Enforcing (but not defending) 'unconstitutional' laws

Virginia Law Review

Volumn 98, Issue 5, 2012, Pages 1001-1091

  Huq, Aziz Z ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 84866997195     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (305)

1. See Pedersen v. Office of Pers. Mgmt., No. 3:10-cv-1750 (D. Conn. filed Nov. 9, 2010);
2. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y. filed Nov. 9, 2010). In June 2012, Judge Jones of the Southern District of New York invalidated DOMA Section 3.
3. See Windsor v. United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012). In earlier challenges to the same statute, the Justice Department defended the provision. See Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 376-77 (D. Mass. 2010) (holding that DOMA § 3 violates the Equal Protection Clause);
4. Massachusetts v. U.S. Dep't of Health & Human Servs., 698 F. Supp. 2d 234, 235, 248-49 (D. Mass. 2010) (holding that DOMA § 3 violates the Tenth Amendment and the Spending Clause). In a carefully circumscribed ruling, the First Circuit affirmed both judgments in a rul ing likely to secure high court review.
5. See Massachusetts v. U.S. Dep't of Health and Human Servs., 682 F.3d 1 (1st Cir. 2012).
6. See Letter from Eric H. Holder, Jr., U.S. Attorney Gen., to the Hon. John A. Boehner, Speaker of the House (Feb. 23, 2011) [hereinafter Holder Letter], available at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html.
7. INS v. Chadha, 462 U.S. 919, 930-31 (1983);
8. Brief for Petitioner at 10-11, Chadha, 462 U.S. 919 (Nos. 80-1832, 80-2170, 80-2171).
9. United States v. Lovett, 328 U.S. 303, 304-06 (1946) (describing executive response to § 304 of the Urgent Deficiency Appropriation Act of 1943).
10. See generally Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448, 1470-88 (2010) [hereinafter Morrison, Stare Decisis] (discussing the role of precedent within the Office of Legal Counsel).
11. See, e.g., Walter Dellinger, The DOMA Decision, The New Republic (Mar. 1, 2011), http://www.tnr.com/article/politics/84353/gay-marriage-obama-gingrich- doma(characterizing the President's decision as "honest, transparent, and respectful of the rule of law").
12. See, e.g., 157 Cong. Rec. H1642 (daily ed. Mar. 9, 2011) (statement of Rep. Fleming) ("It appears to me that President Obama sees no need for the other two branches. ."); Tony Mauro, DOMA Defense, Nat'l L.J., Apr. 4, 2011, at 17 (quoting Sen. Jeff Sessions statement about the decision not to defend DOMA § 3 that "[t]his one really hit me hard");
13. Ron Paul Condemns Obama's Decision to Abandon DOMA, The Iowa Republican (Feb. 24, 2011), http://theiowarepublican.com/home/2011/02/24/ron-paul-condemns- obama's-decision-to-abandon-doma/ (recountingCongressman Ron Paul's public statement in response to the administration's decision not to defend DOMA, "Today's announcement that the Obama Administration will abandon its obligation to enforce DOMA is truly disappointing and shows a profound lack of respect for the Constitution and the Rule of Law");
14. Nina Totenberg, Solicitor General Nominee Grilled on Marriage Act (Nat'l Pub. Radio Mar. 31, 2011), http://www.npr.org/2011/03/31/134996395/solicitor- general-nominee-grilled-onmarriage-act (reporting that at Donald Verilli's Senate confirmation hearing for Solicitor General, Verilli stated in response to a question from Senator Orrin Hatch that he would defend the statute from a constitutional challenge unless instructed by his superiors not to do so, to which the Senator replied, "That is not a good answer");
15. accord Paul Bedard, Newt Gingrich: Obama Could be Impeached Over Gay Marriage Reversal, U.S. News & World Report (Feb. 25, 2011), http://www.usnews.com/news/blogs/washington-whispers/2011/02/25/ newt-gingrich-obama-could-beimpeached-over-gay-marriage-reversal.
16. For academic criticism, see, for example, 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-ondom-b-827676.html, arguing that nondefense of DOMA "sets a terrible precedent."
17. J.J.C. Smart, An Outline of a System of Utilitarian Ethics, in Utilitarianism: For & Against 3, 9 (1973).
18. See Daniel J. Meltzer, Executive Defense of Congressional Acts, 61 Duke L.J. 1183, 1187 (2012) ("The question of the executive's proper role in enforcing and defending statutes implicates the broader debate about the proper role of the executive branch in making constitutional determinations and the relationship of the executive's constitutional interpretations to those of the courts.").
19. In the Founding era, the executive, legislature, and judiciary created in the Constitution's first three Articles were called "departments." Steven G. Calabresi & Kevin H. Rhodes, The Structural Con stitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1156 n.6 (1992).
20. See generally Laurence H. Tribe, 1 American Constitutional Law 266 (3d ed. 2000) (arguing that the executive need not give full effect to a judicial decree that violates the Constitution). Departmentalist tendencies can also be discerned in Congress.
21. See John C. Yoo, Lawyers in Congress, 61 Law & Contemp. Probs., Spring 1998, at 1, 5 (defending Congress's power to make constitutional determinations).
22. The locus classicus of this argument is Arthur M. Schlesinger, Jr., The Imperial Presidency (2004).
23. See, e.g., Raoul Berger, Executive Privilege: A Constitutional Myth 306 (1974) ("It is a startling notion that the President, who by the terms of Article II, § 3, 'shall take care that the laws be executed,' may refuse to execute a law on the ground that it is unconstitutional. To wring from a duty faithfully to execute the laws a power to defy them would appear to be a feat of splendid illogic." (citation omitted));
24. Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Revisiting the Royal Prerogative, 21 Hastings Const. L.Q. 865, 867, 881 (1994). There is a separate debate as to whether the President must veto laws he perceives to be unconstitutional.
25. Compare William Baude, Signing Unconstitutional Laws, 86 Ind. L.J. 303, 304 (2011) (no obligation to veto such laws)
26. with Saikrishna Bangalore Prakash, Why the President Must Veto Unconstitutional Bills, 16 Wm. & Mary Bill Rts. J. 81, 81 (2007) (obligation to veto).
27. See, e.g., Press Release, U.S. House of Representatives Committee on the Judiciary, Smith: DOJ Has a Responsibility to Defend DOMA (Feb. 23, 2011), http://judiciary.house.gov/news/2011/feb/110223DOMA.html (publicizing House Judiciary Committee Chairman Lamar Smith's criticism of the administration's decision not to defend DOMA: "It is not the role of the courts to redefine that institution and impose it on American society. The people alone - through their elected representatives - have that role and responsibility. And the President and his Administration are duty bound to defend those laws in court").
