OPINION:
In its recent decision in Department of State v. AIDS Vaccine Advocacy Coalition, the Supreme Court inexplicably supported the authority of a single federal district court judge to undermine the proper, constitutional functions of the president.
Barely two months into his tenure as a presumptive “umpire” (aka judge), U.S. District Court Judge Amir Ali quickly cast aside his judicial robe, donned the attire of the plaintiff team and stepped up to bat. Having effectively assumed the role of lead counsel for the plaintiffs, Judge Ali wasted no time disregarding the separation of powers checks on his judicial authority.
The Trump administration issued an executive order pausing all foreign aid for 90 days as it conducted a review to ensure consistency with America’s national interests. Recipients of that largesse predictably howled like banshees even as they filed motions for temporary restraining orders to thwart the funding pause.
Finding that it had “not offered any explanation for why a blanket suspension of all congressionally appropriated foreign aid, which set off a shock wave and upended reliance interests” for various recipients of foreign aid, Judge Ali ordered the Trump administration to reinstate funding for all foreign aid contracts.
Since when did the alleged “reliance interests” of nongovernmental organizational dependents outweigh the president’s right to distribute foreign aid in a manner consistent with his Article 2 powers, including in his role as commander in chief, particularly in the absence of congressional mandates for the foreign aid disbursements?
The court’s lifting of its stay of Judge Ali’s order is hardly a total victory for the lower court. The order requires the lower court to “clarify what obligations the Government must fulfill” to make “payments … for work already completed.” The court’s directive is intentionally unclear as it once again splits the difference rather than correctly restraining the glaring excesses of the lower court.
Chief Justice John G. Roberts Jr. has long rightly advocated a judiciary to “call balls and strikes, not to pitch or bat.” A devout believer in the constitutionally limited role of judges, Chief Justice Roberts has often gone the extra mile in pursuit of that judicial ideal.
Unfortunately, some federal district court system judges, such as Judge Ali, darkly defy the chief’s principled mentorship.
The result?
On occasion, Chief Justice Roberts’ well-intentioned decisions may inadvertently encourage the judicial mischief of lower court judges who exceed their constitutional authority. Leading by example (rather than through coercion) may empower judges who do not subscribe to Chief Justice Roberts’ principled views.
Despite its supervisory role over the federal judiciary, the court missed an opportunity to restrain Judge’s Ali’s expansive views of his own power and send a message to other judges to respect the separation of powers.
If Shakespeare was right that what’s past is prologue, observers of the Roberts Court shouldn’t be surprised.
In nearly 20 years on the court, Chief Justice Roberts has been clear in prioritizing the court retaining its “legitimate function[s]” while emphasizing that “you don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide about what the appropriate decision is.”
Episcopalian in temperament and conservative in judicial philosophy, the chief justice is reticent in using his platform and authority to cajole others to believe and behave as he does. The vast majority of his tenure involved a court largely split along ideological lines, perhaps justifying a more restrained approach as he sought to be the glue holding together the institutional integrity of the court.
However, refusing to curb unwarranted power grabs by pugnacious lower court judges only encourages further bad behavior and bad law and erodes the institutional integrity of the judicial branch.
Had the court identified and rebuked Judge Ali’s foray into the executive branch’s responsibilities as the “self-aggrandizement” of his court’s proper, limited jurisdiction that it is (see Justice Anthony M. Kennedy’s dissent), the chief justice might better have preserved the judiciary for which he cares deeply and, too often perhaps, goes the extra mile to accommodate.
There was a time when the sunny optimism and principled realism of President Reagan, one of the chief justice’s heroes, would win the day. Today, traditional constitutional restraints are often ignored, including by federal judges who know better but prefer masquerading as fair and impartial judges despite their brazen political actions.
The chief justice, finally supported by a conservative majority on the court, should discard his collegial deference to the excesses of the federal judiciary by rejecting orders such as Judge Ali’s. By clearly restraining obvious lower court excesses, the court’s institutional legacy will be improved, not diminished.
• Paul R. Moore served as an assistant U.S. attorney, counsel to the assistant U.S. attorney general for civil rights, senior counsel in the Office of Legal Policy and chief investigative counsel at the Department of Education.
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