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12/28/2015

Constraining Executive Illegality Through an Advisory Court
Mike Rappaport

Under the Obama Administration, the executive branch has engaged in numerous actions where it has refused to follow statutes – either on the grounds that the statute implicitly allows it discretion or that the Constitution renders the statute unconstitutional.  As has often been noted, these actions are often quite questionable on a legal basis.  But there is little that can be done if no one has standing to challenge the action in court unless the Congress is willing to bring impeachment charges, which is generally politically unattractive.  In a previous post, I discussed using anti-severability provisions in statutes.  While that can help, it will not deter a very willful President.  Here, then, I have another statutory reform.

Congress should pass a law that would establish a “court like entity.”  The entity would consist of 5 judges, to serve for 10 year terms, selected from retired judges who had served on the U.S. Supreme Court or the federal circuit courts.  One of the judges would be appointed by the President with the advice and consent of the Senate.  Two would be appointed by the Speaker of the House, with the advice and consent of the House of Representatives.  And the final two would be appointed by the Senate Majority Leader, with the advice and consent of the Senate.  The appointments would be staggered, so that a new judge would be appointed each year.  The court should also be required to be bipartisan, with three members of one party and two of the other party. 

The court would have “jurisdiction”concerning all issues of federal law, especially those where it is likely that no person will have article III standing in the near future.

The “court like entity” would not be an actual court.  Its judgments would not be binding, but would simply be advisory.  Since the judgments would not be binding, the appointment process and the lack of standing, which would normally render it unconstitutional, would not defeat its constitutionality.

Since the court would not have power to issue binding judgments, one might ask what is the point?  But if the members of the court were from both political parties and were well respected former judges, its decisions would have moral authority.  A decision reach by such a court with former justices and judges of both parties would make it more difficult for a President to simply ignore it.  For example, if Democratic justices and judges concluded that an action by President Obama action was unconstitutional, it would be more difficult for the Administration to dismiss it as simply partisan.

One might try to go further and establish an enforcement mechanism.  This is more difficult, both institutionally and constitutionally.  But one possibility is to provide that if the advisory court concludes that an action is unconstitutional, then the administration has the choice to reverse its decision if that is still possible.  If the action has already been completed, the administration has the choice to announce that it now accepts the advisory court’s decision.

If the administration takes neither action, then there could be a House and Senate rule that requires a reduction in some type of statutory authority that the administration cares about.  For example, the appropriations for White House operations might be reduced by 10 percent from the previous year.  As a legislative rule, the houses would have authority to ignore this rule, but such rules are often followed.  This is especially the case when a rule is enforced by a point of order that can only be waived by a supermajority, such as 3/5 or 2/3 of the house.  While a majority would probably have authority to ignore or repeal that supermajority requirement, this is rarely done.

Since a majority of each house would not be bound by the rule, there is a reasonably strong argument that the arrangement would be constitutional.  After all, the Congress can choose to reduce funding for the President if it believes the administration is behaving improperly.