28. See, e.g., Saikrishna Bangalore Prakash, The Executive's Duty to Disregard Unconstitutional Laws, 96 Geo. L.J. 1613, 1616 (2008) [hereinafter Prakash, The Executive's Duty] (identifying a duty to disregard laws the President believes are unconstitutional);
29. accord John Harrison, The Constitutional Origins and Implications of Judicial Review, 84 Va. L. Rev. 333, 370 (1998) ("[I]f 'laws' includes all acts of Congress, then the Take Care Clause imposes on the President an impossible obligation when a statute is logically inconsistent with the Constitution.");
30. Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 Iowa L. Rev. 1267, 1280 (1996);
31. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 221 (1994);
32. see also Frank H. Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905, 919-20 (1990) [hereinafter Easterbrook, Presidential Review];
33. Michael J. Gerhardt, Non-Judicial Precedent, 61 Vand. L. Rev. 713, 714 (2008) (defining and exploring the concept of "non-judicial precedents as any past constitutional judgments of non-judicial actors that courts or other public authorities imbue with normative authority");
34. Saikrishna Prakash & John C. Yoo, Against Interpretive Supremacy, 103 Mich. L. Rev. 1539, 1564-66 (2005) (arguing for increased executive branch role in interpreting the Constitution). The power of presidential review described in this work does not necessarily extend to the refusal to comply with Supreme Court instructions or to follow its precedent. Compare Prakash, The Executive's Duty, supra, at 1621 ("[E]ven after the issuance of a final judgment based on the conclusion that a law is unconstitutional, the Executive Branch may continue to enforce that law against others.")
35. with Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81, 83 (1993) [hereinafter Paulsen, Merryman Power] (discussing, without disapproving
36. President Lincoln's refusal to be bound by Chief Justice Taney's ruling in Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861)). The question of compliance with Supreme Court opinions raises issues that are distinct and separate from the questions addressed here. Enforcementlitigation gaps do not involve conflicts between the branches. Nor do they call for a determination of the collateral estoppel effect of judgments on the government.
37. Cf. Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1361 (1997) (arguing that the Court's interpretations have "normative force" as correct readings of the Constitution).
38. See, e.g., Neal Devins & Saikrishna Prakash, The Indefensible Duty to Defend, 112 Colum. L. Rev. 507, 509 (2012) ("Given President Obama's belief that the DOMA is unconstitutional, he should neither enforce it nor defend it." (footnote omitted)).
39. For surveys of weak departmentalism, see generally Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. Rev. 1559, 1601 (2007) [hereinafter Johnsen, Faithfully Executing the Laws];
40. Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1240-58 (2006);
41. Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1306-30 (2000);
42. Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 Mich. L. Rev. 676, 687-702 (2005).
43. Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 9 (1999).
44. See Chevron U.S.A., Inc. v. Natural Res. Def. Counsel, Inc., 467 U.S. 837, 843-44 (1984). Because Chevron distributes the labor of statutory interpretation between the courts and federal administrative agencies based on quasi-constitutional principles of democratic accountability and institutional competence, it is fairly labeled a decision with constitutional undertones. And it has surely had more influence on the balance of interbranch powers than almost any other decision formally concerning the separation of powers.
45. Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 Const. Comment. 307 (2006).
46. Weak-form departmentalism has only recently come under the scholarly lens. See, e.g., David Barron, Constitutionalism in the Shadow of Doctrine: The President's Non-Enforcement Power, 63 Law & Contemp. Probs., Winter/Spring 2000, at 61, 64 (arguing against limiting presidential review so as to enable "judicia[l] authority to declare the meaning of the Constitution");
47. Frank B. Cross, Institutions and the Enforcement of the Bill of Rights, 85 Cornell L. Rev. 1529, 1586-89 (2000) (criticizing departmentalism and instead proposing a "preference for rights" approach, under which the rule set by the branch that protects the most liberty would serve as the governing rule for all branches);
48. Dawn E. Johnsen, Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?, 67 Law & Contemp. Probs., Summer 2004, at 105, 123 (arguing that the scope of presidential review authority should depend on respect for "the constitutional functions and powers of all three branches" and the "interpretive quality" of presidential decisions);
49. Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, 63 Law & Contemp. Probs., Winter/Spring 2000, at 7, 13 [hereinafter Johnsen, Presidential Non-Enforcement] (advocating multifactor balancing test to ascertain when non-enforcement is appropriate);
50. David A. Strauss, Presidential Interpretation of the Constitution, 15 Cardozo L. Rev. 113, 115-16 (1993) (arguing that the executive should give Supreme Court authority the same weight that the Court itself would give it, but leaving open the possibility of rejecting the Court's view in extraordinary situations for a moderate form of departmentalism under which presidential power to interpret independently the Constitution is tied to whether prior courts have ruled on the issues that the President desires to decide).
51. For an example of an effort to codify such practices for one element of the Department of Justice, see Memorandum from David J. Barron, Acting Assistant Attorney Gen., Office of Legal Counsel, to Attorneys of the Office (Jul. 16, 2010), available at http://www.justice.gov/olc/pdf/olclegal-advice-opinions.pdf [hereinafter OLC Best Practices Memo].
52. See Bowsher v. Synar, 478 U.S. 714, 726 (1986) (invalidating federal statute on the ground that it vested Congress with impermissible control over an official with power to execute the laws).
53. See generally Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups 34 (1965).
54. Winter v. Natural Res. Def. Council, Inc., 5 U.S. 7, 20-21 (2008).
55. Gavett v. Alexander, 477 F. Supp. 1035, 1038 (D.D.C. 1979) (describing challenge filed by gun control advocates). The Department of Justice filed a brief challenging plaintiffs' standing to bring suit and arguing for dismissal, but declining to defend the law because the latter did "not bear a rational relationship to any legitimate governmental interest and is therefore unconstitutional." Id. at 1040, 1043-44 & n.19.
56. Drew S. Days III, The Solicitor General and the American Legal Ideal, 49 SMU L. Rev. 73, 80-81 (1995) [hereinafter Days, Solicitor General] (collecting two such cases);
57. see also Drew S. Days III, When the President Says "No": A Few Thoughts on Executive Power and the Tradition of Solicitor General Independence, 3 J. App. Prac. & Process 509, 514-17 (2001) (describing refusal to defend or enforce a 1984 child pornography possession statute before the Supreme Court, in favor of confessing that a court of appeals had erred).
58. Nor do I include cases such as Bob Jones University v. United States, 461 U.S. 574 (1983), where the Department of Justice abandoned its defense of an agency position mid-stream in litigation. The Bob Jones University litigation is unusual because the Supreme Court disregarded the government's change of heart and appointed an amicus curiae to argue for the position the government had abandoned.
59. See Bob Jones Univ. v. United States, 456 U.S. 922 (1982) (mem.) (appointing William Coleman to argue that the Internal Revenue Code allowed the government to deny charitable status to a religious university that had racially discriminated).
60. 57 Stat. 431, 450 (1943).
61. United States v. Lovett, 328 U.S. 303, 305 n.1 (1946) (citation omitted).
62. Note, Executive Discretion and the Congressional Defense of Statutes, 92 Yale L.J. 970, 983 n.43 (1983).
63. Lovett, 328 U.S. at 305.
64. Brief for Petitioner at 2-3, Lovett, 328 U.S. 303 (Nos. 809, 810, 811), reprinted in 44 Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law 41, 53-54 (Philip Kurland & Gerhard Casper eds., 1975) [hereinafter Lovett brief]. The Special Counsel for the Congress of the United States filed a brief in support of § 304.
65. See Brief for the Congress of the United States as Amicus Curiae Supporting Petitioner at 24-26, Lovett, 328 U.S. 303 (Nos. 809, 810, 811), reprinted in Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law, supra, at 297, 329-331.
