Congress's power to block enforcement of federal court orders

Iowa Law Review

Volumn 93, Issue 4, 2008, Pages 1319-1367

  McAward, Jennifer Mason ^a  

^a UNIVERSITY OF NOTRE DAME   (United States)

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EID: 49349085286     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (302)

1. See Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 583 (2006) (question from Sen. Patrick Leahy).
2. Id. (statement of thenjudge Samuel Alito).
3. Indeed, on July 26, 2007, the House of Representatives passed, by voice vote, an appropriations rider preventing the enforcement of two federal criminal judgments and sentences issued against two Border Patrol agents convicted of shooting an illegal-alien smuggler. See H.R. 3093, 110th Cong. (1st Sess. 2007). The bill was included as section 702 of title VII of the Commerce, Justice, Science, and Related Agencies Appropriations Act before it was struck. See GovTrack.us, H.R. 3093: Departments of Commerce and Justice, Science, and Related Agencies Appropriations Act, 2008, http://www.govtrack.us/congress/ billtext.xpd? bill=h110-3093&version=eh (last visited Apr. 2, 2008) (showing the various changes to H.R. 3093). The appropriations rider stated: None of the funds appropriated in this Act may be used to enforce (1) the judgment of the United States District Court for the Western District of Texas in the case of United States v. Ignacio Ramos, Et Al. (No. EP:05-CR-S56-KC) decided March 8, 2006; and (2) the sentences imposed by the United States District Court for the Western District of Texas in the case of United States v. Ignacio Ramos, Et Al. (No. EP:05-CR-856-KC) on October 19, 2006. H.R. 3093 § 702.
4. See infra note 175 (discussing Congress's power to shape the federal judiciary).
5. See infra Part II.A-B.
6. See infra Part II.C.
7. See infra Part III.A.
8. See infra Part III.B.
9. See infra Part III.C.
10. Newdow v. U.S. Cong., 292 F.3d 597, 612 (9th Cir. 2002).
11. See, e.g., Sheldon H. Nahmod, The Pledge as Sacred Political Ritual, 13 WM. & MARY BILL RTS. J. 797, 816-17 (2005) ("A powerful argument can be made that the Ninth Circuit got it right on the Establishment Clause merits . . . ."); Rob Boston, One Nation Indivisible?: 'Under God' Case at Supreme Court Tests Nation's Commitment to Church-State Separation, Religious Pluralism, AMS. UNITED FOR SEPARATION OF CHURCH & ST., Dec. 2003, http://www.au.org/site/News2Ppage=NewsArticle&id=5294&abbr= cs_ ("'[Newdow] shows respect for freedom of conscience.'" (quoting Americans United for Separation of Church and State Executive Director Barry W. Lynn's press statement)).
12. See, e.g., David Limbaugh, Kicking God Further Out the Door, WASH. TIMES, Sept. 19, 2005, at A16, available at http://www.davidlimbaugh.com/mt/archives/2005/09/new_column_kick.html (concluding that Newdow highlights "the judicial activism of the 9th Circuit Court of Appeals and the U.S. Supreme Court in their Establishment Clause jurisprudence").
13. Glassroth v. Moore, 335 F.3d 1282, 1297 (11th Cir. 2003). Alabama Chief Justice Roy Moore ordered the installation of the monument "after the close of business during the evening of July 31, 2001." Id. at 1286. He did not inform the other justices of his intentions, but he did invite an evangelical Christian organization to film the monument's installation. Id. (citation omitted). That same organization sold the video and used part of the raised funds to underwrite Moore's legal defense. Id. (citation omitted).
14. See, e.g., Frank S. Ravitch, Religious Objects as Legal Subjects, 40 WAKE FOREST L. REV. 1011, 1052 (2005) ("[A]s a matter of constitutional law, the case was easy to decide; former Chief Justice Moore's behavior erased any doubt that his purpose in erecting the monument was to promote religion, specifically Christianity.") .
15. See, e.g., Vine & Fig Tree, The Unconstitutional and Anti-Christian Decrees of Judge Myron H. Thompson and His War on "The Rule of Law," http://vftonline.org/EndTheWall/thompson.htm (last visited Jan. 29, 2008) ("Judge Thompson's opinion flies in the face of the Founding Fathers and the first 150 years of American history under the Constitution. It represents the arbitrary and tyrannical whim of a man unrestrained by the rule of law.").
16. In re Roy S. Moore, Chief Justice of the Supreme Court of Ala., No. 33, at 3-4 (Ala. Ct. of the Judiciary Nov. 13, 2003), available at http://fll.findlaw.com/news.findlaw.com/cnn/docs/religion/inremoore111303opn. pdf. Moore was removed from office on November 13, 2003 due to ethics violations. Id. at 13.
17. Newdow v. U.S. Cong., 328 F.3d 466, 468 (9th Cir. 2003).
18. H.R. Res. 132, 108th Cong. (2003) (enacted). The U.S. Supreme Court ultimately vacated the Ninth Circuit's opinion because the plaintiff in the case, Michael Newdow, lacked standing to challenge the elementary school's voluntary recitation of the Pledge of Allegiance. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 17-18 (2004).
19. While the idea of de-funding the enforcement of court orders has reached a newfound level of popularity, it is not an entirely new idea. In the 1970s, Congress passed a series of appropriations riders prohibiting the Department of Health, Education, and Welfare ("HEW") from ordering busing as a remedy for segregated school districts. The D.C. Circuit upheld the riders, in large part because they left HEW with several alternative means of remedying school segregation. See Brown v. Califano, 627 F.2d 1221, 1231-32 (D.C. Cir. 1980) (discussing HEW's remaining options). In 1981, before the Supreme Court's ruling in Bob Jones University v. United States, 461 U.S. 574 (1983), the House of Representatives considered an appropriations rider that blocked the IRS from using funds to enforce any court order that prevented racially segregated schools from obtaining tax exemptions. See 127 CONG. REC. 18,789-96 (1981); Brief of Congressman Trent Lott Amicus Curiae, Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (No. 81-3), available at http://www.j-bradford-elong.net/movable_type/refs/ Mozilla_Scrapbook2/lott.bju.amicus.brief.doc (providing the legislative history as support for the argument that "the Court of Appeals for the Fourth Circuit must be reversed"). The Newdow and Glassroth, provisions mark a resurgence of the de-funding concept and, indeed, go further than the Califano riders because they entirely deprive the executive branch of any power to remedy identified constitutional violations.
20. Representative Hostettler lost his bid for reelection in November 2006. See Adam Nossiter, G.O.P. Collapse in Indiana Emblematic of Larger Loss, N.Y. TIMES, Nov. 12, 2006, § 1, at 28 (discussing Hostettler's loss).
21. H.R. 2799, 108th Cong. § 803 (as passed by House, July 23, 2003) (containing the text of House Amendment 288, which stated: "None of the funds appropriated in this Act may be used to enforce the judgment in Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002).").
22. Id. § 808 (containing the text of House Amendment 296, which stated: "None of the funds appropriated in this Act may be used to enforce the judgment of the United States Court of Appeals for the Eleventh Circuit in Glassroth v. Moore, decided July 1, 2003 or Glassroth v. Moore, 229 F. Supp. 2d 1067 (M.D. Ala. 2002).").
23. Press Release, Office of U.S. Representative John N. Hostettler, Hostettler Amendments Prohibit Funds to Enforce Court Decisions Against Pledge, Ten Commandments (July 23, 2003) (on file with the Iowa Law Review).
24. Compare H.R. 2799 § 803, with Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, 118 Stat. 108, 110-11 (codified as amended at 16 U.S.C. § 1851 (2000 & Supp. V 2005)).
25. See Russelburg v. Gibson County, No. 3:03-cv-149-RLY-WGH, slip op. at 9-10 (S.D. Ind. Jan. 31, 2005), available at http://msl1.mit.edu/ furdlog/docs/russelburg.pdf. The Russelburg decision was pending on appeal to the Seventh Circuit when the Supreme Court issued its opinion in Van Orden v. Perry, 545 U.S. 677 (2005). The Seventh Circuit then vacated and remanded Russelburg for reconsideration in light of Van Orden. On September 7, 2005, the District Court ruled that Gibson County's Ten Commandments display did not violate the First Amendment. See Russelburg v. Gibson County, No. 3:03-cv-149-RLY-WGH, 2005 WL 2175527, at *2 (S.D. Ind. Sept. 7, 2005), available at http://indianalawblog. com/documents/10commandments.pdf.
