The new president declares his inauguration day a special, self-aggrandizing day and goes on to sign an unprecedented number of executive orders in his first two weeks in office.
Yes, former President Obama has much to answer for.
Whether we are focused on President Obama’s “National Day of Renewal and Reconciliation,” and his 19 executive orders, or President Trump’s “National Day of Patriotic Devotion,” and his 18 executive orders in a similar time frame, it is clear that in recent years the president has pushed the limits of executive power and privilege. President Trump’s actions in his first weeks in office are part of an expanding use of executive power; undertaken in part in reaction to Congressional inaction.
Contrary to President Trump’s seeming belief, the Constitution he swore to “preserve, protect and defend” provides for three equal branches of government with distinct roles and an interplay that is intended to provide informed policy making while balancing the competing priorities of deliberation (Congress) and action (the Executive). The Judicial Branch should be an arbiter to determine when the other branches are acting within their scope of power. Things go awry if one branch does not meeting its full responsibility and creates a power vacuum into which the other branches step. This asymmetry breeds imperfect policy and creates more public tension than when the system functions properly. As Justice Frankfurter said in opining on President Truman’s overreach in nationalizing our nation’s steel mills, when the Framers “rested the structure of our central government on a series of checks and balances … separation of powers was not mere theory; it was a felt necessity.”
Congress has become increasingly a forum for posturing and scoring political points instead of lawmaking, as evidenced by the significant drop off of bills passed in recent Congresses. This sclerosis has created a power vacuum which must be filled. When the Executive takes on an expanded role, the Judiciary must determine whether the Executive has overstepped its bounds.
The failure of Congress to take action on immigration issues became a crisis and President Obama stepped into the power vacuum with an Executive Order that was intended to provide quasi-legal status and access to a work permit to those who had since childhood known no other home. Numerous states sued and ultimately the Supreme Court allowed a lower court decision blocking the Executive Order to stand.
Now, the Supreme Court may have to pass judgment on President Trump’s immigration order. In doing so, it will be a blunt instrument for policy-making that will provide short term answers, but no long term solutions with broad based buy in.
As awkward as the Judiciary is at lawmaking, it is at least playing its appropriate Constitutional role in evaluating the actions of the Executive. President Obama acknowledged the validity of this role in the aftermath of his immigration order with numerous comments reflecting his respect for the Judiciary while admitting his frustration over the result. In contrast, President Trump’s open disdain for the Judiciary and criticism of individual judges, a posture criticized by his own Supreme Court nominee, is not just troubling, but alarming. As Justice Brandeis said, “The doctrine of separation of powers was adopted … to preclude the use of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of powers among three departments, to save the people from autocracy.”
When the Judiciary and the Executive are on the playing field, it is the Legislative branch that is reduced to sitting on the sidelines. Regardless of your political views, it is hard to be comfortable with a process that places lawmaking farther from the branch designated by the Constitution to make laws. “Legislating” in this manner creates action, but also uncertainty as a relatively non-transparent, often arcane judicial process takes the place of open debate. Congress should take the present debate over the constitutionality of Trump’s immigration order as yet more evidence of the dangers of rank partisanship. Democratic members of the Congress should fear the rise of centralized power while Congressional Republicans hopefully see the irony that their deliberate policy of inaction fostered in the past several years has led to increased use of executive power and greater judicial activism.
Steve Bachar is a partner in the Denver law firm of Moye White LLP and a former Clinton White House and Treasury Department official. The views expressed herein do not necessarily reflect the views of Moye White or its clients.
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