Challenges to Statutes that the Executive Branch Agrees are Unconstitutional

prev | next

Article III, Section 3, Clause 2:

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Further demonstrating the Court’s more flexible application of the adversity doctrine in the past few decades are the 1983 case of Immigration and Naturalization Service v. Chadha,1 the 2013 case of United States v. Windsor,2 and the 2020 case of Seila Law LLC v. Consumer Financial Protection Bureau.3 Each of those cases involved constitutional challenges to federal statutes.4 In each case, the United States agreed with the challenger that the challenged law was unconstitutional, raising questions about whether the parties were genuinely adverse.5 In all three cases, the Court suggested that certain aspects of the adversity doctrine are not constitutional mandates, but are instead merely prudential constraints that do not categorically deprive the federal courts of jurisdiction.6 Prudential restrictions on the justiciability of disputes are judicially self-imposed limitations on federal jurisdiction that do not stem from Article III of the Constitution.7 While constitutional limitations on justiciability often impose insuperable barriers to the jurisdiction of the federal courts that neither Congress, nor the parties, nor the judiciary itself can abrogate without an amendment to Article III, litigants may overcome prudential barriers to justiciability by showing that it would be prudent for the court to adjudicate the case in question.8 These cases therefore suggest that federal courts may sometimes adjudicate cases even if the plaintiff and the defendant desire the same ultimate result.9

In Chadha, the Court considered a constitutional challenge to a statute purporting to authorize a single house of Congress to pass a resolution overruling executive branch decisions not to deport certain otherwise deportable aliens.10 The appellant (the Immigration and Naturalization Service (INS)) and the appellee (an immigrant named Jagdish Rai Chadha) both agreed that the provision was unconstitutional,11 which created concerns that the case was not an adversarial controversy.12 The Supreme Court still concluded, however, that the parties were sufficiently adverse13 because the INS still intended to deport Chadha if the federal courts ultimately rejected his constitutional challenge.14 The Chadha Court acknowledged potential concerns about ruling on the provision’s constitutionality when neither of the named parties argued that the law was valid.15 Even so, the Court characterized those misgivings as purely prudential concerns, rather than insuperable constitutional obstacles to resolving the case.16 The Court ultimately determined that these prudential concerns did not bar the Court from deciding the issue because Congress had intervened in the case to defend the statute’s constitutionality, thus supplying the requisite adversity between the litigants.17

The Court again suggested that the adversity requirement has a non-constitutional, purely prudential component several decades later in Windsor.18 Windsor involved a constitutional challenge to a federal statute that defined “marriage” to include “only a legal union between one man and one woman as husband and wife.” 19 The statute thus precluded persons in same-sex marriages from claiming federal estate tax exemptions for surviving spouses.20 The respondent, Edith Schlain Windsor, sued the United States to invalidate the provision and obtain a refund of certain federal taxes she paid when she inherited her same-sex spouse’s estate.21 The United States, however, agreed with Windsor that the provision was unconstitutional.22 Still, the United States continued to enforce the statute by denying refunds and assessing deficiencies against surviving spouses in same-sex marriages,23 including Windsor herself.24

The Windsor Court determined that the parties were adverse even though the United States and Windsor agreed that the provision was unconstitutional.25 The Court, citing Chadha, explained that “even where the Government largely agrees with the opposing party on the merits of the controversy, there is sufficient adverseness and an adequate basis for jurisdiction in the fact that the Government intended to enforce the challenged law against that party.” 26 Because invalidating the challenged provision would require the United States to pay money it would not otherwise pay, the Court determined that the United States retained a sufficient stake in the lawsuit to render the case justiciable.27 The Court also suggested, however, that it might have found the case nonjusticiable if the Executive simply paid Windsor the requested refund rather than enforcing the challenged law.28

The Windsor Court acknowledged concerns that the parties might not be fully adverse to each other.29 As in Chadha, however, the Court characterized this risk as a remediable prudential issue, not an incurable jurisdictional defect.30 Once the Attorney General announced that it would not defend the challenged provision, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives intervened in the case to defend the law’s constitutionality.31 The Court therefore determined that “BLAG’s sharp adversarial presentation of the issues satisfie[d] the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree.” 32

