Lyle Denniston looks at a big constitutional barrier to the courts acting as an arbiter of inter-branch disputes between Congress and the White House.
Update: On June 25, House Speaker John Boehner said he planned to file a lawsuit against President Obama over Obama’s use of executive orders.
“Presidents must exercise some discretion in interpreting laws, must have some latitude in allocating finite resources to the enforcement of laws and must have some freedom to act in the absence of law. Obama, however, has perpetrated more than 40 suspensions of laws. Were presidents the sole judges of the limits of their latitude, they would effectively have plenary power to vitiate the separation of powers, the Founders’ bulwark against despotism. Congress cannot reverse egregious executive aggressions such as Obama’s without robust judicial assistance….It would be perverse for the courts to adhere to a doctrine of congressional standing so strict that it precludes judicial defense of the separation of powers.”
– Syndicated columnist George F. Will, in The Washington Post on June 22, praising efforts in the House of Representatives to pass legislation that would allow the House to sue President Obama with a claim that he is unconstitutionally refusing to carry out laws passed by Congress. By “congressional standing” he meant the right to file a lawsuit.
“Obama has worked around Congress with breathtaking audacity…So much for the separation of powers. In a desperate attempt to stem the hemorrhaging of legislative power, members of Congress are turning to the court to enforce their constitutional prerogative.”
– Excerpt from a column in Politico magazine in January, by Washington lawyer David Rivkin and Florida law professor Elizabeth Price Foley. The article was discussed favorably in the George Will column in The Post.
WE CHECKED THE CONSTITUTION, AND…
The Constitution has nothing to say about ways to cure the kind of gridlock that now exists in the national government in Washington. There is frustration in the White House as President Obama finds himself unable to get much of his legislative program through Congress, and there is frustration in Congress – especially in the Republican-controlled House of Representatives – whenever the President takes unilateral action to put some of his policies into effect without legislative approval.
Neither side seems willing to yield, and the Constitution – based as it is on the benign assumption that those in national leadership will always find ways to govern, more or less successfully – has no specific provision to force compromise. The checks-and-balances written into the division of government powers can turn out to barriers to action, especially in circumstances like those that now prevail in the nation’s capital.
It is perhaps tempting to think, as the commentary by columnist George Will suggests, that this is a problem that ought to be handed over to the courts: get them involved to enforce the lines of demarcation between what Congress does and what presidents are allowed to do.
However, there is, and has long been, a constitutional barrier to the courts acting as an arbiter of inter-branch disputes between Congress and the White House. Its origin is in the Constitution’s Article III, and its meaning comes from the way the courts have interpreted the limitation spelled out there. “The judicial power,” it says, “shall extend to all cases…and controversies.” A “case or controversy” means, in this context, a live lawsuit, with those on each side having something genuinely in dispute, and that something is capable of being decided by the use of rules of law.
The courts, in short, will not decide mere abstract legal controversies, and they will not hand out advisory opinions on how the laws or the Constitution are to be interpreted. Courts have a number of ways of showing respect for those restrictions on their power, and one of them is to refuse to decide what is called a “political question.” In this sense, “political” does not mean a partisan issue; it means an issue that the courts find has to be decided, if it is decided at all, only by the “political” branches: Congress and the Executive Branch.
Time after time, when members of Congress have sued in the courts, because the Executive Branch did something that they believe frustrated the will of Congress, they have been met at the door of the courthouse with a polite refusal to let them in. Failing to get their way in the skirmishing with the White House does not give members of Congress a right to take their grievance into court. Frustration does not make a real lawsuit, according to this notion.
Some lawyers and scholars, however, have from time to time wondered if this situation has to continue unchanged. Since the Constitution also gives to Congress the authority to define the jurisdiction of the federal courts, what cases they can and cannot decide, why couldn’t Congress just pass a law declaring that one house or some of the members of Congress do have a right to sue the President over a legitimate inter-branch dispute, in order to protect the legislative prerogative of that part of the government? Wouldn’t that work to get such a lawsuit past the door of the courthouse?
It is a plausible argument, and columnist George Will found it entirely persuasive in the column quoted above. There is a catch, though: expanding the jurisdiction of the courts to hear what are, at their core, political disputes would still be an attempt to create a “case or controversy” that satisfied Article III’s requirements. In other words, the constitutionality of such an expansion of court authority would itself be a constitutional issue that the courts would have the authority to decide.
The courts can be jealous guardians of their notion of what the Constitution allows, or does not allow, in terms of judicial review. The resistance to resolving political disputes is quite deeply set. One might suggest that it would take an inter-branch controversy of monumental proportions to cause them to give up that reluctance. Is the feud over President Obama’s use of his White House powers of that dimension? That may well be debatable.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 56 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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