A year from now, when we look back at the dominant legal topics from 2019, the separation of powers is bound to be at the top of the list. In one sense such a prediction is entirely obvious: with Democrats back in control of the House of Representatives, it is all but inevitable that there will be a series of disputes between the House and the executive branch — disputes raising important questions about each institution’s relative constitutional authority.
What is less obvious, but no less important, is the role of the federal courts in resolving those disputes and challenging Trump administration policies or actions. Thus, by the time 2019 is over, the real legal headlines are likely to be as much about the role of the federal courts vis-à-vis the political branches as they are about the Democratic House versus President Donald Trump.
The real legal headlines are likely to be as much about the role of the federal courts vis-à-vis the political branches as they are about the Democratic House versus Trump.
For decades, political scientists and legal scholars have warned about the erosion of checks and balances. In times of one-party rule in Washington, constitutional disputes tend to be more about the separation of parties than the separation of powers. The first two years of the Trump administration, though, truly drove this thesis home. With Republicans in control of the House, the Senate and the White House, Congress all-but ceded several of its most important constitutional functions, especially the exercise of meaningful oversight of the executive branch. And substantively, even as Trump asserted the power to unilaterally undertake a series of controversial policies, the 115th Congress did virtually nothing to push back.
For better or worse, we can expect that to change during the tenure of the 116th Congress. Democrats have made no secret about their intent to use the full constitutional authority of the House of Representatives, both to pursue policy reforms and to exercise vigorous oversight of the executive branch. And although one house of Congress can’t legislate by itself, it stands to reason that at least some reform measures will be enacted as part of must-pass legislation.
The courts will be hard-pressed to avoid a dispute over, say, whether a Cabinet member must obey a congressional subpoena.
But even if the Democrats’ legislative agenda goes nowhere, the House — and the committees thereof — do have subpoena power. If, as seems likely, executive branch officials called to testify before Congress regularly assert executive privilege as a justification for not doing so, we’re likely to see significant litigation over the scope of and limits on that privilege. And although the federal courts have historically — and understandably — been reticent to step into political disputes between the political branches, the courts will be hard-pressed to avoid a dispute over, say, whether a Cabinet member must obey a congressional subpoena.
But the federal courts in 2019 will not just be tasked with resolving subpoena disputes. Thanks to the quiescence of the 115th Congress, many of Trump’s major policy reforms were undertaken unilaterally — opening the door to an array of lawsuits claiming that these policies are unlawful insofar as they were not expressly authorized by Congress.
To take just two of the more prominent examples, consider Trump’s ban on military service by most transgender individuals, and his ban on undocumented immigrants applying for asylum anywhere other than a port of entry. In both contexts, lower courts have generally ruled against the president, and government appeals are pending before the Supreme Court. Decisions in these cases, or a series of other major disputes likely to reach the court in the coming months, will almost certainly produce major separation-of-powers rulings.
To be sure, disputes over the separation of powers tend not to be as riveting or as likely to generate headlines as cases involving hot-button social issues such as abortion, anti-discrimination, religious liberty and so on. That does not mean, though, that they are any less important — and in some sense, they may be even more so. As Justice Robert Jackson explained in a famous 1952 concurring opinion, there’s a crucial constitutional difference between cases in which the federal government is acting as a unified whole and cases in which the dispute involves a conflict between them. When Congress and the president are on the same page, the question is whether the Constitution empowers courts to countermand the political branches acting in unison — such as when courts invalidate an act of Congress they say has violated, for example, the First Amendment.
But in the latter cases, when the president claims the power to act in the face of congressional opposition, as Jackson wrote, “[p]residential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” In other words, to whatever extent courts can and should generally stand down when the political branches are in agreement, there is a clearer normative and structural case for judicial intervention when the branches are divided. In a nutshell, that is the path we’re heading down now.
Reasonable minds can — and surely will — disagree about how these separation-of-powers disputes are ultimately resolved by the courts. But in a constitutional system founded on the separation of powers rather than the separation of parties, the mere fact that courts are going to be forced to answer those questions over and over again in the coming months (and, perhaps, years) may be a good thing unto itself.