Presidential inaction and the separation of powers

Michigan Law Review

Volumn 112, Issue 7, 2014, Pages 1195-1250

  Love, Jeffrey A ^a   Garg, Arpit K ^a  

^a YALE UNIVERSITY   (United States)

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EID: 84900441950     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (340)

1. See Tim Dickinson, Obama's War on Pot, Rolling Stone, Mar. 1, 2012, at 32, available at http://www.rollingstone.com/politics/news/obamas-war-on-pot-20120216 (detailing in full the scope of the Obama Administration's reversal and discussing present raids on medicinal marijuana dispensaries).
2. Paul Elias, President's Pot Comments Prompt Call for Policy, Associated Press (Dec. 15, 2012, 3:05 PM), http://bigstory.ap.org/article/presidents-pot-comments-prompt-callpolicy.
3. Paul Elias, President's Pot Comments Prompt Call for Policy, Associated Press (Dec. 15, 2012, 3:05 PM), http://bigstory.ap.org/article/presidents-pot-comments-prompt-callpolicy.
4. Mitt Romney, Republican Presidential Candidates Debate in Ames, Iowa (Aug. 11, 2011), available at http://www.presidency.ucsb.edu/ws/index.php?pid=90711 ("And if I'm president of the United States, on my first day, I'll direct the secretary of HHS to grant a waiver from Obamacare to all 50 states.").
5. Julia Preston & John H. Cushman, Jr., Obama To Permit Young Migrants To Remain in U.S., N.Y. Times, June 16, 2012, at A1, available at http://www.nytimes.com/2012/06/16/us/ us-to-stop-deporting-some-illegal-immigrants.html.
6. Julia Preston & John H. Cushman, Jr., Obama To Permit Young Migrants To Remain in U.S., N.Y. Times, June 16, 2012, at A1, available at http://www.nytimes.com/2012/06/16/us/ us-to-stop-deporting-some-illegal-immigrants.html.
7. The Federalist No. 51, at 288 (James Madison) (Clinton Rossiter ed., 1999).
8. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123 (1994).
9. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123 (1994).
10. See, e.g., Bruce Ackerman, Essay, The Emergency Constitution, 113 Yale L.J. 1029 (2004).
11. See, e.g., Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (1997).
12. 470 U.S. 821, 825-27 (1985).
13. 470 U.S. 821, 825-27 (1985).
14. Rochester Tel. Corp. v. United States, 307 U.S. 125, 143 (1939) (Frankfurter, J.) (internal quotation marks omitted).
15. Rochester Tel. Corp. v. United States, 307 U.S. 125, 143 (1939) (Frankfurter, J.) (internal quotation marks omitted).
16. Rochester Tel. Corp. v. United States, 307 U.S. 125, 143 (1939) (Frankfurter, J.) (internal quotation marks omitted).
17. See Miller v. Johnson, 515 U.S. 900 (1995) (accusing the Department of Justice of pursuing a "black-maximization" strategy).
18. See Miller v. Johnson, 515 U.S. 900 (1995) (accusing the Department of Justice of pursuing a "black-maximization" strategy).
19. Judith Jarvis Thomson, Turning the Trolley, 36 Phil. & Pub. Aff. 359 (2008).
20. Richard Trammell, Saving Life and Taking Life, 72 J. Phil. 131 (1975).
21. See David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864 (1986).
22. See DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189 (1989).
23. see also Charles L. Black, Jr., The Supreme Court 1966 Term-Foreword: "State Action, " Equal Protection, and California's Proposition 14, 81 Harv. L. Rev. 69 (1967).
24. Erwin Chemerinsky, Rethinking State Action, 80 Nw. U. L. Rev. 503 (1985). Scholars and judges seem to understand the general difficulty of policing ubiquitous inaction, the complexity of identifying workable baselines, and the inevitability of resource constraints. But the separation-of-powers literature so far has all but completely failed to recognize the unique constitutional valence of executive policymaking through inaction.
25. See, e.g., Ariane de Vogue, Legal Challenges to Immigration Announcement, ABC News (June 15, 2012, 5:39 PM), http://abcnews.go.com/blogs/politics/2012/06/legal-challenges-to-immigration-announcement.
26. See Complaint at 1-3, Crane v. Napolitano, No. 3:12-cv-03247-O (N.D. Tex. Aug. 23, 2012).
27. Zachary Price, Enforcement Discretion and Executive Duty, 67 Vand. L. Rev. (forthcoming 2014).
28. Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration's Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Tex. L. Rev. 781 (2013).
29. Lauren Gilbert, Obama's Ruby Slippers: Enforcement Discretion in the Absence of Immigration Reform, 116 W. Va. L. Rev. 255, 284-89 (2013) (arguing that the "Take Care" reasoning is unpersuasive, at least in the immigration context).
30. See Michael W. McConnell, Obama Suspends the Law, Wall St. J., July 9, 2013, at A13, available at http://online.wsj.com/news/articles/SB10001424127887323823004578591503 509555268.
31. We discuss the constitutional implications of this timely example in Section II.C.
32. There are, of course, nuances to this argument. We discuss them in depth in Part II.
33. Two obvious counterexamples come to mind: the controversy surrounding the Congressional Budget and Impoundment Control Act of 1974 and the Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007). We think these are rare exceptions that prove the rule. Unlike most cases of inaction, President Nixon's decision to impound funds was very public, and so Congress had no trouble identifying the issue and mustering support to rein him in. Similarly, President Bush's decision regarding regulation of automobile emissions fell short of the Clean Air Act's clear baseline level of required regulation. These two factors-publicity and clarity of delegation-play an important role in our theory of inaction, and we discuss them more fully in Parts II and III.
34. See William N. Eskridge, Jr., Vetogates and American Public Law, J.L. Econ. & Org. (forthcoming) [hereinafter Eskridge, Vetogates and American Public Law].
35. William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 83 Notre Dame L. Rev. 1441, 1444-48 (2008) [hereinafter Eskridge, Vetogates, Chevron, Preemption].
36. McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 Geo. L.J. 705 (1992).
37. The Federalist No. 51, at 288 (James Madison) (Clinton Rossiter ed., 1999).
38. The Federalist No. 51, at 288 (James Madison) (Clinton Rossiter ed., 1999).
39. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2319 (2006).
40. The Federalist No. 51, at 288 (James Madison) (Clinton Rossiter ed., 1999).
41. See U.S. Const. art. I, § 8, cl. 1.
42. See U.S. Const. art. I, § 8, cl. 1.
43. The Federalist No. 51, at 288 (James Madison) (Clinton Rossiter ed., 1999).
44. The Federalist No. 51, at 288 (James Madison) (Clinton Rossiter ed., 1999).
45. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2319 (2006).
