North Carolina Law Review

University of North Carolina School of Law

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Chapel Hill, NC 27514

Executive Action and Nonaction

March 23, 2017

95 N.C. L. Rev. 553 (2017)

 

Executive action and nonaction should be amenable to judgment by federal courts, distinguishing unlawful from permissible discretion. Previous commentators have been largely skeptical of standing for Congress to challenge executive action and nonaction, but most of that commentary preceded the Supreme Court’s revival of legislator standing last term in Arizona State Legislature v. Arizona Independent Redistricting Commission, and the Court’s recent invitation in the order granting certiorari in United States v. Texas (affirmed by an equally divided court) to consider the meaning of the President’s obligation to take care that the laws be faithfully executed. Problems a court might encounter in crafting an effective injunctive remedy in the context of executive nonaction can be overcome by seeking declaratory judgment relief. Legislators’ interests are of two types: to see laws they enacted enforced and to overcome impediments to their legislative functions. The former interest should be sufficient to justify legislators’ standing if the current Congress at the time of a lawsuit announces its support for enforcement of a law by authorizing litigation. The second kind of legislator interest can be found under the specific constitutional power of impeachment, exercised by the House of Representatives. This interest is present even if the House does not take a vote on impeachment, just as the Congress’ oversight authority exists apart from an actual vote on a bill. Involving the judicial branch in challenges to executive action and nonaction cases has functional advantages, including providing the executive with a potentially face-saving premise to change a previous approach to enforcement or nonenforcement. Following a court determination, the House Judiciary Committee, through its impeachment authority, would serve as the monitor of whether such a change of approach has taken place.

 

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