Functional Departmentalism and Non Judicial Interpretation: Who Determines Constitutional Meaning?

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INTRODUCTION

One of the vibrant constitutional debates at the turn of the twenty-first century concerns enduring questions about the appropriate role of nonjudicial entities--especially Congress and the President--in the development of constitutional meaning. (1) The Supreme Court, of course, asserted its own authority to act on its interpretations of the Constitution two hundred years ago in Marbury v. Madison. (2) Although academic debate over judicial review continues, the Court's authority to review the constitutionality of acts of Congress and the President today is integral to our constitutional system.

Judicial review, though, is distinct from judicial supremacy. As growing numbers of commentators note, the Marbury Court claimed relatively limited interpretive authority for the courts: to interpret and apply the Constitution only in the course of resolving justiciable cases and controversies. The Court did not purport to resolve whether and when fidelity to the Constitution requires

Congress and the President to adhere to the Court's interpretations as they exercise their own constitutional powers. Congress and the President, too, are constitutionally obligated to uphold, and thus must first interpret, the Constitution. How should they approach this responsibility? Should they follow relevant Supreme Court precedent, even precedent with which they disagree, or may they take official action premised on constitutional views at odds with those of the Court? Abortion provides one context in which to contemplate interpretive authority: What should guide a member of Congress in voting on a bill that would restrict the performance of abortions, or a President contemplating whether to sign or veto such a bill? What about a President faced with how (or even whether) to enforce constitutionally dubious abortion restrictions in a federal statute, or whether to defend the law in court against constitutional challenge? Should the political branches (that is, Congress and the President) invariably seek to conform their actions to the Court's then-current standard, whether it is the Roe (3) strict scrutiny standard, the less protective Casey (4) "undue burden" standard, or some future test? Or is it ever constitutionally appropriate for their actions to vary, for example, with whether they agree with the Court's decision in Roe or Casey?

Such questions lie at the heart of a debate sometimes characterized as a choice between "judicial supremacy," which emphasizes the need for the political branches to defer to the Court as the "ultimate interpreter of the Constitution," (5) and "departmentalism," which recognizes the authority of each federal branch or "department" to interpret the Constitution independently. One striking aspect of this debate is the limited relevance of ideology. Legal scholars across the ideological spectrum increasingly endorse roles for the President and Congress and processes for constitutional interpretation that are less dominated by the courts. A divide does exist, though, between those academics who write about nonjudicial interpretation and almost everyone else. Judicial supremacy is unquestionably the dominant view in United States law, politics, and society, including among lawyers, who study, teach, and practice law almost entirely from the perspective of judicial doctrine. (6)

Two major developments during the 1980s and 1990s elevated both interest in and the practical importance of nonjudicial interpretation: President Ronald Reagan's support for strong presidential interpretive independence, and the Rehnquist Court's subsequent adoption, seemingly to the contrary, of an extremely strong version of judicial supremacy. The Reagan Administration asserted broad and controversial interpretive authority, especially through Attorney General Edwin Meese III. The Department of Justice under Meese's leadership developed comprehensive and detailed constitutional positions at odds with Supreme Court precedent on a broad range of issues, including abortion, congressional power, federalism, and affirmative action. …