Defending executive nondefense and the principal-agent problem

Northwestern University Law Review

Volumn 106, Issue 3, 2012, Pages 1201-1260

  Gorod, Brianne J ^a  

^a NONE

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EID: 84866945278     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (453)

1. See infra notes 137-43 and accompanying text. Although the Executive Branch is often responsible for acting on behalf of the "United States" as a whole, it also must exercise its own constitutional obligations.
2. See U.S. CONST. art. II, § 3 (providing that the President "shall take Care that the Laws be faithfully executed").
3. See infra notes 123-33 and accompanying text.
4. See infra Part V. 28 U.S.C. § 516 (2006).
5. Id. § 547(1)-(2).
6. Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7 (2006), 28 U.S.C. § 1738C).
7. 1 U.S.C. § 7.
8. Letter from Eric H. Holder, Jr., Attorney Gen., to John A. Boehner, Speaker, U.S. House of Representatives 5 (Feb. 23, 2011), available at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html. Prior to that announcement, the Obama Administration had been defending DOMA in court and had been criticized for doing so.
9. See, e.g., Paul Hogarth, Obama's DOMA Defense Unacceptable, HUFFINGTON POST (June 15, 2009, 12:49 PM), http://www.huffingtonpost.com/paul-hogarth/obamas-doma-defense-unacc_b_215718.html (criticizing the Administration for "advanc[ing] legal arguments that-if pursued by the courts-could greatly damage gay and lesbian rights").
10. Earlier in the Administration, the President and his advisers also confronted the question whether to defend in court the ban on openly gay men and women serving in the military.
11. See 10 U.S.C. § 654 (2006). In that case, "the Obama administration's Justice Department... continued with appeals, saying [it was] bound by a 'duty to defend' the laws even if it [did not] like them."
12. Devin Dwyer, "Don't Ask, Don't Tell": Is Obama Administration Bound to Defend Law It Opposes?, ABC NEWS (Oct. 21, 2010), http://abcnews.go.com/Politics/dont-debate-obama-administrations-legal-defense-gay-ban/story?id=11928405.
13. See, e.g., Newt Gingrich Discusses Potential Obama Impeachment, HUFFINGTON POST (Feb. 25, 2011, 6:42 PM), http://www.huffingtonpost.com/2011/02/25/newt-gingrich-obama-impeachment-palin_n_828506.html ("House Republicans. should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job." (alteration in original) (quoting former Speaker of the House and Republican presidential candidate Newt Gingrich)).
14. Adam Winkler, Why Obama Is Wrong on DOMA, HUFFINGTON POST (Feb. 24, 2011, 12:01 PM), http://www.huffingtonpost.com/adam-winkler/why-obama-is-wrong-on-dom_b_827676.html ("Don't be surprised if a President Palin points to Obama's decision when announcing her refusal to enforce and defend the landmark healthcare reform law because, in her view, the individual mandate is unconstitutional.").
15. Although I focus in this Article on the federal government, this issue arises at the state level as well. Most recently, the litigation surrounding Proposition 8, the California ballot initiative that overturned an earlier California Supreme Court decision recognizing a right to same-sex marriage under the California Constitution, gave rise to the same questions about the Executive Branch's responsibility to defend the constitutionality of challenged statutes.
16. See In re Marriage Cases, 183 P.3d 384, 401 (Cal. 2008). In that case, then-Governor Arnold Schwarzenegger and then-Attorney General Edmund Gerald Brown decided not to defend the Proposition and, like President Obama, were subject to both praise and criticism for their decision. See generally.
17. Vikram David Amar, Lessons from California's Recent Experience with Its Non-Unitary (Divided) Executive: Of Mayors, Governors, Controllers, and Attorneys General, 59 EMORY L.J. 469 (2009) (discussing Attorney General Brown's decision not to defend Proposition 8 and asking whether there are lessons in that decision for the federal government).
18. And in Wisconsin, Governor Scott Walker told the courts that he could no longer defend the state's domestic partner registry because he believed it was unconstitutional. See.
19. Todd Richmond, Walker: Domestic Partner Law Is Unconstitutional, WIS. L.J. (May 16, 2011, 9:14 PM), http://wislawjournal.com/2011/05/16/walker-domestic-partner-law-is-unconstitutional/.
20. Orin Kerr, The Executive Power Grab in the Decision Not to Defend DOMA, VOLOKH CONSPIRACY (Feb. 23, 2011, 3:49 PM), http://volokh.com/2011/02/23/the-executive-power-grab-in-the-decision-not-to-defend-doma/.
21. See U.S. CONST. art. II, § 3.
22. see also Heckler v. Chaney, 470 U.S. 821, 832 (1985) ("[A]n agency's refusal to institute proceedings shares to some extent the characteristics of the decision of a prosecutor in the Executive Branch not to indict-a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to 'take Care that the Laws be faithfully executed.'" (quoting U.S. CONST. art. II, § 3)). See generally.
23. James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521-1523 (1981) (examining "the nature, scope, and effects of prosecutorial power" and arguing against "its present expanded form").
24. See infra Part II.C.
25. Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1649 (2011) (Roberts, C.J., dissenting).
26. See, e.g., Cooper v. Aaron, 358 U.S. 1, 18 (1958) ("[Marbury v. Madison] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.").
27. Marbury V. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.").
28. see also City of Boerne v. Flores, 521 U.S. 507, 516 (1997) (reaffirming the "judicial authority to determine the constitutionality of laws, in cases and controversies"). To be sure, there is substantial debate within the academic community about whether the judiciary should play this role.
29. see infra note 162, but "[j]udicial supremacy has been, to an increasing degree over time, the practice for the better part of the two centuries since Marbury,"
30. Dale Carpenter, Judicial Supremacy and Its Discontents, 20 CONST. COMMENT. 405-422 (2003). I therefore take as my starting point the assumption that the courts are the final expositors of constitutional meaning. But this position nonetheless allows for the Executive Branch to develop and advance-within limits-its own interpretation of the Constitution.
31. See, e.g., Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2312-2359 (2006) ("[I]f there is a problem with sweeping delegations, it would seem to be primarily a matter of time inconsistency. Patterns of party control change periodically, but many broad delegations passed under unified government stay in effect indefinitely, until the statutes are revised or repealed.").
32. It seems certain, for example, that a Democrat-controlled House would have declined to defend DOMA.
33. See, e.g., Felicia Sonmez & Ben Pershing, Boehner Moves to Defend Gay-Marriage Ban, WASH. POST, Mar. 5, 2011, at A2 (quoting House Minority Leader Nancy Pelosi as saying, "I oppose Speaker Boehner's effort to put the House in the position of defending this indefensible statute.").
34. Indeed, when the House Bipartisan Legal Advisory Committee voted to defend the statute, the measure passed by a 3-2 party-line vote.
35. See Letter from Rep. Nancy Pelosi, Democratic House Leader, to Rep. John Boehner, Speaker of the House, U.S. House of Representatives (Mar. 11, 2011), available at http://pelosi.house.gov/news/press-releases/2011/03/pelosi-letter-to-speaker-boehner-on-house-counsel-defense-of-doma.shtml.
36. There are, for example, interesting questions about the internal processes by which conflicts within the Executive Branch are resolved and what role the President should or must play in those conflicts. There are also interesting questions about whether the DOJ should consider anew the constitutionality of every statute it is called upon to defend or whether it should instead confer a presumption of constitutionality on validly enacted legislation. If the latter, the question then becomes how it should determine which statutes are selected for special review and what role, if any, the President should or must play in that process. These are questions that I hope to take up in the future.
37. Cf., e.g., Daniel B. Rodriguez, Management, Control, and the Dilemmas of Presidential Leadership in the Modern Administrative State, 43 DUKE L.J. 1180, 1194-95 (1994) ("[T]he President sits atop the regulatory system as the leader of the federal bureaucracy. If anyone is positioned to coordinate diffuse regulatory policy, it is the President, as leader of the executive branch.").
38. George F. Fraley, III, Note, Is the Fox Watching the Henhouse?: The Administration's Control of FEC Litigation Through the Solicitor General, 9 ADMIN. L.J. AM. U. 1215-1233 (1996) ("The Solicitor General is appointed by the President who is likely to select a candidate with similar political and philosophical views.").
39. See infra note 162 and accompanying text. Indeed, relying in part on this view, Neal Devins and Saikrishna Prakash have recently argued that the executive branch has no duty either to defend or enforce challenged laws.
40. See Neal Devins & Saikrishna Prakash, The Indefensible Duty to Defend, 112 COLUM. L. REV. 507-509 (2012).
41. See infra notes 162-66 and accompanying text.
42. See, e.g., Amanda Frost, The Limits of Advocacy, 59 DUKE L.J. 447 (2009).
43. Brianne J. Gorod, The Adversarial Myth: Appellate Court Extra-Record Factfinding, 61 DUKE L.J. 1 (2011).
44. Brian P. Goldman, Note, Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?, 63 STAN. L. REV. 907 (2011).
45. See, e.g., Chrysanthe Gussis, Note, The Constitution, the White House, and the Military HIV Ban: A New Threshold for Presidential Non-Defense of Statutes, 30 U. MICH. J.L. REFORM 591-607 (1997).
46. See, e.g., id. at 608 (discussing President Kennedy's decision not to defend "a separate-but-equal provision of a law that provided federal funding for racially segregated hospitals").
47. The Attorney General's Duty to Defend the Constitutionality of Statutes, 43 Op. Att'y Gen. 325, 325 (1981).
48. Gussis, C., supra note 23, at 610.
49. In letters to the Senate Legal Counsel advising the Senate that the DOJ would not be defending a statute in court, "Attorney General Griffin Bell closed his letters with the following statement: 'The Department of Justice is, of course, fully mindful of its duty to support the laws enacted by Congress. Here, however, the Department has determined, after careful study and deliberation, that reasonable arguments cannot be advanced to defend the challenged statute.'"
50. Drew S. Days III, Lecture, In Search of the Solicitor General's Clients: A Drama with Many Characters, 83 KY. L.J. 485-503 (1995) (quoting Letter from Attorney Gen. Griffin Bell to Sen. Robert Byrd 2 (May 8, 1979)).
51. 1 Stat. 73, 92 (1789). The Judiciary Act also created the office of "attorney-general for the United States,... whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned."
52. Id. at 93.
53. Neal Devins & Michael Herz, The Uneasy Case for Department of Justice Control of Federal Litigation, 5 U. PA. J. CONST. L. 558, 559-60 (2003) (emphasis omitted).
54. Id. at 559-60 (noting that the Executive Branch's management of the United States' litigation remained "diffuse and decentralized" until the twentieth century).
55. Exec. Order No. 6166, § 5 (1933), reprinted as amended in 5 U.S.C. § 901 (2006). President Wilson had earlier made a similar attempt, "but the change was largely ineffective and, in any event, temporary."
56. Neal Devins & Michael Herz, The Battle that Never Was: Congress, the White House, and Agency Litigation Authority, 61 LAW & CONTEMP. PROBS. 205-207 n.8 (1998).
