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Wednesday, March 19, 2014

A new justiciability puzzle

The Enforce the Law Act was introduced in the House earlier this month; it purports to allow one or both houses of Congress to sue the President or other executive officers for failing to enforce the laws. The focus is on executive-branch non-enforcement policies, rather than individual enforcement decisions. And it does not include policies of failing to defend laws is court (e.g., what happened with DOMA).

Assuming the bill solves the legislative standing problem (because a clear statement granting legislative standing is enough to solve the Article III issue), any action seeking an injunction compelling the executive to enforce the laws would seem to be barred by the Political Question Doctrine. Is there anyway to avoid that hurdle?

Posted by Howard Wasserman on March 19, 2014 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


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One might say enforcing the law simpliciter is a ministerial function involving no significant executive discretion. The stringency of enforcement surely involves important discretionary decisions; but the decision to not enforce at all could be characterized as off the table because some enforcement of duly enacted law is just mandatory.

Posted by: anon | Mar 19, 2014 1:48:20 PM

I don't know how you draw the distinction between them. And I certainly doubt the Court is going to want to draw it.

Posted by: Howard Wasserman | Mar 19, 2014 2:54:22 PM

One draws it the same way a judge does when faced with any line-drawing challenge in conlaw: use certain premises to entrench abstract principles as doctrine. Thereafter the specific requirements of those principles are teased out of the abstract on a case by case basis.

Regarding the principles, they would look very much like what anon wrote. As far as premises go, first, the Framers refused to give the President the suspension power, which the Kings of England abused. Second, the Framers envisioned an executive with prosecutorial/enforcement discretion; indeed, they thought such discretion would best serve liberty. The sweet spot of course is somewhere in there.

I think you’re right in predicting that the Court will not engage in such line-drawing. However, the difficulty in finding the right location of the fulcrum point—or, if you like, the “lack of judicially manageable standards”—is not what would discourage judicial resolution (after all, such does not keep the Court from, say, identifying “fundamental rights”). It would simply be the fact that judges get the heebie-jeebies when asked to establish doctrine in the context of presidential power.

Posted by: Edward Cantu | Mar 21, 2014 3:42:36 PM

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