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OT \u2722 and the Path of Administrative Law
No full textThis symposium piece reflects on the Supreme Court’s October 2022 term and what it reveals for the direction of administrative law. It argues first that the nondelegation doctrine is dead but not for the reason functionalists have been arguing for so long. It is dead rather because the causes of its revival have been effectively removed. Nondelegation concerns are most felt when there is significant executive unilateralism; in the past such unilateralism was encouraged by the Chevron doctrine, which allows the executive branch to interpret statutes creatively and, so long as those interpretations are plausible, requires courts to defer to that branch’s interpretation. Part I describes this legal framework and how it contributes to executive unilateralism.
In the Court’s two most important administrative law decisions this past term, Sackett v. EPA and Biden v. Nebraska, involving executive interpretations of statutes, not once did the Supreme Court mention Chevron; indeed, not once did the parties mention Chevron. The doctrine is therefore dead, at least at the Supreme Court, and the Court will be giving the statutes their best readings. That alone would go a long way to deflating concerns about nondelegation. But the Court has gone even further: in both cases, the Court deployed a version of the “major questions doctrine” to conclude that the statutes did not authorize the politically and economically significant regulations in question. That doctrine requires a clear statement from Congress when delegating questions of major political or economic significance. In short, the Court will no longer defer, and in fact will demand, a clear statement that Congress intended major delegations. Between the two phenomena, there will likely be no reason to address nondelegation in the near future. Part II explains this shift.
Importantly, however, the removal of serious nondelegation challenges is not because the Court’s new approach to statutory interpretation enforces the nondelegation doctrine, at least not directly. Rather, the Court’s new approach is consistent with textualism and only incidentally affects the nondelegation concern. This Article concludes with a positive evaluation of Justice Amy Coney Barrett’s concurrence in Biden v. Nebraska, which tracked the view the present Author has defended at length elsewhere that the major questions doctrine is a linguistic rather than substantive canon. At times, however, Justice Barrett’s defense of the major questions doctrine serves to enforce the nondelegation doctrine more than it lets on. Part III elaborates on these observations
OT \u2722 and the Path of Administrative Law
Full text linkThis symposium piece reflects on the Supreme Court’s October 2022 term and what it reveals for the direction of administrative law. It argues first that the nondelegation doctrine is dead but not for the reason functionalists have been arguing for so long. It is dead rather because the causes of its revival have been effectively removed. Nondelegation concerns are most felt when there is significant executive unilateralism; in the past such unilateralism was encouraged by the Chevron doctrine, which allows the executive branch to interpret statutes creatively and, so long as those interpretations are plausible, requires courts to defer to that branch’s interpretation. Part I describes this legal framework and how it contributes to executive unilateralism.
In the Court’s two most important administrative law decisions this past term, Sackett v. EPA and Biden v. Nebraska, involving executive interpretations of statutes, not once did the Supreme Court mention Chevron; indeed, not once did the parties mention Chevron. The doctrine is therefore dead, at least at the Supreme Court, and the Court will be giving the statutes their best readings. That alone would go a long way to deflating concerns about nondelegation. But the Court has gone even further: in both cases, the Court deployed a version of the “major questions doctrine” to conclude that the statutes did not authorize the politically and economically significant regulations in question. That doctrine requires a clear statement from Congress when delegating questions of major political or economic significance. In short, the Court will no longer defer, and in fact will demand, a clear statement that Congress intended major delegations. Between the two phenomena, there will likely be no reason to address nondelegation in the near future. Part II explains this shift.
Importantly, however, the removal of serious nondelegation challenges is not because the Court’s new approach to statutory interpretation enforces the nondelegation doctrine, at least not directly. Rather, the Court’s new approach is consistent with textualism and only incidentally affects the nondelegation concern. This Article concludes with a positive evaluation of Justice Amy Coney Barrett’s concurrence in Biden v. Nebraska, which tracked the view the present Author has defended at length elsewhere that the major questions doctrine is a linguistic rather than substantive canon. At times, however, Justice Barrett’s defense of the major questions doctrine serves to enforce the nondelegation doctrine more than it lets on. Part III elaborates on these observations
The Origins of Substantive Due Process
Full text linkIn the antebellum nineteenth century, courts often voided legislative acts for substantive unreasonableness or for exceeding the scope of legitimate police powers. Contrary to the assertions of a number of modern scholars, however, this tradition does not support the concept of economic substantive due process. Courts voided municipal acts exceeding the scope of legitimate police powers on two grounds—the law of delegation and the law of municipal corporations—that did not apply to acts of state legislatures. The states themselves were limited to reasonable exercises of the police power only when their asserted authority came into potential collision with federal constitutional requirements, most prominently the Commerce and Contracts Clauses.
