JUDICIAL REVIEW AND NON-ENFORCEMENT AT THE FOUNDING Matthew Steilen* INTRODUCTION Can the President refuse to enforce a law he deems unconstitu- tional? Take the Affordable Care Act. The Supreme Court upheld the provision in the Act mandating that individuals purchase health insurance, but leading Republicans continue to press the view that the law is unconstitutional.1 Suppose one such Republican captures the presidency in 2016. His first act in office is to recommend legisla- tion repealing the Affordable Care Act,2 but a Democrat-controlled Senate tables the proposal. Can the President instead dispose of the law by refusing to enforce its provisions? Can he abandon enforce- ment of the individual mandate?3 Can he decline to enforce federal * Associate Professor of Law, Affiliated Faculty, Department of Philosophy, State University of New York at Buffalo. Email: [email protected]; Twitter: @MJSteilen. Comments and criticisms from Justin Barnard, Mary Bilder, Guyora Binder, Jim Gardner, Bob Gordon, Tom Grey, Dan Hulsebosch, Aziz Huq, Fred Konefsky, Larry Kramer, Michael McConnell, Bernadette Meyler, Henry Monaghan, Will Partlett, Jeff Powell, Jack Schlegel, Rob Steinfeld and Rick Su improved this Article, and probably would have more had I followed all of their graciously given advice. Thanks also to participants at the Har- vard/Stanford/Yale Junior Faculty Forum, the Arizona State Legal Scholars Conference, the Loyola University of Chicago School of Law Constitutional Law Colloquium, and the SUNY Buffalo Law School Summer Faculty Forum and Junior Faculty Forum, where ver- sions or portions of this Article were presented. I received invaluable research assistance from Greg Della Posta, Adam Faeth, Ian Laing, Anna McCarthy, and librarian Joe Gerken. Research for this Article was supported by a summer faculty research fellowship from SUNY Buffalo Law School. 1 See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2600 (2012) (holding that the individual mandate is constitutional under congressional taxing powers); Tom Howell, Jr., Ted Cruz Sees Legal Landmines Ahead for Obamacare, WASH. TIMES (Dec. 9, 2013), http://www.washingtontimes.com/news/2013/dec/9/ted-cruz-sees-legal-landmines- ahead-obamacare/ (“Sen. Ted Cruz . said many aspects of the Affordable Care Act are ‘constitutionally or statutorily suspect’ and that the entire law should be repealed.”). 2 Cf. U.S. CONST. art. II, § 3 (giving the President the power to recommend to Congress the “[m]easures as he shall judge necessary and expedient”). 3 The President might direct the Secretary of the Treasury not to demand payment for an individual’s failure to obtain minimum essential coverage. See 42 U.S.C. § 18091 (2012) (providing for the individual mandate for purchasing health insurance); 26 U.S.C. § 5000A(g)(1) (2012) (“The penalty provided by this section shall be paid upon notice and demand by the Secretary . .”). 479 480 JOURNAL OF CONSTITUTIONAL LAW [Vol. 17:2 regulations of state health-care exchanges?4 Can he decline to pursue insurers who deny coverage or employ underwriting practices in vio- lation of the Act?5 Can he decline to pursue covered employers who refuse to provide health insurance for their employees?6 Many commentators would say yes, assuming that the President acts on the basis of a constitutional objection to the provision in ques- tion.7 Their principal ground for taking this position is an analogy between executive and judicial power. They argue that the justifica- tion for judicial review that prevailed at the time of the founding also justifies the President in refusing to enforce laws he deems unconsti- tutional.8 For example, according to Sai Prakash and John Yoo, “the same constitutional reasoning that supports judicial review also mili- tates in favor of a form of executive branch review in the course of executing the laws . .”9 Prakash and Yoo are joined in this view by a 4 See 42 U.S.C. §§ 18031(d)–(e) (2012) (specifying requirements for state exchanges). Candidate Mitt Romney suggested during the presidential election of 2012 that he would issue waivers to states exempting them from various requirements under the Affordable Care Act, including those related to state exchanges. See, e.g., Philip Klein, Romney and Obamacare Waivers, WASH. EXAMINER (Dec. 7, 2011), http:// washingtonexaminer.com/ article/993076 (“Romney said: ‘as president, I will repeal Obamacare, I’ll grant a waiver on day one to get that started.’”). The position verged on non-enforcement, since the waiver provision in the Affordable Care Act extends only to states that develop coverage mechanisms at least as comprehensive as those mandated by federal law, a requirement Romney aides suggested would not be strictly enforced. See id. (“[T]he Romney aide said that under the campaign’s interpretation of the law, the administration would be able to give broad leeway to states, allowing them to opt out of many onerous provisions of Obamacare, including the individual mandate. And, the aide said, there was wiggle room around how the various coverage requirements are defined.”); 42 U.S.C. §§ 18052(b)–(c) (2012) (detailing the restrictions on the granting and scope of state waivers under the Af- fordable Care Act). 