Battle of the Branches: Tough Times for Separation of Powers

Last week generated an unusual confluence of legal stories that together highlight the fragility of the constitutional (and practical) walls designed to separate the functions of the different branches of government. In each instance, functionaries of one branch poached on territory set aside for another; in each case, there was a swift reaction from tribunes defending their turf.

Part One: Legislative encroachment upon traditional executive power. On Thursday, U.S. Attorney General Eric Holder blasted federal lawmakers in the House of Representatives for passing legislation that would block federal financing of the transfer of any of the Guantanamo Bay detainees to the United States for trial. The legislation also included a provision that would specifically block the Justice Department from prosecuting 9/11 planner Khalid Sheikh Mohammed in federal civilian court. Holder told Senate leaders that there was no legal precedent "in the history of our nation in which Congress has intervened to prohibit the prosecution of particular persons or crimes."

"Such decisions," Holder wrote, "should be based on the facts and circumstances of each case and the overall national security interests of the United States. [The provision] would undermine my ability as attorney general to prosecute cases in Article III [federal civilian courts], thereby taking away one of our most potent weapons in the fight against terrorism." Indeed, the House measure would have been unthinkable during the Bush administration, when a parade of attorneys general -- from John Ashcroft to Alberto Gonazles to Michael Mukasey-- presided over dozens of successful high-profile terror trials (of both U.S. citizens and non-U.S. citizens) in the wake of the attacks of Sept. 11, 2001.

If the Congress cannot constitutionally pass a "bill of attainder" -- legislation intended to punish a particular person or small group of people -- should it be allowed to bar a federal prosecutor from exercising his or her discretion to prosecute a person or group of people who are subject to criminal sanction? And would the judicial branch actually broker the looming dispute between the legislative and executive branches over this matter? Or would the federal courts consider the dispute a "political question" beyond the normal scope of their review.

Part Two: Executive encroachment upon traditional judicial power. Gov. Chris Christie of New Jersey, already renowned for a confrontational manner since taking office last year, refused in May to re-appoint State Supreme Court Justice John E. Wallace, a longtime Democratic appointee and the only African-American on the panel. Christie said he took the extraordinary action -- becoming the first governor in the court's 63-year history to refuse to reappoint a sitting justice -- because he believes New Jersey's highest court was too liberal and needed more conservative justices. In Justice Wallace's place, he selected a conservative judge, whose nomination was promptly rejected by the state Senate. There is now one fewer sitting justice in New Jersey than there ought to be.

Why did Christie do what he did? At the time, he explained: "The court over the course of the last three decades has gotten out of control. It inappropriately invaded the executive and legislative constitutional functions. It's not for the court to set some of the policies that I believe that they've set. And I've talked all during the campaign about changing the court. The only way to change the court is to change its members." If that sounds familiar, it should. "The people are with me, I know it," said President Franklin D. Roosevelt when he was asked about his infamous 1937 Supreme Court-packing plan. "The judicial branch also is asked by the people to do its part in making democracy successful."

There are important legal and historical distinctions between the fixed status of the life-tenured jurists of the Supreme Court and the somewhat more transitory status of the New Jersey justices. For example, there is a mandatory retirement age of 70 for the state justices -- which Justice Wallace will reach in 2012. But Christie's preemptive strike against a sitting justice -- for no reason other than to alter the ideological balance and makeup of that state's highest court -- is a clear violation of the spirit, if not the letter, of the concept of separated powers. No wonder the remaining justices want no part of it.

Part Three: Judicial encroachment upon traditional legislative power. To complete our circle, let's briefly look at the continuing drama surrounding the military's controversial "Don't Ask/Don't Tell" policy toward openly gay or lesbian service members. The Senate last week, on procedural grounds, refused to repeal the ban. Defense Secretary Robert Gates, who favors the repeal of the 17-year-old employment termination policy, said the cost of congressional inaction on the matter would result in an inadvisable "judicial fiat." He told reporters last week: "My greatest worry [if there is no legislative repeal] will be that then we are at the mercy of the courts and all the lack of predictability that that entails."

What Gates is really saying is that the repeal of the policy ought to be done voluntarily by the legislative branch before it is done forcibly by the judiciary through a series of court orders declaring the policy an unconstitutional violation of the equal protection rights of service members. Congressional repeal would allow the Pentagon to implement the many new procedures and protocols set forth in the massive study it released earlier this month. Conversely, a judicial repeal of "Don't Ask/Don't Tell" would give rise to complaints about "judicial activism" from the very legislators who these days are doggedly "inactive" when it comes to voting on the merits of the issue.

There is always tension between and among the branches of government-- our system is both defined by it and depends upon it. But its rare when those tensions are so glaringly evident, all at the same time, as they were this past week.