Eugene Volokh's Blog, page 59

[Josh Blackman] Braidwood Distinguishes Between "Officers of the United States" And "Employees"

["Officers of the United States" can exercise "significant authority," but employees cannot.]

There is much to say about the Supreme Court's decision in Kennedy v. Braidwood Management, Inc. The majority opinion by Justice Kavanaugh and the dissent by Justice Thomas disagree on just about every point. But one area where there is substantial agreement concerns the line between an "Officer of the United States" and a mere employee. Indeed, I think the majority and dissent state this issue with more clarity than in previous cases.

Justice Kavanaugh's majority opinion explains:

The Appointments Clause in Article II of the Constitution specifies how "Officers of the United States," as distinct from employees, must be appointed. §2, cl. 2.

Here, the Court draws a bright line between an "Officer of the United States" and a mere employee. And what is that line?

Quoting Lucia, Justice Kavanaugh explains the line turns on whether the individual exercises "significant governmental authority."

An officer exercises "'significant authority pursuant to the lawsof the United States.'" Lucia v. SEC, 585 U. S. 237, 245 (2018). An employee, by contrast, does not exercise significant governmental authority. See ibid.

Justice Kavanaugh does not quite say that employees cannot exercise "significant authority." He says they do not exercise such authority. Still, I think a plausible reading of Justice Kavanaugh dissent is that an employee cannot exercise "significant authority." If an employee could exercise "significant" authority, then there would not be a distinct line between "Officer of the United States" and an "employee." Indeed, without this line, Congress could vest unaccountable employees--who are not subject to the Appointments Clause--with this great power. And with great power, comes great responsibility. Stated differently, great power requires great accountability. (I tried to get this line out during oral argument, but couldn't quite finish.)

Further, Justice Kavanaugh reinforces this distinction with his summary of the facts:

Before 2010, members of the Preventive Services Task Force were not officers at all. The Task Force was an advisory body, and the Task Force members made only non-binding recommendations. As a result of the 2010 Affordable Care Act, however, the Task Force's "A" and "B" recommended preventive services now must be covered by health insurers at no cost to the insured. For that reason, the parties here agree that the Task Force members exercise significant governmental authority and qualify as "officers" of the United States. They disagree, however, over whether Task Force members are principal or inferior officers.

In other words, because the Task Force members exercise "significant authority," they cannot be employees; they must be "Officers of the United States" who are appointed pursuant to the Appointments Clause. The majority ultimately holds that the Task Force members are inferior officers. I don't quibble with that holding here.

Justice Thomas's dissent draws the same distinction between "Officers of the United States" and employees:

The Clause prescribes the exclusive means of appointing "'Officers of the United States.'" Lucia v. SEC, 585 U. S. 237, 244 (2018). Officers are Government officials who exercise "'significant'" federal authority on an "ongoing" basis. Id., at 245–246. Those who do not exercise such authority are mere nonofficer employees and are not subject to the Clause's requirements. Id., at 245. [FN1]

[FN1] The parties agree that the exercise of "significant authority" marks the dividing line between officers and nonofficer employees. Brief for Petitioners 2 (internal quotation marks omitted); Brief for Respondents 4–5. I will assume that this view is correct for purposes of this opinion.But see Lucia, 585 U. S., at 254 (THOMAS, J., concurring) ("The Founders likely understood the term 'Officers of the United States' to encompass all federal civil officials who perform an ongoing, statutory duty—no matter how important or significant the duty").

Again, I would read the Thomas dissent to support the proposition that employees cannot exercise "significant authority." Were Congress to vest a position with such power, that position must be filled under the auspices of the Appointments Clause.

After the Court called for supplemental briefing in Braidwood, Seth Barrett Tillman and I offered this analysis:

If the positions of Task Force members are not filled consistent with the Appointments Clause and Inferior Office Appointments Clause, that is, if members are not appointed under the authority of a statute, then the purported office-holders are not officers of the United States of any stripe, principal or inferior. At most, they would be "employees." And, as a general matter, we do not think employees can exercise the "significant authority" of an officer of the United States. (We made this point during the Special Counsel litigation.) Such employees certainly cannot be vested with any sort of "independence" vis-a-vis principal officers and the President Here, and elsewhere, so much turns on whether a person is or is not an officer of the United States.

I think that both the majority opinion and the dissent provide some support for our position.

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[Josh Blackman] Have The Gundy and Fulton Moments Passed?

[The intelligible principle test and Employment Division v. Smith are likely safe from Justices Kavanaugh and Barrett.]

Gundy v. United States (2019) and Fulton v. City of Philadelphia (2020) signaled that the Court was open to changing course in two important doctrines. First, in Gundy, Justice Gorsuch's dissent, which was joined by the Chief Justice and Justice Thomas, signaled that the Court should rethink the non-delegation doctrine. Justice Alito also seemed to be on board in the appropriate case. Plus Justice Kavanaugh sent similar signals in his later opinion in Paul v. United States.