46. The Federalist No. 51, at 288 (James Madison) (Clinton Rossiter ed., 1999).
47. As Professor Strauss puts it, the overarching aim of the separation of powers is "to protect the citizens from the emergence of tyrannical government by establishing multiple heads of authority in government, which are then pitted one against another in a continuous struggle. " Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 578 (1984).
48. Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. Pa. L. Rev. 1513, 1527-31 (1991).
49. Harold J. Krent, Separating the Strands in Separation of Powers Controversies, 74 Va. L. Rev. 1253 (1988).
50. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1 (1994).
51. Cf. Frances Howard-Snyder, Doing vs. Allowing Harm, Stanford Encyclopedia Philosophy (May 14, 2002) (updated Dec. 20, 2011), http://plato.stanford.edu/archives/ win2011/entries/doing-allowing.
52. United States v. Windsor, 133 S. Ct. 2675 (2013).
53. There are certainly counterarguments-for example, the argument that action infringes on individual liberty in a way the Framers worried about, while inaction does not. See Cass R. Sunstein, Reviewing Agency Inaction After Heckler v. Chaney, 52 U. Chi. L. Rev. 653, 662-65 (1985). But none of these objections negates the fundamental point that constitutional theory should not make such a sharp distinction between the two.
54. This is not to say that inaction is no different from action as a practical matter. For example, as the Court noted in Chaney, inaction is difficult to detect, and it is not obvious what should trigger review of the executive's refusal to act. Heckler v. Chaney, 470 U.S. 821, 831-33 (1985). We discuss the prudential aspects of presidential inaction in the remainder of this Article.
55. See, e.g., Randall G. Holcombe, From Liberty to Democracy: The Transformation of American Government 210-49 (2002).
56. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001).
57. Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721 (2002).
58. Bernard Bailyn, The Ideological Origins of the American Revolution 59 (1967).
59. Pub. L. No. 104-130, 110 Stat. 1200 (1996).
60. Clinton v. City of New York, 524 U.S. 417, 438 (1998) (emphasis added).
61. 462 U.S. 919 (1983).
62. Of course, Clinton and Chadha are notoriously formalistic decisions. That is, they stand most clearly for the simple proposition that executive or legislative action that violates the formal requirements of the Constitution is necessarily invalid. But the fact that the cases are usually read formally-and indeed that they were meant to be read that way-does not undermine their value as we begin to think about the same relationships from a functional perspective.
63. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) ("While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. ").
64. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) ("While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. ").
65. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) ("While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. ").
66. Cass R. Sunstein, Constitutionalism After the New Deal, 101 Harv. L. Rev. 421, 433 (1987).
67. Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 633, 647 (2000).
68. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 125-26 (1994).
69. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 125-26 (1994).
70. See, e.g., Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (1997).
71. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994) (focusing on the constitutional reasons for administrative expansion).
72. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994) (focusing on the constitutional reasons for administrative expansion).
73. As Professor Strauss puts it, the overarching aim of the separation of powers is "to protect the citizens from the emergence of tyrannical government by establishing multiple heads of authority in government, which are then pitted one against another in a continuous struggle. " Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 578 (1984).
74. Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 633, 647 (2000).
75. To be sure, the president's inherent power over foreign relations poses different questions, but the assumption that a president's decision to pursue a war and his decision not to do so are different as a matter of constitutional law is a vestige of the impoverished distinction between action and inaction that we discuss here.
76. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 126 (1994).
77. The inability of Congress to check presidential inaction is a point we discuss in greater detail in Section III.B.
78. 5 U.S.C. §§ 501-59, 701-06 (2012).
79. 5 U.S.C. §§ 501-59, 701-06 (2012).
80. See, e.g., Merrick B. Garland, Deregulation and Judicial Review, 98 Harv. L. Rev. 505, 508 (1985) ("Deregulation, originally effected through legislative amendment, increasingly became the product of administrative inaction, delay, and repeal. President Reagan's Executive Order 12,291... greatly accelerated the shift to administrative deregulation. " (footnotes omitted).
81. See, e.g., Cass R. Sunstein, Deregulation and the Hard-Look Doctrine, 1983 Sup. Ct. Rev. 177, 212 ("[S]ubversion may result from deregulation and inaction as much as from regulation itself. ").
82. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-42 (1983).
83. 470 U.S. 821 (1985).
84. See, e.g., Cass R. Sunstein, Deregulation and the Hard-Look Doctrine, 1983 Sup. Ct. Rev. 177, 212 ("[S]ubversion may result from deregulation and inaction as much as from regulation itself. ").
85. see also Ashutosh Bhagwat, Three-Branch Monte, 72 Notre Dame L. Rev. 157 (1996).
86. Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. Rev. 1657 (2004).
87. Mary M. Cheh, When Congress Commands a Thing to Be Done: An Essay on Marbury v. Madison, Executive Inaction, and the Duty of the Courts to Enforce the Law, 72 Geo. Wash. L. Rev. 253 (2003).
88. See, e.g., Cass R. Sunstein, Deregulation and the Hard-Look Doctrine, 1983 Sup. Ct. Rev. 177, 212 ("[S]ubversion may result from deregulation and inaction as much as from regulation itself. ").
89. See, e.g., Merrick B. Garland, Deregulation and Judicial Review, 98 Harv. L. Rev. 505, 508 (1985) ("Deregulation, originally effected through legislative amendment, increasingly became the product of administrative inaction, delay, and repeal. President Reagan's Executive Order 12,291... greatly accelerated the shift to administrative deregulation. " (footnotes omitted).
90. See, e.g., Merrick B. Garland, Deregulation and Judicial Review, 98 Harv. L. Rev. 515, (1985) ("Deregulation, originally effected through legislative amendment, increasingly became the product of administrative inaction, delay, and repeal. President Reagan's Executive Order 12,291... greatly accelerated the shift to administrative deregulation. " (footnotes omitted).
91. See Daniel T. Deacon, Note, Deregulation Through Nonenforcement, 85 N.Y.U. L. Rev. 795, 807, 810 (2010).
92. see also Ashutosh Bhagwat, Three-Branch Monte, 72 Notre Dame L. Rev. 157 (1996).
93. Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. Rev. 1657 (2004).
94. Mary M. Cheh, When Congress Commands a Thing to Be Done: An Essay on Marbury v. Madison, Executive Inaction, and the Duty of the Courts to Enforce the Law, 72 Geo. Wash. L. Rev. 253 (2003).
95. Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration's Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Tex. L. Rev. 781 (2013).
96. See Benjamin Ewing & Douglas A. Kysar, Prods and Pleas: Limited Government in an Era of Unlimited Harm, 121 Yale L.J. 350 (2011). We share a common premise with Ewing and Kysar: the need for a constitutional theory that accounts for the problem of inaction. Indeed, for those persuaded by Ewing and Kysar on the problem of legislative inaction, executive inaction seems to be an easier case.
97. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123-24 (1994).
98. "Policy" is a bit of a blunt term for our specific purposes. We simply mean to express the idea of the president's policy platform. That is, if the president had complete say over which laws should exist, would he support a specific law? If not, the objection sounds in "policy" and is the source of our concern.
99. See H.L.A. Hart, The Concept of Law 100 (3d ed. 2012).
100. See H.L.A. Hart, The Concept of Law 100 (3d ed. 2012).
101. It will become clear in the following pages that the baseline does not always emanate clearly from a statute. The baseline for enforcing the Voting Rights Act, for example, is found in the attorney general's construction of the law. In such cases, it is still the underlying statute that provides the baseline.
102. Congress implicitly incorporated the regulations into the baseline when it reauthorized the Act. See Lorillard v. Pons, 434 U.S. 575 (1978). In the context of DOMA, the baseline is inherent and, it might be argued, comes from the Constitution itself. In all of these cases, the importance of the baseline depends on its constitutional provenance.
103. See, e.g., Sidney A. Shapiro & Robert L. Glicksman, Congress, the Supreme Court, and the Quiet Revolution in Administrative Law, 1988 Duke L.J. 819, 823 ("For both political and institutional reasons, Congress has until recently relied almost entirely on the discretionary model in delegating authority to regulatory agencies. " (footnote omitted).
104. see also Richard J. Pierce & Sidney A. Shapiro, Political and Judicial Review of Agency Action, 59 Tex. L. Rev. 1175, 1198 (1981).
105. Kenneth A. Shepsle, Congress Is a "They, " Not an "It": Legislative Intent as Oxymoron, 12 Int'l Rev. L. & Econ. 239, 239, 250-52 (1992).
106. Take, for example, the Federal Food, Drug, and Cosmetic Act, which grants the Food and Drug Administration ("FDA") broad discretion to ensure public safety and prevent false advertising. See, e.g., 21 U.S.C. §§ 372, 378 (2012).
107. A well-known example is the statute at issue in Overton Park, which provided that the secretary of transportation "shall not approve" construction through a public park unless "no feasible and prudent" alternative was available. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411-13 (1971).
108. 23 U.S.C. § 138 (1964 & Supp. V) (internal quotation marks omitted).
109. 549 U.S. 497 (2007).
110. Although Massachusetts v. EPA was a controversial, 5-4 decision
111. American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011).
112. Massachusetts v. EPA holding.
113. The Clean Air Act requires the federal government, via the EPA, to regulate "air pollutant[s]... which... cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare. " Clean Air Act § 202(a)(1), 42 U.S.C. § 7521(a)(1) (2006).
114. Massachusetts v. EPA, 549 U.S. at 510.
115. Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922, 52,925-29 (Sept. 8, 2003).
116. Massachusetts v. EPA, 549 U.S. at 528-29 (describing the Act's definition as "sweeping").
117. Massachusetts v. EPA, 549 U.S. at 528-29 (describing the Act's definition as "sweeping").
118. Massachusetts v. EPA, 549 U.S. at 528-29 (describing the Act's definition as "sweeping").
119. Massachusetts v. EPA, 549 U.S. at 528-29 (describing the Act's definition as "sweeping").
120. Pub. L. No. 91-513, tit. II, §§ 401, 404, 84 Stat. 1242, 1260-62, 1264-65 (1970) (codified as amended at 21 U.S.C. §§ 841, 844 (2012).
121. Paul Elias, President's Pot Comments Prompt Call for Policy, Associated Press (Dec. 15, 2012, 3:05 PM), http://bigstory.ap.org/article/presidents-pot-comments-prompt-callpolicy.
122. 545 U.S. 1, 32-33 (2005).
123. Raich, 545 U.S. at 12.
124. Raich, 545 U.S. at 13.
125. Indeed, President Obama seems to recognize as much. Regarding marijuana, the president said the following: "This is a tough problem, because Congress has not yet changed the law.... I head up the executive branch; we're supposed to be carrying out laws.... How do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it's legal?" Kevin Liptak, Obama: Enforcing Pot Laws in States That Have Legalized It Not a Top Priority, CNN Political Ticker, (Dec. 14, 2012, 9:37 AM), http://politicalticker. blogs.cnn.com/2012/12/14/obama-enforcing-pot-laws-in-states-that-have-legalized-itnot-a-top-priority/ (internal quotation marks omitted).
126. Julia Preston & John H. Cushman, Jr., Obama To Permit Young Migrants To Remain in U.S., N.Y. Times, June 16, 2012, at A1, available at http://www.nytimes.com/2012/06/16/us/ us-to-stop-deporting-some-illegal-immigrants.html.
127. Robert J. Delahunty & John C. Yoo, Dream On: The Obama Administration's Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Tex. L. Rev. 781 (2013).
128. The DREAM Act would have granted amnesty to undocumented immigrants who were brought to the United States as children and have never committed a felony. For the most recent form of the Act, see DREAM Act of 2011, S. 952, 112th Cong. (2011).
129. Lauren Gilbert, Obama's Ruby Slippers: Enforcement Discretion in the Absence of Immigration Reform, 116 W. Va. L. Rev. 255, 284-89 (2013) (arguing that the "Take Care" reasoning is unpersuasive, at least in the immigration context).
130. David A. Martin, Essay, A Defense of Immigration-Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach's Latest Crusade, 122 Yale L.J. Online 167 (2012), http://yalelawjournal.org/2012/12/20/martin.html.
131. 132 S. Ct. 2492, 2499 (2012).
132. 132 S. Ct. 2502-07 (2012).
133. Although we refer to "reasonable" excuses and "good" reasons for inaction throughout the rest of this Article, these adjectives are not intended to imply that some policies-whether pursued through action or inaction-are "good" or "bad" in a political or policy sense but rather in a constitutional sense. It should go without saying that a policy that is unconstitutional can still be a "good" policy and that there are any number of "bad" but constitutional ideas. See, e.g., Jennifer Senior, In Conversation: Antonin Scalia, New York, Oct. 14, 2013, at 22, 24, available at http://www.nymag.com/news/features/antonin-scalia-2013-10/ ("A lot of stuff that's stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says-Whack! [Pounds his fist.]-STUPID BUT CONSTITUTIONAL.... [Laughs.] And then somebody sent me one." (emphasis in original).
134. See Frank H. Easterbrook, On Not Enforcing the Law, Regulation, Jan.-Feb. 1983, at 14, 15.
135. Cf. L. Harold Levinson, Balancing Acts: Bowsher v. Synar, Gramm-Rudman-Hollings, and Beyond, 72 Cornell L. Rev. 527, 547 (1987) (describing President Nixon's attempt to cut specific programs in order to spend within his budget).