57. 28 U.S.C. § 516 (2006). The statute does provide that other statutory provisions may trump this reservation in particular cases.
58. See id.
59. Id. § 519.
60. Id. § 517.
61. Ponzi v. Fessenden, 258 U.S. 254-262 (1922); see also
62. Devins N., & Herz, M., supra note 29, at 560 ("In general, then, the Department of Justice is the litigator for the United States and its administrative agencies. Agencies may not employ outside counsel for litigation and must refer all matters to DOJ." (footnote omitted)).
63. U.S. DEP'T OF JUSTICE, U.S. DEPARTMENT OF JUSTICE OVERVIEW 1 (2011), available at http://www.justice.gov/jmd/2012summary/pdf/fy12-bud-summary-request-performance.pdf.
64. See id. at 3.
65. See § 2403(a) (allowing the United States to intervene to defend the constitutionality of a federal statute).
66. See, e.g., Omari Scott Simmons, Picking Friends from the Crowd: Amicus Participation as Political Symbolism, 42 CONN. L. REV. 185-213 (2009) ("Today, as much as forty-five percent of the Solicitor General's argumentation is through amicus submission.").
67. Marbury v. Madison, 5 U.S. (1 Cranch) 137-177 (1803).
68. See Todd Lochner, Note, The Relationship Between the Office of Solicitor General and the Independent Agencies: A Reevaluation, 79 VA. L. REV. 549-561 (1993) ("By far the most frequent amici before the Court, the United States is also one of the most successful. On average, the Office wins seventy-five percent of the cases in which it participates as amicus curiae" (footnote omitted)).
69. Margaret Meriwether Cordray & Richard Cordray, The Solicitor General's Changing Role in Supreme Court Litigation, 51 B.C. L. REV. 1323-1338 (2010) ("[T]he Solicitor General's participation in the Supreme Court's docket has become nearly pervasive [T]he Solicitor General has been participating in seventy-five percent of the merits cases since the mid-1990s, though increasingly in cases where the government itself is not a party.").
70. Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743-782 (2000) ("[T]he interests of the executive branch and of Congress are nearly always represented in the Supreme Court by the Solicitor General").
71. See, e.g., Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011) (Commonwealth of Virginia suing the Secretary of the U.S. Department of Health and Human Services to challenge federal health care reform).
72. United States v. Arizona, 641 F.3d 339 (9th Cir. 2011), aff'd in part 132 S. Ct. 2492 (2012) (U.S. DOJ suing the State of Arizona to challenge Arizona's controversial immigration statute).
73. Although the trial court is supposed to establish the factual record on which the case will be decided, that is often not the case.
74. See Gorod, C., supra note 22, at 28-35.
75. See Complaint for Declaratory and Injunctive Relief, Pedersen v. Office of Pers.
76. Mgmt. No. 3:10-cv-01750-VLB (D. Conn. Nov. 9, 2010).
77. Complaint, Windsor v. United States, No. 10-cv-8435 (S.D.N.Y. Nov. 9, 2010).
78. See, e.g., Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. 2010), aff'd sub nom. Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012).
79. See Letter from Eric H. Holder, Jr., Attorney Gen., to John A. Boehner, Speaker, U.S. House of Representatives, supra note 8, at 1-2 ("Previously, the Administration has defended [DOMA] Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.").
80. See id. at 2 ("These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue.").
81. See id.
82. Id. at 5.
83. Id.
84. Id.
85. Seth P. Waxman, Defending Congress, 79 N.C. L. REV. 1073-1083 (2001).
86. Id. at 6 ("Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases.").
87. See Molly K. Hooper, House Leaders Vote to Intervene in DOMA Defense, THE HILL (Mar. 9, 2011, 6:43 PM), http://thehill.com/blogs/blog-briefing-room/news/148521-house-leaders-vote-to-intervene-in-doma-defense ("In a party-line vote of 3-2, the five-member BLAG. gave the House general counsel the authority to retain outside counsel to defend the Defense of Marriage Act (DOMA)."); see also.
88. Carolyn Lochhead, Nancy Pelosi Asks John Boehner How Much DOMA Litigation Will Cost, SFGATE POLITICSBLOG (Mar. 11, 2011, 12:46 PM), http://www.sfgate.com/cgi-bin/blogs/nov05election/detail?entry_id=84843#ixzz1GgMd92ov ("The American people want Congress to be working on the creation of jobs and ensuring the continued progress of our economic recovery rather than involving itself unnecessarily in such costly and divisive litigation." (quoting Rep. Nancy Pelosi explaining her opposition to the House's continued defense of the statute)).
89. Marcia Coyle, Boehner Says House Will Intervene to Support Defense of Marriage Act, BLT: BLOG OF LEGALTIMES (Mar. 4, 2011, 4:09 PM), http://legaltimes.typepad.com/blt/2011/03/boehner-says-house-will-intervene-to-support-defense-of-marriage-act.html (quoting Rep. John Boehner).
90. See, e.g., Amanda Terkel, DOMA Defense: Lawmakers Puzzled Where House GOP Is Getting the Money to Pay Paul Clement, HUFFINGTON POST (May 13, 2011, 5:54 PM), http://www.huffingtonpost.com/2011/05/13/doma-defense-gop-paul-clement_n_861548.html. Clement's defense of the law became the subject of considerable controversy after his law firm, King & Spalding, decided to withdraw from the litigation, and Clement in turn resigned from the firm.
91. See, e.g., Ashby Jones, After King & Spalding Drops DOMA Case, Clement Drops Firm, WALL ST. J.L. BLOG (Apr. 25, 2011, 12:09 PM), http://blogs.wsj.com/law/2011/04/25/after-king-spalding-drops-doma-case-clement-drops-firm/.
92. Dwyer, D., supra note 8 (quoting Ted Olson).
93. See Cordray M M., & Cordray, R., supra note 42, at 1329-30 ("[T]he Solicitor General considers whether the facts of a particular case present the issues and the government's position favorably, how the case will impact the long-term development of the law, whether the subject area will be of interest to the Court, and whether the government will win on the merits."); cf.
94. Letter from Andrew W. Stroud, Counsel for Governor Arnold Schwarzenegger, to the Honorable Ronald M. George, Chief Justice of the Cal. Supreme Court 2 (Sept. 8, 2010), available at http://metroweekly.com/poliglot/2010/09/08/GovLetterBrief.pdf ("Litigation involves strategic decisions. The filing of a notice of appeal is one such strategic decision.").
95. Rex E. Lee, Lawyering for the Government: Politics, Polemics & Principle, 47 OHIO ST. L.J. 595-598 (1986).
96. see also infra Part III.C (discussing the Solicitor General's special relationship with the Court).
97. Representation of Congress and Congressional Interests in Court: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 94th Cong. 6 (1975-1976) [hereinafter Buckley Hearings] (statement of Rex E. Lee, Assistant Att'y Gen., Civil Div.).
98. see also Cordray M. M., & Cordray, R., supra note 42, at 1330 ("The Solicitor General also must prioritize, bringing only the most important cases to the Court.").
99. It is admittedly a bit odd to suggest that the government might ever view a decision holding a federal law unconstitutional as insufficiently significant to merit the Supreme Court's review. Indeed, the Supreme Court will generally grant certiorari in such circumstances.
100. See, e.g., Lynn A. Baker, Lochner's Legacy for Modern Federalism: Pierce County v. Guillen as a Case Study, 85 B.U. L. REV. 727-733 (2005) ("Because the Washington Supreme Court had held a federal statute unconstitutional, there was no question that the U.S. Supreme Court would grant certiorari in the case.").
101. Buckley Hearings, supra note 60, at 6.
102. See, e.g., Arthur S. Miller & Jeffrey H. Bowman, Presidential Attacks on the Constitutionality of Federal Statutes: A New Separation of Powers Problem, 40 OHIO ST. L.J. 51-57 (1979) ("Particularly vexatious to the President and Congress was that many of these decisions resulted from private suits in which no one appeared on behalf of the government. Public policy was being made in those lawsuits, which at times concerned only trivial matters for the litigants but had portentous consequences for the nation. (footnote omitted)).
103. see also H.R. REP. NO. 75-212, at 2 (1937) ("The people generally, who then become directly interested in and vitally affected by what otherwise would be a private lawsuit, are entitled to have their representative appear with the right to present whatever evidence and argument may be necessary fully to develop and adequately to present that issue to the court."). 28 U.S.C. § 2403(a) (2006) ("The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.").
104. The same statute provides that the state attorney general should similarly be notified where the constitutionality of a state statute is called into question.
105. See id. § 2403(b).
106. Petition for a Writ of Certiorari at 12, United States v. Morrison, 529 U.S. 598 (2000) (No. 99-5).
107. see also Brzonkala v. Va. Polytechnic Inst. & State Univ., 132 F.3d 949, 956 (4th Cir. 1997) ("The United States intervened to defend the constitutionality of VAWA.").
108. Although "the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested. is reserved to officers of the Department of Justice," § 516, this statutory provision does not seem to impose an absolute duty on the Department to defend challenged statutes in all circumstances.
109. There may also be less legally grounded motivations for advancing the idea that there is a duty to defend.
110. Neal Devins and Saikrishna Prakash argue that the concept of a duty to defend serves the self- interests of the DOJ and, to a lesser extent, the White House.
111. See Devins N., & Prakash, S., supra note 20, at 510-11.
112. See U.S. CONST. art. II, § 3.
113. See, e.g., Bowsher V. Synar, 478 U.S. 714, 726-27 (1986) ("To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory to Congress. This kind of congressional control over the execution of the laws, Chadha makes clear, is constitutionally impermissible.").
114. Joel K. Goldstein, The Presidency and the Rule of Law: Some Preliminary Explorations, 43 ST. LOUIS U. L.J. 791-800 (1999) ("[T]he Constitution imposes upon the President the obligation to administer law. through the Vesting Clause. [and] the Take Care Clause.").
115. Heckler v. Chaney, 470 U.S. 821-831 (1985).
116. In Moving KSM Trial, DOJ Blames Congress, BLT: BLOG OF LEGALTIMES (Apr. 4, 2011, 1:50 PM), http://legaltimes.typepad.com/blt/2011/04/in-moving-ksm-trial-doj-blames-congress.html (citing Attorney General Holder as saying that "decisions about where to prosecute belong in the executive branch of government").
117. See, e.g., Heckler, 470 U.S. at 833 n.4 (noting that an agency's decision might be reviewable "where it could justifiably be found that the agency has 'consciously and expressly adopted a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities" (quoting Adams v. Richardson, 480 F. 2d 1159, 1162 (D.C. Cir. 1973) (en banc))).
118. See, e.g., Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267-1280 (1996) ("One of the President's most important functions is to execute the civil and criminal laws of the United States.").
