The American Presidency

Constitutional Powers

As a highly procedural document, the Constitution is verb-dense and assigns a variety of specific actions, roles, and responsibilities to the Legislative, Executive, and Judicial branches of government. That there is a system of checks-and-balances between the three branches is well-known and well-discussed. ⁷ My unit will focus specifically upon the Supreme Court's ability to "check" the power of the presidency through judicial review as well as Executive reactions, past and present, to this power. Before we can begin a discussion of how the Judicial branch structures the power of the Executive, it is crucial to develop a working definition and understanding of both Executive and Judicial power in particular regard to their power, either explicit or implicit, of Constitutional interpretation.

Executive Powers

Articles II and III of the Constitution detail the roles of the Executive and Judicial branches of government. Based on Article II of the Constitution, Clinton Rossiter summarized the President's five key roles: Commander in Chief, Chief Executive, Chief Diplomat, Chief of State, and Chief Legislator. ⁸ Of these roles, that of Chief Legislator is perhaps the most perplexing since it can only be inferred from the President's other roles and responsibilities.

Clinton Rossiter argued that the President alone is capable "in a political, constitutional, and practical position" to provide external leadership to the Legislative branch of government. ⁹ As the President is required to "take Care that the Laws be faithfully executed," he must necessarily have some operative understanding and interpretation of what the laws mean under the Constitution. ¹⁰

Moreover, in the age of a two-party system, whereby the Legislative branch may sometimes be at odds, it may seem appropriate that the President be capable of "directing" Congress and the Senate in areas of disagreement. Barack Obama seemed to share this understanding a President's role prior to his election: "I think that there's a tradition of us working together [in Congress] to make sure that we are dealing with the threats that are out there and that we are building a consensus here in the United States.That's the kind of approach I intend to take when I'm president of the United States." ¹¹

The President, then, appears to play a key role in building consensus, especially when partisan politics may slow the legislative process. It seems, then, that the President plays a key role in both shaping and executing the laws under the Constitution.

Should the President, then, also have final or equal authority in interpreting the Constitution as the other branches?

Judicial Powers: Interpreting the Third Branch

Article III of the Constitution specifies that "judicial Power of the United States shall be vested in one supreme Court" and that it may create inferior courts as necessary." ¹² The jurisdiction, or legal authority, of the Supreme Court extends "to all Cases, in Law and Equity, arising under this Constitution." ¹³ Article III, however, is silent in regard to what happens for issues that do not arise under the Constitution. Moreover, it provides no directions or recommendations for how the court should make its decisions or by what process it should select, hear, review, and decide cases.

Though modern scholars still debate the meaning of Article III, it was perhaps most hotly debated by the founders themselves. Debates centered largely upon who had the duty of interpretation and whether or not there were "checks" upon interpretation.

The Power of Interpretation

In recording notes from the Constitutional Convention, James Madison noted Elbridge Gerry's concern on June 4 ^th, 1787 that the Judiciary had a "power of deciding on their own Constitutionality" and inquired as to whether there should be some "check" against this. ¹⁴ No "check," however, was explicitly formulated.

For this very "lack" of a check against judicial review, Alexander Hamilton noted that the Supreme Court is the center of authority in the national government through its "duty… to declare all acts contrary to the manifest tenor of the Constitution void." ¹⁵ He did, however, also note that it lacked certain key powers in that it has no influence over "the sword or the purse." ¹⁶ While it did not have the sword or purse, the judicial had the "say."

It would appear, then, that the Supreme Court reserves a right to review any case involving an issue under the Constitution. On the issue of how to interpret the Constitution, however, there were no directions. Did the drafters envision this document as relatively straightforward? Did they, or could they, foresee the plethora of Constitutional interpretations that would later arise?

The Federalists, Framers, and Judicial Review

That the Judicial should check the Legislative branch in Constitutional interpretation was very clear: "If the general legislature should at any time overleap their limits, the judicial department is a constitutional check," said Oliver Ellsworth in 1788. ¹⁷ Similarly, James Wilson explained that the Legislature "may be restrained, and kept within its prescribed bounds, by the interposition of the judicial department." ¹⁸ The word "interposition" almost suggests a sort of judicial activism- Beyond merely hearing cases that arise, Ellsworth seems to recommend the court find and intervene in instances where Legislation exceeded its Constitutional bounds! The interpretations from Hamilton and Ellsworth both hint at an implicit anticipation of judicial review.