136. Saikrishna Prakash, Regulating Presidential Powers, 91 Cornell L. Rev. 215, 253 n.192 (2005).
137. Harold J. Krent, Presidential Powers (2005).
138. As Professor Strauss puts it, the overarching aim of the separation of powers is "to protect the citizens from the emergence of tyrannical government by establishing multiple heads of authority in government, which are then pitted one against another in a continuous struggle. " Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 664, (1984).
139. Cf. M.B.Z. ex rel. Zivotofsky v. Clinton, 131 S. Ct. 2897 (2011) (granting certiorari and asking the parties to brief the question of whether the Foreign Relations Authorization Act "impermissibly infringes the President's power to recognize foreign sovereigns" (internal quotation marks omitted). Note that the president must distinguish the Take Care Clause, which requires the executive to enforce congressional statutes, from other Article II powers, which reflect the independent powers of the president.
140. See U.S. Const. art. II.
141. Lauren Gilbert, Obama's Ruby Slippers: Enforcement Discretion in the Absence of Immigration Reform, 116 W. Va. L. Rev. 255, 284-89 (2013) (arguing that the "Take Care" reasoning is unpersuasive, at least in the immigration context).
142. Louis Henkin, Is There a "Political Question" Doctrine?, 85 Yale L.J. 597, 597 (1976) ("That there are political questions-issues to be resolved and decisions to be made by the political branches of government and not by the courts-is axiomatic in a system of constitutional government built on the separation of powers. ").
143. Of course, we recognize that proponents of executive power might argue for the opposite presumption. We believe, however, that our suggested presumption is more typical of legal analysis. Indeed, a timely and excellent example of an argument that a particular nonenforcement decision could not plausibly be justified on resource-allocation grounds and thus constituted a policy-motivated action can be found in Justice Scalia's dissent in Arizona v. United States, 132 S. Ct. 2492, 2520-21 (2012) (Scalia, J., concurring in part and dissenting in part). In any event, this objection amounts to an argument over burden shifting, and it does not undermine the thrust of our argument.
144. Pub. L. No. 89-110, 79 Stat. 437.
145. 42 U.S.C. §§ 1971, 1973 to 1973bb-1 (2006).
146. Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2631 (2013).
147. Voting Rights Act § 5, 79 Stat. at 439.
148. 28 C.F.R. § 51.52(a) (2013) (emphasis added).
149. Changing Tides: Exploring the Current State of Civil Rights Enforcement Within the Department of Justice: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 110th Cong. 242 (2007) (responses to questions posed to Wan Kim, Assistant Attorney General) ("While 7,080 submissions were received in 2006, only 4,121 submissions were received in 2001.... ").
150. Changing Tides: Exploring the Current State of Civil Rights Enforcement Within the Department of Justice: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 110th Cong. 242 (2007) (responses to questions posed to Wan Kim, Assistant Attorney General) ("While 7,080 submissions were received in 2006, only 4,121 submissions were received in 2001.... ").
151. Richard L. Hasen, Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act After Tennessee v. Lane, 66 Ohio St. L.J. 177, 192 & fig.3 (2005).
152. See Nat'l Comm'n on the Voting Rights Act, Protecting Minority Voters: The Voting Rights Act at Work 1982-2005, at 75-77 (2006), available at http://www.lawyerscommittee.org/admin/voting_ rights/documents/files/0023.pdf.
153. Goodwin Liu, then a professor and now a justice on the California Supreme Court, offered the theoretical defense that the Bush Administration was, in fact, reallocating resources toward alternative enforcement priorities, including human trafficking and religious discrimination. Goodwin Liu, The Bush Administration and Civil Rights: Lessons Learned, 4 Duke J. Const. L. & Pub. Pol'y 77, 81 (2009).
154. See U.S. Comm'n on Civil Rights, Funding Federal Civil Rights Enforcement (2005), available at http://www.usccr.gov/pubs/crfund06/crfund06.pdf.
155. See U.S. Comm'n on Civil Rights, Funding Federal Civil Rights Enforcement (2005), available at http://www.usccr.gov/pubs/crfund06/crfund06.pdf.
156. Although the Supreme Court has raised constitutional concerns with respect to Section 5, see Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013).
157. Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009), there is no evidence that the law's constitutionality played a role in the administration's decision.
158. Whether the aims of the enacting Congress or the current Congress are more relevant is a question that lies beyond the scope of this Article.
159. Our methodology draws on analogues in other areas of law. Most familiarly, in criminal law, public statements about a criminal goal can be taken as evidence of criminal intent. And in antitrust, courts infer collusion when parallel conduct is accompanied by certain other facts and circumstances called "plus factors. " See, e.g., Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1242-43 (3d Cir. 1993).
160. See Dahlia Lithwick, Guilt by Association: Senate Blocks Obama's Pick to Head the Civil Rights Division Because He's Fought for Civil Rights, Slate (Mar. 5, 2014, 5:59 PM), http:// www.slate.com/articles/news_and_politics/jurisprudence/2014/03/debo_adegbile_senate_ blocks_obama_s_pick_to_head_the_justice_department.html ("It is not a secret that the Civil Rights Division in the Bush years reflected the deeply held conviction that voting rights and anti-discrimination law were no longer American problems or priorities. Indeed the Bush Justice Department's priorities perfectly presaged the reality of today's civil right debate: The only real discrimination in America is directed toward religion....").
161. cf. Charles C. Haynes, Fighting Religious Discrimination: Bush Administration's Quiet Campaign, First Amendment Center (Mar. 4, 2007), http://www.firstamendmentcenter.org/fighting-religious-discrimina tion-bush-administration%E2%80%99s-quiet-campaign (describing the Department of Justice's increased enforcement of federal religious-rights legislation).
162. cf. Charles C. Haynes, Fighting Religious Discrimination: Bush Administration's Quiet Campaign, First Amendment Center (Mar. 4, 2007), http://www.firstamendmentcenter.org/fighting-religious-discrimina tion-bush-administration%E2%80%99s-quiet-campaign (describing the Department of Justice's increased enforcement of federal religious-rights legislation).
163. Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922, 52,929-31 (Sept. 8, 2003).
164. Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922, 52,929-31 (Sept. 8, 2003).
165. See Valerie Jarrett, We're Listening to Businesses About the Health Care Law, White House Blog (July 2, 2013, 6:00 PM), http://www.whitehouse.gov/blog/2013/07/02/we-relistening-businesses-about-health-care-law.
166. See Valerie Jarrett, We're Listening to Businesses About the Health Care Law, White House Blog (July 2, 2013, 6:00 PM), http://www.whitehouse.gov/blog/2013/07/02/we-relistening-businesses-about-health-care-law.
