Article II Separation of Powers and the President's Enforcement Right

AuthorRobin Kundis Craig
chapter eleven
Article II Separation of Powers and the
President’s Enforcement Right
As was discussed in Chapter 7, environmental citizen suit provisions like the Clean
Water Act’s (CWA’s or the Act’s) give preference to federal and state enforcement.
Citizens bringing citizen suits generally must give 60 days’ notice to the appropri-
ate federal agency, the relevant state, and the alleged private violator so that the
governments have an opportunity to take over the enforcement effort. Similarly,
citizens cannot bring citizen suits if a government has commenced and is diligently
prosecuting a court enforcement action. Even though the relationship between
governmental administrative enforcement efforts and citizen suits is more complex,
the CWA clearly also subordinates citizen suits to such enforcement.
Nevertheless, since 1972 the CWA’s promotion of government enforcement
has been a mere statutory preference that Congress presumably remained free to
change. However, in the context of the U.S. Supreme Court’s citizen suit standing
jurisprudence, four Justices of the Court have suggested that the relationship of citi-
zen suits to government enforcement has a constitutional dimension—specif‌ically,
that environmental citizen suits violate constitutional separation-of-powers prin-
ciples by interfering with the executive branch’s constitutional right and duty to
enforce federal law.
I. Article II Separation-of-Powers Principles
Two Article II-based separation-of-powers issues are of particular concern with
regard to citizen suits. First, citizen suits raise a general concern regarding their
interference with the president’s constitutional duty to “take Care that the Laws be
faithfully executed.1 Second, environmental citizen plaintiffs arguably violate the
1. U.S. Const. art. II, §2, cl. 2. For an impassioned argument that environmental citizen suit provi-
sions, particularly that in the CWA, violate not only the Appointments Clause and separation-of-powers
concerns with respect to the Take Care Clause but also Article III standing requirements, especially when
the citizen plaintiff seeks only civil penalties, see Charles S. Abell, Ignoring the Trees for the Forests:
How the Citizen Suit Provision of the Clean Water Act Violates the Constitution’s Separation-of-Powers
Principle, 81 Va. L. Rev. 1957-1987 (Oct. 1995). As should become obvious, I take issue with many
of Abell’s conclusions, particularly in light of the Court’s recent reassessment of the deterrent effect of
civil penalties and in light of developing qui tam separation-of-powers litigation.
ch11.indd 257 4/30/09 10:15:57 AM
U.S. Constitution’s Appointments Clause2 because they act as “private attorneys
general” who can enforce federal law, possibly qualifying as “Off‌icers of the United
States” who must be appointed according to constitutional procedures. Both issues
remain unresolved in the Supreme Court, but they most likely represent the next
intersection of the CWA and the Constitution. Indeed, recent non-environmental
cases in the Supreme Court testing the Bush Administration’s push for a strong
executive have prompted more intense scrutiny of the breadth and limits of the
executive’s Article II authority.3 A Supreme Court decision in favor of the execu-
tive in the citizen suit context could potentially eliminate environmental citizen
suits entirely, destroying the second of Congress’ two 1972 enforcement-improving
structural renovations to the Federal Water Pollution Control Act.
A. Article II Separation of Powers and the “Take Care” Clause
Separation-of-powers problems can arise between any two branches of the federal
government, but those of most relevance to this discussion involve the interactions
of the executive and legislature. These issues generally arise because Congress
enacts legislation that either usurps an executive function or unduly interferes with
executive powers. For example, in 1977 the executive branch challenged the consti-
tutionality of the Presidential Recordings and Materials Preservation Act,4 arguing
that statutory provisions dictating the care of presidential materials unduly inter-
fered with executive prerogative. The Supreme Court relied on a two-part inquiry to
resolve the issue. First, “in determining whether the Act disrupts the proper balance
between the coordinate branches, the proper inquiry focuses on the extent to which
it prevents the Executive Branch from accomplishing its constitutionally assigned
functions.”5 Second, “[o]nly where the potential for disruption is present must we
then determine whether that impact is justif‌ied by an overriding need to promote
objectives within the constitutional authority of Congress.6 The Act did not unduly
disrupt the executive, because the executive retained custody of presidential materi-
als, “[t]he Executive Branch remains in full control of the Presidential materials,
and the Act facially is designed to ensure that the materials can be released only
when release is not barred by some applicable privilege inherent in that branch”;
moreover, “there is abundant statutory precedent for the regulation and mandatory
disclosure of documents in the possession of the Executive Branch.”7 As a result,
inquiry into the law’s impact was unnecessary.
258 the cle an water act a nd t he cons tit ution
2. U.S. Const. art. II, §3.
3. See, e.g., Medellin v. Texas, U.S., 128 S. Ct. 1346, 1369 (2008) (emphasizing the limits on the
executive’s authority to enforce treaties domestically); Hamdan v. Rumsfeld, 548 U.S. 557, 591 (2006)
(emphasizing limitations on the executive’s lamaking authority).
4. Pub. L. No. 93-526, tit. I, §§101-106, 88 Stat. 1695-98 (1974).
5. Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 433 (1977) (citing United States v. Nixon,
418 U.S. 683, 711-12 (1974)).
6. Id.
7. Id. at 433-35.
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