Enforcement Lawmaking and Judicial Review

It is—and has long been—well known that the Executive’s power is expanding. To date, there are two dominant analyses of the Judiciary’s role in that expansion: the Judiciary is intrinsically too weak to check the Executive or the Judiciary has actively facilitated the Executive’s unprecedented enlargement of power. This Article challenges those views. It argues that the Judiciary is very much engaged in devising techniques to check executive power. Through developments that are managerial and doctrinal, substantive and procedural, high-profile and seemingly mundane, federal courts have subjected an important set of executive actions—the exercise of enforcement discretion in a manner that goes beyond simple policy and that shares attributes of law—to judicial oversight. Together, these developments reveal a potential shift in the structure of separation of powers. Courts have leveraged their inherent case management powers—the procedures that shepherd lawsuits through the process of judicial review—to force transparency on the Executive and to hold it to account. This Article maps the effects of these “managerial checks,” which render the simple existence of judicial review even more powerful, particularly when enhanced by justiciability doctrines. Courts have authorized judicial review earlier and to greater effect by redefining when executive action is ripe for judicial review. They have created new avenues for multi-party public litigation through developments in standing doctrine. And they have increasingly deployed a muscular remedy, the nationwide injunction, to counterbalance increasingly muscular forms of executive action.

This Article argues that these developments along the entire lifecycle of suits challenging executive power—from standing, to ripeness, to judicial recordkeeping and management, to remedies—should be viewed together and in separation-of-powers terms. The nuts-and-bolts of litigating separation-of-powers suits has led to an emerging expansion of the judicial power. Courts have flexibly and responsively assimilated new assertions of executive power in ways that have restructured federal court doctrine and practice and emboldened federal courts. After documenting these changes at all levels of the federal judicial system, this Article offers a prescription for the Supreme Court. The Supreme Court should avoid prematurely dictating the boundaries of this new judicial power from above and instead allow district courts and courts of appeal considerable freedom to fashion the Judiciary’s checking powers below. Such an approach will avoid even greater politicization of judicial power and premature Supreme Court interventions that have the effect of subjugating judicial power to executive power.