“Gridlock” Forthcoming in the Harvard Law Review “Supreme Court 2015 Term” Issue

August 1st, 2016

I am beyond ecstatic that my new article, Gridlock, will be published in the Harvard Law Review’s “Supreme Court 2015 Term” issue in November. This article synthesizes the Court’s non-decisions in Zubik v. Burwell and U.S. v. Texas as an analysis of the separation of powers, the major questions doctrine, and political theory.

The article builds on a draft I wrote two years ago, but never published–Gridlock and Executive Power–my two part series on DAPA, as well as amicus briefs I filed on behalf of Cato in King v. Burwell, Zubik (cert and merit stage), and Texas (district court, circuit court, and SCOTUS). Ultimately, this will form the basis of several chapters in my third book, tentatively titled A Constitutional History of the United States: 2009-2016.

Here is the abstract for Gridlock:

Two of the biggest cases at the Supreme Court this past term ended as they began: gridlocked. In Zubik v. Burwell, the Justices declined to decide the validity of the accommodation to the Affordable Care Act’s (ACA) contraceptive mandate. In United States v. Texas, the Court divided four-to-four on whether Deferred Action for Parents of Americans (DAPA) was lawful.

Both cases involved extremely delicate line-drawing. In the former, the Justices had to determine whether an accommodation to the contraceptive mandate imposed a substantial burden on the free exercise of religious organizations. In the latter, the Court was called on to resolve the scope of the President’s prosecutorial discretion to shield from removal and grant lawful presence to four million aliens. During oral arguments—our only source of insights, because neither case generated a decision on the merits—the Justices seemed divided on how to balance these competing concerns. In the end, the Court resolved neither case—at least for now.

The eight Justices can be forgiven for not being able to reach a clear decision. Congress, and not the courts, should lead these debates over such profound questions about religious liberty and the separation of powers. Indeed, critics allege that both suits are actually policy disputes masquerading as legal controversies. But these suits arose precisely because Congress did not grapple with these foundational issues. Congress was entirely silent about religious accommodations for the mandate, and Congress affirmatively rejected a change to the immigration status quo. Instead, the administration seized on this inaction to justify executive actions that advanced an expansive change in policy.

My goal in this article is not to explain whether DAPA complies with the Immigration and Nationality Act (INA), or if the contraception mandate’s accommodation violates the Religious Freedom Restoration Act (RFRA). In fairness, the Court didn’t either. Rather, I use these two cases to illustrate the relationship between gridlocked government and the separation of powers. Part I applies this framework to Zubik v. Burwell, to demonstrate how congressional silence does not vest the executive branch with the awesome authority to make foundational determinations affecting conscience. Part II analyzes U.S. v. Texas to explain how congressional gridlock does not license the expansion of the executive’s powers. I conclude with a preview of how these still-pending cases are likely to be resolved on remand.

The HLR production schedule is rigorous. From the day U.S. v. Texas was 4-4’d, I had less than three weeks to submit the first draft. So far, the article has gone through the first round of edits–known as the “President’s Read Memo.” It’s exactly what it sounds like. The President of the Law Review sent me an extremely detailed memo (roughly 1/3 the length of the article itself!) that provided comments and suggestions. I found them extremely helpful, and rewrote much of the article over the past two weeks. I still have some room to make changes, so if you have comments, please feel free to share them. And in case anyone is curious, under HLR’s rules, I am allowed to post the draft on SSRN before the November publication date. Although I am not allowed to post versions that include the HLR line-edits. So the next version you’ll see is on November 10.