Academic journal article The Yale Law Journal

Self-Help and the Separation of Powers

Academic journal article The Yale Law Journal

Self-Help and the Separation of Powers

Article excerpt

ARTICLE CONTENTS  INTRODUCTION    I. CONSTITUTIONALLY DERIVED TOOLS AND TYPES OF INTERBRANCH SELF-HELP      A. Definitional Preliminaries      B. Congressional Tools      C. Presidential Tools      D. Judicial Tools      E. Additional Distinctions   II. SELF-HELP AND CONSTITUTIONAL CONVENTIONS      A. Conventions in Constitutional Theory      B. Separation-of-Powers Conventions      C. Obstruction, Retaliation, and Construction  III. THE UNITY OF SELF-HELP: SECOND-PARTY ENFORCEMENT IN LAW AND      THEORY      A. The Dilemma of Self-Help      B. The International Law Solution: Countermeasures Doctrine      C. Organizing Principles   IV. COPING WITH CONSTITUTIONAL COUNTERMEASURES      A. The Latent Doctrine of Constitutional Countermeasures      B. The Dignity of Retaliation: On Taking Self-Help Seriously      C. Why Can't We Wait?: The Missing Discourse of Constitutional         Self-Help      D. Anxieties and Extensions CONCLUSION 

INTRODUCTION

Sometimes people are allowed to take the law into their own hands. They may bypass the courts and the cops and take unilateral measures to cure or prevent misconduct in their midst. Across the United States, doctrines have been developed to regulate such "self-help" behavior in criminal justice, property, contracts, torts, and other areas of private law. In public international law, a whole subfield is devoted to the self-help issue.

And so one might wonder: when may a U.S. government institution "attempt to redress a perceived wrong" by another U.S. government institution through its "own action," rather than through a third-party process? (1) More specifically, when may officials in one branch of the federal government attempt to redress another branch's perceived wrong through means that, but for that wrongdoing, would be impermissible? (2)

The question goes to the core of the separation of powers; both the separateness and the balance of powers among the branches depend upon its answer. Rising levels of partisanship lend it new urgency. Yet the question never seems to get asked, at least not in these terms. American lawyers have not developed a framework for analyzing or administering self-help remedies in constitutional law. Nor have they given much attention to the unwritten practices that shape interbranch struggle more generally. The result, this Article explains, has been an imbalanced discourse around constitutional conflict and constraint--an obsession with the Constitution's formal allocation of authorities, and relative neglect of the informal norms that determine how those authorities are wielded and disputes about them settled.

The issues are abiding, but recent events help to underscore the stakes. Consider three legislative-executive clashes that have generated heated debate:

1. In January 2012, President Obama made recess appointments to top posts at the Consumer Financial Protection Bureau and the National Labor Relations Board. (3) The Senate had been holding regular pro forma sessions during its holiday break in order to foreclose this option, but the Justice Department's Office of Legal Counsel (OLC) opined that the appointments were lawful under "a practical construction" of the Recess Appointments Clause. (4)

2. In June 2012, the Department of Homeland Security announced a policy to stop deportation of, and give work authorization to, some one million undocumented immigrants who came to the country as children. (5) This "Dreamers policy" mirrors the DREAM Act that successive Congresses had failed to pass. The immigration statutes do not exempt this class of individuals from deportation (hence the push for the DREAM Act), but the Justice Department defended the policy as within the scope of delegated prosecutorial discretion. (6)

3. Over the past several years, the Department of Education has granted more than forty states the "flexibility" to pursue educational reform plans that do not comply with central requirements of the No Child Left Behind Act of 2001 (NCLB). …

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