167. See Michael W. McConnell, Obama Suspends the Law, Wall St. J., July 9, 2013, at A13, available at http://online.wsj.com/news/articles/SB10001424127887323823004578591503 509555268.
168. Ezra Klein & Evan Soltas, Wonkbook: Governing by Waiver, Washington Post Wonkblog (Aug. 8, 2013, 8:10 AM), http://www.washingtonpost.com/blogs/wonkblog/wp/2013/08/08/wonkbook-governing-by-waiver.
169. See Nicholas Bagley, Does the Administration Have the Legal Authority to Delay the Employer Mandate? And What If It Doesn't?, Incidental Economist (July 3, 2013, 12:42 PM), http://theincidentaleconomist.com/wordpress/does-the-administration-have-the-legal-author ity-to-delay-the-employer-mandate-and-what-if-they-dont/.
170. United States v. Windsor, 133 S. Ct. 2675 (2013), and we draw on this decision where relevant.
171. Seth P. Waxman, Essay, Defending Congress, 79 N.C. L. Rev. 1073, 1078 (2001).
172. See Dawn E. Johnsen, Presidential Non-enforcement of Constitutionally Objectionable Statutes, 63 Law & Contemp. Probs. 7, 12 (2000) ("If Presidents were to disregard laws... based solely on their own constitutional views, they would deprive Congress of the ability to enact effective legislation premised on its considered constitutional views to the contrary-even by a two-thirds majority over a constitutionally based veto. ").
173. Neal Devins & Saikrishna Prakash, The Indefensible Duty to Defend, 112 Colum. L. Rev. 507 (2012).
174. 28 U.S.C. § 530D (2006).
175. See, e.g., Saikrishna Bangalore Prakash, The Executive's Duty to Disregard Unconstitutional Laws, 96 Geo. L.J. 1613 (2008).
176. The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55 (1980).
177. Letter from Eric H. Holder, Jr., Attorney Gen., U.S. Dep't of Justice, to John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011), available at http://www.justice. gov/opa/pr/2011/February/11-ag-223.html.
178. Congress hired a private group, represented by Paul Clement, to defend DOMA, but this defense was ultimately unsuccessful. See United States v. Windsor, 133 S. Ct. 2675 (2013).
179. 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-powergrab-in-the-decision-not-to-defend-doma.
180. cf. Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (holding, for the first time in a federal court, that laws classifying on the basis of sexual orientation are subject to strict scrutiny), aff'd on partial grounds sub nom.
181. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012)
182. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).
183. Windsor, 133 S. Ct. at 2688.
184. Windsor, 133 S. Ct. at 2689.
185. Windsor, 133 S. Ct. at 2689.
186. Windsor, 133 S. Ct. at 2688.
187. Letter from Eric H. Holder, Jr., Attorney Gen., U.S. Dep't of Justice, to John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011), available at http://www.justice. gov/opa/pr/2011/February/11-ag-223.html.
188. Complaint for Declaratory and Injunctive Relief, Pedersen v. Office of Pers. Mgmt., No. 310 CV 1750 VLB (D. Conn. Nov. 9, 2010), 2010 WL 4483820.
189. Windsor v. United States, No. 1:10CV08435 (S.D.N.Y. Nov. 9, 2010), 2010 WL 5647015).
190. See Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), aff'd, 133 S. Ct. 2675 (2013).
191. Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1 (1st Cir. 2012).
192. Massachusetts v. U.S. Dep't of Health & Human Servs., 698 F. Supp. 2d 234 (D. Mass. 2010).
193. Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012).
194. Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012).
195. Open Letter from Barack Obama to the LGBT Community (Feb. 28, 2008), available at http://www.bilerico.com/2008/02/open_letter_from_barack_obama_to_the_lgb.php.
196. Helene Cooper, Obama to Support Repeal of Defense of Marriage Act, N.Y. Times Caucus Blog (July 19, 2011, 6:23 PM), http://thecaucus.blogs.nytimes.com/2011/07/19/ obama-to-support-repeal-of-defense-of-marriage-act.
197. Memorandum on Extension of Benefits to Same-Sex Domestic Partners of Federal Employees, 2010 Daily Comp. Pres. Doc. 450 (June 2, 2010), available at http://www.gpo.gov/fdsys/pkg/DCPD-201000450/pdf/DCPD-201000450.pdf.
198. Sheryl Gay Stolberg, Obama Signs Away 'Don't Ask, Don't Tell', N.Y. Times (Dec. 22, 2010), http://www.nytimes.com/2010/12/23/us/politics/23military.html.
199. We note that both the second and third factors are necessarily underinclusive. A president may be able to point to reasons for falling short of his enforcement duties unrelated to his policy goals, but in reality such reasons are merely a pretext for his true motivations. Similarly, a president may engage in impermissible inaction without any accessible evidence that it was policy motivated. These may or may not be instances of the inaction we find problematic, but disentangling the two factors and determining the true motivation for a particular decision not to act would be difficult and would no doubt obscure the clear case against policy-based inaction.
200. Sheryl Gay Stolberg, Obama Signs Away 'Don't Ask, Don't Tell', N.Y. Times (Dec. 22, 2010), http://www.nytimes.com/2010/12/23/us/politics/23military.html.
201. The Federalist No. 51, at 288 (James Madison) (Clinton Rossiter ed., 1999).
202. 5 U.S.C. § 551(13) (2012).
203. 5 U.S.C. § 551(13) (2012).
204. See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983).
205. 470 U.S. 821, 831 (1985) ("[For] [r]efusals to take enforcement steps... we think the presumption is that judicial review is not available. ").
206. 5 U.S.C. § 701(a)(2) (exempting agency action that was "committed to agency discretion by law" from judicial review).
207. Chaney, 470 U.S. at 828, 831-33.
208. Chaney, 470 U.S. at 828, 831-33.
209. Chaney, 470 U.S. at 828, 831-33.
210. 549 U.S. 497, 534-35 (2007).
211. Glen Staszewski, The Federal Inaction Commission, 59 Emory L.J. 369, 381-82 (2009).
212. See U.S. Const., art. III, § 2.
213. see also Ashutosh Bhagwat, Three-Branch Monte, 72 Notre Dame L. Rev. 157 (1996).
214. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.J. 1385, 1385 (1992).
215. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 Duke L.J. 1385, 1385 (1992).
216. Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. Rev. 1657 (2004).
217. 5 U.S.C. § 706(1) (2012).
218. Although "delay" cases are reviewable despite the parallel with Chaney, see Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 Minn. L. Rev. 689, 770-73 (1990).
219. Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. Rev. 1657 (2004).
220. Lisa Schultz Bressman, Judicial Review of Agency Inaction: An Arbitrariness Approach, 79 N.Y.U. L. Rev. 1657 (2004).
