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 courts as to the conduct of a war. But presidents from Abraham Lincoln to Franklin Roosevelt (and beyond) have taken advantage of this deference to commit blatantly unconstitutional acts.

Perhaps the most extreme example occurred in 1942, when Roosevelt, on the advice of one of his generals, approved by executive decree the involuntary internment of over 110,000 Japanese-Americans (a majority of whom were US citizens) in “relocation centers,” primarily in the West. The internment would seem to have violated the Fifth Amendment rights of the Japanese-Americans not to be deprived of liberty or property without due process of law, as well as their Fourteenth Amendment rights to equal protection of the law. Yet two years later, in the infamous case Korematsu v. United States, the Supreme Court, in a 6–3 decision, upheld the internment on no better basis than abject deference to military judgment. As the ancient Roman saying goes, “In times of war, the law falls silent.”

The “war powers” exception to meaningful judicial review of executive action has taken on new meaning, and arguably new danger, with the advent of the never-ending “war on terror.” After September 11, President George W. Bush exercised his powers as commander in chief to authorize everything from torture to secret surveillance, much of which has proved immune to challenge in the courts.

But even where no warfare of any kind is involved, virtually any lawsuit that touches on the conduct of the military is considered to be beyond the reach of the Supreme Court. A good example is United States v. Stanley (1987). In 1958 James B. Stanley, a serviceman, volunteered for what was ostensibly a chemical warfare testing program. In the course of the program, he was secretly given LSD as part of an army plan to test the effects of the drug on human beings. This caused him to suffer severe personality changes that led, among other things, to the dissolution of his marriage. But when he sued the government, the Supreme Court rejected his suit out of hand, holding that no lawsuit may be brought in a nonmilitary court for injuries that “arise out of or are in the course of activity incident to [military] service.”


Not only have the courts determined that anything that touches on war or the military is largely beyond any meaningful judicial review, they have also accorded similarly supine deference to any executive action that can be claimed to serve the interests of “national security.” In June 2017, for example, the Supreme Court heard a lawsuit, Ziglar v. Abbasi, brought on behalf of more than seven hundred illegal aliens rounded up after September 11 and detained, often for months, even though the government had no substantive basis for suspecting that they were in any way linked to terrorism. While being detained, they were, in the Court’s words, subjected to very “harsh conditions.” For example, prison guards allegedly “slammed detainees into walls; twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion.” Nevertheless, the Supreme Court, overruling the Second Circuit Court of Appeals, threw out the lawsuit because, among other things, allowing such a suit “would require courts to interfere in an intrusive way with sensitive functions of the Executive Branch.” Instead, the Court said, the judiciary should exercise very substantial “deference to what the Executive Branch ‘has determined…is “essential to national security.”’”

Indeed, not just at the Supreme Court but in the lower federal courts as well, a talismanic invocation of “national security” continues to be a cloak for all kinds of executive actions that might not otherwise survive judicial review. For example, in Merida Delgado v. Gonzales (2005), a resident of Panama had his flight training in Oklahoma cut short after the attorney general determined that he was a “risk to aviation or national security.” There was no apparent basis for that determination beyond the fact that Delgado was a noncitizen and that one of the participants in September 11 had been trained in the same school. But the Tenth Circuit Court of Appeals threw out Delgado’s suit, stating that “it is rarely appropriate for courts to intervene in matters closely related to national security.”

Even when neither war nor national security is involved, almost as much deference to executive action has been given in cases that touch on the power of the president to conduct foreign affairs. For example, in City of New York v. Permanent Mission of India to the United Nations et al. (2008), New York City sought to recover property taxes owed by various foreign governments on the many floors of New York buildings owned by those governments that were not being used for diplomatic offices. The case was originally before me, and I ruled largely in favor of the city. But while the case was pending on appeal, the US State Department issued a notice entirely exempting from property taxes any real estate owned by any foreign government if any portion was used for diplomatic purposes or even just for housing staff. That was good enough for the Second Circuit Court of Appeals to reverse the decision, stating that deference to the State Department must be “especially substantial…[in] an area ‘bound up with [unspecified] security concerns and issues of reciprocity among nations.’”

