Within the Constitutional framework. To this end, this Essay - TopicsExpress



          

Within the Constitutional framework. To this end, this Essay analyzes the proper role of the federal courts, and the Supreme Court in particular, in remedying Constitutional violations LEGAL STUDIES RESEARCH PAPER SERIES PAPER NO. 13-10-01 October 2013 The Article III Fiscal Power by Adam H. Rosenzweig Professor of Law Electronic copy available at: ssrn/abstract=2334424 SSRN draft 29 Const. Comm. __ (forthcoming 2014) The Article III Fiscal Power What should happen when Congress and the President find themselves in a fiscal policy showdown resulting in a Constitutional violation? This question has risen to the fore in light of the recent political showdowns over the so-called “debt ceiling.” But the question is one that reaches far beyond the debt ceiling debate. Rather, it implicates the broader question of the proper role of the coordinate branches to make the government work within the Constitutional framework. To this end, this Essay analyzes the proper role of the federal courts, and the Supreme Court in particular, in remedying Constitutional violations arising from fiscal policy showdowns between Congress and the President. In such circumstances, this Essay demonstrates the courts can, and should, have an independent fiscal power under Article III of the Constitution to remedy the Constitutional violation. While this may seem radical at first glance, it is merely an extension of well-established powers of the federal courts to remedy Constitutional violations in other settings. Looked at from this perspective, the Article III fiscal power makes sense, both from a doctrinal and theoretical point of view. Through a robust, but limited and well demarcated, Article III fiscal power, the country can avoid continuing Constitutional Crises arising over the use of the fiscal power, whether it be in the context of the debt ceiling, the tax laws, or otherwise. Only in this manner can the full extent of the Constitution’s fiscal power be realized. Electronic copy available at: ssrn/abstract=2334424 2 The Article III Fiscal Power [1-Oct-13 Table of Contents I. Missouri v. Jenkins: Recognizing the Judicial Power to Tax .......................... 5 II. The Judicial Fiscal Power: Extending Jenkins to the Federal Co- Ordinate Branches ............................................................................................ 9 A. The Constitutional Violation .................................................................... 10 1. Article II ............................................................................................ 10 2. Section 4 of the Fourteenth Amendment ........................................... 12 B. Federal Courts Have Power to Resolve .................................................... 15 1. Standing ............................................................................................. 15 2. Remedy .............................................................................................. 19 3. The Political Question Doctrine ........................................................ 25 C. Attempt to Undermine the Constitutional Remedy .................................. 29 D. Taxing and Borrowing as an Inherent Remedial Power ........................... 34 III. Conclusion ....................................................................................................... 39 Imagine that the United States faces an unprecedented Constitutional crisis. Earlier in the year, Congress authorized the President to spend $3 trillion, comprised of $1 trillion in defense spending to fund a war duly authorized by Congress, another $1 trillion of interest on debt incurred by the United States also duly authorized by Congress, and another $1 trillion of Medicare expenses (which are mandatory under existing law duly enacted by a previous Congress). As the end of the year approaches, the President realizes that the United States will not have enough money to pay all these bills, leading to a choice: should the President (1) decline to prosecute a duly authorized military conflict, (2) fail to pay interest on duly authorized and issued national debt, (3) fail to make duly authorized and mandatory Medicare payments, or (4) borrow an additional $1 trillion to cover the shortfall? The President chooses option (4), and thus requests the authority from Congress to issue $1 trillion of debt. But this time Congress refuses, denying the President the power to issue the debt. What options remain? This hypothetical represents a simplified version of the so-called “debt ceiling” standoff between Congress and President Obama in 2011. The resolution at the time was a compromise (of sorts) to raise the statutory debt limit in exchange for certain promises to cut spending in the future. 1-Oct-13] The Article III Fiscal Power 3 But what if Congress had stood its ground? Either the President could violate the Constitutional obligation to faithfully execute the laws by failing to spend duly authorized funds or violate the separation of powers by issuing debt without Congressional authorization. A real Constitutional crisis seems to emerge,1 with no way out. Or is there? As most American schoolchildren learn in civics class, the United States government is comprised of three branches: the legislative, the executive, and the judicial. So if the legislative and executive cannot – or will not – comply with their Constitutional obligations, what about the judiciary? Could a federal court itself, under its own authority, satisfy the Constitution if the other branches won’t? Typically, when the Executive violates the Constitution the solution is for the Supreme Court to order the Executive to fulfill its Constitutional obligations. But in the hypothetical above this would not be sufficient; even if it wanted to, the Supreme Court couldn’t order the President to spend money the country didn’t have nor could it order Congress to pass a new statute to authorize debt or withdraw appropriations.2 The thesis of this Essay is that, under certain limited circumstances, the federal courts in general, and the Supreme Court in particular, can under their own, independent, power under Article III of the Constitution, impose taxes and borrow money, wholly separate from the powers of Congress to do so under Article I or any potential powers of the President to do so under Article II.3 While at first glance this may seem like an odd, or even outrageous, contention, in fact the Supreme Court has recognized the inherent power of federal courts to do something strikingly similar over twenty years ago in the case of Missouri v. Jenkins.4 In that case, the school district of Kansas 1 See, e.g., Sanford Levinson and Jack M. Balkin, Constitutional Crises, 157 U. Pa. L. Rev. 707 (2009) (referring to this as a Type II Constitutional Crisis). 2 See, e.g., John C. Jr. Jeffries, The Right-Remedy Gap in Constitutional Law, 109 Yale L.J. 87 (1999). 3 This is distinct from the claim that the courts take fiscal matters into account in making their decisions. See Nancy Staudt, THE JUDICIAL POWER OF THE PURSE: HOW COURTS FUND NATIONAL DEFENSE IN TIMES OF CRISIS (2011). 