Even Binding on the GAO 

Various media outlets are reporting that the Obama Administration violated federal law when it swapped five Taliban prisoners for Army sergeant Bowe Bergdahl, whom the Taliban had held captive for five years.  (See here and here, for instance.) These stories uniformly cite a report by the non-partisan General Accounting Office, an arm of Congress, prepared at the request of the several U.S. Senators. This report asserts that the swap violated two different statutes. First, the report concludes that the swap violated the National Defense Authorization Act for 2014, which provides that the President must notify Congress 30 days in advance before releasing any prisoner from Guantanamo Bay. Second, the report concludes that the expenditure of money necessary to effectuate the transfer violated the "Antideficiency Act," which prohibits the expenditure of funds that exceeds Congressional authorization.

The GAO report is incomplete to say the least.  Federal law includes more than just statutes duly enacted by Congress.  The paramount Federal law is the U.S. Constitution, which declares itself the supreme law of the land.  Article II of the Constitution vests the Executive power in the President and also provides that the President is "Commander-in-Chief of the Army and Navy of the United States." As previously explained on this blog, this provision grants the President power over what Joseph Story called "the direction of war" once Congress has initiated such hostilities.  Congress has authorized hostilities against individuals and organizations that planned and perpetrated the 9-11 attacks, included those, like the Taliban, who aided and/or harbored the perpetrators.  (See here, elaborating on the September 18, 2001 "Authorization to Use Military Force"). Having authorized the use of military force against our enemies, Congress cannot interfere with the President's exercise of the powers as Commander-in-Chief, any more than Congress can interfere with the President's authority to nominate a judge once it has created the judgeship by statute.

There is a strong argument that the detention and release of prisoners falls squarely within what Story called "the direction of war."  The conduct of military operations often results in the capture and subsequent detention, sometimes for the duration of the conflict, of those who surrender.  Direction of battlefield operations requires continuous decision making about whether to detain such prisoners, how and whether to collect intelligence from such prisoners, and which prisoners to release and when.  Such decisions are bound up with other tactical decisions, such as whether to conduct raids to capture additional prisoners, whether to enter temporary truces during which wounded prisoners are exchanged, and whether to release prisoners for the purpose of planting false intelligence with the enemy. The detention and treatment of prisoners can have strategic implications as well; an enemy might decline to surrender unless it receives adequate assurances that its captured soldiers will be released in a timely fashion.  Finally, successful negotiations with adversaries, again pursuant to the President's Article II powers, often depends upon preventing leaks so as to ensure the utmost secrecy.   Requiring the President always to notify Congress 30 days before releasing one or more such prisoners could in some cases unconstitutionally infringe on Article II of the Constitution.

If in fact the detention and release of prisoners falls within the President's authority to "direct war" and negotiate with adversaries, then President Obama was free to ignore, as unconstitutional, legislative constraints on the exercise of that power. In the same way, for instance, President George W. Bush was free to ignore legislation that purported to require the military to obtain a judicial warrant before gathering military intelligence from phone conversations between Americans and suspected members of Al Qaeda located in other countries. Presidents, like courts, are duty-bound to decline to enforce legislation they believe to be unconstitutional, regardless of whether courts have agreed or will agree with the President. (See here). Indeed, when he signed the National Defense Authorization Act for 2014, President Obama issued a signing statement contending that the notification requirement could in some cases infringe upon the President's Article II authority by depriving the President of the "flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers."  As previously explained on this blog, such statements are an entirely legitimate means by which the President may publicly contest legislation he or she believes to be unconstitutional.

The GAO report did not examine whether the statutory provisions it invoked infringed upon Article II of the Constitution.   Instead, the report reiterated the GAO's apparent practice of declining to opine on the constitutionality of duly enacted statutes.  The GAO also asserted that statutes passed by Congress and signed by the President are "entitled to a heavy presumption of in favor of constitutionality."

GAO's failure to consider the constitutional dimensions of the question was unfortunate and weakens the persuasiveness of the report's conclusion that the Administration "broke the law," given that unconstitutional statutes are not "law" in the first place. Moreover, the report's invocation of a presumption of constitutionality is misplaced. Such a presumption might make sense in the judicial context, when judges evaluate the constitutionality of legislation passed by Congress and defended in court by the President.  Where, however, Congress and a sitting President disagree about the constitutionality of legislation that purports to constrain the President, the application of such a presumption is unwarranted.  As Justice Scalia once explained, in such cases there is simply  no rationale for according the constitutional views of one branch of government greater deference than those of the other. See Morrison v. Olson, 487 U.S. 687, 704-705  (Scalia, J. dissenting).  As James Madison explained in Federalist 49: "The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers." (quoted in id.)  Thus, "[a]s one of the interested and coordinate parties to the underlying constitutional dispute, Congress, no more than the President, is entitled to the benefit of the doubt."  Morrison, 487 U.S. at 705 (Scalia, J. dissenting).    By ignoring James Madison and Justice Scalia and invoking this misplaced "heavy presumption," the GAO avoided the sort of analysis that may have clarified and helped resolve the constitutional dispute between Congress and the President.

Hopefully GAO will discard its practice of disregarding the Constitution when opining on the legality of executive branch actions.

Searching For Presidential Courage

 

Secret Reader of this Blog?

