Subordination and Separation of Powers - Yale Law Journal

MATTHEW B. LAWRENCE

Subordination and Separation of Powers

a b s t r a c t . This Article calls for the incorporation of antisubordination into separation-of-

powers analysis. Scholars analyzing separation-of-powers tools--laws and norms that divide power among government actors--consider a long list of values ranging from protecting liberty to promoting efficiency. Absent from this list are questions of equity: questions of racism, sexism, and classism. This Article problematizes this omission and begins to rectify it. For the first time, this Article applies critical-race and feminist theorists' subordination question--are marginalized groups disproportionately burdened?--to three important separation-of-powers tools: legislative appropriations, executive conditions, and constitutional entrenchment. In doing so, it reveals that each tool entails subordination by creating generalized benefits at the expense of marginalized groups. It illustrates this skewed distribution through novel case studies tracing harm to Native peoples to the use of appropriations to empower Congress, harm to residents of Puerto Rico to the use of executive conditions to empower the President, and disparate coronavirus harms to Black communities to the use of nonentrenchment to empower the future and disempower the "dead hand" of the past.

The Article's descriptive insight that separation-of-powers tools can and do entail subordination motivates its call for the incorporation of antisubordination into both institutional and doctrinal separation-of-powers analysis. The antisubordination movement's rights-focused approach has stagnated. The separation of powers offers a desirable, upstream means through which to pursue the goal of antisubordination by shifting attention beyond the courts and toward other political actors. Moreover, considering antisubordination in separation-of-powers analysis has historical precedent, is consistent with the aspiration for "neutral principles," and advances already established separation-of-powers values such as liberty and accountability.

Incorporating antisubordination alters institutional analysis, doctrinal analysis, and the agenda of separation-of-powers theory. The subordination question ("who pays?") should be as familiar to institutional analysis of separation-of-powers questions as is the legal-process question ("who decides?"). This question might be used to interrogate particular separation-of-powers tools, categories of such tools, or overarching doctrinal and conceptual approaches. Antisubordination should also change doctrinal analysis, where courts should at the very least include antisubordination among the structural values they consider in resolving ambiguities, weighing interpretive tools, and conceptualizing constitutional questions. In this context, antisubordination's greatest impact may be as a counterweight to courts' use of historical gloss. Finally, antisubordination requires a new, creative agenda for separation-of-powers theory that focuses not on evaluating existing arrangements or the relative power of the branches, but instead on developing alternative arrangements that maintain the balance of power without imposing skewed costs. The

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Article illustrates these interventions with novel prescriptions for ongoing legal controversies about the debt ceiling, foreign affairs, legislative standing, and government shutdowns.

a u t h o r . Associate Professor of Law, Emory Law; Affiliate Faculty, Harvard Law School, Pe-

trie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. Professor Dorothy Brown's suggestion that I interrogate appropriations from a critical perspective inspired this Article. Special thanks to Nicholas Bagley, Jesse Cross, Mary Dudziak, Dan Epps, Martha Albertson Fineman, Aila Hoss, Aziz Huq, Howell Jackson, Arminda Lawrence, Arminda Lawrence Jr., Medha Makhlouf, Jonathan Nash, Rafael Pardo, Michael Pollack, Polly Price, Zachary Price, Robert Schapiro, Bijal Shah, Joanna Shepherd, Fred Smith Jr., Raquel Spencer, Kevin Stack, Martin Sybblis, Sasha Volokh, and Carly Zubrzycki, as well as workshop audiences at Emory Law and Dickinson Law. Zahra Ahmed and Nina Goodall-Bernal provided excellent research and Bluebook-ing assistance. Liam Gennari and his colleagues at the Yale Law Journal provided insightful, invaluable editorial assistance and have my gratitude. I am responsible for any errors that remain.

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article contents

introduction

82

i. the means and ends of the separation of powers

91

ii. when power has a price, who pays?

95

A. Legislative Appropriations

96

1. Native-Trust Obligations

98

2. The Parasitic Power of the Purse

104

3. A Disproportionate Burden on the Low-Income, Caretakers, and Asset

Poor

107

B. Executive Conditions

114

1. Hurricane Relief

117

2. "Do me a favor, though."