The Supreme Court reaffirmed Windsor's adversity holding in its 2020 decision in Seila Law LLC v. Consumer Financial Protection Bureau.33 In that case, the Consumer Financial Protection Bureau (CFPB) issued a civil investigative demand to a law firm.34 The law firm argued that the demand was invalid because the CFPB’s structure violated the constitutional separation of powers.35 Because the federal government, as the respondent in the case, agreed that the CFPB’s structure contravened the separation of powers,36 the Court appointed an amicus curiae to defend the CFPB’s constitutionality.37

Although the court-appointed amicus urged the Court to consider whether the parties’ agreement that the CFPB’s structure was unconstitutional rendered the litigants insufficiently adverse to create a justiciable controversy, the Court ultimately ruled that the case was justiciable.38 Citing Windsor, the Court explained that “a lower court order that presents real-world consequences for the Government and its adversary suffices to support Article III jurisdiction—even if ‘the Executive may welcome’ an adverse order that ‘is accompanied by the constitutional ruling it wants.’” 39 Because the United States had not agreed to withdraw the civil investigative demand against the law firm, a judicial decision upholding or invalidating the CFPB would still have significant consequences for the parties despite their overlapping legal positions.40 The Court thus determined that it had jurisdiction under Article III to issue such a decision.41 The Court further ruled that its appointment of an amicus curiae to defend the CFPB’s constitutionality adequately addressed any non-constitutional, prudential concerns about the parties’ adverseness.42

Chadha, Windsor, and Seila Law thus hold that the adversity requirement does not always bar federal courts from deciding cases in which the defendant agrees that the plaintiff is entitled to the relief he seeks. Those cases also suggest, however, that even though a defendant’s agreement with the plaintiff’s legal arguments will not necessarily vitiate the court’s Article III jurisdiction, prudential concerns may counsel against resolving a case in which the parties have taken identical legal positions. As all three cases show, however, those concerns may lose force when a third party, such as a house of Congress or a court-appointed amicus curiae, appears in the litigation to supply the missing adversarial presentation of the pertinent legal issues.