In most of the examples given above, the courts, while nominally permitting challenges to executive action to be heard, have largely ignored the substantive merits and instead accorded near-total deference to the executive. But the courts have also created a series of doctrines that deny review altogether. The two most prominent such doctrines—the requirement of “standing” and the exclusion of judicial review of “political questions”—are as murky in their definitions as they are frequently unfortunate in their consequences.

Under the doctrine of standing, no one can challenge executive action in federal court who has not, as a direct result of the action, personally and uniquely suffered a concrete past or present injury. For example, in Warth v. Seldin (1975), low- and moderate-income residents of Rochester, New York, who were effectively barred from moving to the nearby suburb of Penfield because of its restrictive zoning ordinances and their exclusionary application, sought to challenge this practice in federal court. But the Supreme Court held that they lacked standing to sue, because “the asserted harm is a ‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens.” In other words, if unlawful executive regulations or conduct broadly affect enough people, then none can sue.

The result is that huge swaths of executive misconduct cannot be challenged in federal court. And one might add that even when a victim of government misconduct can somehow find a way to satisfy the narrow-standing doctrine, he or she will very likely be unable to obtain any monetary relief from the perpetrator of the misconduct, due to other judicially created doctrines that accord total immunity to prosecutors, administrators, various other government executives, and the government as a whole, as well as partial but substantial immunity to the police. These doctrines, though they are often rationalized in terms of freeing executive action from stifling burdens, ultimately derive from archaic notions of sovereign immunity that can be traced back to the concept of an absolute monarchy and “the king can do no wrong.” But in practice these immunities mean that even those rare lawsuits against government misconduct that somehow manage to make it past the barrier of standing often result in hollow victories that have limited deterrent effect.1


Yin Bogu/Xinhua/eyevine/Redux

President Trump with Neil Gorsuch at the White House after nominating him to the Supreme Court, January 2017

Equally broad, and equally nebulous, is the doctrine that excludes from judicial review so-called political questions. No one really knows what this doctrine means. The closest the Supreme Court ever came to defining it was in a rambling, convoluted sentence in Baker v. Carr (1962):

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

If you don’t understand that, you’re not alone. For example, the Supreme Court has sometimes held that challenges to gerrymandering are political questions that cannot be adjudicated by a federal court, and other times the opposite. In practice, the “political question” doctrine is so unclear that you can never tell when a federal court will invoke it or not; but it provides a handy excuse for a court to duck a difficult issue when it chooses to.

The foregoing by no means exhausts the numerous ways the courts have chosen to remove themselves from meaningful review of executive excess, even when it violates the Constitution. For example, under the Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), the federal courts accord very substantial deference to an administrative agency’s interpretation of applicable laws and rules. This seems miles removed from Chief Justice John Marshall’s famous statement in Marbury v. Madison that it is “emphatically the province and duty of the judicial department to say what the law is.”

Not all of these limitations on judicial review of executive action have been initiated by judges. Congress has not been shy about limiting the jurisdiction of federal courts to review unconstitutional actions by state officials. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal review of wrongful state confinement is available only if the state court’s approval of the alleged misconduct is contrary to already “clearly established” federal law. If AEDPA had been in effect forty years earlier, it would have prevented the Warren Court from ever reaching many of its most groundbreaking decisions, such as Gideon v. Wainwright, which required states to provide legal counsel to defendants who could not pay for a lawyer themselves.

But most of the restrictions described above have been created by the Supreme Court. As Justice Louis Brandeis noted as early as 1936, “The Court [has] developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.” And as illustrated above, this avoidance is particularly acute when it comes to reviewing executive actions. One must therefore ask: Why have judges chosen to put such severe limits on their power to decide whether executive actions comply with the law?

One obvious reason is that the courts are ultimately dependent on the executive to enforce judicial decisions. As Hamilton put it in Federalist No. 78, “The judiciary…may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Before Marbury v. Madison was decided, President Jefferson had let it be known that if the Court ordered Madison to deliver Marbury’s commission, he would refuse to enforce the decision. Some years later, President (and former Indian fighter) Andrew Jackson, when hearing that the Supreme Court, still under Justice Marshall, had rendered one of its few decisions favoring Native Americans, is said to have remarked: “John Marshall has made his decision; now let him enforce it.”