In today's oral arguments regarding the Defense of Marriage Act ("DOMA"), Chief Justice John Roberts leveled a powerful critique of President Obama's incoherent approach to the statute.  In particular, the Chief Justice questioned the President's continued enforcement of the Act, despite his simultaneous determination that there are no plausible arguments in favor of the statute's constitutionality.  Questioning an advocate appointed to contend that the Court lacked jurisdiction, the Chief Justice suggested that the President should not enforce a statute that he believed to be unconstitutional.

“I would have thought that your answer would be that the Executive’s obligation to execute the law includes the obligation to execute the law consistent with the Constitution.  And, if he has made a determination that executing the law by enforcing the terms in unconstitutional, I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait [un]til the Supreme Court tells us we have no choice.”

Readers of this blog may find the Chief's argument that the President must decline to enforce unconstitutional statutes familiar.  Over two years ago, a post on this blog asked whether "the President has the Courage of his (Purported) Constitutional Convictions," after the Obama Administration announced it would continue to enforce DOMA despite its conclusion that there are no plausible arguments in favor of the statute's constitutionality.  As that post pointed out,  Article II of the Constitution, which requires the President to take care that the laws are faithfully executed, imposes upon the President an independent duty to decline to execute laws the President believes contravene the Supreme Law of the Law, namely, the Constitution itself.  Indeed, President Obama has himself asserted the authority to decline to enforce statutes he believes to be unconstitutional.  A previous post on this blog defended President Obama's exercise of this power of Presidential Review, demonstrating that arguments to the contrary contradict the text, structure and history of the Constitution. 

Applying these principles over a year ago, this blog explained:

"President Obama's approach seems internally incoherent.  On the one hand, he claims that he will not defend DOMA because it is unconstitutional, indeed so unconstitutional that there are no reasonable arguments in support of the statute.  At the same time, the President and his Attorney General both assert that they will continue to enforce what they believe to be a blatantly unconstitutional law.  Huh?  If DOMA really is so blatantly unconstitutional, because it works unconstitutional discrimination, analogous to discrimination based on race or religion, should not the President refuse to enforce DOMA altogether?   . . . . Why President Obama nonetheless continues to enforce DOMA, given his purported belief that the statute is plainly unconstitutional, is perplexing and causes this blogger to wonder whether President Obama is as certain about his constitutional views on the subject as Attorney General Holder's statement suggests."

This blogger is happy to see that the Chief Justice agrees, whether or not he is a reader of this blog!

A Presidential Remedy for Obamacare

Understood the Nature of Executive Power

Ditto

Last week former Senator Norm Coleman, purportedly an advisor to Governor Romney, predicted that no President, Republican or otherwise, could repeal President Obama's Health Care Reform Legislation in its entirety.  Instead, he said, Republicans could repeal portions of the legislation while leaving other portions intact.  In so doing, he contradicted promises by major Republican candidates for President to work with Congress to repeal so-called "Obamacare" if elected to replace President Obama. 

Senator Coleman may overestimate the difficulty of eliminating "Obamacare" in its entirety.  After all, as some courts have already held (see also here), the Law's coercive requirement that individuals purchase health insurance policies designed by the National Government exceeds the authority that the Constitution confers on the Congress of the United States, by requiring individuals to engage in commerce, instead of regulating commerce.  Moreover, absent executive branch enforcement, this mandate would become a nullity, as individuals who declined to purchase such insurance would suffer no penalty.  Thus, upon taking office, a President who believed the coercive individual mandate to be unconstitutional could decline to enforce that provision of "Obamacare," thereby discharging his or her duty to "take care that the laws are faithfully executed," given  that the Constitution is, by its terms, the supreme LAW of the land.  (In so doing, the President would also "preserve, protect and defend the Constitution of the United States" as required by the Presidential Oath specified in Article II, Section 1 of the Constitution.)   For, as explained elsewhere on this blog (see also here), the text and structure of the Constitution require the President to decline to enforce statutes that he or she believes to be unconstitutional, without regard to the position taken by courts on the matter.  As James Madison explained more than sixteen decades ago:

       "As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each     equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and, consequently, that in the event of irreconcilable interpretations, the prevalence of the one or the other department must depend on the nature of the case, as receiving its final decision from one or the other."

Thus, even if the Supreme Court were to err and uphold the coercive individual mandate this term, a President who believed the mandate to be unconstitutional would be duty-bound to decline to enforce that mandate.  In the same way, for instance, Andrew Jackson vetoed a bill attempting to recharter the Bank of the United States in 1832, partly on constitutional grounds, even though the Supreme Court had sustained identical legislation in McCulloch v. Maryland.  As Jackson put it:

"The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve."