26. Letter from John N. Hostettler, U.S. Representative, to George W. Bush, U.S. President (Feb. 17, 2005) (on file with the Iowa Law Review).
27. Letter from William E. Moschella, Assistant Attorney Gen., U.S. Dep't of Justice, to John Hostettler, U.S. Representative (Apr. 19, 2005) (on file with the Iowa Law Review) (citing 28 U.S.C. § 566(c) (2000)); see also Letter from John N. Hostettler, U.S. Representative, to William E. Moschella, Assistant Attorney Gen., U.S. Dep't of Justice (June 17, 2005) (on file with the Iowa Law Review) (urging that "the President would be compelled not to enforce the District Court's-and subsequent Courts'-decisions regarding Russelburg v. Gibson County").
28. H.R. 2862, 109th Cong. §805 (as passed by House, June 16, 2005) (containing the text of House Amendment 278, sponsored by Representative Hostettler). Although Hostettler's amendments have precluded the use of "any federal funds" to enforce the targeted court decisions, he has characterized the effect of the amendments as "prevent[ing] any funding from being used by the U.S. Marshals Service" to enforce the decisions. See 151 CONG. REC. H4532 (daily ed. June 15, 2005) (statement of Rep. Hostettler); see also Press Release, Office of U.S. Representative John N. Hostettler, House Passes Hostettler Amendment to Protect Gibson County Ten Commandments (June 15, 2005) (on file with the Iowa Law Review) [hereinafter Hostettler Press Release].
29. See Hostettler Press Release, supra note 28.
30. Compare H.R. 2862 § 805, with Science, State, Justice, Commerce, and Related Agencies Appropriations Act, 2006, Pub. L. No. 109-108, 119 Stat. 2290 (showing that the amendment was stricken from the final version of the Act).
31. In response to the federal district court's ruling in Hinrichs v. Bosma, 400 F. Supp. 2d 1103, 1131 (S.D. Ind. 2005), that the First Amendment bars specific references to Christianity during invocations before the Indiana State Legislature, Representative Michael Sodrel (R-IN) proposed a bill that would bar the expenditure of federal funds to enforce any court order "relating to the content of speech occurring during the legislative session of a State legislative body, unless such speech constitutes treason, breach of peace, or an admission of guilt of a crime." H.R. 4776, 109th Cong. (2006); see also supra note 3 (describing the July 26, 2007, passage of an appropriations rider barring the enforcement of two criminal judgments and sentences).
32. 151 CONG. REC. H4532 (daily ed. June 15, 2005) (statement of Rep. Hostettler in support of Amendment 278 to H.R. 2862).
33. Representative Hostettler made this assessment prior to the Supreme Court's decision in Van Orden v. Perry, 545 U.S. 677 (2005), which found the display of a Ten Commandments monument on the Texas State Capitol grounds constitutional.
34. 151 CONG. REC. H4532 (daily ed. June 15, 2005) (statement of Rep. Hostettler in support of Amendment 278 to H.R. 2862).
35. 28 U.S.C. § 566(c) (2000).
36. 151 CONG. REC. H4532 (daily ed. June 15, 2005) (statement of Rep. Hostettler in support of Amendment 278 to H.R. 2862).
37. See id. (quoting THE FEDERALIST No. 78, at 433-34 (Alexander Hamilton) (Clinton Rossiter ed., 1999)).
38. See id. at H4533. At the time of Marshall's letter, Justice Chase was facing impeachment by the House of Representatives. See Michael J. Gerhardt, Chancellor Kent and the Search for the Elements of Impeachable Offenses, 74 CHI.-KENT L. REV. 91, 103 (1998). President Jefferson, concerned about Chase's pro-federalist stance, quiedy encouraged the House to impeach him. WILLIAM H. REHNQUIST, GRAND INQUESTS 22-23 (1992). The House delivered articles of impeachment in 1804, ostensibly based on Chase's conduct in several political trials and his remarks to a Baltimore grand jury. Id. at 22. The Senate acquitted Chase at the conclusion of his trial in 1805. Gerhardt, supra, at 103. Chase is the only Supreme Court Justice ever to have been impeached.
39. See 151 CONG. REC. H4533 (daily ed. June 15, 2005) (quoting Letter from John Marshall, Chief Justice, Supreme Court of the United States, to Samuel Chase, Assoc. Justice, Supreme Court of the United States (Jan. 23, 1804), in 3 ALBERT J. BEVERIDGE, THE LIFE OF JOHN MARSHALL 177, 177 (1919)).
40. 3 BEVERIDGE, supra note 39, at 178. Beveridge characterized Marshall's proposal as "in direct contradiction to his reasoning in Marbury vs. Madison" and "the most radical method for correcting judicial decisions ever advanced . . . . Appeals from the Supreme Court to Congress!" Id. Other commentators, however, have disagreed with Beveridge's interpretation. See David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 DUKE L.J. 279, 332 (1992). Engdahl notes: It seems unlikely that Marshall [was advocating] abridging that "finality" of adjudication (in the res judicata sense) . . . [but is more likely that he] might have found acceptable an arrangement under which constitutional questions could be resolved by a popularly responsible branch, so long as the judges were left independently to adjudicate cases in accord with their own understanding of the resolutions thus politically made. Id.
41. Press Release, Office of U.S. Representative John N. Hostettler, Hostettler Disappointed by Administration's Unprecedented Decision to Remove Ten Commandments Monument From Public Land (June 17, 2005) (on file with the Iowa Law Review) (quoting Andrew Jackson, Veto Message (July 10, 1832), in 2 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1897, at 582 (James D. Richardson ed., 1897)).
42. Id.
43. 151 CONG. REC. H4533 (daily ed. June 15, 2005) (statement of Rep. Nadler).
44. Id. Nadler claimed that Hostettler's logic would justify "a bill that says we shall not enforce a decision of the court that says so and so may not go to jail or so and so must go to jail or anything else." Id. Nadler concluded by saying: [C]ourt orders must be enforced, and anyone who says that we shall not spend money to enforce a court order because . . . we do not agree with that particular court order is subversive of liberty, subversive of the Constitution, subversive of every human right, and subversive of the very notion of American liberty and democracy. Id.
45. See supra notes 23, 29 and accompanying text.
46. It is possible that the representatives who voted for these provisions did so more out of a desire to lodge a symbolic protest of the courts' rulings than with the expectation that the provisions would actually become law. See Neal Devins, Should the Supreme Court Fear Congress?, 90 MINN. L. REV. 1337, 1354-57 (2006) (suggesting that congressional measures proposed in response to controversial court rulings often are rhetorical efforts to appeal to voters and interest groups rather than genuine attempts to rebuke the courts). Even if this explanation is correct, it neither guarantees that future enforcement-blocking proposals will languish in the Senate nor resolves the difficult constitutional issues that these provisions raise. Moreover, the question of whether the votes were cast as a symbolic protest is different from the question discussed in this Section - namely, whether the provisions themselves are purely symbolic or whether they could have a real effect on the enforcement of court judgments.
47. See Bruce Ledewitz, Civil Disobedience, Injunctions, and the First Amendment, 19 HOFSTRA L. REV. 67, 111 (1990) (observing that courts accurately expect that individuals will want to comply with court orders). Indeed, federal contempt citations issued to enforce court orders are relatively rare. Less than 0.5% (536 out of 130,078) of criminal matters on which U.S. Attorneys worked in 2003 involved perjury or contempt. BUREAU OF JUSTICE STATISTICS, COMPENDIUM OF FEDERAL JUSTICE STATISTICS, 2004 tbls. 2.1 & 2.2 (2004), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/cfjs04.pdf (noting, additionally, that less than one-half of those charged were prosecuted); see also Geras v. Lafayette Display Fixtures, 742 F.2d 1037, 1049 (7th Cir. 1984) (Posner, J., dissenting) ("The contempt power is rarely employed in civil trials. It is rarely employed, period: out of 34,681 federal criminal proceedings begun in the 1983 reporting year, only 42 were prosecutions for contempt." (citation omitted)).
