I guess if "one has a sufficiently robust notion of judicial power," judges
can do just about anything. For example, if Sandy's suggested theory is
correct, a similar injunction (or declaratory judgment) could be issued
against members of Congress to prevent them from voting for a bill that the
judges believe to be unconstitutional.
Even if one rejects the view that the president enjoys absolute immunity
from official capacity injunctions, see Mississippi v. Johnson (1866), any
claim against legislators should, at the very least, be blocked by absolute
_legislative_ immunity. See Eastland v. USSF (1975). I would suggest
that, at least from the functional point of view that is used in immunity
doctrine, a presidential decision to sign or veto a bill is better
understood as a "legislative" rather than an "executive" act. (That is,
the presentment process calls for the president's involvement in a
legislative function, similar to the way that the appointment process calls
for the Senate's involvement in an executive function; hence "executive"
sessions of the Senate.) See Supreme Court of VA v. Consumers Union
(1980) (extending absolute legislative immunity to a state supreme court in
its role as promulgator of disciplinary rules). If that is right, then
the president has absolute legislative immunity from an injunction
involving the signing or vetoing of laws -- _even if_ he lacks absolute
immunity for his executive actions.
I know that immunity doctrines are not highly favored by most academics,
and tend to be viewed as evidence of disrespect for law, or at best
compromises with the rule of law. But to my mind, one important and
valuable function of absolute immunity is precisely to keep constitutional
dialogue between the branches open and guard aganst judicial monopolization
of constitutional interpretation.
Ed Hartnett
Seton Hall
Sanford Levinson
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Sent by: Discussion Subject: Re: Challenging a
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10/31/03 03:32 PM
Please respond to
Discussion list for
con law professors
If one has a sufficiently robust notion of judicial power, isn't this the
logical equivalent of seeking a declaratory judgment that it would be
unconstitutional for the President not to veto a law because to sign it
would violate his/her oath of office? If Sheriff Jones announces that the
police will come out in force to prevent a political gathering in the
public forum, I presume that one can go to court immediately upon the
announcement rather than wait until the police actually try to prevent the
gathering. (And, indeed, one can probably get injunctive, and not simply
declaratory, relief.) Is the difference in the two hypotheticals the
fact that the President merely signs the legislation, he doesn't actually
declare an intention to act upon it? Or do we simply regard it as
lese-majeste to bring the president to court when he announces an intention
to violate his oath of office? (I'm not advocating that suits for such
injunctive relief are desirable, but I do wonder what the difference is
between this and any other suit for a declaratory judgment based on
anticipated future action.
sandy
At 02:13 PM 10/31/2003, you wrote:
Talk about your races to the courthouse -- in this case, before the fact!
The ACLU and CPR have each filed suit challenging the constitutionality of
the so-called Partial Birth Abortion Act, which the President has not yet
signed.
http://www.washingtonpost.com/wp-dyn/articles/A47078-2003Oct31.html
"We want the judge to be in a position to issue an order as soon as the
bill is signed," said one of the attorneys.
Anyone aware of any precedent for such a preemptive move? I'm fairly
certain no injunction could be issued before the bill becomes law. But If
the President signs the bill, can a court then issue an injunction in these
suits? I would imagine she could, because the originally unripe suit would
have ripened in the interim between the filing of the complaint and the
issuance of the injunction; but I don't think I've ever seen a case quite
like this one.
