Republican Debaters Tout Departmentalism

by Michael Dorf

Last week's Republican presidential debate featured three main invocations of the Constitution as a blueprint for action in the respective (hypothetical) administrations of various candidates.

(1) Multiple candidates opined that the federal government now undertakes tasks that, in our federal system, ought to be left to the states. For example, Jeb Bush averred that the federal government ought not to have a role in setting curricula for primary education, while Mike Huckabee said that "there are a lot of things happening at the federal level that are absolutely beyond the jurisdiction of the Constitution," citing federal environmental policy and education policy. In general, the Tenth Amendment appeared to hover over the event, with the notable exception (in this as in other matters) of Donald Trump, whose chief complaint about the Affordable Care Act was that it creates (or more properly, leaves in place) separate state-by-state insurance markets, rather than one big national market. That's a reasonable complaint for the owner of interstate businesses to voice but it's quite out of touch with the Republican Party line. I suspect the only reason it didn't get more negative attention was that it was less out of touch with the Republican Party line than Trump's praise for Canadian single-payer health insurance.

(2) Rand Paul defended his objection to NSA bulk phone record collection by invoking the Fourth Amendment. The confrontation with Chris Christie on this point was perhaps the most heated of the night. Paul insisted that by making a showing before a judge, the government could conduct necessary surveillance of terrorists without infringing the privacy of law-abiding citizens. Christie responded (more or less) that the determination cannot be made ex ante--and although he didn't articulate it this way, that presumably this makes the bulk collection "reasonable" within the meaning of the Fourth Amendment.

I will come to the third appearance of the Constitution momentarily, but first, it's worth noting that both points (1) and (2) relate to powers of the president. As to (1), a president could work with Congress to change the law so that more responsibilities now undertaken by the federal government are devolved to the states. Even absent new legislation, a president has some prosecutorial discretion to under-enforce those aspects of federal law that he thinks infringe on state prerogatives or otherwise should be de-prioritized. (The Obama Administration's policies on marijuana and immigration, respectively, are examples, albeit ones that Republicans won't invoke for ideological reasons.)

Senator Paul also appeared to be on solid constitutional ground with respect to bulk data collection. As some courts have found, the program (as it existed until recently) is illegal.  Even if the courts were to find that bulk data collection is constitutionally valid, a President Paul could invoke the president's independent duty to construe the Constitution and go farther than the courts. At least that's one respectable view of the power of the president in matters of constitutional interpretation. My most recent musings on such "departmentalism" can be found here, with links to earlier discussions included therein.

But now we come to the Constitution's third major appearance:

(3) Mike Huckabee seemed to say that as president he would defy the Supreme Court. He said that as he reads the Constitution, zygotes, embryos, and fetuses (hereafter collectively "fetuses" for simplicity) are "persons" within the meaning of the Fifth and Fourteenth Amendments, and thus entitled to the protection of the due process and equal protection clauses. As a substantive matter, the reading is a bit curious with respect to due process because even assuming fetuses are entitled to substantive due process, the state failure to forbid private violence against them doesn't appear to amount to state action. But let's let that slide and applaud Huckabee for standing up for substantive due process. His equal protection argument is better, in any event. The idea would be that by protecting the born but not the unborn from private violence, the government denies the unborn equal protection.

I'm not now going to try to evaluate the merits of that argument. Let's say that a President Huckabee sincerely believes it. Can he act on it? In some ways, sure. He could propose and promote a constitutional amendment granting rights to fetuses, but in the very same answer Huckabee said obtaining a constitutional amendment involves "a long and difficult process," instead staking out a "bolder" approach.

What is that bolder approach? It appears that Huckabee has in mind acting as president on the assumption that fetuses have constitutional rights that trump any interests women have in abortions. But that runs squarely into conflict with current Supreme Court case law. A President Paul who does not engage in surveillance that the Supreme Court would allow does not create any conflict between the executive and judicial branches. By contrast, a President Huckabee who recognizes fetal rights the Supreme Court does not recognize in order to deny rights of women that the Supreme Court has recognized does create a direct conflict. This is indeed a bold assertion. It's a more potent form of departmentalism than anything touted by Jefferson, Lincoln, or their modern successors.

But Huckabee didn't sound like he realized that his "bolder" option was, in effect, advocacy of uncivil disobedience by a president. And given that Huckabee has said that the president generally has a duty not only to obey but to enforce laws with which he disagrees, apparently he is not, in general, a departmentalist of any sort.

There may be times when outright defiance of the courts is justified and it's likely that Governor Huckabee believes that abortion is such a monstrous evil that stopping it takes priority over the rule of law. But if so, he ought to say whether abortion is unique in this way or whether there are other monstrous evils that will have him not merely under-enforcing but violating the law in the unlikely event that he becomes president.