Second, in Fulton, Justices Alito, Thomas, and Gorsuch were ready to overrule Employment Division v. Smith. Justice Barrett wrote a short concurrence, joined by Justice Kavanaugh. They acknowledged that Smith had problems, but worried about what test would replace it. Barrett also posed some questions, which in theory at least, would help her get to yes.

Five years later, have the Gundy and Fulton moments passed?

FCC v. Consumers' Research solidified the intelligible principle test, at least in the context of non-independent agencies. Justice Kavanaugh's concurrence and Justice Barrett's silence signal this is likely the end of the road for the Gundy dissent. It is still not clear what line will replace "intelligible principles" so they will stick with the norm. They are likely content to use the major questions doctrine to detect dicey delegations. Indeed, Justice Kavanaugh explains that this test is a bipartisan favorite:

The intelligible principle test has had staying power—perhaps because of the difficulty of agreeing on a workable and constitutionally principled alternative, orbecause it has been thought that a stricter test could diminish the President's longstanding Article II authority to implement legislation. . . .

Presidents of varying policy views and political affiliations have accepted or advocated in favor of the intelligible principle test. See, e.g., Reply Brief for United States 3–6 (Trump); Brief for United States 19–38 (Biden); Brief for United States in Gundy v. United States, O. T. 2018, No. 17–6086, pp. 14–22 (Trump); Brief for United States in Whitman v. American Trucking Assns., Inc., O. T. 2000, No. 99–1257 etc., pp. 21–26(Clinton); Brief for United States in Mistretta v. United States, O. T. 1988, No. 87–7028 etc., pp. 20–25 (Reagan).

I am of these sorts of political arguments, but this is how Kavanaugh approaches the law. If some rule is good enough for Trump, Biden, Clinton, and Reagan, it is good enough for Kavanaugh.

What about Smith? The Court has denied cert in a number of petitions to overrule Smith. Yet, Justice Barrett has not written a word about the questions she posed. I was frankly never convinced she wanted to hear the answers to those questions. They were filler. She had to say something. Remember, Justice Barrett is a product of her scholarly home, and scholars at Notre Dame, including Phil Muñoz, have defended Smith on originalist grounds. Is there anything approaching a scholarly consensus to rebut that history? What is the theory? Justice Barrett is apparently not persuaded by Michael McConnell. Here too, Barrett and Kavanaugh may think the application of the "most favored nation" doctrine to religion cases will handle the bulk of the cases.

Time will tell if these moments have passed.

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[Josh Blackman] Justice Kavanaugh Lays Out His Roadmap In FCC. v. Consumers' Research

[Justice Kavanaugh parts ways with Justice Gorsuch on the non-delegation doctrine, but charts two paths for independent agencies.]

Justice Kavanaugh's concurrence in FCC v. Consumers' Research is one of his most significant separate writings. He lays out a roadmap for how he sees the separation of powers, and in particular the removal power cases.

First, as I was reading Justice Kavanaugh's concurrence, I could hear the voice of a former White House lawyer. Indeed, Kavanaugh stresses how former Justices who served in the Executive Branch Court accepted the "intelligible principle" test:

Notably, the intelligible principle test was accepted and applied over the years by Justice Scalia, Chief JusticeRehnquist, and Chief Justice Taft—three jurists who, based on their Executive Branch experience and judicial philosophies, deeply appreciated the risks of undue judicial interference with the operations of the Presidency.

Second, Kavanaugh repeats at several points that the deferential "intelligible principle" test respects the separation of powers. How? To ensure the President has the latitude to faithfully execute the laws:

To be clear, the intelligible principle test is not toothless. But it does operate in a way that respects the President'sArticle II authority to execute the laws—that is, to exercise discretion and policymaking authority within the limits setby Congress and without undue judicial interference. See, e.g., Whitman, 531 U. S., at 472–476; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring) ("When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate").

It's not just about Congress, it is also about the President.

Third, Kavanaugh suggests that there is less of a need to reinvigorate the non-delegation doctrine, in light of the Court's precedent decisions overruling Chevron and expanding the major questions doctrine.

Second, many of the broader structural concerns about expansive delegations have been substantially mitigated by this Court's recent case law in related areas—in particular (i) the Court's rejection of so-called Chevron deference and (ii) the Court's application of the major questions canon of statutory interpretation. Cf. Paul v. United States, 589 U. S. ___ (2019) (statement of KAVANAUGH, J., respecting denial of certiorari).

As I'll explain another post, I think Justice Kavanaugh has signaled that the Gundy moment has passed. We're stuck with "intelligible principles."

Fourth, Kavanaugh explains that the non-delegation doctrine has no place in the context of foreign affairs.

