RUTHFULLY YOURS

In its awful 2012 ruling in Arizona v. United States, the Supreme Court upheld one aspect (out of four) of Arizona’s contested immigration statute — a provision requiring state police, in certain circumstances, to verify a detained person’s immigration status with the federal government. This was a rejection of the Obama administration, which had argued that this provision was preempted by federal law and that its enforcement would interfere with Obama administration policy.

Hours after the Supreme Court ruled against President Obama on this point, the Obama administration announced that it would cease cooperation with Arizona’s efforts to verify a detainee’s immigration status. That is, after Obama lost in the Supreme Court, he decided he was going to ignore the Supreme Court because, under the Constitution, it was his job, not the justices’ job, to decide immigration enforcement policy.

This is nothing new or unusual from Democratic administrations. When FDR initially didn’t get his way on New Deal programs, he threatened to pack the Court until the justices got their minds right. When Biden didn’t get his way on socializing student load debt onto the rest of us, he bragged to his progressive base — which he was desperately trying to turn out to vote for Democrats against Donald Trump — that he didn’t care what the justices said, he was going to keep figuring out ways to do what they said was illegal.

The progressive Democratic histrionics over Vice President Vance’s entirely correct observations that the judiciary may not usurp the power vested by the Constitution in the executive branch are nearly as hilarious as last week’s histrionics over DOGE — in case you missed it, progressives are suddenly very leery of unaccountable bureaucrats who wield supposedly unchecked power . . . who knew!

Vance said, “Judges aren’t allowed to control the executive’s legitimate power.” But you didn’t need the vice president to tell you that. The Court occasionally tells you that. During the Biden years, a number of red states sued to attempt to make Biden enforce immigration law, in part by reinstating the “Remain in Mexico” policy. But a court has no power to force a foreign country to agree to something, let alone to direct the president to negotiate such an agreement. In ruling against the states in Biden v. Texas (2022), Chief Justice John Roberts, writing for the Court’s majority, wrote:

Article II of the Constitution authorizes the Executive to engage in direct diplomacy with foreign heads of state and their ministers. . . . Accordingly, the Court has taken care to avoid the danger of unwarranted judicial interference in the conduct of foreign policy, and declined to run interference in [the] delicate field of international relations without the affirmative intention of the Congress clearly expressed. . . . That is no less true in the context of immigration law, where “[t]he dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy.” Arizona v. United States, 567 U. S. 387, 397 (2012). [Other citations and quotations omitted.]

Of course, “It is emphatically the province and duty of the judicial department to say what the law is,” as Chief Justice John Marshall famously observed in Marbury v. Madison (1803). But it is just as true that the Constitution does not make the Supreme Court the general overseer of our government. In theory, the judiciary is the least powerful branch because it has only judgment, not the purse or the sword. It is also the branch given the least responsibility for the conduct of government because, in a free, self-determining republic, most federal decisions are supposed to be made by politically accountable officials — members of Congress and the president, who answer to the people whose lives are affected by these decisions.

So, while the Court can and should say what it thinks the law is, we must always remember that the justices are “right” because they are final, not final because they are always right. As is well known, the high court has in its history reversed itself on a number of significant matters, often because prior rulings were egregiously wrong. And the Court has a doctrine — stare decisis, involving respect for precedent — a major aspect of which assumes that some decisions are wrong and wrestles with whether they should be retained nonetheless.

If the Court says what the law is in an area the Constitution commits to the control of another branch, the Court’s ruling should not be binding. If tomorrow, the Court decided the corporate tax rate should be zero percent, it would be Democrats screaming for the Court to be ignored — and they’d be right, not because the Court was wrong on policy but because setting tax rates is a political responsibility, not a judicial one.

This is all obvious. It’s also very theoretical because, thankfully, the default position of today’s Supreme Court is to resist judicial intrusions into realms the Constitution consigns to other decision makers, very much including the people of the United States. While Vance’s hypotheticals were sound, the reality is that the justices are not going to tell a general how to conduct a military operation, or tell the attorney general how to exercise prosecutorial discretion — which would be violations of separation of powers and, hence, unconstitutional.

Complaining about Vance and President Trump, Democrats are doing a two-step. First, they worry, rightly, that, as a pretext to do lawless things, an unscrupulous president could rationalize that his constitutional supremacy in some area of governance justifies ignoring court orders. Second, they maintain, wrongly, that courts must rein Trump in lest he take lawless action under the guise of his constitutional authority because — as they’d have the judiciary take as a given — Trump is an unscrupulous president.

That’s not how it works. Regardless of what you think of the president’s scruples, he is the president and he is constitutionally supreme in such areas as foreign policy and setting enforcement priorities for the executive branch. A court has no business interfering with him based on fears (such as those of Judge Paul Engelmayer) that he might disrupt norms.

If there comes a point at which the president allegedly breaks the law, the Court can rule on that. And if the relevant, allegedly illegal action and the Court’s ruling on it involve an area that the Constitution commits to the president, rather than the Court, we can wrestle with the implications on a concrete record — and with the knowledge that it is mainly Congress, not the judiciary, that is empowered to counter executive excess.