A federal judge has no power to usurp Executive Branch authority or dictate foreign policy to the president. //

In response, Boasberg called a hearing on Monday demanding to know exactly what time those planes took off, when they left U.S. airspace, and when they touched down in El Salvador — again, as if he, a lone federal judge, has authority to direct counter-terrorism operations that fall under the exclusive authority of the Executive Branch. The administration said simply that these were operational questions that it was not at liberty to discuss in a public setting. (In a jaw-dropping display of arrogance, Boasberg shot back that that his judicial powers “do not lapse at the airspace’s edge.”)

Just prior to that hearing, Attorney General Pam Bondi laid out the administration’s view of the larger question of whether the federal courts even have the power to intervene in this case. In a response and motion to vacate, Bondi argued that the plaintiffs in this case “cannot use these proceedings to interfere with the President’s national-security and foreign-affairs authority, and the Court lacks jurisdiction to do so.”

Bondi went on to explain that “just as a court assuredly could not enjoin the President from carrying out a foreign drone strike or an overseas military operation, or from negotiating with a foreign power to coordinate on such an operation, nor could a court lawfully restrict the President’s inherent Article II authority to work with a foreign nation to transfer terrorists and criminals who are already outside the United States.” The president’s invocation of the AEA, in other words, is non-justiciable and unreviewable.

What the administration is expressing here is a view of judicial and executive powers that more closely conforms to how the Founding Fathers understood them. Put simply, the Founders didn’t think the judiciary was the sole arbiter of what is and is not constitutional. While the courts, headed by the Supreme Court, indeed have an independent power to interpret and apply the Constitution, that doesn’t mean they are supreme over the other two branches, or the states for that matter. //

James Madison stated plainly the reasoning behind this more expansive view of separation of powers clearly in Federalist No. 49: “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”

That means the judiciary can’t simply dictate to the Congress or the president what they must or must not do according to the Constitution. As legal scholar Michael Paulsen has written, “the power of constitutional interpretation is a divided, shared power incident to the functions of each of the branches of the national government — and to instruments of state governments, and of juries, as well — with none of these actors literally bound by the views of any of the others.” According to this view, the Constitution itself, not the Supreme Court, is the supreme law of the land.

If that sounds like a radical view of the Constitution and the separation of powers, that’s only because we have strayed so far from how our constitutional system was first established, and have imported the alien concept of judicial supremacy that elevates the role of the courts over and above the political branches and the states.

It wasn’t always this way. Abraham Lincoln, for example, understood that the Executive Branch was not necessarily bound by the rulings issued by the Supreme Court but had its own inherent power to interpret the Constitution. Lincoln and the Congress both famously asserted what we might call constitutional supremacy in their defiance of the Supreme Court’s Dred Scott decision, by enacting and enforcing laws prohibiting slavery in federal territories — something Dred Scott expressly forbade. Lincoln also defied a Supreme Court decision purporting to limit his authority as commander-in-chief to hold enemy prisoners during the Civil War.