Self-help and the separation of powers.

• Author: Pozen, David E.
• Position: Introduction through II. Self-Help and Constitutional Conventions, p. 2-48

ARTICLE CONTENTS INTRODUCTION I. CONSTITUTIONALLY DERIVED TOOLS AND TYPES OF INTERBRANCH SELF-HELP A. Definitional Preliminaries B. Congressional Tools C. Presidential Tools D. Judicial Tools E. Additional Distinctions II. SELF-HELP AND CONSTITUTIONAL CONVENTIONS A. Conventions in Constitutional Theory B. Separation-of-Powers Conventions C. Obstruction, Retaliation, and Construction III. THE UNITY OF SELF-HELP: SECOND-PARTY ENFORCEMENT IN LAW AND THEORY A. The Dilemma of Self-Help B. The International Law Solution: Countermeasures Doctrine C. Organizing Principles IV. COPING WITH CONSTITUTIONAL COUNTERMEASURES A. The Latent Doctrine of Constitutional Countermeasures B. The Dignity of Retaliation: On Taking Self-Help Seriously C. Why Can't We Wait?: The Missing Discourse of Constitutional Self-Help D. Anxieties and Extensions CONCLUSION INTRODUCTION

Sometimes people are allowed to take the law into their own hands. They may bypass the courts and the cops and take unilateral measures to cure or prevent misconduct in their midst. Across the United States, doctrines have been developed to regulate such "self-help" behavior in criminal justice, property, contracts, torts, and other areas of private law. In public international law, a whole subfield is devoted to the self-help issue.

And so one might wonder: when may a U.S. government institution "attempt to redress a perceived wrong" by another U.S. government institution through its "own action," rather than through a third-party process? (1) More specifically, when may officials in one branch of the federal government attempt to redress another branch's perceived wrong through means that, but for that wrongdoing, would be impermissible? (2)

The question goes to the core of the separation of powers; both the separateness and the balance of powers among the branches depend upon its answer. Rising levels of partisanship lend it new urgency. Yet the question never seems to get asked, at least not in these terms. American lawyers have not developed a framework for analyzing or administering self-help remedies in constitutional law. Nor have they given much attention to the unwritten practices that shape interbranch struggle more generally. The result, this Article explains, has been an imbalanced discourse around constitutional conflict and constraint--an obsession with the Constitution's formal allocation of authorities, and relative neglect of the informal norms that determine how those authorities are wielded and disputes about them settled.

The issues are abiding, but recent events help to underscore the stakes. Consider three legislative-executive clashes that have generated heated debate:

1. In January 2012, President Obama made recess appointments to top posts at the Consumer Financial Protection Bureau and the National Labor Relations Board. (3) The Senate had been holding regular pro forma sessions during its holiday break in order to foreclose this option, but the Justice Department's Office of Legal Counsel (OLC) opined that the appointments were lawful under "a practical construction" of the Recess Appointments Clause. (4)

2. In June 2012, the Department of Homeland Security announced a policy to stop deportation of, and give work authorization to, some one million undocumented immigrants who came to the country as children. (5) This "Dreamers policy" mirrors the DREAM Act that successive Congresses had failed to pass. The immigration statutes do not exempt this class of individuals from deportation (hence the push for the DREAM Act), but the Justice Department defended the policy as within the scope of delegated prosecutorial discretion. (6)

3. Over the past several years, the Department of Education has granted more than forty states the "flexibility" to pursue educational reform plans that do not comply with central requirements of the No Child Left Behind Act of 2001 (NCLB). (7) The Administration acknowledges that these waivers have effectively rewritten the regulatory framework devised by Congress, but it insists that they are justified by "unintended consequences" of that framework as well as by explicit statutory language. (8)

On one prevalent view, the common thread linking these cases is the disdain they show for constitutional boundaries. The President determines to pursue a legally dubious course of action; he finds executive branch lawyers who will bless his preferred approach; and he forges ahead, heedless of the limits that Congress has placed on him. The episodes, accordingly, "suggest that this president lacks a proper respect for constitutional checks and balances." (9) Abstracting from particulars, they reveal a deep continuity between the Obama Administration and its predecessors in the contingent, instrumental approach taken to the law when important political objectives are at stake.

