New court ruling may lead to citizens challenging executive overreach
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In August, in United States v. McIntosh, the United States Court of Appeals for the Ninth Circuit ruled that criminal defendants have standing to assert violation by the Department of Justice (DOJ) of a congressional appropriation rider as a basis for obtaining an injunction against the DOJ. The ruling, grounded in the solid legal foundation of Supreme Court precedent, may provide a basis for Congress to allow private actors to challenge executive branch overreach.

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The Constitution vests the power of the purse in the legislative branch. Since 2014, Congress has included as a rider to appropriations bills a provision that (by each rider's terms, temporarily) deprives the Department of Justice of the authority to use funds "to prevent" states that have laws allowing for the cultivation, possession, distribution and use of medical marijuana "from implementing" those state laws.

Several criminal defendants in Western states challenged criminal prosecutions commenced before, but continued after, the first of these riders took effect. These defendants claimed that their dealings in marijuana fell within the relevant state safe harbors, and sought injunctions against the federal government continuing their prosecutions.

The Ninth Circuit in McIntosh upheld the standing, and legal right, of these individuals to relief. In a unanimous opinion, the three-judge panel explained that the Supreme Court has recognized the standing of criminal defendants to raise separation-of-powers arguments. Insofar as the allegation that the executive branch has failed to abide by a limit on appropriations duly enacted by Congress constitutes a separation-of-powers argument, the criminal defendants had standing to raise the challenge.

While the appellate court left it to the lower courts to determine whether in fact the defendants' activities fell within the relevant state safe harbors and how exactly to fashion the precise terms of relief, the court held that the defendants dealing with medical marijuana were entitled to some form of injunctive relief.

The decision in McIntosh invites Congress to explore ways to empower private actors to bring legal separation-of-powers challenges to executive action beyond the criminal realm.

Imagine a provision in an appropriations bill limiting the Environmental Protection Agency's freedom to expend funds in furtherance of regulating greenhouse gases under the Clean Air Act (a goal that, it seems, many members of Congress share). On the logic of McIntosh, it would seem that a private party against whom the government sought to enforce a greenhouse gas regulation promulgated under the Clean Air Act could raise the appropriations provision as the basis for an injunction against the government.

McIntosh does not recognize congressional authority to empower private parties to challenge all types of executive overreach. In particular, if Congress affirmatively authorizes the executive branch to spend money on something, it is doubtful that a private party would have standing to challenge the decision by the executive branch not to expend funds for some particular purpose within that broad authorization.

Thus, for example, the path toward standing to challenge executive branch authority not to seek to deport classes of individuals (an issue on which the Supreme Court Justices tied in a case earlier this year involving a challenge by states) remains murky.

Still, McIntosh does offer some promise for those in Congress interested in empowering private actors to rein in executive power. Congress well could accept such an invitation in an age when members of Congress seem more inclined to believe that those in the executive branch (usually, though not always, in the hands of the opposition party) will try to exert executive power as far as they possible can.

Nash is Professor of Law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.


The views expressed by contributors are their own and not the views of The Hill.