121

3. The Subordination Seesaw

122

C. Constitutional Entrenchment

125

1. Prevention and Public Health Fund

127

2. Stability Versus Flexibility

132

3. The Dead Hand of Privilege

133

iii. antisubordination upstream

134

A. The Separation of Powers as a Means of Antisubordination

135

1. Dimensions of Subordination

135

2. Antisubordination and the Distribution of Power

137

B. Antisubordination as an End of the Separation of Powers

140

1. Neutral Principles

141

2. History

142

3. Pluralism

146

iv. interventions

151

A. Institutional Analysis

151

1. Ask "Who Pays?"

152

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2. The Least Unconstitutional Option Reconsidered

154

B. Doctrinal Analysis

156

1. Legal Basis for Consideration of Antisubordination

157

2. Competence Objection Is Unpersuasive

158

3. Antisubordination in Clinton, King, and Chadha

159

4. Antisubordination Versus Historical Gloss

163

a. Categories of Legislative Standing

164

b. The Two-Year Clause

165

C. Agenda

167

1. Creativity and Compromise

167

2. The STOP SUBORDINATION Act

169

3. Unanswered Questions

171

conclusion

174

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introduction

"[T]he values of liberty and accountability protected by the separation of powers belong . . . to the Nation as a whole."1

--Chief Justice Roberts

"[I]n February, um, we just ate less."2

--SNAP Recipient

At the end of 2018 and stretching into the early days of 2019, a power struggle between the House of Representatives and President Trump produced a partial government shutdown which, among other things, caused a forty-day gap in Supplemental Nutrition Assistance Program (SNAP) benefits not only for the family quoted in the epigraph above but also for millions of other SNAP recipients like them.3 Were their stress and hunger justified? Put aside for a moment the specifics of the dispute between former President Trump and House Speaker Nancy Pelosi and consider instead the laws that empowered them to shut down the government in the first place. Congress could change those laws to prevent shutdowns once and for all. But legal scholars, including myself, have cautioned that if it did, Congress would relinquish its "power of the purse" and thereby undermine values, such as liberty and accountability, advanced by the separation of powers.4 Do you think the SNAP recipients who will go hungry during the next extended shutdown share that view? Will they experience their personal,

1. Wellness Int'l Network, Ltd. v. Sharif, 575 U.S. 665, 696 (2015) (Roberts, C.J., dissenting).

2. Wendi Gosliner, Wei-Ting Chen, Cathryn Johnson, Elsa Michelle Esparza, Natalie Price, Ken Hecht & Lorrene Ritchie, Participants' Experiences of the 2018-2019 Government Shutdown and Subsequent Supplemental Nutrition Assistance Program (SNAP) Benefit Disruption Can Inform Future Policy, 12 NUTRIENTS 1867, 1877 (2020) (quoting an interview with a SNAP beneficiary describing shortages associated with missed February benefits despite the enhanced January benefits).

3. Id. at 1873-80 (describing the increased stress, poorer food security, and disrupted finances that resulted from the extended gap in benefits).

4. See JOSH CHAFETZ, CONGRESS'S CONSTITUTION: LEGISLATIVE AUTHORITY AND THE SEPARATION OF POWERS 314 (2017) ("[I]f we abjure autocracy and instead seek to use our collective practical reason to navigate among and negotiate between the different, and often incommensurate, interests in the polity . . . then we must accustom ourselves to messiness and discord."); Matthew B. Lawrence, Disappropriation, 120 COLUM. L. REV. 1, 65 (2020) ("[E]fforts to reduce the harms of disappropriation may inadvertently reduce . . . legislative power."); Protecting Congress' Power of the Purse and the Rule of Law: Hearing Before the H. Comm. on the Budget, 116th Cong. 11-22, 75-84, 97-109 (2020) [hereinafter Protecting Congress's Power of the Purse and the Rule of Law] (testimony of Josh Chafetz, Professor of Law, Cornell Law School; Eloise Pasachoff, Associate Dean, Georgetown University Law Center; and Philip G. Joyce, Senior Associate Dean, University of Maryland School of Public Policy).

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