4 495 U.S. 33 (1990). Due to the procedural history of the case, this opinion is often referred to as Jenkins II. Jenkins I involved a review of attorney’s fees, Missouri v. Jenkins, 491 U.S. 274 (1989), and Jenkins III involved the review of desegregation orders across districts, Missouri v. Jenkins, 515 U.S. 70 (1995). For simplicity, this Essay will refer to Jenkins II as Jenkins as it only focuses on the question of the judicial taxation decree at issue in that case. 4 The Article III Fiscal Power [1-Oct-13 City, Missouri was ordered to undertake certain spending to comply with Brown v. Board of Education (“Brown I”).5 The school district passed a new property tax to do so, but the state of Missouri passed a law withdrawing the taxing power from the school district, making the tax increase null and void. The district court found the state’s actions unconstitutional, but was forced to directly impose taxes and issue bonds to raise the money necessary to comply. In other words, the court itself ordered the imposition and collection of a tax that was not authorized by state law. On appeal, as discussed in more detail below, the Supreme Court effectively held that such an order was within the inherent power of the district court to remedy Constitutional violations.6 Jenkins understandably caused quite an uproar at the time, although much of the commentary focused on the aspect of the case related to the power of federal courts over states and localities,7 while others on the more limited issue of enforcement of school desegregation.8 But on the face of the opinion, neither is necessarily correct. Rather, in Jenkins the Supreme Court held that when a law-making body authorizes spending, then refuses to allocate the resources to meet this spending and, crucially, the failure to do so would violate the Constitution, the courts have the independent power to raise the money directly to remedy the Constitutional violation, irrespective of legislative authority to do so.9 This fact pattern seems almost identical to the hypothetical at the beginning of this Essay. Congress authorizes spending by statute, the President – Constitutionally obligated to execute that law – tries to undertake the spending, but then Congress effectively withdraws the ability from the President to do so. If failure to spend the money would violate the 5 347 U.S. 483 (1954) [hereinafter Brown I]. 6 As discussed in more detail below, the Supreme Court held that the district court should have given the school district an opportunity to enact its own tax before doing so itself under principles of comity. See generally D. Bruce LaPierre, Enforcement of Judgments Against State and Local Governments: Judicial Control Over the Power to Tax, 61 Geo. Wash. L. Rev. 299 (1992). 7 See LaPierre supra note 6 8 See, e.g., The Honorable David S. Tatel, Judicial Methodology, Southern School Desegregation, and the Rule of Law, 79 N.Y.U. L. Rev. 1071 (2004); Jose Felipe Anderson, Perspectives on Missouri v. Jenkins: Abandoning the Unfinished Business of Public School Desegregation “With All Deliberate Speed”, 39 How. L.J. 693 (1996). 9 This is in contrast to the ruling in Jenkins III which held that specifying the type and location of schools across districts was inappropriate. 515 U.S. at [ ]. 1-Oct-13] The Article III Fiscal Power 5 Constitution,10 Jenkins would seem to stand for the proposition that the Court could order the President to raise and spend the money. Taken to an even further extreme, if such an order was insufficient to remedy the Constitutional violation, the Court could itself raise the money, either through taxing or borrowing, to do so. Not only would recognition of an Article III fiscal power fundamentally alter any future debates over taxing and spending, it could potentially offer a way out of the policy and political stalemate facing the country. After all, if both Congress and the President knew that doing nothing would lead to five justices of the Supreme Court choosing how to fund the government, the odds of a stalemate would reduce dramatically. Perhaps the recognition of the existence of such a power could itself force the government out of its rut and return a real balance of power to the coordinate branches of government. To this end, Part I of this Essay will summarize and describe the facts and holding of Missouri v. Jenkins, demonstrating the already recognized Article III power to tax. Part II will then describe why and how the logic and reasoning of Jenkins can and should apply with equal, if not stronger, force to the federal government as opposed to state legislatures. I. MISSOURI V. JENKINS: RECOGNIZING THE JUDICIAL POWER TO TAX Prior to the landmark decision of Brown I, the schools of the State of Missouri (“Missouri”) were legally segregated by race.11 The decision in Brown effectively struck down the de jure segregation of schools but, as with many school districts across the country, this did not mean the end to de facto school segregation. In response, the Supreme Court ordered, in Brown II,12 that the district courts enforce the mandate of Brown I by using their broad equitable powers to undo the de facto vestiges of de jure segregation in schools. In 1977, certain parents and students sued the Missouri and the Kansas City Missouri School District (“KCMSD”) for failing to comply with the mandates of Brown and undertake the efforts necessary to ameliorate the effects of the previous de jure segregation.13 Pursuant to 10 See, e.g., Perry v. United States, 294 U.S. 330 (1935); see generally Gerard N. Magliocca, The Gold Clause Cases and Constitutional Necessity, 64 Fla. L. Rev. 1243 (2012) 11 See LaPierre supra note 6 12 Brown v. Board of Educ., 349 U.S. 294 (1955) [hereinafter Brown II] 13 See LaPierre supra note 6 6 The Article III Fiscal Power [1-Oct-13 Brown II, in 1984 the district court agreed and ordered KCMSD to undertake a number of efforts to remediate the existing de fact segregation in the district, including remedial education programs in underserved schools and capital improvements in facilities.14 The problem faced by KCMSD was that it did not have enough money to comply with the district court’s order. Of course, this is a problem that is conceptually easy to remedy – KCMSD could simply raise taxes. The problem with this remedy is that Missouri, in the interim, had adopted rules effectively prohibiting KCMSD from doing so.15 The intention was clear. Missouri, having already lost one school desegregation case in Saint Louis and clearly sensing that it would lose in Kansas City, acted to take away the taxing power from KCMSD so that, even if it lost, it would not be able to comply with any district court desegregation orders requiring new funding.16 This put the district court in a difficult position. The Supreme Court had clearly mandated that the court use its broad equitable powers to enforce Brown, and the court had found that KCMSD was not in compliance. The problem was that the court could not order KCMSD to impose new taxes because KCMSD was prohibited by state law from doing so. The solution adopted by the district court, relying in part on the Saint Louis case, was to strike down the state law limiting the KCMSD taxing power as a violation of Brown.17 In the Saint Louis case, this ruling alone was sufficient to remedy the problem because the Saint Louis school district had already passed an increase to its taxes; the tax increase became effective as soon as the state prohibition had been found unconstitutional. Thus, striking down the state cap in Saint Louis had the effect of raising sufficient tax revenue for the Saint Louis school district to comply with the court’s order. The difficulty in the KCMSD situation was that the state cap had been put in place before the KCMSD tax increase had been approved. Thus, merely striking down the cap was not sufficient. The district court once again found itself in a bind. This time, however, the court had no precedent upon which to draw. Instead, the court 14 Jenkins v. Missouri, 672 F.Supp. 400 (W.D.Mo. 1987). 15 See LaPierre supra note 6 16 See id. See also Kevin Little, Missouri v. Jenkins: Exploring the Judicial Limits of the Supremacy Clause, 8 Harv. Blackletter J. 137 (1991) 17 Jenkins v. Missouri, 672 F.Supp. 400 (W.D.Mo. 1987). 