//  9/3/19  //  In-Depth Analysis

It was just over a month ago that the Supreme Court stayed the injunction prohibiting President Trump from reappropriating funds to construct the border wall. The stay has largely gotten lost in the never ending cycle of Trump administration news-- and like many of those stories, this one dropped late on a Friday evening: By a 5-4* vote, with the conservatives in the majority, the Court allowed the President to reappropriate funds that were originally set aside for the military. The decision will allow construction on the wall to begin.

Since this case was neither fully briefed nor argued, the Court did not issue a full opinion explaining its decision. Instead, the Court released a summary order suggesting there were several reasons for granting the stay. But it provided only one reason to think that the challengers would ultimately lose: “[T]he plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005, the statutory provision that allows the Defense Secretary to transfer funds, when doing so ‘is necessary in the national interest,’ and the funds will be used ‘for military functions (except military construction).’”

Justices Ginsburg, Sotomayor, and Kagan would have denied the stay request entirely. And the asterisk to the 5-4 vote breakdown is that *Justice Breyer would have stayed the decision announcing the injunction, but only with respect to the government’s ability “to finalize the contracts at issue,”  “not to begin construction” on the wall.

The Court’s decision is troubling for many reasons. We will focus on just two of them. First, the Court’s reasoning does not make much sense-- which suggests that the Court has reached a level of deference toward the executive branch, and perhaps toward the Trump administration in particular, that is cause for concern. Second, the decision is another reminder of how the Court can tinker with the availability of remedies for government misconduct without adjusting the scope of  available rights-- which has the effect of  giving the government much of what it wants without instigating as much meaningful public scrutiny or accountability.

First, the merits of the Court’s analysis. And before that, some front-end definitions for those readers (and co-authors...) who are not law professors who teach federal courts:

When Congress passes a law, they can also create what is called a private right of action, which is a right for plaintiffs to sue people (including government actors) for violating some statute. Without a private right of action, even people whose statutory rights are violated can’t always sue someone in court. For example, in Alexander v. Sandoval, the plaintiffs argued that Alabama’s English-only drivers examinations violated a DOJ regulation promulgated under Section 602 of the Civil Rights Act of 1964--and impeded their ability to get drivers licenses in the process. Before getting to that argument, though, the Court held that the plaintiffs could not sue to enforce the regulation because Congress had not given them a private right of action to enforce the statute. In Sandoval, the Court announced the general rule that private rights of action to enforce federal law must be created by Congress.

But the requirement of a private right of action applies only to alleged violations of statutes, not to alleged violations of the Constitution. If you want to sue someone for violating one of Congress’ statutes, you need Congress’ go-ahead to do so. If you want to sue someone for violating your constitutional rights, however, you should be able to go right ahead and do that.

You can think of the distinction like this: when the Constitution was ratified by “the People” (at least the white, male people) the People delegated to Congress the authority to pass laws which they (Congress) could change and alter as they please. But Congress can’t just change the Constitution as they please, because that power is retained by the People under Article V. When someone violates a statute they are violating Congress’ will and therefore Congress is responsible for determining what happens next, not individual citizens. But when someone violates the Constitution they are violating the rights retained by the People, and therefore individuals can sue to get federal courts to stop their rights from being violated.

Sandoval involved only the claim that Alabama had violated a DOJ regulation/federal statute, not a Constitutional violation. That is not the nature of the border wall suit. The complaint in the border wall case alleges that the President violated both statutes and the Constitution when he reappropriated money to construct the wall. And the complaint is explicit on this point: The plaintiffs’ second claim for relief is specifically entitled “Separation of Powers, Article I, Section 9, Clause 7 of the Constitution.” (That is also their third claim, and the fourth claim alleges a violation of the “Presentment Clause, Article I, Section 7, Clause 2 [of the Constitution].”) And in contrast to the rule that Congress must authorize suits to enforce particular statutes, the Court has emphasized that “the ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” (Armstrong v. Exceptional Child Ctr., Inc.)

Even when someone wants to sue because of a violation of statute, a statute explicitly creating a private right of action is not always required. In particular, a private right of action is not required to seek equitable relief (i.e., declaratory judgments and injunctions rather than money) to restrain the executive branch. And that is what the plaintiffs in the border wall suit are seeking--equitable relief.  The Court has said that “the equity jurisdiction of the federal courts is the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution,” (Grupo Mexicano de Desarrollo v. Alliance Bond Fund), and so “equitable relief … is traditionally available” even in the absence of a statutory cause of action (Armstrong).

Over the years, the Court has consistently stated this rule in various ways:

We ordinarily presume that Congress intends the executive to obey its statutory commands and, accordingly, that it expects the courts to grant relief when an executive agency violates such a command. (Bowen v. Mich. Academy of Family Physicians)

Or take this footnote from Free Enterprise Fund v. PCAOB, in which the Court, just ten years ago, allowed a private party to seek an injunction invalidated the structure of the PCAOB on constitutional grounds:

The Government asserts that “petitioners have not pointed to any case in which this Court has recognized an implied private right of action directly under the Constitution to challenge governmental action under the Appointments Clause or separation-of-powers principles.” The Government does not appear to dispute such a right to relief as a general matter, without regard to the particular constitutional provisions at issue here. See, e.g., Correctional Services Corp. v. Malesko, 534 U.S. 61, 74 (2001) (equitable relief “has long been recognized as the proper means for preventing entities from acting unconstitutionally”); Bell v. Hood, 327 U.S. 678, 684 (1946) (“[I]t is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution”); see also Ex parte Young, 209 U.S. 123, 149, 165, 167 (1908). If the Government's point is that an Appointments Clause or separation-of-powers claim should be treated differently than every other constitutional claim, it offers no reason and cites no authority why that might be so.