Of course, President Obama's health care reform legislation contains provisions other than the coercive individual mandate.  Moreover, some of these other provisions may not exceed the power of Congress.  Thus, declining to enforce the individual mandate would not itself repeal the legislation in its entirety.  Indeed, courts often strike down particular portions of laws, leaving other portions intact, applying the doctrine of "severability."   However, as previously explained on this blog, Congress declined to include a so-called "severability clause" in the legislation, thus weakening the argument Congress intended parts of the legislation to remain intact if other parts are struck down.  Morevoer, the Obama administration has argued that the individual mandate is a critical part of the reform legislation, without which the legislation could not serve its intended purpose.  This is not surprising.  For, as previously explained on this blog, the individual mandate requires healthy individuals to pay unreasonable rates for health insurance, thereby subsidizing the purchase of health insurance by individuals who are less healthy and thus would otherwise pay higher premiums.  Without the coercive individual mandate to purchase health insurance at unreasonable rates, healthy individuals would rationally choose to self-insure, thereby thwarting the National Government's objective of forcing insurance companies to provide below-cost health insurance to millions.   As a result, a President could rationally conclude, as did one Federal Judge, that the individual mandate is not severable from the rest of the legislation, with the result that the entire legislative reform package is void.  At the very least, the President could conclude that certain provisions inextricably intertwined with the coercive individual mandate must fall along with that mandate.

Hopefully a newly-elected President will heed the views of Madison and Jackson and rid the country of the individual mandate, unless the Supreme Court does so first.

In Praise of President Obama's Embrace of Signing Statements and Presidential Review

Agrees With Reagan, G.W. Bush, Abraham Lincoln and James Madison

Thinks Abraham Lincoln and James Madison Didn't Get It

Earlier this week, President Obama signed Defense Authorization legislation while at the same time issuing a so-called "signing statement."  Among other things, the statement provided that the President will read the Act so as not to authorize detentions of American citizens that the President believes to be unconstitutional.  (The Associated Press recounts the President's signature and signing statement here.)  Thus, President Obama joined Presidents Reagan, Bush I, Bush II, Wilson, Madison, Jefferson, Clinton and probably others in asserting the authority to decline to enforce legislation the President believes to be unconstitutional.

Some are criticizing the President's decision to issue a signing statement, one of nearly 20 he has issued in his Presidency.  For instance, in a letter to President Obama, the President of the American Bar Association, William Wilson (pictured above) decried the President's signing statement.  Pointing to a 2006 Resolution of its House of Delegates, the letter claimed that a President must enforce any and all legislation validly passed by Congress, even if the President believes the legislation to be unconstitutional.  The letter argued that a President who believes particular legislation is unconstitutional must veto it and, failing such a veto, or if the veto is over-ridden, enforce the legislation as written.  (Moreover, the letter implied that a President is bound by his predecessor's decision not to veto legislation.)   According to Mr. Wilson's letter, the issuance of a signing statement announcing an intent not to enforce unconstitutional legislation is akin to a "line item veto" and "contrary to the rule of law and our constitutional system of separation of powers.”  Thus, the ABA apparently believes that the President should follow a Congressional directive to detain American Citizens even if the President believes that directive to be unconstitutional.

The ABA and other critics of the President are dead wrong.  The Constitution expressly requires the President to "take care that laws are faithfully executed."  In discharging this duty, the President cannot ignore the Constitution, which, according to the Supremacy Clause, is the "Supreme Law of the Land."  Refusing to consider the Constitution when carrying out his responsibilities would contravene the President's oath " to preserve, protect and defend the Constitution of the United States." 

The ABA's "Rule of Law" argument undermines itself and would, if taken seriously, give Congress a monopoly on Constitutional interpretation. After all, judicial review of legislation by Article III courts itself nullifies legislation passed by Congress.  Yet, no one would plausibly argue that such judicial review "offends the separation of powers."  Instead, such review implements an underlying value of such separation, by ensuring that all three co-equal and independent branches agree that legislation is constitutional before such legislation is enforced against individuals.  (E.g., before an individual is detained.)  The ABA's position would undermine that value, by requiring the President to enforce legislation he believed to be unconstitutional, thereby contracting the scope of individual liberty.

Oddly, the ABA letter claims that the Founders and ratifiers rejected Presidential authority to decline to enforce unconstitutional legislation.  However, as previously explained on this blog, the nation's two most prominent founders, James Madison and James Wilson, expressly endorsed such authority.

For instance, after serving as President, James Madison wrote as follows:

"As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and, consequently, that in the event of irreconcilable interpretations, the prevalence of the one or the other department must depend on the nature of the case, as receiving its final decision from one or the other."

Moreover, at the Pennsylvania Ratifying Convention, James Wilson, later a Supreme Court Justice, argued that a President could decline to enforce a law he believed to be unconstitutional and that, in the same way, judges could decline to enforce unconstitutional laws that came before them.

Finally, while Abraham Lincoln was not a member of the Founding generation, he knew something about the Constitution --- perhaps even more than the ABA's House of Delegates.   As previously noted on this blog, during his first inaugural address, President Lincoln famously announced, as he had argued in the Lincoln-Douglas debates, that he did not consider himself bound by the Supreme Court's decision in Dred Scott v. Sanford, except with respect to the actual parties in the case. Thus, Lincoln ordered the Executive Branch to grant patents and passports to qualified African-Americans, even though Dred Scott had odiously held that African-Americans were not citizens and thus, by implication, not entitled to such statutory benefits, because he (Lincoln) believed that Dred Scott was simply wrong.

Thus, Madison, Wilson and Lincoln made it clear that, when acting in the sphere of authority assigned to him by the Constitution, including the enforcement of laws, the President must adhere to the Constitution and thus may not carry into execution an enactment that he believes to be unconstitutional.

Two final thoughts. 

