Crucial Constitutional issues as to separation of powers may need to be resolved by the United States Supreme Court
For the past month, we have seen President Trump undo, and then some, a series of executive orders from President Biden. Most (but not all) of the orders Biden put in place were not challenged because even if one maintained they were wrong-headed, they mostly involved how the Executive Branch functioned, something the President may issue orders regarding, as noted in the discussion below of Article II.
But during this past month, dozens of trial court judges, authorized only to consider cases in their "District Court" as one of 677 nationwide "judgeships" authorized by Congress, have issued "injunctions" telling the President of the United States what he can and cannot do, including orders relating to how money is spent, what employees do what, and how regulations are to be and not to be interpreted. Though these orders mirror, in large part, the promises made to those who voted for President Trump, these orders have been "frozen" by local Federal Judges who have issued injunctions that apply to the entire Federal government, nationwide, and even to the actions of the President himself.
But does Article III give the Judicial Branch sweeping powers to control, and some would even say supervise, the Executive Branch by way of orders (styled as injunctive relief) telling the Executive Branch what to do in terms of its core functions, even going so far as to telling the Executive Branch what its personnel may and may not do and how money is disbursed?
Article II, of course, grants extensive powers to the Executive Branch, and while these powers are not unlimited, there does not even appear to be even a hint that the Judicial Branch is expected to supervise the Executive Branch any more than the Executive Branch is granted the power to supervise the Judicial Branch:
Section I
The executive Power shall be vested in a President of the United
States of America. He shall hold his Office during the Term of four
Years, and, together with the Vice President, chosen for the same Term,
be elected, as follows:
. . .
Section. 2.
The President shall be Commander in Chief of the Army and Navy of the
United States, and of the Militia of the several States, when called
into the actual Service of the United States; he may require the
Opinion, in writing, of the principal Officer in each of the executive
Departments, upon any Subject relating to the Duties of their respective
Offices, and he shall have Power to grant Reprieves and Pardons for
Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present
concur; and he shall nominate, and by and with the Advice and Consent of
the Senate, shall appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all other Officers of the
United States, whose Appointments are not herein otherwise provided for,
and which shall be established by Law: but the Congress may by Law vest
the Appointment of such inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may
happen during the Recess of the Senate, by granting Commissions which
shall expire at the End of their next Session.
Section. 3.
He shall from time to time give to the Congress Information of the
State of the Union, and recommend to their Consideration such Measures
as he shall judge necessary and expedient; he may, on extraordinary
Occasions, convene both Houses, or either of them, and in Case of
Disagreement between them, with Respect to the Time of Adjournment, he
may adjourn them to such Time as he shall think proper; he shall receive
Ambassadors and other public Ministers; he shall take Care that the
Laws be faithfully executed, and shall Commission all the Officers of
the United States.(Emphasis added.)
Article III, of course, grants certain powers to and, more importantly, denotes the jurisdiction of the Federal Judiciary. In reading such note the lack of any authority to direct the specific actions clearly within the scope of the Executive Branch, such as how the military treats its enlisted soldiers and what benefits, including health care, soldiers are to be given:Section. 1.
The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may from time
to time ordain and establish. The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services, a Compensation,
which shall not be diminished during their Continuance in Office.
Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority;—to all
Cases affecting Ambassadors, other public Ministers and Consuls;—to all
Cases of admiralty and maritime Jurisdiction;—to Controversies to which
the United States shall be a Party;—to Controversies between two or more
States;— between a State and Citizens of another State,—between
Citizens of different States,—between Citizens of the same State
claiming Lands under Grants of different States, and between a State, or
the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme Court
shall have original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate Jurisdiction, both as
to Law and Fact, with such Exceptions, and under such Regulations as the
Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by
Jury; and such Trial shall be held in the State where the said Crimes
shall have been committed; but when not committed within any State, the
Trial shall be at such Place or Places as the Congress may by Law have
directed.
Section. 3.
Treason against the United States, shall consist only in levying War
against them, or in adhering to their Enemies, giving them Aid and
Comfort. No Person shall be convicted of Treason unless on the Testimony
of two Witnesses to the same overt Act, or on Confession in open Court. . . .
(Emphasis added.)
Some will argue Marbury v. Madison (1803) 5 U.S. 137, the seminal opinion on judicial review of a federal statutes written by Chief Justice Marshall, gives the judiciary the power to review just about any action by the Executive Branch. But the very fact these people — who believe an unelected trial court judge may issue an injunction directing the actions of the duly elected President of the United States, and his subordinates, to do or not do something — cite to Marbury and not the Constitution itself is very telling.
This citation is, in fact, an admission that the Constitution does not give a sole trial-level judge any such power, and such power must be derived from Justice Marshall’s opinion as to his own power as a Supreme Court justice.
What can and should be done to curb invasive micromanagement of the executive branch by the judicial branch?
At some point, the United States Supreme Court will need to consider the scope of the power of a single trial-court-level judge to provide detailed guidance to the President of the United States on what he may or may not do in terms of disbursing funds and other matters ordinarily considered the province of an executive. In the meantime, it is interesting to note that the Executive Branch has, up to this point, not yet returned the favor.
Meaning the Executive Branch has not yet issued Executive Orders providing detailed instructions to the Judicial Branch in the same manner the latter has done to the former. It would be interesting to see the reaction of these trial-court Judges and, even more so, appellate Justices and the Chief Justice of the United States Supreme Court, John Roberts, to equally detailed and invasive instructions from the Executive Branch directing the actions of the Judicial Branch.
For example, one could only imagine the reaction if an Executive Order were given which in turn micromanaged how the Judicial Branch spent its money and/or operated its courthouses. The judiciary would no doubt respond by striking down these orders from this or any other President.
It remains to be seen, then, if they will set any limit upon themselves and the desire of local judges to control the day-to-day operations of the Executive Branch.
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