6

PRESIDENTIAL POWER: HAIL TO THE CHIEF

Barack Obama couldn’t hide his frustration.1 In June 2009, he was in the middle of an important interview, but a fly kept buzzing around his head, derailing his train of thought. Even a president famed for his even keel could stand only so much. “Get out of here,” he warned sternly. Then, suddenly, he became acutely focused. The interview forgotten, he tracked the fly like a targeting system for seven tense seconds before lashing out with deadly precision. He left the fly dead on the ground. Obviously pleased with himself, Obama turned back to the camera: “That was pretty impressive, wasn’t it? I got the sucker.”

Three years later, the public learned that Obama, with far greater stakes and the full power of the American military at his command, had reached out to kill many more times. Since assuming office in January 2009, Obama has aggressively prosecuted America’s war against terrorism, relying heavily on a fleet of missile-equipped drones to kill suspected terrorists across the globe.2 In May 2012, the New York Times revealed that Obama personally supervises the “grim debating society” that decides who is put on America’s dreaded “kill list.”3 As the Times put it, Obama “[pores] over terrorist suspects’ biographies on what one official calls the macabre ‘baseball cards’ of an unconventional war” and sometimes “has reserved to himself the final moral calculation.”

Selecting targets only after extensive intelligence analysis, Obama and his advisers rely on an intricate system of checks and balances within the Executive Branch to decide who should live and who should die.4 On occasion, the administration’s targets have included U.S. citizens never proven guilty in a court of law. In Obama’s view, the Executive’s internal procedures were all the process those citizens were due under the Constitution.5

Such raw displays of presidential power inspire conflicted emotions. We want a strong, energetic leader to advance the national interest, but we fear that unchecked power is an invitation to tyranny. We laud efficiency, security, and order, even as we insist on accountability, privacy, and liberty. We yearn for justice, but we want safety. A pantheon of competing values converges on the design of that all-important office, the presidency. Since the earliest days of the Republic, Americans have agonized over how to calibrate the legal, political, and institutional pressures that define any president’s ability to wield power.

John G. Roberts Jr. assumed stewardship of the Court at a pivotal moment in our history. After 9/11, George W. Bush declared a “war on terror” and laid claim to extraordinary powers.6 Rather than collaborate with Congress and the Judiciary, Bush initially insisted in many contexts that his inherent power entitled him to proceed without involving either of the other two branches of government. Occasionally, especially in his first term, he made the stronger claim that the other branches had no power at all to limit him. Even when Bush did cooperate with the other branches, he adopted broad views of his unilateral authority. Advised by lawyers known for their bare-knuckled skepticism of limits on the Executive, Bush triggered fierce debate over the separation of powers.

By the time Roberts was confirmed in 2005, and continuously for the next three years, Bush was besieged. In particular, critics focused on the policies governing detention of “enemy combatants” in the military prison at Guantánamo Bay, the president’s defense of interrogation tactics that many viewed as torture, and his approval of warrantless domestic surveillance of American citizens. Bush also drew censure for employing signing statements to express constitutional objections to new laws,7 expanding the use of the “state secrets” privilege to block judicial review, and firing prosecutors who didn’t toe the partisan line. Even though he ultimately backed away from some of his most controversial practices, Bush left in his wake a simmering debate over limits on presidential power.8

With the end of Bush’s tenure, many of these concerns migrated sharply rightward. Obama took office amid promises of executive modesty and criticism of Bush, but as historians and political scientists have long observed, presidents are rarely inclined to return power of their own free will. While Obama does not favor overt Bush-style claims to unilateral constitutional power over national security affairs, he has adopted muscular views of his statutory and inherent authority. In 2011, for instance, he circumvented the apparent need for legislative approval of his bombing campaign in Libya—an obligation imposed by the War Powers Resolution—by insisting in the face of widespread public incredulity that the bombings did not qualify as “hostilities.”9

Warnings of rampant abuse of presidential authority have recently become standard fare among conservatives and civil libertarians. These accusations are directed at Obama’s lethal drone strikes against U.S. citizens, perpetuation of the seemingly endless detention regime at Guantánamo Bay, unilateral use of force in Libya, and qualified approval of the National Security Agency’s domestic surveillance and data-mining programs. They also encompass key parts of Obama’s domestic policy, such as his use of executive orders to limit gun acquisition, his refusal to defend the Defense of Marriage Act in court, his selective refusal to enforce immigration laws, and his suspension of key parts of the Affordable Care Act to facilitate its implementation.10

For the most part, these debates play out exclusively in politics and between the political branches—all in the shadow of the Constitution. Often, the precedents and constitutional interpretations in play come from a centuries-old dialogue between Congress and the President. Thanks to a matrix of rules that control when the Judiciary can involve itself in such affairs, questions about the separation of powers only rarely reach the Court.

When they do, the Court treads carefully. It has few duties more delicate than shaping the federal government’s architecture of power. Its decisions can ripple out into hundreds of unforeseen contexts, affecting how Congress and the President address issues that aren’t yet on anybody’s radar. They also affect political and party dynamics; telling the President that he must seek approval from Congress has greater impact when Congress is controlled by the opposition party.11 The justices know this well: most of them served as attorneys or advisers in the Executive Branch at some point during their careers, and all of them have lived in the capital long enough to appreciate that court orders are merely part of power’s ebb and flow.

Generalizations about being “for” or “against” presidential power tend not to be especially helpful at the Court. No justice is uniformly of one mind about whether the President should have more or less power, especially because voting to limit the President often means voting to empower someone else—be it Congress, the Judiciary, one or more federal agencies, or the states. Views on separation of powers cases are thus attuned to the context in which they arise, respect for tradition, beliefs about the strengths and weaknesses of the other branches of government, and, at times, preferred policy outcomes. Justices regularly vote on both sides of the presidential power equation, a pattern that has persisted across the Bush and Obama administrations.

Since 2005, the Court has decided major cases involving detention at Guantánamo Bay, electronic surveillance, enforcement of immigration laws, and limits on the federal bureaucracy. These issues are not for the faint of heart: each stands at the center of a political firestorm. Viewed together, the Court’s rulings offer a window into a Court divided. Nearly every case has been decided by a bare majority. In their opinions, the justices give no quarter when articulating opposed visions of the Constitution. Where some see protection of treasured rights, others see needless risks of disaster. Where some see bureaucracy run amok, others see workable government. The Roberts Court, like the rest of the nation, is at war with itself, caught between competing visions of the American presidency. As the Court navigates an uncertain path forward, it will play a vital role in shaping many of the most important issues of our time.

*   *   *

The President is Commander in Chief of the Armed Forces, not “Commander in Chief of the country, its industries and its inhabitants.”12 So remarked Justice Robert H. Jackson in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer. Decided in 1952, Youngstown struck down an audacious presidential takeover of the nation’s steel industry. Harry Truman had taken that extreme step after a breakdown in labor negotiations threatened to close the steel mills and interrupt the flow of heavy artillery to troops fighting in Korea.13

To Truman, who had witnessed Franklin D. Roosevelt’s wide-ranging wartime action, it seemed obvious that he had acted lawfully—though he made clear to the Senate that “Congress can, if it wishes, reject the course of action I have followed in this matter.” Some past presidential practices supported Truman’s view; more important, the president knew he had the support of Chief Justice Fred Vinson, a close friend who had secretly assured Truman that his plan to seize the steel mills would pass muster. In 1949, Justice Tom Clark, during his tenure as Attorney General, had also counseled Truman that he enjoyed “exceedingly great” power to address emergencies. Even Jackson seemed likely to be sympathetic to Truman’s point of view: in 1941, when Jackson was serving as Attorney General, he had articulated an expansive view of inherent presidential power to justify Roosevelt’s seizure of the North American Aviation plant (thus avoiding a labor strike that threatened airplane manufacturing). In light of this apparent support on the Court, Truman had good reason to believe his decision would be legitimized.