1-Oct-13] The Article III Fiscal Power 7 fashioned its own remedy, taking up the call in Brown II to use its equitable powers as necessary. The district court ordered KCMSD to adopt a new property tax and, in the interim, directly ordered a new income and property tax be imposed under its own inherent power; in addition, the court ordered that $150 million of new bonds be issued, all in direct contravention to the Missouri Constitution.18 As has been widely noted, states and localities are particularly sensitive to federal courts telling them how to tax their own citizens.19 But the order in the KCMSD case went even beyond that. Missouri was concerned that if the order in KCMSD was upheld, federal courts would be able to impose their own taxes directly on the citizens of states without the approval, or even the input, of the state governments themselves. On this basis, Missouri appealed to the Eight Circuit, claiming that the order in KCMSD exceeded the district court’s inherent authority. The Eighth Circuit upheld the district court order in large part.20 The primary issues on which it did not agree with the district court were: (1) the Circuit court struck down the income tax surcharge adopted by the district court and (2) the Circuit court held that KCMSD should be permitted as an initial matter to set the rate of property tax to further federal/state comity.21 Under the doctrine of federal/state comity, the federal government should avoid intruding into matters traditionally within the jurisdiction of the states, even if there is a legitimate federal interest, to avoid potentially undermining the state sovereignty implicit in a federal system.22 Thus, the Eight Circuit found that the district court, in directly setting the property tax rate, had violated comity by overly intruding into state and local matters, regardless if the court had the power to do so. On appeal to the Supreme Court, the majority of Justices substantially upheld the Eighth Circuit, agreeing that the district court should not have ordered the income tax surcharge and also agreeing that the district court should not have directly imposed the property tax on KCMSD 18 Jenkins v. Missouri, 672 F.Supp. 400 (W.D.Mo. 1987). 19 See LaPierre supra note 6; see also Randall T. Shepard, In a Federal Case, is the State Constitution Something Important or Just Another Piece of Paper?, 46 Wm. & Mary L. Rev. 1437 (2005). 20 Jenkins v. Missouri, 855 F.2d 1295 (8th Cir. 1988). 21 Id. 22 See, e.g., Randall T. Shepard, In a Federal Case, is the State Constitution Something Important or Just Another Piece of Paper?, 46 Wm. & Mary L. Rev. 1437 (2005) 8 The Article III Fiscal Power [1-Oct-13 under the doctrine of comity.23 Importantly, however, the majority opinion agreed with the Eighth Circuit that ordering KCMSD to impose a property tax while permitting KCMSD to initially choose the rate, subject to the supervision of the district court, was within the power of the district court. Thus, the order that KCMSD implement a property tax increase and bond issuance was upheld.24 A concurring opinion, signed by four Justices, disagreed with the majority on this last point. In particular, the concurring opinion noted that, in effect, there was no difference between a court directly ordering a tax increase and a court ordering that a locality enact a tax increase.25 Either way, the court was ordering a tax under its own inherent authority. The Justices concurred in the judgment, however, because they found the tax issue to be outside the scope of the case on appeal.26 Importantly, however, the concurring opinion did agree with the majority opinion on one key issue: that the issue in the case ultimately came down to a question of federal/state comity. In other words, both the majority and the concurrence ruled that the district court should not have exercised its inherent powers in deference to the state sovereignty in state and local taxation, not that the district court did not have the power to do so. Thus, in effect, the Court unanimously agreed that federal courts could have the power to impose taxes or issue bonds under certain circumstances, the only question in the Jenkins case being whether doing so had overly intruded into traditional areas of state and local sovereignty.27 This core holding of Jenkins has been underappreciated for over two decades. Rather than being an odd outlier limited to the unique facts of the post-Brown school desegregation cases, Jenkins represents the clear and unanimous recognition by the Supreme Court of a vibrant, robust Article III power to tax and spend as a means to remedy Constitutional violations under specific and particular circumstances. The next section will consider 23 Jenkins at [ ]. 24 Jenkins at [ ]. 25 Jenkins at [ ] (Kennedy, J., concurring) 26 Jenkins at [ ] (Kennedy, J., concurring) 27 See John Choon Yoo, Who Measures the Chancellor’s Foot? The Inherent Remedial Authority of the Federal Courts, 84 Cal. L. Rev. 1121, 1134 (1996) (“[Jenkins] did not invalidate the order on the grounds that it was inconsistent with Article III, the Tenth Amendment, or principles of federalism. Instead, the Court held that the district court had gone too far because, rather than impose the tax increase itself, it should have ordered the school district to do so instead.”) 1-Oct-13] The Article III Fiscal Power 9 these circumstances in more detail. II. THE JUDICIAL FISCAL POWER: EXTENDING JENKINS TO THE FEDERAL CO-ORDINATE BRANCHES Return to the hypothetical at the beginning of this Article. Congress has authorized spending but not the means to raise the money to undertake this spending. Clearly a fiscal crisis, and potentially a Constitutional crisis, has arisen. But what does Jenkins have to do with this? In fact, when looked at closely, Jenkins is directly on point. This can be seen more clearly by specifically delineating the holding in Jenkins and distinguishing it from the dicta. In so doing, a clear path to application to the federal co-ordinate branches emerges. The following represents the logical steps necessary to the holding of Jenkins: 1. a Constitutional violation has occurred; 2. federal courts have the power to order a remedy to the Constitutional violation; 3. another branch effectively undermines the ability of the federal courts to implement the remedy; 4. if so, the courts have the inherent power under Article III of the Constitution to impose the remedy directly. From this perspective, the holding in Jenkins makes perfect sense. In fact, every Justice considering Jenkins agreed to these logical steps. First, Missouri and KCMSD violated the Constitution by legally segregating the schools. Second, the Supreme Court recognized in Brown II that the federal courts have the power to remedy this violation through affirmative actions such as ordering busing and ordering facility upgrades. Third, Missouri attempted to undermine this power by revoking the ability of KCMSD to raise taxes as a means to comply with these orders. Fourth, the federal courts have the inherent power to strike down the undermining law as unconstitutional and to order the taxes be adopted to implement the remedy. There is no reason this analysis cannot be extrapolated to more current debates.28 With respect to the Constitutional questions, the bulk of 28 See James D. Ridgway, Equitable Power in the Time of Budget Austerity: The Problem of Judicial Remedies for Unconstitutional Delays in Claims Processing by Federal Agencies, 64 Admin. L. Rev. 57 (2012). 