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Tuesday, August 11, 2015

Middle ground on departmentalism

Michael Dorf discusses Mike Huckabee's (unwitting? incomplete?) endorsement of departmentalism during last week's GOP presidential debate. Huckabee explained that he considers fetuses "persons" for Fifth and Fourteenth Amendment purposes and, as Dorf understands him, would act on that constitutional understanding. And Huckabee spoke not just of pushing a personhood constitutional amendment, but of a "bolder" approach." But, Dorf argues, Huckabee did not seem to realize that "his 'bolder' option--acting to protect the rights of the unborn (rights the Supreme Court has never recognized), even when that abridges the rights of women (rights that the Court has recognized repeatedly)--was, in effect, advocacy of "uncivil disobedience by a president," bringing him into direct conflict with the Supreme Court.

But is it necessarily a conflict? And is any conflict problematic? And how might the conflict arise and play out?

In my current article (more on that in a few days), I discuss and endorse Gary Lawson's "middle ground" approach to departmentalism. Lawson distinguishes between judgments and precedent; he argues that the President must abide by and enforce the former, but remains free to disregard the latter if it conflicts with his independent constitutional vision. In other words, if the Court adopts a constitutional rule and issues an injunction requiring the President to act (or refrain from acting) in a given way, he must abide by that injunction, even if he disagrees with the Court's constitutional conclusions.*

[*] With respect to the President, there is a second component to judgments, because the President also is responsible for enforcing federal judgments even if not party to them (e.g., enforcing a federal judgment enjoining the state from enforcing an abortion ban).

But, as I have been arguing with respect to the marriage-equality litigation, the injunction applies to the specific parties in that case, but extends no further. Thus, the President's obligation to follow the Court extends only as far as the judgment in that case, but not to other cases, issues, and parties. Instead, the President can act on his independent constitutional vision, even in the face of competing Supreme Court precedent. Of course, the courts remain bound to apply Supreme Court precedent when the President's actions reach the stage of judicial challenge or enforcement. And they will apply that precedent to produce a judgment against him, which, under Lawson's theory, he will then be obligated to enforce and obey.

Lawson's departmentalism rests on the idea that what courts uniquely do is decide cases and issue judgments, which control everyone who is subject to them or their obligations. But the power to interpret the Constitution simpliciter is not unique to the courts; it instead resides in all public officials (federal, state, and local) who swear an oath to uphold the Constitution. Only when the judicial interpretation is reduced to a judgment does it become supreme--and then only within the limited scope of that judgment.

How this plays out with a President Huckabee committed to the belief that fetuses are constitutional persons depends on what he tries to do. The point is that none of the following examples should be labeled defiance or disobedience.

   • Decline to enforce a law such as the Free Access to Clinic Entrances Act, thereby allowing protesters to make it impossible (at least as a matter of federal law) for women to gain access to clinics and to exercise their rights. No real conflict here. For one thing, the Constitution does not require F.A.C.E. or require that the federal government act to protect women seeking access to clinics. This is unlikely in any event, as Dorf notes that Huckabee has indicated his belief that the President must enforce all laws, even those he disagrees with)

   • Pursue federal murder charges against a woman who terminates a pregnancy in the first month, because, in his view, this woman took a human life and should be prosecuted (put aside federal jurisdictional issues for the moment). This prosecution would be invalid under Roe. Charges are sure to be dismissed or any conviction almost certainly would be reversed or overturned. But Huckabee does not engage in "uncivil disobedience" in pursuing this prosecution. Although clear precedent renders the prosecution futile (which Huckabee certainly knows from the start), he can act on his constitutional vision in initiating and pursuing charges. Once the courts dismisses those charges in light of precedent, Huckabee must comply with that order, although  he also could initiate a new prosecution against someone else until that case is also dismissed.

   • Sign and enforce a bill outlawing all abortions in all circumstances. Again, this law would clearly conflict with Supreme Court precedent. But the point of Lawson's approach is that there is nothing unlawful about the act of signing the bill or taking steps to prosecute people under it, so long as he believes it is constitutional. This is so even if he can predict that courts will declare the law unconstitutional. Obviously, he would be immediately enjoined from enforcing the law by a district court applying Supreme Court precedent. And any efforts to enforce it almost certainly would result in dismissal of the charges. And the President must abide by those judgments as to all plaintiffs.

