Nana Wu
The architecture of American governance rests on a fragile assumption: that the executive branch, regardless of who occupies the Oval Office, possesses an internal commitment to the rule of law. However, recent legal scholarship suggests that this "black box" model of the presidency—which treats the institution as a sacrosanct entity detached from the individuals who lead it—may be increasingly ill-equipped to address modern executive overreach. As federal courts grapple with aggressive administrative actions, a growing chorus of legal experts is calling for a pivot from "institutional formalism" toward "institutional realism" when crafting judicial remedies.
The Philosophical Divide: Formalism vs. Realism
At the heart of the debate lies a fundamental jurisprudential tension. Institutional formalism, the more traditional judicial approach, views the presidency as a monolithic entity assigned specific powers by the Constitution. Under this framework, courts are hesitant to look behind an executive action to examine the motivations or personal agendas of the incumbent.
The classic example of this is the Supreme Court’s 2018 ruling in Trump v. Hawaii. Despite President Trump’s explicit, public campaign rhetoric calling for a "complete shutdown of Muslims entering the United States," the Court majority upheld the administration’s travel ban. By focusing on the broad, formal authority of the Presidency rather than the specific, discriminatory intent of the individual in office, the Court maintained a formalist distance.
In contrast, institutional realism demands that the judiciary look inside the "black box." This perspective argues that to ignore the reality of how an administration functions—and who populates it—is to practice a form of judicial naiveté. The Roberts Court hinted at this realist turn in Department of Commerce v. New York (2019), when it famously rejected the administration’s stated rationale for adding a citizenship question to the census, noting that the Court is "not required to exhibit a naiveté from which ordinary citizens are free."
Chronology of a Remedial Crisis
The tension between these two philosophies has reached a boiling point due to two specific, recurring patterns of behavior within recent administrations: the unilateral cancellation of congressionally mandated grants and the purported removal of officials protected by statutory tenure.
1. The Erasure of Grant Obligations
Over the past several years, various federal agencies have moved to halt funding for projects and organizations that had already been approved and obligated under governing statutes. This was not merely a budgetary adjustment; it was a policy-driven disruption that ignored prior legal commitments. When affected parties sought redress, the government frequently argued that their only recourse was to sue for damages in the Court of Federal Claims (CFC).
2. The Assault on Independent Agencies
Parallel to these funding disputes, the administration initiated a series of aggressive maneuvers to remove heads of independent agencies—officials protected by statutes designed to insulate them from direct political firing. By bypassing these protections, the executive branch effectively sought to consolidate control over institutions that Congress intentionally designed to be independent of presidential whim.
3. The Judicial Response
In both scenarios, the legal battlefield shifted to the question of remedy. The executive branch argued that if it violated the law, the injured party’s only remedy was a post-hoc monetary award. Conversely, legal scholars argue that such a standard is fundamentally inadequate. If the administration can achieve its illegal goals by simply paying a fine years later, the "rule of law" becomes little more than a cost-of-doing-business calculation.
Supporting Data: The "Bad Man" Theory of Governance
The urgency of this debate stems from what legal scholars refer to as the "Holmesian Bad Man" theory. Oliver Wendell Holmes Jr. once famously posited that a "bad man" cares nothing for the moral or ethical "vaguer sanctions of conscience"; he cares only about what the courts will force him to do.
If an administration functions as a "bad man," it views legal constraints not as moral boundaries, but as predictive hurdles. If the only available remedy for an illegal act is a lawsuit for damages, an administration can successfully execute an illegal policy, face the litigation years down the line, and consider the resulting monetary settlement a successful price for having bypassed the law in the first place.
Data regarding the frequency of these administrative maneuvers suggests a trend toward "remedial opportunism." By systematically delaying compliance or forcing plaintiffs into the Court of Federal Claims—which lacks the power to issue injunctions—the executive branch effectively insulates its policy objectives from immediate judicial review. The result is a shift in the balance of power that undermines the legislative intent of the statutes being ignored.
Official Responses and Administrative Defenses
The executive branch has consistently defended its actions by citing the need for "unitary executive" control and operational efficiency. In litigation regarding the removal of independent agency heads, Department of Justice attorneys have argued that the President must have the authority to remove any subordinate to ensure that the administration’s policy agenda is carried out without internal friction.
Furthermore, regarding the withholding of funds, administration officials have frequently asserted that the executive branch maintains inherent discretion in the management of appropriated funds. They argue that courts lack the authority to dictate the internal allocation of resources, framing these challenges as political questions rather than justiciable legal disputes.
However, critics within the legal community argue that these responses ignore the text of the statutes. When a statute says "shall pay" or "shall not be removed except for cause," the executive’s refusal to comply is not a policy preference—it is a breach of the constitutional separation of powers.
Implications: The Necessary Role of Equity
The proposed solution to this remedial stalemate is a reinvigorated use of equitable relief. Equity—the branch of law concerned with fairness and the prevention of harm—was designed specifically for situations where legal remedies (like monetary damages) are inadequate.
Why Equity Matters
- Preventing Opportunism: An injunction forces the executive branch to halt an illegal action before it is completed, preventing the administration from creating a fait accompli.
- The "Rule of Law" Culture: A court’s willingness to issue an injunction reinforces the internal "culture of legality" within agencies. It empowers career civil servants and legal counsel within the executive branch to push back against unlawful directives, knowing that the courts provide a credible backstop.
- The Lodestar Principle: The traditional equitable maxim, "equity will order to be done that which ought to have been done," should serve as the guide for judges today. When faced with an administration that shows little interest in self-application of legal limits, the courts must be prepared to step in directly to enforce compliance.
Conclusion: A Realist Future for the Judiciary
The adequacy of judicial remedies depends heavily on the assumption that executive officials are acting in good faith. When that assumption fails—when the executive branch treats the law as a mere prediction of judicial intervention—the judiciary cannot afford to remain a formalist observer.
To preserve the constitutional order, the courts must embrace a degree of institutional realism. This does not mean politicizing the judiciary; rather, it means acknowledging that remedies must be crafted to address the reality of the government’s behavior. By making robust equitable remedies available, the courts can provide the necessary external check to ensure that the executive branch remains a servant of the law, rather than a master of its own legal fate. As the current legal landscape suggests, the survival of the rule of law may depend on the courts’ ability to see the world as it is, not merely as it is written in abstract constitutional theory.
Reynand Wu
Azzam Bilal Chamdy
