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.

Reader Discussion

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on February 01, 2016 at 10:46:04 am

"...should beware the more consequential precedent this case would set for an unbridled Court."

Yes, but:

Didn't the Court in a somewhat recent EPA case (Massachusetts ?) "ordain" the doctrine of "special State solicitude" in which the States were attempting to force the Executive Branch to "see that the laws were faithfully executed?. Apparently, these states did not feel that the EPA was doing all it should have or could have done under existing regulations. It would seem as if the precedent already exists.

It is rather distressing that the Legislative is so corrupt as to value (re-) election over constitutional duty - but does anyone think that they will suddenly (re)develop such an awareness of their proper role? I think not.
It is distressing to recognize that here one must argue on consequentialist grounds - but what else is one to do.
Arguing on grounds of Federalism is equally suspect, is it not?
Some questions:
While the states are not free to prevent ingress of citizens from other states, are they not able to prevent ingress of non-citizens, one could ask. I suspect that this argument would be disposed of rather quickly.
While the Congress is empowered to establish rules for uniform naturalization, is it also empowered to determine where those persons will be settled? what state benefits they may receive? or eligibility for such benefits? I suspect that these arguments would also be disposed of quickly.
So what is one to do?

"Especially in constitutional cases, the first question should be not ‘What do I decide?’ but ‘May I in fact decide?’” - or perhaps, we may add: "And if I do decide, how may this be done on a "non-constitutional" basis," something that does not reach to fundamental constitutional questions.
After all, the Chief Black Robe pulled off this sort of legerdemain in the ACA cases, where in order to first hear the case it had to be argued that it was not a tax - only to have ACA approved because it was a tax. Do we not have faith in the "cleverness" of the Black Robes to navigate their way through this issue?

At what point does the "infirmity" of the Legislative become a "justiceable" matter for the States? - or the (newly reconstituted) prerogative powers of the Executive become so?

Quite a fine mess, you've gotten me into, Stanley!

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Image of gabe
on February 01, 2016 at 12:08:16 pm

The "myth" being perpetuated is that we are dealing with issues of a Constitutionally delineated government.

We are NOT. We are dealing with government (powers) of a Federal Administrative State [FAS], which lacks limiting principles and which provides the instrumentalities for executive powers.

The legislature and its members now draw most of their significance from their intermediation with, influences upon, and enhancements to the FAS. They have constructed a Golem to do their assigned tasks, which they have no desire to resume and afflict the comforts of office.

So long as the executive can command that Golem (which is, in truth, made up of humans and their motivations) the FAS will govern without limits. If the veil of "myth" is to be removed and the legislature is to take command of their Golem, together with the responsibilities for such command, it is not likely to be by direction of the judiciary (which is engaged with the "myth").

It remains to be seen whether the electorate will act (sufficiently) to establish a legislature to take command. That may require "Virtue" which was implicit in a Constitutionally delineated government.

There are dust clouds on the horizon. Perhaps "the cavalry is coming;" just as likely it is simply "more Indians!"

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Image of R Richard Schweitzer
R Richard Schweitzer
on February 01, 2016 at 19:28:55 pm

The Supreme Court is a co-equal branch with the other two national branches. It is not "up-ending" the natural order of things for the Court to stike down the act as unconstitutional, in fact that is exactly the Courts duty to do if they do believe it to be unconstitutional. Yes, it is true that congress is failing at their duty to withhold funds from an agency which is acting unconstitutionally, or pass a law making it explicit that the unconstitutional acts should not be done(and overriding any veto). But the failure of congress to do its duty in supporting the constitution does not mean that the courts must also fail to do their duty. The Courts are not the only or the supreme interpreter of the constitution. Each of the three braches much affrivativly say something is constitutional before it is valid. If any of the three braches thinks an act of government is unconstitutional then that act of government is prohibited. Congress can express its will by passing a law (and overriding any veto) or withholding funds. The president can refuse to enforce a statute that he believes is unconstitutional, and the Courts can give their opinion that an act is unconstitutional. The Courts cannot order the congress to change the law is passed (and if they misinterpret a law the congress can make it clear) nor can the Court order the congress to appropriate money, and the Court cannot order the president to enforce the law against any specific individual. Those are the limits of the Court so that it cannot prevent the other branches from equally determining the meaning of the constitution just as much as the Court. All three have the power to stop an act of government, but government can't do anything unless all three agree it is constitutional. That is why they are all co-equal and while the Supreme Court is not the final arbitrator of the meaning of the constitution, nor is it in any way prohibited from invalidating any act that it believes is unconstitutional.

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Devin Watkins
on February 01, 2016 at 20:04:49 pm


I am in substantial agreement with your comments. However, while it is true that the Court (the use of singular here will be clearer later) can not order the Congress to change the law it has passed, it clearly believes that IT can change the Law via its own unique interpretation (see ACA decisions; yes, HHS did the changing but the courts rather creative deference effectively changed the law); nor may the Congress be commanded to allocate funds for Program X,Y,or Z - unless of course one happens to observe the workings of certain lower Courts (plural) as was done in the Missouri school funding *diktats* and as is currently happening within my home state of Washington, where following the McCleary decision, the Washington State Supreme Court has not only repeatedly told the Legislature to increase funding (and have been somewhat TOO specific in their (monetary) instructions BUT have also levied a fine of $100,000 per day against the Legislature.

Talk about chutzpah!!!!

