Power of the purse, prosecutorial power, and discretion, are all related.
|Conspiracy of Volokh
I have now had a chance to review the transcript United States v. Texas. On its face, this case involves a fair technical dispute about how to interpret the word “shall” in federal immigration law and whether the APA authorizes a national vacancy remedy. But beneath the surface are deeper issues involving the Article I powers of Congress, the President’s Article II powers, and the Article III powers of the federal courts. I will take these topics in reverse order.
At least one issue in this debate is whether Texas has Article III that challenges federal immigration policy. But Article III is also involved in the case. Specifically, do federal courts have Article III jurisdiction to grant national vacatur under the APA? In a conversation with Justice Barrett, Attorney General Prelogar said that “when courts offer remedies that go beyond the scope of the parties to the case, it may take the courts beyond the traditional forms of relief that have been authorized, whether according to Article III or by law.” The government now argued forcefully that the APA would not authorize a national vacancy. But Preloger added an additional argument that Article III did not support the measure.
Justice Barrett asked Prelogar why the United States would not consider the amendment as a jurisdictional argument.
Justice Barrett: Okay. I’m glad you brought this up because I have a question about this as well. So why don’t you consider this as a legal argument? You admit that the vacancy may be appropriate in a special statutory scheme, but simply say that under the law, statutory interpretation, the APA does not allow it. Why is this not within Article III jurisdiction?? Why do you admit that it is acceptable if Congress specifically authorizes it?
We are well aware of this California v. Texas that if the court cannot make a decision that will correct the plaintiff’s damages, the federal court is void. Justice Barrett raised this point strongly during oral argument in the ACA case, and the final opinion followed his questions about recovery. (I discussed this discussion in my article for the Cato Supreme Court review.)
General Prelogar tried to avoid this question. Barrett brushed him off and said, “No, no, no. I’m talking about Article III.” Prelogar’s answer was unanswerable. He declined to say whether the national vacancy issue involved Article III.
GENERAL PRELOGER: Under the authority of Article III, I guess you know it would be possible to think about it in the same way. We did not provide this evidencehowever I don’t want to close the door about it because of -specific concerns about going beyond specific party support.
“You know, I guess?” Yes.
Later, Barrett returned to this point in another exchange with Preloger. Here, Barrett followed up on his question California v. Texas:
JUSTICE BARRETT: I’m saying that if a court doesn’t have jurisdiction when it doesn’t have jurisdiction to grant a certain remedy, then why don’t we understand the APA — why don’t we understand this as a matter of statutory interpretation. jurisdiction? Because if the district court decides to grant a type of relief that it does not have the authority to grant, does it jurisdiction?
Here, Prelogar stated that the government did not claim that the national vacancy issue is related to Article III. I think her previous statement may be far from the government’s position.
GENERAL PRELOGER: We have not previously argued that this limitation of the APA is jurisdictional. The reason for the reasoning that we have given under 1252 is that it specifically states that no court has jurisdiction to do so, and we think that Congress has clearly acted that jurisdictional consequences apply to the exercise of that jurisdiction. add corrections. But I think and I think it can be the basis of jurisdiction can be imagined also if the law actually prevented the ordering of the remedy.
I wonder if Prelogar slipped up in his initial response to Barrett above and later tried to get away with it? It looked like she was coming from behind. Justice Barrett became the Court’s chief questioner of jurisdiction. Lawyers are better prepared to discuss the obvious points of Article III for Justice Barrett.
If Justice Barrett is on Article III of the Court, then Justice Kavanaugh is on Article II. The former White House counsel has raised questions about how Congress can place limits on the executive branch’s ability to enforce the law.
Does the law violate Article 2 if “may” actually means “may” and the President is required to arrest some foreigners?
JUSTICE CAVANAUGH: Is that ever unconstitutional? In other words, does the president have the ability in Article II to say that he has executive power under the Constitution, and any attempt by Congress to limit that executive power by saying “may” mean “may” itself violates Article II? You briefly mention Article II in your brief, but you don’t really elaborate on it very much.. I’m wondering what your answer is, could this be unconstitutional?
Prelogar responded that, in theory, such a law could be unconstitutional.
GENERAL PRELOGER: So, I think, yes, there may be certain circumstances where Congress can undertake a real non-interventionist effort to direct the executive branch to take specific executive actions to prosecute individuals in a specific way that we we can say that this violates Article II. limitations.
Kavanaugh intervened and asked whether the law violated Article II in this case. Prelogar responded that the government did not find the law unconstitutional, primarily because “will” does not mean “does.” (As “to discriminate” does not mean “to discriminate”. SFFA vs. Harvard“established by a State” means “established by the Federal Government” in King v. Burwelland a “fine” is really a “tax”. NFIB v. Sebelius.)
