Separation anxiety
A week of news illuminates, and tests, the separation of powers.
The Constitution’s separation of powers got a workout in the news this week. This abstract notion that kids still learn in school, I hope, was part of a life-and-death Supreme Court ruling on a response to a mass shooting.
News of this ruling sent me back into the archives, because I had covered the shooting in 2017. A gunman on an upper floor of a Las Vegas hotel opened fire on a music festival, killing sixty people. He fired more than 1,000 shots; and this week, as I read the old transcripts of our live coverage, I saw that we commented on the sound of the gunfire on video. Like the rattling of a machine gun.
The gunman’s weapons turned out to include semi-automatic rifles enhanced with bump stocks, which drastically increase the rate of fire. President Trump’s administration soon banned bump stocks. Seven years later, this past Friday morning, Nina Totenberg came up the street from the Supreme Court building, and walked into Studio 31 holding two pieces of paper. The on-air light came on, and she told me how the Court had overturned the ban.
The Court majority said Congress never gave the executive branch authority to ban bump stocks. Congress banned machine guns, but Justice Clarence Thomas said a gun with a bump stock didn’t meet the definition. The ruling turned not on whether the government could do something, but who could under the separation of powers.
In a dissent, Justice Sonia Sotomayor said Congress had given authority to ban bump stocks, a power the Court’s ideological majority had stripped away by its narrow reading of the law.
We were on alert Friday because numerous Court decisions were expected. A big one didn’t arrive, but should soon: Trump seeks absolute immunity from prosecution for acts he performed as president. The case involves his effort to overturn his 2020 election defeat. Again the separation of powers creeps into the discussion.
You can make a valid policy case against prosecuting former presidents; it’s the judgment Ford made when pardoning Nixon. At oral arguments in April, several justices debated the policy implications of the “rule for the ages” they intend to write.
Justice Brett Kavanaugh mused that if the Court allows the government to prosecute Trump, someone will apply the rule to Joe Biden. Justice Samuel Alito theorized that allowing Trump’s prosecution might cause a future president to refuse to surrender power out of fear of being prosecuted. If we set aside the circular nature of Alito’s notion (that holding Trump accountable for his effort to cling to office would give future presidents incentive to cling to office) it’s an interesting thought.
It is, however, a policy thought—about the wisdom of some course of action—rather than about what the law says. Policy decisions belong to the President or to Congress, depending on the subject, and not really to courts that interpret law.
One of the justices said this in a different context, on a recording we played on the air this week. A documentary filmmaker recorded two justices at an event. On Morning Edition, Lauren Windsor admitted that she “told some lies” that she was a religious conservative, ”in service of a greater truth,” learning what justices said in unguarded moments. Her recordings of Alito show him agreeing and adding to notions she advanced about a divided nation and the culture wars. Also on our air, Court watcher Sarah Isgur observed that the recordings didn’t reveal much beyond what Alito has already said in public to the Wall Street Journal, in speeches to the Federalist Society and in his rulings. His views could hardly be clearer if he hoisted a flag.
But the other justice recorded was John Roberts. Windsor asked him if the Court should put the country on a “moral path.” He said no: “That’s for people we elect. That’s not for lawyers.” There it is—the separation of powers, simply put: judges don’t do policy. Or they’re not supposed to. We’ll see what laws guide their ruling on presidential immunity.
When Trump visited Senate Republicans this week, their leader Mitch McConnell greeted the former president. McConnell once said Trump was “practically and morally responsible for provoking” the attack on the Capitol on January 6, 2021. Then McConnell voted to acquit Trump at his impeachment trial. He said Trump was not eligible for conviction after leaving office and the justice system could handle him.
After that 2021 vote a sympathetic columnist, George F. Will, wrote that “no one’s detestation for Trump matches the breadth and depth of McConnell’s,” but that McConnell felt the work of diminishing Trump “must be done by politics.” McConnell didn’t want to be the one to do it. Openly warring against Trump would divide his party and ruin McConnell’s chances of recapturing the Senate majority in 2022.
McConnell didn’t recapture the Senate majority in 2022. Nor did the justice system or politics make Trump go away. So the Senate Republican leader shook hands with Trump this week and said their meeting was “entirely positive.”
Should Trump recapture the White House, Republicans who are wary of him tell me they would rely on the Senate to curb some of his excesses. Under the separation of powers, the Senate majority would have to confirm his cabinet choices. When he took office in 2017, this required Trump to appoint credible and independent stewards to lead agencies such as the Justice and Defense Departments.
Would that happen again? If Trump’s party should capture the Senate majority this fall, they’ll be a Trumpier caucus than a few years ago; senators such as J.D. Vance are in, and Mitt Romney is on his way out. Trump also has experience going around Congress, filling jobs through recess appointments and other maneuvers.
Trump is heading toward the election backed by Republicans who think the presidency has been too restrained. They assert that there is too much separation of powers—that the Constitution doesn’t authorize the cabinet departments and the federal bureaucracy to defy the president as a sort of “fourth branch of government.” He’s elected and they’re not. The story is more complex than that: in many cases Congress deliberately set up semi-independent agencies, and the Supreme Court hasn’t ruled them unconstitutional. (The Court upheld the Consumer Financial Protection Bureau, one of Republicans’ least favorite agencies, just a few weeks ago.) Some of these entities are pretty important: the Federal Reserve comes to mind. But it’s true that many presidents grow frustrated by the power of the bureaucracy.
Some presidents also grow frustrated by the Constitutional separation of powers. Eventually they seek ways around it. Barack Obama said for years that he couldn’t give legal status to immigrants unless Congress acted. Congress didn’t, so he changed his mind and acted alone. The Court upheld some of his actions and blocked others. But it took Obama years to work his way up to that. Trump has a running start.
Thanks for reading Differ We Must, my companion to the book of the same name. It tells Lincoln’s life story through his meetings with people who differed with him, and its relevance to the present need hardly be said.
Indeed.