Pozen on Separation of Powers and Self-Help Countermeasures (AdLaw Bridge Series)
Perhaps due in part to a hopelessly gridlocked Congress, we live in an era of executive discretion. The White House has delayed the Affordable Care Act’s employer mandate. The Department of Homeland Security has announced that it will stop deporting certain noncitizens who are currently required to be removed by statute and refocus its efforts elsewhere. And the President has turned to recess appointments when Congress has moved too slowly (or not at all) to confirm his appointees at various agencies. As Peter Shane has observed, “Headlines often describe President Obama as ‘going it alone’ on public policy in light of congressional inaction.” And critics of the current administration have asserted that this going-it-alone approach is unconstitutional. Perhaps the best (and most ironic) example of such criticism is the House Republicans’ lawsuit to challenge the Obama Administration’s decision to delay the employer mandate.
It should thus come as no surprise that executive discretion is a hot topic in the academy. To give just one example, the Case Western Law Review will be hosting a symposium in November entitled Executive Discretion and the Administrative State , featuring among others Jonathan Adler , Victoria Nourse , Peter Shane , and Peter Strauss . A lot of terrific scholarship is being written about executive discretion in the modern administrative state, but I’ll focus on one piece here.
In Self-Help and the Separation of Powers , forthcoming in the Yale Law Journal , David Pozen reframes the go-it-alone debate in terms of a variety of self-help doctrines that have developed in the law. I’ll let his abstract speak for itself:
Self-help doctrines pervade the law. They regulate a legal subject’s attempts to cure or prevent a perceived wrong by her own action, rather than through a mediated process. In their most acute form, these doctrines allow subjects to take what international lawyers call countermeasures—measures that would be forbidden if not pursued for redressive ends. Countermeasures are inescapable and invaluable. They are also deeply concerning, prone to error and abuse and to escalating cycles of vengeance. Disciplining countermeasures becomes a central challenge for any legal regime that recognizes them.
How does American constitutional law meet this challenge? This Article contends that a robust set of unwritten, quasi-legal norms shapes and constrains retaliation as well as cooperation across the U.S. government, and it explores how these conventions of self-help correspond to regulatory principles that have emerged in public international law. Re-envisioning intragovernmental conflict through the lens of self-help gives us new descriptive and critical purchase on the separation of powers. By attending to the theory and practice of constitutional countermeasures, the Article tries to show, we can advance familiar debates over legislative obstruction and presidential adventurism, and develop richer models of constitutional contestation within and beyond the branches.
This is such a theoretically rich piece, and it is no surprise that Solum’s Legal Theory Blog called it“[v]ery interesting and highly recommended” and instructed readers to “[d]ownload it while its hot!” When we discussed the paper as part of our regular (two-person) reading group, my colleague Peter Shane remarked: “In terms of theorizing the norms on which separation-of-powers systems depend, Pozen’s piece is the most creative and helpful work I’ve read recently.”
But its practical (and political) implications should not be overlooked. Professor Pozen is careful to note, repeatedly, that the purpose of the paper is not to defend the current administration’s invocation of self-help countermeasures. The paper nevertheless provides a helpful reframing of executive discretion from going-it-alone tactics to countermeasures justified by the other branches’ failure to fulfill their duties. (Whether and which countermeasures are constitutional, I’ll leave for another day.) The current administration would be smart to reframe the discourse along the lines Professor Pozen suggests.
One final comment: In mapping out the various self-help tools, Professor Pozen makes a wise choice to focus less on the judicial tools than on the executive and legislative tools. (Although well written and easy to read, it’s already a long paper.) But it’s worth noting that courts have developed a variety of self-help tools that extend beyond their traditional role of deciding cases or controversies. Although I do not label them as self-help tools, in a forthcoming paper I discuss a set of novel tools uncovered in the context of administrative law’s ordinary remand rule that aim to enhance judicial dialogue with federal agencies. These judicial tools include: requiring the agency to provide notice of the agency decision on remand; retaining jurisdiction over the matter remanded; setting a time limit for remand; offering hypothetical solutions in dicta or concurring opinions; certifying an issue for remand; obtaining concessions from the government during judicial review that limit the scope of remand; and suggesting that the agency transfer the matter to a different adjudicator on remand. I also suggest three additional tools not uncovered in the cases but used elsewhere: ordering preliminary injunctive relief pending remand; escalating the issue within the Executive (think calls from Judge Posner and others for better Immigration Judges and the Attorney General’s response); and escalating the issue to Congress (think Justice Ginsburg’s Ledbetter dissent and Congress’s response). So courts, too, have something to learn from Professor Pozen’s reframing of separation-of-powers conflicts within the self-help framework.