Power Struggle
FORUM COLUMN
Originally published in the June 17, 2009 edition of the LA Daily Journal as part of Loyola's weekly Civil Discourse series
By Allan Ides
The doctrine of judicial review provides the mechanism through which the judiciary makes and enforces constitutional law. It may be a truism, but it is a well-established fact of our legal lives that constitutional law is neither more nor less than what the Supreme Court says it is. Lawyers know this and live with it, and the American public, despite occasional grumblings to the contrary, seems to embrace this reality as a valued and even inherent part of our constitutional order.
After 27 years of teaching constitutional law, however, I'm beginning to have misgivings. While it may be true that judicial review is needed to enforce certain constitutional guarantees, such as those found in the Bill of Rights and the 14th Amendment, it does not necessarily follow that every nook and cranny of the Constitution requires the rule-of-law solution inherent in the practice of judicial review. Perhaps certain parts of the Constitution can be left to the so-called political branches - the legislative and executive branches - and to the oversight of our democracy.
At least one area of constitutional law might well benefit from benign judicial neglect, namely, the separation of powers between Congress and the president. (The separation of powers between the judiciary and the so-called political branches raises unique judicial-review concerns.) Of course, the phrase, "separation of powers," does not appear in the Constitution. Yet, just as clearly, the Constitution does separate (and intermingle) powers between Congress and the president. How should the structures and underlying principles of this separation be enforced? As a matter of law? Or as a matter of political judgment? I would lean toward the latter.
As is well known, the Constitution vests each branch with a specified area of authority - the legislative to Congress and the executive to the president - and with the ability to check the other branch's exercise of its constitutionally vested powers - the so-called checks and balances. Thus: Congress has the power to pass legislation, but the president has the power to veto that legislation subject to a potential congressional override; Congress makes the laws, but the president executes those laws; the president negotiates treaties, but the Senate has the power to ratify (or reject) those treaties; the president appoints officers of the executive branch and members of the judiciary, but those appointments are subject to the advice and consent of the Senate; and, most importantly, Congress has the power to impeach and remove the president from office for the commission of "high Crimes and Misdemeanors," a category of offenses that is definable by the political judgment of Congress.
This looks like a type of perpetual motion machine in which the separation and the intermingling operate to keep the power in balance through a process of negotiation, compromise and occasional confrontation. If that is correct, the obvious referee would seem to be the voting public and not the Supreme Court. Moreover, when one considers the composition of the current Supreme Court, the notion of a separation-of-powers judicial referee is at best anomalous. Although several members of the current court have worked as high-level government lawyers, not a single member has ever served as a member of Congress or on a state legislature - Justice Hugo Black was the last member of the court to have served in Congress and Justice Sandra Day O'Connor was the last to have served in a state legislature; nor has any current member held a Cabinet-level position or in a high executive position in state government. Chief Justice Earl Warren was the last member to have served as a state's chief executive. Surely the current (and usual) members of the court are bright folks and just as certainly their theoretical perspective on the separation of powers is worthy of respect, but that it should operate as a trump on the political process is at the very least counterintuitive.
The classic separation of powers case is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In that case, the court reprimanded President Truman for taking the law into his own hands when he seized the nation's steel mills in order to avoid a strike during the Korean War. Most scholars seem to think that Youngstown was a good decision and the court continues to cite it with approval. On one level, this approbation makes sense. Truman usurped a legislative function by acting pursuant to a "law" of his own making and the court properly intervened to restore constitutional order. (Truman, for his part, thought he was interpreting the law and acting pursuant to it.) But the court's seemingly correct application of constitutional principle came with a two-fold price.
First, the then-sitting Congress had the wherewithal to resolve this controversy. Immediately after seizing the steel mills, Truman informed both Congress and the public of his action and of the nature of the emergency, and he pledged to end the seizure if so instructed by Congress. But it was an election year and Congress chose to remain silent, in part because Truman had placed himself in a political quagmire in trying to curry favor with organized labor. Hence, the intervention of the Supreme Court became the default position. In other words, although the president had supposedly invaded the legislative prerogative by "making law" and although Congress could have protected its law-making prerogative by instructing the president to desist, the Supreme Court entered the fray of this political controversy, albeit one tinted with a constitutional patina. In short, the court allowed Congress to duck.
Second, the political dimensions of the controversy aside, while Youngstown appears to represent a magisterial bulwark against the unconstitutional aggrandizement of power by the executive branch, the bulwark has had little effect on the actual allocation of power between Congress and the president. Ask yourself this simple question: Has the aggrandizement of presidential power increased or decreased since Youngstown? Pretty obviously, that aggrandizement has increased. With a slight dip during the Ford and Carter administrations, the trajectory of presidential power has climbed steadily over the course of the 20th and 21st centuries. Youngstown was not the cause of this escalation in presidential prerogative.
But it is at least clear that the occasional interferences thrown up by the court, including Youngstown, have done little to stem the rising tide of presidential power. And it may well be that the court's interventions have actually quelled Congress into a constitutional slumber in which the principle of separation of powers has become so de-politicized and so judicialized that it no longer exists other than in the realm of Supreme Court jurisprudence.
I'm not in favor of an all-powerful executive branch. And I do believe that President George W. Bush exercised presidential power in a manner that should, at the very least, have led to an impeachment inquiry. But the wisdom and utility of judicial review as a method of defending these very important constitutional values is certainly questionable.
Allan Ides is the Christopher N. May Professor of Law at Loyola Law School in Los Angeles.