221. see also Train v. City of New York, 420 U.S. 35, 42-44 (1975) (determining the baseline spending rate required by the Federal Water Pollution Control Act).
222. Securities Exchange Act of 1934, 15 U.S.C. §§ 78a-78pp (2012).
223. See 15 U.S.C. § 78b ("National emergencies, which... burden interstate commerce and adversely affect the general welfare, are precipitated, intensified, and prolonged by manipulation and sudden and unreasonable fluctuations of security prices and by excessive speculation on such exchanges and markets, and to meet such emergencies the Federal Government is put to such great expense as to burden the national credit. ").
224. see also Ashutosh Bhagwat, Three-Branch Monte, 72 Notre Dame L. Rev. 157 (1996).
225. see also Ashutosh Bhagwat, Three-Branch Monte, 72 Notre Dame L. Rev. 157 (1996).
226. Cf., e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2727-28 (2010) (deferring to the executive's assertion that material support of the humanitarian wings of terrorist organizations would undermine federal antiterrorism efforts).
227. Cf. Doyle v. Brock, 821 F.2d 778, 788 (D.C. Cir. 1987) (Silberman, J., dissenting).
228. See, e.g., Merrick B. Garland, Deregulation and Judicial Review, 98 Harv. L. Rev. 505, 508 (1985) ("Deregulation, originally effected through legislative amendment, increasingly became the product of administrative inaction, delay, and repeal. President Reagan's Executive Order 12,291... greatly accelerated the shift to administrative deregulation. " (footnotes omitted).
229. Peter Lehner suggests some ways around this problem, Peter H.A. Lehner, Note, Judicial Review of Administrative Inaction, 83 Colum. L. Rev. 627, 660-61 (1983), but the concern remains.
230. It is worth mentioning that two other avenues for judicial checks on executive inaction-implied statutory rights of action and § 1983 suits-have also been limited by the Supreme Court. See Thompson v. Thompson, 484 U.S. 174, 188-91 (1988) (Scalia, J., concurring in the judgment) (summarizing the Court's skepticism of implied rights of action).
231. see also Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) (applying the implied rights of action test to beneficiary enforcement claims under § 1983). While these methods are beyond the scope of this Article, the doctrine supports our basic conclusion that the judiciary is largely without tools to police executive inaction.
232. See Clinton Rossiter, The American Presidency 29 (2d ed. 1960).
233. Richard E. Neustadt, Presidency and Legislation: The Growth of Central Clearance, 48 Am. Pol. Sci. Rev. 641 (1954).
234. William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 83 Notre Dame L. Rev. 1441, 1444-48 (2008) [hereinafter Eskridge, Vetogates, Chevron, Preemption].
235. William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 83 Notre Dame L. Rev. 1441, 1444-48 (2008) [hereinafter Eskridge, Vetogates, Chevron, Preemption].
236. McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 Geo. L.J. 705 (1992).
237. See Lawrence R. Jacobs & Theda Skocpol, Health Care Reform and American Politics (rev. & updated ed. 2012).
238. See generally Louis Fisher, The Politics of Shared Power: Congress and the Executive (4th ed. 1998) (discussing historical examples of congressional grants of power to the executive).
239. See Edward Wyatt, Appointment Clears the Way for Consumer Agency to Act, N.Y. Times, Jan. 5, 2012, at A16, available at http://www.nytimes.com/2012/01/05/us/politics/cor drays-appointment-clears-way-for-consumer-financial-agency.html.
240. See Edward Wyatt, Appointment Clears the Way for Consumer Agency to Act, N.Y. Times, Jan. 5, 2012, at A16, available at http://www.nytimes.com/2012/01/05/us/politics/cor drays-appointment-clears-way-for-consumer-financial-agency.html.
241. Steven P. Croley, Public Interested Regulation, 28 Fla. St. U. L. Rev. 7, 12 (2000).
242. See Charles Tiefer, Congressional Oversight of the Clinton Administration and Congressional Procedure, 50 Admin. L. Rev. 199, 203-05 (1998).
243. Jack M. Beermann, Congressional Administration, 43 San Diego L. Rev. 61, 130 (2006).
244. Steven P. Croley, Public Interested Regulation, 28 Fla. St. U. L. Rev. 7, 12 (2000).
245. Thomas O. McGarity, Presidential Control of Regulatory Agency Decisionmaking, 36 Am. U. L. Rev. 443, 472-76 (1987).
246. Steven P. Croley, Public Interested Regulation, 28 Fla. St. U. L. Rev. 7, 12 (2000).
247. see also Harold H. Bruff, Presidential Power and Administrative Rulemaking, 88 Yale L.J. 451, 458 (1979).
248. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2255 (2001).
249. Jack M. Beermann, The Turn Toward Congress in Administrative Law, 89 B.U. L. Rev. 727 (2009).
250. Mark Seidenfeld, A Big Picture Approach to Presidential Influence on Agency Policy-Making, 80 Iowa L. Rev. 1, 8 (1994).
251. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 171 (1994).
252. see also Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. Chi. L. Rev. 821, 834 (2003) ("[A]gencies are ever worried about their budgetary health as well as the scope of their regulatory jurisdiction, and for those reasons must be overly solicitous of the preferences of members of Congress, who after all control agency budgets and define the boundaries of agency authority. ").
253. Steven P. Croley, Public Interested Regulation, 28 Fla. St. U. L. Rev. 7, 12 (2000).
254. Thomas O. McGarity, Presidential Control of Regulatory Agency Decisionmaking, 36 Am. U. L. Rev. 475, (1987).
255. Steven P. Croley, Public Interested Regulation, 28 Fla. St. U. L. Rev. 55-56, (2000).
256. As a methodological matter, we cannot prove the weakness of congressional tools with respect to inaction through empirical examples because such examples are exceedingly rare. We can, however, infer as much. There is a cottage industry criticizing Congress's tools when used to monitor runaway executive power. When one investigates the underlying rationale of these criticisms, though, it is apparent that they would apply with even greater force when it comes to executive inaction. Thus, to the extent that these tools are weak when applied to action, it is even less likely that they will effectively check inaction.
257. Steven P. Croley, Public Interested Regulation, 28 Fla. St. U. L. Rev. 12 (2000).
258. McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 Geo. L.J. 705 (1992).
259. Elena Kagan, Presidential Administration, 114 Harv. L. Rev., 2259 (2001).
260. Mark Seidenfeld, A Big Picture Approach to Presidential Influence on Agency Policy-Making, 80 Iowa L. Rev. 11, (1994).
261. Thomas O. McGarity, Presidential Control of Regulatory Agency Decisionmaking, 36 Am. U. L. Rev. 475-76 (1987).
262. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2259, (2001).
263. See, e.g., Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (1997).
264. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2259, (2001).
