Eugene Volokh's Blog, page 248

[Jonathan H. Adler] Business and the Roberts Court Revisited

The Roberts Court has long been described as a "pro-business" court. News reports summarizing John Roberts' first term as Chief Justice described the Court as business friendly. A New York Times Magazine profile was simply labeled "Supreme Court, Inc." Activist groups tallied the win-loss record of the Chamber of Commerce, and academics published quantitative assessments purporting to show that the Supreme Court under Chief Justice Roberts was more sympathetic to business interests than any Court in decades.

I have been skeptical of the "pro-business" label as a useful description of the Court from the outset. Quantitative assessments of the Court's decision-making have their place, but qualitative assessments of the Court's decisions is necessary to evaluate the extent to which the Court's decisions are benefitting or assisting business interests. Further, insofar as business groups tend to win in some sorts of cases but not others, it is more useful to describe the Court's jurisprudence with more nuance and precision. A simply hashtag label is not that informative.

 

My 2016 book, Business and the Roberts Court sought to take a deeper look into the Court's handling of business-related cases. In this volume, subject-matter experts looked at different aspects of the Court's jurisprudence. Was the conclusion that the Court is "pro-business"? Here is how I summarized the findings:

Where business interests seek outcomes that are in line with the justices' doctrinal commitments, they can expect to prevail.  Yet where business interests are unable to marshal arguments that appeal to the justices' underlying judicial philosophies, their odds are less favorable, no matter how much business groups may believe is at stake.  So rather than say this is a Court that is "pro-business," it is more accurate to say that this is a Court that business likes — except when it doesn't.

Since then, the debate over whether to characterize the Court as pro-business has continued. In 2022, for instance, Lee Epstein and Mitu Gulati published an analysis of the Supreme Court's treatment of business cases between 1920 and 2020.

Earlier this semester, I presented a new paper revisiting the question whether the Supreme Court is properly characterized as "pro-business" and offering a preliminary assessment on the extent to which Donald Trump's appointment to the Court have made the Court more (or less) business-friendly. The paper is part of a symposium to be published in The Annals of the American Association of Political and Social Science. Here is the abstract:

The Roberts Court has long been characterized as a pro-business court, perhaps the most pro-business court in a century. Insofar as this alleged pro-business orientation is due to the Court's Republican-appointed majority, President Trump's appointments to the Supreme Court should have magnified the Court's pro-business orientation. Yet there are reasons to question the general characterization of the Court as "pro-business" as well as the assumption that an increase in the Court's Republican-appointed majority has increased any probusiness orientation. Quantitative analyses often fail to account for the relative importance of individual decisions, the broader, legal context in which the Court's decisions are made, or how the Court's decisions alter or depart from pre-existing legal baselines. While President Trump's appointments to the Court have fairly consistently voted to restrain the power of administrative agencies, they have not consistently supported outcomes that are beneficial to business. In some areas in particular, such as cases involving state laws that may fragment or burden national markets, the Roberts Court may actually be less sympathetic to business interests than it was prior to Trump's appointments to the Court.

On the one hand, the Roberts Court has become more skeptical of agency power and the administrative state. Thus insofar as one considers "pro-business" to mean "anti-regulatory," one may conclude that the Court has become more solicitous of business concerns since Justices Gorsuch, Kavanaugh, and Barrett replaced Justices Scalia, Kennedy, and Ginsburg.

On the other hand, the Court appears to have become more skeptical of business arguments in favor of federal preemption of state regulations, whether under preemption doctrine of the Dormant Commerce Clause (think of cases such Virginia Uranium and National Pork Producers Council), while simultaneously becoming less solicitous of business arguments seeking to limit state court jurisdiction in tort suits (see, e.g., Mallory). This shift is particularly interesting as it appears to mark a shift in the Court's jurisprudence—and a shift that is due, in part, to Trump's appointments, Justice Gorsuch in particular.

While any assessment of the affect of Trump's appointments to the Court is necessarily preliminary, I believe these shifts underscore the point that it is more helpful to think about the doctrinal commitments of the justices than to focus on broad characterizations such as "pro" or "anti" business. So, for example, one might characterize the Court's emerging jurisprudence as one that is skeptical or hostile to federal regulation, but solicitous of state law. Insofar as this is a fair characterization, it would highlight how the Court looks favorably on business concerns in some areas (such as where business groups challenge federal regulatory agencies), but is unsympathetic in others (such as where business groups seek to constrain state authority). And whether these tendencies are good or bad is a separate question entirely.