But the President had miscalculated. By a vote of six to three, the Court quickly and decisively rejected Truman’s claim of inherent power. With his approval rating in free fall, Truman ended his takeover. Vinson, true to his word, had dissented, but Clark voted with the majority. Truman never forgave Clark. “It isn’t so much that he’s a bad man,” Truman is rumored to have said. “It’s just that he’s a dumb son of a bitch.”14

Few cases testing the President’s need for congressional authorization—or his ability to bluntly defy Congress—ever reach the Court. The system of checks and balances between Congress and the President usually produces a workable equilibrium without the need for judicial intervention; indeed, the political branches often prefer a fluid give-and-take to the rigidity of a court order. For its part, the Court, recognizing the perils of intervention in major interbranch disputes, has historically shied away from invitations to step into that minefield. But as Jackson explained in his concurring opinion in Youngstown, it is sometimes the Court’s solemn duty to ensure that the President does not deprive people of basic rights, such as “life, liberty, or property,” without affording them “due process of law” as required by the Fifth Amendment. Although Article II of the Constitution vests “the executive Power” in a single President, whom it charges with the duty to “take Care that the Laws be faithfully executed,” that potentially sweeping executive authority “must be matched,” Jackson reasoned in Youngstown, against “the Fifth Amendment.” As Jackson explained, “One gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther. These signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.”

Jackson’s essay on the separation of powers, a marvel of the judicial craft, embodies an influential three-part theory. As Jackson put it, “presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.” When the President acts pursuant to congressional authorization, “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” When the President takes action “incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Finally, when Congress stands silent, the President acts in a “zone of twilight,” where “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.” Jackson saw Youngstown as a paradigmatic “lowest ebb” case: Congress had passed three different laws governing seizure of private property, and Truman had chosen a crude approach incompatible with all of them. Jackson therefore voted to end the seizure. Rather than define presidential power in a void, Jackson linked it to a living interbranch dialogue.

Interventions as dramatic as the Court’s decision to turn back Truman’s steel seizure do at least as much to educate the general public—and to shape the constitutional culture within which all power is ultimately exercised—as they do to tie the president’s hands. This is particularly true when the president is deciding how best to defend the nation and its people in deploying America’s military might abroad, with or without congressional approval. Still, understanding where the Court fits into this complex story of the separation of powers requires connecting a relatively small number of widely separated dots, because the tale of how our Constitution operates to shape the exercise of presidential powers is one told largely without the aid of a judicial narrative.15 Both Congress and the President engage in an ongoing tug-of-war, each with at least one eye focused on what the Constitution’s text, structure, and history seem to tell them about the President’s authority and responsibility.16

*   *   *

On September 12, 2001, as towers of smoke drifted skyward in New York City, Washington, D.C., and Shanksville, Pennsylvania, all eyes turned to the White House. The nation, it seemed, was at war. The Constitution charged George W. Bush with the powers of the Commander in Chief, and he plainly intended to wield them. Two days later, Congress strengthened the president’s hand by passing the Authorization for the Use of Military Force Act (AUMF), granting the nation’s leader authority “to use all necessary and appropriate force” against those who had attacked our country or aided the attackers.

Since 9/11, America has invaded Afghanistan and Iraq; launched anti-terror operations and drone strikes in Pakistan, Yemen, and Somalia; massively expanded covert operations and surveillance; and established a detention regime centered on the naval base at Guantánamo Bay. Congress has mostly supported these undertakings, and Bush and Obama have both taken broad views of the power conferred by the AUMF and other national security laws.17

It was hardly foreordained that the Supreme Court would play a significant role in the effort to balance liberty against security in this brave new world. After all, the Court has generally yielded to the political branches in wartime. Although it struck down Truman’s unilateral seizure of the steel mills in 1952, it upheld laws criminalizing seditious speech during World War I, summarily affirmed the execution of alleged saboteurs during World War II, and sidestepped legal attacks on the conduct of the Vietnam War. Over the past few decades, lower courts have refused to hear challenges to military action in El Salvador, Nicaragua, Grenada, Kosovo, Iraq, and Libya.18 Judicial deference to the political branches is unsurprising: Congress and the President are politically accountable, explicitly entrusted by the Constitution with war powers, and far more knowledgeable about military operations and requirements.

The post-9/11 conflict, though, was unlike anything the United States had seen before. The nation was at war with amorphous enemies who had committed a mass atrocity on the American homeland. We had invaded Afghanistan and Iraq. The public openly debated torture, indefinite detention, and warrantless surveillance. The President and his advisers asserted inherent power under Article II of the Constitution to carry out parts of their national security agenda without—or even despite—Congress.

Bush’s legal arguments might have caused less concern if there were territorial limits to this new kind of war, but after 9/11 the entire globe seemed like a potential battlefield. American security forces discovered Al Qaeda associates everywhere from the streets of Kabul to O’Hare Airport, in Chicago.19 Nor did there appear to be any end in sight to a conflict that some have since warned may be a “Forever War.”20 Indeed, even though Obama has stated that “this war, like all wars, must end,”21 it has already lasted more than a decade with no end in sight. These uncertainties of time and space disrupted faith that exceptional policies adopted for wartime would end when peace returned.22

As the President and his allies insisted that security must take priority over liberty, a wave of legal challenges rolled toward the Court. Many focused on Bush’s military detention regime. In the years after 9/11, American and allied forces captured more than ten thousand individuals who were believed to be terrorists or their accomplices. Many were seized in Afghanistan, but others hailed from as far away as Bosnia, Gambia, and Yemen. Rather than deem them prisoners of war, afford them rights promised by the Geneva Conventions, or send them to federal court for trial, the military detained many suspected terrorists at bases such as the facility at Guantánamo Bay.

Relying on precedents authorizing the seizure of enemy soldiers on a battlefield for the duration of a war, and on cases limiting the reach of the Constitution beyond American territory, Bush’s lawyers carefully designed a legal black hole for “enemy combatants.”23 Guantánamo, for instance, was almost entirely free of judicial and legislative oversight. At best, some detainees could challenge their indefinite detention before specially convened executive branch tribunals, though without ordinary rules of evidence and procedure. At worst, they were forced to languish in prison indefinitely, without lawyers, rights, or review. Assisted by a cadre of dedicated lawyers, some detainees filed suit.24

Inevitably, petitions for review reached the Court. Questions that once seemed abstract or hypothetical demanded an answer. What role, if any, would the Court and Constitution play in establishing the ground rules for twenty-first-century national security? Would the Court uphold Bush’s actions or lay down some limits? Was the President constrained by the Constitution as enforced by the Court, or was he free to navigate this new world without checks and balances?

Ultimately, the Roberts Court chose to walk a delicate line. Intervening cautiously and strategically, it has refrained from asserting a bold vision of civil rights in wartime. It has declined to release any detainee, shied away from calls to limit military operations, refused to break through walls of state secrecy, and forged rules to shield the government from detention-related civil rights suits. But it has also refused to bow out altogether. Even while respecting the President’s power as Commander in Chief, the Court has forced Bush and Obama to work with Congress and the Judiciary in creating a detention regime, and it might yet do the same for domestic surveillance and data-gathering programs. In that endeavor, it has repeatedly invoked the importance of involving all three branches in striking the balance between liberty and security.

The justices fired their first shots across the bow in 2004, the year before Roberts joined the Court.25 At the time, Bush claimed near-exclusive presidential dominion over what he called the “war on terror.” Faced with detainee lawsuits, Bush sent his emissaries to court with a clear message for the justices: you have no business here.

