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11 Top Constitutional Law Experts React to White House Stephen Miller’s Rejection of “Judicial Supremacy”

In his debut on this past weekend’s Sunday morning shows, Stephen Miller, the President’s Senior Policy Advisor, repeated what to some was an alarming statement about the federal judiciary. Defending the White House’s immigration and refugee Executive Order against significant setbacks in federal court including a few days earlier the Appeals Court for the Ninth Circuit, Miller said on Meet the Press:

I also want to be clear we’ve heard a lot of talk about how all the branches of government are equal. That’s the point. They are equal. There’s no such thing as judicial supremacy. What the judges did, both at the ninth and at the district level was to take power for themselves that belongs squarely in the hands of the president of the United States.

I posed the following question to some of the most highly respected constitutional law experts across the country, excluding current members of Just Security’s Board of Editors. I separately sent each person excerpts (see here) of transcripts of Fox News Sunday and Meet the Press, and posed the following query:

Some worry that at some point our country may face a constitutional crisis in which President Trump does not comply with a decision of the Supreme Court, whether in the immigration context or some other case. In view of that concern, how do you view Miller’s statements? You might say, for example, whether you think his views are part of a mainstream school of thought in constitutional law, are potentially limited to the immigration context, or represent a view that would support the President’s disregarding judicial orders from the federal courts or the Supreme Court in particular. Please feel free to address any one of those dimensions or another that you think this issue raises.

Throughout the answers below, the emphasis in the text (in bold) is provided by me, not the author of the statement.

1. Strong Rejection of Miller’s Statements as Expression of Attitude or Ideology

Laurence Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard:

We can try to interrogate what Miller said by recourse to different legal schools of thought and the like, but I want to focus on a different plane and the one in which I believe Miller attempted to register his claim. I am concerned that, well beyond a purely theoretical and ignorant account of the role of an independent judiciary, Miller appears to be channeling President Trump’s underlying attitude, one doubtless not formulated in theoretical terms but baked into his personality and his sense of what it means to be a strong president. In that respect, Miller seemed to be engaged in a performance to earn the praise of his boss. The performance was consistent with the attitude Mr. Trump expressed in disparaging the supposedly “Mexican judge” Curiel back during the campaign, in calling U.S. District Court Judge Robart a “so-called judge,” and in saying the remarkably thoughtful 9th Circuit oral argument was “disgraceful” and “political” when it was as far from either as a judicial exchange dealing with a politically explosive issue could be. It is this gestalt—rather than a well formulated theory of the judiciary’s role—that may someday threaten the foundations of our constitutional democracy if not in this litigation under the Trump administration than in another.

David Golove, Hiller Family Foundation Professor of Law, New York University School of Law:

Stephen Miller’s comments on the Ninth Circuit’s decision on President Trump’s immigration executive order are yet another worrying sign that the new Administration poses an unprecedented threat to democracy and our constitutional order.  Miller would have been well within bounds had he chosen simply to disagree with the decision, even, indeed, if he had expressed his displeasure in harsh language accusing the court of flatly going beyond what the Constitution and laws require.  The judiciary is not above criticism.  But to invoke the “equality” of the three branches, while suggesting that the court somehow asserted “judicial supremacy” over the President, is just to employ coded language to deny the judiciary the core authority assigned to it in the Constitution – the power to interpret and enforce the Constitution, including in cases challenging congressional and presidential action  – a power that the courts have exercised throughout the long course of American history, mostly to the great good of the country.  Miller’s choice to frame his attack in these terms raises the suspicion, or perhaps the prospect, that the Administration is setting the stage for a potential claim of power, as an “equal” branch, simply to ignore the courts when the President determines that they have engaged in a “judicial usurpation” of the President’s powers.  Despite Miller’s rhetoric, that would be radically to upend one of the most critical features of our democratic constitutional system, not to ensure that the President and Courts remain within their “proper roles.”

2. Strong Rejection of Miller’s Statements on Constitutional Status/Role of Federal Courts

Erwin Chemerinsky, founding Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at University of California, Irvine School of Law:

Mr. Miller’s statements are stunning and deeply disturbing.  President Trump is claiming that no court can review the constitutionality of his actions and essentially that he need not obey a court’s ruling.   Marbury v. Madison established that federal courts can review the constitutionality of presidential and congressional actions.  Marbury v. Madison established that it is “the province and duty of the judicial department to say what the law is.”  The very essence of the rule of law is that no one, not even the president, is above the law.   The president, like all others, must follow court orders.  Otherwise, it truly is a dictatorship where one person holds unchecked power.