48. For example, when the Supreme Court ordered President Nixon to turn over the incriminating Watergate tapes to prosecutors, he did so immediately. See United States v. Nixon, 418 U.S. 683, 713-14 (1974) (rejecting Nixon's claims of executive privilege); see also KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 26 (15th ed. 2004) (noting that, after the Supreme Court rendered its decision, "Nixon announced that he had instructed his counsel 'to take whatever measures are necessary to comply with that decision in all respects'").
49. See Maureen Hayden, Hostettler's Win in Ten Commandment Fight Puzzles Gibson Officials, EVANSVILLE COURIER & PRESS, June 16, 2005, at B3.
50. See, e.g., Boddie v. Connecticut, 401 U.S. 371, 374 (1971) (calling the rule of law "fundamental"); Richard H. Fallon, Jr., "The Rule of Law" as a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1, 8 (1997) (oudining elements of the "rule of law," including its efficacy in guiding people's actions as supreme legal authority);
51. cf. Sheldon Ekland-Olson & Steve J. Martin, Organizational Compliance with Court-Ordered Reform, 22 LAW & SOC'Y REV. 359, 371 (1988) (attributing institutional resistance to court-ordered prison reform in Texas to "a moral climate" created by prison leaders in which court orders were seen as illegitimate).
52. Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 CAL. L. REV. 1027, 1039 (2004).
53. See Sandra Day O'Connor, Public Trust as a Dimension of Equal Justice: Some Suggestions to Increase Public Trust, 36 CT. REV. 10, 13 (1999), available at http://aja.ncsc.dni.us/courtrv/ cr36-3/CR%2036-3%20O'Connor.pdf. Justice O'Connor noted; As judges, court administrators and attorneys, we all rely on public confidence and trust to give the courts' decisions their force. We don't have standing armies to enforce opinions, we rely on the confidence of the public in the correctness of those decisions. That's why we have to be aware of public opinions and of attitudes toward our system of justice, and it is why we must try to keep and build that trust.
54. Id.; see also Neal Devins & Louis Fisher, Judicial Exclusivity and Political Instability, 84 VA. L. REV. 83, 94 n.76 (1998) ("Recognizing the nexus between its authority and public acceptance, the Court is rarely out of step with prevailing mores.");
55. Richard H. McAdams, The Expressive Power of Adjudication, 2005 U. ILL. L. REV. 1043, 1119 n.241 (noting that the judiciary "mostly avoid[s] genuinely counter-majoritarian decisions").
56. Court orders that tend to inspire defiance and contempt often involve an injunction in some form or a specific performance order. See Dan B. Dobbs, Contempt of Court: A Survey, 56 CORNELL L. REV. 183, 219 (1971) (citing "an order to turn over property to the court or another party" and "a prohibitory order forbidding a demonstration, a march, the continuance of a nuisance, or the violation of a trademark or copyright" as examples of circumstances frequently involving defiance and contempt).
57. See, e.g., In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1145-53 (D.C. Cir. 2006) (affirming a decision holding New York Times reporter Judith Miller in contempt of court for refusing to disclose the identities of her confidential sources); Wen Ho Lee v. Dep't of Justice, 413 F.3d 53, 61-64 (D.C. Cir. 2005) (affirming a decision holding four reporters in contempt of court for refusing to disclose the identities of their confidential sources).
58. See Green v. County Sch. Bd., 391 U.S. 430, 438-39 (1968) (noting continuing state-sponsored school segregation after Brown v. Board of Education and requiring the state to offer a desegregation plan that "promises realistically to work now"); see also infra notes 172-73 and accompanying text (describing the aftermath of Brown); cf. Spallone v. United States, 493 U.S. 265, 280 (1990) (invalidating a contempt finding against individual city employees and requiring the district court to first impose sanctions against the city itself in an attempt to secure compliance with remedial orders).
59. See supra notes 13-16 and accompanying text (discussing the case).
60. Ex parte Merryman, 17 F. Cas. 144, 153 (C.C.D. Md. 1861) (No. 9487); see infra notes 263-70 and accompanying text. Although President Jackson is famous for saying after the Supreme Court's decision in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), "John Marshall has made his decision. Now let him enforce it," Jackson in fact was never in a position to defy the Court. The State of Georgia mooted the decision soon thereafter, and the United States was never called upon to enforce the Court's order. See SULLIVAN & GUNTHER, supra note 48, at 25.
61. See Shillitani v. United States, 384 U.S. 364, 370 (1966) (citing United States v. United Mine Workers, 330 U.S. 258, 330-32 (1947) (Black and Douglas, JJ., concurring in part and dissenting in part)) (stating that courts have inherent power to enforce lawful orders by civil contempt); SEC v. Bilzerian, 112 F. Supp. 2d 12, 16 (D.D.C. 2000) (same); cf. 18 U.S.C. § 401 (2000 & Supp. V 2005) (allowing a court to "punish by fine or imprisonment, or both, at its discretion, such contempt of its authority," including "[d] isobedience or resistance to its lawful writ, process, order, rule, decree, or command").
62. Bilzerian, 112 F. Supp. 2d at 16 (quoting SEC v. Bankers Alliance Corp., 881 F. Supp. 673, 678 (D.D.C. 1995)).
63. See 18 U.S.C. § 401.
64. See FED. R. CIV. P. 70 (empowering a court to enforce a judgment through cost-shifting, writs of attachment, and writs of execution).
65. See, e.g., In re Grand Jury Subpoenas Duces Tecum, 78 F.3d 1307, 1309-10 (8th Cir. 1996) (noting that contemnors paid contempt fines and complied with subpoenas issued in conjunction with the "Whitewater" investigation into campaign contributions to President William Clinton); Reich v. Sea Sprite Boat Co., Inc., 64 F.3d 332, 333 (7th Cir. 1995) (noting that the contemnor satisfied the judgment and paid the civil contempt penalty).
66. 28 U.S.C. § 566(c) (2000).
67. See FED. R. CIV. P. 4.1 (a)-(b); accord Bank of Credit & Commerce Int'l (Overseas) Ltd. v. Tamraz, No. 97 Civ. 4759(SHS), 2006 WL 1643202, at * 5-6 (S.D.N.Y. June 13, 2006) (holding a noncompliant defendant in contempt of court and ordering the U.S. Marshals Service to serve and arrest the defendant); Schmidt v. Joslin, No. 3-06-CV-0731-B, 2006 WL 1499773, at *2 (N.D. Tex. May 31, 2006) (noting an arrest by U. S. Marshals pursuant to an order holding the arrestee in contempt of court).
68. Judiciary Act of 1789, ch. 20, § 27, 1 Stat. 73, 87.
69. Id.
70. 28 U.S.C. § 561(a) (2000); Cunningham v. Neagle, 135 U.S. 1, 63 (1890) ("[M]arshals of the United States . . . belong emphatically to the executive department of the government.").
71. United States Marshals Service, The Judiciary Act of 1789: Charter for U.S. Marshals and Deputies, http://www.usdoj.gov/marshals/history/judiciaiy/ judiary_act_of_1789_8.htm (last visited Mar. 10, 2008) (noting that six days after signing the Judiciary Act of 1789, President Washington appointed marshals for each of the thirteen new federal judicial districts).
72. See 28 U.S.C. § 569(b) (2000); Chabal v. Reagan, 841 F.2d 1216, 1220 (3d Cir. 1988) (holding that despite assignment to the federal courts, the duties of the U.S. Marshals are "purely executive" and, thus, marshals are still members of the executive branch who the President may dismiss at will).
73. See 28 C.F.R. § 0.111 (2007) (listing the activities of the U.S. Marshals Service); see also United States Marshals Service, Major Responsibilities of the U.S. Marshals Service, http://www.usdoj.gov/marshals/ duties/index.html (last visited Jan. 29, 2008). The Marshals Service's budget has grown consistently, and in 2008, the estimated budget for the Service is $900 million. See OFFICE OF MGMT. AND BUDGET, BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 2008, at 94 (2007), available at http://www.whitehouse.gov/omb/budget/fy2008/budget.html.
