Frank J. Colucci

Volume 70, Issue 5, 1141-1174

This symposium Article situates Justice Anthony M. Kennedy’s final concurring opinion in Trump v. Hawaii within his larger jurisprudence. Part I traces its separation of powers foundations by examining then-Judge Kennedy’s Ninth Circuit opinions in Chadha v. INS and Beller v. Middendorf. While in Chadha Kennedy shows sensitivity to how congressional action can threaten personal liberty, in Beller he expresses substantial deference to executive decisions about military necessity and foreign policy at the expense of personal liberties. Part II reviews several early Supreme Court opinions, where Kennedy articulates a judicial duty to police separation of powers as essential to liberty, yet expresses willingness to protect presidential power from both direct and indirect threats from Congress and the courts. Part III reexamines Kennedy’s opinions in enemy combatant cases after 2001, culminating in Boumediene v. Bush. These opinions, often read as a rebuke of executive power, in fact express his primary concern with both preserving personal liberty and preventing congressional abdication of its powers. Part IV surveys later Kennedy opinions leading to Trump that uphold exclusive executive power—especially in areas of immigration and foreign affairs—from the burdens of legislative and judicial intrusion even at the cost to individual liberty. Part V focuses on Kennedy’s final opinion in Trump, where he characteristically votes to protect presidential power and ensure that neither Congress nor courts should “intrude on the foreign affairs power of the Executive.”

This Article’s conclusion explores the tension Kennedy explicitly recognizes in Trump between two main strands of his jurisprudence: protection of presidential prerogative in foreign affairs and the judicial obligation to define and enforce personal liberty. His “further observation” in Trump, recognizes how liberty relies ultimately on politicians exercising statesmanship and public confidence that they act with fidelity to larger constitutional values. Despite promises expressed in his earlier opinions, Kennedy in Trump finally concedes that neither constitutional structure nor courts enforcing law are sufficient to secure liberty.