Interbranch Equity
Jonathan David Shaub* | 25.4 | Citation: Jonathan David Shaub, Interbranch Equity, 25 U. Pa. J. Const. L. 780 (2023).
In recent years, Congress has increasingly turned to the courts to challenge executive actions. In these suits, the executive branch has strenuously pressed several distinct doctrinal arguments that interbranch cases are nonjusticiable and must be dismissed. These arguments, though expressed in the relevant language of each individual justiciability doctrine, are all centered on a single fundamental point—the judiciary should not be involved in refereeing a dispute that is solely between the legislative and executive branches. The briefs and judicial opinions explicitly identify a coherent category of cases—interbranch cases. But these cases are treated haphazardly as a matter of doctrine. Within various doctrines, however, the same fundamental argument has been that interbranch suits are exceptional and not appropriate for judicial intervention. Even when that argument has been ultimately rejected, it has largely succeeded in preventing the judiciary from resolving the merits of these interbranch cases before they become moot.
This Article rejects the interbranch exceptionalism that obscures most discussions of these cases and asserts that the judiciary should address—and resolve—interbranch cases on the merits under its equity jurisdiction. It shows that the executive branch has not historically followed the justiciability positions it now asserts, but has in fact accepted and advocated for judicial intervention in the past. The executive branch has strategically adopted justiciability arguments recently to prevent judicial interference as it has asserted more robust and exclusive constitutional authority vis-à-vis Congress. The executive branch is better positioned to engage in constitutional self-help, and these justiciability arguments enable it to retain its constitutional advantage in interbranch disputes. A close analysis of each of these doctrinal justiciability arguments demonstrates that interbranch cases are not exceptional, however. And well-established traditions of equity—which parallel justiciability inquiries related to standing and the political question doctrine—establish the appropriate case-by-case inquiry into the judicial role in an interbranch case. The judicial power extends to all cases in equity arising under the Constitution, including interbranch cases. Courts should not shrink from that responsibility. When appropriate under traditional equitable principles, courts should decide interbranch cases in equity on the merits. Shirking that duty is not a passive virtue but a decision to allow the separation of powers to be determined by constitutional self-help.
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* Assistant Professor, University of Kentucky J. David Rosenberg College of Law; J.D., Northwestern Pritzker School of Law; B.A., Vanderbilt University.