Posts Tagged ‘separation of powers’

The degree to which the courts become converted into political forums depends not merely upon what issues they are permitted to address, but also upon when and at whose instance they are permitted to address them. As De Tocqueville observed:

“It will be seen . . . that by leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trial of an individual, legislation is protected from wanton assaults and from the daily aggressions of party spirit. The errors of the legislator are exposed only to meet a real want; and it is always a positive and appreciable fact that must serve as the basis of a prosecution.”

The great change that has occurred in the role of the courts in recent years results in part from their ability to address issues that were previously considered beyond their ken. But in at least equal measure, in my opinion, it results from the courts’ ability to address both new and old issues promptly at the behest of almost anyone who has an interest in the outcome. It is of no use to draw the courts into a public policy dispute after the battle is over, or after the enthusiasm that produced it has waned. The sine qua non for emergence of the courts as an equal partner with the executive and legislative branches in the formulation of public policy was the assurance of prompt access to the courts by those interested in conducting the debate. The full-time public interest law firm, as permanently in place as the full-time congressional lobby, became a widespread phenomenon only in the last few decades not because prior to that time the courts could not reach issues profoundly affecting public policy; but rather because prior to that time the ability to present those issues at will (to make “wanton assaults,” to use De Tocqueville’s pejorative characterization) was drastically circumscribed. The change has been effected by a number of means, including such apparently unrelated developments as narrowing the constitutionally permissible scope of laws against champerty and maintenance (so that the cause may now more readily seek a victim to represent), alteration in the doctrine of ripeness (so that suits once thought premature may now be brought at once), and–to return to the point–alteration in the doctrine of standing.

Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk. Univ. L. Rev. 881, 892-93 (1983).


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After President Adams extradited Thomas Nash (aka Jonathan Robbins), whom the British then executed, Republicans criticized the President on the grounds that he had usurped judicial authority because extradition was regulated by treaty, and “the Constitution of the United States declares that the Judiciary power shall extend to all questions arising under the Constitution, laws, and treaties, of the United States.” 10 Annals of Congress 533 (1800) (quoting a Republican resolution for censuring the President).

Congressman John Marshall’s defense of the Administration’s actions includes a penetrating discussion of the limited power of the federal judiciary. Marshall argued that the decision whether to extradite Nash “was a case for Executive and not Judicial decision.” 10 Annals of Congress 605 (1800). The report of his floor speech continues:

He [Marshall] admitted implicitly the divisions of powers, stated by the gentleman from New York [who had offered the resolution censuring the President], and that it was the duty of each department to resist the encroachment of the others.

This being established, the inquiry was, to what department was the power in question allotted?

The gentleman from New York had relied on the second section of the third article of the Constitution, which enumerates the cases to which the Judicial power of the United States extends, as expressly including that now under consideration. Before he examined that section, it would not be improper to notice a very material misstatement of it made in the resolutions, offered by the gentleman from New York. By the Constitution, the Judicial power of the United States is extended to all cases in law and equity, arising under the Constitution, laws, and treaties of the United States; but the resolutions declare that Judicial power to extend to all questions arising under the Constitution, treaties, and laws of the United States. The difference between the Constitution and the resolutions was material and apparent. A case in law or equity was a term well understood, and of limited signification. It was a controversy between parties which had taken a shape for judicial decision. If the Judicial power extended to every question under the Constitution, it would involve almost every subject proper for Legislative discussion and decision; if, to every question under the laws and treaties of the United States, it would involve almost every subject on which the Executive could act. The division of power which the gentleman had stated, could exist no longer, and the other departments would be swallowed up by the Judiciary. But it was apparent that the resolutions had essentially misrepresented the Constitution. He did not charge the gentleman from New York with intentional misrepresentation; he would not attribute to him such an artifice in any case, much less in a case where detection was so easy and so certain. Yet this substantial departure from the Constitution, in resolutions affecting substantially to unite it, was not less worthy of remark for being unintentional. It manifested the course of reasoning by which the gentleman had himself been misled, and his judgment betrayed into the opinions those resolutions expressed. By extending the Judicial power to all cases in law and equity, the Constitution had never been understood to confer on that department any political power whatsoever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit.

A case in law or equity proper for judicial decision may arise under a treaty, where the rights of individuals acquired or secured by a treaty are to be asserted or defended in court. As under the fourth or sixth article of the Treaty of Peace with Great Britain, or under those articles of our late treaties with France, Prussia, and other nations, which secure to the subjects of those nations their property within the United States; or, as would be an article, which, instead of stipulating to deliver up an offender, should stipulate his punishment, provided the case was punishable by the laws and in the courts of the United States. But the Judicial power cannot extend to political compacts; as the establishment of the boundary line between the American and British dominions; the case of the late guarantee in our Treaty with France, or the case of the delivery of a murderer under the twenty-seventh Article of our present Treaty with Britain.

The gentleman from New York has asked, triumphantly asked, what power exists in our courts to deliver up an individual to a foreign government? Permit me, said Mr. M., but not triumphantly, to retort the question. By what authority can any court render such a judgment? What power does a court possess to seize any individual and determine that he shall be adjudged by a foreign tribunal, yet they must possess it, if this article of the treaty is to be executed by the courts.

(1o Annals of Congress 606-07 (1800) (emphasis added))

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It is to be expected that those on the losing end of the Fourth Circuit’s unanimous dismissal of Virginia’s challenge to the individual mandate have criticized the opinion in Virginia v. Sebelius.

There is nothing to criticize about engaging in such criticism. One of the most beneficial functions that lawyers and others can serve is to criticize judicial opinions. These opinions do not come down from Mt. Olympus but from fallible human beings like you and I.

The surprising aspect of the criticism is its focal point, which is Judge Motz’s renunciation of a theory that would enable a state to become a “roving constitutional watchdog” litigating generalized grievances in federal court.


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