Judicial Policymaking, Rejected by the Framers, Enhances Presidential Power
It is an irony of American legal history that the U.S. Supreme Court, armed with the power of judicial review to police constitutional boundaries, has rendered decisions, grounded in the Justices’ own policy preferences, that have increased presidential power to a degree that constitutes an extraordinary transformation. The framers could not have dreamed that the judiciary, which Alexander Hamilton called “the least dangerous branch,” would perceive judicial power as a license to expand executive authority.
Judicial obeisance to the executive, first in matters of foreign relations, and more recently in domestic affairs, after 150 years of decisions that restrained rather than expanded presidential power, has distorted the text of the Constitution, what was said about it by the delegates who discussed and debated it in the Constitutional Convention, and which was approved by the people in the state ratifying conventions. In Marbury v. Madison (1803), Chief Justice John Marshall captured the essential purpose of written constitutions. If the Constitution “is alterable” whenever the government “shall please to alter it,” then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.”
The Court’s rulings often have been far afield from the framers’ determination to “confine and define” presidential authority, which, James Madison explained, reflected the founders’ profound fear of a strong executive. Scholarly commentary on the failure of Court, in Hamilton’s words in Federalist 78, to serve as a “bulwark of a limited constitution” against governmental encroachments, sheds light on the Court’s penchant for an expansive executive, despite its conflict with the aims and purposes of the Convention. The Court’s practice of adding to the stockpile of presidential powers defeats the Convention’s painstaking efforts to fashion a government of limited powers.
The chief explanation lies in the Court’s perception of itself as a policymaker—the imposition of judges’ own views, values, ideologies, and preferences—which has formed the backdrop for its rationales advancing sweeping presidential powers and constituted a dramatic break from the first century and one-half of judicial rulings on executive authority. At the dawn of the republic, the Court restrained presidential power through decisions that hailed legislative, not executive, control of the constitutional authority to declare war and authorize lesser military hostilities, required the president to obey statutory limitations on the power of the commander in chief, and upheld congressional superiority in the conduct of American foreign policy.
The Court’s opinions that have exalted presidential power in foreign affairs, starting with the path-breaking opinion in U.S. v. Curtiss-Wright (1936), as seen in the baseless assertion that the president is the “sole organ” of foreign affairs, have been larded with policy, not legal rationales. As Justice George Sutherland wrote, the president needed to be free to act with speed and dispatch, because he possessed greater expertise and experience in foreign affairs than that enjoyed by members of Congress. The president, moreover, possessed greater information and better judgment, which justified unilateral action, rather than the collective decision making envisioned by the Constitution. Sutherland’s justifications were attributes of individual presidents, obviously, and not intrinsic to the presidency, and they rested on an ideology foreign to the framers.
The Court’s policy arguments cannot withstand scrutiny. Acting with speed and dispatch might reflect hasty, premature, and ill-conceived acts. Not every president possesses knowledge and expertise in matters of foreign relations. Eisenhower and George H.W. Bush enjoyed a wealth of expertise and experience, but Reagan, Clinton, Obama, and Trump had little or no preparation to conduct foreign policy.
The Court’s flimsy policy arguments, like those supporting its creation of a limited executive privilege in U.S. v. Nixon (1974), reflect the values of judges who had worked in, and were partial to, the executive branch prior to their ascendancy to the High Bench. When the Court asserted in Nixon that presidents require confidential advice from their aides, which formed the rationale for a privilege to withhold information from Congress, it ignored the reality, as emphasized by many advisers, that, if asked for candid advice, they would provide it, regardless of the availability of a formal claim of privilege. The Justices’ policymaking preferences for unilateral executive control of foreign affairs, and for secrecy, like their belief that the president cannot perform the duties of the office without immunity from criminal prosecution, have turned the Constitution on its head and require correction.