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Friday, June 29, 2018

(SCOTUS Term) Departmentalism and Kennedy's Hawaii concurrence

June guests Dan Epps and Leah Litman did a "Good Behaviour" edition of the First Mondays podcast to discuss Justice Kennedy's retirement (both clerked for Kennedy). They talked a bit about Kennedy's concurring opinion in Trump v. Hawaii, trying to make sense of it. Their discussion triggered a thought.

Judicial supremacy (to which Kennedy long has adhered) without judicial enforcement is incoherent. Kennedy argued that, even without judicial oversight, executive officials must "adhere to the Constitution and its meaning and its promise." It is an "urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs." But Trump  and his aides and officials believe they are adhering to the Constitution, as they interpret and understand it. Trump and his administration believe that the Constitution gives the President the broad discretion to enact and enforce the travel ban, because national-security concerns outweigh any disadvantages imposed on persons of a particular faith. And if the judiciary is unwilling to review the President's actions, that presidential interpretation becomes the last and controlling word on this piece of the Constitution.

So it must be that Kennedy was urging the President to adhere to the Constitution as the Court (or just Kennedy) understands it. But this is the key insight of judicial departmentalism--the other branches are bound by the judicial understanding of the Constitution only when that understanding is reduced to a binding judgment in an action to which the executive is a party. Or, short of a judgment, the executive prediction that he will be subject to a judgment unless he follows the judicial understanding. But when the judiciary decides that it cannot intervene, no judgment is possible, therefore the judiciary cannot impose its interpretation on the executive. And we return to the executive having the final constitutional word.

Kennedy was trying to have it both ways in his concurrence--no judicial involvement and so no judgment, but a push towards the judicial constitutional interpretation. But he cannot have it both ways. Either the judiciary gets involved or the judiciary's constitutional interpretation carries no weight.

Posted by Howard Wasserman on June 29, 2018 at 11:15 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


"Either the judiciary gets involved or the judiciary's constitutional interpretation carries no weight."

Sure this is correct viewed from the lens of power. On the other hand Kennedy's concurrence is coherent viewed from the lens of comity, from the idea that the three branches are engaged in a "conversation". Of course, the idea of comity is itself a norm and one that perhaps Trump doesn't agree with. In that case Kennedy's concurrence is not incoherent, it is empty. His rhetoric is appealing to a norm his audience doesn't share.

But here's a thought. Maybe Kennedy's concurrence isn't aimed at Trump himself but rather at the SG and others in his administration. Perhaps it is Kennedy's way of saying: look just because I can't do anything you can Noel Francisco. Then it is neither incoherent nor empty, which is not to say it will be effectual.

Posted by: James | Jul 1, 2018 3:53:53 PM

I don't see any oddity in what Kennedy was doing. He wants the president to take the Constitution seriously even the SC can't enforce it. I could say that I want the SC to take the constitution seriously (as opposed to ideology perhaps), and people say similar things all the time, and no one thinks that is incoherent even if I as a blog commentator can't enforce my will.

Posted by: Jr | Jul 1, 2018 12:23:08 PM

One may read in that blog :' guy in the world '( very recommended blog) more on that issue ;


Posted by: El roam | Jun 30, 2018 12:03:30 PM

Just correction :

The citation brought , is not directly of the district of Columbia , but rather , citing another case ( Hamdi case ,see therein ) .


Posted by: El roam | Jun 30, 2018 9:11:43 AM

Wasserman , I haven't stated " can't " what I have , is that it is a different arena , where judges may manifest more restraint. But if needed ( as you can read the citation above ) they will intervene .


Posted by: El roam | Jun 30, 2018 7:59:42 AM

Just citing the district court of Columbia , in a petition challenging the legality of the detention of the petitioner , in the US naval base in Guantanamo bay , here :

” As critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.”

To the ruling:



Posted by: El roam | Jun 30, 2018 7:54:17 AM

But if the judiciary can’t or won’t review the Presidrnt’s actions because they are unreviewable when facially neutral and done for national security, there is not even persuasive authority because the judiciary never has an opportunity to establish that authority by deciding other cases.

Posted by: Howard Wasserman | Jun 30, 2018 7:34:38 AM

With all due respect , you don't observe it correctly . The courts don't deal with the policy dictated by the executive branch . The courts , only deal with " judicial review " that is to say , not whether the policy is wise and correct ( ideologically or strategically ) but :

Whether , legally and constitutionally , it is correct and legal actually . And only to that extent , the courts review the policy of the executive branch . For this is the meaning of the " rule of law " . No one is above the law . Every decision is subjected to judicial review ( and only and if , a motion is filed ) .The meaning of the democratic regime , is that it is the ruling of the law , not a person , for if it is the ruling of a person , capriciously deciding , it is the ruling of a dictator , in the plain meaning of it .

In this regard , the courts , have always the last say . Otherwise , there is no effective way , to reverse illegal and unconstitutional decision of the executive branch . Moreover , the courts , the judges , are the ultimate experts for the law and the constitution . So , what is the law , it is up to the courts .

What is right , is that the foreign policy , is a very particular domain , outstanding one . Why is that ?? too complicated , yet just two :

First , secrecy . Second , who would challenge it ?? Typically , the doctrine of sovereignty of a state , reigns in the International arena , so , another state , or foreign citizen , don't have typically standing right . It is a sort of International jungle .

But not to forget , courts in the US , have asserted not once , that the foreign policy arena , is not out of the game . If needed , they would intervene . They manifest typically more restraint , but , it is not totally beyond reach , in the more extreme cases at least .


Posted by: El roam | Jun 30, 2018 7:26:06 AM

It carries no binding or authoritative weight but it still carries persuasive weight.

Posted by: Peter Gerdes | Jun 30, 2018 4:41:22 AM

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