First, the sort of "Presidential Review" contemplated by Madison, Wilson and Lincoln does not create a "line item veto" as the ABA claims, even if announced via a signing statement. The line item veto empowers Chief Executives to prevent a portion of a bill from becoming law in the first place, simply because the Chief Executive believes that portion of the bill, even if entirely constitutional, to be bad policy.  By contrast, Presidential Review grants the President a very narrow authority to decline to enforce laws otherwise validly passed because they are unconstitutional.   To be sure, the President could abuse such authority.  But then so can the Supreme Court abuse its authority when it engages in judicial review.  Yet, as then-Justice Joseph Story noted nearly two centuries ago, the fact that a power may be abused is no argument against it.

Second, the ABA's preferred approach would render the President a less-than-equal participant in constitutional discourse.  After all, even under the ABA's approach, Congress can always decline to pass legislation because it believes such legislation to be unconstitutional.  Moreover, the ABA embraces the authority of courts to decline to enforce legislation via judicial review.  Under this scheme, the President, nominally a co-equal branch of government, is the "odd man out," that is, the only branch of government that, veto aside, must ignore the Constitution when exercising his authority.  Nothing in the text, structure or history of the Constitution suggests such a lopsided result.  Moreover, as a practical matter, such an approach would in some cases leave the constitutionality of legislation to a single branch, namely, Congress, given that some legislation is often not susceptible to judicial review, spending legislation being a prime example.  (Also, the 20-year charter of the First National Bank expired before there was any judicial review of the Bank's Constitutionality. The Supreme Court only reached the question after Congress re-authorized the Bank.)  The American People benefit when all branches consider themselves bound by the Constitution and participate in discourse about that document's meaning.

Does The President Have the Courage of His (Purported) Constitutional Convictions?

Had the Courage of His Constitutional Convictions

?????????

Earlier today, Attorney General Eric Holder announced that the Obama Administration will no longer defend Section 3 of the Defense of Marriage Act. Here is a portion of his statement.

"After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur in the President's determination."

In other words, both President Obama and Attorney General Holder In other words, both President Obama and Attorney General Holder believe that DOMA's discrimination against gays and lesbians is more analogous to discrimination based on race or religion and thus subject to heightened constitutional scrutiny than, say, discrimination based on age, which is subject only to minimal scrutiny. Because the President and Attorney General cannot imagine a strong government interest justifying such discrimination, they will refuse to defend the law they have enforced and then defended for the past two years.

At the same time, Attorney General Holder's memo states that the Executive Branch will continue to enforce DOMA, that is, will continue to enage in the very discrimination that the President says violates the Constitution. As Holder put it: "Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President informs me that the Executive Branch will continue to enforce the law."



While some are praising his decision, others are criticizing the President for declining to defend a statute passed by Congress, particularly a statute that the President has enforced and defended for the first half of his Administration. For instance, Orin Kerr at the Volokh Conspiracy has suggested that the failure to enforce the statute is an "Executive Power Grab." He also also noted that, if the current President can refuse to defend DOMA, then a future President, perhaps a Republican, could decline to defend the coercive individual mandate contained in the recent health reform legislation, if that President believes there are no reasonable constitutional arguments in defense of that mandate. (See Kerr's post making this point here.)



My own take is a little different from that of Professor Kerr and other critics of President Obama's action. That is, unlike Professor Kerr, who believes the President has gone too far in using his office to further his constitutional vision, my own view is that he has not gone far enough.


As previously explained on this Blog, Presidents may decline to enforce statutes they believe to be unconstitutional, without waiting for a court to pass on the enactment. Indeed, at the Pennsylvania Ratifying Convention, James Wilson, a prominent founder, justified judicial review by arguing that the President could decline to enforce an unconstitutional statute and that, by analogy, judges could also review statutes to determine their constitutionality. James Madison explained that each Department or Branch of government had to interpret the Constitution for itself when carrying out the duties that the Constitution assigns to them, including, for instance, the execution of statutes. Moreover, students of Constitutional Law will remember Myers v. United States, which arose because President Woodrow Wilson fired and stopped paying a postmaster, contrary to a statute that required Advice and Consent of the Senate, which Wilson did not even attempt to obtain. (The Supreme Court upheld Wilson's view that the requirement of Senatorial consent was unconstitutional, without questioning his decision to fire the postmaster.) And, of course, in his first innaugural address, President Lincoln, pictured above, famously announced, as he had argued in the Lincoln-Douglas debates, that he did not consider himself bound by the Supreme Court's decision in Dred Scott v. Sanford, except with respect to the actual parties in the case. Thus, Lincoln ordered the Executive Branch to grant patents and passports to qualified African-Americans, even though Dred Scott had held that African-Americans were not citizens and thus, by implication, not entitled to such statutory benefits, because he (Lincoln) believed that Dred Scott was simply wrong.

Thus, President Obama's approach seems internally incoherent. On the one hand, he claims that he will not defend DOMA because it is unconstitutional, indeed, so unconstitutional that there are no reasonable arguments in support of the statute. At the same time, the President and his Attorney General both assert that they will continue to enforce what they believe to be a blatantly unconstitutional law. Huh? If DOMA really is so blatantly unconstitutional, because it works unconstitutional discrimination, analogous to discrimination based on race or religion, should not the President simply refuse to enforce DOMA altogether? Imagine if, instead of classifying individuals based upon their sexual orientation, DOMA classified individuals based on race or religion and, for instance, denied federal benefits to Catholics or Asian-Americans lawfully married in their state of residence. Would President Obama and Attorney General Holder enforce such a statute, forcing affected indiviuals to challenge it in court? Certainly President Lincoln would not have enforced an enactment he believed to be unconstitutional, and I hope President Obama and Attorney General Holder would follow Lincoln's lead in such a situation. Why President Obama nonetheless continues to enforce DOMA, given his purported belief that the statute is plainly unconstitutional, is perplexing and causes this blogger to wonder whether President Obama is as certain about his constitutional views on the subject as Attorney General Holder's statement suggests.