74. 28 U.S.C. § 566(a) (2000).
75. THE FEDERALIST NO. 78, at 433 (Alexander Hamilton) (Clinton Rossiter ed., 1999).
76. Of course, federal court judgments do have a certain force of their own within the court system itself, even in the absence of voluntary compliance or executive enforcement. For example, courts themselves will accord preclusive effect to previous judgments, thereby barring the re-litigation of already-decided issues and cases. However, for court judgments to avoid becoming mere mantras, repeated case after case and judgment after judgment, and instead to impact actual conduct, courts must rely on other actors to comply with or execute their judgments.
77. The enforcement-blocking provisions introduced by Representative Hostettler were written in such broad terms that they fairly could be read as preventing the judiciary itself from taking any steps to enforce its own judgments, e.g., by holding a contempt hearing. Because Representative Hostetder characterized the effect of the provisions as preventing action by the U.S. Marshals Service, however, this Article assumes that to be the primary effect of the provisions. Cf. Wright v. Regan, 656 F.2d 820, 835 (D.C. Cir. 1981) (construing an appropriations rider only to preclude executive action and not court dispositions in order to avoid the "[t]urbulent issues under our fundamental instrument of government" tfiat the latter would raise).
78. The Russelburg amendment is the clearest example of the latter category, as the executive branch had declared its intent to enforce the court's order if called upon. See supra note 27 and accompanying text.
79. U.S. CONST. art. II, § 3.
80. Id. art. III, §§ 1-2.
81. See infra Part III.A.
82. See infra Part III.B.1.
83. See infra Part III.B.2.
84. See infra Part III.C.
85. See infra Part III.C.2.
86. See infra Part III.C.1.
87. U.S. CONST. art. I, § 9.
88. Hart v. United States, 16 Ct. Cl. 459, 484 (1880), aff'd, 118 U.S. 62 (1886).
89. THE FEDERALIST NO. 58, at 327 (James Madison) (Clinton Rossiter ed., 1999).
90. See, e.g., Neal E. Devins, Regulation of Government Agencies Through Limitation Riders, 1987 DUKE L.J. 456, 457, 464-65, 471-80 (noting that "Congress frequently expresses policy preferences through limitation riders," but cautioning against this trend on both practical and constitutional grounds);
91. Jacques B. LeBoeuf, Limitations on the Use of Appropriations Riders by Congress to Effectuate Substantive Policy Changes, 19 HASTINGS CONST. L.Q. 457, 460-61 (1992) (noting Congress's attempts to use its appropriations power to, inter alia, "deprive former slaves of the right to vote, to protect farm subsidies from executive scrutiny, to prevent the President from making recess appointments, to enter into the conduct of negotiations with foreign powers, and to remove suspected Communists from the federal payroll" (footnotes omitted)).
92. See SANDY STREETER, CONG. RESEARCH SERV., THE CONGRESSIONAL APPROPRIATIONS PROCESS: AN INTRODUCTION 12 (2004), available at http://rules.house.gov/archives/97-684.pdf ("From FY1977 through FY2005, Congress . . . considered 13 regular appropriations bills and, for FY2006 and FY2007, Congress generally considered 11 regular bills.").
93. Id. at 1.
94. See 31 U.S.C. § 1341(a)(1)(A) (2000) ("An officer or employee of the United States Government . . . may not make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation . . . .").
95. See 31 U.S.C. § 1301(a) (2000) ("Appropriations shall be applied only to the objects for which the appropriations were made . . . ."). This rule is subject to an exception for necessary expenses: "[W]here an appropriation is made for a particular object, by implication it confers authority to incur expenses which are necessary or proper or incident to the proper execution of the object . . . unless they are prohibited by law." 6 Comp. Gen. 619, 621 (1927).
96. See, e.g., SANDY STREETER, CONG. RESEARCH SERV., EARMARKS AND LIMITATIONS IN APPROPRIATIONS BILLS 2 (2004), available at http://www.rules.house.gov/archives/98-518.pdf.
97. Id.
98. See infra notes 96-106 and accompanying text.
99. See infra notes 107-27 and accompanying text.
100. See United States v. Lovett, 328 U.S. 303, 318 (1946) (holding the rider unconstitutional).
101. Id. at 313.
102. Id. at 313-15 (citing U.S. CONST. art. I, § 9, cl. 2 ("No Bill of Attainder or ex post facto law shall be passed.")).
103. Id. (quoting THE FEDERALIST No. 78 (Alexander Hamilton)); see also Archie Parnell, Congressional Interference in Agency Enforcement: The IRS Experience, 89 YALE L.J. 1360, 1385 & n.153 (1980) ("[A]ppropriations acts have been held just as unconstitutional as substantive legislation.").
104. Lovett v. United States, 66 F. Supp. 142, 152 (Ct. Cl. 1945) (Madden, J., concurring in the result).
105. Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 435 (1990) (White, J., concurring) (noting that the majority did "not state that statutory restrictions on appropriations may never fall even if they violate a command of the Constitution").
106. Id. at 417-18 (majority opinion).
107. Id. at 434.
108. Id. at 428.
109. Id. at 435 (White, J., concurring). Justice White provided an example of such an unconstitutional appropriations bill: "Congress could [not] impair the President's pardon power by denying him appropriations for pen and paper." Id.; cf. Knote v. United States, 95 U.S. 149, 154 (1877) (upholding an appropriations rider that limited the President's ability, after granting a pardon, to refund proceeds from a pardonee's forfeited property because the pardon power does not extend that far; therefore, the rider did not infringe on executive power).
110. 37 Op. Att'y Gen. 56, 61 (1933); see also Todd D. Peterson, Controlling the Federal Courts Through the Appropriations Process, 1998 WIS. L. REV. 993, 999-1001 (providing other examples).
111. Rutherford B. Hayes, Veto Message (Apr. 29, 1879), reprinted in IX A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 4476 (1897) (citation omitted).
112. Id. at 4480.
113. Id. at 4479.
114. Id. at 4480.
115. Id. at 4483.
116. See United States v. Will, 449 U.S. 200, 230 (1980) (holding that the rider violated the Compensation Clause).
117. Id. at 230 (holding that a statute effecting a direct diminution of Article III judges' salaries violated the Compensation Clause, even though the same statute applied to other federal officials as well). The Compensation Clause states that federal judges "shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." U.S. CONST. art. III, § 1.
118. See Nat'l Fed'n of Fed. Employees v. United States, 688 F. Supp. 671, 676 (D.D.C. 1988) (describing the executive directive and appropriations rider).
119. Id. at 685.
120. Am. Foreign Serv. Ass'n v. Garfinkel, 490 U.S. 153, 159-60 (1989).
121. Id. at 159-60.
122. Dr. Miles Med. Co. v. John D. Park & Sons Co., 220 U.S. 373, 408-09 (1911).
123. See Brief for United States as Amicus Curiae Supporting Petitioners, Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 (1984) (No. 82-914) (urging the Court not to create a per se violation for certain pricing activities).
124. Act of Nov. 28, 1983, Pub. L. No. 98-166, § 510, 97 Stat. 1071, 1102.
125. See id.
126. See id.; see also J. Gregory Sidak, The Recommendation Clause, 77 GEO. L.J. 2079, 2080 (1988) (describing the Baxter Amendment).
127. See Transcript of Oral Argument, Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 (1984) (No. 82-914), available at http://www.oyez.org/cases/1980-1989/1983/1983_82_914/argument/. At one point in the argument, Justice O'Connor asked the government's advocate whether, "had Congress not adopted the proviso in its appropriation act, [he would] have made possibly a different argument to us today." Id. The attorney responded, "We have not withdrawn part 2(b) of our brief [advocating for the overruling of the Dr. Miles decision], Justice O'Connor. Beyond that I would prefer not to deal with that question." Id.