In a stroke of unfortunate timing for Bush’s position, however, photos depicting vile and inhumane abuse of detainees at Abu Ghraib broke about seven hours after oral argument in one of the detainee cases, Hamdi v. Rumsfeld.26 It’s safe to assume these photos made an impression on the Court, not least because Justice Ginsburg had pressed a Bush administration lawyer that very day (in a different case) to identify a meaningful “check against torture” when the Executive acts in ways “unchecked by the Judiciary.”27

Hamdi involved a U.S. citizen named Yaser Esam Hamdi, who had been captured while fighting in Afghanistan and detained in a South Carolina naval brig. The case forced the Court to decide whether a president could detain Americans and, if so, what sorts of procedures he had to follow. In cold and uncompromising prose, Justice Sandra Day O’Connor wrote for a plurality of four justices to reject Bush’s most aggressive assertions of power. Citing Youngstown, she reaffirmed that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” Thus, “whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” She added, “History and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.”

Ultimately, O’Connor’s controlling opinion struck upon a middle ground. Bush could detain Hamdi because Congress had passed the AUMF—not, as his lawyers had urged, because Article II conferred that inherent power upon him as Commander in Chief. Further, when he exercised the authority conferred on him by Congress to seize United States citizens, Bush had to comply with the Due Process Clause and provide them a “meaningful opportunity to contest the factual basis for [their] detention before a neutral decisionmaker.” Relying on procedure to protect rights, and on the combined power of Congress and the President to justify and circumscribe detention of U.S. citizens, Hamdi pushed back against Bush’s effort to concentrate “war on terror” decision making in the Executive. Ultimately, only Justice Thomas fully accepted Bush’s view. Every other justice voted against Bush—with Justices Scalia and Stevens, in rare alliance, insisting that Bush charge Hamdi with a federal crime or release him.

In Rasul v. Bush,28 decided the same day as Hamdi, the Court rejected an assertion of total authority by Bush over Guantánamo. As Justice Breyer remarked at oral argument, “It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check.” The Court, however, moved cautiously. It did not decide to release any detainee or set standards for detention. Nor did it decide whether the Constitution required judicial review. Rather, it held only that a federal statute authorized judicial review of detention at the naval base. Still, as Harvard Law Professor Jack Goldsmith has observed, Rasul “marked the first time in American history that enemy soldiers held outside the United States during wartime could force the executive branch to explain and defend their detention before a court.”29

Hamdi and Rasul together constituted a devastating rebuke to the Bush administration. In response, Bush set up Combatant Status Review Tribunals (CSRTs) and Administrative Review Boards to provide for ongoing review of detentions within the Executive Branch. Partly motivated by the Court, Congress also took a more active role. Rasul relied on an Act of Congress, but what Congress gives, Congress can take away. In 2005, with bipartisan support, it passed the Detainee Treatment Act (DTA). The DTA stripped courts of ordinary jurisdiction over suits by detainees at Guantánamo. At the same time, it bolstered the procedural rights afforded to detainees in CSRTs and provided for limited judicial review of CSRT rulings, changes that ultimately led the Executive to release several hundred detainees.30

The Court took up these matters again in 2006. This time, Salim Ahmed Hamdan, Osama bin Laden’s chauffeur, brought suit to challenge a military tribunal convened to try him for violating the laws of war. In Hamdan v. Rumsfeld,31 the Court ruled that, under existing statutory law, Bush could not create such tribunals without approval from Congress. The Court also held that some of the Geneva Conventions’ protections of human rights applied to the war with Al Qaeda—a position that Bush had rejected, and that imposed new legal limits on American military and intelligence programs.

Hamdan was a narrow ruling.32 It afforded Congress room to legislatively grant Bush the power to create tribunals, an invitation Congress accepted when it passed the Military Commissions Act of 2006 (MCA). Although the MCA conferred stronger procedural protections than did the President’s tribunals, it was a big win for Bush: it established a military commission system and confirmed with unmistakable clarity that the courts should keep away.33 But it was also a win for the Court: Hamdi and Hamdan had triggered the system of checks and balances, forcing Bush into a dialogue with Congress and the public about America’s evolving regime of indefinite detention.34

That dialogue, though, led the political branches to speak with a single voice in telling the Court to stop hearing Guantánamo cases. Never before had the Court overruled both Congress and the President in wartime. As challenges to the detention regime piled up and Guantánamo cast a pall of illegitimacy across America’s global standing, a once unthinkable question echoed around the Capitol: would the Court claim supreme power to remake America’s architecture of indefinite detention?

*   *   *

“Habeas corpus” is a Latin phrase meaning “may you have the body.” For centuries, prisoners have relied on this arcane legal device as their last line of defense against tyrannical imprisonment.35 By filing a petition for a writ of habeas corpus, a prisoner asks a judge to send a message to the jailer: Come to court and explain yourself. Who is your prisoner, and what is your legal basis for imprisoning him?

In 2001, Lakhdar Boumediene lived with his family in Bosnia, where he directed an office that provided humanitarian aid to children.36 On October 19, 2001, he was seized by Bosnian intelligence at America’s request on suspicion of plotting to blow up the U.S. embassy in Sarajevo. On January 20, 2002, he was taken to Guantánamo, where he spent the next seven years, three months, three weeks, and four days of his life. Bush was so proud of this seizure that he referred to it explicitly in his 2002 State of the Union Address. Recounting his experience at Guantánamo, Boumediene later described brutal interrogation techniques and twice-daily force-feeding after he undertook a two-year hunger strike. Asserting his innocence, Boumediene petitioned for review in the American courts. He kept up his legal fight even after Congress passed the MCA, which purported to bar judicial review.

The Court initially refused to hear Boumediene v. Bush, with Souter, Ginsburg, and Breyer dissenting. Stevens and Kennedy held back, probably because Stevens worried about how Kennedy would vote. In a last-ditch effort to sway the Court, Boumediene’s legal team submitted a statement by Lieutenant Colonel Stephen Abraham, an officer in the U.S. Army Reserve. Abraham portrayed the CSRTs as kangaroo courts in which no detainee could obtain a fair hearing. Only the Judiciary, Boumediene argued, could adequately protect detainees’ rights. On the last day of its 2006 term, the Court announced that it would hear the case, a decision requiring five votes. By granting Boumediene’s plea, the Roberts Court had tipped its hand.37

Even so, Boumediene faced an uphill fight. He argued that the MCA, by stripping courts of the power to hear his suit, violated the Constitution. Specifically, he said the law violated the Suspension Clause, which provides that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”38 To win, he first had to persuade the Court to sidestep precedent suggesting that foreigners held outside the United States have no right to judicial review of their detention. Guantánamo Bay, after all, is technically located in Cuba, even though the United States exercises total sovereign control of the base by virtue of a treaty dating back to 1934. Boumediene also needed to persuade the Court to find a violation of the Suspension Clause and to overrule a military provision passed jointly in wartime by Congress and the President—steps the Court had never previously taken.

On June 12, 2008, though, the Court gave Boumediene what he had long sought: a chance to prove his innocence and the hope of eventual freedom.39 Writing for five justices, Kennedy composed a magnum opus on fundamental constitutional principle.40

Boumediene reflected Kennedy’s deep fascination with the relationship between individual liberty and constitutional structure. Surveying centuries of English history, a tale rife with royal tyranny, Kennedy recalled that “the Framers [knew] that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power.” Their “inherent distrust of government was the driving force behind the constitutional plan that allocated powers among three independent branches.” As Kennedy explained, “This design serves not only to make Government accountable but also to secure individual liberty.”