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[David Bernstein] Harvard Officially Allows Protestors Ten Minutes to Disrupt Events

From Kassy Akiva's X feed:

At Harvard for an event with Mosab Hassan Yousef [author of Son of Hamas].

The organizers were just forced to read a note from the Harvard administration stating that disrupters are allowed to make noise for 10 minutes before being removed.

Here's the full statement the students had to read to the audience:

"A quick note before we begin—Harvard University is committed to maintaining a climate in which reason and speech provide the correct response to a disagreeable idea. Speech is privileged in the University community. There are obligations of civility and respect for others that underlie rational discourse. If any disruption occurs that prohibits speech the disrupters will be allowed for up to 10 minutes. A warning will be issued to all disturbers at the 5-minute mark explaining that the protesters are disrupting the event and ask them to stop. Any further disruption that prevents the audience from adequately hearing or seeing the speakers will lead to the removal of the disrupters from the venue."

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[Eugene Volokh] Thursday Open Thread

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[Ilya Somin] Perils of Broad Presidential Power Over Tariffs

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Donald Trump's plan to impose massive 10% or greater tariffs on all imported goods is a centerpiece of his potential second term policy agenda. If implemented, it would cause enormous harm to the US economy, raise prices on many goods, and seriously damage relations with our allies. The potential damage is likely to be enormous. Trump's tariff plan is even more dangerous than it might be otherwise, because he can probably implement it without any new congressional authorization.

As Trump himself puts it,  "I don't need Congress [to impose tariffs]…. I'll have the right to impose them myself, if they don't." If he's right, that differentiates it from many other harmful policy ideas put forward by presidential candidates, that do require new legislation, which would often be difficult or impossible to push through a closely divided Congress. That's true of Kamala Harris's awful rent control and price control plans, for example (she has recently scaled back the price control proposal).

Is Trump right to claim the president has unilateral authority to start a massive trade war? Under current legislation and judicial precedent, the answer is likely yes. My Cato Institute colleagues Clark Packard and Scott Lincicome have published a valuable new analysis of this crucial issue. Here's the summary of their findings:

Article I, Section 8 of the US Constitution grants Congress the power to "lay and collect Taxes, Duties, Imposts and Excises," and to regulate commerce with foreign countries. From the founding of the republic through the early 1930s, Congress set tariff rates through legislative revisions to the US tariff schedule. Low tariffs were initially imposed to raise revenue for the federal government, but tariffs became a tool to protect domestic producers from foreign competition. Throughout this period, tariff rates fluctuated with the makeup of Congress, while the president was largely a bit player in setting international trade policy.

This approach to US tariffs changed dramatically following the disastrous Trade Act of 1930, better known as the Smoot-Hawley Tariff Act after its sponsors Rep. Willis C. Hawley (R‑OR) and Sen. Reed Smoot (R‑UT). The act was signed by President Herbert Hoover in June 1930 over the objection of virtually every prominent economist at the time; it became the largest tariff hike in US history, inflicted serious damage to the US economy and international relations, and vividly demonstrated the shortcomings (and outright corruption) of congressional tariff-setting.1

In response, Congress delegated large amounts of its international economic authority to the executive branch in 1934 and through subsequent laws, under the prevailing assumption that the president was far less likely than Congress to be influenced by parochial interests and rent-seeking lobbyists—and thus far less likely to repeat Smoot-Hawley. For about 85 years, this bipartisan approach proved successful: major tariff hikes and trade wars were avoided and international trade flourished.

That changed with the 2016 election of Donald J. Trump.

Upon taking office, President Trump used the powers granted to him by Congress to take a series of unilateral actions that radically upended US international economic policy. Most prominently, Trump imposed national security tariffs on imported steel and aluminum from virtually every country—including longstanding allies—and hiked tariffs on more than half of all goods from China, which was at that time the United States' largest import supplier.

Although the Biden administration promised to turn the page on its predecessor's unilateralism, it instead repeatedly defended the Trump administration's tariffs—and the broad authority Congress delegated to the executive branch—in court. President Biden also maintained most of the tariffs in original or modified form. The administration has even increased some of the China tariffs, citing the same laws and regulations that Trump abused in 2018.

In his 2024 presidential campaign, former President Trump has promised even more aggressive unilateral protectionism in the future. In particular, Trump has promised an across-the-board 10–20 percent tariff on all imports from every country and a 60 percent tariff on all imports from China; he claimed in September 2024 that he could do so without congressional approval.2 Economists and other trade policy experts have warned that such tariffs would harm both the US economy and the country's foreign policy.3 However, some have sought to temper these concerns by confidently noting that practical and legal constraints would prevent a future President Trump from enacting broad tariffs without congressional consent.