128. Statement on Signing a Fiscal Year 1984 Appropriations Bill, 2 PUB. PAPERS 1627 (Nov. 28, 1983).
129. U.S. CONST. art. II, § 3; see also Sidak, supra note 122, at 2118-28 (evaluating the constitutionality of "muzzling laws," including the Baxter Amendment, under the Recommendations Clause).
130. The Supreme Court, however, did overrule Dr. Miles in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S. Ct. 2705, 2710 (2007), holding instead that "vertical price restraints are to be judged by the rule of reason." Id. Interestingly, in discussing whether the principle of stare decisis mitigated in favor of retaining the Dr. Miles rule, the Court quickly dismissed the claim that the Baxter Amendment indicated congressional ratification of the rule. See id. at 2724 (stating that the amendment "might demonstrate a different proposition: that Congress could not pass legislation codifying the [Dr. Miles] rule and reached a short-term compromise instead").
131. See Lovett v. United States, 66 F. Supp. 142, 152 (Ct. Cl. 1945) (Madden, J., concurring in the result).
132. See supra note 70.
133. U.S. CONST. art. III, § 1, cl. 1. Congress, of course, created a system of lower federal courts in the Judiciary Act of 1789. Today, there are thirteen federal circuit courts and ninety-four federal district courts. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 1.4.3, at 24, § 1.4.4, at 27 (5th ed. 2007).
134. See U.S. CONST. art. III, § 2.
135. James F. Liebman & William F. Ryan, "Some Effectual Power": The Quantity and Quality of Decisionmaking Required of Article III Courts, 98 COLUM. L. REV. 696, 773 (1998); see also 1 JAMES WILSON, THE WORKS OF THE HONOURABLE JAMES WILSON, L.L.D. 405 (Philadelphia, Bronson & Chauncey 1804) ("The judicial authority consists in applying, according to the principles of right and justice, the constitution and laws to facts and transactions in cases, in which the manner or principles of this application are disputed by the parties interested in them.").
136. See Flast v. Cohen, 392 U.S. 83, 95 (1968) (explaining that the "case" and "controversy" requirements of Article III "define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government").
137. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 2.4, at 54 (3d ed. 2006); see also North Carolina v. Rice, 404 U.S. 244, 246 (1971) (stating that federal courts are powerless to decide questions that will not affect the litigants' rights).
138. Ala. State Fed'n of Labor v. McAdory, 325 U.S. 450, 461 (1945) (citations omitted).
139. CHEMERINSKY, supra note 133, § 2.4, at 56.
140. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937).
141. See id. (finding that declaratory judgment actions have been held to be within the judicial power even though the result of the adjudication may not require a concrete award of process or damages).
142. Compare Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. REV. 123, 148, 154 (1999) (advocating the view that judicial opinions, as opposed to judgments, call for deference, but not obedience), with Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359, 1371-72 (1997) (advocating the view that judicial opinions carry the same force as judgments).
143. See, e.g., Marc S. Mayerson, Executability of Article III Judgments and the Problem of Congressional Discretion: United States v. Board of Education of Chicago, 35 DEPAUL L. REV. 51, 59 (1985).
144. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995) (quoting Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 926 (1989-1990)).
145. See Post & Siegel, supra note 51, at 1035 ("[W]e nonetheless expect constitutional rights to be judicially enforceable to the same extent as are ordinary legal entitlements."). Post and Siegel suggest that judgments involving constitutional rights should have the same entidement to finality as judgments involving private legal rights because "we want citizens to hold rights against their government that are as secure and as reliable as the private rights that they hold against their fellow citizens." Id.
146. Mills v. Green, 159 U.S. 651, 653 (1895) (stating that judicial power requires "actual controversies by a judgment which can be carried into effect").
147. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937) (describing the characteristics of an Article III controversy).
148. Id. at 241.
149. Gilchrist v. Collector of Charleston, 10 F. Cas. 355, 361 (C.C.D.S.C. 1808) (No. 5420) ("The term 'power' [in Article III] could with no propriety be applied, nor could the judiciary be denominated a department of [the] government, without the means of enforcing its decrees.").
150. Gordon v. United States, 117 U.S. 697, 702 (1864); see also Mayerson, supra note 139, at 62 n.70 (discussing later courts' acknowledgment or acceptance of Taney's statement).
151. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Some commentators challenge Marbury's status as a legal landmark. The foundations for and concept of judicial review, they say, were established in the Judiciary Act of 1789. See, e.g., Mark A. Graber, Establishing Judicial Review: Marbury and the Judicial Act of 1789, 38 TULSA L. REV. 609, 610, 612 (2003) (characterizing Marbury as merely an "unoriginal defense" of judicial review). Whatever Marbury's pedigree, however, the concept of judicial review itself has proven crucially important.
152. Marbury, 5 U.S. at 176.
153. Id. at 178.
154. Id. at 177.
155. See Devins & Fisher, supra note 52, at 91 n.58 ("Marbury, of course, did not rule that the Court's constitutional interpretations were final and definitive; instead, the Court simply declared that it had the power to invalidate unconstitutional Congressional action.").
156. See, e.g., Edwin Meese III, The Law of the Constitution, 61 TUL. L. REV. 979, 988 (1987) (rejecting the proposition that "the Court's constitutional interpretations . . . mea[n] the same as the Constitution itself");
157. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 225-26 (1994). But see Alexander & Schauer, supra note 138 passim (defending judicial supremacy on normative grounds).
158. See Meese, supra note 152, at 985-86; Paulsen, supra note 152, at 228-40; cf. THE FEDERALIST NO. 49, at 282 (James Madison) (Clinton Rossiter ed., 1999) (stating that no branch "can pretend to an exclusive or superior right of settling the boundaries between their respective powers"); THE FEDERALIST NO. 78, at 435-36 (Alexander Hamilton) (Clinton Rossiter ed., 1999) (declaring that judicial review does not "by any means suppose a superiority of the judicial to the legislative power").
159. Paulsen, supra note 152, at 218, 225-26. This, of course, begs the question of precisely what functions fall within the sphere of each branch. See also id. at 245 ("[E]ach branch has a power of constitutional review over the constitutional judgments of the others . . . .").
160. See supra note 139 and accompanying text; cf. infra notes 254-55, 271-75 and accompanying text (discussing the Executive's duty to enforce final judgments and noting only one categorical exception to the view that such a duty in fact exists).
161. See, e.g., Meese, supra note 152, at 985.
162. Id. (citing Abraham Lincoln & Stephen A. Douglas, Sixth Joint Debate at Quincy, Illinois (Oct. 13, 1858), in 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN 255 (Roy P. Basier ed., 1953)).
163. Id. (citing Abraham Lincoln, Speech at Springfield, Illinois (July 17, 1858), in 2 THE COLLECTED WORKS OF ABRAHAM LINCOLN 516 (Roy P. Basler ed., 1953).
164. City of Boerne v. Flores, 521 U.S. 507 (1997); see also Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 545 (2001) ("Interpretation of the law and the Constitution is the primary mission of the judiciary when it acts within the sphere of its authority to resolve a case or controversy."); Dickerson v. United States, 530 U.S. 428, 432 (2000) ("[A] constitutional decision of this Court . . . may not be in effect overruled by an Act of Congress . . . ."); United States v. Morrison, 529 U.S. 598, 617 n.7 (2000) ("[E]ver since Marbury this Court has remained the ultimate expositor of the constitutional text.").
165. See Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872 (1990).
166. City of Boerne, 521 U.S. at 515.
167. Id. at 524. Although City of Boerne focused on the power of the Supreme Court, there appears to be no reason to distinguish between judgments rendered by the Supreme Court and unappealed final judgments of lower federal courts. See Michael Stokes Paulsen, The Merryman Power, 15 CARDOZO L. REV. 81, 82 (1993); infra note 192 (discussing Gordon v. United States, 117 U.S. 697 app. (1864). Both the Supreme Court and lower federal courts exercise the same Article III power, and the unappealed final judgment of a lower federal court is the judiciary's final word as to the parties to which the judgment is directed. See U.S. CONST, art. III, § 1 (vesting the "judicial Power" in "one Supreme Court" and "in . . . inferior Courts"); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173 (1803) ("The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States . . . .").