The Executive's role in reviewing the Constitution, however, was less clear.

James Wilson argued that both the Legislative and Executive have a key duty to interpret the Constitution. As one of the attendees of the Constitutional Convention, he wrote in December of 1787 that "the judges,—when they consider its principles, and find it to be incompatible with the superior power of the Constitution,—it is their duty to pronounce it void." ¹⁹ Wilson, however, did not suggest that the Judicial have ultimate power of interpretation. Instead, he hinted at a shared responsibility to interpret the Constitution: "In the same manner, the President of the United States could shield himself, and refuse to carry into effect an act that violates the Constitution." ²⁰ Both executive and judicial, in Wilson's view, have an equal role interpreting the Constitutionality of an action.

Interestingly, while the Executive and Judicial share an equal role in Constitutional interpretation, he believed the Legislative branch played a clearly inferior role in this regard: "The legislature may be restrained, and kept within its prescribed bounds, by the interposition of the judicial department." ²¹

Finally, there was also a view that each branch should interpret the Constitution for itself. In this view, branches had an equal responsibility to support Constitutional laws and to void those which were not. Jefferson noted this as follows: "Each of the three departments has equally the right to decide for itself what is its duty under the constitution, without regard to what the others may have decided for themselves under a similar question." ²² A foundational assumption of this view would seem to be that the Constitution is relatively straightforward and that there would not likely be conflicts of interpretation. The Judicial, then, would serve primarily to confirm or validate through its opinions what the other branches had decided for themselves.

The Anti-Federalists and Judicial Review: Is "Interpretation" the ultimate check?

As a primary source, the Anti-Federalist papers no. 11, 12, and 15 by "Brutus" offer a unique and evolving understanding of the judicial branch as the Founders may have perceived it.

In the Anti-Federalist papers, number 11, Brutus claims that no prior papers have seriously considered the question of the court's role. In his analysis, Article 3, section ii implied that the court could "determine all questions that may arise upon the meaning of the constitution in law." ²³ This understanding encompasses the general meaning of judicial review and yet Brutus wrote this in 1788, years before this phrase entered the legal vernacular with our modern connotation. Perhaps more interestingly, he argued that "they are empowered, to explain the constitution according to the reasoning spirit of it, without being confined to the words or letter." ²⁴ The spirit, he argued, would be determined through the judges' interpretation of the Constitution's preamble. The idea that judicial opinions may not be confined to the words, suggests Judges may have quite broad interpretive powers, powers that could not easily be predicted if we only study the exact wording of the constitution.

Nearly one month later, Brutus revisited this issue in the Federalist 12, suggesting, "it is easy to see, that in their adjudications they may establish certain principles…. [which] will enlarge the sphere of their power beyond all bounds." ²⁵ Fears that the Executive branch and the President might be too powerful were common, yet this marked one of the first instances where the Judicial branch came under this sort of suspicion. While the Federalist 11 was not an outright indictment of the Supreme Court, the 12 ^th appears to be! It is almost as if, after ruminating for a week or two, Brutus suddenly realized how expansive the court's rule could become.

In number fifteen, in March of 1788, Brutus offered perhaps the most articulate and thorough critique against judicial supremacy. Brutus argued:

The Supreme Court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. ²⁶

This is one of the first arguments, in anticipation of a formal definition of "judicial review," that the judicial branch may have a "superior" check. Essentially, if the Constitution describes the powers of each branch, the branch with authority to interpret these powers will have the greatest power! It may interpret the Constitution, without check, to benefit the growth of its own powers! While Brutus does not explicitly reference the Executive's role, he does say there is no power in "this system" to check the court's role.

It is worth considering whether any of these arguments of the Court's supremacy hold weight and whether they return as the Executive branch establishes its role.