Lawsuits, Courts, and Executive Authority
“There is hardly a political question in the United States which does not sooner or later turn into a judicial one” (Alexis de Tocqueville, 1835). Join UNH Constitutional Law Professor Daniel Pi to explore the judiciary’s evolving role in our constitutional framework and its power to check and constrain executive action. We will discuss historical precedents that illuminate how individuals’ and courts’ judicial philosophies may affect their opinions and how these dynamics play out today. Finally, we will consider current lawsuits, including those in New Hampshire courts, and how these contemporary cases fit into the broader story of checks and balances in American governance.
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Lawsuits, Courts, and Executive Authority
Daniel Pi joined the UNH Franklin Pierce School of Law faculty in 2023. His research applies economic theory to legal questions across diverse subject areas including torts, contracts, criminal law, and constitutional law. Professor Pi was previously on the faculties of George Mason University, Mitchell Hamline School of Law, and the University of Maine, where he taught contracts, criminal law, criminal procedure, philosophy of law, feminist jurisprudence, and law and economics. He was elected by the class of 2019 to be the faculty speaker at graduation. Professor Pi majored in film and television production as an undergraduate at NYU. He earned his J.D., magna cum laude, from the University of Minnesota. He is an Erasmus Mundus Scholar and holds doctorates in law and economics from the University of Bologna and the University of Hamburg. He was the 2014 recipient of the European Association of Law and Economics Göran Skogh Award.
Will the Court "dodge" major constitutional questions?
An attendee referenced Marbury v. Madison and asked whether today's court might similarly avoid directly answering major constitutional questions.
Daniel Pi noted it is very likely the Court will dodge in some cases. In Marbury, the Court declared President Jefferson's actions illegal but concluded it lacked the power to enforce the ruling—an example avoiding direct confrontation while acknowledging wrongdoing.
The concern today is legitimacy. If the Court rules an action unconstitutional and the president openly defies that ruling, it could result in a constitutional crisis. Avoiding that scenario may incentivize narrower rulings or decisions that sidestep the most explosive questions.
What happens if the president defies the Court?
Court compliance by the executive branch has historically been voluntary. While courts can issue rulings, enforcement ultimately depends on the executive branch. If a president refuses to comply with the executive branch itself, there is no higher enforcement authority to compel action.
When it comes to public recourse, Daniel pointed to democratic processes. Presidents of both parties have historically tested the limits of executive authority. The courts define those limits, and constitutional crises arise from a refusal to comply with judicial rulings.
What role does impeachment play?
An attendee asked whether impeachment has legal force beyond symbolic rebuke and whether defying court orders could form the basis for impeachment.
Impeachment has two stages. The House may impeach, but removal from office requires conviction by a two-thirds majority in the Senate. The high threshold was designed to prevent impeachment from becoming purely partisan. Conviction and removal require substantial bipartisan agreement that the conduct warrants removal.
Does the speed of executive action create structural tension?
The office of the president is designed to act quickly, while Congress deliberates and courts move more slowly. However, the difference in pace can create tension if the executive acts rapidly and the other branches are unable to respond in time.
This dynamic may create a structural imbalance, as speed can allow executive actions to take effect before checks are fully applied.
Reflections on New Hampshire litigation
We're currently in a time of significant constitutional change. The last comparable period of executive power was during the Nixon administration, though changes may feel more substantial in part because the executive branch has support from Congress and the courts.
Constitutional interpretation ultimately rests with the courts and judicial philosophy. If people disagree with current developments, Daniel points to democratic change as the ultimate recourse. He also stressed the importance of testing executive initiatives through constitutional review to ensure the actions align with the limits of the Constitution.