Heather K. Gerken, J. Skelly Wright Professor of Law, Yale Law School:

I would draw a distinction between constitutional theory and constitutional law in practice.  It’s hard to be sure exactly what Miller is describing – I take it to be some crude version of departmentalism.  A handful of academics endorse departmentalism, and others certainly raise questions about judicial supremacy, but that’s because they are academics.  In practice, this is settled.  Judges are allowed to step in when the Executive branch overrides constitutional rights.  Lawyers might disagree about whether the 9th Circuit should have stepped in here – that is, they might disagree on the merits.  But there is widespread agreement that judges can intervene when the case warrants it.  What Miller is saying is well outside the mainstream.

Dawn Johnsen, Walter W. Foskett Professor of Law, Indiana University Maurer School of Law and served as Acting Assistant Attorney General heading the Office of Legal Counsel at the Department of Justice:

Stephen Miller’s alarming comments suggest a view of presidential power dangerously at odds with our constitutional tradition. True a body of academic writing in varying degrees denies judicial “supremacy” – in rare instances even to the point of arguing that presidents may act contrary to court orders that conflict with their constitutional views.  But this lies outside the constitutional mainstream, which recognizes the judiciary’s special, essential role in interpreting the Constitution and upholding the rule of law. At times, that must include an independent judiciary acting to check the President even on matters of war and national security, as we saw the Supreme Court importantly act during the Bush administration. Miller’s comments strike me as either ignorant or, worse, defiant of this vital judicial role.

Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Co-Director, Supreme Court Litigation Clinic, Stanford Law School:

It is difficult to know how exactly to respond to Miller’s statement.  He seems to be conflating a series of very different questions.  Of course we have “coequal branches of government,” rather than a hierarchy in which one branch exercises complete dominion over another.  In that sense, saying that “we don’t have judicial supremacy” is a truism.  The President and the Senate decide who will be a judge, after all, and not (save in a de facto sense in Bush v. Gore) the other way around.  Save for contempt of court, the Executive (and not the courts) decides whom to prosecute.  And the President can commute a sentence imposed by a federal judge, thereby overriding it.

Moreover, there are a bunch of decisions that, in our system, are confided to the political branches and about which the courts have no say, or virtually no say: impeachment, declaring war, conveying a pardon, entering into a treaty.

Miller seems to be arguing that deciding issues involving border control and immigration fall into that category.  But here, even beyond the question of whether the courts have a role to play, his Article II imperialism is stunning.  The Constitution gives Congress, not the President, the power to establish “Rule[s] of Naturalization.”  U.S. Const. Art. I, sec. 8, cl. 4.  So Miller is wrong about this being “the very apex” of presidential authority.

As for the “mainstream” point about which you ask, ever since Edwin Meese’s 1986 Tulane speech, there has been a strand of conservative legal thought (with a parallel liberal strand located in the popular constitutionalism work, including my colleague Larry Kramer’s The People Themselves) that argues over whether ultimate control over constitutional meaning lies in the courts.  In one sense, it doesn’t: over time, through the appointments process and changes within the profession and the nation, the people control what the Constitution means.  John Lewis and Ruth Bader Ginsburg, as private citizens, contributed hugely to what the Fourteenth Amendment’s equal protection clause means today.  But in the more immediate term, when the judicial branch issues a decision (and appellate review has concluded), the courts have been determining what the Constitution commands or forbids with respect to the parties before them, and no recent president has defied the judiciary’s decision in a particular case by refusing to comply with an injunction.  If that’s what Miller is hinting at, it would represent a radical shift.

Gillian Metzger, Stanley H. Fuld Professor of Law, Faculty Director, Center for Constitutional Governance, Columbia Law School:

It’s unclear exactly what Mr. Miller means when he says the branches are equal and there’s no such thing as judicial supremacy.  He could mean that the executive branch has an independent obligation to determine what the Constitution and laws require.  If so, that’s an unremarkable position supported by the Take Care Clause and the presidential oath to uphold the Constitution.  If, however, he means that the President is entirely free to disregard a court’s determination that a given executive branch action is illegal — or, more precisely to the point here, that the President can continue to enforce the immigration ban in the face of a valid federal court order staying its enforcement — that would be a radical statement at odds with longstanding norms of our constitutional system.