As this paper explains, such confidence is mostly misguided. Several US laws provide the president with vast and discretionary authority to unilaterally impose sweeping trade restrictions, and no institution—not Congress, not domestic courts, not US international agreements—provides a quick, surefire check on such actions. Thus, while the durable implementation of broad and damaging US tariffs is not guaranteed, its risk—and related economic and geopolitical risks—will remain real and substantial until US law is changed to limit presidential tariff powers. We therefore recommend Congress enact such amendments immediately.

Packard and Lincicome are right to urge Congress to cut back on the powers it has delegated to the president in this field. But, sadly, that's unlikely to happen anytime soon. Thus, if Trump wins the election, there is a good chance he could impose his enormous new tariffs without the need for new legislation.

Elsewhere, I have argued that the current sweeping delegation of tariff authority to the president is unconstitutional because it violates nondelegation principles. I am not alone in that view among scholars and judges. But adopting it would require the courts to reverse or at least significantly alter current precedent. We can't count on that happening, especially in the near future. So far, the Supreme Court, including its current conservative majority, have been very wary of giving real teeth to nondelegation.

The Court has been more aggressive in its use of the "major questions" doctrine, which requires Congress to "speak clearly" when authorizing an executive branch agency to exercise "decisions of vast 'economic and political significance.'" Partly on that basis, the Court invalidated President Biden's massive student loan forgiveness plan last year. But, as Packard and Lincicome explain, the laws delegating tariff authority to the president are very broadly worded. That might well be enough to qualify as a "clear" statement under the major questions doctrine; exactly how much clarity MQD requires is itself far from clear, under current Supreme Court precedent. Also, it is not certain the Supreme Court will apply MQD as aggressively when it comes to tariffs and other international relations issues, as it does elsewhere.

Packard and Lincicome also note that courts upheld a variety of dubious Trump tariffs during his first term, despite serious flaws in the rationales offered by the federal government. Perhaps things would be different for the much more sweeping tariffs Trump plans this time around. But we can't count on that.

In sum, there is at least a high probability that if Trump wins the election, he will be able to implement his dangerous tariff agenda, and Congress and the courts would do unwilling or unable to stop him. As we consider which candidate is the lesser evil in this year's election, this sad reality should carry a lot of weight.

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[Eugene Volokh] "Illinois Revokes 'October 7' License Plates"

So reports The National News Desk:

Illinois Secretary of State Alexi Giannoulias revoked five "October 7" license plates from state drivers this week after receiving complaints about them.

One such license plate went viral on X after it was shared by Jewish advocacy organization StopAntisemitism. The image shows the plate surrounded by a "free Palestine" frame.

Here's the Tweet:

Over 1200 people brutally murdered.
Women and children raped and tortured.
200+ kidnapped, including Americans.

And this driver decided to honor the day it happened on his license plate. pic.twitter.com/8m264iPFzN

— StopAntisemitism (@StopAntisemites) September 12, 2024

Is this constitutional? Well, there's a hot debate about that, though the rule adopted by most lower courts would suggest the answer is "no."

The question is whether the license plate is seen as "government speech" or as the driver's own "private speech." (The license plate frame is clearly the driver's private speech.) If it's government speech, then the government can choose which viewpoints to speak and which not to, much as the government can choose which monuments to put up in a park, or even which monuments to accept when people offer to donate them. If it's private speech, even within a government-run program—such as, for instance, trademarks within a trademark registration system—then the government must administer the program in a viewpoint-neutral way.

In Walker v. Sons of Confederate Veterans (2012), the Court held that the license plate background design is government speech, even when the government let various groups propose their own designs (which the government almost always accepted). But most, though not all, lower courts that have considered the question as to the actual license plate letter/number combination on these "vanity plates" have held that these are the driver's own speech. To quote one recent decision, Overington v. Fisher (D. Del. 2020),

