Criminal Justice & the Rule of Law

Departmentalism, Judicial Supremacy and DACA

Keith E. Whittington
Monday, February 26, 2018, 7:00 AM

In recent years, there has been a resurgence of academic interest in the concept of both departmentalism and its obverse, judicial supremacy.

(Photo: Wikimedia/AgnosticPreachersKid)

Published by The Lawfare Institute
in Cooperation With

In recent years, there has been a resurgence of academic interest in the concept of both departmentalism and its obverse, judicial supremacy. To no small degree, that resurgence has been fueled by concern about how aggressively the federal courts were using their power of judicial review to supervise the actions of the other branches of government and how little deference judges seemed to be giving to the judgment of elected representatives. There seemed to be few, if any, political or policy disputes that judges were unwilling to wade into and few political settlements or stalemates that judges were unwilling to upend.

Such academic theorizing could often seem, well, academic—too far removed from the realities of constitutional decision-making in American politics and too abstracted to inform actual constitutional controversies. But the recent federal district court order in New York on the Trump administration’s suspension of the Deferred Action for Childhood Arrivals program illustrates why an appreciation of departmentalism and a skepticism of judicial supremacy might matter in the real world. Departmentalism has implications both for how judges might exercise their own powers of review and for how executive branch officials conduct themselves when fulfilling their own duties.

“Departmentalism” is the somewhat archaic name for the theory that each branch, or department, of the government has an equal and independent authority to interpret the Constitution for purposes of guiding its own actions. While the term “departmentalism” was likely coined by the constitutional scholar Edward Corwin during the battle over the New Deal, the concept itself has deep roots within American constitutional history.

In pushing back against the then-conservative Supreme Court’s interpretation of the Constitution in the 1930s, Corwin distinguished what he called a “juristic” doctrine of judicial review from a “political or departmental” conception. The juristic conception has often been favored by judges, who are likely to believe that the courts are the “proper authority” to resolve the meaning of disputed constitutional requirements and that judges “have a peculiar competence in this field.” At several points, the Supreme Court gave a boost to that view: The court declared in the Little Rock desegregation case that “the federal judiciary is supreme in the exposition of the law of the Constitution” and further emphasized in the Watergate tapes case that the power to interpret the meaning of the Constitution “can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power.” By contrast, in Corwin’s description, the departmental conception holds that the exercise of the power of judicial review “is not the outcome of a power peculiar to the courts, but results to them simply as one of three equal departments of government, each equally bound by the oaths of its members to support the Constitution; while conversely the other two departments are entitled to claim a like prerogative in connection with the exercise of their characteristic functions.”

The canonical expression of this departmentalist idea begins with the Jeffersonians, but it has echoed through American history ever since. The Jeffersonians’ disagreements with the constitutional jurisprudence of the federal judiciary under Federalist Party leadership drove them to emphasize the equality of the different branches. When Abigail Adams complained to the newly elected President Thomas Jefferson about his pardoning those who had been convicted under the Sedition Act of 1798 for printing the “foulest falsehoods” about her husband, Jefferson responded that

you seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them the right to decide for the executive, more than to the executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because the power was placed in their hands by the Constitution. But the executive, believing the law to be unconstitutional, were bound to remit the execution of it; because that power has been confided to them by the Constitution.

As Jefferson later emphasized to the Virginia jurist Spencer Roane, who was doing battle in the press with Chief Justice John Marshall over the court’s opinion in the McCulloch v. Maryland, “each of the three departments has equally the right to decide for itself what is its duty under the Constitution, without any regard to what the others may have decided for themselves under a similar question.” Otherwise, the Constitution “is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” Andrew Jackson drew on such arguments directly, but even Abraham Lincoln, Franklin Roosevelt and Ronald Reagan nodded to departmentalist doctrines.

Departmentalist doctrines have sometimes been invoked by those who felt the courts had misinterpreted congressional powers under Article I of the Constitution—as the Jeffersonians did. In such cases, proponents of departmentalism argued that the courts had allowed Congress to do by statute what it had been barred from doing under the Constitution. Under such circumstances, presidents with a stricter understanding of congressional powers insisted on their duty to act on those beliefs and keep Congress within its proper limits.

Given the traditional focus of judicial review on legislative power, it is no doubt natural that disagreements between the executive and the judiciary over constitutional meaning should often arise in that context. But there is no intrinsic reason why Article I should be the only site of disagreement. A departmentalist president would readily insist that the chief executive is independently responsible for understanding the boundaries of his own constitutional office and refraining from overstepping them.

Departmentalist arguments have often been tools of particularly ambitious presidents—and in the extreme, they can give rise to fears about uncontrolled presidential power. But despite widespread fears of executive overreach under Donald Trump, the Trump administration has so far invoked departmentalism only in context of the normal administration of executive duties. The administration’s cancellation of DACA program both offers a glimpse of a more routine application of departmentalist logic and highlight the judicial-supremacist underpinnings of some recent judicial moves against the administration.

In creating DACA, President Barack Obama announced that “in the absence of any immigration from Congress to fix our broken immigration administration,” the executive branch would adopt a “temporary stopgap measure that lets us focus our resources wisely” by deferring immigration enforcement action against aliens residing in the United States who had been brought into the country as children without appropriate legal documentation. The Department of Homeland Security explained that it was simply formalizing “the exercise of our prosecutorial discretion” regarding “low priority cases,” while recognizing that the program “confers no substantive right” to those within the scope of the program since “only the Congress, acting through its legislative authority, can confer these rights” and the executive branch was obliged merely to exercise discretion “within the framework of the existing law.”