So why don't more presidents do this? And why would Huckabee himself likely not do this? One answer is that there are political limitations to these moves. The public perception and media reportage would be that Huckabee is disobeying or defying the Supreme Court.While incorrect (absent a specific court order in a specific case), the force of that narrative is strong and may overwhelm his constitutional convictions. The public would not countenance the President prosecuting women for murder or signing laws that everyone knows will be declared invalid. Fair enough. But Lawson's point is that this is precisely how the system should work.

The point is that it would be politics pushing Huckabee away from acting on his unique vision in the face of a competing judicial vision. Neither the Constitution nor the structure of the federal government has that effect solely on the strength of precedent, as opposed to an eventual binding judgment.

Posted by Howard Wasserman on August 11, 2015 at 09:31 AM in Constitutional thoughts, Howard Wasserman | Permalink


I agree. I suppose that, in addition to the question of going far down the court system, there is this interesting question about what informally aggregate settlement practices and ADR means means for "checks and balances" or, to borrow from Doug Kysar, "prods and pleas" between the coordinate branches of government. Benjamin Ewing & Douglass Kysar, Prods and Pleas: Limited Government in an Era of Unlimited Harm, 121 Yale. L. J. 350, 410 (2011). Those kinds of practices, which may process and settle repeated pleas, administrative agreements and other kinds of disputes, under the radar, but in a very high volume, may also stifle or skew the kind of "interbranch dialogue" you're thinking about. Of course, for me, thinking about those things only makes your paper more interesting.

Another interesting wrinkle, even though you're right that technically Nicholson involved a class-wide judgment: if I remember correctly, the cities' original policy in Nicholson was adopted in response to a different consent decree (Tannenbaum?) which required protective services to take more aggressive action to reduce child abuse and neglect. The City interpreted that judgment to require that it had to act in cases like Nicholson's, given studies showing that kids exposed to domestic violence suffered from harm. So, even when government bodies read judgments more broadly than intended, there still may be a remedy in court (at least in front of Judge Weinstein, who turned 94 yesterday).

Posted by: Adam Zimmerman | Aug 12, 2015 7:35:29 PM

Adam raises some interesting issues that I had not thought about. I agree that the lower down on the state court rung you get, the harder and more burdensome it is to raise these constitutional issues. And perhaps that should mediate departmentalism somewhat. Of course, Nicholson was not about precedent--the City was disobeying a judgment and its own amended policies. So, whereas my argument has been that taking a competing constitutional view in the face of precedent is not unlawful, here we have directly unlawful activity by the City.

Posted by: Howard Wasserman | Aug 12, 2015 7:13:29 PM

This is really provocative and interesting. Apologies if you already address this in your paper, which I want to read, but I suppose the answer to your larger question--"how often one branch can keep pushing against another?"--depends, in part, on the circumstances you think there will, or won't, be an effective judicial forum to push back.

In the context of criminal law enforcement, there are some good reasons to wonder whether people can use courts to resist particular practices. A number of factors has lead to what many recognize as a "system of pleas" and not of trials, including: (1) crushing workloads of public defense offices that may exceed 500 cases per attorney, (2) the "trial penalty" (the additional penalty associated with bringing a criminal case to trial), (3) the collateral consequences of challenging even low-level felonies and misdemeanors, and (4) the rise of drug, mental health, veteran's and other "problem solving courts" that routinely produce standardized "alternative sentencing options." The result may mean that in certain contexts, like misdemeanors, there may be limited opportunities for judicial intervention. Alexandra Natapoff, Gideon Skepticism, 70 Wash. & Lee L. Rev. 1049, 1052 (2013)(“The petty offense system generates cases and convictions by the millions in a speedy, low-scrutiny process in which outcomes are largely predetermined.”).

I suppose there may be other limits to judicial challenges as well. Unlike high profile cases like Obergefell, in others, it may be very difficult to detect or establish whether the executive is even violating a judicial mandate. In another life, I clerked for Jack Weinstein, and we heard a case called Nicholson v. Scoppetta, which I think family lawyers in New York now know as Nicholson v. Williams. Sharwline Nicholson was a victim of a terrible assault by the father of her child, who was visiting from out of state. While Ms. Nicholson was in the hospital recovering from her injuries, the police removed her children from their babysitter and placed them in foster care. New York City’s child protective services agency, the Administration for Children’s Services (“ACS”), charged Ms. Nicholson with child neglect, claiming that she had “engaged in domestic violence” in the presence of her children.