[N]umerous courts since Walker have addressed the alphanumeric text of vanity plates, with varied results. Compare Carroll v. Craddock, 494 F. Supp. 3d 158, 166 (D.R.I.2020), Kotler v. Webb, No. CV 19-2682-GW-SKX, 2019 WL 4635168, at *7 (C.D. Cal. Aug. 29, 2019), Ogilvie v. Gordon, No. 20-CV-01707-JST, 2020 WL 10963944, at *2-5 (N.D. Cal. July 8, 2020), Gilliam v. Gerregano, No. M202200083COAR3CV, 2023 WL 3749982, at *10 (Tenn. Ct. App. June 1, 2023), and Mitchell v. Maryland Motor Vehicle Admin., 450 Md. 282, 294, 148 A.3d 319, 326-27 (2016) (finding that the alphanumeric text of vanity license plates is private speech) with Odquina v. City & Cnty. of Honolulu, No. 22-CV-407-DKW-RT, 2022 WL 16715714, at *7-9 (D. Haw. Nov. 4, 2022) and Comm'r of Ind. Bureau of Motor Vehicles v. Vawter, 45 N.E.3d 1200, 1207 (Ind. 2015) (finding that the alphanumeric text of vanity license plates is government speech). The majority of these cases have concluded that personalized license plate sequences are private speech, not government speech. This Court agrees with the majority of courts on this issue. The Court finds that the alphanumeric sequences on vanity license plates in Delaware are private speech and not government speech for the following reasons.

First, the alphanumeric sequences on vanity license plates in Delaware have not long been used to convey governmental messages. Walker itself noted that "insofar as license plates have conveyed more than state names and vehicle identification numbers, they have long communicated messages from the states." By contrast, in Delaware, there is a fifty (50) year history of vanity plate sequences being selected by motorists, and no history of the government communicating messages through the alphanumeric sequences on license plates. Unlike in Walker, where state governments have historically used the design of license plates to communicate messages, Delaware has not historically used the text of vanity license plate numbers to communicate messages. "To the extent the individual registration number configurations broadcast any message at all, it is only because the state has allowed individual drivers to pick some combination of letters and numbers that carries significance to the driver." ...

Second, there is no credible evidence that reasonable viewers expect the government to be sending or endorsing messages via the alphanumeric sequences on vanity license plates. While vanity license plates do contain the word "Delaware," the record does not support, for example, the proposition that viewers of the vanity license plate "OMG GO" believe the state is telling others to drive faster. As the Supreme Court noted in holding that trademarks are not government speech, despite being registered, "[i]f the federal registration of a trademark makes the mark government speech, the Federal Government is babbling prodigiously and incoherently. It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services." …

Third, although Delaware does exercise some control over the vanity license plates it issues, that regulatory control alone is insufficient to transform private messages into government speech…. "[W]e must exercise great caution before extending our government-speech precedents," because "[i]f private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints." … Delaware's regulatory "control" of the alphanumeric sequences on vanity plates does not reflect the control that a speaker exercises over their own speech, but only the control that governments exercise or attempt to exercise in a variety of other contexts….

If the alphanumeric combination on the plate is treated as private speech, then the government might still be able to restrict it based on non-viewpoint-based content factors (e.g., perhaps excluding common vulgarities), but it can't restrict it based on viewpoint. And here the government is indeed acting based on what either it or other observers infer as the viewpoint of the "Oct 7" plates (that they endorse the Oct. 7 attacks, or for that matter that they take some other position on the attacks).

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[Eugene Volokh] Journal of Free Speech Law: "Is John Stuart Mill's On Liberty Obsolete?," by Vince Blasi

The article is here; the Introduction:

Without a doubt, the most widely read and closely studied argument for the freedom of speech ever written appears in John Stuart Mill's On Liberty. Marking in 1959 the centennial of the essay's publication, Isaiah Berlin opined that Mill's "words are today alive and relevant to our own problems; whereas the works of James Mill, and of Buckle and Comte and Spencer, remain huge, half-forgotten hulks in the river of nineteenth-century thought." According to Berlin:

Mill's central propositions are not truisms, they are not at all self-evident…. They are still assailed because they are still contemporary…. Mill looked at the questions that puzzled him directly, and not through spectacles provided by any orthodoxy…. One of the symptoms of this kind of three-dimensional, rounded, authentic quality is that we feel sure that we can tell where he would have stood on the issues of our day…. Surely that alone is some evidence of the permanence of the issues with which Mill dealt and the degree of his insight into them. Because … his conception of man was deeper, and his vision of history and life wider and less simple than that of his utilitarian predecessors or liberal followers, he has emerged as a major political thinker in our own day.

Berlin's "day" was the middle of the twentieth century. My question is whether sixty-five years later he plausibly could have maintained Mill's contemporaneity in the face of the various ways that digital technology has altered the dynamics of human belief formation and persuasion.

