JUDICIAL REVIEW AND NON-ENFORCEMENT AT THE FOUNDING Matthew Steilen * This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non- enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non- enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this same period the historical record contains hundreds of discussions of judicial review. The Article then advances an explanation of why there was considerable support for judicial review but none for non-enforcement. Judicial review followed from what that generation called “expounding” the law, which meant explaining it. A court was supposed to explain the law in the course of deciding a case. Explaining the law involved examining all potentially relevant legal rules and showing how they fit together to deductively justify the judgment reached. In that context, if a statute could not be reconciled with the constitution, it would not be given effect. Since the president neither decided cases nor expounded the law, he did not enjoy a power of non-enforcement parallel to the power of judicial review. * 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, Tom Grey, Dan Hulsebosch, Aziz Huq, Fred Konefsky, Larry Kramer, Michael McConnell, 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 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 versions 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. 28-May-14] NON-ENFORCEMENT AT THE FOUNDING 1 Introduction ............................................................................................................. 1 I. The Non-Enforcement Argument ..................................................................... 11 A. State politics and judicial review ................................................................ 12 B. The “standard justification” for judicial review .......................................... 16 C. From the Standard Justification to the Non-Enforcement Argument ......... 24 II. Three Problems with the Non-Enforcement Argument ................................... 26 A. A lack of evidence ....................................................................................... 27 B. Negative evidence ....................................................................................... 35 C. A closer look at the Standard Justification .................................................. 44 1. Constitutional agency ........................................................................ 44 2. The duty to apply the law .................................................................. 48 III. Reconstructing the Standard Justification ........................................................ 50 A. The idea of a “case” .................................................................................... 52 B. Kamper v. Hawkins and judicial resolutions .............................................. 60 C. “Expounding” the law, and its variants ....................................................... 65 D. “Expounding” during the Repeal Act debate .............................................. 75 Conclusion .............................................................................................................. 81 INTRODUCTION Can the president refuse to enforce a law he deems unconstitutional? 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 legislation repealing the Affordable Care Act,2 but a Democratically controlled Senate tables the proposal. Can the president instead dispose of the law by refusing to enforce its provisions? Can he abandon enforcement of the individual mandate?3 Can he decline to enforce federal regulations of state health-care exchanges?4 Can he decline 1 See Nat’l Fed. Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012); Tom Howell, Jr., Ted Cruz sees legal landmines ahead for Obamacare, WASHINGTON TIMES, Dec. 9, 2013. 2 See U.S. CONST., art. II, § 3 (“He shall . recommend to their Consideration such Measures as he shall judge necessary and expedient.”). 3 The president could 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 (individual mandate); 26 U.S.C. § 5000A(g)(1) (“The penalty provided by this section shall be paid upon notice and demand by the Secretary . .”). 4 See 42 U.S.C. § 18031(d), (e) (specifying requirements for state exchanges). Candidate Mitt Romney suggested during the presidential election contest of 2012 that he 2 NON-ENFORCEMENT AT THE FOUNDING [28-May-14 to pursue insurers who deny coverage or employ underwriting practices in violation 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 question.7 Their principal ground for taking this position is an analogy between executive and judicial power. They argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in refusing to enforce laws he deems unconstitutional.8 According to Sai Prakash and John Yoo, for example, “the same constitutional reasoning that supports judicial review also militates 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 remarkable group, including Akhil Amar,10 Larry Kramer,11 John Harrison,12 Gary Lawson,13 Christopher Eisgruber,14 Michael Stokes 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, WASHINGTON EXAMINER (Dec. 7, 2011). 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 be not strictly enforced. See id.; 42 U.S.C. § 18052(b), (c). 5 See, e.g., 42 U.S.C. § 300gg-1(a) (guaranteed issue); § 300gg-2(b) (guaranteed renewability); § 300gg-3 (preexisting conditions). 6 See 26 U.S.C. § 4980H(d) (“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 enforcing the Affordable Care Act enjoys the discretion not to enforce the law under the Administrative 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, 831 (1985)). 8 See Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, 63 LAW & CONTEMP. PROBS. 7, 17-18 (2000) (identifying this argument). 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 Administration’s Nonenforcement of Immigration Laws, the DREAM Act, and the Take Care Clause, 91 TEX. L. REV. 781, 800-01 (2013); Neil Devins & Saikrishna Prakash, The Indefensible Duty to Defend, 112 COLUM. L. REV. 507, 533 (2012); Saikrishna B. Prakash, The Executive’s Duty to Disregard Unconstitutional Laws, 96 GEO. L.J. 1613, 1645-46 (2008). 10 AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 179 (2005). 11 See Larry D. Kramer, The Supreme Court 2000 Term—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 28-May-14] NON-ENFORCEMENT AT THE FOUNDING 3 Paulsen,15 and Judge Frank Easterbrook,16 among others.17 The view is wrong. The analogy these scholars draw between executive and judicial power rests on a serious misreading of founding-era history. By the time of the founding, and for the first decade under the