The Political Remedies Doctrine

• Publication year: 2021

The Political Remedies Doctrine

David M. Driesen

THE POLITICAL REMEDIES DOCTRINE

David M. Driesen^*

ABSTRACT

This Article describes and analyzes a hitherto unrecognized doctrine—the political remedies doctrine. That doctrine maintains that courts ought not adjudicate separation of powers claims until both political branches of government have asserted their rights. The doctrine has escaped analysis (and even explicit notice) because judges camouflage it, employing it while invoking the more familiar rubrics of ripeness, standing, political question, and equitable discretion. Justice Powell provided the leading articulation of the doctrine, but the Supreme Court as a whole has never squarely endorsed it. The political remedies doctrine, however, has played a surprisingly important role in the lower courts, helping justify refusal to adjudicate war powers claims and cases arising from President Trump's challenges to the constitutional order.

While invoked as a neutral rule, the courts always apply the doctrine to shield presidential acts from judicial scrutiny and never to protect acts of Congress from judicial interference. Accordingly, it aids aggrandizement of presidential power. Partly for that reason, this doctrine has great potential to unravel the rule of law and even, during times of partisan stress, to hasten the collapse of the separation of powers undergirding our democracy.

This Article claims that the courts should not apply this doctrine, except perhaps to avoid adjudication of challenges to bipartisan legislation signed by the President. It employs a Coasean property rights analysis to provide new insights germane not just to this doctrine, but also to debates about the proper role of bargaining in resolving separation of powers questions, the relationship between law and politics, and how the courts should approach justiciability doctrine more generally. That Coasean analysis shows that judicial resolution of a separation of powers claim on the merits does not preclude political bargaining, but simply determines a baseline for future negotiations. Conversely, dismissing a claim because of the potential for political bargaining functions much like a ruling on the merits, also creating a constitutional baseline for future political negotiations. Hence, the justiciability issues involved when political remedies are invoked do not present a choice between political and judicial resolution of disputes, but rather a choice about baseline power

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allocations form which to conduct future bargaining. Thus, analysis of this hitherto unrecognized doctrine yields valuable insights.

INTRODUCTION ................................................................................................. 3

I. THE STORY OF THE POLITICAL REMEDIES DOCTRINE ........................... 8

A. The Political Remedies Doctrine in the Supreme Court ............... 8

1. Justice Powell's Goldwater Opinion ...................................... 8
2. Justice Rehnquist's Goldwater Opinion ................................. 9
3. Relationship to Other Justiciability Doctrines ..................... 10

B. The Political Remedies Doctrine in the Lower Courts ............... 16

1. War Powers Cases ................................................................ 16
2. President Trump's Challenges to the Constitution ............... 22

a. Emoluments Clause Cases ............................................. 23
b. Subpoena Cases .............................................................. 25
c. The Power of the Purse: Trump's Wall ......................... 28

II. POLITICAL REMEDIES AND THE RULE OF LAW .................................... 30

A. The Political Remedies Doctrine's Asymmetry .......................... 30
B. The Rule of Law and the Windsor Dissent .................................. 32

III. THE POLITICAL REMEDIES DOCTRINE: A CRITIQUE ............................ 36

A. The Politics Preference and Political Agreement ...................... 37
B. Political Remedies Decisions and Baselines for Bargaining: Implications of Treating Constitutional Power Allocations as Institutional Property .................................................................. 39
C. Formalism and Liberty: The Conflict with Precedent ................ 43
D. Political Remedies and National Politics ................................... 48
E. The Problem of Unwise Judicial Reasoning on the Merits ........ 51
F. Narrowing the Doctrine ............................................................. 52

IV. BROADER IMPLICATIONS ..................................................................... 54

CONCLUSION ................................................................................................... 56

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INTRODUCTION

The federal courts sometimes decline to review constitutional questions on the grounds that they should not adjudicate separations of powers cases until both of the political branches of the government have asserted their rights. One might call this the "political remedies doctrine" because the doctrine maintains that courts should refuse judicial review when a political remedy is available.