To address this question, I identify the distinctive concerns, assumptions, concepts, objectives, and derivations that have given Mill's argument its preeminence for a century and a half. Then I canvass the changes wrought by digital technology in how speakers formulate their messages and generate attention to them, and how audiences notice, receive, and potentially act on such messages. Finally, I assess whether, in the light of such changes, On Liberty remains an instructive resource for thinking about what Mill terms "the liberty of thought and discussion" and its cognate liberties.

And the concluding paragraphs:

Certainly, a utilitarian, especially one whose measuring rod is "the permanent interests of man as a progressive being," needs to be forward-looking in the sense of not assuming that current patterns of belief formation that bear on societal well-being constitute the inevitable future. If the corrigibility of belief is as important as Mill claims it is, and if keeping alive the ideal of the open mind is a way to help revitalize the active holding of unfrozen opinions, or even just preserve what corrigibility of belief remains in the digital age, On Liberty has something to say to contemporary readers.

In that regard, despite six subsequent decades of evolution in the processes of opinion formation, Isaiah Berlin's centennial assessment of On Liberty's durability remains apt:

Mill's defence of his position in the tract on Liberty is not, as has often been pointed out, of the highest intellectual quality…. Nevertheless, the inner citadel—the central thesis—has stood the test. It may need elaboration or qualification, but it is still the clearest, most candid, persuasive, and moving exposition of the point of view of those who desire an open and tolerant society. The reason for this is not merely the honesty of Mill's mind, or the moral and intellectual charm of his prose, but the fact that he is saying something true and important about some of the most fundamental characteristics and aspirations of human beings.

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[Curtis Bradley] New Book on Historical Gloss and Foreign Affairs, Part IV

This is the fourth of five posts about my new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice. In the last post, I discussed the termination of U.S. treaties and executive agreements. In this post, I consider the distribution of authority between Congress and the President with respect to the use of military force.

The Constitution gives Congress the power to declare war, but many military conflicts do not involve formal declarations of war, and that was true even at the Founding. And the Constitution makes the President the Commander in Chief without defining the nature or scope of that role.

There has long been uncertainty about the interaction of these provisions. There have always been questions, for example, about the extent to which the President can take defensive military actions without seeking congressional approval and when (if ever) Congress needs to declare war in order to authorize hostilities.

As with the issue of treaty termination discussed in my last post, the history here is complicated.

It was always thought that presidents had some defensive war authority, but the bounds of it were unclear. Presidents authorized many low-level uses of force unilaterally throughout the nineteenth century, sometimes controversially. But the big wars against foreign powers—the Quasi-War against France at the end of the 1700s, the War of 1812 against Britain, the Mexican-American War in the 1840s, and the Spanish-American War at the end of the nineteenth century—were all authorized by Congress.

In 1900, President McKinley sent over 5000 troops to China as part of a multi-national force to stop the Boxer rebellion there. He had the troops already available in Asia as a result of the Spanish-American War and the U.S. occupation of the Philippines. Despite the large size of the operation, McKinley did not seek congressional approval.

Presidents in the early twentieth century often initiated small-scale uses of force in Latin America to address uprisings, protect U.S. business interests, and prevent European interventions—uses of force that they sometimes labeled as "police actions."

The two World Wars were both authorized (and, indeed, officially declared) by Congress. But then in 1950 President Truman sent troops to Korea without getting congressional authorization, leading to a significant military conflict that lasted several years and resulted in many American casualties. The Truman administration also called this a "police action."

A further complication after World War II is that, because of changes in international law, formal declarations of war have lost most of their functions, and in fact the United States has not issued such a declaration since World War II.

Since the Korean War, the largest and most protracted military campaigns have had some congressional authorization (although not formal declarations)—the Vietnam War, the two Iraq Wars, and the War in Afghanistan. But presidents have initiated many military operations without seeking congressional authorization, including long-term aerial campaigns, such as in Kosovo and Libya, and even some large-scale but short-lived dispatches of ground troops, such as to Panama and Grenada.

In an effort to regulate presidential uses of force, Congress in the 1970s passed the War Powers Resolution over President Nixon's veto. The Resolution is a statute that is still in effect, and it says that a president must stop military operations within 60 days after introducing troops into hostilities unless the president obtains congressional authorization.

Presidents have generally found ways to work around the War Powers Resolution—for example, by concluding operations before 60 days or by claiming that once Congress provides supplemental appropriations for an operation, as it usually does, that counts as sufficient authorization. In the 2011 Libya operation, the Obama administration claimed, somewhat preposterously, that it was not engaged in hostilities for purposes of the Resolution even though it was involved in a bombing campaign.

