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A Time for Congressional Hardball

The fundamental constitutional question presented by the case of United States v. Texas is not whether the President is constitutionally required to enforce immigration laws (he is), but whether the Supreme Court is constitutionally empowered to police every constitutional dispute. If it decides to do the work of Congress and restrain the executive, it will, more than it did in Cooper v. Aaron (1958), proclaim a doctrine of judicial supremacy over constitutional questions.

None of this is to defend the constitutionality of an executive order whose explicit purpose is to evade the Article II requirement to “take care” that the laws be faithfully executed. It is to assert Congress’ responsibility to take care of its own institutional prerogatives. This sometimes entails taking unpopular positions—hardball tactics like declining to authorize appropriations or confirm appointees unless the President, too, agrees to do his duty.

Instead, Congress is hoping the Court unfolds its robes for legislators to hide behind. If the Court agrees, it will only encourage more flaccidity from Capitol Hill.

It is true that this case is brought by states, not Congress, though certainly it is the latter’s behavior that induced it, and unquestionably the use of states as plaintiffs was itself a tactical choice. It is also one rife with problems, for the fact is that the states, however right they may be on the merits in this case, are not entitled to a proper enforcement of the separation of powers, which is what this dispute concerns.

To be sure, non-enforcement of immigration laws affects the states. But they are routinely affected by federal policy, and state officials routinely decry it. On policy grounds, they often are right to. They may appeal to the their citizens, who are “common constituents” of the state and federal governments, for help in urging changes in what they oppose. But they are not entitled to determine federal immigration policy, however much it may affect them by making individuals eligible for subsidies and services that the states (voluntarily) provide, like driver’s licenses and education.

Could, for example, the plaintiff states have sued if Congress had passed a law identical to the executive order the President signed? Such a statute, too, would have resulted in costs the states would have borne. State officials could reply that Congress has in fact not passed a law. But there’s the rub: The states’ complaint is not the content of the policy. The dispute here, and the impasse over federal immigration law, are wholly internal to the national government.

The plaintiffs do, in fairness, simply desire enforcement of existing immigration policy as determined by Congress. But the character of that policy is being wrangled over by the political branches of the national government. And in that fight—this is the crucial point—the legislature has declined to exert so much as a fiber of constitutional muscle. Congress has abdicated (unless adverb-laden complaints count as push-back).

To give the states standing in such a dispute would, in Calhounian fashion, reverse the order of the constitutional charter as delineated in Article VI. And the Supreme Court, in awarding that standing, would assert supremacy over the other two branches—which would, in turn, upset the internal balance of the regime.

That regime, with apologies to Chief Justice Roberts, is not based on the Supreme Court’s playing umpire and calling balls and strikes in a political game between the two elected branches. Roberts’ conception ultimately places the justices in control of the competition. What the Constitution requires is that each branch have the “means and motive” to defend itself, not recur to an umpire. Not a single time does Federalist 51 mention the power of judicial review, much less identify it as the keystone—the police force—of the separation of powers. That essay is concerned wholly with combat between the executive and the legislature.

Publius’ lesson is to beware power, wherever it lies, which nowadays is not with the “impetuous vortex” of the legislature but rather with a comparable vortex at the other end of Pennsylvania Avenue. The legislature, holding the purse, is amply equipped for the fight.

There is no question but that Congress would fail to muster a veto-proof majority to overturn the President’s executive order on immigration. That itself is a sign of infirmity—that loyalty to the President should trump loyalty to the institution. More precisely, loyalty to staying in office has come to be more important than having any power while in the office.

It would be a failure of imagination, though, to suggest that an override effort would be the only means of checking the President. Just as the Congress would need the President’s signature to pass a law replacing the executive order, there are abundant instances in which the President needs things from Congress: spending, confirmation, other priorities. Congress can withhold them. That might require taking temporarily unpopular positions.

This brings us to the Court: Congress wants the justices to do what it lacks the fortitude to do. And why not? Why should Congress exert itself when the Court will act for it? For the justices to decide this case in favor of the states would encourage that behavior: a constitutionalism of arguing calls at the plate rather than playing the game.

It would also establish the balls-and-strikes model of judicial supremacy far more sweepingly than Cooper’s declaration that “the federal judiciary is supreme in the exposition of the law of the Constitution.” That case held the states to federal rulings. United States v. Texas, if it establishes the judiciary as supreme in a separation-of-powers dispute between Congress and the  President, would reach much further. Those who understandably oppose the President on policy and constitutional grounds here should beware the more consequential precedent this case would set for an unbridled Court.

So what are the justices, having gotten the case, to do other than to exercise their best constitutional judgment?  Indeed, that is what Justice William Brennan would say. Brennan, in his famous/infamous 1985 address at Georgetown, said that once a judge gets a case, he or she has no choice but to “penetrate to the full meaning of the Constitution’s provisions.” Judge J. Harvie Wilkinson of the Fourth Circuit, by contrast, writes: “Especially in constitutional cases, the first question should be not ‘What do I decide?’ but ‘May I in fact decide?’”

It is a myth, and one that far more partakes of a Brennan than a Bork, to suggest that every case demands the finality of a judicial decree. In United States v. Texas, the Court could simply observe that it is being asked to intervene in a dispute not between the state of Texas and the federal government but between the executive and legislature. Consequently, the states have no standing. The Court has no responsibility. Congress does. It should emerge from behind the judicial robes and exercise it.

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