Keith Whittington of Princeton University gives an overview on the Constitutional issue of departmentalism via Lawfare:
“Departmentalism” is the somewhat archaic name for the theory that each branch, or department, of the government has an equal and independent authority to interpret the Constitution for purposes of guiding its own actions. While the term “departmentalism” was likely coined by the constitutional scholar Edward Corwinduring the battle over the New Deal, the concept itself has deep roots within American constitutional history. …
As Jefferson later emphasized to the Virginia jurist Spencer Roane, who was doing battle in the press with Chief Justice John Marshall over the court’s opinion in the McCulloch v. Maryland, “each of the three departments has equally the right to decide for itself what is its duty under the Constitution, without any regard to what the others may have decided for themselves under a similar question.” Otherwise, the Constitution “is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” Andrew Jackson drew on such arguments directly, but even Abraham Lincoln, Franklin Roosevelt and Ronald Reagan nodded to departmentalist doctrines.
Departmentalist doctrines have sometimes been invoked by those who felt the courts had misinterpreted congressional powers under Article I of the Constitution—as the Jeffersonians did. In such cases, proponents of departmentalism argued that the courts had allowed Congress to do by statute what it had been barred from doing under the Constitution. Under such circumstances, presidents with a stricter understanding of congressional powers insisted on their duty to act on those beliefs and keep Congress within its proper limits.
It’s an interesting conceptual question regarding the American form of government. I mean, we’re taught that the three branches of government are co-equal, but there are implications that catch me by surprise. After all, the judiciary has the final word on the Constitution and the law, and doesn’t that mean they’re truly the superior branch in the government?
But how does one measure equality? Only the legislature can truly make laws, while the Executive has a few powers similar to laws, and the judges have to be extraordinarily creative to make any real laws – and are always subject to superior courts reversing those judgments. The entire equation becomes a matter of the time element, checks by a whimsical populace, and admission that powers may not be precisely co-equal – but are inferior or superior to the others depending on the situation.
