Presidential inaction and the separation of powers.

AuthorLove, Jeffrey A.
PositionII. Identifying Impermissible Presidential Inaction C. Extrinsic Evidence of Policy Goals through Conclusion, with footnotes, p. 1220-1250
  1. Extrinsic Evidence of Policy Goals

    While the second factor focuses on evidence that presidential inaction is not motivated by policy goals, the third factor looks for the converse: evidence that a president chooses inaction precisely because of his policy priorities. Specifically, the third factor identifies instances in which the outcome of a president's under-enforcement is consistent with his public policy statements. Such a state of affairs could signal that he chose inaction in order to promote his own policy goals at the expense of Congress's, (118) a decision that would raise separation-of-powers questions. Of course, extrinsic evidence cannot prove a causal connection between policy preference and inaction, but it does provide support for an inference that the president's inaction was policy motivated. (119) (For the statistically inclined, such evidence allows the observer to update her priors on the issue.) Such inaction amounts to unilateral policymaking and thus raises the separation-of-powers concerns outlined above.

    Returning to the Voting Rights Act, extrinsic evidence of President Bush's political agenda further demonstrates that the White House's decision to under-enforce Section 5 was motivated by policy concerns. Indeed, the decision coincided with public statements suggesting that the administration viewed religious-freedom claims as more worthy of the Justice Department's attention than voting-rights suits, not because resources were limited or because the VRA raised constitutional concerns but as a policy matter. (120) It is thus even more evident that the administration's decision to under-enforce Section 5 amounts to a unilateral decision to take the law off the books.

    Yet perhaps a clearer example of the probative value of extrinsic evidence of policy goals is the EPA's rationale for refusing to regulate carbon dioxide as a greenhouse gas. Recall that in the run-up to Massachusetts v. EPA, the EPA stated explicitly that it would not classify automotive emissions as the kind of "air pollutant" that triggers the Clean Air Act's requirements. (121) Responding to advocates' petitions asking it to define carbon dioxide as a regulable pollutant, the EPA argued that such regulation would be bad policy. (122) Specifically, the agency claimed that the regulation would conflict with the administration's views on the science behind climate change, interfere with its approach to domestic fuel-efficiency standards, and threaten President Bush's foreign policy negotiations on environmental matters. (123) Given the administration's explicit acknowledgment of the policy motivations behind the EPA's decision not to regulate, it is undeniable that this was an instance of impermissible inaction. Of course, not every case will present such clear-cut evidence that the president has chosen inaction in order to pursue his policy agenda. Still, such extrinsic evidence can help to make the case when the executive falls below the statutory baseline for enforcement.

    One additional virtue of considering extrinsic evidence of policy goals is that such evidence may exculpate certain conduct that appears at first to be constitutionally problematic. For example, in July 2013, unsettled by questions about cost and complexity, (124) the Obama Administration announced that it would delay enforcement of the ACA's "employer mandate" until 2015. (125) Recognizing that Obama had effectively changed the law unilaterally, legal scholars and political journalists immediately voiced concern, alleging that the president was not "taking care" to enforce the law. (126) There is something to this argument: the text of the ACA states relatively clearly that the employer mandate was to become effective in 2014, (127) so the president's critics were correct to point out that his decision entailed a level of enforcement that fell short of the statutory baseline. Yet President Obama's decision was meant to serve the goals of the enacting Congress, in this case the smooth implementation of major recent legislation. So it seems odd to call this impermissible inaction.

    Indeed, the core of this Article's constitutional argument is that the executive must not be allowed to thwart the will of Congress by refusing to enforce the law. In this case, it is almost nonsensical to suggest that President Obama's hostility toward the ACA--his signature legislative achievement--motivated him to use the power of nonenforcement to skirt the requirements of Article I, Section 7 of the Constitution. Instead, the decision to delay the employer mandate was prompted by a belief that a reasonable delay would enhance the effectiveness of the law.

