Separation of Powers and Federalism

by Joseph Jerome

Recently in The New York Times, Adam Liptak cautioned that the legislative paralysis brought on by congressional polarization has made the Supreme Court increasingly more powerful, but a dysfunctional legislature can also increase the power of the presidency. Issue after issue, important separation of powers principles are being distorted as the other branches assert their power. In the courts, this produces policy without accountability. When the president acts without Congress, it creates a democracy governed by executive decree.

In our system of checks and balances, power grabs, particularly by the executive, are not surprising. “[A]ll the time, presidents are pushing out on the boundaries of their power and claiming new authority,” Professor William Howell explains, but the president’s ability to secure that authority is dependent upon how the other branches respond. If Congress’ failure to address calls for cybersecurity legislation is any indication, Congress’ response these days is simply to pass the buck over and over again.

Before leaving for its recent recess, congressional dysfunction was on a full display when the Senate failed to overcome a filibuster of the Cybersecurity Act of 2012. The Senate’s treatment of the issue devolved into a circus, with longtime allies Sens. Joe Lieberman (I-Conn.) and John McCain (R-Ariz.) arguing over each other’s national security bona fides. The legislative breakdown followed a familiar pattern:  after Senate Majority Leader Harry Reid refused to permit additional amendments to the bill, the threat of a Republican filibuster ended any further discussion, and the Senate closed for business.

Sen. Mitch McConnell (R-Ky.) insisted that Republicans did not really wish to filibuster the bill, arguing instead that Republicans only sought to improve the proposed law through their set of amendments.  Yet he failed to mention that one of his own suggestions to “improve” cybersecurity legislation was to completely repeal the Affordable Care Act, leaving Reid to wonder what gutting health care reform had to do with cybersecurity.

By Gabriel J. Chin and Marc L. Miller. Chin is Professor of Law at the University of California, Davis, School of Law. Miller is Vice Dean and Bilby Professor of Law at the University of Arizona, James E. Rogers College of Law. They authored “The Unconstitutionality of State Regulation of Immigration through Criminal Law,” which recently appeared in the Duke Law Journal and addresses these arguments, and others, in more detail. The views expressed are solely those of the authors.

On August 20, the other shoe dropped. After Arizona’s systematic defeat in Arizona v. United States, rejecting the most important parts of SB1070, the question became how courts would treat the many other state laws on the books dealing with immigrants. If a trio of cases from the Eleventh Circuit is any indication, federal courts will read Arizona v. United States as severely limiting state authority to legislate in the area of immigration.

The three opinions were written by the same panel, and largely affirmed or expanded injunctions issued by district courts. Two cases involved Alabama’s HB56, Hispanic Interest Coalition of Alabama v. Governor of Alabama and United States v. Governor of Alabama. The third case, Georgia Latino Alliance for Human Rights v. Governor of Georgia, examined Georgia’s HB 87. The laws had some of the same features as SB1070, and the Eleventh Circuit necessarily treated those as did the Supreme Court. The decisions allowed Georgia and Alabama to investigate the immigration status of people stopped or arrested, but, like the Supreme Court, left open the possibility of as-applied challenges based on racial profiling or unlawful seizures. The Eleventh Circuit also struck down Alabama’s prohibitions on undocumented people seeking work or failing to carry immigration documents, just as the Supreme Court had.