Merely Judgment: Ignoring, Evading, and Trumping the Supreme Court

4 Miami and Executive Checkmate

Popular legend holds, probably incorrectly, that President Andrew Jackson, in response to a U.S. Supreme Court ruling that Georgia had improperly taken Cherokee lands, said, “John Marshall has made his decision; now let him enforce it.” As we know today, Supreme Court decisions are not self-enforcing. The case of Miami demonstrates that the Supreme Court can simultaneously change behavior and appear powerless. Understood in this way and in the context of the constitutional dialogue literature, the case of Miami also demonstrates the uneasiness of the categories of successful and unsuccessful court–elected branch interactions while highlighting the need for judicial primacy. When the Supreme Court decided Croson, the City of Miami, in contrast to Philadelphia and Portland, neither defended its program in court nor legislatively dismantled its minority business enterprise (MBE) program. Indeed, Miami’s program has not undergone any legislative amendments since before the Croson decision in 1989. While Miami has not altered its legislation, the city has responded to the Croson decision in the implementation of its affirmative action program, officially leaving the program on the books but refusing to implement the more controversial elements of the program, and finally (recently) calling the program “not mandatory.” Despite maintaining an unconstitutional program, Miami has avoided litigation chiefly because of its program’s “nonimplemen4 MIAMI AND EXECUTIVE CHECKMATE 94 MERELY JUDGMENT tation” and the concomitant lack of standing accruing to any aggrieved individuals, but also because of the small budget designated by the city for use in this program. Even if Miami’s affirmative action program were implemented to the letter of the law, it would likely not ruffle enough feathers to invite litigation. But why does Miami not simply remove the nonimplemented, and likely unconstitutional , program from its books? I contend that Miami opts to maintain this hollowed-out version of an MBE program not out of a desire to assist minority contractors but because of the perceived political problems for lawmakers associated with taking a stance against an affirmative action program in a majority-minority city. The political benefits of maintaining an unconstitutional program outweigh the perceived costs of its removal. What this means for the constitutional dialogue theory is that elected branch responses cannot always be neatly categorized as successful or unsuccessful. By one measure, Miami’s case seems much like Portland’s: a city maintains an unconstitutional program in the face of a contrary Supreme Court decision. Yet a deeper look at the operation of the program in Miami suggests that the affirmative action program is not actually denying anyone his or her right to equal treatment, because the government is not enforcing the legislation. While in the end, I suggest Miami’s maintenance of the program is still problematic constitutionally, even taking into account the lack of implementation, this mixed nature of Miami’s response to the Supreme Court is very much a mixed success in terms of constitutional dialogue. There is a public face of elected branch monologue, yet a more in-depth analysis suggests that there is a sort of a consensus among the branches of government that affirmative action in government contracting is unconstitutional. Miami’s Affirmative Action Program Miami’s affirmative action program traces its roots back to the mid-1980s. In 1984, the City of Miami’s city manager, Howard Gary, an African American, hired a former Urban League executive as a special assistant to draft legislation that would address serious disparities between white- and black-owned firms in city contracting . Though the legislation would also cover Hispanic- and womenowned businesses (WBEs), the primary impetus behind the pro- MIAMI AND EXECUTIVE CHECKMATE 95 gram was to address what one city bureaucrat sarcastically referred to as the fact that “less than zero percent” of city contracts were being awarded to African Americans. The then mayor, Maurice A. Ferre, a Puerto Rican and the first Hispanic mayor of a major American city, had been mayor of Miami since 1973 and was a strong supporter of Miami’s black community. Xavier L. Suarez, the city’s first Cuban American mayor, defeated Ferre before final passage of the bill, and on December 19, 1985, Mayor Suarez signed Ordinance 10062, “The Minority and Women Business Affairs and Procurement Ordinance of the City of Miami,” into law. The MBE program sought to spend more than half of all city contract...