Our (Buchanan's & Dorf's) New Paper: "Justice Delayed: Government Officials' Authority to Wind Down Constitutional Violations"

by Neil H. Buchanan & Michael C. Dorf 

In addition to our individual and joint writing for this blog, on Verdict, and occasionally elsewhere (e.g., here), over the last decade-plus, we have published half a dozen works of co-authored scholarship that aim at a more academic audience. Those papers address topics that overlap with our respective expertises in economics and constitutional law. We are very pleased to announce our latest scholarly collaboration, which will appear in its final form later this year in the Boston University Law Review, but is available in a preliminary version now: Justice Delayed: Government Officials' Authority to Wind Down Constitutional Violations. Here's the abstract:

Upon finding that a government program is unconstitutional, courts in the United States sometimes allow executive officials a grace period to wind it down rather than insisting on its immediate cessation. Courts likewise occasionally afford a legislature a grace period to repeal an unconstitutional law. Yet no one has even attempted to explain the source of authority for allowing ongoing constitutional violations or to prescribe the limits on permissible compliance delays. Until now. 

Judicial toleration of a continuing constitutional violation can be conceptualized as an exercise of the equitable discretion to withhold injunctive relief, but that rationale does not justify the practice of executive officials and legislatures phasing out rather than immediately ceasing their own violations without judicial intervention. The authority for that practice inheres in the merely prima facie nature of the obligations law imposes. Where immediate compliance would risk disaster, government actors, no less than individuals, act justifiably (even if technically illegally) by decelerating gradually rather than slamming on the brakes. 

Building on principles some of which are implicit in extant case law, this Article proposes three limits. First, wind-down authority exists only where immediate compliance would lead to extreme harms that clearly and overwhelmingly outweigh the harms of non-compliance; mere inconvenience or expense does not suffice. Second, the duration of any compliance delay should be specified in advance and minimized. Third, failure to wind down a violation in the prescribed time should be excused only following good-faith efforts; even then, in general at most one extension should be allowed before courts impose sanctions for non-compliance. These limits will deter the kind of recalcitrance associated with massive resistance to desegregation that the Supreme Court invited with the “all deliberate speed” formulation of Brown v. Bd. of Educ. II (1955).

The legitimacy of wind-down authority also implies power to initiate a constitutional violation in extraordinary circumstances. Thus, for example, should Congress fail to raise the debt ceiling before government obligations outstrip revenue, the President need not exhaust technically legal but disastrous options (such as selling national parks to real estate developers at fire sale prices) before taking unconstitutional measures (such as borrowing in excess of the debt ceiling) to mitigate the harm.

That is, of course, only the barest summary of our paper. We encourage interested readers to click through the link and read the full version. For now, we wish to make two points:

(1) As indicated in the abstract, the last substantive part of the paper applies our analysis of wind-down authority to the related question of when government officials have authority or even an obligation to commence a constitutional violation--using the possibility of a debt ceiling impasse as an illustration. In so doing, we recap our prior work (in a 2012 Columbia Law Review article and three follow-up articles in the online companion to the Columbia Law Review). We also provide some new analysis of the options for the President in the event of a debt ceiling crisis, including a new explanation of why we remain dubious about the suggestion that the Treasury Department could circumvent the problem by minting trillion-dollar platinum coins. We will also describe the new elements of our debt-ceiling analysis in a forthcoming Verdict column.

As citizens, we remain very concerned that Congress will not act with the alacrity needed to prevent serious economic harm. The economy is already in a precarious position due to slowed but persistent inflation, the high interest rates the Federal Reserve has imposed to combat that inflation, and lack of confidence in the banking system spurred initially by the collapse of Silicon Valley Bank. In such circumstances, responsible elected officials would not risk further destabilizing the economy by any debt ceiling shenanigans.

However, a majority of the Republican majority of House members are not responsible. Some are simply dopes who seem to think that threatening default or even actually defaulting on federal debt would not be a big deal. Some of those same dopes think that the debt ceiling actually has something to do with what they regard as excess government spending (and they regard all government spending on anything other than the military as excess). Still others may be making a political calculation that a debt-ceiling-crisis-induced financial crisis would lead to tough economic times that will be blamed on Biden and the Democrats. In any event, there is enough aggregate enthusiasm among Republicans for a showdown to think that things could go very badly.

Accordingly--and this is by far the least important aspect of what we're saying about the debt ceiling--we will probably end up amending Part IV of Justice Delayed, which discusses the debt ceiling, before the article goes to final press.

(2) Although we mean our article to be timeless in the sense that it addresses questions that arise in many settings and at various times, it is timely in its relevance to at least three contemporary issues. There is the debt ceiling, as we have just noted.

In addition, we introduce the problem of wind-down authority with an example taken from the litigation to block the Trump administration's efforts to rescind DACA. In Dep't of Homeland Security v. Regents of the Univ of California, SCOTUS held that the rescission was procedurally defective. We focus on an earlier episode in the litigation, during which a federal district judge expressed skepticism about the administration's simultaneous assertion that DACA is unconstitutional and its intention to wind down DACA over the course of six months rather than end it immediately. We take the judge's skepticism as our point of departure for addressing the source and limits on wind-down authority. We note here that while the issue on which our paper focuses is unlikely to arise again in precisely the same form, further legal tussles over immigration enforcement seem inevitable.

Our article is also relevant to (though it does not discuss) the litigation now pending in federal district court in Texas before Judge Kacsmaryk, who seems sympathetic to the plaintiffs' efforts to annul FDA approval of the abortion pill mifepristone. In discussing precedents related to wind-down authority, Justice Delayed describes the practice in the D.C. Circuit of "remand without vacatur." In circumstances in which wiping out some agency action would have dire consequences, that court will sometimes hold a rule or other agency action invalid but leave the rule or action in force while the agency attempts to cure.

Depending on what (absurd) basis Judge Kacsmaryk invokes as the reason to invalidate FDA approval for a safe and effective medicine that has been available for over two decades, his ruling could fall within the scope of remand-without-vacatur. To be sure, if the judge is willing to accept the plaintiffs' preposterous claims on the merits, he's probably also willing to impose an immediate nationwide ban on sale of mifepristone. But it's also possible that he could see remand-without-vacatur as a means of making his anti-abortion statement while reducing the risk of reversal on appeal.