A debate has brewed over the fragile balance of the Supreme Court since the passing of Justice Antonin Scalia last February. Scalia was perhaps the most influential force for “constitutional originalism” of the past century, and the recent presidential election, which will likely influence the Supreme Court’s makeup for decades to come, has brought the clamor over judicial appointments to a crescendo. While pundits and the media speculate on the future balance of the Court and the impact of a Trump presidency on abortion access and marriage equality, a subtler question looms concerning the nature of executive, as opposed to judicial, constitutional interpretation.
Putting aside for a moment the question of Supreme Court nominations, I assert that it is categorically better to have a constitutional originalist in the Oval Office, as well as the judiciary, and that the engorgement of executive authority under the Obama administration set a dangerous standard which progressives will likely come to regret over the next four years.
Let me distinguish between two of the methods by which one can interpret America’s most important founding document. “Strict constructionism” takes perhaps the simplest approach: the literal meaning of the words in a law or the Constitution should be the sole factor in discerning their meaning. This method, however, is overly rigid, and for that reason Justice Scalia deviated from strict constructionism in favor of “constitutional originalism.”
His preference for “original meaning,” however, should not be confused with “original intent,” which is a more judicially activist interpretive method whereby the reader looks not at what the text of a law originally meant, but rather what Congress intended the law to mean – even if that supposed intention differs from the meaning of the text itself. Original intent was the distorted logic that brought us King v. Burwell, the Affordable Care Act case in which the Court ruled that although the text of the law stated that health-care tax credits should be made available only through an “exchange established by the state,” Congress had actually intended it to mean an “exchange established by the state or the federal government.” This was, in the words of Scalia’s dissent, “interpretive jiggery-pokery.” The original-intent method proceeds on, and fosters the idea that the meaning of a law should evolve as unanticipated circumstances emerge over time, thus contributing to the progressives’ favored notion of a “living constitution.”
In considering the courts, the importance of interpretive theory is self-evident, but it also affects the actions of the executive branch. There was a time when, to quote Alexander Hamilton’s Federalist No. 78, the interpretation of the laws was “the proper and peculiar province” of the courts. Sadly, that time has passed.
When confronted with denunciations of abuses of executive authority, defenders of President Obama’s legacy will often point to the fact that he has issued fewer executive orders than George W. Bush. That is correct, but misleading. The executive pen on the president’s desk has not sat idle for these past eight years. It has been hard at work signing executive memoranda, as opposed to executive orders. Unlike executive orders, executive memoranda are not formally numbered or tracked, but they achieve the same purpose: to direct federal agencies to take a specific action. By all accounts, President Obama holds the record for the most frequent use of this troubling executive power.
The relevance of judicial theory to the presidency results especially from the practice of executive rulemaking, or the expansion (or reduction) of a law’s scope. Congress delegates substantially to the executive branch in regard to the actual writing of the rules, regulations, memoranda, and bulletins that determine how laws are executed. In many ways, executive interpretations of laws have a more direct impact on Americans’ lives than interpretations by courts because they can occur without judicial review, which is slow yet more transparent to the interested public. Executive rulemaking is only constitutionally prudent, or respectful of the Constitution’s spirit, when the president respects the original textual meaning of the law Congress made. Accordingly, when executive rulemaking follows a living-constitution approach – in which a text is open to reinterpretation “as needed” – the separation of powers between the branches of government is seriously compromised, because such changes are supposed to result only from congressional lawmaking.
Executive lawmaking is by no means new, but it has significantly increased in scope under the Obama administration. The Environmental Protection Agency (EPA) is perhaps the worst offender. Its authority to regulate greenhouse gas emissions, for example, stems from a 2011 reinterpretation of the Clean Air Act and the later Clean Air Act amendments. Although narrowly approved in part by the Supreme Court in 2014, the EPA’s reinterpretation of the law was so egregious that, by its own admission, it would have rendered portions of the Act “unrecognizable” to the Congress that passed it in 1970. Scalia called the executive branch’s legislative reinterpretation a blatant attempt to “just rewrite the statute.” In a more recent and ongoing development, the Obama administration has structured adherence to this year’s Paris climate agreement around executive directives to the EPA as opposed to Senate consent. With Trump’s hot-off-the-press appointment of Myron Ebell, a noted climate-change skeptic, to lead Trump’s EPA executive transition team, Obama’s executive memorandums to the EPA will likely be off the books before winter’s end.
The Obama administration did not limit its rulemaking overreach to carbon emissions. “Navigable waters” are another area of federal oversight that has been greatly expanded by executive overreach. The Clean Water Act of 1972 gave the EPA the authority to regulate the discharge of pollutants into “navigable waters” and rivers, streams, and other bodies that flow into them. The source of federal jurisdiction over such bodies of water is the Constitution’s interstate commerce clause, under the sound logic that navigable waterways can be used to transport goods from one state to another and should therefore be subject to federal oversight. Since the passage of the Clean Water Act, however, the EPA and presidential memoranda have gradually ignored court action, expanding the law’s reach to include runoff, seasonal ponds, trickling brooks, and practically any other water source that shares a watershed with a navigable waterway. Its original meaning has therefore gone down the drain. Attempts by the EPA to regulate private bodies of water with no significant navigability abound, affecting everything from suburban koi fish ponds to man-made swimming holes.
Regardless of one’s views on pollutant discharges or koi ponds, the appropriate authority for the expansion of laws like the Clean Water Act lies with Congress, not the executive. The ability of the EPA to dictate state-level environmental affairs via executive fiat during the Obama presidency may have been a boon for environmentalists. But under the Trump presidency, such a precedent for other federal agencies will, if used, have a significantly regressive impact on some progressive initiatives.
Thus, no matter how judicially originalist or activist the balance of the Supreme Court may tip in the coming months and years, it is better to have a constitutional originalist than a living constitutionalist in the Oval Office. Unfortunately, Donald Trump falls into the latter camp. In the coming years, progressives will be in the unfamiliar, and somewhat ironic, position of having to advocate for executive and judicial restraint in the areas of marriage equality, deferred immigration enforcement (DACA), and universal health care–ironic because these hallmark achievements of the Obama administration have all been assisted by judicial activism and executive overreach.
If there is a lesson to be taken from Trump’s victory on Tuesday, it is this: what one executive can do, another can undo. If you want real, lasting change, then act through the legislative branch (Congress). If you fear the short-term implications of authoritarian demagogy, then limit executive power via constitutional originalism. If Trump’s victory has left you in a state of despair, then take a step back to consider. There is little he can do domestically that will last beyond his presidency without the consent of Congress, and Congress remains the epitome of change-averse, establishment-oriented politics. The shakeup that Trump’s populist movement yearns for will probably be more subtle than seismic.
Due to Trump’s apparent lack of self-control, however, there is still cause for significant concern in the area of international affairs -- despite the potential for the courts, through constitutional originalism, to restrain executive power to declare war and make treaties. We do live in an era when 140 characters tweeted out at 3 a.m. may be enough to start a trade war.