Law & the Courts

The Rules About the Rules

(Photo: Dana Rothstein/Dreamstime)
Sometimes the Constitution’s meaning is in its plain language. At the margins, things are different.

First, he learned that health-care policy is complicated. Then, it began to sink in for him that the presidency is a hard job. Now, he has discovered that the constitutional system of checks and balances means that he does not have unilateral power to do whatever he likes. Donald J. Trump’s epic voyage of discovery has indeed been wondrous to watch.

What President Trump is learning is that politics isn’t only about the rules. It’s also about the rules about the rules.

Conservatives who think of themselves as constitutionalists, as followers in the footsteps of Antonin Scalia and Robert Bork, often proceed as though all of the answers to all of our political disputes were self-evident in the language of the Constitution and the statutes. There is something very Protestant in that: It is analogous to the belief that the truth about everything can be found in a complete and usable form in Scripture, if only we look with the right kind of eyes and the right kind of hearts, no interpretation or philosophy necessary. That sort of thing does not hold up very well to even cursory scrutiny. Both are necessary, but the Church is not the Book.

In his very amusing and illuminating essay “The Myth of the Rule of Law,” Professor John Hasnas of Georgetown considers the issue of interpretation and the First Amendment, which says that Congress shall pass no law abridging freedom of speech or freedom of the press. He asks: Can the president issue an executive order prohibiting criticism of the government? We recoil from the notion, but a prohibition on it is not quite there in the First Amendment, the language of which restricts what Congress may do, not what the president may do. What about prohibiting the publication of military secrets during a duly declared war? There is not in the First Amendment an exception for military issues, but we have made room for one. You can make a good case against presidential censorship and for military-secrecy laws, but that case is not to be found in the plain language of the First Amendment. It is to be found in interpretation, reasoning, argument — politics.

Sometimes the answer is to be found in the plain language of the law. At the margins, things are different.

This difficulty has been aggravated by the aggrandizement of the presidency and the consequent diminishing of Congress. Professor Hasnas’s first dilemma might be solved by an understanding of presidential powers anchored in the understanding that the duty of the executive is to execute the duly enacted laws of the nation: If Congress has no power to enact censorship, then the executive has no opportunity to take action against free speech or the press: Congress has no power to enact a law in violation of the First Amendment, and therefore no duly enacted law exists under which the executive might issue orders to ensure its enforcement. The fact that this partial solution to Professor Hasnas’s dilemma exists suggests to my mind that it might have been intended to be part of our understanding of the constitutional order, and, indeed, that conception of the presidency is hardly original to me. It seems to have been something like Thomas Jefferson’s understanding, too, though Jefferson’s natural appetite for rascality made him as much an entrepreneur as an executive.

As I alluded to in my earlier column about President Trump’s first 100 days, this is complicated by the dual nature of the presidency detected by some of our political thinkers. The executive is there to execute the laws, they argue, but he is also there to act as a kind of personification of the government, one invested with fairly open-ended (or at least vaguely defined) powers in matters of national security and foreign relations. We have attempted to finesse these tensions and contradictions with a legal doctrine insisting that disputes between the branches are “political questions” best settled on the campaign trail and at the ballot box than in a courtroom or legislative chamber. There is of course something to that, but it is an easy intellectual shelter into which to retreat.

The idea that there exists no judicial remedy for disputes among the branches of government is inconsistent with the founding case of American constitutional jurisprudence, Marbury v. Madison. The instrument of relief sought in that case was a “writ of mandamus,” which is to say, a court order compelling an executive-branch employee to do his job. (The Supreme Court found that the Jefferson administration’s actions in the case were illegal, but declined to issue the writ of mandamus, deciding instead that the statute under which the case had been brought was unconstitutional and dismissing the case.) Though the writ of mandamus itself has fallen into obscurity, the legal doctrine that courts may issue mandates to government officials remains very much a part of our law. This is of course at some level inconsistent with an absolutist understanding of the separation of powers, which implies that no branch of government may be made subordinate to another in any manner. In practice, we have not had that kind of absolutist understanding, but we have for some years been moving rapidly in the direction of such an understanding with regard to the presidency.

