Uncertainties of the Administrative State

Constitutional law professor Laurence Tribe and former SCOTUSblog contributor Joshua Matz came out with an excellent book last year in which they examine the Supreme Court’s jurisprudence on a variety of topics—equal protection, health care, campaign finance, free speech, gun rights, presidential power, privacy, etc.—during the years since Chief Justice John Roberts joined the Court.

Uncertain Justice

I must say that, though the title initially suggested to me a disparaging account of the Roberts Court, I found the work as a whole to be quite even-handed and (dare I say) judicious. The authors do an excellent job aiding the reader to appreciate the nuances and merits of conflicting values which divide our country and often the Court itself. In fact, I am now inclined to interpret the “Uncertain” of the title as referring to the inherent intractability of certain conflicts of constitutional values or textual interpretation.

As I penned my last post discussing the controversy over immigration and administrative action, I recalled a relevant passage from Chapter 7, “Presidential Power: Hail to the Chief.” Therein, Tribe and Matz relay the “clash” between Roberts’ majority opinion and Breyer’s dissent regarding the appropriate degree of control Presidents ought to exercise over administrative agencies.

The case was Free Enterprise Fund v. PCAOB. The Sarbanes-Oxley Act of 2002 created the Public Company Accounting Oversight Board (PCAOB). The act established a 5-member board in which the board members could only be removed by the SEC and only for “good cause.” The SEC is an independent agency, already enjoying some degree of insulation from presidential control. By custom, its commissioners can only be removed by the President due to “inefficiency, neglect of duty, or malfeasance in office.” Thus, no direct lever of control existed between the President and the PCAOB. The Court struck down the removal provision by 5-4 decision because it failed to vest removal authority directly in the hands of the President.

Tribe and Matz explain the majority’s reasoning:

Writing for the Court and quoting Article II, Roberts grounded his opinion in the importance of formal control: “The President cannot ‘take care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them….Neither the President nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control over the [PCAOB].

The co-authors next explain Breyer’s reasoning in dissent:

Describing the reach of federal law, Breyer emphasized that, “given the nature of the government’s work, it is not surprising that administrative units come in many different shapes and sizes.” Because of this diversity, he reasoned, the Constitution recognizes “the various ways presidential power operates.” Such a pragmatic approach doesn’t take presidential power to fire as the sine qua non of control over agencies. Instead, it acknowledges that, “as human beings have ever known since Ulysses tied himself to the mast so as safely to hear the Sirens’ song, sometimes it is necessary to disable oneself in order to achieve a broader objective.” By freeing bureaucrats from political control, Breyer reasoned, we can enhance their legitimacy and credibility as technocrats and neutral arbiters.

These conflicting points of view about how much control presidents should have over administrative agencies is not only relevant to the current controversy over immigration policy, but goes to the difficulty of squeezing the administrative state into our conceptions of tripartite government. Agencies are created and enabled by congressional statute yet are placed structurally within the executive branch under the charge of the President, the chief executive officer. In addition to their executive function, agencies operate in a quasi-legislative and quasi-judicial capacity, thus blurring the traditional distinctions between each governmental power even they facilitate the effective exercise of those powers. Agencies are expected to be accountable to the people via the people’s representatives, who themselves are often at odds with one another. If that is not enough, balanced against the democratic principle is the interest in efficient and technically expert administration somewhat removed from the vagaries of day-to-day politics. Given these muddled expectations, it is no surprise then that reasonable minds differ on how administrative agencies should work in practice.

 

Tribe discusses his book below. Of particular note, he highlights the fact that the Court is less partisan than the popular press would lead us to believe. For example, the Roberts court has been unanimous 1/3 of the time. Only 1/5 of the time has the Roberts court has been divided in 5-4 decisions, and 1/3 of those involved unlikely alliances of liberal and conservative justices. For more discussion of Supreme Court decision making, see my post here.

A.K.

