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Saturday, July 22, 2023
Belkin & Tushnet endorse judicial departmentalism
Aaron Belkin and Mark Tushnet authored an open letter urging Pres. Biden to pursue "popular constitutionalism" where "if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations." They explain:
The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President’s interpretation, they can express their views at the ballot box. Popular Constitutionalism has a proud history in the United States, including Abraham Lincoln’s refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers.
Belkin and Tushnet are describing what Kevin Walsh labeled and I have pursued as "judicial departmentalism." The President can and should pursue a constitutional interpretation at odds with the Court's precedent. The Dred Scott reference is the tell. Lincoln argued not that Dred Scott was free or that he could disregard the judgment in that case, but that he could act contrary to the Court's opinion about the rights of enslaved persons or the constitutional validity of the Missouri Compromise.
The recent equivalent would be continuing to pursue affirmative action in higher education (outside Harvard and UNC) and elsewhere. Belkin and Tushnet push that point:President Biden could declare that the Court's recent decision in the affirmative action cases applies only to selective institutions of higher education and that the Administration will continue to pursue affirmative action in every other context vigorously because it believes that the Court's interpretation of the Constitution is egregiously wrong.
They lose me on that last point. I like the idea that the President should explain his intention and why, so the public sees and measures the competing constitutional approaches. But I do not agree that the President can (or should) do this only where the Court's interpretation is "egregiously wrong." That retains a whiff of judicial supremacy--the Court gets the last word except in some unique and extraordinary circumstances.
Better to say the President can pursue his competing interpretation in all cases where he believes appropriate. The limiting principle on the power (which Ilya Somin argues is absent) is not the egregiousness of the case. The limiting principle comes from the inevitable litigation challenging the President's actions and the likelihood that the Court will adhere to its view and reject the President's view in issuing a new judgment in a new case. And I do not read Belkin and Tushnet to argue that the President can ignore a judgment in a specific case.
Of course, while Democrats talk about whether to do this, Republicans do it. The Alabama legislature enacted a new legislative map that, like the map declared invalid Allen v. Milligan, contains one (rather than two) majority-Black districts. This has liberals up in arms about a return to the 1960s and Alabama ignoring the Supreme Court. But isn't this what Belkin and Tushnet argued for?
Accepting that government can ignore an opinion but not a judgment, the answer depends on what we understand as the "judgment" in Allen. Was the judgment that Alabama must enact a map with two majority-Black districts because § 2 requires two such districts, given the population in Alabama? Or was the judgment that Alabama's prior map violated § 2 and that Alabama must enact a new map that conforms with § 2, even without a second majority-Black district (the enacted map has a second district that is about 40 % Black)? If the latter, Alabama is within its power (as Biden is under the Belkin/Tushnet argument) in enacting what it believes to be a proper map and triggering a new round of litigation. Alabama might (will?) lose that litigation, if the Court believes Allen's logic and reasoning requires a second district. But that does not mean Alabama crossed the line into defying the injunction.
Posted by Howard Wasserman on July 22, 2023 at 12:32 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink
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