You can make the same point about the Appropriations Clause or Presentment Clause, in addition to the border wall plaintiffs’ separation-of-powers claims. Some of the above cases underscore that the Court has occasionally contrasted the general availability of suits that seek equitable relief for constitutional violations with its stinginess when it comes to suits that seek damages for constitutional violations.

But the important point is that the Court has, time and time again, agreed to review an equitable claim that the President or an agency exceeded its constitutional or statutory powers—including in major presidential power cases like Youngstown Sheet & Tube Co. v. Sawyer or Dames & Moore v. Regan.

To be sure, Congress can make the choice to preclude equitable claims in some cases. But there is no argument that Congress did so here—except by failing to explicitly create an affirmative cause of action, which the cases cited above make perfectly clear does not deprive the plaintiffs of a cause of action. More importantly, the plaintiffs’ suit isn’t even to enforce these statutes: The plaintiffs’ claim is that the President lacks the funds and can’t appropriate them under the Constitution; the administration’s defense is that a statute (in particular, section 8005) allows the President to appropriate the relevant funds.

In fairness, there is some slippage between at least one of the constitutional arguments here and a statutory claim. Under the governing Youngstown framework, in order to figure out whether Article II authorizes some presidential action, you look to see whether Congress has authorized the action—including through statute (or through acquiescence). But it doesn’t follow that there is an exception to the general rule of judicial review of illegal executive action when the equitable claim for relief is that the president exceeded his constitutional powers. That exception would contradict the rule that equitable relief against illegal executive action is presumptively available.

The weakness of the single merits argument that the Court made to support its conclusion substantiates the concern motivating one of Linda Greenhouse’s recent columns—that the costs of this decision include the Court’s reputation. It is not just that the Court is siding, again and again, with Republicans and the Trump administration that causes us worry. It is that it does so on such specious grounds.

But that is just the first concern with the Court’s stay order. The second concern is the implications of the Court’s position, which is part of a recent trend of withdrawing remedies in cases involving constitutional or statutory violations. The general gist of the trend is that he Court has, over time, whittled away the availability of different remedies for constitutional violations without modifying the scope of the underlying rights. Think of the exclusionary rule (where the Court has crafted myriad exceptions), suits for damages (where the Court has expanded the scope of qualified immunity), or habeas corpus (where the Court has likewise ratcheted up the threshold for relief). Leah has written about this phenomenon in this article.

One of the concerns with this trend is that it allows the Court to practically and effectively authorize unlawful government action and restrict rights (since the rights are unenforceable, except as refracted through the Court’s remedial standards) without having to be accountable for doing so. Decisions that turn on technical questions like the existence of a cause of action or the scope of qualified immunity tend to capture less public attention and coverage than decisions about the scope of the underlying constitutional rights. (Consider, for example, Carpenter v. United States, which generated a ton of commentary and coverage when the Court recognized that the Fourth Amendment is implicated by extensive government GPS tracking. Mr. Carpenter’s conviction was subsequently upheld by the lower federal courts because the court concluded that  the evidence did not have to be excluded from his trial, in light of one of the exceptions to the exclusionary rule.) Thus, these decisions allow the Court to accomplish the same troubling consequences without any of the accompanying accountability or scrutiny.

There is at least one upcoming case this term that could be a part of this trend—a case that actually presents the question whether the plaintiffs have a cause of action. That case is Hernandez v. Mesa, which is now back up at the Court for a second time. The case involves the tragic shooting of a 15-year old Mexican national who was allegedly hiding under the culvert at the Texas-Mexico border when a customs and border patrol officer shot and killed him without provocation, in violation of the Fourth and Fifth Amendments. (His family alleges in the complaint that he and his friends were playing a game where they would run up and touch the United States side of the border fence.) The question the Court will address is whether the plaintiffs have a cause of action to sue the CBP officer who shot and killed their son for damages.

The case may not garner a lot of headlines or attention. But it is deeply significant when thinking about how to hold law enforcement officers accountable for executive overreach, including unlawful killings. And like the border wall case apparently did, the case now depends on whether the plaintiffs have a remedy for the unlawful action. That may not be as easy to explain or as headline grabbing as an issue like “did the officer violate the Fourth Amendment?,” but it is no less important, as the border wall case underscores.




Disclosure: Leah is among the counsel to the Hernandez family in Hernandez v. Mesa.

Versus Trump: Are Tax Returns Coming Soon?

7/18/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the Supreme Court's pair of decisions governing Trump's tax returns. Are they coming soon? Did the Democrats make a mistake in not being more aggressive in invoking the impeachment power? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Who Decides the Future of the Equal Rights Amendment?

7/6/20  //  In-Depth Analysis

Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

Take Care

Pinkwashing the Supreme Court

7/2/20  //  Commentary

The Court’s LGBTQ rulings should not distract from the broader trajectory of its jurisprudence in favor of the privileged.

Take Care