Immigration Battle and the Proper Role of Administrative Agencies

I’ve written before about the debate over the constitutionality of President Obama’s deferred deportation program. Here is a neat little video explaining that program:

On Monday of last week, U.S. District Judge Andrew S. Hanen (TX, 5th Circuit) granted an injunction against the Obama administration’s program while a lawsuit filed by 26 states challenging it was being decided. Judge Hanen did two things in his opinion worthy of note. First, he declared that, although agency inaction is generally a matter in which courts are to defer to agency discretion, DHS’s affirmative directive not to enforce a legal provision is distinguishable from mere inaction:

While the Court recognizes (as discussed above) that the DHS possesses considerable discretion in carrying out its duties under the INA, the facts of this case do not implicate the concerns considered by Heckler such that this Court finds itself without the ability to review Defendants’ actions. First, the Court finds an important distinction in two terms that are commonly used interchangeably when discussing Heckler’s presumption of unreviewability: “non-enforcement” and “inaction.” While agency “non-enforcement” might imply “inaction” in most circumstances, the Court finds that, in this case, to the extent that the DAPA Directive can be characterized as “non-enforcement,” it is actually affirmative action rather than inaction.

The Supreme Court’s concern that courts lack meaningful focus for judicial review when presented with agency inaction (see Heckler, 470 U.S. at 832) is thus not present in this situation. Instead of merely refusing to enforce the INA’s removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel.63 Absent DAPA, these individuals would not receive these benefits.64 The DHS has not instructed its officers to merely refrain from arresting, ordering the removal of, or prosecuting unlawfully-present aliens. Indeed, by the very terms of DAPA, that is what the DHS has been doing for these recipients for the last five years65—whether that was because the DHS could not track down the millions of individuals they now deem eligible for deferred action, or because they were prioritizing removals according to limited resources, applying humanitarian considerations, or just not removing these individuals for “administrative convenience.”66 Had the States complained only of the DHS’ mere failure to (or decision not to) prosecute and/or remove such individuals in these preceding years, any conclusion drawn in that situation would have been based on the inaction of the agency in its refusal to enforce. In such a case, the Court may have been without any “focus for judicial review.” See Heckler, 470 U.S. at 832.

Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits. Non-enforcement is just that—not enforcing the law.67 Non-enforcement does not entail refusing to remove these individuals as required by the law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations. This Court seriously doubts that the Supreme Court, in holding non-enforcement decisions to be presumptively unreviewable, anticipated that such “non-enforcement” decisions would include the affirmative act of bestowing multiple, otherwise unobtainable benefits upon an individual. Not only does this proposition run afoul of traditional exercises of prosecutorial discretion that generally receive judicial deference, but it also flies in the face of the very concerns that informed the Heckler Court’s holding. This Court finds the DHS Directive distinguishable from the non-enforcement decisions to which Heckler referred, and thus concludes that Heckler’s presumption of unreviewability is inapplicable in this case.

Next, Judge Hanen determined that the enabling legislation left discretion only as to the means of deportation and not as to whether the specified persons were to be deported:

The DHS’ job is to enforce the laws Congress passes and the President signs (or at least does not veto). It has broad discretion to utilize when it is enforcing a law. Nevertheless, no statute gives the DHS the discretion it is trying to exercise here.77 Thus, Defendants are without express authority to do so by law, especially since by Congressional Act, the DAPA recipients are illegally present in this country. As stated before, most, if not all, fall into one of two categories. They either illegally entered the country, or they entered legally and then overstayed their permission to stay. Under current law, regardless of the genesis of their illegality, the Government is charged with the duty of removing them. Subsection 1225(b)(1)(A) states unequivocally that the DHS “shall order the alien removed from the United States without further hearing or review….” Section 1227, the corresponding section, orders the same for aliens who entered legally, but who have violated their status. While several generations of statutes have amended both the categorization and in some aspects the terminology, one thing has remained constant: the duty of the Federal Government is to effectuate the removal of illegal aliens. The Supreme Court most recently affirmed this duty in Arizona v. United States: “ICE officers are responsible for the identification, apprehension, and removal of illegal aliens.” 132 S.Ct. at 2500.

Notably, the applicable statutes use the imperative term “shall,” not the permissive term “may.”78 There are those who insist that such language imposes an absolute duty to initiate removal and no discretion is permitted.79 Others take the opposition position, interpreting “shall” to mean “may.”80 This Court finds both positions to be wanting. “Shall” indicates a congressional mandate that does not confer discretion—i.e., one which should be complied with to the extent possible and to the extent one’s resources allow.81 It does not divest the Executive Branch of its inherent discretion to formulate the best means of achieving the objective, but it does deprive the Executive Branch of its ability to directly and substantially contravene statutory commands. Congress’ use of the term “may,” on the other hand, indicates a Congressional grant of discretion to the Executive to either accept or not accept the goal. Texas v. United States, (S.D. Tex. Feb. 16, 2015)

Despite the broadness of Judge Hanen’s opinion, his ultimate ruling was fairly narrow. He held that DHS should have (at the very least) followed a notice-and-comment procedure before making such a major change in its activities. If the notice-and-comment requirement is unfamiliar to you, see my post on agency rulemaking here. For a general discussion of the President’s power over administrative agencies, see my post here.

Of course, it is in fierce debates over public policy that these vital questions about separation of powers and procedural rules arise. Like many high profile court cases, the ultimate determination of questions about the role of executive agencies in our tripartite democratic system has consequences which extend beyond the settlement of the dispute between the conflicting parties or the context-specific public policy implications, as important as those matters might be in their own right. In the meantime, students of both immigration policy and the role of administrative agencies can learn a lot from the litigation as it unfolds. The Obama administration has vowed to appeal this decision. The President himself had this to say in response to the ruling:

Much recent attention has focused on a single court decision in Texas in response to a partisan lawsuit that delays some of these lawful, common-sense steps…I disagree with this judge’s ruling. Just yesterday, the Department of Justice asked the court for an emergency stay of this misguided decision, and it has already filed a notice of appeal. My administration will fight this ruling with every tool at our disposal, and I have full confidence that these actions will ultimately be upheld.

It’s time to end the era of manufactured crises, put politics aside and focus on doing what’s best for America. So while I will fight any attempt to turn back the progress we’ve made or break up families across our country, I welcome the opportunity to work with anyone who wants to build on the improvements we’ve put in place, and fix our broken immigration system once and for all.

Throughout our history, America’s tradition as a nation of laws and a nation of immigrants has continually shaped us for the better. If we renew that tradition, and build upon it for future generations, there’s no limit to what we can achieve.

Stay tuned…

A.K.

 

Review: Constitutionalism in Asia in the Early Twenty-first Century

Chen Image

CONSTITUTIONALISM IN ASIA IN THE EARLY TWENTY-FIRST CENTURY is a 400-plus page edited volume of essays exploring constitutional developments in sixteen Asian jurisdictions, including the subnational jurisdiction of Hong Kong and disputed Taiwan. The volume is organized in seventeen chapters—Chapters One, Two, and Seventeen address overall trends in Asian constitutional development. Chapters Three through Sixteen each focus on constitutional developments of the last decade in individual countries—with the exception of Chapter Ten which combines Burma, Cambodia, and Thailand.

While each chapter is distinct in its object of study and approach, the question which binds them together is straightforward and expressed by the editor, Albert H.Y. Chen, early in the first chapter. Essentially, constitutions have been adopted throughout Asia, but to what extent have these forms been truly put into practice? “Although constitutionalism as a theory and practice of government and law first originated in Western Europe and North America,” Chen writes, “there is by now considerable evidence of its positive reception in and successful ‘transplant’ to a significant number of Asian countries” (3). As one might expect, however, “The experience of different Asian countries in this regard provides useful and fascinating case studies of what Grimm calls the ‘achievement of constitutionalism’” (3). Each case study in this volume is indeed fascinating and worth reading altogether or as stand-alone essays.

In Chapter One, Chen observes that written constitutions are ubiquitous in today’s global political landscape: “The possession of a constitution seems to have been accepted by all as a hallmark of the legitimacy of the nation-state and its regime for both domestic and external purposes” (5). This fact alone suggests the reason why constitutions are more common than actual constitutionalism (the latter being loosely defined as the instantiation of limited government and the rule of law). Hence, Chen develops a threefold conceptual framework for assessing the degree to which constitutionalism has truly been achieved in a given political context:

  • Genuine Constitutionalism (GC): constitutionalism in its classical sense, i.e., constraining arbitrary governmental power, etc.
  • Communist/Socialist Constitutionalism (CC): “Leninist-Stalinist forms of rule by a communist party-state legitimized by a written constitution” (14).
  • Hybrid Constitutionalism (HC): “practiced in states in which both elements of liberal constitutionalism and authoritarian elements…exist” (Id.).