265. see also David Baumann, The Art of the Deal, 31 Nat'l J. 2700, 2701 (1999).
266. David E. Rosenbaum, Bush Rules! It's Good To Be the President., N.Y. Times, Jan. 28, 2001, at WK16, available at http://www.nytimes.com/2001/01/28/weekinreview/the-nation-bush-rules-it-s-good-to-be-the-president.html.
267. Mark Seidenfeld, A Big Picture Approach to Presidential Influence on Agency Policy-Making, 80 Iowa L. Rev. 1, 8 (1994).
268. Steven P. Croley, Public Interested Regulation, 28 Fla. St. U. L. Rev. 7, 12 (2000).
269. See also David B. Spence, Administrative Law and Agency Policy-Making: Rethinking the Positive Theory of Political Control, 14 Yale J. on Reg. 407, 423 (1997) (arguing that structural decisions about the scope of agency authority are infrequent).
270. See also David B. Spence, Administrative Law and Agency Policy-Making: Rethinking the Positive Theory of Political Control, 14 Yale J. on Reg. 407, 423 (1997) (arguing that structural decisions about the scope of agency authority are infrequent).
271. See also David B. Spence, Administrative Law and Agency Policy-Making: Rethinking the Positive Theory of Political Control, 14 Yale J. on Reg. 407, 423 (1997) (arguing that structural decisions about the scope of agency authority are infrequent).
272. See also David B. Spence, Administrative Law and Agency Policy-Making: Rethinking the Positive Theory of Political Control, 14 Yale J. on Reg. 407, 423 (1997) (arguing that structural decisions about the scope of agency authority are infrequent).
273. Congress's questioning of Anne Gorsuch could be an example of a successful oversight hearing to counteract executive inaction. Gorsuch, the head of the EPA during the Reagan administration, essentially engaged in wholesale environmental deregulation. She was then attacked in oversight hearings and held in contempt, and she ultimately resigned over the controversy. See Patrick Warren, Servants and Reformers: The Roles of Appointees Under Separation of Powers 2 (Apr. 24, 2007), http://www.stanford.edu/group/peg/3_may_2007_papers/ servantsandreformers-PW.pdf. We believe that this is another exception that proves the rule, however, as we were unable to find any other example of an oversight hearing successfully addressing executive inaction.
274. It is difficult to prove the negative, but we know of no examples of Congress threatening to withhold funding on the basis of executive inaction.
275. Elizabeth Garrett, Rethinking the Structures of Decisionmaking in the Federal Budget Process, 35 Harv. J. on Legis. 387, 387-88, 415 (1998) (describing the budget process's "zerosum games").
276. Elizabeth Garrett, Rethinking the Structures of Decisionmaking in the Federal Budget Process, 35 Harv. J. on Legis. 387, 387-88, 415 (1998) (describing the budget process's "zerosum games").
277. Elizabeth Garrett, Rethinking the Structures of Decisionmaking in the Federal Budget Process, 35 Harv. J. on Legis. 387, 387-88, 415 (1998) (describing the budget process's "zerosum games").
278. Pub. L. No. 93-344, tit. X, 88 Stat. 297, 332.
279. cf. Erwin Chemerinsky, Controlling Inherent Presidential Power: Providing a Framework for Judicial Review, 56 S. Cal. L. Rev. 863, 863 & n.3 (1983).
280. Train v. City of New York, 420 U.S. 35 (1975), many lower courts "have held that the President lacks inherent constitutional authority to impound funds".
281. United States v. Windsor, 133 S. Ct. 2675, 2711-14 (2013) (Alito, J., dissenting).
282. United States v. Windsor, 133 S. Ct. 2675, 2711-14 (2013) (Alito, J., dissenting).
283. Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 633, 647 (2000).
284. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994) (focusing on the constitutional reasons for administrative expansion).
285. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994) (focusing on the constitutional reasons for administrative expansion).
286. Cf. Jonathan Simon, Governing Through Crime 44 (2007) (describing campaign promises to strengthen the war on crime by Presidents Nixon, Reagan, and Bush Sr.).
287. Frances Fitzgerald, A Disciplined, Charging Army, New Yorker, May 18, 1981, at 53, available at http:// www.newyorker.com/archive/1981/05/18/1981_05_18_053_TNY_CARDS_000336703 (describing the rise of the New Right and Ronald Reagan, who wanted federal laws that protected conservative social values).
288. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2319 (2006).
289. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2319 (2006).
290. Consider the alternative, a hypothetical world in which the president had to seek Congress's affirmative approval to rescind legislation. In this world, the costly behavior is repeal, and thus it is likely that only those situations where the current Congress truly does not care about the prior Congress's preferences will result in a repeal. In all other instances, including where the current Congress is of mixed opinion about the past Congress's preferences, the legislation will stand. Most crucially, these middle cases are where the current system enables further inaction.
291. For example, the First Amendment especially disfavors prior restraints, not because they are substantively more restrictive of speech but because they shift the burden of proof from the censor to the speaker. On the margin, by placing the burden on the censor, speech will be more protected. Thomas I. Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Probs. 648, 648, 657 (1955).
292. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994) (focusing on the constitutional reasons for administrative expansion).
293. And thus a satisfying response to this objection lies beyond the scope of this Article.
294. See U.S. Const. art. I, § 7.
295. See U.S. Const. art. I, § 7.
296. Moreover, there is a puzzling element to this objection even as a matter of constitutional originalism. Much of what makes presidential inaction constitutionally troubling-the unchecked power it vests in the executive-is a consequence of the modern administrative state. The objector must therefore be implying that we should take the Framers to have supported this outcome because it accords with their libertarian values, notwithstanding the fact that they could have never conceived of the administrative state. Not only is this implausible as a matter of specific intent, but the opposite is true: separation of powers-the foundational principle of the Constitution and the insight of its primary author-is about making sure that a single branch neither dictates national policy nor encroaches on the authority of the other branches, even if the policy accords with a general Burkean notion of deliberateness. Congress can, of course, set national policy in motion by passing laws and appropriating money for enforcement, but it does not unilaterally dictate national policy; each of these decisions is subject to checks, including the president's veto power and his power to direct the agencies to interpret and enforce the law, not to mention judicial review. This Article attempts to advance that foundational principle and to reconcile it with the modern administrative state.
297. Cf. Louis Michael Seidman, On Constitutional Disobedience (2012) (arguing, generally, that a president may refuse to enforce certain laws as a constitutional tool to counteract a gridlocked Congress).
