Don’t Count on the Courts

National Archives and Records Association
‘Members of the Mochida family awaiting evacuation bus,’ Hayward, California, May 1942; photograph by Dorothea Lange. It is on view in the exhibition ‘Then They Came for Me: Incarceration of Japanese Americans During World War II,’ at the International Center of Photography, New York City, January 26–May 6, 2018.

It is a commonplace of American civics to view each of the three branches of our government as a check on the other two. Many Americans therefore look to the judiciary to rein in executive action when it exceeds lawful bounds. In recent months, a number of lower courts have held various actions of the current administration unlawful; but for the most part the Supreme Court has yet to weigh in. The judicial history of the past two centuries suggests that when the Court does respond, it may very well duck the substantive issues and defer to executive authority.

The Constitution does not distinguish between the courts’ powers vis-à-vis the executive and vis-à-vis the legislature. But a close reading of the Federalist Papers suggests that some of the Founders—especially Alexander Hamilton—regarded the courts as more of a check on the legislative branch than on the executive branch. In Federalist No. 78, the primary Federalist Paper describing the responsibility of the judiciary, Hamilton, after characterizing it as the “least dangerous” branch (because judges have no direct power over “the sword or the purse”), writes that “the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” But nowhere does he mention judges’ parallel responsibility to confine the executive.

According to Federalist No. 78, the courts’ responsibility to hold Congress accountable is to be fulfilled through the power of judicial review of the constitutionality of legislation. But when this power was first and most famously exercised, in the case Marbury v. Madison (1803), the Supreme Court held an act of Congress unconstitutional precisely so that the executive could proceed as it wished. Specifically, the Court held that even though it was illegal for Secretary of State James Madison to refuse to deliver a commission that would allow William Marbury to function as a justice of the peace, the Court lacked the power to force Madison to do so because the act of Congress that purported to give it that power was unconstitutional.

Marbury was a portent of things to come, for over the next two hundred years the Court found one way or another to avoid interfering with a wide variety of executive actions that might well be viewed as unlawful. Arguably the most defensible of these exclusions from judicial interference with executive action relates to the president’s exercise of his war powers. The last thing a president and his commanders need is second-guessing by civilian…

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