66. The government has both enforced and defended other anti-communist statutory provisions later invalidated as bills of attainder. See United States v. Brown, 381 U.S. 437, 438, 440 (1965) (invalidating § 504 of the Labor-Management Reporting and Disclosure Act as a bill of attainder after its criminal enforcement). In other cases, the Justice Department enforced and defended anti-communist laws.
67. See, e.g., American Commc'ns Ass'n v. Douds, 339 U.S. 382, 384, 413-14 (1950).
68. See Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law 10-12 (1987).
69. Congress first enacted a legislative veto in 1932, and subsequently passed around three hundred laws with such a provision between 1932 and 1975. See James Abourezk, The Congressional Veto: A Contemporary Response to Executive Encroachment on Legislative Prerogatives, 52 Ind. L.J. 323, 324 (1977).
70. See Appropriations Limitations for Rules Vetoed by Congress, 4B Op. O.L.C. 731 (1980) (finding a legislative veto to be unconstitutional); Special Message to the Congress upon Signing the Department of Defense Appropriation Act, Pub. Papers of Dwight D. Eisenhower 688, 688-89 (July 13, 1955) (same). Presidents have also accepted other legislative vetoes without complaint, apparently concluding that they came packaged with sufficiently desirable authorities to assuage any constitutional qualms. Louis Fisher, Constitutional Conflicts Between Congress and the President 145-46 (4th ed. 1997) (listing examples).
71. Christopher S. Yoo, Steven G. Calabresi & Anthony J. Colangelo, The Unitary Executive in the Modern Era: 1945-2004, 90 Iowa L. Rev. 601, 685 n.561 (2005).
72. Constitutionality of Congress's Disapproval of Agency Regulations by Resolutions Not Presented to the President, 4A Op. O.L.C. 21, 29 (1980).
73. INS v. Chadha, 462 U.S. 919, 930 (1983).
74. Brief for the United States at 13-17, Bowsher v. Synar, 478 U.S. 714 (1986) (Nos. 85-1377, 85-1378, 85-1379). At least Justice White seemed irked by this decision. See Bowsher, 478 U.S. at 761 n.2 (White, J., dissenting).
75. See Brief of Appellant, U.S. Senate, Bowsher, 478 U.S. 714 (Nos. 85-1377, 85-1378, 85-1379).
76. See Bowsher, 478 U.S. at 719.
77. Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct Action 217 (2002) (describing the relevant enactment history).
78. Statement on Signing the National Defense Authorization Act for Fiscal Year 1996, 1 Pub. Papers 226, 226-27 (Feb. 10, 1996).
79. See, e.g., Dragovich v. U.S. Dep't of the Treasury, 764 F. Supp. 2d 1178, 1179, 1192 (N.D. Cal. 2011) (denying federal defendants' motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim);
80. Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 376-77 (D. Mass. 2010) (invalidating DOMA § 3);
81. Massachusetts v. U.S. Dep't. of Health & Human Servs., 698 F. Supp. 2d 234, 235-36 (D. Mass. 2010) (same).
82. See Gill, 699 F. Supp. 2d at 376-77;
83. U.S. Dep't of Health & Human Servs., 698 F. Supp. 2d at 235-36. In 2012, a district court in California followed suit and held DOMA § 3 unconstitutional on equal protection grounds.
84. See Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 995 (N.D. Cal. 2012).
85. See Massachusetts v. U.S. Dep't of Health and Human Servs., 682 F.3d 1 (1st Cir. 2012).
86. Complaint at ¶¶ 6-8, 53-63, Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y. Nov. 9, 2010), available at http://law.scu.edu/blog/ samesextax/file/Windsor%20complaint.pdf.
87. Complaint at -4-10, Pedersen v. Office of Pers. Mgmt., No. 3:10-cv-1750 (D. Conn. Nov. 9, 2010), available at http://www.scribd.com/towleroad/d/ 41729563-Pedersen-v-OPM-Complaint.
88. Id. But in other cases challenging applications of DOMA, the Government continued to rely on procedural grounds to rebut plaintiff's claims. See, e.g., Def. Resp. to Order to Show Cause of Feb. 23, 2011 at 2
89. Golinski v. U.S. Office of Personnel Mgmt., No. 3:10-cv-00257-JSW (N.D. Cal. filed Feb, 28, 2011) (on file with author) (contending that the constitutionality of DOMA was not implicated by a challenge to the denial of benefits to the same-sex spouse of a staff attorney for the Ninth Circuit because the remedy sought in that case "is not enforceable through mandamus").
90. Press Release, Congressman John Boehner, Regarding the Defense of Marriage Act (Mar. 4, 2011), available at http://johnboehner.house.gov/News/ DocumentSingle.aspx?DocumentID=227399.
91. U.S. General Accounting Office, Defense of Marriage Act: Update to Prior Report (Jan. 23, 2004), available at http://www.gao.gov/products/GAO-04-353R.
92. See, e.g., Def. Resp. to Order to Show Cause of Feb. 23, 2011 at 2, Golinski, No. C 4:10-00257-JSW (on file with author) (explaining that the government intended to continue the denial of such benefits).
93. This assumes valid same-sex marriages could be a statutory basis for immigration benefits in the absence of DOMA, although there is some (dated) precedent to the contrary. See Adams v. Howerton, 673 F.2d 1036, 1040-41 (9th Cir. 1982) (holding that immigration law's reference to "spouses" did not include same-sex partners).
94. Julia Preston, Confusion Over Policy on Married Gay Immigrants, N.Y. Times, Mar. 30, 2011, at A14.
95. For a particularly striking example, see Josh Kron, Pulling Out All the Stops to Push an Anti-Gay Bill, N.Y. Times, Apr. 14, 2011, at A12.
96. The Obama administration's position on this question has been erratic. See Julia Preston, Justice Department to Continue Policy Against Same-Sex Marriage, N.Y. Times, May 9, 2011, at A15 (noting that two deportation proceedings had been stayed, but that "deportations could continue in other immigration cases involving married gay couples").
97. Julia Preston, U.S. Issues New Deportation Policy's First Reprieves, N.Y. Times, Aug. 23, 2011, at A15. It appears the relief same-sex couples receive under this policy is not a consequence of executive disregard of DOMA § 3.
98. See, e.g., Dorothy Samuels, Charlie Morgan's Battle, N.Y. Times, Dec. 30, 2011, at A22 (describing case of a married army officer whose same-sex partner "is denied health coverage worth well in excess of $10,000 a year [and] cannot get a base pass that would let her. escort their 41/2-year-old daughter to medical appointments on base").
99. Under the slogan "Refuse to Lie," the campaign urged taxpayers in 2011 to report their same-sex marriage on their federal tax forms. See IRS Tells Married Couples to File as Single, available at http://refusetolie.org/ (last visited July 19, 2012). The campaign website cautions, however, that married gay couples who underpay taxes by filing jointly rather than separately are at risk of penalties for doing so.
100. See Kate Stith, Rewriting the Fiscal Constitution: The Case of Gramm-Rudman-Hollings, 76 Calif. L. Rev. 593, 611 (1988) (noting that "appropriations legislation has generally contained less line-item detail than it did in the preceding 150 years [and] appropriations acts fund each broadly defined federal program or activity in one lump sum, termed a budget 'account'"). The use of lump-sum appropriations remains the norm in current and pending appropriations measures.