298. A third (and perhaps even less plausible) form of the argument might go as follows: Inaction is not only useful to check unconstitutional congressional actions. It might also simply be an effective tool for the president to rein in legislative initiatives he thinks are illadvised. But while constitutional realists might welcome the asymmetry we have identified, they would almost certainly have to pick their cases carefully. A conservative might laud President Bush's decision not to enforce the Voting Rights Act rigorously, for example, but the tables can turn quickly: by 2009, it would have been social liberals who were promoting President Obama's inaction on immigration or marijuana. The point is this: one will not always support the inaction president, so this objection can be nothing more than an ad hoc contention that the ends justify the means in some cases (or even all cases while one's preferred party is in power). As such, the argument is not responsive to any enduring constitutional question.
299. See generally Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. Rev. 1 (1991).
300. Lochner v. New York, 198 U.S. 45 (1905).
301. See, e.g., Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (1997).
302. See, e.g., Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (1997).
303. See, e.g., Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (1997).
304. We doubt the objector would take this position, as the assumption of equivalence is a subject of scholarly inquiry itself. Borrowing from another field, the existence of monopolies is generally thought to reduce output in a way that detracts from social welfare. If a good imposes negative externalities not properly accounted for in its price, however, there will be excess output relative to the socially optimal level. Now imagine a good that reflects both forces: oil provided by the OPEC monopoly. When considering whether the monopoly produces oil at a level that is socially optimal, it would be simplistic to assume that the two forces cancel each other out and thus make the answer yes. Rather, the proper scholarly inquiry would assess the extent of each force. (Credit for this example is due to Professor Markovits, who made the point in his Federal Income Taxation class at Yale Law School.)
305. See, e.g., Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (1997).
306. Josh Chafetz, Congress's Constitution, 160 U. Pa. L. Rev. 715 (2012) (discussing the myriad tools, other than legislation, that Congress has at its disposal in interbranch conflicts).
307. We thus exclude solutions internal to the executive branch. Although administrative law scholars have offered a number of useful policy proposals that would allow the president to police the agencies, see, e.g., Richard L. Revesz & Michael A. Livermore, Scrutinizing Inaction, Huffington Post (July 15, 2010, 12:21 PM), http://www.huffingtonpost.com/richard-lrevesz-and-michael-a-livermore/scrutinizing-inaction_b_647603.html, because we focus on situations in which the president is the one acting out of line, those solutions are inapt.
308. Clean Air Act § 202(a)(1), 42 U.S.C. § 7521(a)(1) (2006).
309. See Massachusetts v. EPA, 549 U.S. 497 (2007).
310. See Massachusetts v. EPA, 549 U.S. 497 (2007).
311. See Train v. City of New York, 420 U.S. 35 (1975).
312. See Train v. City of New York, 420 U.S. 35 (1975).
313. See Felicia Sonmez, REINS Bill to Expand Congressional Power over Executive Regulations Passed by House, Wash. Post (Dec. 7, 2011, 5:38 PM), http://www.washingtonpost.com/ blogs/2chambers/post/reins-bill-to-expand-congressional-power-over-executive-regulations passed-by-house/2011/12/07/gIQAs6VMdO_blog.html (discussing the 2011 version of the REINS bill).
314. Glen Staszewski, The Federal Inaction Commission, 59 Emory L.J. 369, 381-82 (2009).
315. See INS v. Chadha, 462 U.S. 919 (1983).
316. We thank David Wishnick for pushing us with this evocative example.
317. As Professor Strauss puts it, the overarching aim of the separation of powers is "to protect the citizens from the emergence of tyrannical government by establishing multiple heads of authority in government, which are then pitted one against another in a continuous struggle. " Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 578 (1984).
318. As Professor Strauss puts it, the overarching aim of the separation of powers is "to protect the citizens from the emergence of tyrannical government by establishing multiple heads of authority in government, which are then pitted one against another in a continuous struggle. " Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 578 (1984).
319. This might raise some constitutional concerns but is likely acceptable so long as Humphrey's Executor v. United States, 295 U.S. 602 (1935) (upholding congressional power to limit the president's control over certain administrative agencies), remains good law. Of course, other concerns may prompt the president to choose not to act even where Congress threatens to make an end run around his executive authority-there is some evidence that President Obama knew the Republican Congress would hire an outside lawyer if he failed to defend DOMA, but he pursued this course nonetheless.
320. Jessica Bulman-Pozen, Federalism as a Safeguard of the Separation of Powers, 112 Colum. L. Rev. 459, 477-98 (2012).
321. Jessica Bulman-Pozen, Federalism as a Safeguard of the Separation of Powers, 112 Colum. L. Rev., 471-72 (2012).
322. The states-as-safeguards solution will necessarily be limited by the doctrine of (field) preemption. In the Arizona case, for example, the Court struck down the state's own immigration provisions in part on the grounds that they were preempted by existing federal law, despite the fact that the president had under-enforced that law. Arizona v. United States, 132 S. Ct. 2492 (2012).
323. Printz v. United States, 521 U.S. 898 (1997) (holding that the federal government may not commandeer state officers to enforce federal statutes).
324. See, e.g., Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 Mich. L. Rev. 813 (1998).
325. Jessica Bulman-Pozen & Heather K. Gerken, Essay, Uncooperative Federalism, 118 Yale L.J. 1256, 1258-59 (2009).
326. Heather K. Gerken, Supreme Court 2009 Term-Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4, 35 (2010).
327. Brief for Petitioners at 14-18, Arizona v. United States, 132 S. Ct. 2492 (2012).
328. Brief for the United States at 13-15, Arizona v. United States, 132 S. Ct. 2492 (2012).
329. See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation 285-89 (1994).
330. William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593 (1992).
331. See, e.g., Will v. Mich. Dep't of State Police, 491 U.S. 58, 65 (1989).
332. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)
333. Rehabilitation Act Amendments of 1986, Pub. L. No. 99-506, § 1003, 100 Stat. 1807, 1845.
334. See, e.g., Richard L. Hasen, The Democracy Canon, 62 Stan. L. Rev. 69 (2009) (collecting state cases in which judges have placed a thumb on the scale in favor of access to the ballot, among other democratic values).
335. William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 83 Notre Dame L. Rev. 1441, 1444-48 (2008) [hereinafter Eskridge, Vetogates, Chevron, Preemption].
336. William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 83 Notre Dame L. Rev. 1441, 1444-48 (2008) [hereinafter Eskridge, Vetogates, Chevron, Preemption].
337. It seems odd, at first, to hold out the courts as the last hope. After all, we have argued at some length that the courts are institutionally ill suited to combat inaction. This does not mean that judges can never step in, however, and a rule of interpretation that makes judicial involvement more likely would be at worst a wash and at best a useful tool in the anti-inaction arsenal.
338. William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 83 Notre Dame L. Rev. 1441, 1444-48 (2008) [hereinafter Eskridge, Vetogates, Chevron, Preemption].
339. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123-24 (1994).
340. Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2246, (2001).