The writ of habeas corpus, Kennedy added, is an “essential mechanism in the separation-of-powers scheme.” The framers therefore stitched habeas corpus into the very fabric of the Constitution, ensuring that “the Judiciary will have a time-tested device, the writ, to maintain the delicate balance of governance that is itself the surest safeguard of liberty.” It is through judicial review of detention, after all, that courts discharge their duty of holding Congress and the President to account when faced with charges of tyranny. In spelling out the system of checks and balances, Kennedy reveled in the genius of requiring interbranch dialogue, and he placed characteristic emphasis on the importance of an independent, dynamic judiciary. With these principles in play, it’s no surprise that Kennedy was disturbed by the prospect of an indefinite detention regime devoid of judicial involvement. He saw the political branches constructing a new separation of powers—one without courts and thus less capable of safeguarding freedom—and fiercely objected.

This concern drove Kennedy’s entire opinion. Concluding that the Constitution’s guarantee of habeas corpus applied in Guantánamo, he noted that the base “is under the complete and total control of our Government.” Indeed, Kennedy added, “in every practical sense, Guantánamo is not abroad.” It would therefore be dangerous, he warned, to let formalities of sovereignty control legal analysis: “The necessary implication of the argument is that by surrendering formal sovereignty over [foreign territory] to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.”

Faced with the threat of a judicial black hole, Kennedy rejected the “striking anomaly” of “a regime in which Congress and the President, not this Court, say ‘what the law is.’” Forcefully, he declared, “Our basic charter cannot be contracted away like this.” Solicitude for the judicial role and its unique protections also led Kennedy to reject the argument that executive review of detainee status under the MCA was an adequate substitute for writs of habeas corpus.

Kennedy summarized his opinion by preaching the virtues of interbranch collaboration. Security, he wrote, requires sophisticated intelligence and a powerful military, but it also subsists “in fidelity to freedom’s first principles.” “Chief among these,” he instructed, “are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.” Kennedy also argued that judicial involvement would ultimately benefit the President: “The exercise of those powers is vindicated when confirmed by the Judicial Branch.” In 2008, this argument carried special force: America’s detention regime was besieged at home and abroad with charges of illegitimacy that judicial review could help refute.

Looking forward, Kennedy called on the political branches to “engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.” Out of respect for that process, he then left open the vital question of how vigorously courts should examine the President’s justifications for detention. Kennedy warned, though, that if the political branches failed in their duty, the Court might be forced to define “the outer boundaries of war powers.”

Kennedy concluded his opinion by celebrating the judicial role and the rule of law: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.”

Summoning a fury rare even by his lights, Scalia dissented and blasted Kennedy for intruding into military affairs. This “devastating” opinion, he prophesied, “will make the war harder on us … [and] almost certainty cause more Americans to be killed.” After all, he asked, “What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.” Scalia concluded ominously: “The Nation will live to regret what the Court has done today.”

The Chief Justice signed Scalia’s dissent, but he wrote a separate dissent more in tune with his pragmatic proclivities. “Today,” he announced, “the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” Moreover, the majority’s ruling rejected a “review system designed by the people’s representatives” only to replace it with “a set of shapeless procedures to be defined by federal courts at some future date.” Doubtful that courts would craft more detainee-friendly review procedures, Roberts saw a “distinct possibility that [the Court’s] ‘habeas’ remedy will, when all is said and done, end up looking a great deal like” the very procedures Kennedy had decisively rejected.

*   *   *

Boumediene rocked the legal universe. The outcome was hardly a bolt from the blue, not after Hamdi, Rasul, and Hamdan. But the sheer enormity of the Court’s unprecedented intervention—and its suggestion of more to come—dazzled observers. Kennedy’s opinion was promptly hailed by civil rights advocates as a “great victory.”41 Some even dared to dream that Boumediene would launch the Court into a bold new era of “war on terror” lawmaking. The Court, they insisted, had finally made clear its willingness to fundamentally realign the balance of liberty and security. Now the President would be forced to defend his detention regime in federal court, a crucible that some of his critics were sure would liberate many detainees. Lakhdar Boumediene himself was freed on May 15, 2009, after Judge Richard J. Leon ordered the government to release him and successfully implored it not to appeal.42 Lawyers on all sides of the detention system held their breath, waiting to see what this new law of habeas corpus would become—and if the Court would return to the field.

Hope for a new dawn was quickly dashed. In Boumediene’s aftermath, trial court judges in D.C. scrutinized the basis for detentions and found quite a few of them wanting. But the D.C. Circuit Court of Appeals soon issued a string of opinions taking a very narrow view of Boumediene.43 Since 2008, its decisions in detainee habeas corpus cases have tilted the playing field overwhelmingly in the government’s favor.44 Frustrated, one judge bitterly noted that “Boumediene called for a meaningful review, habeas review, and what’s happened in the circuit has been to first, to take the capital letter off the word ‘meaningful,’ and then … take the letters ‘ful’ off the end of ‘meaningful,’ and then to sort of deprive it of meaning.”45

By 2011, several conservatives on the D.C. Circuit had publicly declared war on Boumediene and accused the Court of making a terrible mistake. Judge Janice Rogers Brown excoriated “Boumediene’s airy suppositions.”46 Judge A. Raymond Randolph delivered a public speech titled “The Guantanamo Mess,” in which he likened the justices to characters in The Great Gatsby, “careless people, [who] smashed things up … and let other people clean up the mess they had made.”47 And Judge Laurence Silberman openly castigated the Court for its refusal to hear appeals from any ruling on Guantánamo detention, caustically remarking that “taking a case might obligate it to assume direct responsibility for the consequences of Boumediene.”48

Understandably, the combination of the Court’s continued silence and these lower court rulings have led to charges that Boumediene didn’t matter much after all.49 Indeed, measured against its most civil libertarian potential, Boumediene proved to be a disappointment. But charges of irrelevance, just like original claims of unqualified victory, miss the mark.

In truth, for better or worse, Boumediene was never mainly about freeing detainees held at Guantánamo. The Court seems content to leave most such decisions to the political branches. As Scalia drove home in his outraged dissent, the Court is inexpert in these matters and reluctant to set aside judgments shared by Congress and the President. Further, if freeing detainees held on questionable bases were its principal concern, the Court would likely have reviewed and reversed a post-Boumediene D.C. Circuit detainee case to make its intentions clear.

Instead, Boumediene was meant to vindicate the separation of powers in wartime. Faced with a plea by the political branches to abdicate the field, Kennedy saw a threat to liberty—not only (or even especially) the liberties of Guantánamo detainees but those of all Americans. In his view, some engagement with the Judiciary is essential to keep government in line and in touch with rule of law values. This is why Kennedy strongly emphasized “the delicate balance of governance that is itself the surest safeguard of liberty.” Boumediene guaranteed that all three branches would remain involved, to at least some degree, in America’s evolving detention regime. As Kennedy intended, it thus helped legitimize that system—which appeared lawless in the absence of judicial involvement—even as it left the President and Congress with broad control over detention at Guantánamo and other detention facilities around the world.

In some respects, Boumediene was therefore a deeply conservative ruling in its ultimate purpose. It lent the imprimatur of judicial respectability and elaborate procedure to America’s detention regime without asking very much of the political branches or bringing a strong civil libertarian voice to the table. From that perspective, Boumediene sanctioned the status quo without forcing much (or any) change, thereby validating the Executive’s national security policies and opening the door to future rulings that create equally anemic judicial protections of individual liberty.

There is great force to this view, but it misses out on some of Boumediene’s systemic effects. Most important, Boumediene sent a forceful rule of law message at a time when Americans were deeply divided over the continued relevance of traditional legal restraints on power. It therefore reminded the public of America’s fundamental values and burnished the country’s image in the eyes of a global community whose support is vital to success in anti-terrorism efforts. Further, Boumediene and the line of rulings that preceded it led to more intense debate within the political branches, which have released hundreds of detainees over the past decade without direct judicial intervention. In fact, less than 4 percent of all detainee releases through 2010 resulted from judicial order, though in some cases the threat of judicial review may have played a role.50 By forcing the Executive to defend its detention decisions in open court, even before as friendly an audience as the D.C. Circuit, the Court also pressured military lawyers to more carefully scrutinize their own practices and detention criteria.