10 The Article III Fiscal Power [1-Oct-13 the literature considering the debt-ceiling showdowns has already focused on precisely these issues, and thus this Section can serve mostly as a review of that literature as a predicate to engaging in the broader judicial taxation point. First, a Constitutional violation has occurred. In this case, it is one of the following: (1) Congress prevented the President from faithfully executing the law under Article II, (2) Congress questioned the validity of the public debt under Section IV of the Fourteenth Amendment. Second, the Supreme Court has ruled that the federal courts have the power to remedy such Constitutional violations. Third, any remedy to be adopted by the federal courts would require either taxing or spending, each of which Congress has prohibited. Fourth, the federal courts must have the inherent power to force Congress to adopt some fiscal provision to prevent the Constitutional violation. The remainder of this Section will discuss each of these logical steps in order. A. The Constitutional Violation 1. Article II Section 3 of Article II of the Constitution provides that the President of the United States “shall take care that the laws be faithfully executed.”29 This has been interpreted to mean that the President is obligated to enforce the laws adopted by Congress.30 But what happens when the President cannot comply with all of the laws enacted by Congress at the same time? In such a situation, the President simply cannot comply with the Constitutional mandate to faithfully execute the law without violating another provision of the Constitution, specifically that only Congress has the power to impose taxes or authorize spending.31 More specifically, the President faces three duly enacted and valid federal laws: (1) mandated spending such as interest due on public debt, entitlement programs like Social Security and Medicare, and discretionary spending such as military and Health and Human Services (2) insufficient revenue raised from duly enacted taxes, and (3) a prohibition on issuing 29 U.S. Constitution, Art. II, Sec.3 30 See Parker Rider-Longmaid, Take Care That the Laws Be Faithfully Executed, 161 U. Pa. L. Rev. 291 (2012) 31 See Neil H. Buchanan and Michael C. Dorf, How to Choose the Least Unconstitutional Option: Lessons for the President (and Others) From the Debt Ceiling Standoff, 112 Colum. L. Rev. 1175 (2012). 1-Oct-13] The Article III Fiscal Power 11 new debt. Thus, the President faces only three choices: (1) fail to undertake duly authorized spending, (2) raise revenue not authorized by Congress, or (3) issue new debt in excess of the limit on public debt. All three are unconstitutional.32 Thus, Congress has duly enacted valid laws that, when taken together, force the President to violate the Constitutional obligation of faithfully execute the laws. This can be seen even more starkly through a simpler example. Assume Congress in 2004 authorized the federal government to pay for insulin for all American citizens with diabetes. They expect this will cost $100 million per year each year. Congress in 2010 authorizes $100 million, and no more, to pay for insulin under this program. It turns out, however, that significantly more people have diabetes in 2010 than in 2004 so it will actually cost $200 million. The President must either fail to comply with the 2004 law or violate the 2010 law. Or, if one prefers, in 2004 Congress authorizes the President to fight a war with Iraq and then adopts a law capping the amount to be spent on the war to one dollar. The idea is the same. Some may contend that this is not, in fact, a Constitutional violation. Rather, all that is required from the President is that the law be faithfully executed, not perfectly executed. Thus, the President could pay the bills as they come in and then stop paying the bills once the money runs out. Since this would be within the discretion of the Executive in how to manage the budget of the Federal government, there would be no Constitutional violation.33 This argument requires assuming that spending mandated by Federal law is permitted but not required and that the President has the unilateral authority not to spend money duly authorized by Congress. Unfortunately, the little law there is on this subject contradicts this argument. First, the Supreme Court has held that the President does not have, and cannot have (even with Congressional approval) the right to veto individual items of spending in a larger spending bill.34 Permitting the President to pick and 32 See Buchanan and Dorf supra note 31 (referring to this as the “trilemma”) 33 See, e.g., Kelleigh Irwin Fagan, Note, The Best Choice Out of Poor Options: What the Government Should Do (Or Not Do) if Congress Fails to Raise the Debt Ceiling, 46 Ind. L. Rev. 205, 233-238 (2013) 34 See Clinton v. City of New York, 524 U.S. 417 (1998). The dissent in Clinton noted that it might be possible for Congress to enact discretionary expenditures without running afoul of this doctrine. See Clinton, 524 US at __. Even if this was the law, which is not clear, it would not apply to mandatory spending such as Medicare or interest on national debt. 12 The Article III Fiscal Power [1-Oct-13 choose among approved items of spending effectively would grant the President a line-item veto, thus making it unconstitutional. So this does not solve the Constitutional problem. Second, Congress itself could order the President to prioritize certain spending over others without a statute.35 For example, the President could ask Congress which spending should be prioritized rather than make this decision unilaterally. Unfortunately this does not solve the problem either. The Supreme Court has held that Congress cannot direct the President through resolution how to execute the law, even if it does so pursuant to duly enacted legislation permitting it do so.36 If the President and Congress could agree as to which spending should be prioritized over other spending, they could jointly pass a new statute changing the prior spending statute, perhaps even retroactively. In such a situation, however, there would not be a problem in the first place. The problem only arises when Congress and the President disagree. In fact, in the context of the debt-ceiling, it is precisely because Congress and the President cannot agree that the conflict arises at all. Taken together, this means that neither the President alone nor Congress alone can resolve the Constitutional “trilemma” (i.e., three unconstitutional choices) facing the President.37 Thus, a violation of Section 3 of Article II of the Constitution. 2. Section 4 of the Fourteenth Amendment Section 4 of the Fourteenth Amendment provides that “[t]he validity of the public debt of the United States, authorized by law … shall not be questioned.” Thus, some have argued that the debt ceiling showdown itself violated Section 4.38 The argument goes something along the following: Congress duly authorized public debt, once it is so authorized Congress cannot do anything that threatens the debt being paid. Since Congress has not authorized enough revenue to pay the interest on the debt and all the other authorized 35 See The Full Faith and Credit Act, H.R. 807, 113th Cong (2013) available at gpo.gov/fdsys/pkg/BILLS-113hr807rh/pdf/BILLS-113hr807rh.pdf. 36 See Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). 37 See Buchanan and Dorf supra note 31. 38 See Jacob D. Charles, Note: The Debt Limit and the Constitution: How the Fourteenth Amendment Forbids Fiscal Obstructionism, 62 Duke L.J. 1227 (2013). 