Chen places the countries featured in the volume into one of the three types. Japan, India, South Korea, Taiwan, and Indonesia are each classic cases of successful transitions to GC—Japan and India in the Post-WWII period, Taiwan and South Korea since the 1980’s, and Indonesia since the turn of the century. Thailand, Cambodia, and Nepal are each classified as HC—Thailand and Nepal due to recent civil conflicts involving the transfer of power, Cambodia due to “Hun Sen’s strongman rule” (31). North Korea, China, and Vietnam are classified as CC, although the former may be distinguished from the latter two because “the legal reforms and constitutional discourses in contemporary China and Vietnam demonstrate that their constitutions are by no means merely a ‘fake constitution’” (30). The implication, fully elaborated by Dae-Kyu Yoon in Chapter 5, is that North Korea’s constitution “exists essentially as a political manifesto laden with programmatic provisions rather than as a document written to ensure justice for the people” (103).

More interesting is the group of countries which fall into Chen’s classificatory cracks. Malaysia and Singapore, both of which are listed as “Partly Free” in Freedom House’s 2014 report, Chen classifies as “HC or close to GC, depending on how much weight we attach to civil liberties” (31). The Philippines, which Freedom House also lists as “Partly Free” (though ranking ahead of Malaysia and Singapore), Chen classifies as “HC approximating GC” (31). Myanmar—or Burma—is listed as “Not Free” by Freedom House, but is, according to Chen, “now moving in the direction of HC” (31).

Most interesting, Chen omits Hong Kong altogether from his classificatory scheme. This omission might be explained by the fact of Hong Kong’s status as a subnational Special Administrative Region (SAR) of China. On the other hand, subsuming Hong Kong within China seems odd in the context of Chen’s scheme considering Hong Kong’s distinctly Western political culture, the operation of its constitution-like ‘Basic Law’, and the independent treatment it receives in Chapter Eight of this volume. Indeed, as Johannes Chan, the author of Chapter Eight, notes, this ‘one country’ truly does operate as ‘two systems’:

On one side of the border there is a well-established common-law system that rests upon individualism and the doctrine of separation of powers. On the other side of the border there is an emerging legal system that is partly based on socialist ideology, partly based on the civil law system,…subscribes to the supremacy of the soviet and the people’s democratic dictatorship, and operates largely on a central planning system (170).

However, Hong Kong’s recent struggle with the mainland to achieve the election of SAR leadership by universal suffrage reveals that the ‘two systems’ paradigm is not without limits. Chan concedes that “while prepared to tolerate a high degree of autonomy in internal affairs, Beijing, and not Hong Kong, is in control when it comes to democratic development of the political process of Hong Kong” (177), and “to the central government, ‘one country, two systems’ means nothing more than ‘one country, two economic systems’” (192). Hence, where exactly Hong Kong should fit in Chen’s scheme is highly debatable.

Chapter Two, by Tom Ginsburg, addresses the question “Is there a distinctive East Asian constitutionalism?” (32) In so doing, Ginsburg weighs in on the “’Asian Values’ debate of the 1990s” (id.). He uses comparative textual analysis to test whether “Asia [is] fundamentally different with regard to ideas about human rights” (32-33) and finds that “the formal patterns of constitutions in Asia do not reflect the Asian Values argument, at least not in its simplest version” (51). However, as other scholars have observed (See, e.g., North, Summerhill, and Weingast 1999), many constitutional documents have similar key words or boilerplate language which conveys little about the document’s actual operation, a fact demonstrated by the dramatically different experiences of countries studied in this volume despite the coincidence of similar formal constitutional provisions. Key word searches through constitutional texts tell us little. Thus, Chapter Two is interesting but perhaps not essential to the volume.

