By Kevin D. Williamson
Tuesday, May 02, 2017
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.
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.
No comments:
Post a Comment