Constraining Executive Illegality Through an Advisory Court

Under the Obama Administration, the executive branch has engaged in numerous actions where it has refused to follow statutes – either on the grounds that the statute implicitly allows it discretion or that the Constitution renders the statute unconstitutional.  As has often been noted, these actions are often quite questionable on a legal basis.  But there is little that can be done if no one has standing to challenge the action in court unless the Congress is willing to bring impeachment charges, which is generally politically unattractive.  In a previous post, I discussed using anti-severability provisions in statutes.  While that can help, it will not deter a very willful President.  Here, then, I have another statutory reform.

Congress should pass a law that would establish a “court like entity.”  The entity would consist of 5 judges, to serve for 10 year terms, selected from retired judges who had served on the U.S. Supreme Court or the federal circuit courts.  One of the judges would be appointed by the President with the advice and consent of the Senate.  Two would be appointed by the Speaker of the House, with the advice and consent of the House of Representatives.  And the final two would be appointed by the Senate Majority Leader, with the advice and consent of the Senate.  The appointments would be staggered, so that a new judge would be appointed each year.  The court should also be required to be bipartisan, with three members of one party and two of the other party. 

The court would have “jurisdiction”concerning all issues of federal law, especially those where it is likely that no person will have article III standing in the near future.

The “court like entity” would not be an actual court.  Its judgments would not be binding, but would simply be advisory.  Since the judgments would not be binding, the appointment process and the lack of standing, which would normally render it unconstitutional, would not defeat its constitutionality.

Since the court would not have power to issue binding judgments, one might ask what is the point?  But if the members of the court were from both political parties and were well respected former judges, its decisions would have moral authority.  A decision reach by such a court with former justices and judges of both parties would make it more difficult for a President to simply ignore it.  For example, if Democratic justices and judges concluded that an action by President Obama action was unconstitutional, it would be more difficult for the Administration to dismiss it as simply partisan.

One might try to go further and establish an enforcement mechanism.  This is more difficult, both institutionally and constitutionally.  But one possibility is to provide that if the advisory court concludes that an action is unconstitutional, then the administration has the choice to reverse its decision if that is still possible.  If the action has already been completed, the administration has the choice to announce that it now accepts the advisory court’s decision.

If the administration takes neither action, then there could be a House and Senate rule that requires a reduction in some type of statutory authority that the administration cares about.  For example, the appropriations for White House operations might be reduced by 10 percent from the previous year.  As a legislative rule, the houses would have authority to ignore this rule, but such rules are often followed.  This is especially the case when a rule is enforced by a point of order that can only be waived by a supermajority, such as 3/5 or 2/3 of the house.  While a majority would probably have authority to ignore or repeal that supermajority requirement, this is rarely done.

Since a majority of each house would not be bound by the rule, there is a reasonably strong argument that the arrangement would be constitutional.  After all, the Congress can choose to reduce funding for the President if it believes the administration is behaving improperly.

Reader Discussion

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on December 26, 2015 at 22:00:35 pm

I know that state courts in early America issued advisory opinions, did the SCOTUS ever issue advisory opinions? Would there be any merit to allowing it to? I assume the SCOTUS already has too much on its plate.

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Image of Kevin
on December 27, 2015 at 10:21:24 am

".. either on the grounds that the statute implicitly allows it discretion or that the Constitution renders the statute unconstitutional."

Well it usually does allow for considerable discretion! And for the Legislative, that is the sheer beauty and cleverness of the thing. Our elected Masters may be seen to be "for (name your poison here) and general good government" without having to do the work attendant upon formulating sound policy prescriptions.

No, in fact, what we have reduced ourselves to is the legislating of *good intentions* - all the better to garner votes, my dear and obtain positive media coverage.

Yet, he who binds has the ultimate say; the Legislative has now seen fit to delegate to the Fed Admin State the power to bind the citizens - and bind they will!!!!
So now we would have a Court that cannot bind, whose judgements / decisions would be deemed another data point and nothing more. Listen if you wish - or not!!! I do not see the utility of this new function nor do I see an FAS that would be responsive to the non-binding *commentary* of a neutered judicial appendage.

In the Yakus paper recommended by Professor Greve, mention is made of an Emergency Court; from the perspective of the citizenry this Court was useless. However, in the rare instances where this Court would actually rule against the Government, its decision WAS binding. Now we are to consider an even more fickle "protection" for the citizenry against the arbitrariness of the FAS?

And who is to say that this new court will not also be "captured" (look to the FSA court).

No, how about we compel the legislature to legislate substantive binding regulations; where clear precision is not possible, leave it to Congressional Committees (staff, actually) to "refine / define" intent.
Let the Executive - execute the clearly stated "binding" requirements of Congressionally (and constitutionally legitimate) approved legislation.

Heck, bring almost all of the current agency staff under Congressional control - except those staff that are specifically engaged in enforcement activities. Drafting of regulations, interpretations, etc would need to come out of a congressional committee. Seems strange, you say! How strange did the current FAS arrangement seem to our forebears.