On the Appropriate Scope of Judicial Review: Some Comments on Robert Lowry Clinton's "The Marbury Myth"

Dartmouth College Charter; Preserved Against Legislative Attack by Judicial Review

A friend and former student sent me the following article, from National Review, arguing that Marbury v. Madison, which articulated the principle of judicial review in 1803, does not stand for the proposition that the Supreme Court is the sole or supreme expositor of the Constitution's meaning. Indeed, the article goes a little further and seems to argue that neither Marbury nor any other decision in the first half of the 19th Century authorizes courts to strike down laws that do not purport to govern or direct courts themselves.

See Robert Lowry Clinton, The Rise of the Marbury Myth (May 7, 2010).

 

Here are some of the article's main points, followed by some commentary by your humble blogger. To summarize, I agree with some of Professor Clinton's points and disagree with others. For instance, I agree that neither Marbury nor the Constitution properly read supports "judicial supremacy" over the other branches when it comes to constitutional interpretation. At the same time, I respectfully suggest that Professor Clinton defines the appropriate role of courts too narrowly and also improperly equates any judicial role more expansive than he advocates with "judicial supremacy." Under my view (and the view of Lincoln, Madison, Antonin Scalia, Frank Easterbrook, Edwin Meese (no relation) as well as John McGinnis, Neal Devins, and many other leading scholars) each Department of Government is free to interpret the Constitution as it sees fit, without referring to views of other branches, so long as that Department is operating within the sphere of authority that the Constitution assigns to it. Under this approach, each branch is "supreme" within its own sphere, but no branch can control the constitutional interpretation of the other branches operating within their respective spheres. This approach, known as "Departmentalism" to some, finds support in the text and structure of the Constitution, the words of James Madison and the words and actions of Abraham Lincoln, among others. There are several examples of judicial review perfectly consistent with Departmentalism, that Clinton would apparently, and incorrectly in my view, equate with "Judicial Supremacy."

To reiterate, I will first summarize Clinton's argument, complete with some lengthy quotes from his article. I will then offer my own commentary on it. Note that, in summarizing Clinton's argument, I will sometimes elaborate on his points to clarify them, particularly by mentioning actual cases to which Clinton alludes or mentions by date but not by name.

A

1) While lionized today, Marbury was not, Clinton argues, deemed an important decision during the 19th century and was rarely cited for the proposition that Courts could strike down Acts of Congress or state legislatures. Indeed, the article says, the Supreme Court did not cite Marbury for this proposition until the late 19th Century, first in 1887 vis a vis a state law [Mugler v. Kansas, where the Court cited Marbury but then affirmed the Kansas statute under review] and then in 1895 [in Pollock v. Farmer's Loan and Trust Co., which struck down the income tax].

2) Marbury did not hold that the Supreme Court is the supreme or sole expositor of Constitutional meaning. Instead, Clinton says, the decision was much narrower than that. In particular, the decision simply declined to exercise jurisdiction over a case because the statute purporting to confer that jurisdiction exceeded the authority that Article III of the Constitution grants to Congress to create and define the appellate jurisdiction of the Supreme Court. To put things another way, Marbury was a sort of defensive decision, i.e., defended the Court from unlawful incursions by other branches and a decision that in one sense denied the Court power, because the Court declined to exercise adjudicatory power that Congress had attempted to give it. Marbury did not, Clinton says, purport to reach beyond the Court and interfere with Congress's substantive legislative choices, for instance. Nor, he says, did its rationale support such a judicial role. As Clinton puts it:

"In the final pages of his Marbury opinion, Chief Justice Marshall argued that a legislative act in conflict with the Constitution is void, and then carefully restricted the Court’s power to invalidate such acts to instances in which the Court is forced to ignore either the Constitution or the statute in order to decide a particular case. The only time this situation can arise is when the constitutional and statutory provisions involved are addressed to the Court itself, as in Marbury. In other words, under Marbury’s reasoning, the Court is not entitled to “reach out” and invalidate a legislative act simply because the Court doesn’t like it, or even because the Court believes that some other agency of government has done something unconstitutional. Thus, Marbury-style judicial review is very limited in scope. It is restricted to cases in which Congress has unconstitutionally meddled with the Court’s functions."

This is a strong claim (and by "strong," I do not mean "correct"), namely, that Marbury simply (and only) authorizes courts to invalidate Congressional statutes that purport to force Courts qua Courts to act in an unconstitutional manner.