168. U.S. CONST, amend. XIV, § 5.
169. City of Boerne, 521 U.S. at 519.
170. Id.; see also id. at 529 ("If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be 'superior paramount law, unchangeable by ordinary means.'" (quoting Marbury, 5 U.S. at 177)). In City of Boerne, the Court articulated a test for determining whedier a statute is a proper exercise of Congress's Section 5 enforcement powers: "There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. at 520. RFRA failed to satisfy the "congruence and proportionality" test so articulated. See id. at 532.
171. The Court first asserted its authority to review the constitutionality of state court decisions in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816).
172. See Cooper v. Aaron, 358 U.S. 1, 18-19 (1958).
173. See Brown v. Bd. of Educ. (Brown I), 347 U.S. 483, 495 (1954) (holding that the Fourteenth Amendment forbids racial segregation in state schools); see also Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 300 (1955) (ordering state officials to make a "prompt and reasonable start toward full compliance" with Brown I).
174. See Cooper, 358 U.S. at 8-9 (quoting amendment 44 of the Arkansas Constitution, which instructed the state legislature to resist the "[u]n-constitutional desegregation decisions of May 17, 1954 and May 31, 1955 of the United States Supreme Court"); see also ARK. STAT. ANN. § 80-1525 (1960) (relieving school children from compulsory attendance at desegregated schools).
175. See Cooper, 358 U.S. at 11 (describing the Arkansas National Guard's efforts to obstruct desegregation). In September 1957, the Governor of Arkansas dispatched units of the Arkansas National Guard to Little Rock's Central High School to prevent African American students from entering. Id. The students were permitted to enter only after the federal district court entered an injunction and President Eisenhower dispatched federal troops to protect the students. Id. at 11-12. Note that President Eisenhower's intervention to enforce the Court's decision ultimately demonstrates the dependence of the federal courts on the Executive to enforce their judgments.
176. Id. at 11.
177. Id. at 18 (citing U.S. CONST. art. VI); see also United States v. Nixon, 418 U.S. 683, 704 (1974) (noting the "responsibility of this Court as ultimate interpreter of the Constitution"); Baker v. Carr, 369 U.S. 186, 211 (1962) ("[T]his Court [is the] ultimate interpreter of the Constitution . . . ."); 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 375, at 267 (4th ed. 1873) ("[T]here is a final and common arbiter provided by the Constitution itself, to whose decisions all others are subordinate; and that arbiter is the supreme judicial authority of the courts of the Union.").
178. Cooper, 358 U.S. at 18-19 (quoting United States v. Peters, 9 U.S. (5 Cranch) 115, 136 (1809)). Although Cooper's, strong language shows that courts also will not tolerate refusals by state governments to comply with their judgments, the aftermath of Cooper - and of Brown I itself - demonstrates the practical limits of the federal courts' power and, indeed, the courts' reliance on the executive branch for enforcement of their decrees. For more than a decade after the Court's demand for compliance, Southern states made only minimal progress toward school desegregation. In 1968, in Green v. County School Board, the Supreme Court declared that "delays [in desegregation] are no longer tolerable" and ordered the school board in question "to come forward with a plan that promises realistically to work, and promises realistically to work now." Green v. County Sch. Bd., 391 U.S. 430, 438-39 (1968).
179. But cf. Devins & Fisher, supra note 52, at 91-94 (arguing that the Court declares its supremacy out of "fear[] that the political order will ignore its command" or when its constitutional interpretation is "linked with popular outcomes").
180. The Constitution does, of course, grant Congress substantial power to regulate the federal courts. Congress may decide whether to establish any lower federal courts and also may regulate their jurisdiction. Compare, e.g., Akhil Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. PA. I., REV. 1499, 1565 (1990) (arguing that Congress has plenary authority to alter or abolish all federal court jurisdiction except that which is within the original jurisdiction of the Supreme Court), and Julian Velasco, Congressional Control over Federal Court Jurisdiction: A Defense of the Traditional View, 46 CATH. U. L. REV. 671, 763 (1997) (same), with Lawrence Gene Sager, Forward: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 89 (1981) (claiming that the structure of the Constitution as a whole limits Congress's power to withdraw federal court jurisdiction entirely).
181. Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 VA. L. REV. 1045, 1068 (2001).
182. U.S. CONST. art. V (setting forth the amending process); see also Post & Siegel, supra note 51, at 1030 (noting that judicial supremacy does not "prevent citizens from attempting to endow their constitutional beliefs with legal authority" through a constitutional amendment and through electing a presidential candidate who promises to appoint judges with particular constitutional perspectives).
183. INS v. Chadha, 462 U.S. 919, 946 (1983).
184. See, e.g., Bowsher v. Synar, 478 U.S. 714, 733-34 (1986) (striking down a portion of The Balanced Budget and Emergency Deficit Control Act of 1985, which gave the Comptroller General power to make budget cuts); Chadha, 462 U.S. at 952-53 (striking down the legislative veto as a violation of constitutionally prescribed lawmaking procedures found in the Presentment Clause); Myers v. United States, 272 U.S. 52, 163-64 (1926) (striking down a statute that required the President to obtain Senate approval for the removal of postal officials as a violation of the Take Care Clause).
185. Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 443 (1977); see also Morrison v. Olson, 487 U.S. 654, 691, 695 (1988) (applying this principle to the Ethics in Government Act of 1978).
186. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 60-61, 76 (1982) (finding that Congress does not have the power to remove the essential attributes of judicial power from Article III courts and give those attributes to Article I courts); see also Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 850-51 (1986) (stating that an Article I court's constitutional validity depends on the extent to which it "exercises the range of jurisdiction and powers normally vested only in Article III courts," as well as "the origins and importance of the right to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III").
187. Miller v. French, 530 U.S. 327, 341 (2000) ("[T]he Constitution prohibits one branch from encroaching on the central prerogatives of another . . . ."); see also New York v. United States, 505 U.S. 144, 182 (1992) (stating that the separation of powers is violated when "one branch [of the federal government] invades the territory of another"); cf. Gordon v. United States, 117 U.S. 697 app. at 700 (1886) ("The judicial power of the United States is in point of origin and tide equal with the other powers of the government, and is as exclusively vested in the court created by or pursuant to the Constitution, as the legislative power is vested in Congress, or the executive power in the President." (internal quotation omitted)).
188. See supra Part III.B.1.
189. Hayburn's Case, 2 U.S. (2 Dall.) 409, 409 (1792).
190. Id. at 410 n.†.
191. Id.
192. Miller, 530 U.S. at 343 (quoting Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 224 (1995)).
193. Gordon v. United States, 117 U.S. 697 app. (1864) (opinion issued); see also Gordon v. United States, 69 U.S. (2 Wall.) 561 (1864) (order dismissing case).
194. Gordon, 117 U.S. app. at 698.
195. See id. app. at 698-99 (discussing the statute's removal of the court's power to enter a final judgment).
196. Taney had circulated his draft opinion to his colleagues just before his death. See id. app. at 697. The draft was lost and the Court announced only its judgment in the case. Id.; see also Gordon, 69 U.S. (2 Wall.) at 561 (1864). Taney's draft was found in 1886 and published in the appendix to the U.S. Reports. See Gordon, 117 U.S. app. at 697; see also United States v. Jones, 119 U.S. 477, 477-78 (1886) (discussing Gordon's history). The Supreme Court subsequendy has treated Taney's opinion as audioritative. See, e.g., Plaut, 514 U.S. at 226; N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 86 n.38 (1982); ICC v. Brimson, 154 U.S. 447, 484 (1894) (plurality opinion).
197. Although most of the opinion focuses on the judicial power vested in the Supreme Court, Chief Justice Taney made clear that inferior federal courts possess the same judicial power and are "authorized to render a judgment which will bind the rights of the parties . . . and upon which the appropriate process of execution may be issued." Gordon, 117 U.S. app. at 697; see also supra note 162 (stating that there is no reason to distinguish between Supreme Court and lower federal court judgments).
