In re Executive Order 013

State of Lincoln et al. v. Gunnz011, President of the United States

Case №20–02 101 M.S.Ct. 114

Justice RestrepoMU, delivered the opinion of a unanimous Court, in which Chief Justice IAmATinman,and Justices JJEagleHawk, and CuriositySMBC joined. Justices BSDDC, JJ. took no part as a new member to the Court.

The job of President of the United States is inherently a balancing act, caught, by design, between their powers and responsibilities, and the constraints imposed by the Constitution, checks and balances, and Federalism. They are charged with securing the public welfare, and often executive action is necessary to accomplish that. But the President has clearly exceeded his authority with Executive Order 013 (hereinafter ‘the Order’ or ‘EO13’). EO13 dangerously undermines our system of checks and balances in the United States, and flies in the face of decades of established legal doctrine, and we strike Section 2 as unconstitutional. Furthermore, despite the President’s rescinding of the order, we find that the mootness doctrine does not apply here.

I. Insurrection

The root of this controversy can be found on the American Plains. A dispute over non-compliance of county governments with State gun regulations exploded into a national crisis, and a standoff between the State of Lincoln, and the White House. After the passage of two Lincoln gun control measures, the Common Sense Gun Control Act of 2019 and the Nationalist Rebuke Act, a private militia group was formed in Powell County, Lincoln. In response, Governor OKBlackBelt of Lincoln issued Executive Order 41, activating the Lincoln National Guard and directing additional powers and military aid to local civil authority. President Gunnz objected to these actions.

Seeking, presumably, to assert Federal control over the situation, the President initially issued Executive Order 11, which ordered that “all federal funds flowing into the state of Lincoln be halted” and further directed emergency funding “to all “2nd Amendment Sanctuary Counties” in the state of Lincoln that the Governor of Lincoln has halted funding to.” Executive Order 11 was quickly repealed and immediately replaced by the Executive Order at hand today. EO 13. It is unclear what the functional purpose of any changes were, as the Order is functionally identical in composition.

These actions made President Gunnz’s support for the counties clear, seeking to stand by the administration’s interpretation of the Second Amendment in their response to the protests. This initial EO, though it was quickly repealed, firmly established the President’s political motivations in this dispute. Rather than seeking to resolve the situation through negotiation and de-escalation, President Gunnz inserted himself firmly into the situation, backing the local militia, going so far as to offer federal land for protection of its members. The federal response juxtaposed between the state’s activation of the National Guard, and later its activation of its State Defense Force show a relationship of that of political gamesmanship and chess. Two sovereign entities, influenced by their ideological interpretation of the situation, seemingly competing on how to solve the situation. It is this competition that brings forth our analysis of coercion and its father and cousin, Separation of Powers and Checks and Balances, respectively.

It is, however, not the role of the Court to critique the policy decisions or priorities of the Executive branch. Rather, we are here to determine if the President’s actions are Constitutional.

II. Coercion and the Constitution

Section 2 of EO 13 halts all federal grants to the state of Lincoln. Petitioner contends that the order cannot pass the test established in South Dakota v. Dole, 483 U.S. 283 (1987). The petitioner is correct that this Executive Order fails that hurdle. In brief, no conditions to receiving the funding were publicly set by the President, meaning that the conditions are by definition ambiguous. The threat of losing all federal funding is also clearly very coercive. Such a penalty would be disastrous for the State and its residents. Most egregiously, however, is the idea that the action promotes the general welfare, or relates to Federal programs. The Court takes no position, at this juncture, on the firearm regulation issue at hand. But it cannot be said that the President is acting in the general welfare by escalating a standoff between levels of government. Nor is the Court aware of any Federal program that promotes such escalation.

Furthermore, this Court has stated before that Congressional action is inherently tied to the concept of the general welfare. “When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress…” Helvering v. Davis, 301 U.S. 619, 645 (1937).

Indeed, as shall be discussed soon, spending power is more closely associated with Congress. If there is a constitutional desire to use funding coercion to achieve a policy goal, it is more appropriate for it to be authorized through Congressional spending authority.

This Court categorically rejects the notion that the allowances given to Congress by Dole extend to the President with the same parameters. Any similar coercive authority available to the President is surely far more limited than the latitude we have afforded Congress. The Dole test was designed to limit Congressional coercion by way of funding conditions, but also allows Congress a degree of latitude that could not similarly be afforded to the President. Therefore, a stricter standard would be needed.

So while the order fails this hurdle, that is not what will ultimately be responsible for its striking. It’s doubtful that the same action if taken by Congress instead of the Executive would pass the same test, but that is a story for another day.

III. Suspending Spending

As we alluded to above, while this case might appear to hinge on Federalism and a conflict between the rights of the States versus the prerogative of the President, the true conflict is between Congress and the President. Firstly, the Court rejects the argument made by a prolific Court visitor, that only Congress has standing to sue in this case. While it is certainly questionable that each state in the union has standing, the idea that the state of Lincoln has no right to contest their losing billions in Federal grants is absurd. However, they, as well as the petitioner, are correct to raise the point that EO13 is exercising a power reserved to Congress. The power of the purse.