  2. DOMA: Impermissible Inaction in Action

    Taking the three factors outlined above and applying them to a single case, we can identify a very recent example of executive inaction that was clearly driven by policy goals. In 2011, President Obama announced that his administration would no longer defend Section 3 of DOMA against constitutional challenges, although it continued to enforce the law. (128) At first glance, it might seem odd to describe a decision that involves continued enforcement of a law as one where the president has chosen inaction. But we focus on the president's decision not to defend DOMA in the context of the federal government's duties regarding defensive litigation. Evaluated in this context and against the appropriate baseline, the decision not to defend Section 3 clearly constituted policy-motivated inaction.

    Returning to the first factor, in the context of defensive litigation, there is a long-standing baseline of enforcement pursuant to which the Department of Justice "generally defends a law whenever professionally respectable arguments can be made in support of its constitutionality," (129) out of respect for congressional will. (130) Moreover, if the Justice Department decides that it will not defend a particular law, tradition dictates that the attorney general must write a letter to the Speaker of the House informing him or her of the decision and the underlying rationale. (131) Of course, if a law is clearly unconstitutional, few would contend that the president is required to defend it. (132) But if a constitutional argument can be made for the law, the president and his attorney general have a duty to defend it. (133)

    And yet, in February 2011, Attorney General Holder informed House Speaker Boehner that on the president's orders, the Justice Department would not defend DOMA. (134) In brief, the rationale was that President Obama believed that sexual orientation qualified as a suspect classification and thus triggered a heightened level of scrutiny under which DOMA would certainly fail. (135) Although there is much to be said in support of the administration's position, the argument unquestionably relies on a "contested theory of the constitutionality of laws regulating gay rights." (136) Indeed, in Windsor, the decision striking down Section 3 of DOMA, the Supreme Court expressed this very concern: "The Executive's failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma," Justice Kennedy wrote. (137) Although the Court categorized the problem as procedural because the question at issue related to Article III standing, the Court's discussion was imbued with constitutional implications. The Court recognized the "difficulty the Executive faces" when it "makes a principled determination that a statute is unconstitutional." (138) But the Court made it clear that the "appropriate" course of action is for the executive to "mak[e] the case to Congress for [its] amendment or repeal." (139) Otherwise, permitting the executive to refuse to defend laws as "a common practice in ordinary cases" would "pose[] grave challenges to the separation of powers" since the executive would "at a particular moment ... be able to nullify Congress' enactment solely on its own initiative." (140) It is particularly noteworthy that the Supreme Court admonished the Obama Administration for failing to defend Section 3 when, just a few pages later, it held that the administration was ultimately correct in concluding that Section 3 is unconstitutional. By failing to defend DOMA in the absence of binding precedent rendering it unconstitutional, therefore, President Obama fell short of the baseline requirement that the president defend a defensible act of Congress.

    Turning to the second factor, there is no indication that President Obama acted pursuant to considerations other than his own policy goals. The attorney general's letter to Boehner did not mention any practical rationale for the administration's decision not to defend DOMA (e.g., lack of resources or competing constitutional commitments). (141) Nor were DOMA cases such an overwhelming part of the Justice Department's docket that one could infer a resource-based motivation. (142) Moreover, the department remained a party to the primary DOMA challenges making their way through the courts. (143) The decision to intervene--and, often, to litigate the merits while simply not defending the law--thus saved the administration virtually no time or other resources.

    To the contrary, considering the third factor, there is extensive evidence of the policy motivations behind the president's decision. Indeed, the decision appears to stem from candidate Obama's 2008 open letter to the LGBT community, in which he called for DOMA's repeal. (144) Moreover, soon after the Obama Administration decided not to defend the law, the administration went on the record in support of repealing the Act (145)--this after extending employment benefits to same-sex partners of federal employees (146) and successfully pushing for the repeal of "Don't Ask, Don't Tell." (147) The administration's consistent attempts to advance LGBT rights through various political...

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