The plaintiffs, a class of domestic violence victims, alleged that ACS engaged in an unconstitutional policy of removing their children and placing them in foster care. (Plaintiffs alleged, and the city contested, that this was because ACS believed that all battered mothers were per se neglectful because they too were “engaging in domestic violence in the presence of her children.”) The litigation, which went up to the NY Court of Appeals, on paper, lead to broad structural reforms in the way child services dealt with domestic violence victims in the future. For years, however, friends working in family court reported to me that city agents routinely flouted and ignored Nicholson. But they felt constrained to do anything about it in family court because (1) family courts often disposed of those cases through settlement and (2) it was so difficult to establish unlawful and unwritten city-wide practices and policies.

Finally, I suppose concerns about whether aggrieved parties will be able to effectively "push back" in the courts may also grow as courts impose more hurdles--including more constrained notions of commonality--to structural reform class actions. See David Marcus, The Public Interest Class Action, 104 Geo. L.J. _ (forthcoming 2015); Maureen Carroll, Class Action Myopia, 65 Duke L.J. _ (2016). As David and Maureen point out, class actions allow plaintiffs to commence some structural reform cases that may be very difficult to commence individually (because of ripeness, standing and mootness concerns).

Posted by: Adam Zimmerman | Aug 12, 2015 4:30:06 PM

Apologies for being unclear. Yes, denied after Obergefell.

I'm trying to hypothesize a couple treated by a county clerk exactly as Cooper was treated by the LRSB--denied what he was entitled to under clear SCOTUS precedent and forced to sue to get it, which suit would similarly result in a federal judgment in the plaintiffs' favor. You earlier said forcing Cooper to sue was an independent due process violation, beyond the E/P violation. Would making the couple sue also be an independent due process violation, beyond the initial denial of the license (which they'll get anyway following the federal judgment).

Or is there something unique different about enforcement-in-the-face-of-SCOTUS-precedent that occurs through criminal prosecution as opposed to administrative action such as issuing licenses?

So it seems that you would give Pres. Huckabee get one freebie that would not be a D/P violation, in which he can say "I'm bringing this case to overturn Roe"? If so, why only one freebie? Why can't he keep trying to overturn Roe? Or does something have to change (new appointment, whatever) to allow for a new prosecution that would have a chance of overturning Roe? This gets back to my earlier question--how often can one branch challenge another branch?

Posted by: Howard Wasserman | Aug 11, 2015 10:05:45 PM

?? I assume you mean the clerk denies the license, *after* Obergefell. The injury there is the denial of the license. There's no other liberty interest. Of course it's a denial of due process.

In your hypo Huckabee case, the arrested woman won't be convicted, and thus won't have her due process right to an abortion denied. But the President is having her arrested, and subjected to criminal process -- which is its own deprivation of liberty -- for no legitimate purpose, since he knows that the prosecution will be quashed. How is that ok?

Posted by: Marty Lederman | Aug 11, 2015 9:31:44 PM

So what if a county clerk denies a same-sex couple a marriage license? In addition to the injunction, the attorney's fees, and the damages for the E/P violation (let's stipulate the right is clearly established), the couple also could sue the clerk for a due process violation for making them sue to get the license?

Posted by: Howard Wasserman | Aug 11, 2015 9:04:19 PM

"disagreement" with the Court is not an abuse of power -- I agree with you on that, Howard. But arresting someone based upon your disagreement, and subjecting them to prosecution, when you know the Court will have the last word . . . that is an abuse.

Posted by: Marty Lederman | Aug 11, 2015 7:58:06 PM

The question, I guess, is how often one branch can keep pushing against another. How often can Congress keep reenacting a law that the courts have declared constitutionally invalid? How often can the executive keep trying to enforce a law in the face of judicial disagreement? I am willing (and I think Lawson would be, as well) to give the courts the last word within the judicial process. I am less willing to privilege the judicial interpretation so that disagreement with it by another branch becomes an abuse of power.

Posted by: Howard Wasserman | Aug 11, 2015 7:44:53 PM

To be sure, Howard, in a test case in which he's going to ask the Supreme Court to overrule precedent, it's fine for the President to bring the precedent-challenging prosecution.

But when the President's (or a school board's) "pursuit of his/its constitutional vision" takes the form of arresting women to put them on trial *that the President knows will be unsuccessful,* isn't that an abuse of power/violation of due process?

Posted by: Marty Lederman | Aug 11, 2015 6:01:29 PM

Marty: You are right about how I understand Cooper.

