The Supreme Court Cannot Solve Everything

President Obama made a signing statement refusing to let Congress dictate who he can and cannot hire. In the words of Kevin Drum, Obama “thinks that Congress has no right to tell him who he can and can’t consult in the Office of the President. So he signed the bill but added a signing statement telling Congress to piss off.”

Drum adds that:

Actually, I’m curious about something here. When Congress and the President disagree about something like this, it’s up to the Supreme Court to adjudicate. But how does that usually work? Does the president abide by the law but sue in federal court to have it overturned? Or does he break the law and wait for someone to sue him? What’s the usual historical precedent?

Well, there’s not a lot of historical precedent, because first, the Supreme Court from the very beginning of the country refused to offer advisory opinions. Here’s what the Jay Court said:

The lines of Separation drawn by the Constitution between the three Departments of Government, their being in certain Respects checks on each other, and our being judges of a court in the last Resort, are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.

This is especially relevant to this particular issue: the Courts only get involved when there is an actual issue, but moreover, the Constitution really does give the President all the executive power, including consulting who he may.

But this also means the Courts can’t just solve this generally: there needs to be an actual court case of someone suing for something. It’s unclear who would or could do that here.

The one example of when the Court did step in is in Marbury v. Madison, which is probably the most important case in the history of our country, so I can’t sum it all up succinctly. But here goes: Marbury did involve is a specific person – the eponymous Marbury, who was given a judicial appointment by Adams; that appointment was rescinded by Jefferson before the actual appointment was delivered. And even in that case, John Marshall found that while Marbury had a right to the appointment, the judiciary had no right to enforce it, because the mandamus statute was unconstitutional. But a part of that decision was also the birth of the political doctrine which is very relevant here:

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This office, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.

But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.

Here, the czars have not had any other duties imposed on them by Congress. Not one. They solely provide advice and guidance to the President and his/her staff on areas of expertise. The Republican fetish of eliminating the czars is directly and clearly against the most fundamental court decision in the history of our country. This is exactly the sort of gross Congressional overstepping that calls for a signing statement. Neither party in Congress has the Constitutional ability to limit the advice the President receives.

The entirety of history of Congressional right to confirm people refers to officers who have official duty. What we have here is a hypothetical that not even Marshall thought Congress would resort to: limiting who the President can merely look to for policy advice without any additional responsibility. It’s not the Constitution’s fault that the czars annoy Republicans.

What’s important to realize (and I think Drum does) about the czars is that they do not give the President any additional power. Van Jones or whoever is just an outside advisor, that the President feels better to keep in house rather than call regularly. But the Constitution gives the executive carte blanche authority on whom he can consult with.

But it’s important to realize is that under no realistic scenario is this going to go to the courts, short of someone actually depriving the czars from receiving a paycheck which they then sue for. This is not a problem for the court system. This is for Congress and the executive to work out alone.

UPDATE: Via a Balloon Juice commenter, Barack Obama also said, “No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.” It’s patently obvious to me this falls in the former category of valid signing statements. This signing statement does not expand executive power, it just protects the ability to hire advice as he sees fit. That’s been a protected Presidential ability as long as the office has existed.