101. See, e.g., An Act Making Appropriations for the Department of Defense and the Other Departments and Agencies of the Government for the Fiscal Year Ending September 30, 2011, and for Other Purposes, H.R. 1, 112th Cong. (1st Sess. 2011), available at http://www.gpo.gov/fdsys/pkg/BILLS-112hr1eh/pdf/BILLS- 112hr1eh.pdf.
102. See Christopher R. Berry, Barry C. Burden & William G. Howell, The President and the Distribution of Federal Spending, 104 Am. Pol. Sci. Rev. 783, 786 (2010).
103. Office of Mgmt. & Budget, Executive Office of the President, OMB Circular A-11, § 15 - Basic Budget Laws, at 3, available at http://www.whitehouse.gov/sites/default/files/omb/assets/a11-current-year/s15. pdf.
104. See 2 U.S.C. §§ 288c(a), 288e(a) (2006) (authorizing Office of Senate Legal Counsel to intervene in suits in which the constitutional powers and responsibilities of Congress are placed in issue); R. II.8, Rules of the House of Representatives, 112th Cong. (2011), at 3, available at http://rules.house.gov/Media/file/PDF-112-1/legislativetext/ 112th%20Rules%20Pamphlet.pdf (establishing"an Office of General Counsel for the purpose of providing legal assistance and representation to the House"). There are examples of congressional representation at all levels of the federal judicial hierarchy. See, e.g., Raines v. Byrd, 521 U.S. 811, 818, n.2 (1997);
105. Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 223 (1986);
106. In re Grand Jury Subpoenas, 571 F.3d 1200, 1203 (D.C. Cir. 2009) (Kavanaugh, J., concurring);
107. In re Search of the Rayburn House Office Bldg., 432 F. Supp. 2d 100, 104-05 (D.D.C. 2006), rev'd sub nom
108. United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007).
109. See Unopposed Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives to Intervene for a Limited Purpose, Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y. Nov. 9, 2010), available at http://sblog.s3.amazonaws.com/wp-content/uploads/2011/04/House-intervene-mtn- Windsor-4-18-11.pdf;
110. Jennifer Steinhauer, House Republicans Step in to Defend Marriage Act and Dodge a Party Debate, N.Y. Times, Mar. 5, 2011, at A16. Some Senators lodged individualized objections
111. see Letter from Sen. Kirsten Gillibrand to Rep. John Boehner, Speaker of the House of Representatives (Mar. 2, 2011), available at http://gillibrand. senate.gov/newsroom/press/release/gillibrand-to-house-gop-dont-spend- taxpayermoney-defending-unconstitutional-doma-law.
112. Judithanne Scourfield McLauchlan, Congressional Participation as Amicus Curiae Before the U.S. Supreme Court 34 (2005). One recent commentator takes the position that this reflects a suboptimal level of congressional participation in constitutional litigation.
113. See Amanda Frost, Congress in Court, 59 UCLA L. Rev. 914, 919 (2012) (proposing that "Congress take a more active role in federal litigation, both to provide the courts with the legislative perspective on interpretive questions and to counter executive influence").
114. To establish Article III jurisdiction, "the opposing party. must have an ongoing interest in the dispute, so that the case features 'the concrete adverseness which sharpens the presentation of issues.'" Camreta v. Greene, 131 S. Ct. 2020, 2023-24 (2011)
115. (quoting City of L.A. v. Lyons, 461 U.S. 95, 101 (1983)).
116. League of Women Voters v. FCC, 489 F. Supp. 517, 519-21 (C.D. Cal. 1980) (noting that the executive declined to defend section of Corporation for Public Broadcasting Act restricting editorializing and political endorsement of public broadcast licensees).
117. Cf. United States v. Mendoza, 464 U.S. 154, 162 (1984) (holding that nonmutual offensive collateral estoppel "simply does not apply against the government").
118. For an example from a case concerning the compensation of federal judges, see Brief for the United States at 28, Miles v. Graham, 268 U.S. 501 (1925) (No. 53) ("The Solicitor General takes no satisfaction in presenting this argument for the consideration of the court. As able counsel have and will argue the invalidity of the tax, it is fair to Congress - and, indeed, it is fair to this court - that the other view of constitutional power should be fully and fairly presented, and this I have endeavored to do.").
119. A variant of the problem arose respecting the litigation challenging California's Proposition 8 on same-sex marriage. The question there is once the state had declined to defend the state rule on appeal from a district court judgment invalidating Proposition 8, whether an official proponent of the voter-approved initiative, which had intervener status at the district court level, has standing to appeal the district court's decision when the state officials decline to do so. Cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (parties must have necessary stake not only at the inception of litigation, but throughout its course). The Ninth Circuit held that in order to have standing, the proponents had to have either particularized interests or the state-law authority to defend the constitutionality of the initiative.
120. See Perry v. Schwarzenegger, 628 F.3d 1191, 1195 (9th Cir. 2011). On January 4, 2011, the Ninth Circuit certified a question to the California Supreme Court, asking whether under California law, the proponent would have either particularized interest or authority to defend the constitutionality of the initiative under state law. See id. at 1193 (order certifying a question to the Supreme Court of California) (asking the California Supreme Court to determine "[w]hether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so"). The California Supreme Court upheld the intervenors' legal interest in the suit.
121. See Perry v. Brown, 265 P.3d 1002, 1005-06 (Cal. 2011).
122. Perry v. Brown, 671 F.3d 1052, 1074-75, 1096 (9th Cir. 2012).
123. William N. Eskridge, Jr. & John Ferejohn, A Republic of Statutes: The New American Constitution 32-33 (2010).
124. Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679, 681 (1989).
125. Id. at 749-50 (arguing that with intracircuit nonacquiescence, "[a] litigant's ability to obtain the benefit of the case law of the reviewing court of appeals will depend on whether he has sufficient resources to pursue an appeal to the federal courts"). Agencies are not subject to nonmutual offensive collateral estoppel. United States v. Mendoza, 464 U.S. 154, 159-63 (1984).
126. Intrabranch disputes of this kind are not rendered nonjusticiable simply because the President has some residuum of ultimate control over both adverse parties. See United States v. ICC, 337 U.S. 426, 430-31 (1949).
127. See Sean Gailmard & John W. Patty, Slackers and Zealots: Civil Service, Policy Discretion, and Bureaucratic Expertise, 51 Am. J. Pol. Sci. 873, 874, 886 (2007). Agencies will also attract those with preferences aligned with the agencies' mission. 100 See, e.g.
128. Sophia Z. Lee, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, 96 Va. L. Rev. 799, 811-18 (2010) (describing how FCC lawyers aggressively read the "state action" doctrine to pursue substantive policy goals).
129. This possibility is sharply presented when Congress has granted an agency authority to determine its own litigation positions. Michael Herz, United States v. United States: When can the Federal Government Sue Itself?, 32 Wm. & Mary L. Rev. 893, 947 (1991).
130. reprinted in 84 Landmark Briefs and Arguments of the Supreme Court of the United States 514-17 (Philip B. Kurland & Gerhard Casper eds., 2001). Consider, by contrast, Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978)
131. Compare Brief for Appellant at 13-14, Morrison, 487 U.S. 654 (1988) (No. 87-1279)
132. Morrison, 487 U.S. 654 (No. 87-1279);
133. see also Letter from William French Smith, Attorney Gen., U.S. Dep't of Justice, to Michael Davidson, Senate Legal Counsel, U.S. Senate (Apr. 17, 1981)
134. Brief for Respondents at 6-7, Bolling v. Sharpe, 347 U.S. 497 (1954) (No. 8). At the time, the federal government had delegated certain powers to the District's counsel, but also retained broad override authority. See District of Columbia v. John R. Thompson Co., 346 U.S. 100, 104-10 (1953) (describing historical evolution of D.C. governmental powers).