I am not sure that Huckabee would concede your due process point or why he must. And I do not agree it violates due process for the president to pursue his own constitutional vision in the courts (I guess I'm changing my original answer to you, above, because I think I misunderstood your point) simply because his vision is likely (even certain) to lose. The president should be able to keep pushing a constitutional argument in the courts. If he keeps losing, fine--that's what attorney's fees (we hope) are for. But I am uncomfortable setting a point at which the president's pursuit of his constitutional vision itself becomes a constitutional violation.

Posted by: Howard Wasserman | Aug 11, 2015 5:47:32 PM

Thanks, Mike. I should clarify, however, that I agree with Howard to a certain extent: A President may properly act on his own constitutional views rather than those of the Court, such as by signing legislation prohibiting slavery in the territories after Dred Scott. The fact that the Court almost surely will enjoin the executive if he ever tries to *implement* that law is not a reason that he is forbidden from signing it. However, the President is *not* free to engage in action, even in the service of his own constitutional views, that he *agrees* will violate *another* constitutional provision--in particular, that he agrees will deny someone due process. And prosecuting a woman for having an abortion, knowing that the prosecution will be enjoined, would not only violate her right to an abortion (something about which Huckabee and AMK disagree), but also deprive her of due process, by depriving her of liberty without any justification, i.e., arbitrarily (something I assume Huckabee would concede). Because he doesn't have the authority to violate the DPC--even by his own constitutional lights--he can't do that.

Cooper v. Aaron is a nice test case. I assume Howard would say that the LR School Board had the authority to assign William Cooper to a segregated school unless and until they were enjoined by the trial court (which of course they had been) -- they were not obliged to "follow" Brown by virtue of its own force. And that you might disagree, and say that they had to follow Brown even before they were enjoined, because it "bound" them. I tend to agree with you that the assignment was probably unlawful no matter what one's view on "separate-but-equal" might be; but in my view what was unlawful about it was not that Brown "bound" Faubus, but that the LR School Board forced Cooper and his parents to litigate, even though the outcome of the litigation was preordained--I'd be inclined to call that a violation of due process.

Posted by: Marty Lederman | Aug 11, 2015 4:13:56 PM

Howard: I think that the examples posed by Joe and Marty Lederman show why your and Lawson's framing of the issue has been generally rejected in favor of either judicial supremacy of the sort that Larry Alexander and Fred Schauer have defended or milder forms of departmentalism that we might associate with Larry Sager or Robert Post and Reva Siegel. The Lawson/Wasserman/Huckabee approach is like saying that a thief is entitled to steal so long as he understands that the courts will convict him of theft in cases that come before them. Yes, we can speak that way if we want to (and sometimes law & econ in the Holmesian bad-man tradition does) but it's much more straightforward to say that the thief breaks the law when he steals and the president violates the Constitution when he repeatedly enforces laws the courts have indicated are unconstitutional. If, for semantic purposes, you wish to say that the president has only prudential reasons to abide by judicial precedents (as opposed to judgments), fine, but they are extremely strong prudential reasons.

Posted by: Michael Dorf | Aug 11, 2015 3:45:56 PM

Asher, if President Huckabee brought one test case in order to ask the SCOTUS to overrule Roe, just so he could get the immediate injunction from the district court and appeal it up the chain, that would not violate due process (especially if he didn't bother to detain the defendant). But the whole premise of this exercise, as I understand it, is that President Huckabee wishes to act without regard to the Supreme Court: He didn't say at the debate: "And I'll use the first opportunity to urge the SCOTUS to reverse Roe!"

Posted by: Marty Lederman | Aug 11, 2015 1:26:51 PM

Sorry, 1983 obviously wouldn't be the source of liability (if there is any). I suppose the due process "check," though a constitutional check, can be distinguished insofar as it doesn't directly deal with whether Huckabee's reading of the Fifth/Fourteenth Amendments is correct - just with the vexatiousness of the prosecution given existing precedent. Incidentally, if there is such a due process rule, how can a test case attempting to get Roe overruled ever get off the ground? One might reasonably believe, at some point in the future, that there's a majority on the Court to overrule Roe, yet a prosecution of a first-trimester abortion should, on this theory, be treated as a violation of due process in the lower courts, state or federal.

Posted by: Asher | Aug 11, 2015 1:11:41 PM

If there were such things as Bivens actions post-1980, that might be a way of *remedying* the denial of due process (in addition to the trial court's immediate quashing of the indictment). But even if there weren't such a remedy, the President is not empowered to knowingly violate due process.

Posted by: Marty Lederman | Aug 11, 2015 12:29:57 PM

A Bivens action then?