3) During the last quarter of the 19th Century, elite lawyers for business interests bent on limiting the regulatory authority of states repeatedly invoked Marbury as justification for aggressive judicial review of state legislation that interfered with economic liberties. (Such liberties, it should be noted, included the right to contract, the right to set prices, and the right to pursue the occupation of one's choice.) At the time this campaign began, Clinton claims, courts had never exercised such power. As he puts it:

"This group of lawyers, in league with the captains of industry, opposed government regulation of economic activity. Since the state legislatures and Congress were passing regulations designed to mitigate the worst effects of the Industrial Revolution, the lawyers and their clients sought to employ the federal courts in an effort to counter the regulations. The problem was that the courts had never exercised such power, and the constitutional basis for it was doubtful at best. So the only way to get the job done was to find a precedent for judicial supremacy. But Marbury was too tame and Dred Scott was too notorious. The only thing left was to reinvent Marbury, reinterpreting its language to make it seem like an exercise in judicial supremacy." (emphasis added)

 

Courts ultimately agreed that the Constitution protects certain economic liberties from unjustified invasion by individual states and the national government. I should note that exemplars of such protection include Lochner v. New York (1905), which invalidated a state maximum hour law, and Allgeyer v. Louisiana (1897), which invalidated Louisiana's effort to regulate insurance contracts entered by its citizens in another state. I should also note that the Court exercised the same authority vis a vis Congress. For instance, in 1908, in Adair v. United States, the Court struck down Congress's ban on so-called "yellow dog" agreements, that is, contracts whereby employees agreed, as a condition of employment, not to join unions. Moreover, in Adkins v. Children's Hospital (1923), the Court struck down a minimum wage that Congress had imposed on employers and employees in the District of Columbia.

According to Clinton, these lawyers, and the courts that agreed with them, adhered to the philosophy of "Social Darwinism," which held that law and public policy should encourage economic survival of the fittest. Regulatory intervention in the marketplace, he says, was inconsistent with this vision, because it protected the weak from the depredations of the strong and thus stultified the process of social evolution. Here again, it is worth quoting a portion of his essay:

"These legal and economic elites were also believers in an ideology called Social Darwinism. They saw economic life in much the same way that Charles Darwin and his followers saw biological life — as an intense struggle for survival in which only the “fittest” deserve to survive and reproduce. Since economic regulation was usually in the interest of protecting those who could not protect themselves in this struggle, Social Darwinists believed that such laws were counterproductive in retarding economic progress, restricting the freedom of the “more fit,” and advancing the interests of those “less fit” people who constituted a “drag” on society. The Social Darwinists were ultimately successful in pressing their views on the courts, and these views held sway in the American legal community and the courts for about half a century."

To reiterate, Clinton argues that the Lochner era's protection for economic liberty exemplified the Supreme Court's assertion of judicial supremacy and reflected an approach to judicial review that was inconsistent with Marbury, or at least not not supported by Marbury.

4) Of course, in 1937, the Supreme Court reversed course and repudiated the Lochner era's protection for economic liberty. Still, Clinton argues that the Court, under the leadership of Earl Warren from 1954 until mid-1969, continued to embrace judicial supremacy, but simply reoriented its efforts toward the protection of a different set of substantive values. (Students of this era will of course recall the Warren Court's revolution in Constitutional Criminal procedure, which foisted upon the states various new rules governing the sort of evidence admissible at criminal trials, for instance.) Moreover, in 1958, Clinton says, the Court invoked Marbury for the proposition that judicial interpretations of the Constitution are themselves, like the Constitution, the Supreme Law of the Land and thus by their own force binding on other actors who must treat the Supreme Court's interpretation of the Constitution as equivalent to the Constitution itself. [Here Clinton is referring to the Court's decision in Cooper v. Aaron, which reiterated that Brown v. Board of Education required that admission decisions at state-run high schools be made irrespective of race and ordered the Governor of the State of Arkansas to refrain from interfering with a local school board's efforts to comply with the Brown decision, to which the school board had been a party.] Moreover, in the 1992 Casey decision, Clinton points out, the Court, when reaffirming Roe v. Wade, asserted that Americans' belief in themselves as a people committed to the Rule of Law "is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals.” Clinton might have added the same opinion's statement that the Court should adhere to Roe in part to reward those citizens who thought Roe was wrong, "when viewed outside of constitutional terms" but "who nevertheless struggled to accept it, because they respect the rule of law." Like the statement from Casey that Clinton quotes, this statement seems to rest on the assumption that the Court's resolution of a constitutional question thereby binds individual citizens whose disagreement with that decision must thereby be "outside constitutional terms" and whose failure to adhere to the principle announced in such a decision in their public lives would thereby contravene the rule of law.

5) Finally, it should be noted that Clinton claims that decisions such as Roe, and various unnamed Warren Court excesses, would not have been possible without what he calls "judicial supremacy." As explained earlier, he also characterizes various decisions from the Lochner era as premised upon such supremacy.

B

1) I don't take issue with Clinton's assertion that Marbury was rarely cited until late in the 19th Century. See Davison Douglas, The Rhetorical Uses of Marbury v. Madison: The Emergence of a "Great Case," 38 Wake Forest L. Rev. 375 (2003). Still, the paucity of citations of Marbury during the 19th century should not obscure the deeply-rooted status of judicial review. As John Yoo and Sai Prakash have shown, numerous participants in the Constitutional Convention assumed that the Constitution they were creating would empower federal courts to strike down unconstitutional state and federal laws. See Saikrishna Prakash & John Yoo, The Origins of Judicial Review, 70 U. CHI. L. REV. 887. Indeed, Anti-Federalist opponents of the Constitution cited the prospect of judicial review as a reason to reject the constitution. (Some of the papers of the Anti-Federalist Brutus provide an example of such criticism of judicial review.) In his famous Federalist 78, published in 1788, Alexander Hamilton offered a rousing defense of judicial review in response to such detractors, arguing that the existence of a written constitution implied that, when a court court decides a case or controversy before it, it must treat the Constitution as paramount and decline to give effect to ordinary statutes, for instance, that contradict that supreme law.