135. The Solicitor General filed a consolidated brief in Brown v. Board of Education and Bolling v. Sharpe. See Brief for the United States as Amicus Curiae, Brown v. Bd. of Educ., 347 U.S. 483 (1954) (Nos. 8, 101, 191, 413, 448). On the District of Columbia case, Attorney General James P. McGranery cautioned that the case arose without discovery on the basis of threshold pleadings, making resolution of factual questions about equal protection difficult to resolve. Id. at 14. The Attorney General nevertheless recommended that the Court apply a clear statement rule to the relevant statutes to hold that "Congress assumed the existence of a system of segregated schools in the District of Columbia, but did not make it mandatory. ." Id. at 15 (emphasis added). The Court would then issue a declaratory judgment to that effect and the District's Board of Education "would then be free" to desegregate. Id. at 16.
136. Mark Tushnet, Alternative Forms of Judicial Review, 101 Mich. L. Rev. 2781, 2782 (2003).
137. see also Mark Tushnet, Essay, Non-Judicial Review, 40 Harv. J. on Legis. 453, 468-79 (2003) (describing practice of "reasonably disinterested" OLC review based on interviews with serving Justice Department staff).
138. The Legal Significance of Presidential Signing Statements, 17 Op. O.L.C. 131, 131 (1993) (concluding that a signing statement can be aimed at "informing Congress and the public that the Executive believes that a particular provision would be unconstitutional").
139. See Saikrishna Prakash, The Chief Prosecutor, 73 Geo. Wash. L. Rev. 521, 527 (2005).
140. On the historical breadth of the pardon power, see Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. Crim. L. & Criminology 1169, 1172-87 (2010).
141. see Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting nonenforcement power respecting a purportedly unconstitutional statute).
142. Noncompliance provided the context to Myers v. United States, 272 U.S. 52 (1926)
143. and Humphrey's Executor v. United States, 295 U.S. 602 (1935), although the opinions in neither case address the legal merits of that strategy.
144. Pub. L. No. 98-369, 98 Stat. 1175 (1984) (codified as amended at 31 U.S.C. §§ 3551-56 (2006)); see Lear Siegler, Inc. v. Lehman, 842 F.2d 1102, 1104-05 (9th Cir. 1988), rev'd and remanded, 893 F.2d 205 (9th Cir. 1989) (en banc).
145. Lear Siegler, 842 F.2d at 1120.
146. Lear Siegler, 893 F.2d at 207-08 (holding that Lear Siegler could not receive attorney's fees because it was not the prevailing party).
147. John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 Sup. Ct. Rev. 223, 228, 258-60 (noting that "[m]uch legislation reflects the fruits of legislative compromise, and such compromises often lead to the articulation of broad policies for agencies and courts to specify through application").
148. On the other hand, judicial shading of legislative text based on constitutional concerns has been criticized on the ground that it results in greater distortions of congressional intent than mere invalidations. Frederick Schauer, Ashwander Revisited, 1995 Sup. Ct. Rev. 71, 74 ("[I]t is by no means clear that a strained interpretation of a federal statute that avoids a constitutional question is any less a judicial intrusion than the judicial invalidation on constitutional grounds of a less strained interpretation of the same statute.").
149. For an exploration of this point respecting prosecutors, see Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 Stan. L. Rev. 869, 874-87 (2009).
150. See generally Trevor W. Morrison, Constitutional Alarmism, 124 Harv. L. Rev. 1688, 1694-97 (2011) [hereinafter Morrison, Constitutional Alarmism] (reviewing Bruce Ackerman, The Decline and Fall of the American Republic (2010)).
151. Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792).
152. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (noting that the "irreducible constitutional minimum" of Article III standing analysis is that a favorable resolution of the plaintiff's claim will "likely" result in a concrete injury being "redressed").
153. See Baker v. Carr, 369 U.S. 186, 211-17 (1962) (enumerating "formulations" of the political question doctrine).
154. See, e.g., El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 840-49 (D.C. Cir. 2010);
155. Doe v. United States, 95 Fed. Cl. 546, 578-82 (2010).
156. Multi-member courts are vulnerable to "cycling" and other deliberative pathologies that render the results of majority decisional procedures arguably arbitrary and unstable. See Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harv. L. Rev. 802, 816-21 (1982).
157. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1213 (1978);
158. Cf. Richard A. Posner, The Federal Courts: Challenge and Reform 62-63 (2d ed. 1999) (charting increasing federal court caseload over the twentieth century).
159. Compare Frank H. Easterbrook, Plea Bargaining as Compromise, 101 Yale L.J. 1969, 1975 (1992) (endorsing plea bargaining)
160. with Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 464 (2004) (arguing that plea bargaining is structurally beset by distortions).
161. See Aziz Z. Huq, When Was Judicial Self-Restraint?, 100 Calif. L. Rev. 579, 584-86 (2012) (charting historical path of judicial activism from 1800 to 2000).
162. See Judith A. Best, Budgetary Breakdown and the Vitiation of the Veto, in The Fettered Presidency: Legal Constraints on the Executive Branch 119, 121-23 (L. Gordon Crovitz & Jeremy A. Rabkin eds., 1989) (arguing that the last-minute omnibus appropriations bill is virtually veto proof).
163. Two recent clear statements were promulgated during Democratic administrations, but there is little question that the Republican administrations take the same approach. See Memorandum from Walter Dellinger, Attorney General, to the Hon. Abner J. Mikva, Counsel to the President, Presidential Authority to Decline to Execute Unconstitutional Statutes (Nov. 2, 1994), 18 Op. O.L.C. 199 (1994), available at http://www.justice.gov/olc/ nonexcut.htm [hereinafter Dellinger Memo];
164. The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55 (1980) [hereinafter Civiletti Memo].
165. For legal opinions from Republican Administrations, see Issues Raised by Provisions Directing Issuance of Official or Diplomatic Passports, 16 Op. O.L.C. 18, 31-36 (1992);
166. Issues Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 46-52 (1990). These instances must be distinguished from refusals to comply with statutory commands on nonconstitutional grounds.
167. See Train v. City of New York, 420 U.S. 35, 44-46 (1975) (declining to find statutory authority to withhold spending via impoundment);
168. Cf. Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 29 (1993) ("Outright claims of 'executive Power' to disregard statutes are now seldom advanced before the senior judges."). The exercise of independent presidential judgment respecting a constitutional question in the absence of any information about other branches' views is not especially probative of the strength of strong departmentalist claims.
169. Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties 11-13 (1991). More robust was the Jacksonian defense offered by Lincoln's Attorney General Edward Bates.
170. See 10 Op. Att'y Gen. 74, 76 (1861).
171. Robert H. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353, 1358 (1953).
172. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring) (stating that "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on 'executive Power' vested in the President").
173. Accord Raines v. Byrd, 521 U.S. 811, 826-28 (1997);
174. see, e.g., Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1641 (2011) ("Lack of historical precedent can indicate a constitutional infirmity. .");
175. Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History 104 (2007) [hereinafter Whittington, Political Foundations].