More recently, it has been suggested that President Eisenhower at first temporized before finally deciding to send troops to Little Rock, Arkansas, to enforce school integration. Governors of many southern states had already announced that they would refuse to enforce it, so had Eisenhower not finally acted, the most important Supreme Court decision of the last century, Brown v. Board of Education, would have been rendered a nullity. In the back of their minds, I suggest, most federal judges recognize the need to remain on good terms with the executive if their judgments are to be enforced.

Enforcement aside, the Supreme Court has frequently expressed its desire to remain above the fray, so as not to be perceived as a politically driven body but rather as one objectively finding and applying the law. This quaint notion, regularly contradicted in cases ranging from Bush v. Gore to Citizens United, may still have some force in less controversial cases. And it certainly is true that the constitutional doctrine of separation of powers counsels against the Court becoming any kind of quasi-legislative body.

This has led some judges (notably Justice Felix Frankfurter) and legal scholars (notably the late Yale law professor Alexander Bickel) to praise the “passive virtue” of courts avoiding the rendering of legal decisions in controversial issues on which no national consensus has yet emerged. In Bickel’s words, the question for courts in choosing whether to decide an issue should be “not only which principles and how, but also, when and in what circumstances.”2 Frankfurter went even further, and, in one of the Court’s decisions refusing to address gerrymandering, simply concluded that “courts ought not to enter this political thicket.”

According to this approach, in other words, a federal court should not decide a dispute that the Constitution gives it the power to decide. This seems, on its face, a dereliction of duty: indeed, the Supreme Court, in numerous other cases, has frequently referred to its “unflagging duty” to exercise its jurisdiction. (Consistency is not the Court’s strong point.) Moreover, such conscious avoidance frequently fails to achieve its intended purpose, for it can be interpreted by the public as the equivalent of making a decision. Chief Justice Roger Taney is said to have believed that his 1857 Dred Scott decision—which, by denying Scott standing to sue, ducked the main issue of whether a slave who went to free territory thereby became a free man—avoided embroiling the Court in the slavery controversy. But in fact the effect was just the opposite, as the decision was widely regarded as an endorsement of slavery and was roundly denounced throughout the North.

Most of all, the “above the fray” approach is hardly consistent with the fundamental notion that the judiciary should serve as a check on other branches of government and make sure they are adhering to the law. This is not an easy or popular task, but often there is no one but the courts to assume it. And as Harry Truman famously said, “If you can’t stand the heat, get out of the kitchen.”

Nevertheless, now that the courts have created, largely on their own initiative, so many doctrines that limit their review of executive action, it would not be easy to change overnight. This is especially true under the Anglo-American common law mode of jurisprudence, in which great weight is given to prior precedents, so as to afford certainty and predictability in a judicial system that is much less bound by written legal codes than the so-called civil law systems of Europe and much of Asia.

Still, doctrines that are made by judges can be unmade by judges. And there have been times when executive excess has been extreme enough to convince the Supreme Court to intervene. This was true, for example, when in 1952 President Truman tried to use his “war powers” to justify his seizure of the US steel mills during a prolonged strike. Although Truman claimed the seizure was necessary to assure adequate supplies of steel to the military, which was then engaged in the Korean War, the Supreme Court demurred: “Even though ‘theatre of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production.”

Similarly, when President Nixon, during the Watergate investigation, refused to turn over the tapes he had made of his daily conversations, claiming that to do so would violate both executive privilege and the separation of powers, the Supreme Court nonetheless ordered him to release the tapes (and, mirabile dictu, Nixon complied). More recently, the Supreme Court, in Boumediene v. Bush (2008), extended the writ of habeas corpus (allowing review by the federal courts) to noncitizens being held as “enemy combatants” in Guantánamo, notwithstanding strenuous executive claims that such an extension would compromise the war on terror.

These exceptions to judicial deference to the executive are, however, few and far between. It seems fair to predict that in the absence of more frequent and meaningful judicial review, presidents will be tempted to exceed their constitutional powers in order to realize their agendas. The Declaration of Independence is, in effect, a reaction to similarly excessive actions by King George III. With this example so clearly in mind, the Founding Fathers designed the Constitution in such a way that a wholly independent judiciary could, without fear or favor, enforce it, primarily against the legislature, but even against the president of the United States. It would be a tragedy if this constitutional design continued to be unrealized.