Not surprisingly, executive branch lawyers put a lot of weight on the modern historical practice of presidential uses of force. OLC claims that historical gloss at least supports a presidential power to wage relatively small campaigns that do not amount in "nature, scope, and duration" to a war. And courts have not shown any inclination to weigh in on this topic, invoking limitations relating to standing, institutional ripeness, and the political question doctrine.

The book suggests that Congress has substantial authority—confirmed by historical gloss—to place restrictions on presidential military action if it wishes to do so. The main barrier here has been one of institutional will: Congress often seems content to stand on the sidelines and see how presidentially-initiated military actions develop, and either applaud or criticize them accordingly.

There have often been calls for tightening the War Powers Resolution, but so far Congress has failed to do so. There are also some very broad authorizations of force currently on the books (such as the one passed shortly after the 9/11 attacks) that Congress has unfortunately not updated or limited.

I conclude in Chapter 6 of the book that historical practice appears to support the executive branch's claim that limited military engagements that are not expected to be protracted in duration or involve the commitment of substantial ground troops need not be authorized by Congress. I recognize that this conclusion may seem unsatisfactory to those who think we need greater checks on presidential military actions. As I note in the book:

Smaller-scale engagements have the potential to develop into larger ones, and, in any event, they can have broader foreign relations repercussions for the United States. Moreover, the line between smaller and larger engagements is far from self-evident (although that is true of many distinctions in the law). In light of what is now longstanding practice, however, as well as the understandable reluctance of courts to wade into these issues, more robust checks on the President will likely need to come from Congress.

Whatever one's view about this particular conclusion, I also emphasize in the book the need for a broader and more realistic perspective on the topic:

As illustrated throughout this chapter, the President's other foreign relations powers mean that a requirement of congressional authorization for offensive hostilities may be thin protection against president-initiated wars. Imagine, for example, if a president announced that they were recognizing Taiwan as the government of China. Such an action easily could produce a war, either forcing Congress's hand or triggering the President's acknowledged defensive war powers. Yet there seems to be general acceptance that such an action would be constitutional. Or imagine, for example, if a president stationed a large number of U.S. troops in a country facing a potential invasion; if the invasion occurred, the President's defensive war powers would be engaged by the attack on U.S. troops. As these and many other scenarios indicate, there is a certain artificiality to modern war powers scholarship, which has tended to focus almost exclusively on the formal legal requirements for presidential uses of force.

Finally, I contrast my account with other leading accounts of the evolution of war powers authority:

The historical account in this chapter is contrary to the one that is often presented by scholars who are supportive of congressional control over war making. These scholars suggest that the post-World War II practice is radically different from what came before. According to this narrative, Truman's commitment of troops to the Korean War in 1950 without congressional authorization marks a sharp break from earlier understandings of presidential war powers. As we have seen, however, this account gets it wrong in both historical directions. Looking backwards, the expansionist dynamics of presidential war authority can be traced to events long before the Korean War, and defenders of Truman's actions in Korea relied on the past practice. Looking forward after 1950, the Korean War seems unusual, not the beginning of a transformation in U.S. practice. If there was a turning point in presidential war powers, it was more likely the period following the Spanish-American War, a period that began fifty years before the war in Korea. Even the exercises of war authority in that period, however, built on prior customary practices and understandings. The model of constitutional change here, as in the other examples covered in this book, is much more one of accretion rather than one centered on a particular constitutional moment.

 

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[Josh Blackman] Today in Supreme Court History: October 10, 2012

10/10/2012: Fisher v. University of Texas at Austin I argued.

The Roberts Court (2010-2016)

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[Josh Blackman] DIG Glossip And Leave Evidentiary Hearing For Clemency Proceedings or Federal Habeas Review

Glossip v. Oklahoma is a case stranger than fiction. I won't even attempt to rehash all of the details here. Rather, I will opine on the possible path forward.

Based on oral argument, several Justices indicated that the Court should vacate the lowe court opinion, and remand the case for an evidentiary hearing. But there is a threshold problem: the Court can only vacate and remand the case if the Court finds that it has jurisdiction to even entertain the case. And the jurisdictional issues are extremely complex. The Justices would have wade through the nuances of Oklahoma post-conviction law, parse a less-than-helpful decision from the Oklahoma Court of Criminal Appeals, and make a finding about whether there is an adequate and independent state law ground. Remember, any decision issued in this context would affect the scope of review in cases involving defendants not named Glossip. This is not a ticket good for one ride.