1: See 462 U.S. 919, 930 n.5, 939–40 (1983).
2: See 570 U.S. 744, 756–63 (2013).
3: See 140 S. Ct. 2183, 2196–97 (2020).
4: See id. at 2194–95; Windsor, 570 U.S. at 752; Chadha, 462 U.S. at 923.
5: See Seila Law, 140 S. Ct. at 2195, 2196–97; Windsor, 570 U.S. at 754; Chadha, 462 U.S. at 928.
6: See Seila Law, 140 S. Ct. at 2196–97; Windsor, 570 U.S. at 756–63; Chadha, 462 U.S. at 930 n.5, 939–40.
7: Cf. Windsor, 570 U.S. at 757 (discussing the prudential standing doctrine) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).
8: See id. at 760 ( “Unlike Article III requirements—which must be satisfied by the parties before judicial consideration is appropriate—the relevant prudential factors that counsel against hearing this case are subject to ‘countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.’” ) (quoting , 422 U.S. 490, 500–01 (1975)).
9: See, e.g., Seila Law, 140 S. Ct. at 2196 ( “[A]micus contends that we should dismiss the case because the parties agree on the merits of the constitutional question and the case therefore lacks ‘adverseness.’ That contention, however, is foreclosed by United States v. Windsor.” ) (internal citation omitted).
10: 462 U.S. at 923 (explaining that Chadha presented “a challenge to the constitutionality of the provision in § 244(c)(2) of the Immigration and Nationality Act . . . authorizing one House of Congress, by resolution, to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney General of the United States, to allow a particular deportable alien to remain in the United States” ).
11: Id. at 928.
12: Id. at 939 (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346 (1936) (Brandeis, J., concurring)).
13: Id.
14: Id. at 940 n.12. See also id. at 939 ( “INS’s agreement with Chadha’s position does not alter the fact that the INS would have deported Chadha absent the Court of Appeals’ judgment.” ).
15: Id. at 940.
16: Id.
17: Id. at 930 n.5, 939–40. See also Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1954 n.5 (2019) (discussing Chadha's adversity holding).
18: 570 U.S. 744 (2013).
19: Id. at 752 (citing 1 U.S.C. § 7). See also ArtVII.1 Historical Background (analyzing the Supreme Court’s jurisprudence on sexual orientation).
20: 570 U.S. at 750–51.
21: See id. at 749–52, 753.
22: Id. at 754.
23: Id. at 756.
24: See id. at 755 ( “The United States has not complied with the [district court’s ruling that the provision is unconstitutional]. Windsor has not received her refund, and the Executive Branch continues to enforce [the challenged provision].” ). As the Supreme Court observed, the United States chose to continue enforcing the statute even though it believed the law was unconstitutional to maintain adversity between the parties and thereby allow the federal courts to adjudicate Windsor’s constitutional challenge. See id. at 754.
25: See id. at 759 ( “[T]his case presents a justiciable controversy under Article III.” ).
26: Id. (quoting INS v. Chadha, 462 U.S. 919, 940 n.12 (1983)) (internal quotation marks and brackets omitted).
27: Id. at 757–59.
28: Id. at 758.
29: Id. at 759 (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346 (1936) (Brandeis, J., concurring)) (internal quotation marks omitted).
30: Id. See also id. at 756 (concluding that dismissing the case as nonjusticiable would improperly “elide[] the distinction between two principles: the jurisdictional requirements of Article III and the prudential limits on its exercise” ); id. at 760 ( “Unlike Article III requirements—which must be satisfied by the parties before judicial consideration is appropriate—the relevant prudential factors that counsel against hearing this case are subject to ‘countervailing considerations [that] may outweigh the concerns underlying the usual reluctance to exert judicial power.’” ) (quoting Warth v. Seldin, 422 U.S. 490, 500–01 (1975)).
31: Id. at 754.
32: Id. at 761.
33: See 140 S. Ct. 2183, 2196–97 (2020).
34: See id. at 2194.
35: See id. at 2191 ( “Congress provided that the CFPB would be led by a single Director, who serves for a longer term than the President and cannot be removed by the President except for inefficiency, neglect, or malfeasance. . . . The question before us is whether this arrangement violates the Constitution’s separation of powers.” ); id. at 2194 (describing the law firm’s argument “that the demand was invalid and must be set aside because the CFPB’s structure violated the Constitution” ).
36: See id. at 2195 ( “[T]he Government agrees with petitioner on the merits of the constitutional question.” ). See also id. (noting that the Director of the CFPB “agree[d] with the Solicitor General’s position . . . that her for-cause removal protection [wa]s unconstitutional” ).
37: Id. An “amicus curiae” is “[s]omeone who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action.” Amicus Curiae, Black’s Law Dictionary (11th ed. 2019).
38: See 140 S. Ct. at 2196.
39: See id. (quoting United States v. Windsor, 570 U.S. 744, 758 (2013)).
40: See id. at 2196–97 ( “Here, petitioner and the Government disagree about whether petitioner must comply with the civil investigative demand. The lower courts sided with the Government, and the Government has not volunteered to relinquish that victory and withdraw the demand. To the contrary, while the Government agrees that the agency is unconstitutionally structured, it believes it may nevertheless enforce the demand on remand. Accordingly, our ‘decision will have real meaning’ for the parties.” ) (quoting INS v. Chadha, 462 U.S. 919, 939 (1983)) (internal citation omitted).
41: See id. at 2195–97.
42: See id. at 2197 ( “[A]s in Windsor, any prudential concerns with deciding an important legal question in this posture can be addressed by ‘the practice of entertaining arguments made an amicus when the Solicitor General confesses error with respect to a judgment below,’ which we have done.” ) (quoting Windsor, 570 U.S. at 760).