Cavanaugh returned to Article II in his questioning of Texas Attorney General Judd Stone. He referred to the President’s Article II authority over prosecutorial discretion.
And so, in the matter of substance, a tradition of reading laws with – against the basis of the prosecutor’s authority which is at least rooted in the federal context Article II and then Castle Rock talks about this fundamental principle in the context of the state.
Cavanaugh pressed further, asking about a law that would have required the executive branch to prosecute anyone who broke the law. Stone conceded that he had to argue that such a law applies to Article II:
JUSTICE CAVANAUGH: What if Congress says you have to prosecute, the executive branch everyone should be held accountable that violates the law?
MR. STONE: I think that would be the strongest possible argument for Article II. Nothing in the text, nothing in the theory of states –
JUSTICE CAVANAUGH: That would be an Article II challenge, wouldn’t it?
MR. STONE: I think so, Your Honor, yes, Your Honor, I think that would be the strongest Article II argument possible.
Here, I’ve had memories of the ongoing debate about the validity of DAPA and DACA. It seems like this issue will never go away.
The relation of this case to Articles II and III is sufficiently clear. But the connection to Article I is less obvious: if the states have no standing, how can executive power policy be stopped? One answer, of course, is Congress.
Again, Justice Cavanaugh led this line of inquiry. He asked about the new administration refusing to enforce environmental laws or labor laws. In this scenario, he asked, can anyone challenge the default decision?
So, if a new administration comes in and says we’re not going to enforce environmental laws, we’re not going to enforce labor laws, your position, I’m sure, no state, no individual, and no business would survive to challenge the decision, as a general matter, to simply not enforce these laws, is that right?
Prelogar replied, as he should, that any check should be political, not judicial:
GENERAL PRELOGER: This is true according to this Court’s precedent, however, the drafters wanted political scrutiny under these circumstances. You know, if — if the administration did something too drastic and said we’re not going to enforce the law at all, then the president would be held accountable by the voters and Congress would tools are also at their disposal.
What are these tools, Kavanaugh asked?
So if the courts can’t enforce these congressional mandates, what are the tools Congress has to make sure the laws are enforced in the United States?
Prelogar answered with the power of the purse:
GENERAL PRELOGER: Well, I think Congress obviously has the power of the wallet. It can make life difficult for the executive in making decisions about how to spend the funds. Congress has oversight powers.
We’ve heard many of these arguments over the past decade in the DACA and DAPA hearings. If Congress doesn’t like what the president is doing, Congress can act. But stopping illegal politics is not so easy. By its very definition, the executive branch is no spending money on law enforcement. Power of the purse doesn’t work for DACA because it was funded by application fees. In fact, the OLC’s view that DACA is blessed boasts of this quality, which puts it outside the purview of the appropriations power. (Here, I see an analogy to the CFPB, which is also not subject to Congressional appropriations authority.) Congress could amend the immigration bill to expressly ban DACA and DAPA, but that would override the President’s veto. demands. And in any case, Congress shouldn’t change a law that the president is already ignoring. The law is good; the problem is the president. And the president can ignore the new law as well. Congress can impeach and remove the president for neglecting to enforce the laws, but that only elevates the vice president, who can probably continue the policy. The political tests that Prelogar leads to are imaginary.
Cavanaugh seemed unconvinced about the effectiveness of these congressional “tools”:
But — but I think your position is that instead of judicial review, Congress should resort to a government shutdown or impeachment or drastic measures if this administration comes in and says we’re not going to enforce the laws, or at least not enforce the laws to the extent that we’re going to. , that Congress has said by law that the laws must be enforced and — and that compels — I mean, I understand your position, but it compels Congress to pass dramatic stepsI think.
These steps are “dramatic”. Prleogar agreed, but said political checks could prevent these abuses from happening in the first place.
GENERAL PRELOGER: Well, I think that if these dramatic steps were justified, it would be along with an abdication of legal responsibility by the executive branch.
And there’s a reason we don’t see it throughout our history political investigation which interfere with such actions to the executive bodies. And it would be like if the president decided to pardon every federal felon and let them all go free, sure, no one could be sued about it, but there’s a reason that doesn’t happen.
I think the answer is that political checks have failed to stop President Biden, and before him President Obama, from (ab)using prosecutorial discretion to violate immigration laws. I do not think that the majority of the Courts are prepared to remove the judiciary from these matters entirely.
This case presents constitutional issues in almost every respect. I will talk more about this in later articles.