My closing remarks in my testimony before the House Judiciary Committee stressed that it is for Congress, first, to enforce the separation of powers, and not leave this all-important task to the courts:
In the words of James Madison, the only way to keep the separation of powers in place is for “ambition . . . to counteract ambition.” Although the Courts play an essential role to serve as the “bulwarks of a limited Constitution,” our Republic cannot leave the all-important task of safeguarding freedom to the judiciary. To eliminate the dangers of non-enforcement, the Congress must counteract the President’s ambition. The failure to do so here will continue the one-way ratchet towards executive supremacy, and a dilution of the powers of the Congress, and the sovereignty of the people.
Today, as the House of Representatives voted on a clean bill, funding DAPA, Speaker Boehner punted this all-import responsibility to the courts.
“I am as outraged and frustrated as you at the lawless and unconstitutional actions of this president,” Boehner told House Republicans during a conference meeting Tuesday morning, according to a source in the room. “I believe this decision – considering where we are – is the right one for this team, and the right one for this country. The good news is that the president’s executive action has been stopped, for now. This matter will continue to be litigated in the courts, where we have our best chance of winning this fight.”
While I support Texas’s challenge to DAPA, it is very, very sad that Congress is willing to relinquish its constitutional prerogative to support the separation of powers. If they are not willing to fight, it is troubling to think that only the courts are left.
I’ll close with Justice Jackson’s concurring opinion in Youngstown:
The essence of our free Government is “leave to live by no man’s leave, underneath the law” – to be governed by those impersonal forces which we call law. Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.
Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.
Last, not first.