Also, while in theory, any branch may prevent the passage / initial implementation of a law, in practice it is only the Judicial which can declare it void as unconstitutional. If the Executive inherits a law passed by a previous Congress and signed by the previous Executive, he is not able to simply deem it void. What has been the response of those who have tried? Not very successful. No, in practice only the Judicial gets to say what is unconstitutional. Let us suppose that the Executive Branch Agency promulgates an Admin Law. The Congress thinks it is unconstitutional - can it simply so declare and thereby make it invalid. Yes, it can deny funding - but is that the same as a recognizable claim that the Admin Law is unconstitutional - or a calim that the Legislative is exercising a power to determine constitutionality - or is it simply an exercise of 'policy" considerations. No, the Executive will do what he may to keep funding alive without having to contend with the rather different set of problems arising from a Judicial determination of unconstitutionality.
I wish it were not so - yet, it appears to be so.

I do think, however, that the Court should do as you suggest and rule on this matter. simply because the other branches are corrupt, it does not follow that the Court ( even if corrupted by its own sense of power) ought not do its duty to review a case. What is more, I suspect that Mr. Weiner is wrong here; has not the Court previously ruled on "separation of powers" issues and on Federalism - why is this case so different.

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Image of gabe
on February 02, 2016 at 09:20:02 am

Frankly, I don't understand all the heavy breathing here. From Greg's post:

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.

I doubt the premise--but, consequently? Recess appointments are an executive-legislative brawl; "consequently," Noel Canning had no standing? Same is true of removal; "consequently," Myers and Humphrey's Executor had no standing? Youngstown, anyone? There are reasons to debate the states' standing here (constitutional and zone of interest) but the separation-of-powers stuff isn't among them. The states argue that the executive lacked an affirmative legal basis for its actions. That's what courts are for; and if the answer turns on the Constitution, so be it. Whether the states are a proper plaintiff in this case is a separate matter.

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Mike Greve
on February 02, 2016 at 11:48:05 am

Let's go back to the "thesis" of "where" a particular governmental task **is** to be performed; by the executive or by the legislature.

Gabe questions whether the judiciary has that practical function of assignment.

Greg Weiner looks to the Constitution and the Court's functions (since Marshall) for assignments.

Meanwhile, back at the ranch, the executive is directing (and using) the FAS, which the legislature created (retaining feeding control), with no Constitutional limitations.

The legislature does not want, and will not exercise responsibilities for the FAS.

All the rest is "Myth."

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Image of R Richard Schweitzer
R Richard Schweitzer
on February 02, 2016 at 12:38:00 pm


you are, of course, correct! It is rather questionable whether the Court(s) should exercise certain functions. Unfortunately, they like their alleged "co-equals" appear to exercise or fail to exercise certain powers for what at times appears to be nothing more than a current judicial fancy. Ahhh! Originalism demands X; Living Constitutionalism demands Y; Judicial deference (or engagement) demands Z.

I do so love "myth" - properly mythologized a society or culture may sustain itself. Improperly done, a society may somewhat less joyfully dance around its mythological Maypole, albeit one of somewhat uncertain design, height, and girth. Still there is some identifiable "center"

Absent all myth, or when circumstances are such that it has receded from the peoples consciousness, there is no center - only a vacuum. What new mediating force will "swoosh" in?

Where are we? It can be said that the Executive has executed an exquisite "swoosh." Some would give it a 9.7 for the landing. I believe it was the Legislative that awarded these high scores.
Shall the Judicial follow with similarly high marks?

I suspect that Mr. Weiner's approach would allow them to do so, if not encourage them to award even higher grades for what some would argue is a rather suspect landing.

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Image of gabe
on February 02, 2016 at 22:14:53 pm

I disagree, if the Executive inherits a law passed by a previous Congress and signed by the previous Executive, that he thinks is unconstitutional he is able to simply deem it void. In fact it has been done. (1) He refuses to enforce the statute (does not bring anyone before the Courts for punishment for violating the statute), it is not the law if it is unconstitutional and so he has no duty to enforce it, (2) anyone currently in prison for the law he can pardon. Thomas Jefferson himself did this for the Alien and Sedition Acts issuing a blanket pardon for everyone convicted. And he was perfectly successful.

If the executive branch does something with admin law that congress thinks is unconstitutional, congress can pass a law (and override a veto) declaring it unconstitutional (as well as deny funding because it is unconstitutional). Just because they can deny funding or pass a statute for policy reasons doesn’t mean they cannot also do it for constitutional reasons (and they have a duty to do so for constitutional reasons based on their oath of office that they do not have for policy reasons).

Yes the Court can misinterpret the statute, but if so congress should be able to get a majority to correct the interpretation of the court. Only if congress itself at least partially agrees with the court or the president also thinks the Courts interpretation is correct is it much harder, but even still congress can override the presidents veto, so only when congress (at least partially) agrees with the court can the Court change the meaning of the statutes. There are many liberals in congress that think the Court was 100% right as to the interpretation of the ACA, and as much as I think both the Court and those liberals are wrong, it is important that congress is split.

Both the Missouri and Washington (like the NJ cases that are similar), are all state courts and not bound by the judicial limits set by the federal Constitution on article III courts (those judiciaries are created and limited by the state constitutions). But the answer should be really simple, if a Court attempts to issue a $100,000 per day against the Legislature, the legislature should refuse to pay the fine. What is the Court going to do? It’s a lot harder if you have the federal judiciary attempting to do it to states (because potentially you could have federal officers sent in to collect the fine), thankfully that has never happened as far as I am aware of, but even so that would be an executive branch assisting the Court in its execution so it wouldn’t just be the Court’s own authority.

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Image of Devin WAtkins
Devin WAtkins

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