JUSTICE DELAYED: GOVERNMENT OFFICIALS' AUTHORITY TO WIND DOWN CONSTITUTIONAL VIOLATIONS

• Published in: Boston University law review Vol. 103; no. 7; pp. 2065 - 2112
• Main Authors: Buchanan, Neil H, Dorf, Michael C
• Format: Journal Article
• Language: English
• Published: Boston Boston University School of Law 01.12.2023
• Subjects: Attorneys general; Bankruptcy laws; Compliance; Constitutional law; Deferred Action for Childhood Arrivals; Federal court decisions; Government obligations; Immigration; Judges & magistrates; Litigation; National security; Presidents; Public officials; Violations; Canada; United States > US; Manitoba Canada
• ISSN: 0006-8047

Upon finding a government program unconstitutional, U.S. courts sometimes allow executive cfiicials a grace period to wind it down rather than insisting on its immediate cessation. Courts likewise occasionally Cjford a legislature a grace period to repeal an unconstitutional law. Yet no one has even attempted to explain the source of authority for allowing ongoing constitutional violations or to prescribe the limits on permissible compliance delays. Until now. Judicial toleration of a continuing constitutional violation can be conceptualized as an exercise of the equitable discretion to withhold iijunclive relief, but that rationale does not justfy the practice of executive cfiicials and legislatures phasing out rather than immediately ceasing their own violations without judicial intervention. The authority for that practice inheres in the merely prima facie nature of the obligations law imposes. Where immediate compliance would risk disaster, government actors, no less than individuals, act justifiably (even f technically illegally) by decelerating gradually rather than slamming on the brakes. This Article builds on previously unarticulated principles implicit in the case law to propose three limits. First, wind-down authority exists only where immediate compliance would lead to extreme harms that clearly and overwhelmingly outweigh the harms of noncompliance; mere inconvenience or expense does not stjfice. Second, the duration of any compliance delay should be spec fled in advance and minimized. Third, failure to wind down a violation in the prescribed time should be excused only following good-faith eforis; even then, in general, at most one extension should be allowed before courts impose sanctions for noncompliance. These limits will deter the kind of recalcitrance associated with massive resistance to desegregation that the Supreme Court invited with the "all deliberate speed" formulation of Brown v. Board of Education II, 349 U.S. 294, 301 (1955). The legitimacy of wind-down authority also implies the power to initiate a constitutional violation in extraordinary circumstances. Thus, for example, should Congress fail to raise the debt ceiling before government obligations outstrip revenue, the President need not exhaust technically legal but disastrous options (such as selling national parks to real estate developers at fire sale prices) before taking unconstitutional measures (such as borrowing in excess of the debt ceiling) to mitigate the harm.