Indeed, even before the Constitutional Convention, several judges on the highest court in Virginia, including George Wythe, a signatory of the Declaration of Independence, expressly embraced the concept of judicial review, in what is known as the Case of the Prisoners, decided in 1782. Moreover, shortly after the Constitution was ratified, the Justices of the Supreme Court declined to enforce a Congressional statute purporting to require individual justices to receive petitions from veterans of the Revolutionary War for pensions, determine whether each petitioner was in fact entitled to a pension, and make a recommendation to the Secretary of War, who could reverse the court's determination. See Hayburn's Case (1792). Finally, in Calder v. Bull (1798), the Supreme Court entertained a challenge to a Connecticut statute overturning the judgment of a state court. While the Justices rejected the challenge, each assumed that the Court possessed the authority to void unconstitutional state enactments.

Finally, the First Congress apparently believed that the Supreme Court had the authority to determine whether, for instance, state legislative enactments were consistent with the Constitution. To be precise, the First Congress enacted the Judiciary Act of 1789, very shortly after the Constitution was ratified. Among numerous other things, that Act conferred upon the Supreme Court the authority to hear appeals in cases:

"where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity."

In other words, the First Congress --- acting 14 years before Marbury --- conferred upon the Supreme Court the authority to review decisions by state courts that had sustained state statutes against constitutional challenge. This, of course, is exactly the sort of review that the Supreme Court conducted during the Lochner era. Indeed, in Lochner itself, the Court reversed a judgment of the New York Court of Appeals that had narrowly sustained the state's maximum hour legislation against constitutional attack. If this sort of review was an example of inappropriate "judicial supremacy," then it's the sort of judicial supremacy endorsed by the same Congress that, for instance, proposed the Bill of Rights.

2) In sum, just as the Christian Church pre-dated the various books of the New Testament, in some cases by several decades, so too did the institution of judicial review predate Marbury v. Madison. Moreover, the logic supporting the institution of judicial review, expressed for instance in Federalist 78, was not limited to instances in which Congress sought to compel the courts to act in a manner that exceed their authority. Moreover, the First Congress contemplated that the Supreme Court would exercise judicial review in a manner that Professor Clinton would apparently regard as exemplifying judicial supremacy.

3) Professor Clinton also seems to understate the extent of judicial review early in the 19th century. For instance, during a ten year period, from 1810 to 1819, the Marshall Court struck down statutes in four different states on the grounds that such legislation offended the Contracts Clause found in Article I, Section 10 of the Constitution. None of the statutes purported to require Federal or even state courts to exercise jurisdiction in contravention of Article III or any other provision of the Constitution. In the famous Dartmouth College case, for instance, the Court struck down a New Hampshire statute that sought coercively to transform Dartmouth from a private to a public college, on the grounds that the statute offended the Contracts Clause because it altered the College's original royal charter, pictured above. In so doing, the Court conducted the same sort of review that courts would conduct during the Lochner era. To be sure, the opinion by John Marshall did not cite Marbury as authority for the sort of judicial review that the Court conducted. However, this omission seems beside the point. If anything, the omission could suggest that judicial review was so "taken for granted" by this time that there was no reason to justify the exercise of such review.

If, as Clinton asserts, "judicial supremacy" entails a court declaring a statute invalid "because the Court believes that some other agency of government has done something unconstitutional," then the Marshall Court, which decided Marbury in 1803, embarked on such a Supremacy campaign just seven years later, a campaign consistent with the Judiciary Act of 1789.

4) At the same time, I believe that Professor Clinton is absolutely correct when he asserts that Marbury does not support the sort of judicial supremacy suggested by the dicta of Cooper v. Aaron or the language in Casey quoted above. (I refer to the language in Copper as dicta because the actual question before the Court, as the Justices recognized, was whether the Governor of Arkansas could obstruct a local school board's compliance with the Court's prior mandate, issued pursuant to a case properly within the Court's jurisdiction. I also hasten to add that I believe Cooper and Brown to have been decided correctly on the merits.) That is to say, neither Marbury, its logic, nor its antecedents supports the notion that judges are the only actors authorized to interpret the Constitution or that other actors, e.g., the President, must treat Supreme Court precedent as definitive expositions of the Constitution when operating within their own sphere of authority. Indeed, at the Pennsylvania ratifying convention James Wilson, later a Supreme Court Justice, argued that a President could decline to enforce a law he believed to be unconstitutional and that, in the same way, judges could decline to enforce unconstitutional laws that came before them. Moreover, the logical structure of Marshall's justification for judicial review (and, for that matter, Hamilton's argument as articulated in Federalist 78), simply authorizes courts, when deciding cases properly before them, to determine whether a statute or regulation is constitutional. This could entail declining to enforce a statute that the Executive is seeking to enforce. Or, it could involve reversing a judgment by a state court sustaining a statute against constitutional attack.