The Supreme Court does not have a magic wand to order lower courts to hold evidentiary hearings to pursue justice. The Court can only do something if it has jurisdiction. And the Court always has the obligation to determine its own jurisdiction. The Court could not issue a short per curiam order remanding the case for further proceedings without walking through the jurisdictional mine field. I suspect it may be hard to count to five for that opinion with an eight-member bench (Justice Gorsuch is recused).

In the normal course, where the Justices find that a factual record is incomplete, the result is a DIG: dismiss the writ as improvidently granted. The Supreme Court is not a Court of error correction or record supplementing. I can't recall any other case where such an unclear record came to the Court, and the remedy was to order more fact finding! The parties made their record, and they have to live (or die) with it.

But there is still hope for Glossip. Footnote five of the Court Appointed Amicus brief pointed out the obvious:

Petitioner remains free to assert his Brady and Napue claims in a subsequent federal habeas petition, subject to applicable limitations.

If the Court were to DIG this petition, Glossip could bring (yet another) federal habeas petition, raising the exact same issues. And I suspect a federal district court would hold a full evidentiary hearing to interpret the notations about "Dr. Trumpet?" and "Lithium?" The two prosecutors likely would give fulsome testimony. That case will eventually reach the Supreme Court, yet again. By that point, Oklahoma may adopt the Swiss death pod as a method of execution. Of course, the standard of review on a habeas is more stringent than on direct appeal. But if there are such clear Napue and Brady violations, the conviction will be almost certainly be vacated–especially if the Attorney General does not oppose Glossip's federal habeas petition.

There is another option, which the Court-appointed Amicus raised at oral argument: clemency.

This Court should accordingly dismiss the case for lack of jurisdiction, leaving Petitioner free to pursue state law clemency or other available relief.

Previously, the clemency vote tied 2-2, with one recusal. (The fifth member was married to the prosecutor). Now, there are new members of the board, and the vote may come out differently. Indeed, it would not be difficult for the clemency board to hold a hearing on these issues. That would be a heckuva lot simpler than going through AEDPA. And if, after the hearing, the board finds that clemency is appropriate, politically-accountable actors, and not judges, can make that decision.

In the classic Case of the Speluncean Explorers by Lon L. Fuller, the fictional Supreme Court of Newgarth considers whether to affirm the death sentence of hikers who were trapped in a cave, and resorted to cannibalism. Chief Justice Truepenny finds imposing the death sentence was required by law, but asked the Executive to commute the sentences. Ironically enough, Trupenny does not think it appropriate for the Executive to hold hearings!

In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive. There is every reason to believe that these requests for clemency will be heeded, coming as they do from those who have studied the case and had an opportunity to become thoroughly acquainted with all its circumstances. It is highly improbable that the Chief Executive would deny these requests unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for three months. The holding of such hearings (which would virtually amount to a retrial of the case) would scarcely be compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.

Then again, Justice Keen faults the Chief Justice for transcending the role of the courts:

The first of these is whether executive clemency should be extended to these defendants if the conviction is affirmed. Under our system of government, that is a question for the Chief Executive, not for us. I therefore disapprove of that passage in the opinion of the Chief Justice in which he in effect gives instructions to the Chief Executive as to what he should do in this case and suggests that some impropriety will attach if these instructions are not heeded. This is a confusion of governmental functions—a confusion of which the judiciary should be the last to be guilty.

Truepenny's approach has never appealed to me personally, but whenever I teach the case, some students find it better than the other alternatives of stretching the law to reach a just result.

If the Court does DIG the case, there could be concurrence spelling out what could happen going forward–both in terms of whether a federal court should hold an evidentiary hearing, or leaving the door open for clemency.

It takes five votes to DIG. There is an alternative. A 4-4 split would affirm the lower court by an equally divided margin. A 4-4 affirmance would have the same practical effect as a DIG. The lower court affirms, and Glossip gets a few more bites of the apple. With either a DIG, or a 4-4, Glossip will get another clemency vote, and have a shot at an evidentiary on post-conviction relief. I don't see any compelling reason for the Court to decide this case, and it cannot do a drive-by remand without wading through the tough jurisdictional issues.

The post DIG Glossip And Leave Evidentiary Hearing For Clemency Proceedings or Federal Habeas Review appeared first on Reason.com.

[Josh Blackman] What Happens When The Federal Rules of Civil Procedure Violate Federal Law?

Life-tenured judges play the long game. Last spring, the Judicial Conference adopted, without any debate, a "binding" policy that would force reassignment of cases seeking nationwide relief. After some controversy, the mandatory policy suddenly became "optional guidance." And over the past few months, a handful of districts have adopted this policy. The overwhelming majority have done nothing. And other districts, including the U.S. District Court for the Northern District of Texas, rejected the policy. This process played out exactly as Congress intended: 28 U.S.C. 137 expressly delegated rules concerning case assignment to "the rules and orders of the court." Each District Court can decide these matters for itself.