1-Oct-13] The Article III Fiscal Power 13 spending and has prohibited the President form further borrowing to do so. Taken together, Congress has questioned the validity of the debt by making default possible. This is not as radical an idea as it first may seem. In fact, the Supreme Court has held: Section 4 of the Fourteenth Amendment, declaring that The validity of the public debt of the United States, authorized by law, . . . shall not be questioned, is confirmatory of a fundamental principle, applying as well to bonds issued after, as to those issued before, the adoption of the Amendment, and the expression validity of the public debt embraces whatever concerns the integrity of the public obligations.39 Pursuant to this reasoning, the Court held that ordering non-payment or payment not pursuant to the terms of the debt was outside of the power of Congress. Thus, it seems clear that Congress cannot directly enact a statute calling for the default or disavowal of the public debt of the United States.40 The question then becomes whether Congress may indirectly do what it cannot do directly. In the debt-ceiling case, Congress clearly authorized public debt but did not authorize the means for the President to satisfy the public debt. Commentators have claimed that this itself would violate Section 4 and thus is unconstitutional.41 Others have countered that failure to authorize sufficient funds to both engage in statutory spending and service valid public debt does not violate Section 4 because the President can simply prioritize the public debt over other spending to avoid doing so. The argument on its face is appealing; Section 4 mandates servicing the public debt, the President has plenty of money to do so, and if the President runs out to satisfy other spending not covered by Section 4 that would not violate any specific Constitutional provision.42 There are two problems with such an argument, however. First, it runs into the same Article II problem as discussed above. If the President chooses to service the public debt at the expense of paying military 39 Perry, 294 U.S. at [ ]. 40 See also Fagan supra note 33 41 See Buchanan and Dorf supra note 31. 42 See Fagan supra note 33. 14 The Article III Fiscal Power [1-Oct-13 contractors (for example), the President has still failed to execute the laws of the land. Even if this could be overcome, for example by claiming that choosing the least unconstitutional option still complies with Article II,43 such an approach faces another potential issue: the impoundment problem. In 1972, President Nixon invoked the inherent power of the Presidency to impound, or refuse to spend, funds authorized by Congress on certain environmental programs. Earlier that year, President Nixon had vetoed the legislation authorizing such funds but Congress overrode the veto. The issue made its way to the Supreme Court, which held in Train v. City of New York44 that the President could not use impoundment to avoid the Constitutional override of his veto with respect to the authorized funds. In other words, the President cannot do indirectly what the President cannot do directly. It is possible that Train is limited to the situation where Congress overrides the veto of a President, such that absent an override the President retains the power to impound authorized funds. For example, President Jefferson claimed such a power over two hundred years ago.45 Alternatively it is possible that Train is limited to the situation where the President has the legally authorized funds available and simply chooses not to spend them. Either way, there is no doubt that the Supreme Court believes that the issue is one subject to judicial review, and any attempt by the President to impound funds necessary to satisfy Section 4 would itself simply end up in court.46 Further, in 1974 Congress enacted the Congressional Budget and Impoundment Control Act which forbade Presidents from impounding funds absent approval by Congress within 45 days.47 Presumably this would itself prevent the President from unilaterally choosing to service the public debt and default on other authorized spending without approval from 43 See Buchanan and Dorf supra note 31. 44 420 U.S. 35, 4446 (1975) 45 See Roy E. Brownell II, The Constitutional Status of the President’s Impoundment of National Security Funds, 12 Seton Hall Const. L.J. 1, 30-33 (2001) (“President Jefferson seems to have been the first President to have actually impounded funds in a manner inconsistent with the will of Congress. In 1801, in his first message to Congress, Jefferson announced that he was refusing to spend the money Congress had appropriated for the construction of several navy yards.”) 46 See Brownell supra note 46 47 Pub. L. No. 93-344, 88 Stat. 297 (codified as amended at 2 U.S.C. §§ 602-692) 1-Oct-13] The Article III Fiscal Power 15 Congress.48 But, of course, if Congress and the President could agree to prioritizing public debt over other spending Section 4 would not be an issue in the first place. Thus, any attempt to prioritize by the President would seem to violate the Impoundment Act. So it would seem the Impoundment Act also presents another insurmountable hurdle to using impoundment to resolve the Section 4 problem. Taken together, it appears Section 4 presents an alternative Constitutional violation sufficient to satisfy the first prong of Jenkins. B. Federal Courts Have Power to Resolve The second step of Jenkins requires an inquiry into whether the federal courts even have the power to resolve the Constitutional violation at hand. The Court has made clear that the inability of a governmental entity to afford to pay for a remedy is not a defense to the actual underlying Constitutional violation.49 Thus, the issue of whether the courts are able to provide a remedy cannot be limited to the question of whether Congress has sufficient resources to pay for any such ordered remedy. Rather, there are three steps necessary to such an analysis: (1) does any plaintiff have standing to bring the claim, (2) does the court have an available remedy within its powers, and (3) is the issue justiciable (or conversely, is the issue subject to the Political Question doctrine). As discussed in more detail below, the answer to all three is yes. 1. Standing The standing doctrine requires that a plaintiff with a real and identifiable harm bring a case before the federal courts. Standing is jurisdictional, absent standing the federal courts do not have the power to hear a case. The standing doctrine is tied to the Case or Controversy requirement of Article III, which prevents federal courts from issuing advisory opinions. At first glance, standing seems problematic for a Jenkins type claim. Unlike in Jenkins where there were clearly students being harmed (the students entitled to the additional spending under the court order who were not receiving it) the issue is not so clear in other cases.50 The Supreme 48 See also Buchanan and Dorf supra note 31 49 See Watson v. City of Memphis, 373 U.S. 526 (1963). 50 In actuality, KCMSD brought the initial lawsuit in Jenkins but eventually the courts restructured the suit so that it was between students and parents, as the plaintiffs, and KCMSD and Missouri, as the defendants. 