None other than James Madison would have agreed with this assertion. In 1834 he wrote:

"As the Legislative, Executive, and Judicial departments of the United States are co-ordinate, and each equally bound to support the Constitution, it follows that each must, in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and, consequently, that in the event of irreconcilable interpretations, the prevalence of the one or the other department must depend on the nature of the case, as receiving its final decision from one or the other."

And, of course, in his first inaugural address, Lincoln expressly reiterated what he had argued in his debates with Stephen Douglas a few years earlier, namely, that, while the Dred Scott decision was binding on the individual parties to the case, its overarching principle --- that African-Americans were not citizens and were instead property of their putative "owners," --- was not binding on actors in the political branches of government. Finally, as President, Lincoln directed Federal agents to grant passports and patents to African-Americans, thereby treating them as citizens.

5. I also agree with Clinton's assertion that the Warren and Burger Courts abused the power of judicial review, striking down various state and federal laws or judicial practices that were perfectly constitutional. Examples include Roe, Miranda v. Arizona and Mapp v. Ohio, the latter of which reversed 170 years of Constitutional Law to hold that evidence obtained in violation of the 4th Amendment MUST be kept from a jury in a criminal case, even if it means releasing a mass murderer so he or she may kill again. Other examples include the Burger Court's transmogrification of the 8th Amendment from a ban on Cruel and Unusual modes of punishment to a sort of roving commission empowering judges to determine what factors a jury must consider when deciding whether to impose the death penalty via the most humane method possible upon a defendant duly convicted of murder. At the same time, I would not attribute these errors to judicial supremacy, however defined, as such, but instead to willful judging.

6. "Departmentalism" as I have sketched it depends upon the existence of limits upon the judicial power. If anyone can at any time call upon courts to answer a constitutional question, and if such answers are treated as binding resolutions of cases or controversies, then the political branches will have a very small independent role in interpreting the Constitution. I would agree with Professor Clinton if he is arguing that courts have in some cases exceeded the appropriate judicial role by relaxing traditional limits on the sort of cases and controversies that judges can hear and resolve, thereby enlarging the judicial sphere at the expense of the political branches.

7. One final note that is not about the nature of judicial review as such, but instead about Professor Clinton's account of the Lochner era, particularly his claims that Lochner era judges were motivated by Social Darwinism and struck down legislation that was generally designed to protect the weak from the strong. Both assertions are controversial to say the least.

a) Lochner era judges found protection for liberty of occupation, liberty of contract and rights of property in the Due Process Clause of the 14th Amendment, one of the three "Civil War Amendments" adopted in the late 1860s. During the Civil War, Abraham Lincoln argued that the North and South were locked in a struggle over two definitions of Liberty. According to one definition, liberty included the ability to work at one's chosen occupation and retain the fruits of one's labors. The other definition, he said, protected the ability of one (white) person to own and direct the labor of another (black) person and to retain the fruits of that person's labor. The North, of course, won the Civil War, and the first definition of liberty prevailed, or so many thought. Still, despite emancipation, southern States sought to deprive African-Americans of various liberties, including economic liberties such as liberty of occupation and liberty of contract, via the so-called "Black Codes." Congress sought to preempt these codes via the Civil Rights Act of 1866 which, among other things, ensured African-Americans the same rights of contract as white persons and also prevented states from imposing occupational licensing requirements on African-Americans that were not imposed on white persons. The Act, however, exceeded any apparent power of Congress, which then proposed the 14th Amendment. When ratified, this amendment authorized Congress to enforce the Amendment's provisions, including the Equal Protection Clause, Due Process Clause, and the Priviliges or Immunities Clause, against the states.

Given the historical origins of the 14th Amendment, it's no surprise that, in the early 1870s, four Justices on the Supreme Court --- dissenting in the Slaughterhouse Cases --- argued that the Privileges and Immunities Clause as well as the Due Process Clause protected liberty of occupation from arbitrary abridgment, that is, regulation that did not fall within the police power. Of course, the five Justices in the Slaughterhouse majority took a contrary view, holding that the Amendment was motivated by and aimed at state racial discrimination. The opposite position, taken by dissenters like Justices Field and Bradley, for instance, had nothing to do with Social Darwinism. Indeed, it was the majority opinion in Slaughterhouse that smacked of Social Darwinism, ratifying the outcome of a Darwinian struggle in the political process that granted one firm a monopoly over slaughtering to the exclusion of hundreds of other small firms.

b) Nor am I aware of any data suggesting that most laws voided during the Lochner era protected the weak against the strong. Lochner itself, for instance, voided a law that likely disadvantaged labor-intensive small bakeries against larger, capital-intensive establishments. Small labor-intensive businesses could use constitutionally protected yellow dog contracts to prevent unionization that would raise their costs disproportionately compared to larger firms. At the same time, the Lochner era Court upheld certain forms of legislation, such as state and federal antitrust laws, that prevented large firms from cartelizing and thereby destroying wealth and harming consumers. See generally Alan J. Meese, Will, Judgment and Economic Liberty: Mr. Justice Souter and the Mistranslation of the Due Process Clause, 41 William and Mary L. Rev. 3, 25-44 (1999). Regardless of what one thinks of Lochner and its progeny as a matter of constitutional law, it seems difficult to square most Lochner-era decisions with the philosophy of Social Darwinism.