Parsing the Power of the Presidency

Professor David Pozen Ignites High-Level Debate On How Far the President Can Go to Get Around a Hostile Congress.
New York, November 3, 2014—Can congressional obstructionism become so egregious as to justify otherwise unacceptable actions from a president? Or does that very question threaten the checks and balances that underlie the U.S. constitutional order?

Columbia Law School Professor David Pozen, an expert in constitutional theory, broaches these issues and more in a provocative new piece, “Self-Help and the Separation of Powers,” published as the lead article in the latest volume of the Yale Law Journal. Pozen places several controversial instances in which the Obama administration seemed to circumvent Congress—from making recess appointments when the Senate was holding pro forma sessions to suspending enforcement of certain immigration laws for undocumented immigrants who came to the United States as children—in the context of a legal doctrine known as “self-help.” This doctrine, important in public international law and private law areas like property and torts, holds that unilateral measures to prevent misconduct can be justified in some exceptional instances.

“Much of today’s most vexing political behavior challenges not the interpreted Constitution, but the unwritten norms that facilitate comity and cooperation in governance,” Pozen writes. “On a sympathetic reading, then, President Obama’s maneuvers can be seen as a species of constitutional self-help—attempts to remedy another party’s prior wrong rather than to ignore inconvenient legal barriers.”

Pozen’s article, which cites examples of presidents as far back as Thomas Jefferson responding to perceived congressional wrongs, has already spurred fierce debate. Leading separation-of-powers scholar Peter Shane has said that “[i]n terms of theorizing the norms on which separation-of-powers systems depend, Pozen’s piece is the most creative and helpful work I’ve read recently.” And in a response published in the Yale Law Journal Forum, Professor William P. Marshall of the University of North Carolina School of Law remarks that Pozen’s work is “immensely creative” and “one of the most brilliant and innovative pieces of law review scholarship that [he] ha[s] ever encountered.”

But Marshall also warns that the self-help rationale could become a slippery slope leading to the end of constitutional constraints on the power of the presidency. “Allocating to the presidency the additional tool of self-help along with its already formidable arsenal would only exacerbate the considerable imbalance among the branches that already exists,” Marshall writes. “Congressional prerogative to block executive action is an essential component of the constitutional design… If there is a theory that better undermines a system of checks and balances, I am not sure what it would be.”

Pozen writes that he is not advocating a change to the separation of powers, but rather introducing an analytical framework to describe—and, potentially, to discipline—how intragovernmental conflicts are waged in the American system of government. “[T]he project of developing a vocabulary of constitutional self-help,” Pozen says, “has no necessary pro-executive valence, any more than the project of developing a vocabulary of residential self-help has a pro-landlord valence.”

“We go wrong when we read retaliatory interbranch activity as necessarily destabilizing of good governance or rule-of-law values,” Pozen concludes. “The place to begin is with the recognition that intragovernmental self-help is all around us, for good and for ill.”