Congress's Power to Block Enforcement of Federal Court Orders

AuthorJennifer Mason McAward
PositionAssociate Professor of Law, University of Notre Dame Law School
Pages03

Page 1321

Associate Professor of Law, University of Notre Dame Law School; J.D., New York University School of Law, 1998; B.A., University of Notre Dame, 1994. Thank you to the participants of the 2007 Jurisgenesis Conference hosted by Washington University School of Law and Saint Louis University School of Law, especially William Araiza, Dorothy Brown, Christine Klein, and Margo Schlanger. I also am grateful to A.J. Bellia, Tricia Bellia, Neal Devins, Kristine Lucius, John Nagle, Bob Rodes, and Julian Velasco for their comments and encouragement, and to my research assistants Francis Budde, TJ Pillari, Vlad Uman, and Chris Upton for their excellent work.

I Introduction

During the Supreme Court confirmation hearings for Justice Samuel Alito, Senator Patrick Leahy asked then-Judge Alito to opine on the constitutionality of a congressional appropriations bill that would bar the use of federal funds to enforce a particular court decision that reached an unpopular result on an issue of constitutional law.1 Justice Alito responded: "[T]hat's a provocative constitutional issue that-I don't know the answer to it . . . ."2

Senator Leahy's question, while provocative, was not hypothetical. Since 2002, the House of Representatives has included in several appropriations bills provisions that deny the use of any federal funds for the enforcement of specified federal court orders. These enforcement-blocking provisions, which have passed by significant margins in the House only to be stripped from the final legislation, are an increasingly popular and potentially potent tool in the arsenal of those who object to controversial court decisions.3 By directly targeting specific court orders, such provisions pose an immediate challenge to the integrity of the federal courts. By usurping the Executive's law-enforcement prerogative, such provisions also raise significant separation-of-powers concerns as between the legislative and executive branches. While other political efforts to shape and control the federal judiciary's composition and jurisdiction have been the subject of ongoing attention,4 these enforcement-blocking provisions have received virtually no analysis. Justice Alito was quite right to say that enforcement-blocking provisions present provocative constitutional issues. This Article represents a Page 1322 first attempt to assess the constitutional implications of enforcement- blocking measures and seeks to provide an analytical framework for future congressional debates regarding the constitutionality and propriety of such proposals.

Part II of this Article outlines the factual context of the enforcement- blocking provisions, looking at the controversial First Amendment rulings that triggered Congress's attention and the congressional debates over the proper way to respond to the rulings.5 Part II also considers whether enforcement-blocking bills are merely symbolic protests or whether they could, in fact, have a significant effect on the ultimate enforcement of final court orders.6

Part III lays the groundwork for an examination of the separation-of- powers issues that arise from enforcement-blocking provisions. Whether such provisions interfere with the separation of powers depends on the delicate interplay between the extent of Congress's power over appropriations,7 the nature of the Article III "judicial Power,"8 and the Executive's responsibility for enforcing final court judgments.9 Part III therefore considers the scope of the coordinate federal branches' powers implicated by enforcement-blocking provisions.

Part IV then considers the constitutionality of enforcement-blocking provisions. From both doctrinal and normative perspectives, it is inconsistent with the separation of powers for Congress to use its appropriations power selectively to block the executive branch from enforcing a federal court order. While such provisions tread close to the heart of the Article III power, they impinge on the Executive's duty or prerogative to enforce final court judgments. Even if each coordinate branch of government should have independent interpretive power vis-à-vis the Constitution, Congress's broad conception of its own power in this regard, in conjunction with its broad appropriations power, appears to have sweeping and untenable consequences.

Accordingly, this Article concludes that, as to cases and controversies properly before the federal courts, the courts must issue final and executable orders. The executive branch likely is required to enforce such orders, at least as to the parties before the court. Finally, Congress is constitutionally barred from selectively de-funding executive enforcement of specified judgments. The increasing willingness of a majority in the House of Representatives to use appropriations riders to block executive Page 1323 enforcement of federal court orders is not only "provocative," but also unconstitutional.

II Enforcement-Blocking Provisions
A Background

On June 26, 2002, news rippled throughout the country that the U.S. Court of Appeals for the Ninth Circuit had found unconstitutional the Pledge of Allegiance's use of the phrase "under God."10 While some defended the court's decision in Newdow v. United States Congress as a sound application of governing Supreme Court precedent,11 many more decried the court's decision as the product of judicial activism and evidence of the federal courts' hostility to religion.12

Just over a year later, on July 1, 2003, the U.S. Court of Appeals for the Eleventh Circuit decided Glassroth v. Moore, holding that the installation and display of a 2.5-ton granite monument of the Ten Commandments in the rotunda of the Alabama State Judicial Building violated the First Amendment's Establishment Clause.13 As with the Newdow case, popular opinion was split on the propriety of the court's decision, with some praising it as a principled application of Establishment Clause jurisprudence14 and others condemning it as further confirmation of the federal courts' hostility to religion.15 Indeed, Alabama State Supreme Court Chief Justice Roy Moore Page 1324 subsequently refused to obey the Eleventh Circuit's order to remove the monument. He was suspended as Chief Justice, and the associate justices of the Alabama Supreme Court ordered the monument removed from public view on August 21, 2003.16

The dismay over the decisions in Newdow and Glassroth found its way to the floor of the U.S. House of Representatives in two types of legislative proposals. First, in response to the Ninth Circuit's refusal to reconsider the Newdow decision en banc,17 the House overwhelmingly passed a resolution "expressing the sense . . . that the ruling in Newdow v. United States Congress is inconsistent with the Supreme Court's interpretation of the first amendment and should be overturned."18

In addition to this hortatory resolution, however, the House took a second, much more interventionist, step: it passed two appropriations riders designed to block the enforcement of the federal court orders in both Newdow and Glassroth.19 The two provisions were the work of Representative John Hostettler, then a Republican Congressman from southwestern Indiana.20 Representative Hostettler introduced the riders as amendments to a pending appropriations bill for the Departments of Commerce, Justice, Page 1325 State, and the Judiciary. Each amendment stated that "[n]one of the funds appropriated in [the appropriations bill] may be used to enforce the judgment" of the Courts of Appeals in Newdow21 or Glassroth.22 The Newdow amendment passed the House by a 307 to 119 vote, and the Glassroth amendment passed 260 to 161.23 Ultimately, however, both amendments died in the House-Senate Conference Committee and were stripped from the final legislation.24

Representative Hostettler again sought legislation to prevent the enforcement of a federal court order after the U.S. District Court's January 31, 2005, decision in Russelburg v. Gibson County. In Russelburg, the U.S. District Court for the Southern District of Indiana ruled that a Ten Commandments monument on the lawn of the Gibson County, Indiana courthouse-located in Hostettler's own district-violated the Establishment Clause.25 Hostettler initially responded to the District Court's opinion by writing a letter to President George W. Bush requesting that the President instruct the Department of Justice and the U.S. Marshals Service "not to enforce this or any appellate-including Supreme Court-decision or execute any order that may ask for the removal of this monument by the Executive Branch."26 After the Justice Department replied that "the [United States Marshals Service] would be required by federal law to comply with any" court order in the Russelburg case,27 Hostettler proposed an appropriations Page 1326 amendment in the mold of his Newdow and Glassroth amendments. The amendment, which was appended to an appropriations bill for the Departments of State, Justice, and Commerce, stated that "[n]one of the funds appropriated in this Act may be used to enforce the judgment of the United States District Court for the Southern District of Indiana in the case of Russelburg v. Gibson...

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