Ouvrez les tetes!!!!!

Now off to a Seahawks game!!!!!!

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Image of gabe
on December 27, 2015 at 10:22:46 am

Oops - that should be: "look to the FISA court"

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Image of gabe
on December 28, 2015 at 09:47:24 am

Come on...A solution to the problem you correctly identify is not to create some sort of extra-curricular court that is partially dependent on a tenuous political system and "well respected former judges." This seems very naive, if not amateurish way to address a problem that needs more thought and political capital.

My own proposal is to amend the Constitution. Make conviction of an impeached member of the Executive easier for specifically defined misdemeanors, like willful neglect of an act of Congress; willful issuance of Executive Orders to circumvent enumerated Congressional powers, etc. The flaw in the impeachment articles is that the Founders have not defined misdemeanors that can trigger an impeachment hearing in the House; fix this, an much of the extra-legal activities of the Executive Branch will be arrested, regardless of Standing.

Of course, to amend the Constitution is no small feat. But start by using the Presidential debates as a testing ground for whether a candidate recognizes the problem and how the problem might be corrected via amendment (i.e frame the questions around amending). Also, why not test our Congressional candidates on the same subject? And if an Article V convention is your preferred route, then gubernatorial and state legislator debates need to question along the same lines. We have a path to amending and we should use it, rather than trying to ignore it by building alternatives that are overly dependent on the very sources of the problem we are trying to solve.

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Image of NiceVice
on December 29, 2015 at 00:13:39 am

Given the courts, including the Supreme Court has ordered previous administration's to implement the laws of Congress, for example, ordering the EPA to issue rules to stop pollution that causes acid rain and poisoning fish with heavy metals like mercury, the problem is most often the failure to enforce the laws of Congress, with the courts capable of requiring administration's to act.

Why anyone find Obama delaying imposing taxes to be so much more agregious than simply closing ton allow decades of pollution to harm millions of citizens, is puzzling to me. Why do you want business's forced to pay taxes, but want to have the fish on your plate include high levels of mercury?

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Image of mulp
on December 29, 2015 at 11:16:50 am

Sorry to be so late to this confab.

NO ! That required effort should NOT be used up on something "Advisory."

A distinct "force" or if you will - power - is urgently needed; power that will result in actions, not consultations, but corrections. What is required is a New Court that can -and will- constrain the Administration of the Administrative State. Thereby, in power over the uses of administrative "tools" will the Executive functions be confined. Otherwise, it will all just go on to the chaos to be replaced by a New Oligarchy.

As previously posted here in comments:

A New Court

Perhaps someone of the competence of Michael Greve might don the mantle of Richard Armey and undertake the design of a Judicial function ancillary to (1) the oversight responsibilities of Congress; and, (2) the “defense funds” suggested by Charles Murray in his “By The People.”

Congress has the powers to create additional courts of particular jurisdiction.
There is, for example, a Court of Claims. There are bankruptcy courts (or courts “sitting” in bankruptcy).

The existing legal system is clogged with matters of the operations of the Federal Administrative State; the blockages of those remedies serve as an instrument for administrative malfunctions of multiple origins.
Congress can create a Court that, upon submissions, can supply what should be the execution of appropriate oversight by Congress – just like “base closings,” that the political process stymies. Such a Court could be given that much jurisdiction and power subject only to legislative “veto” (up or down- no revisions) within a stipulated period (120 days? or the Court’s rule is final, no appeal, equivalent to legislative remedy).
The Court’s jurisdiction shall concern the actual (and demonstratively prospective) effects of the forms and conditions of enforcements (without regard to existing judicial precedents of a general nature) in specific instances. It shall have full injunctive authority through the District Courts and may suspend or terminate any part or all of any regulations or “guidelines & interpretations” etc.. It may terminate an agency’s exercise of any and all powers, or particular powers, or set enforceable conditions for their exercise; discipline or remove agency personnel, authorities and any contracting parties.

Only Congress, within stipulated periods of time (which might be in different schedules for different determinations) can set aside (but not modify) its decisions.
This Court might be administered in circuits. Conflicts amongst circuit judgments would be resolved by Congressional action.

Most importantly, parties affected (even prospectively) would have immediate access; an option to by-pass “agency reviews” and the APA (heart by-pass anyone), and apply for injunctive relief.
It will take some time; care for details; but supplant some of the deficiencies in Congress’s responsibilities – and begin to throttle back rampant regulatory metastasis.
It could begin to revitalize our legal system and timely public access for private litigation.

Perhaps the route for it's creation could be
reforming" or amending the APA.

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Image of R Richard Schweitzer
R Richard Schweitzer
on December 29, 2015 at 11:31:40 am


I especially like the opportunity for anyone potentially affected by FAS baloney to challenge in Court and to be afforded true "due process" before something other than a fully "consolidated" government appendage combining all legislative, executive and judicial functions within itself.

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.