But if at first you don't succeed, try, try again. Or in the world of the federal judicial bureaucracy, send it to a committee! Tomorrow, the Rules Committee will consider the issue of case assignment. And they will consider whether to adopt the Judicial Conference's reassignment policy by virtue of modifying the Federal Rules of Civil Procedure. If you read Page 415 of the agenda (and who hasn't!), you will find that the committee expressly recognizes that this might be contrary to federal law!

There is also a strong argument that assignment of cases among the judges in a district is within the Congress's jurisdiction. Since the Judiciary Act of, Congress has statutorily provided for case assignment to be left to the districts in the first instance, and this remains the case today. 28 U.S.C. § 137(a) provides that, "[t]he business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court.

In the wake of the Judicial Conference guidance, Senators McConnell, Cornyn, and Tills stated their views in a letter to the Chief Judge for the Eastern District of Kentucky: It is Congress that decides how cases should be assigned in the inferior courts and Congress has already spoken on this issue in an enacted statute: Congress gave that power to the individual district courts. Whatever the Judicial Conference thinks you ought to do, what you actually choose to do is left to your court's discretion under the law.7

A Federal Rule of Civil Procedure could potentially supersede this statute if it complies with the strictures of the Rules Enabling Act and is approved by Congress. It would require consideration of whether a rule regarding case assignment is within the Enabling Act's delegation of authority to "prescribe general rules of practice and procedure," 28 U.S.C. § 2072(a). One could assert that a rule governing the assignment of cases is one of practice and procedure, as it does not implicate the merits of any claim. Such a judgment must be considered in the context of the history of the Congressional delegation of power to divide judicial business to the districts themselves. This issue will remain on the Advisory Committee's agenda as the districts continue to react to the Judicial Conference guidance. The Reporters will continue to monitor the situation as it develops.

Let's be very clear here what is going on. Senator Schumer and some law professors complained about a handful of federal judges. The judges and private members of this committee seem poised to accede to that criticism, even if it means adopting a potentially unlawful rule of Civil Procedure. And who would adjudge whether that reassignment policy is lawful? The same judges who authorized the rule.

Senator McConnell harpoons this proposal in National Review:

Simple statutory interpretation shows why the judicial bureaucrats have it wrong. The case-assignment statute has its roots in the Judicial Code of 1911. Two decades later, in 1934, Congress enacted the Rules Enabling Act, which governs the civil rules. Against that backdrop, Congress then enacted the case-assignment statute in 1948, directing that cases "shall be divided" among the judges in a district as the court sees fit.

Knowing full well that the Rules Enabling Act was out there, Congress gave a directive — not a suggestion — to the district courts, over which it has constitutive authority, as to how they must administer their dockets.

The Justice Department is skeptical. It says if this were the case, surely Congress "would have left some evidence in the statute's text or legislative history." Legislative history — the last refuge of a textual scoundrel.

The statute's text is the evidence: Congress mandated how the courts must manage their dockets. We should all take that at face value and not look for some broad, amorphous grant of legislative power to the judicial bureaucracy.

Indeed, the Supreme Court has warned against assuming that Congress has delegated broad legislative authority to other branches of government. Usually that's in the context of the executive branch, but it ought to apply to the judiciary, too. We can't assume that Congress gave the judicial bureaucracy a roving commission to rewrite the case-assignment statute through the Rules Enabling Act.

Why? Why do this? Remember, under the Rules Enabling Act, unless Congress passes a statute, through bicameralism and presentment, to disapprove of a rule, it goes into effect. And that process is subject to a filibuster. It cannot be that a handful of federal judges can override a federal statute unless Congress enacts a new statute.

And while we're at it, I've long thought that the Rules Enabling Act violates the Non-Delegation Doctrine. Relatedly, Ethan Leib recently wrote that the Federal Rules of Evidence are unconstitutional.  If the Rules Enabling Act actually gives the federal judiciary the power to override a federal statute, unless Congress disapproves, then the Non-Delegation Doctrine may have another very good year. Tread carefully. Or better yet, let five members of the Supreme Court give some clear guidance on nationwide injunctions and universal vacatur, so we can settle this madness in a way that is fair to all sides–not unilateral disarmament.

The post What Happens When The Federal Rules of Civil Procedure Violate Federal Law? appeared first on Reason.com.