Constitution Check: Are the courts the answer to partisan gridlock in Washington?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at how state governments may feel more emboldened to sue the federal government over policy disagreements after Thursday’s immigration decision.

THE STATEMENT AT ISSUE:

“For nearly eight years, Obama has assumed powers never granted or envisioned to him by our founding documents, and dared his critics to sue him if they disagreed. They did: some 26 states, to be exact. And that’s not all. Multiple states have sued the administration on other issues, especially with respect to EPA overreach. And a federal judge recently upheld the House of Representatives’ suit challenging Obama’s decision to give taxpayer money to health insurers without Congress having ever appropriated the money.”

– Excerpt from a news release on Thursday by the Institute for Policy Innovation, a Dallas-based conservative research organization, following the Supreme Court’s 4-to-4 decision leaving in place lower court orders forbidding the federal government from carrying out President Obama’s broad new immigration policy on deferred deportation of undocumented foreign nationals living in the U.S.

WE CHECKED THE CONSTITUTION, AND…

A shrewd foreign observer, Frenchman Alexis de Toqueville, remarked after his visit to America in the 1830s that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” That has always had a positive ring to it, and Americans have long enjoyed the idea (wrong in fact) that almost anyone could take a legal dispute “all the way to the Supreme Court.”

One has to doubt, though, that the founding generation thought it was such a good idea for politicians who cannot work their way out of partisan gridlock to hand over to the courts their disagreements over policy.  Those who wrote the Constitution thought of the courts as “the least dangerous branch” in the government they were forming, even though they understood that the prime task of the courts would be to protect people’s liberties from the other, political branches.

To do that, courts have to remain outside the political arena; they should not be seen as doing the political labor that the other branches were assigned.  The reality of modern life in government, however, is that partisan disagreements seem regularly to find their way into the federal courts.  The notion seems to be something like “don’t compromise, sue.”

The Obama years in the White House have brought this approach into new prominence.  It is possible that the seeds of this phenomenon were planted when, soon after the President took office, Republican leaders declared that they would do whatever they could to ensure that he had only one term in the White House.  But, believing that he had something of a progressive mandate from his election (and, then, his reelection), the President began to flex his executive muscle, using powers that either were novel or unprecedented, or at least controversial.   As a result, he and the agencies of his government have become prime targets in the courts.

The list of very prominent lawsuits against policy initiatives by this President is long and still growing.  And it can happen quickly.  For example, right after two agencies of the government announced new policies to protect transgender people from gender discrimination in programs paid for with federal funds, 11 states sued, picking out what they assume would be a friendly federal court in Texas.

The pattern is now entirely familiar.   The President’s health care plan could not be stopped in Congress, so case after case about Obamacare has gone into the courts.  State governments were among the first to sue.  The Supreme Court has faced those lawsuits five times in the past couple of years; the president won some, his adversaries won others.

One of the most prominent lawsuits against the White House came in the legal claim that Obama exceeded his powers under federal law and the Constitution when, in November 2014, he adopted on his own a broad new policy to limit the deportation of potentially millions of undocumented immigrants.  Twenty-six states sued, and succeeded in persuading the lower courts to stop the policy from going into effect.

That result got approval, of a sort, in the Supreme Court on Thursday.  With one Justice short, because of the death of the late Justice Antonin Scalia, the eight-member court found itself unable to agree on the states’ challenge, so they split 4 to 4.  That had the effect of upholding, without an opinion, the orders of the lower court against enforcement of the policy.

The President, of course, was disappointed.  Unable to persuade Congress to adopt an overhaul of immigration policy, he had used what powers he believed he had.  And that effort has now failed.

But one of the side-effects of that outcome was that state governments are now entitled to feel emboldened about their right to sue the federal government over policy disagreements.  The administration had asked the Supreme Court to throw out the states’ lawsuit entirely, contending that they had suffered no injury from a policy that was within the president’s discretion, and that they had gone to court just because they preferred a different immigration policy approach.   That was a serious question under Article III, which limits the power of the federal courts to deciding genuine legal controversies.

In recent years, the court has been fairly restrictive in its interpretation of who may sue under Article III.  And there is no way to escape the reality that the court knew, in the immigration case, that the Article III limitation was very much at issue, even a dominant question.  A 4-to-4 split did not provide a firm answer, but unless the court could be persuaded (perhaps after getting a new ninth colleague) to rethink how open to make the courts to state government lawsuits, that kind of litigation is sure to grow.  A former state attorney general of Texas once remarked to the press, not altogether in fun, that “I go to the office in the morning, I sue the federal government, and then I go home.”