Eight days after President Trump signed his “One-In, Two-Out” Executive Order No. 13771, Public Citizen, the Natural Resources Defense Council, the Communications Workers of America, and Earthjustice filed suit against the President and a dozen or so agency heads, seeking declaratory and injunctive relief. That order, entitled Reducing Regulation and Controlling Regulatory Costs, instructs agencies to identify two old regulations for removal for each new rule they propose, and to limit net incremental regulatory costs to $0 in the remainder of fiscal year 2017. Plaintiffs allege that it would prevent agencies from maximizing the net benefits of regulation, thus depriving the…
Under the Obama Administration, the executive branch has engaged in numerous actions where it has refused to follow statutes – either on the grounds that the statute implicitly allows it discretion or that the Constitution renders the statute unconstitutional. As has often been noted, these actions are often quite questionable on a legal basis. But there is little that can be done if no one has standing to challenge the action in court unless the Congress is willing to bring impeachment charges, which is generally politically unattractive. In a previous post, I discussed using anti-severability provisions in statutes. While that can help, it will not deter a very willful President. Here, then, I have another statutory reform.
Congress should pass a law that would establish a “court like entity.” The entity would consist of 5 judges, to serve for 10 year terms, selected from retired judges who had served on the U.S. Supreme Court or the federal circuit courts. One of the judges would be appointed by the President with the advice and consent of the Senate. Two would be appointed by the Speaker of the House, with the advice and consent of the House of Representatives. And the final two would be appointed by the Senate Majority Leader, with the advice and consent of the Senate. The appointments would be staggered, so that a new judge would be appointed each year. The court should also be required to be bipartisan, with three members of one party and two of the other party.
Another of the papers held at the Works-in-Progress Conference at the Originalism Center at the University of San Diego this past weekend was The Contested History of Article III’s Case-or-Controversy by James Pfander of Northwestern University Law School. Pfander’s paper provides evidence that early Congresses authorized and courts allowed lawsuits that do not seem to satisfy the modern Article III doctrine in terms of injury in fact and adverseness of the parties. (While Pfander’s paper is not yet available online, a longer related paper is.)
One of Pfander’s examples is the naturalization proceeding that involved an action by an individual in court seeking citizenship. The government was not a party to the proceeding. According to Pfander, this proceeding does not involve an injury in fact and does not involve adverseness. It does not involve injury in fact, because the applicant for citizenship has not been denied his citizenship by the government. He is simply applying for it in court. It does not involve adverseness because the government has not taken an adverse position to the applicant for citizenship. The government is not involved. Other noncontentious proceedings included administrative proceedings in bankruptcy jurisdiction and ex parte warrant applications.
Two years ago, President Obama adopted the DACA Program, which announced an enforcement policy that “defers deportations from the U.S. for eligible undocumented youth and young adults, and grants them access to renewable two-year work permits and Social Security Numbers.” It has often been said that there is no way to challenge this program, since no one has standing. But I wonder whether this is true. Imagine the following scenario. An employer interviews to fill a position and ultimately decides to hire A, with B his second choice. A is an individual who has a two year work permit under the…
The standing issues in the gay marriage cases have received some attention from Mike Ramsey, Neil Devins and Tara Grove, and Linda Greenhouse. Mike writes mainly from an originalist perspective, whereas the other authors adopt more eclectic approaches. While I haven’t studied the gay marriage cases closely, let me here give some preliminary thoughts from an originalist perspective, focusing on the DOMA case. Needless to say, the correct answers based on current law are likely to differ from the originalist answers.
1. From an originalist perspective, standing doctrine is a mess. We simply do not know whether standing is consistent with the original meaning. Bob Pushaw argues that standing is largely not constitutionally required; Caleb Nelson and Ann Woolhander suggest it might be. If it is not constitutionally required, then most of these issues go away. So let’s assume it is. But even if standing is required, there are still many open issues from an originalist perspective, such as those involving executive power.
2. It is probably the case that the executive power includes the power to enforce the law and to defend the executive’s actions in court.
3. In the DOMA case, the Obama Administration enforced the law, but refused to defend the law in court.