If disputes among the branches are simply political questions without legal remedy, then the president is in effect immune to both statutory law and judicial review — above the law. Perhaps this is exactly what President Trump had in mind with his recent praise of Andrew Jackson, the founder of the Democratic party. Jackson, confronted by an inconvenient Supreme Court decision in the matter of Worcester v. Georgia, is supposed to have said: “John Marshall has delivered his decision. Now, let him enforce it.” This was not braggadocio ex nihilo: At the time, the usual practice for the Supreme Court was to order the president to send federal marshals to enforce its decisions. The Court made no such order in that case, very likely in the knowledge that Jackson would refuse it and cause a constitutional crisis. The Court instead relied upon the good graces of the state of Georgia, which — eventually — complied.

For decades, the Left has advanced its agenda by using the courts to effectively amend the Constitution without going through the amendment process. Want a constitutional right to abortion? Harry Blackmun will oblige. But there is a Jacksonian version of that: amending the Constitution through obstinacy and demagoguery. In the matter of creating a categorical exemption from prosecution in certain immigration cases, the Obama administration took an action that President Obama himself had earlier argued was beyond the legal power of the president. Donald Trump had insisted that the Obama administration required congressional authorization before making war on Syria, but he quickly reversed himself once the power was his. Those issues remain unresolved: An injunction was issued against the Obama administration’s expanded amnesty, and a 4–4 Supreme Court decision denied the administration a rehearing of the case. The Trump administration’s actions in Syria have not been litigated at all.

For decades, the Left has advanced its agenda by using the courts to effectively amend the Constitution without going through the amendment process.

The only thing about any of this that seems to me obvious is that our tripartite government is a tricycle with a wonky wheel — the presidency. Though there are ancient intellectual disputes about such questions as judicial review, a reasonably effective and stable modus vivendi has evolved for relations between the judicial and legislative branches. And there was, until fairly recently, a reasonably effective (though less stable) settlement between the presidency and the other branches. Congress expanded the executive branch, for instance with the creation of the Department of Education, and it constrained the executive branch, too, through legislation such as the War Powers Resolution and the Hatch Act. But the presidency is an opportunistic political organism, and it has grown, for good reasons and bad, particularly during the administrations of Richard Nixon and those who came after. Claims of executive privilege grew to such an extent as to amount to something like immunity from congressional oversight, particularly in matters related to political scandals. The role of the president as “Commander-in-Chief” was inflated to princely proportions. And now, President Trump wants a bigger presidency, too.

We should not give it to him.

As my friend Jonah Goldberg has shown through his invaluable writing on the subject of classical progressivism, the idea of an executive more or less freed from legal and constitutional constraints to do what needs doing right now was a favorite theme of Theodore Roosevelt and Woodrow Wilson, as emergency powers granted during times of war were sought for the “moral equivalent of war,” which over the years has covered everything from material relief (the so-called war on poverty) to science education to aluminum tariffs to carbon dioxide emissions. The pseudo-philosophy of political pragmatism and the politicians’ gift for creating an artificial sense of urgency around almost anything are together enough to ensure that a rationale can be constructed for almost anything. Marco Rubio, admirable man though he is, makes frankly ridiculous arguments for protecting domestic sugar producers (where do they work and vote?) as a matter of national security. I would not presume to speak for those who do the ugly and dangerous work of fighting our wars, but I suspect that, if it really comes down to it, the fighting men of the 82nd Airborne can take their coffee black and still get on with business.

From F. A. Hayek we take the lesson that the best laws are the most general ones, the ones that apply in the same way to different kinds of people and institutions, allowing for a wide understanding of what is required from us by the state and providing a baseline of predictability for the emergence of the economic and civic institutions that actually make the world go round. From Professor Hasnas we can take the lesson that these things may grow murky at the margins, that, as much as conservatives may mock the “penumbras” of the judicial imagination, it is sometimes necessary to explore them.

But we also have the lessons of Judge Bork and Justice Scalia: Very often, the law is in fact quite clear enough, and putting down an anchor in the actual language of the law is our only defense against the motivated reasoning of the judicial activists and the political opportunism of presidents. We sometimes fall victim to certain ideological claims that balancing these things is not necessary, that there exists, if only we would pay attention, a kind of national flowchart telling us where to go at each and every intersection. What we refuse to acknowledge during this narrow and angry period of absurd and fantastical populism is that there is no such thing, that no ideology or insight will liberate us from the very difficult task of citizenship.

And from President Trump, we learn that it is important to get this right, because there is no guarantee that power follows prudence or that high character is a prerequisite for high office.

— Kevin D. Williamson is National Review’s roving correspondent.


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