Professors Eric Posner and Adrian Vermeule have famously argued that the Executive is “unbound” and cannot be constrained by law—not by Congress, and most certainly not by the courts. There is some truth to this in emergencies. The Supreme Court’s wartime decisions, for instance, show a fairly consistent pattern: the justices bob and weave and cut the President an awful lot of slack. But they usually try to salvage what they can—and to preserve the option of reasserting their power when the emergency ends.
It’s an interesting question what courts can and should do when the President, instead of responding to an emergency, is the emergency—when he “can’t wait” to put his various schemes into effect without or against the law. (Not unheard-of: “Obama we can’t wait” generates 56,300,000 Google hits.) In two noteworthy instances—the President’s “deferred action” immigration plan and, as of yesterday, his “clean power” plan—the federal courts have told the administration that it will have to wait. The technical term is a “stay.”
The legal effect of a stay order is to preserve the legal status quo, pending a resolution on the merits. But what’s the real-world effect on a “can’t await” administration? It depends.
In the immigration controversy the effect has been profound, even decisive. The lower courts’ stay—now pending before the Supreme Court–has precluded the administration form conferring “lawful presence” status and its attendant benefits on million of immigrants. Without the stay those designations would have issued and become effectively irreversible. In this instance, the stay order has operated as a merits determination, pending (of course) a final judicial resolution.
The “clean power” plan is a somewhat different matter. For reasons explained in an earlier post the EPA cares not one whit about the legality of its rule. Should it care about the Supreme Court’s stay order? The White House press statement on the order explains:
Even while the litigation proceeds, EPA has indicated it will work with states that choose to continue plan development and will prepare the tools those states will need. At the same time, the Administration will continue to take aggressive steps to make forward progress to reduce carbon emissions.
In short: no. EPA will continue doing what it has been doing since long before the rule was published, and ever since: promise “cooperative” states and industries the blue sky, while threatening the laggards with dire consequences.
Even so the order may have some effect on the ground. As every 1-L learns a stay is an extraordinary remedy. Among other things the plaintiff has to show a pretty strong likelihood of prevailing on the merits. EPA’s divide-and-conquer strategy has been predicated on the expectation among states and regulated industries that something like the clean power plan might eventually go into effect—in which case non-compliant actors would be left holding the bag. In my estimation the Supreme Court’s order has reduced the likelihood of that scenario to near zero. If that’s right hold-out or fence-sitting parties are now free to tell EPA to pack its “tools” and shove them where they belong.
Is the Executive “Unbound”? Yeah. So long as no one else plays constitutional hardball.