A recent Washington symposium celebrated President Harry Truman’s 1948 signing of Executive Order 9981, desegregating the U.S. armed forces. Shocked by violence against World War II veterans of color who had just returned from serving their country, the 33rd president acted unilaterally under his commander-in-chief authority. Truman knew that Congress’s southern Democrats would not act, and he ignored his advisors who predicted a catastrophic response among voters to the new racial policy. Yet Dewey didn’t defeat Truman, despite the Chicago Tribune’s contrary headline.

Only the most incorrigible racist would today oppose the content of Truman’s 1948 policy that reshaped the military. As we ponder contemporary presidential power, how does the United States leave room for executive actions that will become celebrated historic landmarks, leading to “a more perfect union,” while maintaining the constitutional boundaries that preserve our republic?

How does the United States leave room for executive actions that will become celebrated historic landmarks, leading to “a more perfect union,” while maintaining the constitutional boundaries that preserve our republic?

Focusing on the 21st century’s two Republican and two Democratic presidents, an objective observer can take heart that many of the system’s checks on concentrated power remain intact. The electoral process, judicial review, legal precedents, executive orders, Senate confirmations, statutory policies, and federalism are grinding along—admittedly, with partisan sand in the gears, but with results that so far have limited tyranny, including of the majority. The latter frustrates the electorate, and rightly so, but the complex Madisonian scheme of ambition counteracting ambition is functioning.

Global War on Terror

Following the September 11 terror attacks, the Supreme Court persistently checked, on behalf of individual rights, efforts by the executive and the legislature to empower the federal government. President George W. Bush sought more extensive executive power after those attacks, but his administration lost virtually every major case before the Supreme Court involving enemy combatants’ due process rights. At the time, 2004 to 2008, the Court had more ideologically diverse members than today, divided almost evenly between liberals and conservatives, with two unpredictable swing voters. The justices were more representative of the American political spectrum’s array of positions than they are currently. Arguably, such variety provides the Court with more legitimacy and more opportunities to balance presidents of varying ideological predilections.

The justices were more representative of the American political spectrum’s array of positions than they are currently.

Hamdan v. Rumsfeld (2006) produced a five-justice majority, led by Justice John Paul Stevens, to void Bush’s 2001 order establishing military commissions to try Guantanamo detainees. The Republican-led Congress subsequently responded by passing the 2006 Military Commissions Act, signed by President Bush. Back to the judicial branch came challenges to the law from enemy combatants. In 2008, Justice Anthony Kennedy led the Court’s four more liberal justices in striking down a portion of the act that denied the right to habeas corpus challenges. Democrats in Congress amended the act in 2009 to address the Supreme Court’s ruling.

Immigration

On the issue of immigration, several successive administrations used executive actions to advance a policy approach where legislation might have been preferable but difficult to enact. In these cases, the Supreme Court tended to show restraint, instead allowing Congress, states, and future administrations to respond to presidential executive actions. Madison would applaud this complex set of factions, made possible by our republic’s “extent and proper structure.” When the Court did act, it chose to focus on administrative process as opposed to the substance or core presidential powers underlying those actions.

In these cases, the Supreme Court tended to show restraint, instead allowing Congress, states, and future administrations to respond to presidential executive actions.

President Barack Obama, frustrated by Congress’s failure to achieve comprehensive immigration reform, resorted to executive action to protect undocumented immigrants brought to the United States as children from deportation and to allow them to obtain work permits (Deferred Action for Childhood Arrivals [DACA] program). He then expanded the executive policy to cover their parents (Deferred Action for Parents of Americans and Lawful Permanent Residents [DAPA] program).

Backlash against the president’s unilateralism was swift among congressional Republicans, and a variety of litigants challenged it in federal courts: 26 states with GOP governors, county sheriffs, conservative interest groups, and members of the president’s own executive branch (i.e., 10 Immigration and Customs Enforcement agents). Once again, Madisonian factions arose to try and limit presidential power.