119. See, e.g., Daniel J. Meltzer, Lecture, Executive Defense of Congressional Acts, 61 DUKE L.J. 1183, 1192-95 (2012) (discussing conflicting views regarding whether the Take Care Clause implies a duty to defend).
120. Winkler, A., supra note 10 ("For decades, presidents, Democrats and Republicans alike, have taken the position that it's the executive's obligation to defend the constitutionality of all federal laws. The basis for this view is the Constitution's command that the president 'shall take Care that the Laws be faithfully executed.'").
121. Newdow v. U.S. Congress, 313 F.3d 495, 497-98 (9th Cir. 2002).
122. The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 43 Op. Att'y Gen. 275, 275-76 (1980) (adding that "the Attorney General could lawfully decline to enforce [a patently unconstitutional law]; and he could lawfully decline to defend it in court").
123. Kenneth W. Starr, Remarks, Perspectives on the Judiciary, 39 AM. U. L. REV. 475, 480-485 (1990).
124. EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS 1787-1957, at 66 (4th rev. ed. 1957).
125. see also Arthur S. Miller, The President and Faithful Execution of the Laws, 40 VAND. L. REV. 389-396 (1987) ("Judicially challenging the constitutionality of a statute may not be tantamount to refusing to obey the statute, but it comes close.").
126. Note, Executive Discretion and the Congressional Defense of Statutes, 92 YALE L.J. 970-970 (1983); see also
127. Gussis, C., supra note 23, at 601 ("The President's duty to 'take Care that the Laws be faithfully executed' not only requires enforcement, but also implies the President's responsibility to defend the laws against attacks in court." (footnote omitted)).
128. Although a Ninth Circuit panel once suggested that the Executive Branch's failure to defend a challenged statute raised constitutional questions, see
129. Lear Siegler, Inc., Energy Prods. Div. v. Lehman, 842 F.2d 1102-1123 n.15 (9th Cir. 1988) ("A more established practice of the executive branch is to decline to defend a challenged statute in court, although this, too, raises a constitutional issue."), that portion of the opinion was subsequently withdrawn by the en banc court.
130. see 893 F.2d 205, 206 (9th Cir. 1990) (en banc).
131. At the state level, too, people have located state executives' obligations to defend state statutes against constitutional challenge in parallel constitutional provisions providing that the state executive should take care that the laws be faithfully executed. Indeed, the proponents of Proposition 8 charged Governor Schwarzenegger with violating that obligation when he refused to defend Proposition 8 in court.
132. See Verified Petition for Alternative Writ of Mandamus at 8, Beckley v. Schwarzenegger, No. 3:09-cv-2292 (Cal. Ct. App. Aug. 26, 2010), available at http://www.scribd.com/doc/36762974/
133. Beckley-v-Schwarzenegger-Writ-of-Mandamus-Petition ("Governor Schwarzenegger has a duty to see that the laws are faithfully executed." (citing CAL. CONST. art. V, § 13)).
134. Attorney General's Duty to Defend and Enforce, 43 Op. Att'y Gen. at 276 ("[I]f executive officers were to adopt a policy of ignoring or attacking Acts of Congress whenever they believed them to be in conflict with the provisions of the Constitution, their conduct in office could jeopardize the equilibrium established within our constitutional system."); see also.
135. James W. Cobb, Note, By "Complicated and Indirect" Means: Congressional Defense of Statutes and the Separation of Powers, 73 GEO. WASH. L. REV. 205-208 (2004) (arguing that when Congress defends a statute, it "delegate[s] the power to execute the law to itself").
136. id. at 224 ("[T]he [Senate Legal Counsel's] defense of a statute 'is the very essence of "execution" of the law.'" (quoting Bowsher v. Synar, 478 U.S. 714, 733 (1986))).
137. See, e.g., Mary M. Cheh, When Congress Commands a Thing to Be Done: An Essay on Marbury v.
138. Madison, M V., Executive Inaction, and the Duty of the Courts to Enforce the Law, 72 GEO. WASH. L. REV. 253-276 (2003) ("[T]he executive branch was responsible for implementing the law, meaning the executive branch had the duty to enforce the law.").
139. Lawson G., & Moore, C D., supra note 71, at 1284-85 (describing the executive power as the power to put laws into effect).
140. Robert J. Reinstein, The Limits of Executive Power, 59 AM. U. L. REV. 259-315 (2009) ("[E]nforcing the laws is not a mechanical task. Many statutes are ambiguous and have not been definitively interpreted by the courts. Many other statutes delegate considerable authority to the executive branch to decide how the underlying purposes of the statutes should be effectuated.").
141. Ameron, Inc. v. U.S. Army Corps of Eng'rs, 787 F.2d 875, 889 (3d Cir. 1986).
142. See, e.g., infra note 162.
143. E.g., Eugene Gressman, Take Care, Mr. President, 64 N.C. L. REV. 381, 382-83 (1986) ("Such refusal to execute, even though due to constitutional doubts about the statute, amounts to a partial repeal of the statute-a repeal that constitutionally can be effected only through the normal legislative processes."). To be sure, the law remains on the books and could be enforced by a subsequent President, but that does not change the fact that the law will go unenforced in the meantime.
144. See id. at 382 ("[W]hen the President tries to do more than he is permitted by statute, he becomes a lawmaker, a status foreign to the constitutional division of power.").
145. See id.
146. Of course, there is a rich literature on whether and when the President may decline to enforce a statute that he believes is unconstitutional.
147. See, e.g., David Barron, Constitutionalism in the Shadow of Doctrine: The President's Non-Enforcement Power, 63 LAW & CONTEMP. PROBS. 61 (2000).
148. Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, 63 LAW & CONTEMP. PROBS. 7 (2000). That debate is beyond the scope of my Article, and I do not take a position on it other than to note that the nondefense of statutes is, in my view, far less troubling than their nonenforcement. See
149. Gressman, E., supra note 82, at 384 ("[T]he Executive can refuse to defend the constitutionality of a statute when judicial review has been properly instituted. But this right is a far cry from saying that the Executive may express his constitutional displeasure with a duly enacted statute by ignoring or refusing to execute it in the first instance.").
150. Indeed, the Executive Branch is often not alone in explaining to the Court why statutes should be upheld even when it chooses to defend them; rather, amici often aid the Executive Branch in its defense of challenged statutes. To be sure, there is a meaningful difference between party status and amicus status, and amicus participation is less frequent in the trial court, but the existence of this amicus participation at any level nonetheless suggests reason to question whether there is anything inherently problematic with nonexecutive actors defending statutes in court. For discussions of alternatives to executive defense of statutes and an argument that such alternatives are permissible.
151. see infra Part IV.
152. To be sure, in the course of defending a statute, its proponents may offer their own interpretations of the statute's meaning. Such interpretations offered in litigation, however, need not be viewed as binding on the government and almost certainly should not be viewed as binding if made by an entity other than the Executive Branch.
153. Cf. Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469-476 (1992) ("If the Director asked us to defer to his new statutory interpretation, this case might present a difficult question regarding whether and under what circumstances deference is due to an interpretation formulated during litigation.").
154. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988) ("[W]e have declined to give deference to an agency counsel's interpretation of a statute where the agency itself has articulated no position on the question, on the ground that 'Congress has delegated to the administrative official and not to appellate counsel the responsibility for elaborating and enforcing statutory commands.'" (quoting Inv. Co. Inst. v. Camp, 401 U.S. 617, 628 (1971))).
155. United States v. Providence Journal Co., 485 U.S. 693-701 (1988).
156. see also United States v. An Easement & Right of Way, 204 F. Supp. 837-839 (E.D. Tenn. 1962) ("It appears to the Court that there could not be any issue between the TVA and the FHA, both being the United States, which this Court could litigate or adjudicate."). Providence Journal Co., 485 U.S. at 706; accord
157. Days, supra note 27, at 502 ("[B]y making it unnecessary for Congress to become involved in litigation except in unusual cases, the Solicitor General's policy of defending the acts of Congress ensures that the government speaks with one voice in the Supreme Court while at the same time reinforcing the Executive Branch's status as the litigating arm of the government.").
158. Newdow v. U.S. Congress, 313 F.3d 495-499 (9th Cir. 2002).
159. Id. at 500.
160. See, e.g., Rachel E. Barkow, More Supreme Than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237-240 (2002) ("Underlying the political question doctrine and this constitutional design is the recognition that the political branches possess institutional characteristics that make them superior to the judiciary in deciding certain constitutional questions.").
161. Baker v. Carr, 369 U.S. 186-217 (1962) (describing the factors that create a nonjusticiable political question).
162. Id.
163. See Michael Herz, United States v. United States: When Can the Federal Government Sue Itself?, 32 WM. & MARY L. REV. 893-907 (1991) ("The Court's image of a unified federal government. is unrealistic.").
164. id. at 900 (describing the contention that "the United States is 'one person'" as "uselessly conclusory").
165. Michelin Tire Corp. v. Wages, 423 U.S. 276, 285 (1976); accord.
166. Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434-448 (1979) (noting that Supreme Court cases have "stress[ed] the need for uniformity in treating with other nations").
167. Am. Ins. Ass'n v. Garamendi, 539 U.S. 396-413 (2003) (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n.25 (1964)).
168. see also THE FEDERALIST NO. 44, at 277 (James Madison) (Clinton Rossiter ed., 2003) (noting the "advantage of uniformity in all points which relate to foreign powers").
169. But see Sarah H. Cleveland, Crosby and the "One-Voice" Myth in U.S. Foreign Relations, 46 VILL. L. REV. 975-975 (2001) ("The 'one-voice' doctrine is a myth. It finds little support in the constitutional framework, which divides the foreign relations powers among the three federal branches, and even less in the actual practice of the government.").
170. Even in those cases where it is important that the "United States" speak with one voice, there is still value in recognizing that the United States is composed of many competing parts which may have competing interests. Recognizing that fact will help ensure that meaningful consideration is given to sorting out those competing interests and determining which voice-and which message-should be the United States' singular message.
171. See Marbury v. Madison, 5 U.S. (1 Cranch) 137-177 (1803).
172. Devins N., & Herz, M., supra note 29, at 558-59.
173. Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431, 470-72 (1989) (discussing a congressional debate over whether the Attorney General should represent the EPA in court).
174. See, e.g., Neal Devins, Unitariness and Independence: Solicitor General Control over Independent Agency Litigation, 82 CALIF. L. REV. 255-262 (1994) ("The government does not always speak as a single voice before the Supreme Court. Cabinet-level departments and executive agencies sometimes air their disputes with each other, Congress, and independent agencies before the Supreme Court.").
175. Fraley, G F., supra note 19, at 1256 ("Solicitor General control of independent agency litigation would insure that the government addressed the Court with a single and coherent voice. This, of course, is not the current arrangement as a number of administrative entities possess varying degrees of litigating authority.").
176. see also United States v. Providence Journal Co., 485 U.S. 693-702 (1988) ("[D]isagreement [about a case's worthiness for certiorari] actually arises on a regular basis between the Solicitor General and attorneys representing various agencies of the United States.").
