Humanity’s struggle against the coronavirus continues, and so does the struggle between the Trump administration and the Democratic party — even if it has to be waged by teleconference.
In what could well be a dress rehearsal for a large bang-up in the Supreme Court, a nine-judge federal panel heard oral arguments on Tuesday over whether Congress has the option of going to court to enforce its oversight powers on the Executive Branch. Or, as one of the judges suggested, if Congress thinks a president has abused his powers, there is nothing to do but wait for the next election — or the next revolution.
If you thought impeachment was a dead letter after President Donald Trump was acquitted in the Senate on February 5, and that the border wall dispute was settled when he spent $6 billion on it after Congress said he could only have $1.4 billion, well both were back on Tuesday.
In the first case, the court was asked to referee a dispute over a House subpoena for former White House counsel Donald McGahn, demanding his testimony regarding allegations that Trump wrongfully pressured Ukraine to investigate charges against Joe Biden’s son, who was involved in business in the country. The president insisted that McGahn was “absolutely immune from compelled congressional testimony.”
House lawyers argue that McGahn’s testimony is still relevant, as it will help the Judiciary Committee decide “whether to recommend” — hold on now — “new articles of impeachment.”
The border case, they argue is also still alive: The House wants to sue the Trump administration over the diversion of billions of dollars to build a border wall to keep out illegal immigrants.
After long and bitter negotiations, Congress conceded only $1.4 billion for enhanced security at the Mexican border. Undeterred, Trump went ahead and allocated other federal funds of over $6 billion for his signature project.
This, they claim, encroached on the power invested in Congress to control national spending. In response, administration lawyers cited statutes authorizing a president to redirect appropriations.
At stake is more than the border wall or Trump’s impeachment. As reflected in the questions asked by the panel of the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday, these questions are tangled up in the broader constitutional issue of separation of powers.
Judge Judith Rogers posed the provocative question: If a president is alleged to abuse his office, does that mean “there’s nothing that can be done until the next presidential election other than revolution?”
Speaking for the administration, Assistant Attorney General Hashim Mooppan contended that it “would be a radical break from tradition” for federal courts to adjudicate inter-branch disputes. Doing so “would politicize the judiciary,” he said.
Mooppan asserted that Congress has other tools at its disposal, such as federal government shutdown, impeachment or sending the House sergeant-at-arms to arrest a noncompliant executive official.
A Justice Department brief, aimed at keeping the courts out of it, stated: “For the first two centuries of this nation’s history, the political branches of the federal government resolved disputes between themselves through political contest and compromise, not by asking the judicial branch to pick a side in zero-sum litigation.”
It may be distressing to some that the highest echelons of the national government are engaged in such wrangling over its basic structure; a legal brawl over who has the power to do what. And that possibly only a revolution might settle these matters.
Well, we’re a long way from revolution, and very close to elections.
The fact is, these are the kinds of issues that have been fought over in the highest courts ever since the Constitution was ratified in 1787. Nothing said in the court on Tuesday was any harsher than what was said — and done — in 1801, when outgoing President John Adams and incoming President Thomas Jefferson were at odds over the appointment of judges.
Adams made a few last-minute appointments to the bench from his pool of worthy Federalist candidates. Jefferson, annoyed at having his Republican prerogatives preempted, instructed his new Secretary of State, James Madison, not to deliver the documents. A judgeship delayed is a judgeship denied, and one of the intended recipients, William Marbury, sued.
In the landmark case of Marbury v. Madison, Chief Justice John Marshall ruled that the court had no authority under the Constitution to compel Madison. He struck down a law saying it did, and seized the opportunity to expound on the “power of judicial review,” which enables the courts to nullify laws it deems unconstitutional. (Interestingly, Marshall’s revolutionary assertion of judicial review resulted in restraining the Supreme Court from forcing an executive officer to do something.)
Actually, it should be reassuring that these issues are being thrashed out in court. Much better than having them adjudicated in the streets.
Difficult though the conflicting claims may be to resolve, this appeals process is the very mechanism built into the Constitution. The Founders created a judiciary for just this purpose: to preserve a balance of power between the Executive and Legislative branches.
When the two come into conflict, as inevitably they would, and other means fail to restore harmony, there is resort to the courts. Or at least that’s what the courts must now decide in these cases.