198. Gordon, 117 U.S. app. at 702.
199. Id. app. at 703.
200. See Plaut, 514 U.S. at 240 (holding unconstitutional the law in question that required federal courts to reopen certain previous judgments).
201. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 361 (1991).
202. See Federal Deposit Insurance Corporation Improvement Act of 1991, Pub. L. No. 102-242, § 476, 105 Stat. 2236, 2287 (codified at 15 U.S.C. § 78aa-1 (2000)).
203. Plaut, 514 U.S. at 217-18 (quoting U.S. CONST. art III, § 1). The Court examined the history of the colonial period, in which there were several legislative efforts to correct court judgments by vacating the judgments and ordering new proceedings, and concluded that the Framers sought to separate the legislative from the judicial power and to insulate final judgments from legislative revision. See id. at 220-21; see also THE FEDERALIST NO. 48, at 207 (James Madison) (Clinton Rossiter ed., 1999) (criticizing the legislative department for "drawing all power into its impetuous vortex"); THE FEDERALIST NO. 81, at 452 (Alexander Hamilton) (Clinton Rossiter ed., 1999) ("A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases.").
204. Plaut, 514 U.S. at 219.
205. See Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948) ("Judgments within the powers vested in the courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government.").
206. Plaut, 514 U.S. at 227.
207. Id. at 228.
208. Id.
209. Pennsylvania v. Wheeling & Belmont Bridge Co. (Wheeling Bridge II), 59 U.S. (18 How.) 421, 431 (1855).
210. Id.
211. See supra Part II.A.
212. Wheeling Bridge II, 59 U.S. (18 How.) 421.
213. Miller v. French, 530 U.S. 327 (2000).
214. Pennsylvania v. Wheeling & Belmont Bridge Co. (Wheeling Bridge I), 54 U.S. (13 How.) 518, 519 (1851).
215. Wheeling Bridge II, 59 U.S. (18 How.) at 429.
216. Id. at 422.
217. Id. at 431-32.
218. Id.
219. Id. at 432. There has been considerable debate concerning whether, after Wheeling Bridge II, Congress may modify the law underlying final injunctive relief only when that law involves "public rights" or also when the law involves "private rights." See Brian M. Hoffstadt, Retaking the Field: The Constitutional Constraints on Federal Legislation that Displaces Consent Decrees, 77 WASH. U. L.Q. 53, 73-77 (1999) (surveying cases and commentary in the debate). The scope of this Article does not require a resolution of that debate.
220. Miller v. French, 530 U.S. 327, 331 (2000).
221. See 18 U.S.C. § 3626(b) (2000) ("In any civil action with respect to prison conditions in which prospective relief is ordered, such relief shall be terminable upon the motion of any party or intervenor . . . ."). The constitutionality of § 3626(b) was not at issue in Miller. See Miller, 530 U.S. at 347 (noting that the Court assumed, "widiout deciding, that the new standards it pronounces are effective").
222. See 18 U.S.C. § 3626(e)(2) ("Any motion to modify or terminate prospective relief made under subsection (b) shall operate as a stay during [a limited period] and . . . ending on the date the court enters a final order ruling on the motion.").
223. See Miller, 530 U.S. at 338 (concluding that, "in the context of § 3626 as a whole[,] . . . Congress intended to prohibit federal courts from" suspending a stay on equitable grounds).
224. See 18 U.S.C. § 3626(b)(3) (allowing a district court to enter a new remedial decree upon finding "that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation").
225. Miller, 530 U.S. at 350.
226. Id. at 343.
227. Id. at 344. Whereas Plaut held that Congress cannot reopen final judgments in suits for money damages, it explicidy distinguished legislation that "altered the prospective effect of injunctions entered by Article III courts." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 232 (1995).
228. Miller, 530 U.S. at 344.
229. Id. at 348. The Supreme Court also concluded that the PLRA's automatic stay provision did not prescribe a rule of decision to a pending case, an act also proscribed by separation-of-powers principles. Id. That prohibition was articulated in United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). Klein sought to recover the value of property seized by the United States during the Civil War under a statute that allowed for recovery upon a showing that the property owner had not given aid or comfort to the Confederacy. Id. at 131. While Klein's case was pending, Congress passed a statute providing that if the property owner had received a presidential pardon, the pardon was proof that the property owner had, in fact, aided the Confederacy. Id. at 134. The statute overruled the Supreme Court's holding in United States v. Padelford, 76 U.S. (9 Wall.) 531, 542-43 (1869), that as a matter of statutory interpretation, pardons should be construed as proof that no aid or comfort had been given. In Klein, the Court held that Congress's intervening statute violated the separation of powers because it attempted to "prescribe rules of decision to the Judicial Department of the government in cases pending before it." Klein, 80 U.S. at 146. The precise scope of Klein has been the topic of considerable debate. See generally, e.g., William D. Araiza, The Trouble with Robertson: Equal Protection, the Separation of Powers, and the Line Between Statutory Amendment and Statutory Interpretation, 48 CATH. U. L. REV. 1055 (1999); Hoffstadt, supra note 214, at 66-69. But the Supreme Court has since made it clear that Klein does not prevent Congress from amending applicable law. See, e.g., Plaut, 514 U.S. at 218, Robertson v. Seattle Audubon Soc'y, 503 U.S. 429, 441 (1992).
230. Miller, 530 U.S. at 350-53 (Souter, J., concurring in part and dissenting in part).
231. Id. at 351.
232. Id. at 351-52.
233. Id. at 352.
234. Id.
235. Miller, 530 U.S. at 350.
236. Wheeling Bridge II is distinguishable on this basis, and thus its analysis does not squarely govern the enforcement-blocking provisions passed in response to the constitutional rulings in Newdow, Glassroth, and Russelburg. See generally Pennsylvania v. Wheeling & Belmont Bridge Co. (Wheeling Bridge II), 59 U.S. (18 How.) 421 (1855).
237. See supra Part III.B.2 (analyzing the "judicial Power" in Article III).
238. In each situation, Congress left open the possibility of voluntary action by the defendant to remedy the constitutional violation. However, this does not bring the two situations into alignment. The Miller Court did not mention, much less rely on, this possibility in upholding the automatic stay provision.
239. Miller, 530 U.S. at 350.
240. Id. at 351-52 (Souter, J., concurring in part and dissenting in part).
241. See Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 n.† (1792).
242. U.S. CONST. art. II, § 3.
243. Buckley v. Valeo, 424 U.S. 1, 138 (1976) (invalidating the provision of federal election law that allowed both the President and Congress to appoint members of the Federal Election Commission ("FEC") because the FEC is an executive agency responsible for enforcing and monitoring compliance with federal election laws).
244. Other presidential duties include ' giving periodic State of the Union addresses, recommending measures to Congress, receiving ambassadors and other public ministers, and commissioning all of the officers of the United States. See U.S. CONST. art. II, § 3. These "immutable duties" contrast with executive prerogatives, in which the Executive may, but need not, engage, such as the ability to pardon, make treaties, or prosecute crimes. See LeBoeuf, supra note 87, at 463 (explaining that Congress cannot use an appropriations rider to expand its powers).
245. See J. Gregory Sidak, The President's Power of the Purse, 1989 DUKE L.J. 1162, 1183 (considering the relationship between the President's duties and prerogatives and Congress's appropriations power).
246. See LeBoeuf, supra note 87, at 464 (describing executive duties as well as Congress's obligation to fund the performance of those duties).
247. Bowsher v. Synar, 478 U.S. 714, 733 (1986). Of course, the Executive must act in a manner consistent with congressional intent. See Kendall v. United States ex. rel. Stokes, 37 U.S. (12 Pet.) 524, 524 (1838).
248. 2 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1785).
249. 1 id.
250. 5 THE OXFORD ENGLISH DICTIONARY 522 (2d ed. 1989) (emphasis added).
