the mess.
— Paul Moreno is the director of academic programs at Hillsdale College’s Kirby Center for Constitutional Studies and Citizenship.