In announcing the end of the DACA program, by contrast, President Trump declared that the DACA program was “making an end run around Congress and violating the core tenets that sustain our republic.” In the face of litigation from several states, Trump explained that the administration had no choice but “to make a decision regarding [DACA]’s] legality” and “virtually all ... top legal experts have advised that the program is unlawful and unconstitutional.” “In keeping with the obligations of my office,” the president was ordering DHS to “wind down” DACA. Only Congress had the authority to alter the immigration status of the aliens who fell under the scope of DACA. It would exceed presidential authority to unilaterally grant an “executive amnesty” in response to congressional inaction.

Likewise, in advising DHS to rescind the Obama-era memorandum creating DACA, Attorney General Jeff Sessions sent the department a directive that stated bluntly, “Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.” Sessions pointed to a ruling by the Fifth Circuit against the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) as indicative of the legal troubles that would likely beset the DACA program as litigation progressed, though the appeals court had thus far declined to reach the constitutional issue of executive power under the take care clause of the Constitution.

Since then, some courts have intervened to block the Trump administration’s efforts to wind down DACA. As Josh Blackman has pointed out, those judicial opinions have not grappled with the Sessions letter and the administration’s constitutional justification for ending DACA. In California, Judge William Alsup determined that the administration was working on a “flawed legal premise” that DACA was inconsistent with Congress’s statutory scheme for immigration. In New York, Judge Nicholas Garaufis determined that the administration’s decision was “arbitrary and capricious.” In particular, Garaufis wrote, the administration could not offer “legally adequate reasons” for ending the DACA program because, to the extent that the decision rested “exclusively on a legal conclusion that the program was unconstitutional,” it was “erroneous.” To the extent that the government lawyers tried to pivot to an argument based on “litigation risk” rather than a direct assertion that the program was unconstitutional, Garaufis was unconvinced that such a fear could be reasonable.

Notably, Garaufis rested his argument on his own assessment that the administration was acting on the basis of an “erroneous legal premise.” Even if an agency could have taken the same action on grounds of pure policy, the administration’s justification of its action on the basis of “a misconception of the applicable law” made that action necessarily “arbitrary and capricious in substance.” The government could “not act as if courts have tied its hands” by misstating the content of the law.

But this mischaracterizes the Trump administration’s description of its own actions.

Although the Sessions letter could be much clearer on this point, the administration did not simply “act as if courts have tied [the executive’s] hands.” Rather, the Trump administration asserted an independent constitutional judgment that DACA was inconsistent with the administration’s understanding of its own constitutional responsibilities. Garaufis, however, treated this judgment as if it were simply a statement about the current judicial interpretation of the applicable law. As such, he viewed the claim as reviewable de novo and then reassured the White House that the “Executive Branch has wide discretion not to initiate or pursue specific enforcement actions.” Given that discretion, Garaufis believed that a reviewing court would ultimately uphold the constitutionality of DACA—and thus ruled that the Trump administration was acting capriciously by assuming otherwise.

Judge Garaufis’s ruling hinges on a logic of judicial supremacy. Throughout his opinion, he treats the Constitution very much as what the judges say it is—or, more to the point, what he says it is. Acting on any alternative understanding of the Constitution is not merely disputable; it is capricious. He does open the door for the government to argue that “courts should review deferentially Defendants’ decision to end the DACA program” on the basis of constitutional concerns, but he insists that any such consideration would fall outside the “ordinary arbitrary-and-capricious standard of APA.” But the court’s footnote admitting that such arguments might be “interesting” is in tension with how the body of the opinion treats the constitutional questions and the Sessions letter.

If the court were to recognize the administration’s constitutional concerns about overstepping its own powers as reflecting the judgment of an equal branch of government with an equal “right to decide for itself what is its duty under the Constitution,” then it would be hard pressed to dismiss those concerns as arbitrary—even if the administration’s interpretation differed from that of the court. A judiciary that took departmentalism seriously—that is, a judiciary that took seriously the responsibility and authority of the other branches of government to fulfill their own constitutional oaths to uphold the requirements of the Constitution—would be under some obligation in this context to adopt a more deferential posture on the termination of DACA. Garaufis recognizes that the question of whether or not to have a DACA program is a matter of executive discretion. So the executive’s desire to avoid violating its own constitutional responsibilities, as it understands them, would seem to offer an independent and adequate rationale for terminating the program.

The court’s belief that the executive is being overly cautious in assessing its constitutional responsibilities bears limited relevance on how the executive might choose to exercise its discretion. The fact that the executive might have adopted a stricter interpretation of its constitutional power than the court does not render the executive’s interpretation “erroneous.”

As Corwin noted, “departmental construction of the Constitution ... may be regarded as a method of correcting either unduly restrictive or unduly latitudinarian judicial conceptions of the powers of the political departments.” Departmentalism cannot correct either, however, if courts treat the executive branch’s constitutional judgment as if it were merely an argument presented for the court’s own consideration and disposition. If the president’s oath simply requires that he uphold the Constitution as the courts understand it, then a judge can definitively determine the executive’s understanding of constitutional law to be erroneous. If the president’s oath requires that he uphold the Constitution as he himself understands it, then the courts should more appropriately adopt a deferential posture when reviewing an action that the court itself believes is within the scope of the president’s discretion.

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University. He teaches and writes about American constitutional theory and development, federalism, judicial politics, and the presidency. He is the author most recently of "Speak Freely: Why Universities Must Defend Free Speech."

Subscribe to Lawfare