Justice Powell articulated the political remedies doctrine in Goldwater v. Carter to justify not deciding whether a President may unilaterally terminate a treaty enacted with the advice and consent of the Senate.¹ The Goldwater Court agreed that the case was not justiciable by a 5-4 margin in a summary ruling without a single majority opinion.² The doctrine has aided the transfer of the war power from Congress, the body possessing the power according to the constitutional text, to the President.³ It has also played a major role in catalyzing a cutback in the scope of congressional standing to sue.⁴ More recently, it figured in a series of lower court decisions dismissing challenges to President Trump's invocation of emergency powers to build a wall on the U.S. southern border without a congressional appropriation, defiance of congressional subpoenas, and alleged violations of the Constitution's Emoluments Clauses.⁵

In spite of the political remedies doctrine's influence, the literature has not noticed this doctrine's existence, let alone analyzed its implications in a sustained way. The doctrine has escaped notice because judges camouflage it, blending it in with the justiciability doctrines that surround it—the doctrines of ripeness, standing, political questions, and equitable discretion. Furthermore, while it has played a prominent role in justifying some opinions in the lower courts, the Supreme Court has never endorsed it. Only Justice Powell's

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concurring opinion in Goldwater squarely relies on the political remedies doctrine. Justice Rehnquist's opinion for the other four Justices in Goldwater invokes the political remedies doctrine, but the doctrine did not play as central a role in his reasoning as it does in Powell's.⁶

The political remedies doctrine, however, merits sustained attention on its own, not only because of its influence on the lower federal courts in extremely important cases, but also for its potential future influence. While framed as a neutral rule of restraint applying equally to review of both political branches' decisions, in practice, it consistently augments presidential power at the expense of Congress. Moreover, it has the potential to broadly liberate the President from obligations to comply with applicable law. Indeed, Justice Scalia in a dissent advocated an interpretation of the doctrine that would allow a President to nullify numerous statutes by simply declaring them unconstitutional.⁷ Justices still on the Court signed on to the Scalia dissent⁸ and a lower court has followed it in declining to protect congressional spending power from presidential usurpation.⁹

The political remedies doctrine also merits attention for theoretical reasons. The political remedies doctrine provides an opportunity to engage in broader questions about separation of powers. Since this doctrine, as applied, liberates presidential actions, but not acts of Congress, from judicial review, it invites questions about this asymmetry's effects and desirability.

The analysis of the doctrine offered here contributes to the theory of negotiated separation of powers arrangements, as scholars have debated whether the Supreme court should defer to power allocations negotiated between the legislative and executive branches.¹⁰ It shows, contrary to the assumptions undergirding that literature, that neither political remedies dismissals nor adjudication of separation of powers claims on the merits precludes subsequent political bargaining. Both adjudication and dismissal establish baselines for future negotiations.

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The doctrine also raises questions about the relationship between law and politics. The political remedies doctrine and some commentators suggest that law and politics exist as separate spheres.¹¹ But this Article questions the notion that judicial rulings end politics and that politics substitute for judicial decisions when courts dismiss cases.

The analysis developed here on all of these questions has implications for justiciability doctrines more broadly. Both the Supreme Court and commentators have noted that the justiciability doctrines overlap.¹² A consideration motivating the political remedies doctrine—that judicial review might improperly displace political decision-making—plays a role in shaping all the justiciability doctrines.¹³

While I write on a blank slate about this particular doctrine, several literatures do address the role of political remedies in adjudication, at least in passing. I therefore draw upon articles addressing the idea as part of the doctrine of congressional standing,¹⁴ discussions of the role of politically negotiated resolution of separation of powers disputes,¹⁵ and general theoretical works on the role of law and politics in restraining presidents.¹⁶

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