Boumediene’s implications for the rule of law, moreover, extend into many other contexts. As Professor Goldsmith has observed, by empowering federal courts to hear detainee lawsuits, the Court triggered a judicial lawmaking project with broad national security implications. In deciding detainee cases, judges have interpreted the AUMF, the laws of war, and other important statutes that govern American military operations. The Executive, in turn, is constrained and guided by these judicial rulings as it undertakes such operations throughout the world.

Laws may not fall silent at the sound of gunfire, but courts certainly step more carefully. Hamdi, Rasul, Hamdan, and Boumediene represent the effort of a bare majority of the Roberts Court, often over heated dissents, to strike a balance suitable to the needs of our time. To many, these cases either go too far in deferring to the political branches or don’t go nearly far enough. Nonetheless, they represent historically unparalleled efforts by our highest court to uphold a particular and respectable vision of America’s separation of powers in wartime. As Breyer has written, “Rather than leaving a future executive administration free to act as it wishes … the Court left four cases for study by future presidential advisors.” These cases, he has emphasized, “make clear that a president must take account of the Constitution, as interpreted independently by the Court.” It is uncertain if and when the Court will return to this remarkable project, but the detainee cases will undoubtedly constitute one of the Roberts Court’s most important legacies.

*   *   *

Boumediene set forth a cautiously bold vision of the judicial role in wartime. In retrospect, however, that case denotes the high-water mark of the Roberts Court’s willingness to intervene in national security affairs.51 As it has turned aside subsequent detainee appeals, the Court has taken a narrow view of its appropriate role in assessing other post-9/11 policies. Many lower courts are of the same mind. As a result, the legality of such controversial policies as enhanced interrogation, drone strikes, and the rendition of terrorist suspects to foreign nations has never been finally settled. Invoking a battery of rules created to respect the separation of powers and give judges ways to avoid unwanted (or untimely) confrontations, courts have repeatedly denied private plaintiffs and civil rights groups a judicial forum in which to advance constitutional objections. Weighty questions of liberty, security, privacy, and power have therefore been left almost entirely to the political branches.

The Judiciary has long recognized that its power to “say what the law is,” in words taken from a famous early Supreme Court opinion,52 creates a risk of usurping functions properly reserved to Congress and the President. Such overreaching could produce damaging backlash and inflict great harm on the nation; courts, after all, lack the democratic accountability, expertise, and access to information vital to effective governance. Respect for its own institutional limits and legitimacy has thus led the Judiciary to adopt doctrines that tell it when not to decide constitutional issues.53 Use of these doctrines often raises hard questions about the line between judicial modesty and abdication.

Generally speaking, courts refuse to decide “political questions” entrusted by the Constitution to another branch of government. In 2010, for example, a federal court invoked this doctrine to dismiss a lawsuit brought by Nasser Al-Aulaqi, who claimed that Obama had violated the constitutional rights of his son—Anwar Al-Aulaqi—by designating Anwar for targeted killing as a terrorist.54 “Decision-making in the realm of military and foreign affairs is textually committed to the political branches,” the opinion explained, and “courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff’s claims.”

Courts also recognize a “state secrets privilege,” which provides that in exceptional circumstances judges must dismiss a case entirely in order to protect state secrets whose disclosure would compromise national security. In 2010, the Ninth Circuit Court of Appeals addressed a case in which the plaintiffs alleged that the CIA used a secret rendition program to transfer suspected terrorists to Egypt, Morocco, and Afghanistan, where they were detained and tortured for information at America’s behest.55 Acknowledging that it faced a “painful conflict between human rights and national security,” the court upheld invocation of state secrets and refused even to hear the case.

One of the most significant limits on the Judiciary flows from Article III of the Constitution, which specifies that the “judicial power shall extend” only to “cases” and “controversies.” Judges are not free to roam about the landscape, answering questions in the abstract. Rather, they can decide constitutional issues only when presented with a concrete dispute between parties. This limit, the Court has observed, is “fundamental to the judiciary’s proper role in our system of government.”56

“Standing” is a key element of the “case” or “controversy” requirement. To prove standing—and thus to obtain judicial review—a plaintiff must meet three criteria: he or she must have suffered (or must imminently face) a “concrete injury,” the injury must be traceable to the alleged illegal action, and the court must be able to redress the injury. The standing doctrine’s demand of concrete injury prevents citizens from suing just because they are offended that the government is not adhering to their view of the law, or because their taxes are being used to fund what they regard as illegal activity. It therefore ensures that plaintiffs are motivated to prosecute their cases and that judges decide legal questions only in the context of real-world problems they are called upon to resolve as forums of last resort.

As Congressman Dennis Kucinich learned in 2011, standing looms as an insurmountable hurdle to judicial review of many executive actions. Relying on both the Constitution and a federal statute to support his claim, Kucinich filed a suit alleging that Obama had acted illegally in bombing Libya without legislative approval. A federal judge swiftly dismissed the case for lack of standing, finding that the congressman had not been sufficiently injured by Obama’s actions to challenge them in court.57

The Roberts Court’s most important foray into standing doctrine and the war on terrorism occurred in 2013, when it decided Clapper v. Amnesty International USA.58 Like many other cases still winding their way through courts across America, Clapper involved a challenge to the federal government’s vast post-9/11 expansion of its electronic surveillance programs—specifically, to amendments made to the 1978 Foreign Intelligence Surveillance Act (FISA).

Those amendments resulted from intense public debate, sparked mainly by a revelation in 2005 that the Bush administration had carried out a massive, secret program of warrantless wiretapping.59 Although the program’s details remain shrouded in mystery, the government has acknowledged that it allowed the interception of any international communication when one party was located abroad and suspected of affiliating with Al Qaeda, even if the other party was an American based in the United States. Following years of dispute over Bush’s claim to unilateral power, and after it became clear that America’s evolving surveillance regime posed questions calling for legislation, Congress passed the FISA Amendments Act in 2008.

The Act conferred sweeping new power on the federal government. It allowed the Attorney General and the Director of National Intelligence—with easily obtained approval from the Foreign Intelligence Surveillance Court—to authorize electronic eavesdropping for up to one year of foreigners reasonably believed to be located outside the United States. This surveillance did not require any showing that the object of the eavesdropping was likely to be involved in any wrongful activity, and it could reach all of the target’s communications. The Act did not limit the collection of communications by Americans, so long as the surveillance program was intended to target the foreigners with whom they communicated. As a consequence, the Act allowed surveillance that could easily result in the collection of extensive international communication between targets and United States citizens.

The Clapper plaintiffs were journalists, lawyers, and human rights researchers who frequently communicated with foreign clients and sources likely to be targets of surveillance. They alleged two kinds of injury: their electronic communications had likely been intercepted, and their “reasonable fear” of surveillance had forced them to alter their conduct to protect confidentiality. On this basis, they claimed standing to challenge the Act.

Split along ideological lines, the Court showed them the door. Writing for the right-leaning majority, Justice Alito reasoned that a mere risk of exposure to surveillance was too speculative an injury to create standing. In his view, the plaintiffs relied on a “highly attenuated chain of possibilities” but lacked “any evidence that their communications have been monitored.” Nor did subjective fear of surveillance, Alito added, constitute a sufficient injury by itself. Absent proof that surveillance was “certainly impending,” the plaintiffs could not invoke the jurisdiction of the federal courts to challenge the Act.

In a dissent for the more liberal justices, Breyer criticized Alito’s high bar to standing. The plaintiffs, he argued, faced a harm “as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.” After all, the plaintiffs were engaged in communication with people whom the Act was passed to target, the government had the means and motive to spy on them, and recent history showed that the government had actually eavesdropped on conversations of this sort. To Breyer, Clapper was an easy case: “We need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties.” This harm, Breyer concluded, was not “speculative.”