177. Devins, N., supra note 100, at 258-59 ("It is atypical but not unusual to see a Solicitor General brief that the affected agency refuses to join or an agency brief at odds with the 'Brief for the United States.'"); cf.
178. Days, supra note 27, at 487 ("[The Solicitor General's] responsibility is ultimately not to any particular agency or person in the federal government but rather to 'the interests of the United States' which may, on occasion, conflict with the short-term programmatic goals of an affected governmental entity.").
179. See, e.g., Herz, M., supra note 94, at 898 ("This Article attempts to define which intragovernmental disputes are justiciable.").
180. See, e.g., Devins n., & Herz, M., supra note 29, at 559 ("[W]e cast a fresh eye on the standard arguments for DOJ control of litigation.").
181. Devins N., & Herz, M., supra note 31, at 205 ("Who should speak the government's voice in court?"). 445 U.S. 535-536 (1980).
182. See id. at 546.
183. Id. at 550 (White, J., dissenting).
184. Herz, M., supra note 94, at 934-35 (footnote omitted).
185. District of Columbia v. Heller, 554 U.S. 570 (2008), the case testing the constitutionality of the District of Columbia's handgun ban, is another case in which the Executive Branch was arguably on both sides of the issue. There, the Vice President signed onto a congressional brief that did not take the same position as the brief of the Solicitor General's office.
186. Compare Brief for Amici Curiae 55 Members of U.S.
187. Senate et al. Supporting Respondent, Heller, 554 U.S. 570 (No. 07-290), 2008 U.S. S. Ct.
188. Briefs LEXIS 157 (brief signed by the Vice President), with Brief for United States as Amicus Curiae Supporting Petitioners, Heller, 554 U.S. 570 (No. 07-290), 2008 U.S. S. Ct. Briefs LEXIS 45 (Solicitor General's brief). 424 U.S. 1 (1976).
189. Starr, G K., supra note 75, at 485.
190. RESTATEMENT (THIRD) OF AGENCY § 1.01 cmt. c (2006).
191. Id. ("A principal's right to control the agent is a constant across relationships of agency, but the content or specific meaning of the right varies A principal's failure to exercise the right of control does not eliminate it, nor is it eliminated by physical distance between the agent and principal.").
192. See, e.g., Stewart J. Schwab, Union Raids, Union Democracy, and the Market for Union Control, 1992 U. ILL. L. REV. 367, 376-77 ("The principal-agent problem arises because the principal has difficulty evaluating the agent's effort or the conditions under which the agent operates. Thus, the principal cannot easily determine whether the agent has done well for the principal or for the agent.").
193. See, e.g., Jerry Brito & Drew Perraut, Transparency and Performance in Government, 11 N.C. J.L. & TECH. 161-162 (2010).
194. Schwab, S J., supra note 112, at 377; see also
195. Thomas A. Simpson, Commentary, A Comment on an Inherently Flawed Concept: Why the Restatement (Third) of Agency Should Not Include the Doctrine of Inherent Agency Power, 57 ALA. L. REV. 1163-1166 (2006) (identifying different ways in which the principal can "structure the relationship to minimize the agent's incentives to deviate").
196. See, e.g., Joel R. Paul, The Geopolitical Constitution: Executive Expediency and Executive Agreements, 86 CALIF. L. REV. 671-690 (1998) ("[Chief Justice] Marshall characterized the executive as the agent or 'organ' of Congress.").
197. Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721-1742 (2002) ("Distrust of executive agents frequently causes Congress to attempt to control the smallest details of executive action").
198. Sidney A. Shapiro & Rena I. Steinzor, The People's Agent: Executive Branch Secrecy and Accountability in an Age of Terrorism, 69 LAW & CONTEMP. PROBS. 99-104 (2006) ("[A]lthough, through statutes, Congress directs the executive branch, the executive branch is still the agent of the people."); cf.
199. Peter H. Aranson et al., A Theory of Legislative Delegation, 68 CORNELL L. REV. 1-6 (1982) ("This model postulates that an increase in delegated legislative authority will increase 'agency costs,' (costs engendered by a divergence of the agent's goals and those of the principal) but will also diminish the principals' (legislators') decisionmaking costs").
200. William E. Kovacic, Procurement Reform and the Choice of Forum in Bid Protest Disputes, 9 ADMIN. L.J. AM. U. 461-494 (1995) ("One reason for Congress to establish multiple, competing 'agents' is to ensure that its policy wishes are executed faithfully.").
201. Rodriguez, D., supra note 19, at 1198 (discussing one view of the President's role under which, "consistent with his constitutional responsibility to see that the laws are 'faithfully executed,' [he] is to manage the regulatory system in order to ensure that it is an optimal engine for the proper implementation of congressional policies" (footnote omitted)).
202. See, e.g., Posner E & Vermeule, A., supra note 115, at 1742.
203. Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 SUP. CT. REV. 201, 211-12 (footnotes omitted).
204. see id. at 212 ("This literature focuses on the use of ex ante and ex post mechanisms for generating or calibrating the incentives of agents to encourage them to act consistently with the interests of principals.").
205. Matthew McCubbins, Roger Noll, and Barry Weingast have also discussed how an agency's structure and processes can be used to ensure it is faithful to its principal, but they acknowledge that the principal is not just Congress but also the "legislative coalition (including the President) that succeeded in passing the agency's enabling legislation."
206. McCubbins M., et al., supra note 99, at 432.
207. See generally William P. Marshall, The Limits on Congress's Authority to Investigate the President, 2004 U. ILL. L. REV. 781 (examining Congress's power to investigate the President and arguing for process reforms). For discussion of a recent controversy over the use of the congressional subpoena authority to investigate an independent agency.
208. see Dave Jamieson, House Dems Accuse Issa of Shilling for 'Corporate Interests' with NLRB Subpoena, HUFFINGTON POST (last updated Oct. 12, 2011, 6:12 AM), http://www.huffingtonpost.com/2011/08/12/issa-nlrb-boeing-subpoena-house-dems_n_925561.html.
209. Of course, as some commentators have noted, "[C]onflicts-of-interest among the members of [the enacting] coalition may prevent them from effectively employing standard ex post corrective devices".
210. Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs, 75 VA. L. REV. 499-502 (1989).
211. Levinson D L., & Pildes, R H., supra note 16, at 2358 ("[W]hen Congress does choose to delegate, it will choose the agent most likely to share its policy preferences."). Cf.
212. John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 99 NW. U. L. REV. 89-94 (2004) ("Principal-agent problems are particularly likely in situations where there are multiple principals").
213. See, e.g., Levinson D L., & Pildes, R H., supra note 16, at 2360 ("Congress can attempt to use the usual tools of oversight and influence to bring the relevant agency back into line, but at least when it comes to executive branch agencies, there is good reason to expect that the President's policy preferences will more often prevail.").
214. infra notes 137-43 and accompanying text. As noted earlier, these are problems that often manifest in the context of corporate organizations. See, e.g.
215. Margaret M. Blair & Lynn A. Stout, A Team Production Theory of Corporate Law, 85 VA. L. REV. 247-259 (1999) ("A related point is that the principal-agent model assumes that it is clear who the principal is, and who the agent is in the particular relationship or transaction under study. Yet many of the most important relationships inside corporations may be more ambiguous, in the sense that both parties may be contributing productive inputs and neither may have authority over the other.").
216. See Peter Lindseth, Agents Without Principals?: Delegation in an Age of Diffuse and Fragmented Governance 2-3 (Univ. Conn. Sch. Law Articles & Working Papers, Paper No. 18, 2004), available at http://lsr.nellco.org/uconn_wps/18/ (discussing the "autonomy" enjoyed by the agent when a "legislative 'principal'" delegates power "to a subordinate 'agent'").
217. But see Shapiro S A., & Steinzor, R., supra note 115, at 104 (suggesting that the American people are the principals because "when legislation is enacted, it can be regarded as an expression of the people regarding the nature and scope of the collective action they seek").
218. See, e.g., Carlos E. González, Reinterpreting Statutory Interpretation, 74 N.C. L. REV. 585-639 (1996) ("[T]he federal Constitution as a unified whole embodies the ultimate exercise of popular sovereignty-the creation of an agent/government by a principal/people.").
219. Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 CALIF. L. REV. 1027-1032 (2004) ("Because both the President and the Congress are agents of the people's will, popular control of constitutional meaning demands that Congress and the President must be free to make and act on their own interpretations of the Constitution.").
220. See, e.g., Horn M J., & Shepsle, K A., supra note 118, at 499.
221. See U.S. CONST. art. I, § 7 (describing the presentment process).
222. See generally James P. Pfiffner, The President's Legislative Agenda, 499 ANNALS AM. ACAD. POL. & SOC. SCI. 22-23 (1988) (noting that "it is a commonplace in the last decades of the twentieth century that the president is our chief legislator" and discussing the history of presidential involvement in the legislative process).
223. Rodriguez, D., supra note 19, at 1192.
224. id. at 1187-88 (noting that "regulatory policy. is made in the shadow of two legislatures," the legislature that "enacted the statute" and "the one that exists contemporaneously with the program under evaluation," and "there may be substantial differences in the extent of the legislature's current commitment to the program as constituted and as functioning," even if the legislature is "made up of many of the same members of the original coalition that created the program").
225. see also Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61-71 (2006) ("[O]nce post-hoc supervision comes into play, the difficulties may be magnified, with a new coalition or group within Congress acting in accordance with aims that may be different from those of the coalition that originally enacted the law being administered.").
226. Horn M J., & Shepsle, K A., supra note 118, at 499.
227. The only exceptions are laws that contain sunset provisions that include the date of their own expiration.
228. See generally Jacob E. Gersen, Temporary Legislation, 74 U. CHI. L. REV. 247 (2007).
229. William W. Buzbee, The One-Congress Fiction in Statutory Interpretation, 149 U. PA. L. REV. 171-173 (2000) ("[T]he concept of a single Congress producing legislation is undoubtedly a fiction. As reflected in the numbering of a new Congress every two years, different members, coalitions, parties, moods, and leadership change the nature of each Congress.").
230. Notwithstanding the regular change in the composition of Congress, it is well-established that the preferences of the legislative coalition that enacted the law are supposed to govern its execution, even after that coalition has left office.
231. See, e.g., Rodriguez, D B., supra note 19, at 1188 ("[A]gencies' and courts' struggles to discern what the enacting legislature intended, by resort to the text and legislative history of the statute, give a special pride of place to the preferences of the legislative coalition that enacted the statute.").
232. Variously referred to as "retentionist bias" and "legislative inertia," existing law can become entrenched for reasons that have nothing to do with the merits of the law or the levels of support it currently enjoys.
233. See, e.g., Donald R. Livingston & Samuel A. Marcosson, The Court at the Crossroads: Runyon, Section 1981 and the Meaning of Precedent, 37 EMORY L.J. 949-971 n.87 (1988) ("[A] number of systemic factors (the congressional committee system, the executive veto, the influence of special interest groups). give the advantage to those who resist change.").