Cristina Rodriguez, Leighton Homer Surbeck Professor of Law, Yale Law School and served as Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice:

A basic tenet of the rule of law demands that we all obey the law and therefore the courts’ application and enforcement of the law. This expectation takes on particular importance when courts apply the law to constrain executive and administrative officials who, in common parlance, cannot be “above the law” if ours is to be a government of laws. Even if we can identify examples of executive officials half-heartedly implementing court decrees, outright and frontal defiance of a court order threatens law’s power over government. At the same time, constitutional history and theory contain a tradition of popular constitutionalism, according to which the Supreme Court’s given word on a constitutional controversy need not be considered final. The meaning of the Constitution is contested over time, by the three branches of government and above all by the people themselves, through various forms of mobilization, including elections. But it is possible to square these two ideas. We can honor the inviolability of court judgments and reject the legitimacy of disobedience by government actors, including the President, but still acknowledge the validity of pushing new theories of the Constitution, through substantive challenges to the conclusions of the judiciary. This approach acknowledges that the meaning of the law and the Constitution can change in a general sense. But it also underscores the authority of the courts to ensure, in concrete cases, that government actors are bound by more than their own say-so.

Geoffrey Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago:

Stephen Miller insists that “We don’t have judicial supremacy in this country. We have three coequal branches of government.” In this, he is both right and wrong. When a court interprets the common law or a construes a statute, Congress and the President have the constitutional authority to enact legislation to override the court’s decision. But when it comes to interpreting the Constitution, the courts have the final say — short of a constitutional amendment. This is so because when it comes to interpreting the provisions of our Constitution, the Framers did not trust the President or the Congress to have the final say. When such fundamental issues are at stake, we do have judicial supremacy in this country — whether Mr. Miller likes it or not.”

III. More Sympathetic View of Possible Interpretations of Miller’s Statements (if construed in a particular way) on Constitutional Status/Role of Federal Courts

Roderick Hills, William T. Comfort, III Professor of Law, New York University School of Law:

Had Miller made the same basic point more elegantly, with quotes from Lincoln, Jackson, FDR, Larry Kramer, and Mark Tushnet, then he would have been called a “Departmentalist” and recognized as stating a position with a long intellectual pedigree.  Since Miller was not specific about the precise respect in which the courts are not “supreme,” it is fair to construe him as simply making the point that, on certain questions of constitutional interpretation, the courts ought to defer to the President’s judgment.  This “deference” version of Departmentalism, far from being radical or scary, is quite near to established law.
Miller never suggested that Trump would defy an order affirmed by the Supreme Court, so, again construing his words as charitably as possible, one can understand him merely to be saying that, until the Supreme Court rules, the President is free to disregard lower court rulings outside of the circuit in which they were issued.  Departmentalists often assert that the executive is bound by judicial decrees only with respect to the specific parties who receive such decrees.  That was Lincoln’s position with respect to Dred Scott.  Translated to the context of immigration law, such a position would assert that DHS need not obey a nation-wide injunction.  Of course, Ricky Revesz and Sam Estreicher also defended agency inter-circuit non-acquiescence.  Under U.S. v Mendoza — as it happens, a case under the Immigration & Naturalization Act — the President is normally not bound by a decree issued with respect to one party in a case  brought by another unrelated party, even as to common issues of fact or law.
Further, with respect to  in the specific emergency powers (say, the Suspension Power), Lincoln actually defied Chief Justice Taney with respect to the specific habeas write issued in Ex Parte Merryman. Miller never asserted any such power here.

Daryl Levinson, Vice Dean and David Boies Professor of Law, New York University School of Law:

There’s a fairly benign way of reading all (or most) of Miller’s statements.  He could just be saying that he disagrees with the courts’ decisions on the legal merits—because he thinks the President should have unreviewable authority in this context, because lower shouldn’t issue nationwide injunctions, because the President’s constitutional and statutory authority is clear, etc.  But the language denying judicial supremacy could point in less benign directions.  Emphasize “could.”  Some ways of rejecting judicial supremacy and substituting some version of departmentalism are well within the bounds of mainstream constitutional law and practice.  Other forms—like directly disobeying a judicial order—would stretch or exceed those outer boundaries.  It’s impossible to tell from Miller’s rhetoric precisely what, if anything, he or Trump have in mind.

 


About the Author

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, Former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter (@rgoodlaw).