Subsequently, President Donald Trump’s attorney general announced its repeal seven months after the 2017 inauguration. Liberal and religious interest groups protested, and immigrant-friendly states and universities filed suit. This “ping-pong” action on executive orders reveals their paradoxes. Presidents can easily counter predecessors’ unilateral actions but at the cost of producing instability in public policy.

Presidents can easily counter predecessors’ unilateral actions but at the cost of producing instability in public policy.

In 2020, the Supreme Court, with conservative Chief Justice John Roberts leading four liberal colleagues to form a majority, ruled in Trump v. NAACP that the Trump administration’s recission of DACA violated “the procedural requirement that it provide a reasoned explanation for its action.” The chief’s opinion then embraced another check, which jurists and scholars label “judicial self-restraint.” Because the federal judiciary is the least democratic of the branches, it maintains its legitimacy by corralling itself. “We do not decide whether DACA or its rescission are sound policies,” declared Roberts. Their “wisdom,” he asserted “is none of our concern.”

At least Trump could take solace that the Court upheld his executive order banning travelers from countries with a history of terrorism against the United States. But the deference shown by the Court to the executive runs the risk of encouraging future unilateral actions by presidents and does not prevent subsequent chief executives from rescinding them. President Joseph Biden revoked the so-called “Muslim ban” and fully reinstated DACA on Inauguration Day 2021.

Student Loans

Most recently, a more conservative Supreme Court ruled on federal administration of student loans. The Court—whose balance had shifted further to the right thanks to a Republican president (Trump) and a Republican-controlled Senate (under Mitch McConnell)—invalidated President Biden’s policy forgiving $400 billion in student loans. The Biden Education Department responded by applying previous policies that assist debtors. The Supreme Court may again determine on appeal whether this administrative action also exceeds executive authority.

Checks and Balances?

These illustrative checks do not indicate that powers among the branches are perfectly balanced. Constitutional scholar Henry Abraham outlined cycles of legislative, executive, or judicial supremacy throughout American history. Currently, we face clear fault lines over presidential dominance. We may be moving into a period of a conservative Court circumscribing a strong liberal executive. Will the executive push back? Are we in for an FDR-style fight if President Biden’s executive actions can’t pass muster on a Trump Court?

Currently, we face clear fault lines over presidential dominance.

We also do not know whether the current conservative Court will show political allegiance to a future conservative president. Or will the Supreme Court serve as an effective check even when of the same ideological ilk as the president? What if two-thirds or half of that group were appointed by the incumbent president, which would be the case if Trump were reelected? Would they all sit, and not recuse, in a Trump case arising from any of his indictments? Would they sit but vote against him, as Justices Warren Burger, Lewis Powell Jr., and Harry Blackmun did against President Richard Nixon in the Watergate tapes case?

Likewise, will a transgressive former president obey the Court? The 45th president allegedly attempted to defraud the American electorate, obstruct the voting process, and deny citizens their civil rights, for which he now faces federal criminal prosecution. Trump may be unorthodox; however, so far, he has yet to ignore a state or federal summons to appear for arraignments.

How much the executive and legislative branches further challenge the Supreme Court may be a function of the tribunal’s approval ratings. In the aftermath of an unpopular abortion ruling, the unprecedented leak of that opinion, and questions about justices accepting gifts from partisan donors, the Supreme Court’s ratings are the lowest since pollsters began recording them in the early 1970s. Will the American people view its decisions as legitimate? Senate Democrats have proposed a legislative check on the Court’s ethical lapses, but justices and Republican legislators believe that effort violates separation of powers.

Will the American people view its decisions as legitimate? 

Herein lies the existential question: Rather than focusing on the jagged ideological fault lines that divide us over policy, might we discover bright boundaries that protect each branch’s constitutional role of checking in the short run and balancing in the long term? We can be guided by the two mottos carved on the front and back pediments of the Supreme Court’s Marble Temple: “Equal Justice under Law” and “Justice, the Guardian of Liberty.” Since the New Deal era, the nation’s highest court has leaned toward equality. Its recent ruling voiding race-based affirmative action in university admissions indicates a turn toward liberty. Will this renewed emphasis on freedom influence how a majority of the justices view presidential power?