Resisting Executive Excess Means Relearning Lessons from the Past

Defenders of checks and balances should be happy that a circuit split on President Trump’s executive order on immigration means that the Supreme Court may rule on its legitimacy. Whether the President’s order is valid or not, the system seems to be working in that the executive is being restrained by the judiciary. However, the historical trend over the last few decades has been for the executive to assert—and reassert—its power. Could it be different this time?

FDR and the Courts

Take for instance, the showdown between President Franklin Roosevelt and the courts, up to and including the Supreme Court, which found large parts of his New Deal program unconstitutional. During the early days of the New Deal, the High Court struck down not just the President’s initiatives, but also local minimum wage laws and various restrictions on business.

The response was FDR’s infamous “court packing” proposal, whereby he sought to expand the Supreme Court to 15 justices—with him nominating the new justices, of course. Although the bill was controversial in Congress, and many Democrats opposed it, it appeared to have the desired effect. The “swing” member of the court, Justice Owen Roberts, performed “the switch in time that saved nine,” and began voting with Roosevelt’s allies on the court, paving the way for the radical changes of the New Deal and the growth of the modern administrative state.

As FDR’s example shows, a dominant executive with popular backing can have substantial influence over the Supreme Court. And it’s not just America. History has much to say about the validity of other attempts to restrain executive power over the centuries.

Controlling the King

Thanks in part to the Norman Conquest, England evolved a strong executive monarchy before other European states. The King became the fount of law, with courts and assizes bringing him revenue. This over-supply of law led to the revolt that forced King John into signing Magna Carta in 1215, which established the principle of rule of law in England. It held that the King was not above the law and there were certain things he could not do to his subjects under any circumstances.

Yet Kings continued to behave badly when it suited them. The reaction of the people was essentially to #resist in a series of peasants’ revolts, most of which failed badly. But from Magna Carta’s idea of a council of advisers, there grew the principle that the King had to procure supplies of money not only to wage war, but to fund other more beneficial activities, from taxes authorized by a Parliament.

The power of the purse became one of the most important checks on the English executive. Charles I didn’t like it. Parliament withholding supplies became his primary reason for embarking on the English Civil War, which led to the brief abolition of the monarchy and its replacement with a non-hereditary executive, but one that probably held more power than the monarch. Indeed, the Cromwellian philosopher Thomas Hobbes called the ideal absolute sovereign Leviathan, the greatest creature in the world.

Separating Powers

After another—this time mostly bloodless—civil war, England settled on a form of government based around separation of powers. It was this model that the framers of United States Constitution sought to emulate. America’s Founders purposely made the legislature the dominant force in government, with the executive having few enumerated powers. The judiciary had to assert itself primarily as a check on the legislature. As Chief Justice John Marshall put it, it was the courts’ job to say if laws passed by Congress were compatible with the Constitution.

Yet as we have seen, separation of powers is no guarantee of restraint on the executive’s part. Since the New Deal particularly, Congress has been happy to create new powers for the executive, including the power to write law, and the courts have happily given sanction to those powers under the concept of judicial deference. Congress has also been happy to shovel money into the executive’s pocket. This is not what the Founders had in mind.

The Modern Imperial Presidency

The result has been an “imperial Presidency” that allows the President to start wars, write – and rewrite – thousands of laws that affect the day to day lives of individual citizens, and keep its inner working free from prying eyes despite transparency laws. Congress wastes its time in internal disputes over what to do about laws it doesn’t like, and the Courts allow an erosion of civil liberties such that, as Radley Balko notes, the abusive British Crown of the 18th century had less power to enter a home than a police officer generally does today.

If the Constitution’s system of checks and balances is to work, the lessons of the past 800 years need relearning. Congress and the Judiciary need to guard their prerogatives jealously. That means no delegation of lawmaking power by Congress to the President, a tight hold on the nation’s pursestrings, and no deference from the Judiciary to the Executive’s interpretation of law (or to the popularity of its program).

Rule by regulation has been great for politicians of both parties. But it has been dismal for America’s constitutional system. If Americans truly want to restrain presidential power, they need to agree to end the modern administrative state, so that rule by Executive Order will come to be a thing of the past.

Originally posted at The Huffington Post.