Overall, this collection of essays on patterns of constitutional development in Asia is a welcome contribution to the comparative constitutional law literature. Its focus on the last decade of Asian constitutional development makes it most helpful as a well-researched and up-to-date guide to current political events unfolding in each of these countries, most dramatically in Hong Kong, North Korea, and Indonesia. This volume, taken as a whole, is a succinct survey of the diverse countries across East, Southeast, and South Asia for busy scholars who sometimes miss the larger political forest for the trees. This volume is also well-organized and well-suited to be assigned to graduate students and advanced undergraduates as select essays in the context of a comparative politics or comparative law course.

A.K.

Free Bitcoin at MIT

MIT just recently gave each undergrad $100 in Bitcoin for completing a survey. The MIT Bitcoin Project, the group of students heading this initiative, plans to make MIT the global hub for business and research on Bitcoin. This marketing technique also encourages students to seek entrepreneurial activity and  some scholars believe it will have network effects. One post by William Luther, explains these network effects:

“individuals are concerned not only with the characteristics of bitcoin—how its supply is governed, ease of access, security of transactions, etc.—but also who else is accepting bitcoin. The size and composition of the bitcoin network matters. If few others are accepting bitcoin—or, more to the point, if few of one’s trading partners are accepting bitcoin—there’s little reason to accept it.”

 

Clearly there is merit to this reason for giving out “free” Bitcoin. Already, the bookshop at MIT accepts Bitcoin. Other apps are springing up that allow users to pay with Bitcoin as well. What is really interesting is that the MIT Bitcoin Club has a well-designed site encouraging the use of Bitcoin and events to promote it to the public. Although the ease and use-ability of the site is unsurprising based on the caliber of students that attend the university, it is interesting that a student club is going so far as to encourage usage of the Bitcoin by distributing it to students.

Politics and Perceptions

The “reality” of a political/economic system is never known to anyone, but human beings do construct elaborate beliefs about the nature of that “reality” — beliefs that are both a positive model of the way the system works and a normative model of how it should work. The belief system may be broadly held within a society; alternatively, widely disparate beliefs may be held…

The resultant path dependence typically makes change incremental. But change is continually occurring (although the rate will depend on the degree of competition among organizations and their entrepreneurs), resulting in alterations of the institutional matrix, revisions of perceptions of reality, and therefore new efforts of entrepreneurs to improve their position in a never-ending process of change. Change can also result from non-human-induced changes in the environment, such as natural disasters; but overwhelmingly it is humans themselves who incrementally alter the human landscape.

-North, Summerhill, & Weingast’s “Order Disorder, and Economic Change” 1999, 7.

 

A.K.

Ferguson and Political Symbolism

I am a black man. I am also a human being. I like to think of myself as a reasonable and humane human being. As such, I was deeply disturbed when I first learned of an incident involving the death of an unarmed teenager at the hands of a police officer. I was yet further disturbed upon hearing initial reports that the officer acted without apparent justification. Stories poured forth about a young black man who was a gentle giant, who could not possibly have done anything to warrant or provoke such an action from law enforcement. For the white officer, initially nameless, the implication was that this man was either a racist scoundrel with an itching trigger-finger or, at the very least, callously indifferent to the consequences of his unnecessary use of deadly force. The calls came immediately and insistently “What is the name of this monster who would so heartlessly snuff out the life of the gentle giant?” Darren Wilson. Darren Wilson was not just white, but a blank canvas against which a community could paint its historical grievances. Darren Wilson became a symbol, and Michael Brown, the gentle giant, was also a symbol.

I am not going to debate the facts or even give my interpretation of them. That would be easy. The point I want to make is broader. It is this: once the events of August 9, 2014 in Ferguson, MO took on transcendent significance, once the two chief actors became symbols—mere images to be invoked—the facts became irrelevant. The particulars became mere particulars—they could be shaped to suit the larger narrative into which they had been taken up. When a white cop shoots a black man in a black town with a white police force, the facts no longer matter—whatever truly happened that day in Ferguson is truly epiphenomenal. The players may change, there are countless insignificant variations of time and place, but the tragedy goes on…