Federal judges, when deciding on separation-of-powers issues, are not neutral referees in our three-part federal system; they are participants in it. This key observation forms the foundation of Payvand Ahdout’s article. Expanding on this insight, Ahdout argues that in resolving disputes, federal judges frequently refrain from forcing high-ranking federal officials to perform specific actions. She terms this “separation-of-powers avoidance,” a strategy evident in various legal situations, including executive privilege and congressional power to issue subpoenas and file lawsuits. She identifies three categories of separation-of-powers avoidance: embedded avoidance, process avoidance, and fortified avoidance.
In the “embedded model,” courts approach and interpret legal doctrines with an emphasis on circumventing separation-of-powers conflicts. This approach is exemplified by the Supreme Court’s handling of a discovery dispute in Cheney v. U.S. District Court. An organization called Judicial Watch sued the Vice President Dick Cheney under the Federal Advisory Committee Act, seeking information about the newly formed National Energy Policy Development Group. The district court issued discovery orders requiring the Vice President and other high-ranking executive branch officials to disclose information about the group. But Cheney resisted. Without explicitly invoking executive privilege, he petitioned the D.C. Circuit for a writ of mandamus to stop the district court from requiring the disclosure. The D.C. Circuit ruled against Cheney, reasoning that the executive branch must assert executive privilege explicitly to protect itself from discovery. But the Supreme Court reversed, urging against needless constitutional confrontations between the branches. In so doing, it interpreted discovery requirements through the lens of separation-of-powers.
Through the “process model,” appellate courts sometimes vacate a lower court’s decision not because it is legally incorrect, but because the lower court gave inadequate attention to separation-of-powers considerations. The Court applied this model in Trump v. Mazars USA, LLP, a case involving congressional subpoenas for tax documents related to the sitting President from various financial institutions. Three House subcommittees issued four subpoenas to gather information about President Trump, his children, and their associated businesses, purportedly to aid Congress in its legislative duties. Trump filed a suit in federal district court, seeking to halt enforcement of the subpoenas and arguing the subpoenas exceeded the House’s constitutional authority.
The district court ruled against Trump and the D.C. Circuit affirmed, both determining that the subpoenas served a valid legislative purpose, given the relevance of the requested information to potential reforms in financial disclosure requirements for Presidents and presidential candidates. The Supreme Court vacated because the lower courts failed to adequately consider separation-of-powers concerns. As Ahdout puts it, the Supreme Court concluded “the decision below was not ‘separation of powers-y’ enough.” The Court instructed the lower court to evaluate, for example, whether the legislative intent cited justifies the significant step of involving the President and his personal papers; whether the scope of the subpoena was sufficiently narrow; and whether compliance with the subpoena would impose an undue burden on the President.
In the “fortified model,” courts use separation of powers to reinforce existing jurisdictional rules, aiming to sidestep separation-of-powers conflicts. Ahdout’s key example is Raines v. Byrd. Federal legislators challenged the constitutionality of the line-item veto, a technique that allowed a president to delete certain items from a congressionally authorized bill before signing it into law. The Court ruled that the legislators did not have Article III standing, partially relying on separation-of-powers concerns. The Court emphasized the need for “especially rigorous” scrutiny in cases that compel the judiciary to assess the constitutionality of actions taken by other government branches. And as Ahdout makes clear, the Court’s high standard for standing was based on the parties’ roles in the federal government, rather than the separation-of-powers implications of the underlying merits. Ahdout observes that the Supreme Court addressed the underlying substantive constitutional question the following year in Clinton v New York, holding that the line-item veto was unconstitutional. The “especially rigorous” language from Raines did not appear in the Court’s opinion in a case not involving members of one branch suing another.
Ahdout’s three-part taxonomy is novel, useful, and dazzlingly sophisticated. But she does not stop there. Her descriptive insight has normative implications: Because federal courts are actors, rather than mere arbiters, when they resolve separation-of-powers disputes, other governmental actors should be cautious about placing too much weight on the judiciary’s statements about separation of powers. When non-judicial actors apply judicial statements emanating from avoidance outside legal proceedings, it can distort the public’s and legal community’s understanding of the proper division of governmental powers.
Ahdout offers a compelling example of this distortion through the implications of Cheney. The Office of Legal Counsel (OLC) leverages Cheney and related cases to strengthen executive privilege in scenarios unrelated to Article III courts or to potential complications from asserting privilege in federal courts. OLC has used Cheney to argue that Congress, despite its independent power to check the executive, has limited oversight authority over the Executive Office of the President. These legal rulings set the groundwork for negotiations between Congress and the executive branch, giving the latter judicial imprimatur to withhold information from Congress. The executive branch also employs Cheney’s language in public discourse to reinforce executive privilege, influencing public opinion.
Ahdout could have enhanced here normative argument with more examples illustrating the type of distortion she so astutely identifies. Additional examples could have helped readers better understand and appreciate the scale and scope of this problem. Is there evidence, for example, that the cases of Trump v. Mazars USA, LLP and Raines v. Byrd have had the same distorting effect as Cheney v. D.C. Circuit?
Similarly, she might explore how the avoidance of separation-of-powers issues influences our comprehension of federal branches’ powers in relation to other separation-of-powers decisions that do not use such avoidance. Separation-of-powers avoidance is a precise and narrow concept; “it is a dispute-resolution tool used to avoid compelling a coordinate-branch official to act when a court is presented with a separation-of-powers conflict.” This raises questions: Are there distinct separation-of-powers principles in these scenarios that are not apparent in other contexts? Or is overreliance on judicial opinions for understanding separation of powers always problematic, with separation-of-powers avoidance highlighting a more pervasive concern? The paper leaves these questions somewhat unresolved.
The paper is a tour de force at the descriptive and theoretical level. It provides a fresh perspective on the judiciary’s role in shaping the separation of powers within the U.S. government. Her thorough analysis, combined with the innovative framework she presents for understanding judicial avoidance strategies, makes this article a valuable resource for scholars, legal practitioners, and anyone interested in the dynamics of separation of powers.