16 The Article III Fiscal Power [1-Oct-13 Court has held that a taxpayer does not have standing to challenge a particular fiscal policy of the United States simply in their capacity as a taxpayer.51 Further, the Supreme Court has recently held that even plaintiffs suffering a specific harm do not have standing under the Establishment Clause to challenge the failure to tax.52 Thus, it also seems at first glance as if no taxpayer would have a specific claim sufficient to establish standing under these circumstances.53 The standing problem turns out not to be as troubling as it may initially appear, however. This harkens back, once again, to the so-called Gold Clause cases decided by the Supreme Court.54 As noted above, in the Gold Clause case Congress changed the type of currency with which the President could satisfy the public debts from gold-backed notes to nongold- backed notes.55 The Supreme Court held that this did in fact violate Section 4 of the Fourteenth Amendment, but that the remedy sought by the plaintiff (payment in gold-backed notes) was not available. Crucially, although not discussed, the Supreme Court must have determined that the plaintiff in that case – a bondholder – had standing to bring the challenge to the potential non-payment in violation of Section 4. This must be the case because standing is jurisdictional – the Supreme Court could not hear the case at all if the plaintiff did not have standing. But standing doctrine has developed considerably since the Gold Clause cases. How does this affect the finding that the plaintiffs in those cases must have had standing sufficient to bring the claims in the first place? It turns out, most likely not at all. Recent standing doctrine has focused on the presence of an actual harm and whether a particular plaintiff has suffered that particular harm. This was most starkly demonstrated in 51 See, e.g., Hein v. Freedom from Religion Foundation, 551 U.S. 587 (2007). 52 See Ariz. Christian Sch. Tuition Org. v. Winn (ACS), 131 S. Ct. 1436 (2011). See generally Linda Sugin, The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures, 78 Brook. L. Rev. 777 (2013). 53 See Petrella v. Brownback, 2011 WL 884455 (D. Kan 2011) (holding that taxpayers do not have standing to challenge a state cap on local jurisdiction taxing power solely to require the locality to hold an election on the tax question). 54 See Perry v. United States, 294 U.S. 330, 358 (1935); Nortz v. United States, 294 U.S. 317, 329-30 (1935); Norman v. Baltimore & Ohio R.R. Co., 294 U.S. 240, 316 (1935). 55 See Magliocca supra note 10 1-Oct-13] The Article III Fiscal Power 17 the recent case of Hollingsworth v. Perry.56 In that case, opponents of California’s Proposition 8, which defined marriage as only between a man and a woman under the California Constitution, brought suit challenging the constitutionality of the proposition in federal court. They did so by suing the governor and attorney general of the State of California. The district court ruled in favor of the plaintiffs and found Proposition 8 unconstitutional. The governor and attorney general declined to appeal the ruling. Instead, a third party group supporting the proposition brought the appeal. The Ninth Circuit heard the case, finding that the appellants had standing after certifying the question to the California Supreme Court, and upheld the decision of the district court.57 But on certiorari, the Supreme Court held that the third party group did not have proper standing to bring the appeal on behalf of the state when the governor and attorney general declined to do so. The Court in Hollingsworth held that being intensely interested in an issue is not the same as bearing an injury in fact sufficient for judicial redress.58 The Court made clear that the reason for this standing doctrine was not to ensure sufficient damages could be awarded or that adverse parties would bring out all the facts, but rather to ensure that courts act as judges and not as legislators.59 In doing so, it reiterated that the standing doctrine looks to the harm of the particular party before the court and the ability of the court to redress the harm, to wit: Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” §2. One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. This requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and 56 570 U.S. ___ (2013). 57 Perry v. Brown, 671 F. 3d 1052, 1070, 1071 (2012) 58 “For there to be such a case or controversy, it is not enough that the party invoking the power of the courthave a keen interest in the issue. That party must also have “standing,” which requires, among other things, that it have suffered a concrete and particularized injury.” Hollingsworth, 570 US at __. 59 Id. at __ (“This is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.”) (emphasis not included) 18 The Article III Fiscal Power [1-Oct-13 is likely to be redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560– 561 (1992). In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.” [Diamond v. Charles, 476 U. S. 54, 62 (1986)].60 Under this standard, bondholders would indeed face the risk of nonpayment by the government on government issued bonds and a judgment ordering payment would fully redress this injury. Since the core purpose of the standing doctrine is to ensure that the courts only hear cases in which they can clearly resolve an actual harm, it would seem that bondholders have standing to bring a claim that a statute violates Section 4 of the Fourteenth Amendment.61 Contrast this with interest groups that might want to issue more public debt to fund unemployment insurance benefits. In that case, while the interest group would clearly be interested, under the reasoning of Hollingsworth (which invokes the reasoning of a long line of standing precedent62), the interest group would not have standing for purposes of Article III because it is not the interest group that lost any particular benefits. That bondholders could have standing does not necessarily mean that bondholders would actually bring suit, however. Rather, it would seem investors who hold U.S. Treasury bonds as an investment could simply sell the bonds if they were concerned about repayment. This would lead to a drop in price, but more importantly the new purchasers would have priced this risk into the bond and thus presumably would have little incentive to bring a lawsuit either. But that too is also not the end of the story, since the largest holder of Treasury debt is not the public or foreign governments, but rather the Social Security Trust Fund. The problem is that the bulk of the debt held by 60 Hollingsworth, 570 US at ___. 61 See John McGuire, Comment, The Public Debt Clause and the Social Security Trust Funds: Enforcement Mechanism or Historical Peculiarity?, 7 Loy. J. Pub. Int. L 203 (2006). See also Fagan supra note 33. 62 Hollingsworth cites, among others, Lujan v. Defenders of Wildlife, 504 U. S. 555, 560– 561 (1992); Raines v. Byrd, 521 U. S. 811, 820 (1997); Allen v. Wright, 468 U. S. 737, 754 (1984); Massachusetts v. Mellon, 262 U. S. 447, 488 (1923). 1-Oct-13] The Article III Fiscal Power 19 the Social Security Trust Fund is not in fact federal Treasury bonds but rather a special type of debt available only to the Fund. With respect to this special debt, the Fund has a right to be paid by statute but the statute explicitly permits this obligation to be abrogated by Congress. Thus, even if the Trust Fund wanted to sue for payment under its special debt, doing so would not implicate the same types of Constitutional protections as a lawsuit brought by holders of the general public debt.63 In addition to the special Trust Fund debt certificates, however, the Fund also owns regular public debt, payment on which could potentially be threatened by a debtceiling standoff.64 There is no reason to believe that solely because the Fund holds both types of debt that its injury in fact and redress of the federal courts would be any less with respect to its ordinary Treasury debt than any other holder of Treasury debt. Thus, taken together, presumably the Trustees of the Fund could bring a Gold Clause case type of claim as plaintiff on the basis that failure to pay the bonds would violate their duty to maintain the solvency of the Fund.65 Under the modern standing doctrine, as reflected in Hollingsworth, this would resolve the standing issue.66 2. Remedy While the Gold Clause cases and the more recent line of cases provide an avenue for standing, at least for the Social Security Trust Fund, they present another obstacle: that of remedy. The Court held in the Gold Clause cases that the plaintiff had standing and that Congress had violated Section 4 of the Fourteenth Amendment, but that the Court had no remedy to provide to the plaintiff. This was because the Court could not order 63 See McGuire supra note 61 64 See Kenneth T. Cuccinelli, II, at. al., Judicial Compulsion and the Public Fisc – A Historical Overview, 35 Harv. J.L. & Pub. Poly 525 (2012) (distinguishing standing claims between those with only general claims on government benefits and government bondholders during periods of austerity). 