176. See Keith Krehbiel, Pivotal Politics: A Theory of U.S. Lawmaking 34-39 (1998) (providing analysis of the effects of bicameralism and presentation on legal stability);
177. Charles Stewart III, Analyzing Congress 364-65 (2001) (modeling effects of a threefifths cloture rule);
178. see also George Tsebelis, Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism, 25 Brit. J. Pol. Sci. 289, 293 (1995).
179. The point has been most forcefully made respecting legislative incentives. See David Epstein & Sharyn O'Halloran, Delegating Powers: A Transaction Cost Approach to Policy-Making Under Separate Powers 197 (1999) (arguing that as complexity, difficulty, and enactment costs of legislative specification rise, legislators will tend more and more to delegate decisions rather than resolving hard questions themselves).
180. Younger v. Harris, 401 U.S. 37, 44 (1971).
181. See Jenna Bednar, The Robust Federation: Principles of Design 30-35 (2009) (explaining link between federalism and policy innovation).
182. The canonical judicial citation is New State Ice Co. v. Liebmann, 285 U.S. 262, 280 (1932) (Brandeis, J., dissenting).
183. Judicial review has hence been used historically to invalidate state or local enactments that fell out of step with the political projects of national political coalitions in the early Republic, see Lucas A. Powe, Jr., The Supreme Court and the American Elite, 1789-2008, at 58 (2009) (summarizing Marshall Court jurisprudence as "nationalistic, circumscribing the states while untethering the federal government"), and in the civil rights era
184. see Kevin J. McMahon, Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown 96-176 (2004) (describing how Roosevelt managed to steer the appointment of pro-civil rights judges through Congress and explaining that the "arguments and strategies that. laid the foundational precedent for later Supreme Court decisions constitutionally undercutting southern democracy and white supremacy" were first made by the Justice Department "in the course of prosecuting crimes");
185. accord Mark A. Graber, Constructing Judicial Review, 85 Ann. Rev. Pol. Sci. 425, 435 (2005).
186. Jide O. Nzelibe & Matthew C. Stephenson, Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design, 123 Harv. L. Rev. 617, 640 (2010). The model concerns the interaction of Presidents and Congress. The point, however, is generalizable.
187. See Edward S. Corwin, The President: Office and Powers, 1787-1957, at 66 (4th ed. 1957).
188. Cf. Letter from Andrew Fois, Assistant Attorney General, to the Hon. Orrin G. Hatch (Mar. 22, 1996)
189. Seth P. Waxman, Defending Congress, 79 N.C. L. Rev. 1073, 1078 (2001) ("[T]he Solicitor General generally defends a law whenever professionally respectable arguments can be made in support of its constitutionality. Unlike litigation decisions in other cases, when an Act of Congress has been challenged, the Solicitor General ordinarily puts a heavy thumb on the scale.").
190. see also The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 128 (1996) (noting that "the executive branch has an independent constitutional obligation to interpret and apply the Constitution," which is "of particular importance in the area of separation of powers");
191. Recommendation that the Dep't of Justice not Defend the Constitutionality of Certain Provisions of the Bankruptcy Amendments and Federal Judgeship Act of 1984, 8 Op. O.L.C. 183, 194-95 (1984) (describing an executive duty to enforce and defend except where a statute impinges on executive authority);
192. The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 43 Opp. Att'y Gen. 55, 57 (1980) (same). The same pattern holds for the Solicitor General.
193. Stephen S. Meinhold & Steven A. Shull, Policy Congruence Between the President and the Solicitor General, 51 Pol. Res. Q. 527, 527 (1998).
194. There is a vague reference to a duty to defend except in "exceptional circumstances" in one Department of Justice Opinion. Constitutionality of Legislation Establishing the Cost Accounting Standards Board, 4B Op. O.L.C. 697, 698 (1980).
195. Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591, 597 (1996).
196. Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. Legal Stud. 725, 726 (1998).
197. Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1527-30 (2000).
198. For a summary of this work, see Tom R. Tyler, Why People Obey the Law (2006).
199. Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 Yale L.J. 153, 221 (2002) ("[M]any commentators made the point that judicial power ultimately depended upon popular acceptance.");
200. see also Gregory A. Caldeira & James L. Gibson, The Etiology of Public Support for the Supreme Court, 36 Am. J. Pol. Sci. 635, 637 (1992).
201. See Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165, 1214-15 (1967) (introducing the idea of demoralization costs with respect to owners when property is condemned, and others who believe as a consequence that their property is less secure).
202. Do public statements from the White House really impact the morale and confidence of interest groups in ways that matter in social welfare terms? Consider one response to President Obama's May 9, 2012, announcement that he personally supported same-sex marriage: "The president's role in this is really circumscribed. One interview doesn't make a difference. And then I watched the interview and the tears flooded. There is something about hearing your president affirm your humanity that you don't know what effect it has until you hear it." Andrew Sullivan on Obama's Support of Gay Marriage, All Things Considered (Nat'l Pub. Radio May 9, 2012), available at http://www.npr.org/2012/05/09/152367863/andrew-sullivan-on-obamassupport-of-gay- marriage.
203. Cf. Dan Eggen, FBI Agents Still Lacking Arabic Skills, Wash. Post, Oct. 11, 2006,at A1, available at http://www.washingtonpost.com/wp-dyn/content/ article/2006/10/10/AR2006101001388.html (discussing the FBI's "continued struggle to attract employees who speak Arabic, Urdu, Farsi and other languages of the Middle East and South Asia").
204. Cf. Jon Elster, Sour Grapes: Studies in the Subversion of Rationality 109, 125-33 (1983) (defining "adaptive preferences").
205. Rebecca Hollander-Blumoff, The Psychology of Procedural Justice in the Federal Courts, 63 Hastings L.J. 127, 136 (2011).
206. Robert J. MacCoun, Voice, Control, and Belonging: The Double-Edged Sword of Procedural Fairness, 1 Ann. Rev. L. & Soc. Sci. 171, 173 (2005) (noting that the link between procedural justice and legitimacy has been identified in "dozens of social, legal, and organizational contexts").
207. See Bruce Gilley, The Right to Rule: How States Win and Lose Legitimacy 44 (2009).
208. See Tom R. Tyler & E. Allan Lind, A Relational Model of Authority in Groups, 25 Advances in Experimental Soc. Psychol. 115, 116-17, 124-37, 144-62 (1992).
209. James L. Gibson & Gregory A. Caldeira, Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People 59 (2009) (reporting results of a multiple regression on loyalty to the U.S. Supreme Court).
210. Tom R. Tyler & Gregory Mitchell, Legitimacy and the Empowerment of Discretionary Legal Authority: The United States Supreme Court and Abortion Rights, 43 Duke L.J. 703, 798 (1994).
211. For surveys of these studies, see Tom R. Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?, 6 Ohio St. J. Crim. L. 231, 270-71 (2008);
212. Tom R. Tyler & Yuen J. Huo, Trust in the Law: Encouraging Public Cooperation with the Police and Courts (2002).
213. For recent examples, see generally Jacinta M. Gau & Rod K. Brunson, Procedural Justice and Order Maintenance Policing: A Study of Inner-City Young Men's Perceptions of Police Legitimacy, 27 Just. Q. 255 (2010);
214. Lyn Hinds, Youth, Police Legitimacy, and Informal Contact, 24 J. Police & Crim. Psychol. 10 (2009);
215. Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 Crime & Just. 283 (2003).
