Confusion About the Separation Of Powers

No, There is No “Constitutional Crisis”

Recent days have seen confusion about the separation of powers enter the public sphere. One example was the alarmist reaction of many journalists and law professors when the Vice President said that “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.” The more unbalanced reactions assumed that the executive branch was preparing to defy court judgments or threatening to do so, and talked of a “constitutional crisis.” Others, apparently making the same assumption, thought it important to insist that the executive is in some way or to some degree bound by judicial judgments.

To be sure, there is a long tradition of “departmentalism” in American law, under which Presidents have sometimes exercised their constitutional power and duty to interpret the law for themselves, and even refused to enforce court orders or threatened to do so — a possibility to which Alexander Hamilton referred in Federalist 78, as itself an aspect of checks-and-balances. But no such threat was apparent on the face of the Vice President’s comments. The much more straightforward and less hysterical reading is that those comments referred to ordinary legal doctrines of justiciability, reviewability, standing, and the so-called “political question doctrine,” which are themselves legal principles that courts apply to restrain their own jurisdiction to review executive action. All these principles are ultimately rooted in the constitutional separation of powers, or in statutes embodying and implementing separation of powers considerations.¹

To illustrate by reference to the Vice President’s example of prosecutorial discretion, the Court recently declined to entertain a suit by states challenging executive enforcement priorities in immigration, saying that “our constitutional system of separation of powers contemplates a more restricted role for Article III courts.” And as to his other example, some version of the principle that courts may not directly control battlefield command and the conduct of operations by the President abroad, or even by governors in cases of domestic riots or public emergency, is an venerable one in our law - the law announced and applied by the courts themselves, out of respect for the separation of powers and the judicial role.

The basic confusion here is that although departmentalism is sometimes discussed under the heading of the separation of powers, it is also true, and perhaps more importantly true, that the separation of powers operates as an internal doctrinal principle that courts apply in our legal system. Courts themselves often invoke the separation of powers to limit their own authority, to put certain classes of executive action off limits from judicial review, or to shape and constrain the remedies they themselves provide. This has been true for as long as we have had courts and judicial review. In other words, because the separation of powers operates as a central legal principle within the legal decisionmaking of courts, the question “who decides?” comes in two different forms; failing to distinguish them causes confusion. As a matter of separation of powers, the courts may themselves decide that courts ought not to be the ones to decide a given issue. Reviewability, standing, the political question doctrine, and so on all have this effect.

To date, all of the Trump administration’s responses in court have embodied ordinary appeals to these ordinary principles. In response to a recent temporary restraining order that seemingly barred all political appointees at the Treasury Department from accessing certain internal information, the administration replied in a filing that “[a] federal court, consistent with the separation of powers, cannot insulate any portion of th[e] work [of the executive branch] from the specter of political accountability.” That was a straightforward legal appeal to the limits of judicial authority — an appeal made within a judicial proceeding itself, and as an argument under applicable law. Even where courts have jurisdiction to decide, it is always legally valid to argue that their decisions ought themselves to respect the separation of powers, and are thus subject to limitations internal to the law, as it were. There is no constitutional crisis of any kind when the executive branch appeals to such principles.²

1. For my own theoretical skepticism that the separation of powers is, as it were, overrated, see this previous post. Here, however, I offer an observation within the horizons of current law.

2. On a much smaller scale, of course, the same sort of reactions occurred when I myself made the rather commonplace legal observation that “judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers.” Quite oddly, some thought it meaningful to insist in response that courts decide what is legitimate — as though any mention of the separation of powers entails defiance of the very jurisdiction of the courts to decide anything at all, rather than merely representing an internal legal argument for courts to consider. For examples of courts avoiding interference with the internal functions of the executive, consider the presumptive non-reviewability of enforcement discretion, and non-reviewability of the discretionary allocation of money by the executive.