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.
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.