This narrative is powerful. But like the Administration's official legal analyses, it reflects a dichotomous approach to parsing presidential initiative--as either wholly consistent or inconsistent with separation-of-powers principles, supportive or corrosive of checks and balances--that obscures the dynamism and complexity of interbranch conflict. It also misses some of the most interesting features of the current constitutional period. A more refined set of conceptual tools is needed.

Another reading of these cases is available, and it points toward a more nuanced perspective on the President's relationship to law. On this alternative account, President Obama responded in measured terms to a profound breakdown of the policy process that had come to jeopardize the integrity of repre-representative government. Congress was the constitutional villain. According to the Administration's public narrative, Senate Republicans conceded the suitability of the recess appointees, yet they nevertheless stonewalled the nominations in an unprecedented effort to prevent disfavored agencies from exercising their statutory responsibilities. (10) A majority of both houses voted for the DREAM Act, yet a runaway filibuster nevertheless doomed its passage in the Senate. (11) Congressional leaders from both parties supported overhauling NCLB, yet a "dysfunctional" legislative environment made that goal unattainable. (12)

Underlying these outcomes were the familiar drivers of today's pathological politics: the exceptional levels of internal coherence and ideological purity within the Republican and Democratic camps, the elevation of partisanship above institutional or geographic identity as the defining ethic, the relentless minoritarian blocking tactics, the permanent campaign. President Obama was faced with a Congress whose top Senate Republican had announced numerous times that "[t]he single most important thing we want to achieve is for President Obama to be a one-term president," (13) and whose top House Republicans reportedly gathered on the night of his inauguration to devise a plan to "mortally wound" him through "united and unyielding opposition." (14) This sort of maximalist obstructionism, the President has repeatedly suggested, is incompatible with the traditions of interbranch practice and the assumptions of separation-of-powers theory. (15) It works a serious wrong on the American people and our scheme of governance. At the extreme, it triggers a limited right of reprisal.

On a sympathetic reading, then, President Obama's maneuvers can be seen as a species of constitutional self-help--attempts to remedy another party's prior wrong rather than to ignore inconvenient legal barriers. (16) His actions were meant to be preservative, not usurpative, in nature. The key to unlocking this understanding is the observation that President Obama's denunciations of Congress consisted of more than policy critique. President Obama accused Congress of contravening not only the electorate's political preferences but also basic constitutional conventions, unwritten quasi-legal norms that allow the branches to function. Take this reading far enough, and the President's "We Can't Wait" mantra (17) comes to look less like a populist repudiation of legal limits (as in, "We can't wait for the statutes to say what I want them to say!") (18) and more like an expression of intent to redeem the constitutional order (as in, "We can't wait for Congress to start policing itself and stop destroying our government!").

There are numerous difficulties with this view, both as a description of President Obama's behavior and as a prescription for executive practice. Some unilateral measures have no remedial value. Some are illegal regardless. Nevertheless, this reconceptualization of recent events helps to illustrate this Article's principal claim, which is that many of the most pointed ways in which Congress and the President challenge one another can plausibly and profitably be modeled as self-help rather than self-aggrandizement, as efforts to enforce constitutional settlements rather than to circumvent them. The claim is less radical than it might seem. Even if certain of these efforts ultimately prove inconsistent with the best reading of the Constitution--as some surely will--this does not mean that as a class they defy legal rationalization. Our understanding of such constitutional contestation, I will propose, can be clarified by an analogy to the law of self-help and above all to the international law doctrine of countermeasures.

This study has three main goals. The first is to introduce the concept of self-help into separation-of-powers analysis, with special reference to executive power. Although the concept of self-help plays a critical role in numerous bodies of law, it barely figures as such in constitutional doctrine or scholarship. Part I defines interbranch self-help and identifies it as a significant feature of our constitutional design, as well as a plausible component of a regime committed to the rule of law. In developing these points, I aim to remain as agnostic...