He was a staunch advocate of congressional authority and executive branch sceptic. Among other things, Justice Black rebuked President Harry Truman’s seizure of steel mills during the Korean War (Youngstown Sheet & Tube v. Sawyer), and President Richard Nixon’s attempt to suppress publication of the Pentagon Papers (New York Times v. United States). And he dissented from the executive’s invocation of a state secrets privilege to conceal wrongdoing (United States v. Reynolds).
Since President Dwight D. Eisenhower’s inauguration in 1953, however, no incumbent or former Member of Congress has been appointed to the Supreme Court. In contrast, numerous appointees have been creatures of the executive branch: Chief Justices Warren Burger, William Rehnquist, and John Roberts, and Associate Justices Byron White, Arthur Goldberg, Thurgood Marshall, Antonin Scalia, Samuel Alito, Clarence Thomas, and Elena Kagan. Having served myself for more than a decade in the Department of Justice and Federal Communications Commission, I know the intellectual scorn for Congress inculcated by serving the President.
The under-representation of Congress and the over-representation of the executive branch on the Supreme Court have given birth to constitutional doctrines of executive supremacy in war and peace, national security, surveillance, secrecy, and domestic regulation. Without a defender on the High Court, Congress had been reduced to a constitutional inkblot.
History is worth volumes of logic. As a former Member of Congress, Justice Black was not a fluke in taking up arms against the executive.
Chief Justice John Marshall had served in the U.S. House of Representatives prior his appointment in 1801 by President John Adams. He ruled against the President and in favor of Congress over war powers in Little v. Barreme (1804). In Talbot v. Seeman (1801), the former House member wrote: “The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body alone can be resorted to as our guides to this inquiry.”
Chief Justice Marshall rebuked President Thomas Jefferson over the appointment of a justice of the peace in Marbury v. Madison, and rejected his claim of executive privilege in the treason trial of Aaron Burr. He chastised President Andrew Jackson over the treatment of Native American Indians in Worcester v. Georgia (1833).
Chief Justice William Howard Taft, in contrast, demonstrated the constitutional bias that flows from pervious executive branch service. He had served as President of the United States, Secretary of War, and Governor General of the Philippines prior to his appointment by President Warren G. Harding in 1921. Taft authored the landmark decision in Myers v. United States (1926) that generated the doctrine of a “unitary executive” that has been used to justify boundless executive power by both the Bush (43) and Obama administrations.
Including Chief Justice Marshall, 30 incumbent or former Members of Congress have been appointed to the Supreme Court. The last was Sherman Minton in 1949 who had served as a United States Senator from Indiana.
Today, a former Member of Congress as a Justice like Senator Klobuchar would challenge constitutional biases favoring the President across a broad spectrum.
Like Justice Black in the Steel Seizure Case, a former Member-Justice would hold presidential war making as in Libya or against ISIS unconstitutional because of the exclusive congressional prerogative to authorize the war under Article I, section 8, clause 11. In contrast to the Court’s prevailing practice, a former Member-Justice would give zero weight to congressional acquiescence or consent to executive usurpations, for instance, by declining to use the power of the purse or impeachment to obtain redress. Within Congress, loyalties are to party, not to the Constitution. No Member votes against his President in non-trivial matter matters like national security. All the President needs to defeat Congress over constitutional issues is one-third of the House or Senate, which is easily mustered. A former Member-Justice knows this.
A former Member-Justice would thus challenge the political question doctrine that generally excludes congressional-executive war power or treaty disputes from judicial jurisdiction. Partisanship forecloses the notion that presidential usurpations will be checked by Congress. If the federal courts reject jurisdiction, the President will always be the final judge in his own case and invariably win. War powers and the treaty prerogative of the Senate will have been surrendered to the executive and the Constitution turned on its head.
That is exactly what has happened in modern times, beginning with President Harry Truman’s unilateral initiation of war in Korea followed by President Eisenhower’s military alliance with General Francisco Franco’s Spain by executive agreement because Spanish membership in the North Atlantic Treaty Organization would have been blocked by the Senate. At present, Congress has acquiesced in President Obama’s unilateral war against ISIS and his use of an executive agreement in lieu of a treaty to conclude a nuclear agreement with Iran.
A former Member-Justice would dispute the doctrine of standing that prevents one or more Members of Congress from seeking adjudication of alleged executive usurpations of legislative prerogatives. The doctrine was invoked to preclude congressional challenges to the constitutionality of presidential wars against Bosnia and Libya. The ability of a private plaintiff to establish standing is virtually impossible in national security matters. Thus, in the absence of congressional standing, the President de facto commands limitless power to initiate and conduct war contrary to the understanding of every participant in the constitutional convention and state ratification debates, including George Washington, Thomas Jefferson, James Madison, and Alexander Hamilton.
A former Member-Justice would also oppose the Court’s wrong-headed doctrine that the United States must speak with one voice abroad, and it must be the President’s. The White House chronically errs in foreign policy. Think of the Bay of Pigs, Vietnam, and Iraq, among other notable stumbles. Nothing in the Constitution prohibits Congress from foreign policy statements or acts contrary to the White House, for example, the Taiwan Relations Act or the Helms-Burton Act sanctions on Cuba. A former Member-Justice might have convinced Justice Anthony Kennedy in Zivotofsky v. Kerry that Congress had not encroached on a presidential prerogative by authorizing parents whose children were born in Jerusalem to identify Israel as the place of birth in their passports.
In Chadha v. INS, the Court invalidated the legislative veto that had been employed for 50 years by Congress to keep the regulatory state in check. A former-Member Justice would understand the necessity of that tool to counteract the stupendous delegation of legislative regulatory power to the executive branch which has become a fixture of the modern state.
A former Member-Justice would also narrow the constitutional scope of permissible delegation. It pivots on the Court’s assumption that most regulatory issues are too detailed for legislative action. A former-Member Justice knows that’s nonsense. Congress can enter the weeds of regulation if it wishes, for instance, the detailed gambling exemptions from the Professional and Amateur Sports Protection Act of 1992. A former-Member Justice knows that most legislative delegations are not a practical necessity. Their unconstitutional motive is to escape accountability.
The disequilibrium of power between the President and Congress sustained by the Supreme Court is the nation’s most worrisome constitutional challenge.
The appointment of Justices who have served in Congress is integral to any remedy — beginning with Sen. Klobuchar.