The unfulfilled promise of the Constitution in executive hands.

• Author: Pillard, Cornelia T.L.

INTRODUCTION

Many leading constitutional scholars now argue for greater reliance on the political branches to supplement or even supplant judicial enforcement of the Constitution. Responding to our national preoccupation with the judiciary as the mechanism of constitutional enforcement, these scholars stress that the executive and legislature, too, bear responsibility to think about the Constitution for themselves and to take steps to fulfill the Constitution's promise. Joining a debate that goes back at least as far as Marbury v. Madison, current scholars seek to reawaken the political branches to their constitutional potential, and urge the Supreme Court to leave the other branches room to find their constitutional voices.

Anyone contemplating taking the Constitution away from the courts, or claiming that the executive has power to act on a different view of the Constitution from the Court's, or even those who merely recognize a role for judicial deference to the political branches, must closely consider the political branches' actual practices. Yet the new theoretical scholarship has largely overlooked questions of how the political branches effectuate the Constitution, or how they might do a better job of it. Constitutionalism within the executive branch has been particularly ignored. One of my aims here is to illuminate that dim corner of our national constitutional practice.

The executive, in my view, has failed fully to meet the challenges of interpreting and applying the Constitution on its own. My focus here is on questions of individual rights that evade judicial review. As the Office of Legal Counsel's "torture memos" illustrate, there are substantial risks associated with executive decisionmaking on fundamental questions of executive power and individual rights. (1) My basic analysis is also relevant to the executive's approach to federalism and separation of powers, but the principal focus here is on how the executive understands and fulfills its constitutional obligations with respect to individuals. (2)

This Article builds on two bodies of literature that, thus far, have not significantly engaged one another: writings about executive-branch legal processes, and about the Department of Justice's Solicitor General ("SG") and Office of Legal Counsel ("OLC") in particular (the institutional literature), and a recent round of theoretical scholarship about extrajudicial constitutionalism (the theoretical literature). The institutional literature typically projects confidence that the SG and OLC provide the highest quality legal advice and representation to the executive, and that they scrupulously protect the Constitution against executive officials distorting the law to advance personal, partisan, or institutionally parochial agendas. These writings routinely point to the special character and traditions of those offices in representing not only the president and the executive branch, but also the United States and its people. The descriptions seem at first blush to support the enthusiasm of the extrajudicial constitutionalists, inasmuch as they highlight offices within the executive branch dedicated to high-quality constitutional analysis.

Meanwhile, the theoretical literature on extrajudicial constitutionalism suggests that the political branches have the capacity to effectuate the Constitution in ways quite distinct from the familiar, judicial version, and that, in part because of that distinctiveness, extrajudicial constitutionalism provides a normatively attractive supplement to or substitute for judicial doctrines. Scholars have pinned on the political branches hopes for a more democratic, less crabbed and formalistic constitutionalism, and one that reflects the political branches' distinctive capacities. Larry Sager, for example, sees the gap between the Constitution's normative commands and their judicial enforcement as enabling "robust participation by popular political institutions in the constitutional project of identifying and implementing the elements of political justice." (3) Robin West identifies congressional constitutionalism as potentially enabling the "the democratization--long overdue--of the Constitution itself," and as promising a less legalistic approach. (4) Robert Post and Reva Siegel contend that "[q]uestions of constitutional law involve profound issues of national identity that cannot be resolved merely by judicial decree," and that, therefore, "a legitimate and vibrant system of constitutional law requires institutional structures that will ground it in the constitutional culture of the nation." (5) Larry Kramer unearths an American historical tradition of popular constitutionalism that embraces "the democratic pedigree and superior evaluative capacities of the political branches" and that is resistant to the notion that the Constitution is mere ordinary law, formalistic and legalized to such an extent that only courts can be trusted with it. (6) Bruce Peabody believes "a deeper consensus" could result from greater engagement by nonjudicial actors in constitutional interpretation. (7) Mark Tushnet champions a "populist constitutional law," wrested from the courts' unduly formalistic reliance on text, structure and history, and interpreted instead in light of "all-things-considered, more practical judgment." (8) As Christopher Eisgruber has explained, "[e]xperience and responsibility are invaluable teachers in the art of governance, and there may be times when Congress or the Executive, by virtue of their connection to the people or their knowledge of what government can do, have the best insight into how the Constitution balances competing principles." (9)

Certain features stand out as normatively attractive to proponents of political-branch constitutionalism. As applied to the executive, the theoretical literature highlights the importance of democratic responsiveness and distinctive institutional capacities (e.g., the executive's ability to investigate facts and take positive action) in shaping a constitutionalism that differs substantially from what the courts devise. Also central for those theorists, although often implicit, is a commitment to constitutional--as distinct from merely political--guidance for decisions left to political actors. The Constitution in the executive's hands could be a counterweight both to a monopoly over constitutional meaning in the hands of judicial elites that is stunted by the courts' limited practical capacities, and to a politics of raw competition among self-promoting interests divorced from the public-regarding underpinning our fundamental law provides. Viewed in this way, executive constitutionalism holds untapped potential as a more democratically engaged and institutionally versatile way of keeping the American polity true to its best self.

Notwithstanding those provocative suggestions, however, the theoretical literature leaves us to wonder what, in concrete terms, the executive does or could do to give voice to its own constitutional perspectives. With the exception of a few hints about the importance of actual practice, the theorists of extrajudicial constitutionalism do not offer concrete explanations of how the values they articulate might actually be achieved. (10) We are left to contemplate whether and how the executive branch, controlled by an elected, democratically accountable president with many diverse, sometimes conflicting, goals and responsibilities, might also be counted on to fulfill constitutional obligations or abide by constitutional constraints at moments when popular sentiment might run the other way. There are reasons to question whether the executive branch is itself equipped to guide and constrain its own policy objectives by attending, for example, to the Constitution's allocation of some powers elsewhere, or its limitations on governmental power in recognition of individual rights. The routes to the more ambitious goals--such as bringing the executive's distinctive capabilities to bear on constitutional issues calling for mobilization of fact gathering, resource allocation, or other institutional capacities that courts lack--are even less apparent. How, we might wonder, does the executive develop its own understandings of any distinctly executive constitutional obligations on matters of poverty, discrimination, crime, abortion, information privacy, gun ownership, executive commitment of troops abroad, and even torture?

The theorists who praise the more democratic or politically responsive character of political-branch constitutionalism do not explain in any detail how the executive might police the boundary between constitutional principle and political opportunism. Was it executive constitutionalism, or just politics, when Solicitor General Charles Fried argued in the Supreme Court that Roe v. Wade was wrong and should be reversed, (11) or when, taking a rather different view in accord with the party of the president who appointed him, Solicitor General Seth Waxman argued against banning "partial-birth abortion" in Stenberg v. Carhart? (12) When the OLC's Walter Dellinger opined that President Clinton had constitutional authority to send United States troops to Haiti, (13) or that federal agencies could continue after Adarand v. Pena to engage in some race-based affirmative action? (14) When Solicitor General Theodore Olson and OLC head Jay Bybee asserted sweeping new interpretations of executive power to combat terrorism? (15) What about constitutional decisions on the thousands of matters that the executive deals with "below the waterline," where neither the public nor the president is paying much, if any, attention?

This Article speaks alike to those who favor and those who resist political-branch power to have the last word on constitutional meaning. Some of the extrajudicial constitutionalists go beyond championing the virtues of political-branch constitutionalism to argue for...