Although general beliefs about what it means to be “injured” certainly affected how the justices voted, Clapper was ultimately a case about this Court’s reluctance, at least so far, to subject America’s electronic surveillance regime to judicial review. Alito’s opinion painstakingly described all the safeguards in place within the Executive to protect against abuse, strongly hinting that they did quite enough to keep the Executive in check. Invoking the importance of judicial modesty, Alito added that “we have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.”

By requiring the plaintiffs to prove that they were being spied on under a law whose operation is itself a tightly guarded secret, Alito devised a Catch-22 plainly meant to afford the political branches some breathing room in their intelligence efforts—at least for the time being. The majority might have been worried about the consequences of allowing inexpert courts to pry open these delicate matters in public view, especially when the political branches had already begun reevaluating their policies. Since Clapper, of course, that public and political debate has only intensified. The Court may also have hesitated before committing to the creation of new constitutional law to govern foreign electronic surveillance. After all, for long decades, the legal boundaries of such programs have been established mainly by Congress and the Executive, not the Court. The justices therefore lacked both expertise and a well-developed body of precedent to guide their hand. Fully aware that the issue would inevitably return, the majority may have preferred to buy some time—particularly given that the Court is busily creating new and potentially instructive privacy precedents addressing cell phones, text messages, and GPS tracking. In that vein, its decision also ensured that questions about electronic surveillance would percolate in the lower courts and legal academy for a few more years, hopefully yielding greater insight into the doctrinal and policy issues that the Court will eventually need to consider.

These benefits, though, came at a notable price: for at least a few years, the vast surveillance regime at issue in Clapper would operate largely beyond the reach of meaningful judicial review. The pressing need for a delicate interbranch balance at the heart of Boumediene, it seems, did not sway a majority in Clapper.

Still, greater judicial engagement is inevitable. Dozens of new lawsuits, informed by recent National Security Agency disclosures and documents leaked by former NSA contractor Edward Snowden, have been filed. Lower courts have begun to weigh in and have already split in their legal conclusions. It is likely that the Roberts Court will soon confront cases in which even Clapper’s high bar for standing is unquestionably cleared. When that time comes, this Court will come face-to-face with the profoundly difficult questions deferred in Clapper. Soon enough, the Act will stand or fall.

*   *   *

Each week, the Washington Post bestows upon someone the doubtful honor of having had the “Worst Week in Washington.” Its regular recipients include the president, senators, cabinet members, and scandal-plagued bureaucrats. On Thursday, June 28, 2012, the prize went to Justice Scalia.60

That week marked the end of a bruising term for Scalia. Over his dissents, the Court had bolstered defendants’ rights to counsel in plea bargaining and had taken a broad view of how many crack cocaine offenders could benefit from a law reducing mandatory prison terms.61 After reportedly holding a bare majority, Scalia and his allies had ultimately met with defeat in their effort to strike down the Affordable Care Act.62 He had also been driven to join Alito’s dissent in a decision overturning the Stolen Valor Act, which criminalized lying about the receipt of military honors.63 In all, Scalia wrote ten dissents that term, leaving him tied with Breyer as chief dissenter.

Arizona v. United States, announced just three days before the Court revealed that it had upheld the ACA, dealt Scalia yet another defeat on an important structural question. Kennedy, joined by Roberts, Ginsburg, Breyer, and Sotomayor, invalidated most of Arizona’s controversial immigration statute SB 1070.64 (Kagan was recused.) Invoking the Constitution’s Supremacy Clause, which provides that federal law shall be the “supreme Law of the Land,” the Court concluded that parts of SB 1070 intruded upon a field occupied by federal law or stood as obstacles to its purpose. These sections of SB 1070 were therefore “preempted” and could not stand.

Scalia dissented. Anticipating the tenor of his assault on the Chief’s ruling upholding the ACA, Scalia charged that Arizonans “feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.” Yet the federal government, he observed, “does not want to enforce the immigration law as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.” If Arizona could not secure its territory in the face of such glaringly ineffective federal enforcement, Scalia wrote, “we should cease referring to it as a sovereign state.” Scalia’s strong defense of states’ rights was firmly in line with his prior jurisprudence, and his colorful description of what he perceived to be the Court’s profound mistake befitted his reputation as a passionate, engaging, and combative rhetorician.

The Supreme Court commentariat, though, was scandalized by the dissent Scalia read from the bench.65 In a highly unusual turn, he assaulted an executive order that bore no direct legal relationship to the case before the Court: “After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants.… The President has said that the new program is ‘the right thing to do’ in light of Congress’ failure to pass the administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say as the Court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the President declines to enforce boggles the mind.”

Why, in a case about whether Arizona had stepped too far into federal turf, was Scalia picking a fight with Obama? On its face, Arizona looked like a battle over the balance of state and federal power, not one about the scope of Obama’s authority or his wisdom in exercising it.

Indeed, Arizona’s main argument was that SB 1070 harmonized with federal law. Two of its provisions made it an offense not to comply with federal immigration law. A third allowed police to arrest, without a warrant, anyone they believed might have committed a deportable offense under federal law. A final provision required state police to make a “reasonable attempt … to determine the immigration status” of any person they stopped or arrested when “reasonable suspicion exists that the person is an alien and is unlawfully presented in the United States.” (This last section was the only one to survive Arizona, but it has since been attacked on the ground that it creates racial discrimination.) In Arizona’s view, SB 1070 simply added the weight of state resources to enforcement of federal law and thereby furthered the will of Congress. Arizona was eager to help shoulder this burden, it explained, because unregulated border traffic results in an “epidemic of crime, safety risks, serious property damage, and environmental problems.”

The Obama administration, however, rejected Arizona’s offer. As Solicitor General Donald Verrilli told the Court, “Congress vested the Executive Branch with the authority and the discretion to make sensitive judgments with respect to aliens, balancing the numerous considerations involved: national security, law enforcement, foreign policy, humanitarian considerations, and the rights of law-abiding citizens and aliens.” He added that, under federal law, “the Executive Branch has considerable statutory discretion to decide who may enter and who must leave … and when an alien is subject to removal, what considerations might justify allowing her to remain at liberty temporarily, or even to remain in the country permanently.” In contrast, Verrilli warned, by focusing single-mindedly on maximum enforcement and mandating that police take action against aliens, Arizona had impermissibly engineered what SB 1070 openly described as a nondiscretionary policy of “attrition through enforcement.”

This is where Arizona became a case about presidential power. The critical issue before the Court was whether Congress’s goals would be frustrated if the President lost his discretion in enforcing the immigration laws. Despite its superficial consistency with federal statutes, would SB 1070 fall because it violated the President’s prerogative to decide how vigorously to enforce them? Had Congress meant to make nearly unlimited presidential discretion the law of the land? Like few cases before it, Arizona set up a dramatic conflict among the President, the states, and Congress over interaction between the states and the federal government.66 This clash was all the more important because Congress had repeatedly failed to pass immigration reform. If the Court prohibited states from stepping into that void, presidential policy would control the field.

In Arizona, the Court encountered an aspect of presidential power—the power not to enforce laws to their fullest extent—that has rocketed to public prominence under Obama.67 His administration has limited enforcement of anti-drug laws in states where marijuana is legal; avoided seeking mandatory minimums for low-level, nonviolent drug offenders; delayed enforcement of key provisions of the ACA that govern insurers and employers; and decided not to deport undocumented migrants who entered the United States before age sixteen, have lived here for at least five years, and meet other requirements. (It was this last policy that drew Scalia’s ire in Arizona.)