234. Rodriguez, D B., supra note 19, at 1188 ("Legislation that has lost current legislative support may still persist where legislative institutions, such as 'gatekeeper' committees, restrictive amendment rules, and the presidential veto, stand in the way of change.").
235. See generally GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 102, 123-24 (1982).
236. This is a dubious proposition at best. Congress is itself composed of 535 different individuals with different interests and views and has only unwieldy tools for exercising control over any executive branch agent.
237. Rodriguez, D B., supra note 19, at 1184 ("[Congress] is an unruly and far-flung lawmaking institution that has limited capacity to pursue systematic, focused regulatory change.").
238. Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511-1551 (1992) (describing the "factors [that] contribute to an institutional inertia that undercuts the effectiveness of direct legislative reaction as a regular means of checking agency policymaking"). This particular problem is, of course, not unique to the context of executive branch action.
239. See, e.g., Blair M M., & Stout, L A., supra note 121, at 249 ("Because corporations are fictional entities that can only act through human agents, problems of agent fealty are frequently encountered by those who study and practice corporate law.").
240. See, e.g., Blair M M., & Stout, L A., supra note 121, at 259 (noting that typical principal-agent analysis does not "address situations in which part of the agent's job is to figure out what needs to be done (a situation we suspect is the norm rather than the exception in most public corporations)").
241. Simpson, T A., supra note 114, at 1165 ("Typically, the principal delegates some decisionmaking authority to the agent.").
242. See, e.g., RESTATEMENT (THIRD) OF AGENCY § 2.02 reporter's note f (2006) ("The Comment explores common reasons for slippage between a principal's intention in stating instructions to an agent and the agent's subsequent conduct. The Comment does not presuppose that the agent's act stems from the agent's own interests or other improper purposes.").
243. Simpson, T A., supra note 114, at 1166 ("[T]he agent may choose to gratify his own interests at the principal's expense.").
244. This relationship between the Executive Branch and the Legislature is, of course, rooted in our adoption of a "presidential system, with its sharp divorce of executive from legislative."
245. Esmond Wright, The Revolution and the Constitution: Models of What and for Whom?, 428 ANNALS AM. ACAD. POL. & SOC. SCI. 1, 6 (1976).
246. See, e.g., Cheh, M M., supra note 79, at 276 ("[T]he executive branch was responsible for implementing the law, meaning the executive branch had the duty to enforce the law."). In fact, courts have held that Congress does not have "a direct 'stake' in the enforcement of [the law]. Once a law is passed and upheld as constitutional, Congress's interest in its enforcement is no more than that of the average citizen."
247. Ameron, Inc. v. U.S. Army Corps of Eng'rs, 787 F.2d 875, 888 (3d Cir. 1986); accord Am.
248. Fed'n of Gov't Emps. v. Pierce, 697 F.2d 303, 305 (D.C. Cir. 1982) (noting that a Senator had standing where "[h]e claimed an interest which he, as a senator, had in the legislative process, different from any interest that he, like any other citizen, may have had in the execution of the bill once enacted").
249. See, e.g., Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 865 (1984) (noting that Congress may have legislated in general terms to give the executive branch agency the opportunity to balance "conflicting policies" because "those with great expertise and charged with responsibility for administering the provision would be in a better position to do so").
250. David Epstein & Sharyn O'Halloran, The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach, 20 CARDOZO L. REV. 947-948 (1999) (noting "the numerous cases in which the President and executive agencies are given real policymaking discretion in their own right, with either no statutory guidance or guidance that is so broad that it imposes almost no constraints on executive actions").
251. See, e.g., McCubbins M., et al., supra note 99, at 470 ("The Justice Department is itself a policymaking agency, and historically it has been especially closely tied to the President."); cf.
252. Epstein D., & O'Halloran, S., supra note 139, at 950 ("Congress is. wary. of ceding too much authority to executive branch actors who may pursue their own policy goals rather than those of the enacting legislative coalition.").
253. There is a rich literature, both descriptive and normative, that addresses the extent of presidential control over the administrative state.
254. See, e.g., Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23 (1995).
255. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123 (1994).
256. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994).
257. Michael Herz, Imposing Unified Executive Branch Statutory Interpretation, 15 CARDOZO L. REV. 219-219 (1993) (noting "the increasingly systematic efforts of every President since Richard Nixon to gain control of the federal bureaucracy"). Whatever one thinks about the question as a normative matter, there can be little debate that presidential control over the administrative state is significant, if not complete.
258. See, e.g., Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245-2248 (2001).
259. See, e.g., LOUIS FISHER, THE POLITICS OF SHARED POWER: CONGRESS AND THE EXECUTIVE 106 (4th ed. 1998) (discussing "control of the bureaucracy" as a "deep-rooted" "source of executive- legislative friction").
260. Aranson P H., et al., supra note 115, at 6 ("[T]he removal of politics from administrative processes really occurs only in civics books.").
261. McCubbins m., et al., supra note 99, at 435 ("[T]he President's role in appointing the top administrators of agencies offers him an advantage in influencing policy, especially for agencies in the executive branch where the top administrators serve at the pleasure of the President.").
262. William P. Ferranti, Interest Group Theory and Untrustworthy Outcomes: A Case Study of the Bonneville Power Administration, 35 MCGEORGE L. REV. 637-646 (2004).
263. See infra notes 147-58 and accompanying text.
264. see also Herz, M., supra note 94, at 910 ("Courts regularly permit interbranch litigation.").
265. The idea that the Executive and the Congress are sometimes at odds is hardly a novel one in American law and is, in some sense, inherent in our nonparliamentary system of government.
266. Charles H. Koch, Jr., The Devolution of Implementing Policymaking in Network Governments, 57 EMORY L.J. 167-197 (2007) ("The separation of the executive and the legislative in a presidential system empowers the judiciary to act as arbiters between the two.").
267. Rex E. Lee Conference on the Office of the Solicitor General of the United States: Pre-Reagan Panel, 2003 BYU L. REV. 40 (statement of Judge Frank Easterbrook).
268. see id. at 40-41 ("[The Solicitor General] is litigating on behalf of the executive branch [Where] [t]he executive branch of the United States government, acting through the people appointed for that purpose, had settled on a particular antitrust policy and civil rights policy. his job was to defend it." (statement of Judge Frank Easterbrook)).
269. see also Rebecca Mae Salokar, Representing Congress: Protecting Institutional and Individual Members' Rights in Court, in CONGRESS AND THE POLITICS OF EMERGING RIGHTS 105-107 (Colton C. Campbell & John F. Stack, Jr. eds., 2002) (quoting a 1926 brief in which the petitioner noted that the Government was "question[ing] the constitutionality of its own act," "the Solicitor General [was] appearing as a representative of the Executive Department of the Government," and a Senator was "represent[ing] another branch").
270. Salokar, R M., supra note 145, at 106; accord United States v. Providence Journal Co., 485 U.S. 693, 714 (1988) (Stevens, J., dissenting) ("When faced with a difference of view between the Executive Branch and a coordinate branch of government. the Solicitor General faces a conflict of interest that undeniably would be intolerable if encountered in the private sector.").
271. Miller A S., & Bowman, J H., supra note 62, at 67-68 ("[I]n interbranch litigation there is no such thing as 'the United States.' There is the interest of the President, as in executive privilege, and the interest of the Congress in the enforcement of its laws.").
272. See JUDITHANNE SCOURFIELD MCLAUCHLAN, CONGRESSIONAL PARTICIPATION AS AMICUS CURIAE BEFORE THE U.S. SUPREME COURT 1 (2005) ("Members of Congress have come to play an increasingly significant role as lobbyists before the U.S. Supreme Court.").
273. see also R. Lawrence Dessem, Congressional Standing to Sue: Whose Vote Is This, Anyway?, 62 NOTRE DAME L. REV. 1-1 (1986) ("In recent years Members of the United States Congress have brought suit against the executive branch of the federal government with growing frequency.").
274. According to McLauchlan, this is "[t]he most frequent type of case in which Members of Congress file amicus briefs."
275. MCLAUCHLAN, M., supra, at 81.
276. MCLAUCHLAN, M., supra note 147, at 51.
277. see also id. at 54 n.170 ("In 10% of the cases in which Members of Congress participate as amici, they do so under the auspices of the House or Senate Legal Counsel's Offices, acting in the interests of the U.S. Senate or the U.S. House [of] Representatives.").
278. When the Senate or House files an institutional brief, that does not mean that every member of the body agrees.
279. See, e.g., INS v. Chadha, 462 U.S. 919-929 n.4 (1983).
280. MCLAUCHLAN, M., supra note 147, at 51.
281. Id. at 52.
282. Salokar, supra note 145, at 116 (noting that Congress is most likely to be defending the constitutionality of a statute "where Congress must fill the shoes of the 'United States' because the Department of Justice has chosen not to, or where Congress suspects that the executive branch will not provide a hearty defense of the law").
283. see also Brief of the Speaker and Bipartisan Leadership Grp. of the House of Representatives as Amici Curiae Supporting Respondents, Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221 (1986) (Nos. 85-954, 85-955), 1986 U.S. S. Ct. Briefs LEXIS 347, at *3 (The House filing an amicus brief to resist "novel theories of separation of powers. presented to [the] Court indirectly by the Executive and more openly by the Japanese petitioners").
284. Brief of the Speaker & Bipartisan Leadership Grp., Bowsher v. Synar, 478 U.S. 714 (1986) (Nos. 85-1377, 85-1378, 85-1379), 1986 U.S. S. Ct. Briefs LEXIS 160, at *21 ("The Senate and House parties intervened [in the district court] to defend the Act against the Executive's challenge").
285. 487 U.S. 654 (1988).
286. 28 U.S.C. §§ 49, 591-598 (1982).
287. Morrison, 487 U.S. at 660.
288. § 594(a).
289. See Brief for the United States as Amicus Curiae Supporting Appellees, Morrison, 487 U.S. 654 (No. 87-1279), 1988 U.S. S. Ct. Briefs LEXIS 980, at *9 ("The interest of the United States in this case is in preserving an important part of the power and duty of the President to 'take Care that the Laws be faithfully executed.'"). The Executive Branch took this position in both the lower courts and in the Supreme Court.
290. See Brief for the United States Senate as Amicus Curiae Supporting Appellant, Morrison, 487 U.S. 654 (No. 87-1279), 1988 U.S. S. Ct. Briefs LEXIS 992.
291. Brief of the Speaker & Leadership Grp. of the House of Representatives as Amici Curiae Supporting Appellant, Morrison, 487 U.S. 654 (No. 87- 1279), 1988 U.S. S. Ct. Briefs LEXIS 995, at *8 n.2. ("Participation by the Speaker and Leadership Group is the standard mechanism by which the House of Representatives pursues its institutional interests in litigation."). The House and Senate both filed amicus briefs defending the constitutionality of the legislation in the lower court as well.