251. John Harrison, The Role of the Legislative and Executive Branches in Interpreting the Constitution, 73 CORNELL L. REV. 371, 372 (1988);
252. cf. William Baude, The Judgment Power, 96 GEO. L.J. (forthcoming 2008), available at http://ssrn.com/abstract=1073942 ("The President's obligation to ensure faithful execution of the law included an obligation to ensure faithful execution of lawful judgments, because judgments were seen implicidy by nearly everybody to have a legal status like the laws under which they were issued."); Paulsen, supra note 152, at 277 ("If court decisions constitute 'law' binding on the parties (just as statutes are 'laws' of general applicability), then the branch charged with the faithful execution of those laws is, as Hamilton recognized in The Federalist No. 78, the executive branch.").
253. See Richard A. Bales, A Constitutional Defense of Qui Tam, 2001 WIS. L. REV. 381, 409-10 & n.216 ("[Relatively little is known about the original meaning of the Take Care Clause, and there similarly are relatively few cases in which the Supreme Court has discussed its breaddi."); Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 61-70 (1994) (reviewing the history and structure of the Take Care Clause and noting that "at the founding, the clause received relatively litde consideration by practically everyone in the debate"). It might be possible to argue that the creation of the U.S. Marshals Service in the Judiciary Act of 1789, at the same time as the creation of the lower federal courts, suggests that the first Congress understood that there needed to be an executive mechanism for the enforcement of court orders.
254. Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267, 1315 & n.225 (1996) (listing nineteen examples, including Article I, Section 9, Clause 3's prohibition on congressional passage of any ex post facto law).
255. Id. at 1318.
256. See supra Part III.C.1 (discussing legislative responses to final court orders).
257. Lawson & Moore, supra note 248, at 1319; see also Steven G. Calabresi, Caesarism, Departmentalism, and Professor Paulsen, 83 MINN. L. REV. 1421, 1425 (1999) ("[Judicial] power . . . was . . . a power finally to resolve actual disputes . . . in such a way that there was a substantial likelihood that a court decision would have some real world effect.").
258. Burt Neuborne, The Binding Quality of Supreme Court Precedent, 61 TUL. L. REV. 991, 998-99 (1987).
259. Id. at 993.
260. Easterbrook, supra note 140, at 926.
261. Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 CARDOZO L. REV. 43, 46 (1993) (stating that this obligation exists "regardless of whether the executive agrees with the legal analysis that forms the basis for the judgment" (citing Easterbrook, supra note 140, at 926)); see also Calabresi, supra note 251, at 1427 ("[T]he President is legally bound to execute federal court judgments . . . . Even Presidents who ardendy subscribed to departmentalism have acknowledged the legally binding force and obligation to execute a judicial judgment with which they disagreed."); Meese, supra note 152, at 983 ("[A] constitutional decision by the Supreme Court . . . binds the parties in a case and also the executive branch for whatever enforcement is necessary."); David A. Strauss, Presidential Interpretation of the Constitution, 15 CARDOZO L. REV. 113, 121 (1993) (noting the "increasingly popular" view that "[t]he President must comply with the judgments of the Court in particular cases" but "the President need go no further in following what the Court says"); cf. Devins, supra note 87, at 475 ("Limitation riders may run afoul of the Constitution if they prohibit the Executive from implementing final court orders.").
262. See supra note 48 (discussing Nixon's compliance); see also Merrill, supra note 255, at 47 (same).
263. See supra note 170 (discussing President Eisenhower's decision).
264. President's Power to Use Federal Troops to Suppress Resistance to Enforcement of Federal Court Orders - Litde Rock, Arkansas, 41 Op. Att'y Gen. 313, 322 (1957).
265. See id. passim.
266. Id. at 320-21.
267. Id. at 324.
268. Id. at 326 (citing Ex parte Siebold, 100 U.S. 371, 395 (1879), and statutory authority for the President to quell civil disturbances).
269. Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487). Other presidents have asserted their desire and right to defy the Supreme Court by refusing to execute a judgment, but President Lincoln is the only president actually to do so. See supra note 57 (noting President Andrew Jackson's response to Worcester v. Georgia); see also Paulsen, supra note 152, at 259 & n.159 (discussing President Jackson's veto of the bill rechartering the Bank of the United States and noting that he was not in fact defying or refusing to enforce the Court's judgment in McCulloch v. Maryland); Letter from Thomas Jefferson to Abigail Adams (Sept. 11, 1804), in 11 THE WRITINGS OF THOMAS JEFFERSON 50-51 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1905) (explaining his decision to exercise the presidential pardon power on behalf of those convicted under the Sedition Act of 1798 - even though the federal courts had upheld the Act's constitutionality - and writing that "nothing in the Constitution has given [the judges] a right to decide for
270. See Paulsen, supra note 162, at 90.
271. Merryman, 17 F. Cas. at 147.
272. Id. at 149.
273. Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), reprinted in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN, 421, 430 (Roy P. Basler ed., 1953).
274. 10 Op. Att'y Gen. 74 (1861).
275. Id. at 76-77; see also THE FEDERALIST NO. 49, at 281-82 (James Madison) (Clinton Rossiter ed., 1999) (asserting coordinacy of branches); THE FEDERALIST NO. 51, at 288-89 (James Madison) (Clinton Rossiter ed., 1999) (stating that checks and balances will keep each branch in its proper place).
276. 10 Op. Att'y Gen. at 85.
277. See Merrill, supra note 255, at 47 (citing JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT 140-50 (1980)); cf. Baude, supra note 246, at 61-66 (positing that Lincoln and Bates did not claim the executive power to ignore judgments entered by courts of competent jurisdiction, but rather may have disregarded Taney's order because Taney lacked the jurisdiction to issue the writ (citing DANIEL FARBER, LINCOLN'S CONSTITUTION 190-91 (2003)).
278. Paulsen, supra note 162, at 85; see supra notes 153-54 and accompanying text; see also THE FEDERALIST NO. 49, at 282 (James Madison) (Clinton Rossiter ed., 1999) ("The several departments being perfecdy co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.").
279. Lawson & Moore, supra note 248, at 1323 (summarizing Paulsen's thesis).
280. Paulsen, supra note 152, at 276; see also Paulsen, supra note 162, at 84 (stating that "there is no such thing as judicial supremacy: the President has legitimate constitutional authority to disregard any judicial decree or precedent he chooses"); id. at 109 ("[The President] may decline to enforce . . . even specific judgments between private parties whenever, in his independent legal judgment, the court's ruling is incorrect. . . . The decisions of courts, in any matter requiring executive enforcement, are entided to such persuasive weight only as the President may think them worth.").
281. Paulsen, supra note 152, at 252.
282. See supra notes 246, 251-55 and accompanying text.
283. Lawson & Moore, supra note 248, at 1325-26 (citation omitted).
284. Calabresi, supra note 251, at 1425 & n.17.
285. See id. at 1425-31.
286. See Baude, supra note 246, at 5. Baude contends that the original understanding of the Article III judicial power, in conjunction with the common law of judgments, indicates that a federal court's resolution of any "case" or "controvers[y] " within its jurisdiction is necessarily binding on all, including the Executive. See id. at 12-37.
287. See id. at 32-33.
288. See supra Part III.B.1.
289. Cf. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 225 (1995) ("Our decisions stemming from Hayburn's Case - although their precise holdings are not stricdy applicable here - have uniformly provided fair warning that such an act exceeds the powers of Congress." (internal citations omitted)).
290. See supra Part III.C.2.
291. See supra notes 238-46 and accompanying text.
292. See supra notes 248-49 and accompanying text.
293. Cf. Morrison v. Olson, 487 U.S. 654, 705-11 (1988) (Scalia, J., dissenting) (applying a formalist separation-of-powers inquiry to independent-counsel provisions of the Ethics in Government Act of 1978); INS v. Chadha, 462 U.S. 919, 946 (1983).
294. Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 443 (1977).
295. See supra note 27 and accompanying text. It is not clear whether this decision to enforce Russelburg is predicated on substantive agreement with the order or on a prudential decision to enforce despite substantive disagreement.
296. Cf. Miller v. French, 530 U.S. 327, 341 (2000) ("[T]he Constitution prohibits one branch from encroaching on the central prerogatives of another.").
297. See supra note 272 and accompanying text.
298. See Paulsen, supra note 152, at 252.
299. See supra note 1 and accompanying text.
300. See supra Part III.A.
301. See supra Part III.B.
302. See supra Part III.C.2.