 |
Democrats and pundits have exaggerated Vice President J.D. Vance’s remarks into a ‘constitutional crisis.’
Under the Constitution, “the President is invested with certain important political powers, in the exercise of which he is to use his own discretion.” For his decisions, “he is accountable only to his country in his political character, and to his own conscience.” His choices cannot be questioned in court because “the subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.”
Who penned these outrageous words? Democrats and many pundits might answer Vice President J.D. Vance. Over the weekend, Vance provoked an onslaught of criticism for suggesting that federal district judges “aren’t allowed to control the executive’s legitimate power.”
But the usual suspects would be wrong. The right answer is John Marshall, the greatest chief justice in Supreme Court history. And he did not squirrel this view away in a private journal. Instead, Marshall publicly explained that courts could not review presidential decisions on “political” subjects “entrusted to the executive” in a Supreme Court opinion.
He announced this principle not just in any case, but in Marbury v. Madison, the greatest opinion in Supreme Court history. The very same Marbury that concluded that federal judges should reject unconstitutional statutes, also recognized that courts could not intrude into the president’s exercise of his constitutional — dare we say “legitimate” — powers. Marshall’s opinion has given rise to the “political question doctrine,” which prohibits courts from reviewing decisions vested in the Constitution in the other branches, such as making war, prosecuting cases, and conducting impeachments.
Nevertheless, Democrats and pundits have exaggerated Vance’s remarks into a “constitutional crisis.” They claim that the Trump administration is threatening to defy court orders before overthrowing the constitutional structure, governing by presidential decree, and ruling without regard to the law. To be sure, all of us ought by now to be accustomed to such bizarre and overwrought reactions from Trump’s and Vance’s critics — and to write them off. Marshall himself would have seen these claims as a deliberate misrepresentation of the separation of powers. Americans should today as well.
Separation of Powers
Here is what Vance said:
If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal. Judges aren’t allowed to control the executive’s legitimate power.
Vance’s words do nothing more than explain the separation of powers at work. Under the Constitution, the president has his sphere of authority and the judges have theirs. The Constitution grants the president “the Executive power,” requires him to execute the laws faithfully (of which the Constitution is the highest law), and charges him to protect national security. Among other things, these constitutional authorities give him the power to supervise the personnel in the executive branch, from Cabinet officials on down. Neither the federal judiciary nor Congress can “control the executive’s legitimate power” (as Vance put it) within that sphere, just as the president cannot dictate to the Supreme Court how to decide a case or controversy.
An obvious example is the one Vance provides: war. The Constitution vests the president with the role of commander-in-chief of the armed forces, while it gives to Congress the power to declare war. The courts have no power to direct the president in the exercise of his wartime authority.
During the Vietnam War, Rep. Elizabeth Holtzman sued to stop the bombing of Cambodia (which President Richard Nixon had ordered). Holtzman obtained an injunction from a district court. The court of appeals promptly stayed the district court order. Holtzman petitioned Supreme Court Justice Thurgood Marshall, who oversaw that court of appeals, to vacate the stay. Marshall properly refused, writing “the proper response to an arguably illegal action [by Nixon] is not lawlessness by judges charged with interpreting and enforcing the laws.” Holtzman then reapplied to liberal Justice William Douglas, an outspoken critic of the war, who rejected the executive’s argument that reimposing the ban on the bombing would cause a “constitutional confrontation.” Douglas then ordered the military to stop the bombing. The military ignored Douglas’ order. Douglas’ colleagues on the court immediately overturned his unconstitutional order. No federal court has ever attempted to stop military hostilities, or — for critics of Vance would have to accept this possibility — ordered them to begin.
Vance also correctly recognizes that courts cannot direct the president’s exercise of the power of prosecution. The Constitution grants the president broad discretion over what cases, criminal or civil, to bring or not to bring, and what level of federal resources to dedicate to the enforcement of federal law. The Supreme Court affirmed the breadth of prosecutorial discretion in the 1985 case of Heckler v. Chaney. Supporters of the Biden administration should be the last people to question the breadth of the president’s prosecutorial discretion. Biden virtually suspended control of the border by claiming the right not to enforce immigration law. The Biden administration claimed that same discretion to pursue not just the Jan. 6 rioters, but even the past president and the leading opposition candidate for the same office, Donald Trump.
Prosecutorial discretion is not absolute. Prosecutions begun on the basis of race violate the Fourteenth Amendment, as recognized by the Supreme Court in the 1886 Yick Wo v. Hopkins decision. Prosecutors also cannot target defendants because of their speech, political views, or religion. But these are not separation of power principles — these rules apply to the courts and Congress too.
Authority over Executive Branch Personnel--->READ MORE HERE
If you like what you see, please "Like" and/or Follow us on FACEBOOK here, GETTR here, and TWITTER here.
No comments:
Post a Comment