65 See See Lior Jacob Strahilevitz, The Balanced Budget Amendment and Social Security: An Alternative Means of Judicial Enforcement, 22 Seton Hall Legis. J. 513, 523- 524 (1998) (analyzing standing of Social Security Fund trustees to enforce a hypothetical Balanced Budget Amendment). 66 There should also be no sovereign immunity concern under the Gold Clause cases and other precedent, as well as statutory considerations, as well. See Fagan supra note 33; McGuire supra note 61; Michael Abramowicz, Beyond Balanced Budgets, Fourteenth Amendment Style, 33 Tulsa L.J. 561, 606-608 (1998). 20 The Article III Fiscal Power [1-Oct-13 Congress to print gold-backed dollars to pay off the bond, and no other remedy would make the plaintiff whole. At first glance this seems prohibitive to finding a remedy in a Jenkins type case as between Congress and the President. Looked at more closely, however, the differences become apparent. In the Gold Clause cases the Court held that it could not order Congress to issue a specific type of currency; since only that specific type of currency would suffice to redress the harm there was not a remedy available to the plaintiffs. By contrast, in the debt-ceiling scenario cases the issue is not what type of currency to be paid in but rather how much currency is necessary to satisfy the Constitution. Thus, in situations where the question comes down to one of how much money rather than what type of money, the conclusion of the Gold Clause cases proves inapt. This distinction can be seen in the history of the Jenkins case itself. In Jenkins the district court ordered a property tax and an income tax to fund the necessary capital improvements.67 The Eighth Circuit affirmed the order with respect to the property tax but reversed on the income tax, on the theory that district courts cannot impose a tax unless there is no other alternative.68 This theory is based on the case of Lidell v. Missouri,69 an Eighth Circuit case which explicitly recognized the power of district courts to impose taxes directly when there are no less intrusive means of remedying the Constitutional violation. What to make of Lidell as applied in Jenkins? A brief review of the background leading up to Jenkins may prove helpful. First, the Supreme Court held in Griffin v. County School Board70 that district courts have the power to enjoin the payment of scholarships and grants if the effect was to violate Brown, a traditional negative remedy. Next, the Supreme Court held in Swann v. Charlotte-Mecklenberg Board of Education (Swann II)71 that district courts had the power to order specific actions to remedy a Constitutional violation if the defendant refused to do so. This was the introduction of the affirmative remedy preceding Jenkins. Following that, the Supreme Court held in Milliken v. Bradley72 that any remedies adopted 67 Jenkins v. Missouri, 672 F.Supp. 400 (W.D.Mo. 1987). 68 Jenkins v. Missouri, 855 F.2d 1295 (8th Cir. 1988). 69 731 F.2d 1294 (8th Cir. 1984) 70 377 U.S. 218 (1964) 71 402 U.S. 1, 6 (1971) 72 418 U.S. 717 (1974) 1-Oct-13] The Article III Fiscal Power 21 by the district court needed to be narrowly tailored to remedy the underlying Constitutional violation and was limited by the constraints of comity (in the case of state and local school districts). Meanwhile, in cases not related to school desegregation, the Supreme Court had been inconsistent as to what level of fiscal authority a federal court may have to remedy a Constitutional violation. For example, the Supreme Court has held in a string of cases that when a locality issues bonds a State may not subsequently pass a law prohibiting the locality from imposing taxes to repay the bonds.73 These cases stood primarily for the proposition that States could not undermine the validity of a debt issued by a locality by removing the locality’s taxing power under the Contracts Clause of the Constitution. Crucially, however, the Supreme Court assumed that the locality had the appropriate power to tax at the time the bonds were issued. Thus, the negative remedy of striking down the prohibition was sufficient to satisfy the debts. In a separate line of cases, however, the Supreme Court held that federal courts could not affirmatively grant the power to tax to localities for which the State had never granted that power in the first place.74 So Jenkins arose within the context of these disparate lines of cases. District courts clearly had the power to forbid discriminatory spending but did not have the power to order localities to impose taxes for which they never had the authority. The Court in Jenkins applied this line, holding that the district court had properly ordered the imposition of a property tax to fund the desegregation order – a power KCMSD had prior to the removal by Missouri – but inappropriately ordered the imposition of an income tax – a power that was unclear whether KCMSD had prior to the Missouri ban and which clearly had not been exercised by KCMSD in the past. Where does this leave the Court with regard to a remedy for a Constitutional violation undertaken by the coordinate federal branches? At a minimum, it is clear that the federal courts would have the power to strike down a debt ceiling statute if the statute itself violated the Constitution. Striking down the debt ceiling is different than authorizing new debt, however. In fact, technically the debt ceiling is an authorization to issue federal debt, up to a certain level, and not really a limitation or ceiling at 73 See, e.g., Louisiana ex rel Hubert v. Mayor of New Orleans, 215 US 170 (1909) (striking down statute preventing repayment of bonds), Graham v. Folsom, 200 US 248 (1906) (striking down statute revoking locality’s charter to prevent repayment of bonds). 74 See, e.g., Meriwether v. Garret, 102 US 472 (1880); United States v. County of Macon, 99 US 582 (1878). 22 The Article III Fiscal Power [1-Oct-13 all.75 Thus, as discussed in more detail below,76 merely striking down the debt ceiling statute would not by itself permit the President to issue new debt to satisfy Constitutionally mandated spending obligations. This leaves the federal courts looking to more affirmative remedies. For example, it is clear that the courts could order the President to undertake spending to avoid a Constitutional violation. Per Jenkins, therefore, it would seem that the courts should equally have the power to order such spending and to authorize a means to engage in the spending. In other words, the Court could order the President to issue debt or collect taxes sufficient to engage in spending necessary to avoid the Constitutional violation. Following the limitations in Jenkins, presumably this would mean ordering the issuance of new federal debt rather than ordering a new tax increase since issuing debt is the typical way the President undertakes spending not covered by tax revenue. Taken together, then, the Court has the power to order the President to issue new debt in excess of the debt ceiling to avoid a Constitutional violation. But what if the President does not want to do so or cannot do so in a timely manner? Would the remedies rejected by the Court in Jenkins now become available? The Court in Jenkins held that the federal courts have the power to order the imposition of taxes directly but that is should not have done so on the basis of comity. Comity is a doctrine that emerges from the federalist structure of the Constitution that federal courts must respect the sovereignty of the States within the purview of their jurisdiction.77 Based on the doctrine of comity, the Supreme Court held that directly imposing taxes would undermine the sovereignty of Missouri and thus was inappropriate.78 Since there was a lesser alternative remedy available that did not violate comity, this lesser remedy was required by the Court.79 But a comity doctrine meant to respect the sovereignty of the states does not, and cannot, apply to the federal government. So how should the ruling in Jenkins be interpreted in light of this? One possible reading would 75 But see Buchanan and Dorf supra note 31. 