216. See generally Tom R. Tyler & Cheryl J. Wakslak, Profiling and Police Legitimacy: Procedural Justice, Attributions of Motive, and Acceptance of Police Authority, 42 Criminology 253, 260 (2004) (citing studies that examine the importance of race in police profiling and reactions to it).
217. See, e.g., Tom R. Tyler, Social Justice: Outcome and Procedure, 35 Int'l J. Psychol. 117, 117-18 (2000) (emphasizing, inter alia, the rule of neutrality in eliciting legitimacy and trust).
218. Tom R. Tyler, Why People Cooperate: The Role of Social Motivations 167 (2011).
219. accord Tom R. Tyler, Legitimacy and Criminal Justice: The Benefits of Self-Regulation, 7 Ohio St. J. Crim. L. 307, 309 (2009).
220. See, e.g., Aziz Z. Huq, Tom R. Tyler & Stephen J. Schulhofer, Why Does the Public Cooperate With Law Enforcement?: The Influence of the Purposes and Targets of Policing, 17 Psychol. Pub. Pol. & L. 419 (2011);
221. Tom R. Tyler, Stephen Schulhofer & Aziz Z. Huq, Legitimacy and Deterrence Effects in Counterterrorism Policing: A Study of Muslim Americans, 44 L. & Soc'y Rev. 365 (2010).
222. Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints 95 (2000).
223. See generally Adam M. Samaha, Dead Hand Arguments and Constitutional Interpretation, 108 Colum. L. Rev. 606, 609 (2008) (elaborating problem).
224. Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657, 663 (2011).
225. See Zachary Elkins et al., The Endurance of National Constitutions 76-78 (2009).
226. Lon L. Fuller, The Morality of Law 36 (2d. ed. 1969) (listing "consistency" as part of the rule of law). This was recognized historically, for example, in the development of the Administrative Procedures Act, which was designed to ensure "uniformity and consistency in the application of law."
227. Jerry L. Mashaw, Federal Administration and Administrative Law in the Gilded Age, 119 Yale L.J. 1362, 1367 (2010).
228. Accountability has a constitutional valence. The Supreme Court has indicated on several occasions that maintaining clear lines of accountability is constitutionally important in distinct institutional contexts. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3155 (2010) (warning that "diffusion of power [to control federal agencies] carries with it a diffusion of accountability");
229. New York v. United States, 505 U.S. 144, 168-69 (1992) (discussing loss in accountability when voters cannot distinguish effects of federal and state policy choices).
230. David P. Currie, The Constitution in Congress: The Federalist Period, 1789-1801, at 296 (1997).
231. Keith E. Whittington, Neal Devins & Hutch Hicken, The Constitution and Congressional Committees: 1971-2000, in The Least Examined Branch: The Role of Legislatures in the Constitutional State 396, 409-10 (R.W. Bauman & Tsvi Kahana eds., 2006).
232. See Richard Pildes, Is the Supreme Court a "Majoritarian" Institution?, 2010 Sup. Ct. Rev. 103, 143-49 (arguing that changing political conditions, including the increasing frequency of divided government, and waning presidential ambitions increase the political space available to the Court).
233. See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16-17 (1978) [hereinafter Bickel, Least Dangerous Branch]. Bickel's criticism arose in the context of general discontent with the Warren Court.
234. See Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 256-58 (2009).
235. For a case study of how a popular movement can influence the Court's reading of the Constitution, see Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191, 222-25 (2008).
236. See Robert A. Dahl, How Democratic is the American Constitution? 41-55 (2002) (comparing, unfavorably, the democratic pedigree of national elections in the United States with those of other countries);
237. Sanford V. Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) 25-77 (2006).
238. Professor Larry Bartels's careful quantitative study concludes that "affluent people have considerable clout, while the preferences of people in the bottom third of the income distribution have no apparent impact on the behavior of their elected officials." Larry M. Bartels, Unequal Democracy: The Political Economy of the New Gilded Age 285 (2008);
239. see also Jacob S. Hacker & Paul Pierson, Winner-Take-All Politics: How Washington Made the Rich Richer - and Turned its Back on the Middle Class 41-72 (2010) (describing political construction of economic inequality over the past four decades).
240. Jeffrey K. Tulis, The Rhetorical Presidency 4 (1987);
241. see generally George C. Edwards III & Stephen J. Wayne, Presidential Leadership: Politics and Policy Making 123-46 (8th ed. 2010).
242. Charlie Savage & Sheryl Gay Stolberg, In Turnabout, U.S. Says Marriage Act Blocks Gay Rights, N.Y. Times, Feb. 24, 2011, at A1 (quoting one commentator to the effect that the "decision may have bought the president some time with gay rights leaders").
243. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1132-33 (1990). For an originalist argument that due process entitlements should be understood as instantiations of the separation of powers
244. see Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672 (2012).
245. Comment, The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause, 72 Yale L.J. 330, 343-48 (1962) (connecting the Bill of Attainder Clause and separation of powers).
246. U.S. Const. art. 1, § 9, cl. 2; see also Fay v. Noia, 372 U.S. 391, 401-02 (1963) (explaining habeas's "function [as providing] a prompt and efficacious remedy for whatever society deems to be intolerable restraints").
247. See INS v. St. Cyr, 533 U.S. 289, 301, 303-04 (2001) (explaining the writ as a "means of reviewing the legality of Executive detention"); Nancy J. King & Joseph L. Hoffman, Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ 11 (2011) ("[H]abeas provides a remedy for individuals, but it is a remedy that, at its core, serves to address fundamental problems with institutions of government.").
248. See, e.g., Mistretta v. United States, 488 U.S. 361, 380-81 (1989);
249. Bowsher v. Synar, 478 U.S. 714, 722 (1986);
250. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 859-60 (1986) (Brennan, J., dissenting);
251. Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring).
252. Alexander M. Bickel, The Supreme Court and the Idea of Progress 94 (1978) [hereinafter Bickel, Supreme Court and Progress] ("The Court's effectiveness, it is often remarked, depends substantially on confidence, on what is called prestige.");
253. see also Cass R. Sunstein, Backlash's Travels, 42 Harv. C.R.-C.L. L. Rev. 435, 439 (2007) ("Bickel argued that the Supreme Court maintained a kind of Lincolnian tension, and that it did so through the use of the passive virtues, by which it stayed its own hand in deference to anticipated public resistance.").
254. This was a role that early federal judges cultivated. See Ralph Lerner, The Supreme Court as Republican Schoolmaster, 1967 Sup. Ct. Rev. 127, 177-80.
255. For a case study of how the Court can influence public opinion, see Valerie J. Hoekstra & Jeffrey A. Segal, The Shepherding of Local Public Opinion: The Supreme Court and Lamb's Chapel, 58 J. Pol. 1079, 1079, 1096-97 (1996).
256. See generally Matthew C. Stephenson, A Costly Signaling Theory of "Hard Look" Judicial Review, 58 Admin L. Rev. 753, 755 (2006).
257. Constitutionality of Congress's Disapproval of Agency Regulations by Resolutions Not Presented to the President, 4A Op. O.L.C. 21, 29 (1980).