5 See, e.g., 42 U.S.C. § 300gg-1(a) (2012) (addressing the guaranteed availability of health coverage); 42 U.S.C. § 300gg-2 (2012) (addressing the guaranteed renewability of health coverage); 42 U.S.C. § 300gg-3 (2012) (prohibiting exclusion from health coverage based on preexisting conditions). 6 See 26 U.S.C. § 4980H(d) (2012) (“Any assessable payment provided by this section shall be paid upon notice and demand by the Secretary . .”). 7 See infra notes 9–16. I set aside the question of whether the agency charged with enforc- ing the Affordable Care Act enjoys the discretion not to enforce the law under the Ad- ministrative Procedure Act. See Michael Sant’Ambrogio, The Extra-Legislative Veto, 102 GEO. L.J. 351, 394–95 (2014) (discussing Heckler v. Chaney, 470 U.S. 821, 837–38 (1985), which held that the APA does not grant judicial review of FDA decisions not to institute enforcement proceedings). 8 See Dawn E. Johnsen, What’s a President To Do? Interpreting the Constitution in the Wake of Bush Administration Abuses, 88 B.U. L. REV. 395, 405–11 (2008) (identifying the Bush Ad- ministration’s use of the constitutional avoidance canon to declare that certain laws should not be enforced). 9 Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. CHI. L. REV. 887, 924–25 (2003); see also Robert J. Delahunty & John C. Yoo, Dream On: The Obama Admin- istration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 Nov. 2014 JUDICIAL REVIEW AND NON-ENFORCEMENT AT THE FOUNDING 481 remarkable group, including Akhil Amar,10 Larry Kramer,11 John Har- rison,12 Gary Lawson,13 Christopher Eisgruber,14 Michael Stokes Paulsen,15 and Judge Frank Easterbrook,16 among others.17 The view is wrong. The analogy these scholars draw between ex- ecutive and judicial power simply cannot be sustained on a fair read- ing of Founding-era history. By the time of the Founding, and for the first decade under the Constitution, few were thinking about the President’s function in constitutional enforcement in terms compa- rable to a court of law. The vast majority of those engaged in the tasks of ‘political science’ and statecraft simply did not express them- selves on the issue. When they did speak, what came out was (unsur- prisingly) a jumble, much of it at odds with modern views of the pres- idency. In contrast, by the mid-1790s, thinking about the role courts played in enforcing the Constitution had firmed considerably. This is true across the emerging Federalist-Republican divide. My purpose in this Article is to explain these developments and thus to argue for TEX. L. REV. 781, 800–01 (2013); Neil Devins & Saikrishna Prakash, The Indefensible Duty to Defend, 112 COLUM. L. REV. 507, 533 (2012); Saikrishna Bangalore Prakash, The Executive’s Duty to Disregard Unconstitutional Laws, 96 GEO. L.J. 1613, 1645–46 (2008). 10 See AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 179 (2005). 11 See Larry D. Kramer, Foreword: We the Court, 115 HARV. L. REV. 4, 87 (2001). 12 See John Harrison, The Constitutional Origins and Implications of Judicial Review, 84 VA. L. REV. 333, 336 (1998). 13 See Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpreta- tion, 81 IOWA L. REV. 1267, 1287 (1996). 14 See Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 GEO. L.J. 347, 350 (1994). 15 See Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 267 (1994) (positing that the rationale of Marbury v. Madison is appli- cable to executive review, even in the absence of judicial review of a particular law). 16 See Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 919–20 (1989–- 90). 17 For example, Judge Nina Pillard endorsed the analogy between judicial and executive power, although she did not expressly conclude on that basis that the President may de- cline to enforce a law he deems unconstitutional. See Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 MICH. L. REV. 676, 687 (2005) (analogiz- ing executive power and judicial review). Notably, the last twenty years have seen only one extended effort to rebut the claim that non-enforcement can be defended on originalist grounds. See generally CHRISTOPHER N. MAY, PRESIDENTIAL DEFIANCE OF “UNCONSTITUTIONAL” LAWS: REVIVING THE ROYAL PREROGATIVE (1998). For leading tex- tualist arguments against non-enforcement, see, as an example, Eugene Gressman, Take Care, Mr.