Defying Hamilton’s reassurances
Constitutional conversations about the Supreme Court often begin with Alexander Hamilton’s famous description of the judiciary in Federalist No. 78 as the “least dangerous branch,” precisely because the judicial branch lacks both the legislative power of the purse and the executive power of
the sword.
An ardent revolutionary, Hamilton had denounced in 1778 the behavior of English judges and “the trackless imaginations of their minds,” but in 1787, as a defender of the newly-minted Constitution and the newly-minted Supreme Court, he explained that there was little to fear from the justices, who would not impose on the nation their views, values and prejudices, because they were but a mouthpiece for the Constitution.
Across the decades, however, the Supreme Court has demonstrated through its rulings on presidential power a penchant for expanding executive authority beyond the text of the Constitution and anything said, debated or defended in the Constitutional Convention. In short, through a series of decisions on presidential power that are altogether alien to our constitutional architecture, the Court has shown that it is anything but the least dangerous branch of government.
Either Hamilton was naïve and simply wrong, or the Court has betrayed the Framers’ expectations, transgressed its own boundaries and institutional norms, and morphed into a policy-making branch that has disfigured constitutional prescriptions for presidential power. The Court’s rulings on executive authority resemble more the decisions rendered by the English judges whom Hamilton criticized for their arbitrary imaginations than the American judges whom he praised and argued worthy of constitutional protections to safeguard their independence.
The Court has introduced novel theories of presidential power that have inflicted considerable – indeed, lasting – harm on the republic. Readers are familiar with the pernicious ruling delivered by the Court in Trump v. U.S. (2024), which clothed the presidency with immunity from criminal prosecution, a doctrine – to borrow from Justice Amy Coney Barrett’s baseless and back-handed dismissal of Justice Ketanji Brown Jackson’s biting dissent from Barrett’s opinion in Trump v. CASA – that is “untethered from two centuries worth of precedent, not to mention the Constitution itself.”
Indeed, the Court’s creation of presidential immunity from criminal prosecution is “untethered” from James Wilson’s explanation in the Convention that the president enjoys no privilege not annexed to the character of all citizens. The decision essentially places the president above the law.
A century before the executive immunity decision, the Court, in 1936, in U.S. v. Curtiss-Wright, in a dicta-riddled opinion by Justice George Sutherland, introduced the novel and dangerous idea that the president is the “sole organ” of American foreign policy. This decision, though it is in conflict with the text of the Constitution – which makes Congress, not the president, the senior partner in the formulation and conduct of the nation’s foreign relations – has been invoked ever since by presidents of both parties to justify presidential adventures in the international realm, including the initiation of war and lesser military hostilities.
The “Curtiss-Wright cite,” as it is known among scholars, is cast into discussion to end discussion and to silence critics of the president’s policies and usurpation of power. This act of judicial deference – the Ghost of Curtiss-Wright – represents a plague on the Framers’ constitutional blueprint.
In 1974, the Court in U.S. v. Nixon – the Watergate Tapes Case – rightly won applause for rejecting President Richard Nixon’s assertion of an “absolute” executive privilege to withhold information from Congress, the courts, and the Independent Counsel, but its ruling that the president enjoys a “limited” privilege was cut from whole cloth, utterly without foundation in the constitutional text and the Convention.
The damage inflicted on our constitutional system by the invention of a limited privilege – define “limited” – is also difficult to measure, for it has emboldened executive secrecy on information to which Congress is entitled in the exercise of its constitutional powers and responsibilities. Leaving Congress in the dark on matters of vital interest to the nation is unwise and
dangerous.
The Court’s baffling deference to the executive requires further exploration, next week.
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. He can be reached at david.adler@alturasinstitute.com.