Introduction
The Supreme Court has wavered between two approaches to questions of executive power, which are often labeled institutional formalism and realism. Formalism treats an institution like the presidency as a “black box” to which the Constitution assigns certain powers.1 In Trump v. Hawaii,2 for example, the Supreme Court upheld President Trump’s infamous travel ban3 by focusing not on the “particular President”4 and his past call for a “complete shutdown of Muslims entering the United States,”5 but rather on “the authority of the Presidency itself.”6 That is the language of institutional formalism.
Realism, on the other hand, peers into the “black box,” taking account of how an institution actually works and who actually populates it before defining its powers.7 At times, the Roberts Court has shown glimmers of a more realist orientation. In Department of Commerce v. New York,8 for instance, the Court discredited the Trump Administration’s explanation for why it added a citizenship question to the census by noting that “we are ‘not required to exhibit a naiveté from which ordinary citizens are free.’”9 That is the language of institutional realism.
One can appreciate the allure of both approaches.10 On the one hand, formalism may feel credulous and impotent in the face of presidential misconduct. On the other hand, the Court must craft rules of presidential power that will apply long after the incumbent administration has departed. Wherever one stands on this jurisprudential debate about presidential power, though, we argue in this Essay that a dose of realism is entirely appropriate when it comes to crafting remedies for the executive branch. Remedies, after all, necessarily straddle “the ideal and the real.”11 They aim to effectuate constitutional values in the world as it is. To achieve that aim, constitutional remedies should take account of the nature and propensities of the administration to which they will be addressed.
The Essay has three Parts. In the first Part, we explain why it is generally important to the rule of law that the executive branch “self-apply” legal limits without the involvement of the courts. We then canvass the evidence that the current President and his Administration lack an ethos of self-application. Part II explores two remedial questions now vexing the federal courts. First, the Administration has canceled grants to a broad array of recipients in plain violation of governing statutes and prior obligations of funds. Second, the Administration has purported to remove numerous officials from independent agencies in violation of statutory removal protections. In the ensuing challenges to these aggressive actions, the federal courts have faced a choice of remedy: whether an injured party may seek an injunction in district court to undo or to end the unlawful action, or must instead pursue a damages remedy for lost funds or backpay in the Court of Federal Claims (CFC). We argue that injunctive relief or its functional equivalent in a district court is available in both contexts under existing statutes and precedents.
Putting the first two Parts together, Part III argues that equitable remedies must be available today to make up for a lack of “self-application” by executive officials. Monetary remedies alone are inadequate to constrain an executive branch populated by Holmesian “bad” men — that is, people who view the “law” only as a prediction of what a court will force them to do and who do not heed “the vaguer sanctions of conscience.”12 A “bad man” Executive facing only damages could achieve all its aims even if the courts ultimately adjudicate its actions to be illegal.
Enter equity. Two of the traditional functions of equity are to step in when legal remedies are inadequate and to prevent opportunism.13 If
an equitable remedy cannot make bad actors good in fact, it can at least force them to abide by a better standard. In practical terms, “generally equity will order to be done that which ought to have been done.”14 That should be the courts’ remedial lodestar when confronted with a bad man. An injunction, of course, does not need to be issued in every case, but it should at least be available in accord with traditional equitable principles, both as an external check on the Executive and to fortify any voices within the Executive calling for restraint.
In the end, the adequacy of certain judicial remedies to uphold the rule of law depends on a culture of legality within the executive branch.15 When officials are not committed to that culture, more robust equitable remedies are needed to protect the underlying constitutional principles at issue. And courts today should indulge some realism about the nature of the current Administration when crafting remedies to keep it within legal bounds.