Departmentalism, Revisited

I somewhat cavalierly dismiss departmentalism in "No Way Out?" (05 Dec 2004), where I address alternative ways to stop "The Erosion of the Constitutional Contract" (23 Mar 2004). William J. Watkins Jr. explains departmentalism by way of example:

Departmentalist theory is perhaps best examined in the context of President Jefferson's approach to the Sedition Act. Upon entering office, Jefferson ordered the cessation of all federal sedition prosecutions and he pardoned those who had been convicted. In 1804, Jefferson received a letter from Abigail Adams criticizing his handling of the Sedition Act controversy. Mrs. Adams argued that because the judges had upheld the Sedition Act, President Jefferson had overstepped his constitutional bounds when terminating prosecutions and pardoning offenders.

In a polite response, Jefferson reminded Mrs. Adams that "nothing in the constitution has given [the judges] the right to decide for the executive, more than the Executive to decide for them." Both branches, continued Jefferson, "are equally independent in the sphere assigned to them." Jefferson recognized that the judges, "believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the constitution." However, this did not bind him when performing his duties as chief executive. Because he believed the Sedition Act was unconstitutional, he "was bound to remit the execution of it."

Departmentalism may be alive and well, at least with respect to John McCain's status as a "natural born Citizen" under Article II, Section 1, of the Constitution of the United States. As Matthew J. Franck argues, it is not up to the Supreme Court to decide McCain's citizenship status (as some would have it), it is up to the Electoral College and Congress. And that will be that.