292. See In re Sealed Case, 838 F.2d 476-477 (D.C. Cir. 1988).
293. See SUP. CT. R. 37(4).
294. See Brief of the Speaker and Leadership Group, supra note 156, at *8 n.2 ("In light of the institutional nature of this participation and the status of the House of Representatives in the government of the United States, it would appear appropriate for the Speaker and elected leadership of the House of Representatives to avail themselves of the right to submit a brief as amici curiae without the consent of the parties, in accordance with the provisions of Sup. Ct. R. 36.4.").
295. Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996).
296. To be sure, some members of Congress who supported DOMA in 1996 might no longer support it in 2011. But whether that is the case or not, it is utterly unsurprising that the 112th Congress and President Obama may not want to defend this law.
297. See infra notes 217-28 and accompanying text.
298. There is a substantial debate in the literature on that question.
299. See, e.g., Carpenter, D., supra note 15, at 406-07 ("Now a growing number of respected constitutional theorists, coming from a broad range of political and jurisprudential perspectives, have begun to question the legitimacy of judicial supremacy in constitutional interpretation.").
300. Robert A. Schapiro, Judicial Deference and Interpretive Coordinacy in State and Federal Constitutional Law, 85 CORNELL L. REV. 656-658 (2000) ("Even as judicial supremacy gains ascendancy in the courts, its star is on the decline in the legal academy.").
301. Frederick Schauer, Judicial Supremacy and the Modest Constitution, 92 CALIF. L. REV. 1045-1045 (2004) ("Judicial supremacy is under attack. From various points on the political spectrum, political actors as well as academics have challenged the idea that the courts in general, and the Supreme Court in particular, have a special and preeminent responsibility in interpreting and enforcing the Constitution."). Compare, e.g.
302. Lawson G., & Moore, C D., supra note 71, at 1268 ("It is emphatically the province and duty of the President to say what the law is").
303. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217-222 (1994) (arguing that the President has the power "to interpret the law, including the Constitution, independently of the other branches' interpretations"), with, e.g.
304. Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359-1362 (1997) ("[W]e defend. [the] assertion of judicial primacy without qualification").
305. Burt Neuborne, The Binding Quality of Supreme Court Precedent, 61 TUL. L. REV. 991-993 (1987) ("[S]o long as the judicial precedent remains viable, the executive's duty is to conform its conduct to the Supreme Court's precedent, not merely as a matter of respect, prudence, expedience, or realpolitik, but as a matter of formal legal obligation.").
306. Schauer, F., supra, at 1046 ("I seek to show that the judicial role labeled 'judicial supremacy' is the natural partner of constitutionalism itself.").
307. See, e.g., Owen Fiss, Between Supremacy and Exclusivity, 57 SYRACUSE L. REV. 187-187 (2007) ("Throughout history, the Supreme Court has been depicted as the final arbiter of the meaning of the Constitution. Such a view does not deny the role that the other branches of government or, for that matter, the general citizenry have in interpreting the Constitution. It only posits a priority for the interpretations of the judicial branch. The governing assumption is that where there are conflicting interpretations, the Court's should prevail.").
308. Paulsen, M S., supra note 162, at 225.
309. Neuborne, B., supra note 162, at 993.
310. See id. at 1002 (arguing that even though the Attorney General "is bound by law to conform to established Supreme Court precedent," he is "free to seek to persuade the Supreme Court to change its mind by seeking reargument and presenting new cases for decision").
311. Letter from Eric H. Holder, Jr., Attorney Gen., to John A. Boehner, Speaker, U.S. House of Representatives, supra note 8, at 5.
312. Id.
313. See, e.g., Frost, A., supra note 22, at 495 ("[T]he adversarial system itself is widely acknowledged to be a fundamental feature of the American adjudicatory process.").
314. William B. Rubenstein, A Transactional Model of Adjudication, 89 GEO. L.J. 371-371 (2001) ("The traditional premise of American civil adjudication is that ours is an adversary system: Litigation is a process by which an impartial arbiter resolves a dispute between private parties following an adversarial demonstration of privately developed facts and zealously presented legal arguments."); see also
315. Heather Elliott, The Functions of Standing, 61 STAN. L. REV. 459-470 (2008) (noting that standing doctrine is rooted in the notion that the parties' adverseness "promote[s] better litigation").
316. Massachusetts v. EPA, 549 U.S. 497-517 (2007).
317. see also Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59-80 (1978) (invoking the courts' interest in "assur[ing] that the most effective advocate of the rights at issue is present to champion them" in the context of prudential limitations on standing).
318. Goldman, B., supra note 22, at 940.
319. Id. at 943.
320. Id. at 947.
321. Stephan Landsman, The Decline of the Adversary System: How the Rhetoric of Swift and Certain Justice Has Affected Adjudication in American Courts, 29 BUFF. L. REV. 487-491 (1980).
322. See, e.g., Duke Power Co., 438 U.S. at 103 (Stevens, J., concurring in the judgment) ("We are not statesmen; we are judges.").
323. Liverpool, N.Y. & Phila. Steamship Co. v. Comm'rs of Emigration, 113 U.S. 33-39 (1885) ("[The Court] has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, [one of which is]. never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.").
324. Gene R. Nichol, Jr., Injury and the Disintegration of Article III, 74 CALIF. L. REV. 1915-1920 (1986) ("It is a judge's obligation to decide private disputes. If, as part of that process, interpretation of the constitutionality of statutes is required, so be it. The trigger of judicial power, however, is the protection of private rights.").
325. See Devins N., & Prakash, S., supra note 20, at 572 ("[A] law's proponents are more likely to vigorously defend the statute than is the Solicitor General, who, in the course of a tepid defense of a law, might admit its constitutional infirmities."). One commentator has argued that "[t]he Constitution itself provides sufficient means for Congress to encourage the executive to defend vigorously all federal statutes: the appropriations power, the impeachment power, the investigatory and oversight power, and the legislative power."
326. Cobb, J W., supra note 78, at 233 (footnotes omitted). In theory, perhaps this is right; but in practice, it seems unlikely that Congress can effectively monitor the Executive Branch's litigation. Moreover, this view seems to ignore the complications presented by modern political realities.
327. See generally Levinson D., & Pildes, R., supra note 16, at 2315 ("The practical distinction between party-divided and party-unified government rivals in significance, and often dominates, the constitutional distinction between the branches in predicting and explaining interbranch political dynamics.").
328. See, e.g., Paulsen, M S., supra note 162, at 221 ("[T]he executive's power to interpret the law may, and should, be exercised independently of the interpretations of other branches, including those of the federal courts."). Paulsen and others have gone even farther to argue that the Executive's determinations regarding which laws are unconstitutional should guide its enforcement decisions.
329. See, e.g., id. at 221-22 ("[The President] may decline to execute acts of Congress on constitutional grounds, even if it is those grounds have been rejected by the courts. In executing a statute he determines is constitutionally valid, he may use his own interpretation of the statute, even if it is contrary to the interpretation placed on it by the courts.").
330. see also William Baude, Signing Unconstitutional Laws, 86 IND. L.J. 303-307 (2011) ("I share the increasingly conventional wisdom that the President must interpret the Constitution for himself, and must not enforce laws he believes violate it.").
331. Saikrishna Bangalore Prakash, The Executive's Duty to Disregard Unconstitutional Laws, 96 GEO. L.J. 1613, 1616-17 (2008) ("[The President] violates his constitutional oath when he enforces a law he regards as unconstitutional.").
332. There are other institutional actors that may also have interests independent of their client. The ACLU and the Washington Legal Foundation, for example, are ideological actors, and they presumably will hesitate before making arguments that win the battle but lose the war. Thus, their views and interests are going to influence the nature of the arguments that they make in court, which can raise interesting ethical questions.
333. Letter from Eric H. Holder, Jr., Attorney Gen., to John A. Boehner, Speaker, U.S. House of Representatives, supra note 8, at 5.
334. Interview with Charles Ludlam, Senate Historical Office Oral History Project, The Senate Legal Counsel: Interview #1, at 22 (Dec. 2, 2003) [hereinafter Ludlam Interview], available at http://www.senate.gov/artandhistory/history/resources/pdf/Ludlam_Interview1.pdf.
335. For example, when the Obama Administration's early briefs in the DOMA litigation contained arguments that were reasonably understood to be anti-gay, a firestorm of controversy erupted.
336. Richard Brust, Dead Precedents: The Justices Overrule, but They Often Do So Stealthily, A.B.A. J., May 2011, at 22-23 (quoting Professor Paul Horwitz as saying, "In a media-heavy age, the court is so aware of being watched that it's especially loath to act with what might be seen as a heavy hand.").
337. See Peter L. Strauss, The President and Choices Not to Enforce, 63 LAW & CONTEMP. PROBS. 107-120 (2000) ("The integrity of the judicial process may be undercut when parties put forward for duty's sake a position to which, in fact, they do not subscribe.").
338. Memorandum in Support of Fed. Defendant's Motion to Dismiss at 15, Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) (No. 8:04-cv-1680-T-30TBM), 2004 U.S. Dist. Ct. Motions LEXIS 31640, at *27-28 ("Congress could seek to encourage the creation of stable relationships in which people can securely procreate.").
339. Id. at 16.
340. See, e.g., Standhardt v. Superior Court, 77 P.3d 451-463 (Ariz. Ct. App. 2003).
341. One could imagine, for example, a Republican administration agreeing to defend the health care legislation, but only on the basis of the taxing and spending power, thus leaving out of the statute's defense critical empirical information that would buttress the statute's validity under the Commerce Clause. Whether the court in such cases should appoint additional counsel to present or develop a particular argument is a difficult question.
342. See Goldman, B., supra note 22, at 943-47.
343. "Deliberately Weak Legal Defense," CAL. CATHOLIC DAILY (July 12, 2010), http://calcatholic.web141.discountasp.net/news/newsArticle.aspx?id=14f12763-f31f-43be-89ea-9ea2de53948a.
344. All lawyers, of course, have some duty to the court, but their primary duty is to zealously advocate on behalf of their client.
345. James A. Cohen, Lawyer Role, Agency Law, and the Characterization "Officer of the Court," 48 BUFF. L. REV. 349-350 (2000) ("[I]n our adversary system the lawyer's duty to the court is almost entirely harmonious with the lawyer's duty as agent for her client.").
346. See, e.g., Devins N., & Prakash, S., supra note 20, at 526-32 (discussing the President's "interpretive independence" in the context of analyzing the duty to defend).
347. Miller A S., & Bowman, J H., supra note 62, at 65 ("Although the President undoubtedly represents the United States in certain constitutionally delineated areas, this does not establish that the interests of the two entities are interchangeable.").
348. From this premise, Miller and Bowman reach an arguably surprising conclusion. In their view, "'the United States' is a single entity with multiple heads," and "perceiving 'the United States' as a single entity makes the propriety of the Justice Department judicially challenging an act of Congress dubious at best."
349. Id. at 70-72. I take the opposite view: because the "United States" is composed of many competing parts, it will not always make sense for only one part to act on behalf of the whole.