Posted by: Former Editor | Aug 11, 2015 12:26:34 PM

Section 1983 is neither here nor there -- it applies to states.

Posted by: Marty Lederman | Aug 11, 2015 12:09:14 PM

I'm a little confused. If there would be 1983 liability for these measures, and the prosecutions "might be" violations of due process, how can you say that the President "does not act 'unconstitutionally'" in acting this way?

Posted by: Asher | Aug 11, 2015 12:08:37 PM

"So that is another check on the prosecutorial authority." I don't understand, Howard. I thought you were describing things that President Huckabee could (lawfully) do--such as work to pass a federal murder statute and then begin a prosecution of women pursuant to it. But if arresting such women would deprive them of due process because of the inevitability that the prosecutions would be quashed, then it's not something he could do, regardless of his view of whether fetuses are "persons" under the Fourteenth Amendment.

Posted by: Marty Lederman | Aug 11, 2015 12:05:45 PM

It might be. So that is another check on the prosecutorial authority.

Posted by: Howard Wasserman | Aug 11, 2015 11:44:13 AM

Wouldn't arresting the woman, knowing full well that the prosecution will be quashed, be a violation of due process?

Posted by: Marty Lederman | Aug 11, 2015 11:40:13 AM

The point is that the President can, within constitutional bounds, act this way--he does not act "unconstitutionally" in doing so. There are other checks on such conduct--Congress (yes, it could impeach, if it has a different vision of what Take Care requires), the courts (at some point, damages liability will attach, although perhaps not for prosecutorial moves), and the public. The idea is that a system of separated powers necessarily involves shared responsibility for constitutional interpretation and there will be push-and-pull among the different actors in their different spheres of influence, with each trying to pull the others towards their constitutional vision. So a President could prosecute people for being Catholic--but the prosecutions will be unsuccessful, he probably will be enjoined from doing so, he probably will be impeached, and his public approval would plummet. And all of those things will, we hope, cause him to change his conduct (or leave office).

Otherwise, we are left with privileging the Supreme Court's constitutional understanding in all spheres. And there is no policy or constitutional basis for doing so. In fact, Lawson's approach still gives the courts a constitutional edge, because it will have the last word when things hit litigation and it enters a judgment.

In my murder example, I said ignore jurisdictional and statutory concerns. But thanks for fighting the hypo.

In any event, so long as you know that this is "glaringly wrong," I guess there's no longer a reason to have the conversation.

Posted by: Howard Wasserman | Aug 11, 2015 11:28:14 AM

I wonder what the limits of “take Care that the Laws be faithfully executed" entails; presume that Congress can at some point determine that if a President fails to adequately fulfill his/her opportunities there that impeachment is proper.

As to obligations, some would argue that there is some constitutional obligation to protect, even if it is not enforceable in the courts. I gather, e.g., if the feds did nothing while a state totally denied people voting rights protected by the Constitution, it would be a constitutional concern of some nature. This is different from being in conflict with the courts.

The murder charge hypo wouldn't just be a violation of Roe but not authorized by statutory law.

Also, repeatedly prosecuting for a clearly unconstitutional reason is "uncivil disobedience" -- if "the President says so, so it isn't illegal" is the rule, well okay. So, a President can 100x, without it being "civil disobedience," prosecute people for being a Catholic, as long as each time, with the costs/burdens to the defendant and detainment allowed before a probable cause hearing etc. a judge can reject it.

A major reason people don't go that far is that it is glaringly wrong and a ridiculous extreme version of departmentalism.

Posted by: Joe | Aug 11, 2015 10:46:28 AM

But to your broader point about possible liability: Yes, the judicial system imposes a number of incentives for executives not to do what I'm suggesting--injunctive liability, damages liability (subject to the limits imposed by qualified immunity), and attorney's fees. That's where the push-and-pull comes from.

Posted by: Howard Wasserman | Aug 11, 2015 10:23:04 AM

Not for damages.

Posted by: Howard Wasserman | Aug 11, 2015 10:12:46 AM

...actually I guess absolute immunity would apply even in the face of obviously unconstitutional prosecutions. But if you could establish a pattern or practice would a 1983 suit lie?

Posted by: Griff | Aug 11, 2015 10:07:52 AM

Seems like a prosecutor would subject himself to sanctions and near-certain liability for malicious prosecution, violation of civil rights, etc., by pursuing either the second or third options on your list, no?

Posted by: Griff | Aug 11, 2015 10:05:45 AM

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