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11/25/2017

Josh Blackman on President Trump and Separation of Powers
Michael Ramsey

At NRO, Josh Blackman: Is Trump Restoring Separation of Powers? (commenting on last week's Federalist Society national lawyers' convention).  From the introduction:

Our Constitution carefully separates the legislative, executive, and judicial powers into three separate branches of government: Congress enacts laws, which the president enforces and the courts review. However, when all of these powers are accumulated “in the same hands,” James Madison warned in Federalist No. 47, the government “may justly be pronounced the very definition of tyranny.” The rise of the administrative state over the last century has pushed us closer and closer to the brink. Today, Congress enacts vague laws, the executive branch aggrandizes unbounded discretion, and the courts defer to those dictates. For decades, presidents of both parties have celebrated this ongoing distortion of our constitutional order because it promotes their agenda. The Trump administration, however, is poised to disrupt this status quo.

In a series of significant speeches at the Federalist Society’s national convention, the president’s lawyers have begun to articulate a framework for restoring the separation of powers: First, Congress should cease delegating its legislative power to the executive branch; second, the executive branch will stop using informal “guidance documents” that deprive people of the due process of law without fair notice; and third, courts should stop rubber-stamping diktats that lack the force of law.

From later on:

Every November, the Federalist Society holds its annual meeting in Washington, D.C. But this year, the gathering had a highly unusual dynamic. It is common for scholars to criticize Congress for delegating its power to the executive branch, a violation of what is known as the non-delegation doctrine. It is unprecedented for the executive branch to share that concern. In a keynote speech, Don McGahn, who serves as White House counsel, lamented the fact that Congress gives the White House too much power. “Often Congress punts the difficulty of lawmaking to the executive branch,” he said, “then the judiciary concedes away the judicial power of the Constitution by deferring to agency’s interpretation of what Congress’s vague statutes.” One would think that a lawyer for the president would relish this abdication by Congress and the courts. But no. Instead, McGahn praised a recent concurring opinion by Justice Thomas, in which Thomas “called for the non-delegation doctrine to be meaningfully enforced” to prevent the “unconstitutional transfer of legislative authority to the administrative state.” Again, reflect on the fact that if Justice Thomas’s position gained four more votes, much of Congress’s legislation — which carelessly lobs power to the White House with only the vaguest guidelines — would no longer pass constitutional muster.

And finally:

There is one final but imperative aspect of the Trumpian Constitution: the judiciary. During the 2016 campaign, then-candidate Trump released a list of possible nominees to fill Justice Scalia’s seat. At the time, I wrote on NRO, “I have expressed my serious doubts about Mr. Trump’s vision of constitutional law, but so long as he sticks with this list, I remain cautiously optimistic.” Stick with the list he did, and then some. In addition to his nomination of Neil Gorsuch to the Supreme Court, the Trump administration has set a modern-day record for the number of district- and circuit-court judges confirmed in the first year. More important, the White House is not taking any chances with these picks. McGahn noted that “they all have paper trails, they are sitting judges, there’s nothing unknown about them. What you see is what you get.” And there has been a pervading philosophical consistency to these nominees. McGahn stated it bluntly: “We are committed to nominating and appointing judges that are committed originalists and textualists.” In a not-too-subtle jab at Chief Justice Roberts, McGahn noted, that his office is seeking judges who “possess the fortitude to enforce the rule of law without fear of public pressure,” for “judicial courage is as important as judicial independence.” Trump is looking for “strong and smart judges.” ....