76 See infra footnotes 111-117 and accompanying text. 77 See, e.g., James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 Stan. L. Rev. 1049 (1994) 78 See Jenkins supra note 4. 79 But see Douglas J. Brocker, Note, Taxation Without Representation: The Judicial Usurpation of the Power to Tax in Missouri v. Jenkins, 69 N.C. L. Rev. 741 (1990) 1-Oct-13] The Article III Fiscal Power 23 be that the Court held that direct taxing power is outside of the scope of the power of the federal courts under Article III. While this may have intuitive appeal, the logic of Jenkins does not seem to support it. Article III is jurisdictional. If something is outside the scope of Article III, the courts cannot engage in that activity regardless of any other limitations on the power of the courts. In other words, the Supreme Court would not have needed to resort to comity – a non-jurisdictional rule – unless the courts theoretically had jurisdiction over the case, and thus implicitly the power to impose taxes directly under Article III, in the first place.80 Consequently, rather than reading Jenkins as a narrowing of the inherent power of the federal courts, Jenkins recognized a vast inherent power of the courts, albeit subject to other limiting doctrines such as comity. Taking this as true, could any other doctrine apply to limit the ability of the federal courts to impose taxes or issue federal debt directly? The most obvious one on its face is the doctrine of separation of powers. Under the doctrine of separation of powers, a power delegated to one branch of the federal government cannot be exercised by another branch of the federal government. The policy behind this is to prevent any one branch from obtaining the ability to act unilaterally so as to minimize the potential abuse of power of the government. For example, as discussed above, the Supreme Court has held that the so-called Line-Item Veto was unconstitutional under the separation of powers doctrine.81 In that case, Congress had passed a law granting the power to the President to strike down specific items of spending in an appropriation bill while signing the larger bill itself. This would permit Congress to pass large appropriations bills with so-called “pork barrel” or “log rolling” items to garner the votes necessary to pass, but the President could sign the bill into law while doing away with these wasteful expenditures.82 The Court held that such a system violated the separation of powers in that it granted the President a quasi-legislative power reserved to Congress under the Constitution.83 80 See, e.g,, Peter D. Enrich, Federal Courts and State Taxes: Some Jurisdictional Issues, With Special Attention to the Tax Injunction Act, 65 Tax Law. 731 (2012) 81 Clinton v. City of New York, 524 U.S. 417 (1998). 82 See, e.g., Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J.L. & Pol. 345 (2003) 83 For support, the Court also noted that the Act could violate the Presentment Clause which requires the President to sign or veto any bill presented to the President by Congress. 24 The Article III Fiscal Power [1-Oct-13 Article I, Section 8 of the Constitution grants the power to impose Taxes, Imposts, Duties and Tariffs to Congress. This would seem to make clear that only Congress may impose any taxes, meaning that under the doctrine of separation of powers no other branch could do so. But, as usual, the issue is more complicated than would appear at first glance. The Supreme Court has recognized a number of situations in which the federal courts can exercise powers that look surprisingly similar to legislative or executive powers, notwithstanding that those are clearly delegated to other branches.84 Conversely, at no time has a majority of the Court held that the federal courts are forbidden from engaging in remedies of Constitutional violations solely because the remedy would involve entering an area traditionally reserved to another branch.85 For example, the Supreme Court has upheld the power of the federal courts to impose their own Congressional districts86 and to decide how to manage and operate prisons, including which to close, what staff to hire, and how to fund them.87 This point was made explicit by the Supreme Court in Brown v. Plata, which stated “Courts nevertheless must not shrink from their obligation to enforce the constitutional rights of all persons … [c]ourts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.”88 In a different context, the Supreme Court has actually said that the federal courts taking on the “essentially legislative task”89 of crafting a remedy to a Constitutional violation is crucial to the bedrock of the separation of powers doctrine.90 See Clinton v. City of New York, 524 U.S. 417 (1998). 84 See Ridgway supra note 28 at 103 – 111. 85 Cf. Brown v. Plata, 131 S.Ct. 1910, 1934 (2011) (Scalia, J. dissenting) (“Structural injunctions … [turn] judges into long-term administrators of complex social institutions such as schools, prisons, and police departments. Indeed, they require judges to play a role essentially indistinguishable from the role ordinarily played by executive officials. Todays decision not only affirms the structural injunction but vastly expands its use, by holding that an entire system is unconstitutional because it may produce constitutional violations.”) 86 See Branch v. Smith, 538 U.S. 254 (2003). 87 See Hutto v. Finney, 437 U.S. 678 (1978). 88 Brown v. Plata, 131 S.Ct. 1910, 1928-1929. 89 Carlson v. Green, 446 U.S. 14, 28 (1980) (Powell, J., concurring). 90 Cf. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001) (affirming the availability 1-Oct-13] The Article III Fiscal Power 25 Taken together, according to at least one recent article, “[i]t may, in fact, be fair to say that the role of the constitutional judge as policymaker and potential administrator of public institutions has now become a permanent feature of American constitutional law.”91 Thus, the question is not whether federal courts may encroach on essentially legislative functions, but rather whether doing so is in a particular case is entrusted to the federal courts pursuant to the Article III mandate that the judicial power be exercised by the federal courts.92 So, is remedying the failure to make Constitutionally mandated payments within the judicial power? Given the history of the Gold Clause Cases and the Jenkins cases, especially in light of recent exercises of judicial power in cases such as Brown v. Plata, it would seem the answer to this question is clearly yes. If anything, the concerns expressed in most cases about doing so tend to involve respect for the sovereignty of the states in their traditional realms,93 which does not apply as between Congress and the President. Thus, the question comes down to whether the Court should choose to exercise that power in the politically fraught situation o..
Posted on: Tue, 15 Oct 2013 23:38:08 +0000

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