The power to appropriate funds for programs established by Congress is essential to the responsibilities and duties of the Legislative branch, as outlined in the Constitution. It is of course subject to a limited, overridable presidential veto, but an absolute Presidential power to impound would be a severe incursion on Congressional power to make law. It would convert the qualified veto into an absolute veto over spending programs and thus would render congressional action in the area of spending — traditionally perhaps the single most important responsibility of Congress — merely advisory or prohibitory. The legislature would be stripped of its powers to create policies and programs for the welfare of the nation whenever spending was involved.

In general, the Court has always been, and remains, highly suspicious of Executive encroachment into the powers of other branches. Checks and balances, essential to our Government, relies on each branch engaging only in powers delegated to them. “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb” said Justice Jackson, in his Youngstown Sheet & Tube Co. v. Sawyer concurrence (343 U.S. 579, 637 (1952)).

Congress took express action on this front, in the Impoundment Act of 1974 (2 U.S.C. §§ 683 et seq.), where Congress limited the ability of the President to withhold or “impound” appropriated funds, without express Congressional permission to do so.

It also cannot be said that an order from the President to a subordinate member of the Executive can override a directive from Congress. In Kendall v. United States ex Rel. Stokes, Justice Thompson asserted that

“[t]he executive power is vested in a President, and as far as his powers are derived from the Constitution, he is beyond the reach of any other department except in the mode prescribed by the Constitution through the impeaching power. But it by no means follows that every officer in every branch of that department is under the exclusive direction of the President. Such a principle, we apprehend, is not and certainly cannot be claimed by the President.” (Kendall v. United States ex Rel. Stokes, 37 U.S. 524, 610 (1838))

In a recent U.S Court of Appeals for the District of Columbia case, current Circuit Court Judge Brett Kavanaugh noted that there are two broad occasions outlined in the Constitution when the President may refuse “[…]in certain circumstances, to decline to act in the face of a clear statute” (In re Aiken County et al. 11–1271 (D.C. Cir. 2012)). The first allows the President to assess the Constitutionality of the action, to avoid violating their Oath of Office, and to remain in compliance with the Take Care Clause (U.S. Const. Article II), and the President has, in the past, certainly exercised this power (See, e.g., Zivotofsky v. Clinton, 566 U.S. 189 (2012)). Though, of course, we would be remiss if we neglected to mention the final authority on the Constitutionality of a law remains this Court. This could not possibly be a reasonable justification in this case, as Congress appropriating funds for Federal grants is among the most fundamental of Congressional powers. The second exception is Executive prosecutorial discretion, and again it is irrelevant here.

Most relevant of all, Judge Kavanaugh (again, currently on the US Court of Appeals) made clear that the “President and federal agencies may not ignore statutory mandates or prohibitions merely because of policy disagreement with Congress” (In re Aiken County et al. 11–1271 (D.C. Cir. 2012)). This of course refers to the President disagreeing with the Congressional act, but this case is little different, as the root of the President’s action is a policy disagreement with the Governor of Lincoln.

As distasteful as it may be to provide funds to a State and Executive with whom the President disagrees ideologically, he is Constitutionally bound to do so, unless Congress expressly provides the President with discretion otherwise. This renders Section 2 of EO13 deeply flawed and ultimately unconstitutional.

IV. On Mootness

The Government appears to have made an attempt to argue that this case, after the repeal of the Executive Order, is moot. However, while the lack of a controversy is often grounds for dismissal, that is not always the case.

Specifically, the voluntary cessation doctrine (see e.g. Iron Arrow Honor Society v. Heckler, 464 U.S. 67 (1983); Vitek v. Jones, 436 U. S. 407 (1978)) keeps this case perfectly relevant for our purposes. As this Court held in another case on executive authority:

“[w]hen a challenged action is revoked solely because of ongoing litigation, the case is usually not moot. In fact, if there is nothing preventing the party from simply engaging in the challenged conduct again, the federal courts jurisdiction remains. Otherwise, a President could, for example, issue an order, and rescind the order once a case is filed only to reissue the order once the case has been dismissed” (In re: Executive Order “Securing America’s Energy Future”, №101 M.S.Ct. 111 (2018)).

This proved to be particularly prescient on Justice Bsddc’s part, as that exact scenario is now possible. Therefore, this Court must conclude that the issue before us is not at all moot, and is fresh for review.

Given the continuance of the crisis, the timing of the repeal, and the extent of the unconstitutionality, we find it highly likely that without clear action on behalf of the Court, another such order would be issued.

V. Ambiguous Emergency Funds

The final point we must confront is Section 3 of the Executive Order, which provides emergency funding to the County militia. Of course the President has the authority to appropriate emergency funding, within the bounds of his legislated authority, for disasters. The President also has limited authority to transfer or reprogram funds already appropriated to the Executive. However, this section was left highly ambiguous, and it is unclear to the Court what the President intended, or how, especially as the funds are not currently being disbursed. Therefore, at this time the Court does not take a position on the Constitutionality of such a move.

VI. In Conclusion

The modern Presidency is among the most powerful positions a Democracy has ever seen. This Court has often deferred to the Presidency, and afforded the position wide latitude to guide the nation. But there still exist boundaries, and this Court remains cautious of Presidential actions that extend into the realm of the other branches. The power of the purse was expressly given to the Congress, and there it should remain. Withholding appropriated funds, with little or no oversight, just cause or delegated discretion, is not consistent with our system of checks and balances. Therefore, we find that section 2 of Executive Order 13 is unconstitutional, and struck.

It is so ordered.