In op-eds and scholarly works, conservatives have charged Obama with lawlessness, decrying his aggressive use of presidential discretion to pursue liberal policies.68 To be sure, Obama has been unusually explicit in his embrace of non-enforcement powers, and he has used them in new and aggressive ways. These questions, though, cut across both sides of the partisan aisle: for decades, liberals have sounded alarms about underenforcement by Republican administrations of laws governing consumer safety, the environment, and a range of business practices.

Presidential decisions not to enforce laws that regulate private conduct justifiably inspire strong feelings.69 (Decisions not to enforce laws that regulate the Executive itself are a whole different beast.) In some cases, this discretion is unavoidable: the reach of federal law vastly exceeds available enforcement resources. As a result, the President must establish priorities, some of which will inevitably reflect his beliefs about what kind of enforcement makes the world better or suits his political goals. Further, the President may sometimes conclude that he best fulfills a law’s letter and spirit by not enforcing it. As Judge Brett Kavanaugh of the D.C. Circuit has observed, “One of the great unilateral powers a President possesses under the Constitution … is the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior.”70 Congress, moreover, often intentionally delegates broad discretion to the Executive when instructing it to promulgate and enforce regulations. This makes sense: Congress may prefer to entrust the Executive Branch with the task of producing and implementing complex regulation. It may also wish to pass the political buck.

As Zachary Price warns, however, “by permitting presidents to read laws, both old and new, out of the code, unrestricted enforcement discretion could provide presidents with a sort of second veto, an authority to make law on the ground without asking Congress to revise the law on the books.”71 In extreme cases, the President might destabilize the separation of powers by wielding essentially legislative authority. There may be particular reason to fear this exercise of executive power when Congress is paralyzed, as presidents deprived of substantial legislative achievements feel pressure to use enforcement discretion to orchestrate high-profile victories. Obama, for example, decided to stop deporting certain undocumented migrants who arrived in America as children only after Congress failed to enact that policy in the DREAM Act.

In sum, it would be undesirable and, indeed, impossible to require maximum enforcement of every federal law but dangerous to allow presidents simply to ignore any law they dislike. For the most part, delicate questions about how much a president must enforce particular laws are left to the political process. Out of respect for their own role in the separation of powers, and given the absence of a body of constitutional law on the subject, courts virtually never conclude that the Executive must be ordered to enforce a law. The main exception consists of statutes that expressly dictate or prohibit executive action.

Nonetheless, non-enforcement loomed over Arizona. The Court could not control Obama’s immigration policy, but its ruling would decide whether states with a view different from his could readjust the enforcement balance. As a result, although Arizona technically hinged on a careful parsing of statutory text to determine whether Congress actually meant to provide the President with sole enforcement discretion, the justices turned to fundamental beliefs about presidential power and the role of the states.

In Scalia’s view, Arizona posed a stark question: “Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?” As he saw the case, Arizona stripped away “a defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there.” Worse, according to Scalia, it did so by manufacturing a conflict between federal law and SB 1070, which “applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority.” In a separate dissent, Alito echoed Scalia’s concerns, warning that the Court afforded “the Executive unprecedented power to invalidate state laws that do not meet with its approval, even if the state laws are otherwise consistent with federal statutes.” This result, Alito cautioned, “is fundamentally at odds with our federal system.”

Writing for the majority, Kennedy took a very different view of Arizona. Noting that federal law is shot through with “broad discretion exercised by immigration officials,” he dwelled on the virtues of such executive power, which “embraces immediate human concerns.” As Kennedy remarked, “Unauthorized workers trying to support their families likely pose less danger than alien smugglers or aliens who commit a serious crime.” To Kennedy, federal law’s grant of discretion to account for these equities conflicted squarely with SB 1070’s pedal-to-the-metal vision of state troopers laying down the law. Kennedy also worried that Arizona’s policy would come into conflict with the President’s constitutional power over foreign affairs: deportations can infuriate allies and cause retaliation against Americans abroad. As Kennedy emphasized, the Constitution entrusts foreign affairs to one president, not fifty states.

Arizona revealed deep schisms between Scalia and Kennedy. Scalia saw a state overwhelmed by undocumented migrants and the burdens they impose, a president using his discretion to make that problem worse, and a national legislature incapable of actually legislating. He could not limit Obama’s considerable discretion in telling federal agents when and where to enforce the immigration laws, but Scalia could read federal law to permit Arizonans to protect their sovereign borders.

Kennedy, while acknowledging Arizona’s concerns, firmly disagreed with Scalia. To him, there was no unbridgeable gap between the genius of federalism and allowance of presidential discretion to achieve humanitarian and foreign policy goals. His opinion celebrated “the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.” Relating the tale of “a dozen immigrants” who “stood before the tattered flag that inspired Francis Scott Key to write the National Anthem” and “took the oath to become American citizens,” Kennedy remarked that they “now share a common destiny.” But even as he confirmed federal authority—which in this case mainly belonged to the Executive—Kennedy offered an important reminder. “With power,” he wrote, “comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.”

*   *   *

The Executive Branch has thus scored some major victories in the Roberts Court. But although the President of the United States is one of the most powerful figures on earth, our government is too big, complex, and fast-moving for a mere mortal to call every shot, even a mortal imbued by Article II with “the executive Power.” The endless network of laws and regulations that govern the country are well beyond the ken of raw presidential authority. The President therefore sits atop a vast bureaucratic edifice, comprising hundreds of agencies and thousands of offices.

Because the federal bureaucracy wields so much power, a question naturally arises: who will check and balance it?72 Some may find it comforting that squads of experts are watching over us, nudging our decisions, and regulating critical industries. Justice Breyer, for one, is famously enthusiastic about the promise of expertise: “Without delegation to experts, an inexpert public, possessing the will, would lack the way.”73 But others look skeptically on the notion that experts are particularly good at making decisions that often involve political or value-laden judgments. They doubt the legitimacy of delegating so much power to bureaucrats and see in unaccountable government agencies a creeping threat to liberty.

Over the past few decades, these anxieties have prompted many leading conservative thinkers to call for greater presidential control over federal agencies.74 One might suppose that presidents already enjoy plenty of authority over their own branch, and sometimes they do, but lines of control are complex and unstable. As Bill Clinton joked, “Being president is like running a cemetery: you’ve got a lot of people under you and nobody’s listening.”75 Presidents, after all, have a lot of competition for control over agency policy. Congress and the Judiciary each have tools of influence, regulated and affected parties heavily lobby regulators, and agency staffs often have their own agendas. This contest plays out in many ways: the President hires and fires officials, the Senate refuses to confirm nominees, Congress curbs agency powers or cuts their funding, and courts strike down agency action as arbitrary and capricious.

The justices are exquisitely sensitive to this struggle for power. They live and breathe it. As professors, Scalia, Breyer, and Kagan specialized in administrative law. Ginsburg, Thomas, Roberts, and Scalia all served on the D.C. Circuit, which decides many appeals from agency action. And the Court’s docket is loaded with high-profile challenges to federal regulations, requiring every justice to develop serious expertise.

In 2010, Roberts and Breyer clashed over presidential control of agencies in a case called Free Enterprise Fund v. PCAOB.76 Their opinions swept broadly and provide a revealing glimpse into how each justice views our constitutional design.

After the Enron and WorldCom accounting scandals, Congress passed the Sarbanes-Oxley Act to tighten the standards governing all U.S. public company boards and accounting firms. This Act created the Public Company Accounting Oversight Board—the PCAOB, a.k.a. Peekaboo—to regulate the accounting industry, investigate registered firms, and sanction lawbreakers. The five members of the PCAOB were appointed by the SEC and could be removed by the SEC only “for good cause.” In turn, SEC commissioners—by custom, not by statutory language—could be removed by the President only due to “inefficiency, neglect of duty, or malfeasance in office.”

