64 Pages Posted: 1 Aug 2016 Last revised: 11 Nov 2016

See all articles by Josh Blackman

Josh Blackman

South Texas College of Law Houston

Date Written: July 31, 2016


Two of the biggest cases at the Supreme Court this past term ended as they began: gridlocked. In Zubik v. Burwell, the Justices declined to decide the validity of the accommodation to the Affordable Care Act’s (ACA) contraceptive mandate. In United States v. Texas, the Court divided four-to-four on whether Deferred Action for Parents of Americans (DAPA) was lawful.

Both cases involved extremely delicate line-drawing. In the former, the Justices had to determine whether an accommodation to the contraceptive mandate imposed a substantial burden on the free exercise of religious organizations. In the latter, the Court was called on to resolve the scope of the President’s prosecutorial discretion to shield from removal and grant lawful presence to four million aliens. During oral arguments — our only source of insights, because neither case generated a decision on the merits — the Justices seemed divided on how to balance these competing concerns. In the end, the Court resolved neither case — at least for now.

The eight Justices can be forgiven for not being able to reach a clear decision. Congress, and not the courts, should lead these debates over such profound questions about religious liberty and the separation of powers. Indeed, critics allege that both suits are actually policy disputes masquerading as legal controversies. But these suits arose precisely because Congress did not grapple with these foundational issues. Congress was entirely silent about religious accommodations for the mandate, and Congress affirmatively rejected a change to the immigration status quo. Instead, the administration seized on this inaction to justify executive actions that advanced an expansive change in policy.

My goal in this article is not to explain whether DAPA complies with the Immigration and Nationality Act (INA), or if the contraception mandate’s accommodation violates the Religious Freedom Restoration Act (RFRA). In fairness, the Court didn’t either. Rather, I use these two cases to illustrate the relationship between gridlocked government and the separation of powers. Part I applies this framework to Zubik v. Burwell, to demonstrate how congressional silence does not vest the executive branch with the awesome authority to make foundational determinations affecting conscience. Part II analyzes U.S. v. Texas to explain how congressional gridlock does not license the expansion of the executive’s powers. I conclude with a preview of how these still-pending cases are likely to be resolved on remand.

Suggested Citation

Blackman, Josh, Gridlock (July 31, 2016). Harvard Law Review, Vol. 130, 2016, Forthcoming, Available at SSRN:

Josh Blackman (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics