by Bob Barr
Most Americans are probably familiar with the principle that neither the Legislative Branch nor the Executive possesses unlimited power. What might come as a surprise, however, is that our Founders established that the third branch — the Judicial — likewise does not enjoy unlimited power over its sister branches.
The notion of a limited federal judiciary may appear radical to generations of liberals and conservatives alike who have been conditioned to turn to the federal courts every time a president of the other political party takes an action with which they disagree. This viewpoint also finds broad support among those serving on the federal bench, many of whom are more than happy to accept for decision any dispute presented to them if doing so seems to expand their power.
The principle that the Judicial Branch of our federal government must operate within limits like the other two accords with the overall structure of our constitutional system as explained at length in the Federalist essays written in 1787 and 1788 by James Madison, Alexander Hamilton and John Jay. Underlying the entire constitutional framework of our government is the principle that it may exercise only powers that are — as stated in Federalist 45 by Madison — “few and defined.” It is most noteworthy that in articulating this principle there was no caveat for the Judicial Branch.
The principle that all three branches of government are limited in their jurisdiction and power is fundamental and applies across the entire breadth of the federal government, including to the Judiciary.
In other Federalist essays penned by Hamilton, the role of the Judiciary is defined as the “bulwark” against “legislative overreach,” empowered to declare laws violative of the Constitution to be void. Reflecting this limited responsibility of the Judiciary (described as the “weakest of the three departments”) Hamilton noted that the branch lacks any “influence over the sword or the purse” and is in no way “superior” to the other branches.
Nowhere in the text of the Constitution or in the explanatory Federalist Papers is there any hint that federal judges are empowered to pass judgement on administrative actions of presidents executing laws that have not been found to be unconstitutional.
If on the contrary, a president engages in acts that are prohibited by or contrary to federal law (as George W. Bush did in abusing the FISA law after the terrorist attacks of 9-11) then the federal courts properly have jurisdiction to stop him. This principle was defined early on in the seminal 1803 Marbury v. Madison opinion by Chief Justice John Marshall. Importantly, Marshall declared also that a president who acts within the administrative responsibilities of the office, is not to be second-guessed by federal judges. Unfortunately, it is just this practice of judicial abuse that has become a form of gamesmanship by many lower federal judges ever since President Trump was inaugurated.
This principle of administrative independence is currently presented in the context of Trump order to federal law enforcement officers to protect federal facilities and personnel and to enforce violations of federal laws in cities across the country facing violence by protesting mobs. No federal judge has yet taken the extreme step of declaring such presidential acts unlawful or unconstitutional; but considering the propensity of so-called “Blue State” governors and municipal officials to forum shop for judges inclined to find fault with everything Trump does, it likely is only a matter of time before the conflict is thus joined.
If in fact a federal trial judge were to declare Trump’s order unlawful, the president would be well within his constitutional rights to ignore such efforts since they are clearly outside the jurisdiction of the Judicial Branch.
It is time for a president of the United States to remind this third branch of the government that it, too, must stay within its constitutional lane just as he and the Congress are made to do.
Bob Barr represented Georgia’s 7th District in the U.S. House of Representatives from 1995 to 2003 and served as the U.S. Attorney for the Northern District of Georgia from 1986 to 1990. He now serves as President of the Law Enforcement Education Foundation based in Atlanta, Georgia.