In PCAOB, the Court had to decide whether this dual insulation, which meant that the President could never directly remove a member of the PCAOB, even for good cause, violated the separation of powers. Emotions ran high over this seemingly obscure question because the President’s firing power has long been treated as one of the most important sources of his ability to control the bureaucracy. Split five to four, the Court struck down the PCAOB good-cause removal provision.

Writing for the Court and quoting Article II, Roberts grounded his opinion in the importance of formal control: “The President cannot ‘take Care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them.… Neither the President, nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control over the [PCAOB].” Invoking the image of a Russian nesting doll, he explained that “the officers of such an agency—safely encased with a Matryoshka doll of tenure protections—would be immune from Presidential oversight, even as they exercised power in the people’s name.” He added, “The diffusion of power carries with it diffusion of accountability.”

Laying bare his motivating concern, Roberts expressed deep unease with the modern administrative state: “Where, in all this, is the role for oversight by an elected President?… One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.”

In the end, Roberts saw PCAOB as a case about liberty. Only if agencies are held to account, he warned, can we thwart creeping bureaucratic tyranny. Thus, “the Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so,” including the ability to fire agency officials. To Roberts, the Constitution’s structure simply requires that the President enjoy certain formal authority—in this case, the power to fire without an intermediary.

PCAOB was not a one-off ruling. The Chief’s concern about unsupervised bureaucrats runs deep. It dates back at least as far as the 1980s. In his formative years as a young lawyer, Roberts worked at the White House Counsel’s Office and in the Department of Justice during the Reagan administration. Eager to advance the deregulatory agenda Reagan had been elected to pursue, many administration attorneys were infuriated by the need to engage in trench warfare with their own agencies, which were staffed mainly by liberals hostile to Reagan’s program. This insubordination led more than a few of Reagan’s attorneys to believe that the Constitution’s design prohibits any such rogue fourth branch of government and that presidential power over agencies is the best antidote to a dearth of democratic accountability.77 Working in the Reagan administration, Roberts generally pushed a broad view of executive authority.78 He then spent a decade practicing law in Washington, where he developed a reputation as a skilled advocate for reduced government regulation.79 As the New York Times noted in a review of the Chief’s brief tenure as a judge on the D.C. Circuit, from 2003 to 2005, Roberts had an “eye for the absurd and an impatience with bureaucracy.”80

That perspective has been unwavering. In 2013, for example, Roberts wrote a dissent in which he pushed for a rule that would give the Judiciary a lot more power to review and reverse agency action. His opinion looked skeptically on our “headless fourth branch of government” and quoted Harry Truman’s biting remark: “I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing.”81

In that dissent, Roberts also reiterated his concern about the inadequacy of checks and balances by the political branches: “The citizen confronting thousands of pages of regulations—promulgated by an agency directed by Congress to regulate, say, ‘in the public interest’—can perhaps be excused for thinking that it is the agency really doing the legislating. And with hundreds of federal agencies poking into every nook and cranny of daily life, that citizen might also understandably question whether Presidential oversight—a critical part of the Constitutional plan—is always an effective safeguard against agency overreaching.” With characteristically dry humor, Roberts observed, “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”

PCAOB reflects the Chief’s skepticism of politically unaccountable bureaucrats. It also displays a wariness of pragmatic arguments that purport to justify new institutional arrangements that do not conform to the Constitution’s formal separation of powers. Roberts has long voiced this concern. As he tartly observed in the 1980s when Congressman Elliott Levitas proposed a conference on power sharing between the political branches: “There already has, of course, been a ‘Conference on Power Sharing’ to determine ‘the manner of power sharing and accountability within the federal government.’ It took place in Philadelphia’s Constitution Hall in 1787, and someone should tell Levitas about it and the ‘report’ it issued.”82

The key question, of course, is what PCAOB portends for the future.83 The ruling says much about Roberts’s views of the separation of powers, and thus suggests the direction in which he may try to take the Court. But will it change much on the ground? The Chief’s opinion was typically cautious. Even as the Court fired this warning shot, it rejected broader challenges to the design of the PCAOB. Some commentators suggested that this victory was little more than “symbolic.” They saw it as ironic that the Court, in the name of enhancing presidential power, had done little more than give a different agency with its own powerful constituency—the SEC—even greater control over the PCAOB. As former Solicitor General Paul Clement remarked, “I cannot quite decide whether it is an important separation-of-powers decision that portends a major doctrinal shift in the court’s approach to separation-of-powers issues or a nothing-burger that does not provide any meaningful relief even to the parties that challenged the law.”84

Breyer entertained few doubts about PCAOB’s importance. The greatest ally of government agencies, Breyer spent much of his pre-judicial career advising the Senate Judiciary Committee, writing influential articles on the administrative state, and serving on the U.S. Sentencing Commission. Breyer starts with the premise that our Constitution creates, as he puts it, a “workable democracy—a democratic process capable of acting for the public good,” and he believes that it is the Court’s obligation to make democracy work.85 In separation of powers cases, he cares about function over form: in light of our politics and the need for checks and balances, he asks, does the arrangement make sense?

The Chief’s opinion in PCAOB represented everything Breyer opposes in constitutional law, so Breyer pushed back, hard. “The statute does not significantly interfere with the President’s ‘executive Power,’” he wrote. “It violates no separation-of-powers principle. And the Court’s contrary holding threatens to disrupt severely the fair and efficient administration of the laws.”

Describing the reach of federal law, Breyer emphasized that, “given the nature of the Government’s work, it is not surprising that administrative units come in many different shapes and sizes.” Because of this diversity, he reasoned, the Constitution recognizes “the various ways presidential power operates.” Such a pragmatic approach doesn’t treat presidential power to fire as the sine qua non of control over agencies. Instead, it acknowledges that, “as human beings have known ever since Ulysses tied himself to the mast so as safely to hear the Sirens’ song, sometimes it is necessary to disable oneself in order to achieve a broader objective.” By freeing bureaucrats from political control, Breyer reasoned, we can enhance their legitimacy and credibility as technocrats and neutral arbiters.

Rejecting the view that power is “always susceptible to the equations of elementary arithmetic,” Breyer articulated a different approach. “A rule that takes power from a President’s friends and allies may weaken him,” Breyer wrote, while “a rule that takes power from the President’s opponents may strengthen him.” As Kagan explained to her colleagues at argument, “removal is just a tool,” and the ultimate constitutional question is the level of presidential control over agencies. Pointing to the overwhelming support for Sarbanes-Oxley in Congress and Obama’s support for the PCAOB, Breyer noted that the political branches didn’t seem to find this arrangement worrisome. Nor should they, he added, since in the real world no president has ever “actually sought to exercise” removal power “by testing the scope of a ‘for cause’ provision.” To drive home his point, Breyer then offered a detailed account of why, as a practical matter, the “double-layer” limit on removal would never actually impede a president from exercising sufficient control over the PCAOB.

Concluding an opinion that perfectly embodied his pragmatic approach to the separation of powers, Breyer warned against the Chief’s determined focus on structural formalities. “In my view the Court’s decision is wrong—very wrong.… It will create an obstacle, indeed pose a serious threat, to the proper functioning of that workable Government that the Constitution seeks to create.”

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Despite the brilliance of Breyer’s argument, no one can predict whether PCAOB will ultimately make much difference in how government actually works. The ruling’s importance lies in the mood of distrust it expresses more than in the way it rearranges authority. As Breyer’s dissent demonstrated, it isn’t the formal statutory terms governing the removal of bureaucrats that determine how either they or the President will operate. Despite the name we give their discipline, the best political scientists know that politics is more art than science. They understand that the dynamics of power are too subtle to be cabined by the geometry of an organization chart or mapped by the vectors in a flow diagram. For that reason, among many others, the Court’s decisions about the separation of powers are often more important for what they teach than for what they do. What Justice Louis D. Brandeis once said of government as a whole is true of the Court as well: it is “the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example.”86