It was only late in the century, after the adoption of the Fourteenth Amendment, that a police-power version of substantive due process emerged as a limitation on state legislatures as courts began conflating, under the guise of “due process of law,” earlier doctrines that had used a similar vocabulary but for distinct purposes. Police-power limitations on state legislatures regulating purely internal matters therefore probably cannot be justified by any antebellum legal conception of due process of law. A police-power analysis might, however, play some role in a Privileges or Immunities Clause challenge by analogy to antebellum Commerce Clause and Contracts Clause jurisprudence
Qualified Immunity and Statutory Interpretation
Full text linkBefore the 1989 case of Graham v. Connor, excessive force cases were pursued under either state law or the insuperable “shocks the conscience” test of the Fourteenth Amendment. Only after Graham did excessive force cases—now under the Fourth Amendment and 42 U.S.C. § 1983—inundate the federal courts, which had by then granted far-reaching immunities to officers for their constitutional torts. As a result of federal qualified immunity doctrine, which many states have adopted for themselves, excessive force cases rarely get to trial, plaintiffs often cannot recover, and courts struggle to find principled distinctions from one qualified immunity case to the next. This Article examines the evolution of excessive force cases in the federal courts, along with the evolution of qualified immunity doctrine. This Article makes the theoretical case under both constitutional and statutory interpretation for replacing modern qualified immunity doctrine with a return to its common law variety in excessive force actions—an approach that would also be far more judicially workable than the current doctrine
Reversing Incorporation
Full text linkIt is originalist gospel that the Fourteenth Amendment’s Privileges or Immunities Clause was intended, at a minimum, to incorporate the Bill of Rights against the states. This Article revisits forty years of scholarship and concludes that this modern consensus is likely mistaken. Reconstructing antebellum discourse on fundamental rights reveals that the historical players assumed that every state must, as all free governments had to, guarantee and secure natural rights to their citizens. But that did not mean the states regulated these rights in the same way, nor did that dictate what the federal government’s role would be in guaranteeing and securing such rights. The record reveals that the antislavery and Republican concern, both before and after the adoption of the Fourteenth Amendment, was equality in civil rights however de-fined and regulated under state law. In making this claim, this Article identifies a significant conceptual error pervasive in the literature: conflating the rights the first eight amendments secure with the first eight amendments themselves. Merely identifying the freedom of speech or the right to bear arms as a privilege or immunity of United States citizenship tells us nothing about how various constitutional provisions would guarantee and secure them
The Original Presidency: A Conception of Administrative Control
Full text linkThe two predominant conceptions of executive power and supervision over the administrative state are inadequate. One maintains that all administrative discretion is the President’s, and that by virtue of the grant of executive power the President can both remove and control the discretion of all subordinate offcers. That poses a possible textual problem: it seems to make the Opinions Clause superfuous. The other conception maintains that the President is, at best, a “persuader-in-chief,” with no constitutional right to control administrative discretion or to remove offcers tasked with implementing statutory duties. Although this view makes sense of the Opinions Clause, there is no historical evidence for it. The proponents of these two schools of thought have thus been locked in a decades-long stalemate, with competing and irreconcilable paradigms of total control or no control. This Article recovers another, lost way of thinking about presidential power. According to this conception, Congress can insulate inferior offcers from removal because they must follow orders. As for principal offcers, the President can remove but not control them, at least not directly. There is no constitutional obligation on the part of principal offcers to obey; the only inducement is the threat of removal. The Opinions Clause, far from being superfuous, then assures the President the power to acquire information to exercise intelligently the power to remove. In addition to this account’s textual and structural virtues, it appears to have been a relatively widely shared understanding of presidential power at the Founding, enough so to be within the range of plausible original meanings. This understanding of executive power may seem overly formalistic, but it is functionally more desirable than the two competing accounts that allow for total control or total balkanization
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The second founding ::an introduction to the Fourteenth Amendment /
No full textIn The Second Founding: An Introduction to the Fourteenth Amendment, Ilan Wurman provides an illuminating introduction to the original meaning of the Fourteenth Amendment's famous provisions 'due process of law,' 'equal protection of the laws,' and the 'privileges' or 'immunities' of citizenship. He begins by exploring the antebellum legal meanings of these concepts, starting from Magna Carta, the Statutes of Edward III, and the Petition of Right to William Blackstone and antebellum state court cases. The book then traces how these concepts solved historical problems confronting framers of the Fourteenth Amendment, including the comity rights of free blacks, private violence and the denial of the protection of the laws, and the notorious abridgment of freedmen's rights in the Black Codes. Wurman makes a compelling case that, if the modern originalist Supreme Court interpreted the Amendment in 'the language of the law,' it would lead to surprising and desirable results today
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