350. See Lee, G R., supra note 59, at 600 ("The audience for [the Solicitor General's] briefs and arguments consists of nine people and nine people only. To the extent that his efforts to persuade those nine people also yield some other benefits, that is fine, but that is not his job. Public relations and mass communications are not what he was trained for and not what he does well.").
351. This explains, for example, why the Obama Administration was criticized so vehemently for arguments in an early DOMA filing that were viewed as anti-gay. See, e.g.
352. John Aravosis, Obama Defends DOMA in Federal Court. Says Banning Gay Marriage Is Good for the Federal Budget. Invokes Incest and Marrying Children, AMERICABLOG (June 12, 2009, 9:44 AM), http://www.americablog.com/2009/06/obama-justice-department-defends-doma.html (describing the brief as "despicable, and gratuitously homophobic").
353. Kerry Eleveld, Obama and DOMA: The Unspoken Truth and How We Got Here, EQUALITY MATTERS (Feb. 24, 2011, 2:59 PM), http://equalitymatters.org/blog/201102240011 ("[N]early every major LGBT organization eventually denounced the brief").
354. Deb Price, Gays Feel Short-Changed by Obama, CREATORS.COM, http://www.creators.com/liberal/deb-price/gays-feel-short-changed-by-obama.html (last visited Aug. 13, 2012) (describing "Gay Americans" as "infuriated and dismayed by a pair of shockingly anti-gay legal briefs filed by President Barack Obama's Justice Department").
355. See Walter Dellinger, The DOMA Decision, NEW REPUBLIC (Mar. 1, 2011, 12:00 AM), http://www.tnr.com/article/politics/84353/gay-marriage-obama-gingrich-doma?page=0,1 ("I don't believe that any administration is obliged to urge a court to accept propositions that the president believes are fundamentally wrong").
356. See supra Parts II, III.
357. See, e.g., Lear Siegler, Inc., Energy Prods. Div. v. Lehman, 842 F.2d 1102-1124 (9th Cir. 1988) ("To construe this duty to faithfully execute the laws as implying the power to forbid their execution perverts the clear language of the 'take care' clause: 'To "execute" a statute. emphatically does not mean to kill it.'"
358. Miller, M., supra note 76, at 398).
359. See id. at 1125 ("We also note that in declaring the CICA stay provisions unconstitutional and suspending their operation, the executive branch has assumed a role reserved for the judicial branch. It hardly need be repeated that 'it is emphatically the province and duty of the judicial department to say what the law is.'. The executive branch's attempt to arrogate to itself the power of judicial review is a paradigmatic violation of our system of separation of powers and checks and balances." (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137-177 (1803))).
360. There is no single explanation for the special esteem in which government lawyers are generally held by the courts, and the quality of their work is surely an important factor in the way they are viewed. See, e.g.
361. Fraley, G F., supra note 19, at 1267 ("[I]t is recognized that the work product of the Solicitor General's office is unparalleled.").
362. W. Bradley Wendel, Government Lawyers, Democracy, and the Rule of Law, 77 FORDHAM L. REV. 1333-1349 (2009) ("Courts similarly state that government lawyers have an obligation to see to it that justice is done, not simply to maximize the likelihood that the client's interests will be achieved.").
363. see also Lee, R E., supra note 59, at 595-96 ("[There are] three distinct ways in which the government lawyer as a litigator has an enhanced responsibility as an officer of the court").
364. Cordray M M., & Cordray, R., supra note 42, at 1361. To be sure, there are competing conceptions of the role of the Solicitor General, but fundamental to any view of the Solicitor General is his special relationship with the Court.
365. See, e.g., id. ("(1) the Solicitor General as 'tenth justice'; (2) the Solicitor General as advocate for the federal government as an institution; and (3) the Solicitor General as advocate of the President's administration.").
366. William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 CORNELL L. REV. 831-878 (2001) ("A large body of literature analyzes the proper role of the Solicitor General in developing the legal positions of the executive branch Some have claimed that the Solicitor General's role is to serve the interests of the Court, as a sort of super- advisor on the correct answer to legal questions; others stress that the Solicitor General's job is to advocate (within reasonable limits) the legal positions of the executive branch in the Supreme Court." (footnote omitted)).
367. Lee, R. E., supra note 59, at 597.
368. See Days, supra note 27, at 488.
369. Buckley Hearings, supra note 60, at 500.
370. Id. at 501.
371. See id. ("[I]n a matter of this significance, a case of perhaps the greatest constitutional significance of this century, it seems to me entirely appropriate that the Court have before it whatever we can add.").
372. See Lee, R. E., supra note 59, at 597 (noting that the Solicitor General must use her power carefully, "lest the reservoir of credibility which is the source of this special advantage be diminished, with adverse consequences not only to the government's ability to win cases, but also to an important institution of government itself").
373. See, e.g., Paul D. Clement, The Intra-Executive Separation of Powers, 59 EMORY L.J. 311-317 (2009) (noting the "temptation" in the Solicitor General's office to change positions following an election, but arguing that some changes can "come[] at a great cost to the credibility of the Solicitor General and the Office of the Solicitor General before the Court").
374. Meltzer, D J., supra note 72, at 1214 (expressing the concern that an administration's decision to "reverse course [in defending a statute] will inevitably lead to a charge that the incumbent administration is picking and choosing whether to defend statutes based on its policy preferences"). Of course, the two are not wholly unrelated. Whether one thinks that the health care reform law is unconstitutional may turn in part on one's understandings about the effect of the uninsured on the rest of the health care market, and whether one thinks DOMA is constitutional may turn on one's views about the validity of the potential government interests underlying the statute. 28 U.S.C. § 530D(a)(1) (2006).
375. See Ludlam Interview, supra note 179, at 21-22 (noting that the Senate Legal Counsel was established, in part, because of one of its progenitor's amazement at the fact that "the executive branch, which was supposedly responsible for taking care that the laws be faithfully executed, was failing to defend the constitutionality of some statute[s]"). More generally, the Senate Legal Counsel was a response to Watergate and the perceived need for some institution to represent Congress's interests in court.
376. See id. at 15.
377. As a staffer principally responsible for the establishment of the Senate Legal Counsel has explained, prior to its establishment, "there was no office in the Congress that was handling this critical litigation function in defense of the separation of powers and checks and balances We had a badly flawed, ad hoc system, a patchwork system that left us mostly defenseless against attacks on our constitutional status."
378. Id.
379. see also Removing Politics from the Administration of Justice: Hearing on S. 2803 and S. 2978 Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 93d Cong. 29 (1974) (statement of Sen. Vance Hartke) ("A counsel for the Congress would not be in the business of enforcing the law, but rather he would provide an authoritative interpretation of the laws on behalf of the institution of Congress rather than for the courts to rely solely upon the Justice Department or another party to the case.").
380. There is no joint counsel because at the time the Senate Legal Counsel was created, the House had an established system for dealing with litigation through its Clerk's Office and thus had no interest in a joint counsel.
381. See Ludlam Interview, supra note 179, at 24.
382. See Bowsher v. Synar, 478 U.S. 714, 726-27 (1986) ("To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory to Congress. This kind of congressional control over the execution of the laws, Chadha makes clear, is constitutionally impermissible.").
383. See supra notes 79-86 and accompanying text.
384. See Dessem, R L., supra note 147, at 13 ("[T]he doctrine[] of congressional standing. remain[s], at best, in a state of confusion and uncertainty within the District of Columbia Circuit."). 521 U.S. 811, 829 (1997).
385. Id.
386. Id.
387. See, e.g., Karcher v. May, 484 U.S. 72, 84-85 (1987) (White, J., concurring in the judgment) ("[W]e have now acknowledged that the New Jersey Legislature and its authorized representative have the authority to defend the constitutionality of a statute attacked in federal court It is also clear that because [the legislators] did not seek to intervene as individual legislators in a nonrepresentative capacity, we again leave for another day the issue whether individual legislators have standing to intervene and defend legislation for which they voted.").
388. Ctr. for Biological Diversity v. Brennan, 571 F. Supp. 2d 1105, 1126 (N.D. Cal. 2007) (rejecting legislator standing, but noting that "[n]either the Senate nor the House of Representatives as a whole is seeking to compel the submission of the Research Plan or the Scientific Assessment. Nor are the intervenor-applicants alleging they have been authorized to represent their respective Houses of Congress in this action").
389. Dessem, R L., supra note 147, at 26 ("In situations where Congress suffers an institutional injury. a suit brought by Congress would not pose the same practical problems as do actions by individual Members of Congress.").
390. But see Barnes v. Kline, 759 F.2d 21-44 (D.C. Cir. 1985) (Bork, J., dissenting) (arguing that congressional standing represents a "constitutional upheaval").
391. see also Newdow v. U.S. Congress, 313 F.3d 49-497 (9th Cir. 2002) ("Let it first be said that the issue is not whether the United States has standing to appear in support of the constitutionality of the statute in question. Nobody doubts that it does The question is whether the Senate, as a separate part of the government, has standing to intervene to support statutes on its own behalf, and not really as a representative of the United States itself.").
392. The Ninth Circuit did not explain why the Senate was allowed to appear in a series of cases that "directly (particularly) implicated the authority of Congress within our scheme of government" if it could not appear to represent its institutional interests.
393. Id. at 498.
394. In any event, it is unclear that even the Ninth Circuit under Newdow would object to the Senate representing the United States' interests in the defense of a challenged statute. 462 U.S. 919, 939 (1983). Admittedly, the Court made that point in its discussion of whether there was a "case or controversy," but that Congress's intervention occasioned no commentary suggests that the Court viewed it as unexceptional.
395. See Cobb, J W., supra note 78, at 210 ("In addition to the authority to defend a federal statute, the SLC exercises other litigation-related responsibilities. includ[ing] bringing a civil action to enforce a subpoena issued by the Senate or one of its subparts, defending against a subpoena., presenting amicus curiae arguments, representing the Senate or one of its committees in immunity proceedings, defending the Senate or one [o]f its subparts in a civil action., and performing various advisory duties." (footnotes omitted)).
396. These offices are relatively recent innovations, responses to the need for offices capable of protecting congressional interests when the Executive Branch did not.
397. See Days, supra note 27, at 501 (noting that historically, when "the Executive and Legislative Branches were irretrievably at loggerheads, Congress was forced to hire private counsel or even send one of its own members into court").
398. See Days, supra note 27, at 503 (identifying one instance in which Congress elected not to defend a statute after the DOJ notified Congress that it would not defend the statute); see also
399. Meltzer, D J., supra note 72, at 1211-13 (noting that "congressional pinch-hitting will often not be a full substitute for defense by the executive" because whether Congress will defend a challenged statute "depend[s] upon the political vicissitudes of the moment").
400. In the House, involvement in litigation is governed by the five-member Bipartisan Legal Advisory Group, not the body as a whole. In the Senate, intervention as an amicus is governed by the body as a whole, but the default is noninvolvement, so no majority vote is required for nondefense.
401. See Amanda Frost, Congress in Court, 59 UCLA L. REV. 914, 943-44 (2012).
402. It could also undermine the uniformity of the law if several circuits struck down the law but then a subsequent president began to enforce the law in those circuits in which it had not been challenged.
403. See Note, supra note 77, at 984.
404. See Lochhead, C., supra note 54 ("The American people want Congress to be working on the creation of jobs and ensuring the continued progress of our economic recovery rather than involving itself unnecessarily in such costly and divisive litigation." (quoting Letter from Rep. Nancy Pelosi to House Speaker John Boehner)).
405. To be sure, there may be some awkwardness in the absence of an actual client capable of providing direction and guidance, but that is also essentially the case when the Executive Branch or Congress is involved. In those cases, as well, the client is the "United States," but the United States cannot provide any specific guidance or direction. In all of these cases, counsel must simply provide what he or she believes to be the strongest legal arguments in support of the statute's constitutionality.
406. Goldman, B., supra note 22, at 909. This practice may help prevent Article III problems that could arise if judicial decisions below were left undefended.
407. United States v. Providence Journal Co., 485 U.S. 693, 703-04 (1988) "[T]he independent ability of the Judiciary to vindicate its authority might appear to be threatened: both [lower] courts would have agreed that the contemner had disobeyed an order of the court, but the Executive's judgment to the contrary would threaten to undermine those judicial decisions.
408. This threat, however, is inconsequential, for it is this Court. that must decide whether to exercise its discretion to review the judgment below, and it is well within this Court's authority to appoint an amicus curiae to file briefs and present oral argument in support of that judgment.".
409. See Goldman, B., supra note 22, at 971 (arguing that in such cases the Court should "adopt a more minimalist approach," either denying certiorari or vacating the decision below as moot and remanding to the lower courts).
410. Id. at 970.
411. Id.
412. Although such active involvement by the court is arguably inconsistent with our adversarial system's emphasis on judicial neutrality, it can facilitate other attributes of the adversarial system by ensuring that both sides of the issue are zealously represented. In the absence of such involvement by the court, the court will either confront a one-sided presentation of the issue or have to engage in independent research on its own.
413. See INS v. Chadha, 462 U.S. 919-940 n.12 (1983) (discussing Bob Jones Univ. v. United States, 461 U.S. 574, 585 n.9 (1983)).
414. See Meltzer, D J., supra note 72, at 1209-20 (providing thoughtful discussion of other potential problems with executive nondefense, including the "range of considerations that support the practice of enforcing and defending acts of Congress that the executive branch believes to be misguided, offensive, and quite possibly unconstitutional-in which category I would place DOMA and Don't Ask, Don't Tell").
415. See Dellinger, W., supra note 192 (arguing that the Obama Administration's decision not to defend means that "the judges will know to look elsewhere for the most all-out, no-holds-barred defense of the law in question").
416. Days, supra note 27, at 502. General Days is, of course, not alone in this view. See, e.g.
417. Dawn E. Johnsen, Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?, 67 LAW & CONTEMP. PROBS. 105-126 (2004) (noting that "presidential practices," such as "defend[ing] acts of Congress that in their view are unconstitutional, as long as a reasonable argument can be made in support of the law. reflect respect for the Court and Congress and are consistent with the general separation of powers").
418. See supra notes 147-58 and accompanying text.
419. Days, supra note 27, at 496.
420. To be sure, there can sometimes be difficult questions about what actions must be taken by the United States, as opposed to private parties.
421. See, e.g., Robertson v. United States ex rel. Watson, 130 S. Ct. 2184-2185 (2010) (Roberts, C.J., dissenting) (disagreeing with the court below that an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person because "[t]he terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government").
422. But again the defense of challenged statutes does not involve private parties acting for the United States as much as providing one view of what the United States' interests are in a particular case. 481 U.S. 787, 804 (1987) ("A private attorney appointed to prosecute a criminal contempt therefore certainly should be as disinterested as a public prosecutor who undertakes such a prosecution.").
423. See 31 U.S.C. § 3730(b)(1) (2006) ("A person may bring a civil action for a violation of section 3729 for the person and for the United States Government. The action shall be brought in the name of the Government.").
424. See United States ex rel. Eisenstein v. City of New York, 556 U.S. 928-934 (2009). To be sure, the Supreme Court has concluded that a "court-appointed prosecutor who sought certiorari and briefed and argued the case without the authorization of the Solicitor General may not represent the United States," United States v.
425. Providence Journal Co., 485 U.S. 693-695 (1988), but the question would have been an entirely different one had the Solicitor General authorized the special prosecutor to represent the United States, as it presumably would in cases where it has waived its right to defend the statute.
426. see id. at 698-99.
427. See Providence Journal, 485 U.S. at 712-13 (Stevens, J., dissenting) (collecting cases).
428. Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915-953 (2005).
429. see also Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314-2317 (2006) ("[T]he risks of unchecked executive power have grown to the point where dispatch has become a worn-out excuse for capricious activity.").
430. Jonathan Macey, Executive Branch Usurpation of Power: Corporations and Capital Markets, 115 YALE L.J. 2416-2418 (2006) ("The ascendancy of the executive branch in policymaking is an unintended consequence of the modern administrative state. The emergence of the executive branch as the fulcrum of power within the administrative state represents a deviation from the traditional balance of powers among the three branches of government.").
431. See, e.g., James A. Gardner, Democracy Without a Net? Separation of Powers and the Idea of Self-Sustaining Constitutional Constraints on Undemocratic Behavior, 79 ST. JOHN'S L. REV. 293-308 (2005) ("And why have political actors not only failed to resist incursions on their power, but frequently acquiesced in a diminution of their own authority? Government officers seemingly had at their disposal all the tools necessary to fight off depredations committed by other branches, yet they chose to cooperate rather than to resist.").
432. Katyal, N K., supra note 239, at 2320 ("In most instances today, the only way for Congress to disapprove of a presidential decree, even one chock full of rampant lawmaking, is to pass a bill with a solid enough majority to override a presidential veto.").
433. Levinson D J., & Pildes, R H., supra note 16, at 2313 ("Few aspects of the founding generation's political theory are now more clearly anachronistic than their vision of legislative-executive separation of powers.").
434. The examples are numerous, if not endless. For example, the Executive Branch generally acts for the United States in its relations with other countries (both peaceful and otherwise), even though Congress also has a substantial role to play in determining the nation's substantive policy in that area through, for example, its power to declare war and to regulate commerce with foreign nations. The Executive Branch also, as noted earlier, has exclusive responsibility for enforcing the nation's laws, even though Congress clearly has a significant role to play in determining what those laws are. Although the contexts in which this issue arises are numerous, each one is unique-both in terms of the respective responsibilities of the branches and the amount of discretion the Executive Branch is supposed to have in its actions on behalf of the whole.
435. The Executive Branch's role as agent for the whole is even more complicated when independent agencies are involved. In such cases, the agency may not require legislative appropriations for its financing, its top officials may be free from presidential control, and significant portions of the staff may be appointed independently of both the President and Congress. These independent agencies can nonetheless wield considerable power. The Chairman of the Federal Reserve, for example, has been described as "the nation's most powerful economic policymaking job."
436. Michael D. Shear & Neil Irwin, Bernanke to Be Reappointed as Fed Chairman, WASH. POST, Aug. 25, 2009, at A1.
437. Cass R. Sunstein, What's Standing After Lujan?: Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163-212 (1992) ("[T]he Take Care Clause confers a duty insofar as it imposes on the President both a responsibility to be faithful to law and an obligation to enforce the law as it has been enacted, rather than as he would have wished it to be.").
438. Or the administrative agency's views may have changed over time. Or different administrative agencies will have different views regarding what the law means. The possible complications are many. See
439. Rodriguez, D B., supra note 19, at 1199-1200 ("[T]he President, through various control devices. [can] use[] his office to interpose himself between legislators' preferences as reflected in their directions to administrators as well as the preferences of the administrators themselves."). To be sure, agencies will, at least in theory, have to justify their regulation with reference to the underlying statute, but broad statutory language will often give agencies wide scope to implement the Executive Branch's policy preferences.
440. See, e.g., U.S. CONST. art. I, § 8 (giving Congress the power to "regulate Commerce with foreign Nations").
441. In 2011, civil war erupted in Libya between supporters of Muammar el-Qaddafi and those trying to overthrow his government, see, e.g.
442. David D. Kirkpatrick & Mona El-Naggar, Son of Qaddafi Says Libya Faces Civil War Peril, N.Y. TIMES, Feb. 21, 2011, at A1, and controversy erupted in Washington, D.C. over how, if at all, the United States should respond, see, e.g.
443. David E. Sanger & Thom Shanker, Discord Grows on the Politics of Intervention, N.Y. TIMES, Mar. 8, 2011, at A1. President Obama ultimately decided that the United States should intervene in the conflict. See, e.g.
444. David E. Sanger, Possible Libya Stalemate Puts Stress on U.S. Policy, N.Y. TIMES, Apr. 12, 2011, at A8.
445. See Charlie Savage, 2 Top Lawyers Lose Argument on War Powers, N.Y. TIMES, June 18, 2011, at A1.
446. See, e.g., J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394-409 (1928).
447. See, e.g., Patrick M. Garry, The Unannounced Revolution: How the Court Has Indirectly Effected a Shift in the Separation of Powers, 57 ALA. L. REV. 689-703 (2006) ("Various scholars have declared the Non-Delegation Doctrine, which was first announced by the Supreme Court in Field v. Clark, to be dead." (footnote omitted)).
448. See, e.g., Katyal, N K., supra note 239, at 2321 ("[T]he executive branch has gained power from deference doctrines that induce courts to leave much conduct untouched").
449. William P. Marshall, Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters, 88 B.U. L. REV. 505-511 (2008) ("Because of justiciability limitations, many of the questions surrounding the scope of presidential power, such as war powers, never reach the courts." (footnote omitted)).
450. Richard J. Pierce, Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially Imposed Limit on Legislative Power, 42 DUKE L.J. 1170-1200 (1993) (noting that the reasoning in the majority opinion in Lujan "reallocates power among the institutions of government in three related ways," including by "confer[ring] on agencies discretion to ignore many congressional policy decisions").
451. See supra notes 91-93 and accompanying text.
452. see also El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836-857 (D.C. Cir. 2010) (Kavanaugh, J., concurring in the judgment) ("Applying the political question doctrine in statutory cases thus would not reflect benign deference to the political branches. Rather, that approach would systematically favor the Executive Branch over the Legislative Branch-without the courts' acknowledging as much or grappling with the critical separation of powers and Article II issues."). Unsurprisingly, the Obama Administration has argued that a suit filed by members of Congress challenging the United States' actions in Libya should be dismissed on political question grounds.
453. See Memorandum in Support of Defendants' Motion to Dismiss 13-21, Kucinich v. Obama, No. 1:11-cv-01096 (RBW) (D.D.C. Aug. 19, 2011).