258. For an example of a case in which the denial of funds created Article III standing, see Clinton v. City of New York, 524 U.S. 417, 436 (1998).
259. For a summary of arguments against judicial responsibility for constitutional matters, see generally Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346 (2006).
260. See Sonia Bychkov Green, Currency of Love: Customary International Law and the Battle for Same-Sex Marriage in the United States, 14 U. Pa. J.L. & Soc. Change 53, 108-22 (2011) (listing all fifty states' provisions on same-sex marriage access).
261. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1003-04 (N.D. Cal. 2010).
262. See McDonald v. City of Chicago, 130 S. Ct. 3020, 3030-36 (2010) (canvassing debates about incorporation of the Bill of Rights against the states).
263. See INS v. Chadha, 462 U.S. 919, 930-31 (1983).
264. See Clinton v. City of New York, 524 U.S. 417, 426 (1998).
265. See Bowsher v. Synar, 478 U.S. 714, 732-34 (1986).
266. McDonald, 130 S. Ct. at 3034 (citing Malloy v. Hogan, 378 U.S. 1, 10 (1964)).
267. For example, "traditions" that provide a basis for state interests may operate differently at the state and federal levels. See Kim Forde-Mazrui, Tradition as Justification: The Case of Opposite-Sex Marriage, 78 U. Chi. L. Rev. 281, 301-08 (2011).
268. Cf. Richard A. Primus, Bolling Alone, 104 Colum. L. Rev. 975, 978-80 (2004) (exploring the early application of equal protection rules, which were initially developed in respect to the several states, not to the federal government). Similarly, final merits resolution of the Proposition 8 case may not resolve the constitutionality of DOMA § 3, but it can supply significant additional information.
269. Comm. on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 92-93 (D.D.C. 2008) (describing how an interbranch stalemate justified judicial intervention);
270. accord United States v. AT&T, 551 F.2d 384, 390-91 (D.C. Cir. 1976).
271. See James L. Sundquist, The Decline and Resurgence of Congress 127-54 (1981);
272. see also Vasan Kesavan & J. Gregory Sidak, The Legislator-in-Chief, 44 Wm. & Mary L. Rev. 1, 48-55 (2002) (arguing on originalist grounds that this power is vested by Article II of the Constitution).
273. See The Legal Significance of Presidential Signing Statements, 17 Op. O.L.C. 131, 135-36 (1993) (describing routine executive involvement in the law-making process). Based on the degree of intraparty fragmentation at any given moment, this can be a more or less useful avenue of influence.
274. See Daryl J. Levinson & Richard A. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2332-38 (2006).
275. But see Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. 915, 920 (2005) (arguing that officials often act based on personal and political incentives that do not entail defending institutional powers and prerogatives of the branch that employs them).
276. For an illuminating example of how substantive views can change upon moving from Congress to the White House, see David E. Lewis, Presidents and the Politics of Agency Design: Political Insulation in the United States Government Bureaucracy 1946-1997, at 21-22 (2003) (discussing Harry Truman's changing views).
277. The canon of constitutional avoidance takes precedence over Chevron deference. See Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172-73 (2001).
278. See, e.g., Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693, 1705 (2008) ("[I]t would seem to me to be dramatically imprudent for a society that thought its legislature did not currently take rights seriously to abolish judicial review in hopeful anticipation that the legislature would thereafter change its ways.").
279. See Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991);
280. accord Corinna Barrett Lain, Countermajoritarian Hero or Zero? Rethinking the Warren Court's Role in the Criminal Procedure Revolution, 152 U. Pa. L. Rev. 1361, 1365 (2004).
281. See Kevin McMahon, Reconsidering Roosevelt on Race 150-76 (2004) (exploring the Roosevelt Justice Department's efforts setting the ground work for a legal assault on segregation).
282. See Aziz Z. Huq, What Good is Habeas?, 26 Const. Comm. 385, 402-05 (2010) (representing empirical evidence to the effect that Supreme Court intervention in military detentions at Guantánamo has failed to have any significant libertarian effect).
283. Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1516 n.9 (1991).
284. Adam Liptak, The President's Courthouse, N.Y. Times, Feb. 27, 2011, Wk5.
285. See Tom Ginsburg & Eric A. Posner, Subconstitutionalism, 62 Stan. L. Rev. 1583, 1597-98 (2010).
286. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
287. For an account of the English practice, see Carolyn A. Edie, Tactics and Strategies: Parliament's Attack upon the Royal Dispensing Power 1597-1689, 29 Am. J. Legal Hist. 197-99 (1985).
288. Neil K. Komesar, Law's Limits: The Rule of Law and the Supply and Demand of Rights 156-57 (2001).
289. Adrian Vermeule, Judicial Review and Institutional Choice, 43 Wm. & Mary L. Rev. 1557, 1561 (2002).
290. The feedback argument was initially made in James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 131 (1893).
291. For an argument that such incentive effects will in fact rarely arise, see Peter L. Strauss, The President and Choices not to Enforce, 63 L. & Contemp. Probs. 107, 122 (2000).
292. Indeed, the costs of a broad nonenforcement power are so great that actual instances of nonenforcement are few and far between. The most famous example of nonenforcement, which was coupled with nondefense, concerned a restriction on the President's removal power. See Myers v. United States, 272 U.S. 52, 176 (1926) (upholding removal of a postmaster without statutorily required advice and consent). Another domain in which the executive both refuses to enforce and to defend relates to executive privilege.
293. See, e.g., Nat'l Fed'n Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) (upholding the Patient Protection and Affordable Care Act, but as an exercise of the Power to Tax rather than under the Commerce Clause).
294. Compare Claudia Luther, Bork Says State Gun Laws Constitutional, L.A. Times, Mar. 15, 1989, at B5 (categorically rejecting individual entitlement under the Second Amendment)
295. with District of Columbia v. Heller, 554 U.S. 570 (2008) (finding such an entitlement based on an originalist logic initially pioneered by Judge Bork).
296. Compare Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 597 (1984) (arguing that separation of powers principles regulate relations between named heads of each of the three branches, but leave discretion with respect to subordinate components, such as agencies)
297. with Steven G. Calabresi & Saikrishna Bangalore Prakash, The President's Power to Execute the Laws, 104 Yale L.J. 541, 544-49 (1994) ("The Executive Power Clause actually does what it says it does, i.e., it vests (or grants) a power over law execution in the President, and it vests that power in him alone." (citation omitted)).
298. see Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291, 297 (2007);
299. Jack M. Balkin, Framework Originalism and the Living Constitution, 103 Nw. U. L. Rev. 549 (2009).
300. Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. 915, 920 (2005).
301. See, e.g., Morrison v. Olsen, 487 U.S. 654, 691-92 (1988) (focusing on aggrandizement by a branch in institutional terms).
302. See generally Larry Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215 (2000). Federalism concerns thus likely do not warrant enforcement-litigation gaps.
303. With the exception of two noncitizens already within the United States, who benefited from stays of deportation proceedings.
304. Karen Parrish, President Signs "Don't Ask" Repeal Act into Law, Am. Forces Press Serv., Dec. 22, 2010, http://www.defense.gov/news/newsarticle/ aspx?id=62213.
305. See Matthew C. Stephenson, Information Acquisition and Institutional Design, 124 Harv. L. Rev. 1422, 1443 n.50 (2011).