Third, in the national security and foreign policy realms, the nondelegation doctrine (whatever its scope with respect to domestic legislation) appropriately has played an even more limited role in light of the President's constitutional responsibilities and independent Article II authority. See Loving, 517 U. S., at 772–773; Youngstown, 343 U. S., at 636, n. 2 (Jackson, J., concurring); Zemel v. Rusk, 381 U. S. 1, 17–18 (1965); United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 319–322 (1936); Marshall Field & Co. v. Clark, 143 U. S. 649, 691 (1892). In "the area of foreign affairs, Congress 'must often accord to the President a degree of discretion and freedom from statutory restrictionwhich would not be admissible were domestic affairs alone involved.'" Industrial Union, 448 U. S., at 684 (Rehnquist, J., concurring in judgment) (quoting Curtiss-Wright, 299 U. S., at 320).

It has been argued that the travel ban violates the non-delegation doctrine. I don't think Justice Kavanaugh would accept this argument.

Kavanaugh further argues that the major questions doctrine should not be applied in the foreign policy context:

In addition, the major questions canon has not been applied by this Court in the national security or foreign policy contexts, because the canon does not reflect ordinary congressional intent in those areas. On the contrary, the usual understanding is that Congress intends to give thePresident substantial authority and flexibility to protect America and the American people—and that Congress specifies limits on the President when it wants to restrict Presidential power in those national security and foreign policy domains. See Youngstown, 343 U. S., at 635–638 (Jackson, J., concurring); see also Hamdi v. Rumsfeld, 542 U. S. 507, 519 (2004) (plurality opinion); Dames & Moore v. Regan, 453 U. S. 654, 678–679 (1981); Zemel, 381 U. S., at 8–9; Al–Bihani v. Obama, 619 F. 3d 1, 38–41, 48–52 (CADC 2010) (Kavanaugh, J., concurring in denial of rehearing en banc); C. Bradley & J. Goldsmith, Foreign Affairs, Nondelegation, and the Major Questions Doctrine, 172 U. Pa. L. Rev. 1743, 1789–1801 (2024). The canon does not translate to those contexts because of the nature of Presidential decisionmaking in response to ever-changing national security threats and diplomatic challenges. Moreover, in those areas, the President possesses at least some independent constitutional power to act even without congressional authorization—that is, in Youngstown category 2.

I wonder if this passage is a preview of Kavanaugh's view of the tariffs case. I'm not sure if the tariff orders fall within the ambit of "foreign policy." They are about foreign commerce, but this is an area where Congress can legislate. And I don't know that the President has an independent authority that would bring us into a Youngstown Zone 2 posture.

Fifth, FCC v. Consumers' Research illustrates how Justices Gorsuch and Kavanaugh diverge. The focus of President Trump's first two appointments to the Supreme Court was the administrative state. But they do not approach this issue from the same angle. Justice Gorsuch found a violation of the "intelligible principle" doctrine, while Justice Kavanaugh did not. The difference, I think, stems from how these two Justices understand political accountability. According to Justice Gorsuch, a robust version of the non-delegation doctrine ensures the accountability, and supremacy, of the legislative branch.

But for Justice Kavanaugh, the accountable President, and those agencies under his supervision, can be trusted to exercise discretion.

Critiques of broad congressional delegations sometimes focus on officials described as "unaccountable bureaucrats." But that label does not squarely fit delegations to executive agencies. In those circumstances, the President and his subordinate executive officials maintain control over the executive actions undertaken pursuant to a delegation.And the President is elected by and accountable to all the American people.

However, Justice Kavanaugh would approach this issue differently for an independent, "unaccountable" agency:

Rather, the problems with delegations to "unaccountable"officials primarily arise from delegations to independent agencies. Independent agencies are headed by officers whoare not removable at will by the President and who thus operate largely independent of Presidential supervision and direction. Those independent agency heads are not elected by the people and are not accountable to the people for their policy decisions. Unlike executive agencies supervised and directed by the President, independent agencies sit uncomfortably at the outer periphery of the Executive Branch. Although this Court has thus farallowed such agencies in certain circumstances, they belong to what has been aptly labeled a "headless Fourth Branch." Freytag v. Commissioner, 501 U. S. 868, 921 (1991) (Scalia, J., concurring in part and concurring in judgment) (quotation marks omitted); see Humphrey's Executor v. United States, 295 U. S. 602, 628–629 (1935); see also In re Aiken Cty., 645 F. 3d 428, 439–446 (CADC 2011) (Kavanaugh, J., concurring).

Sixth, and perhaps most importantly, Justice Kavanaugh shows his cards in Wilcox. He explains there are two ways to handle independent agencies--allow the heads to be removed at will or police their delegation of authority:

There are at least two possible solutions to the problem caused by congressional delegations of authority to independent agencies. One is to overrule (or significantly narrow) Humphrey's Executor so that the heads of all or most independent agencies are removable at will by the President, and thus supervised and directed by the President. A second option would be to apply a more stringent version of the nondelegation doctrine to delegations to independent agencies. For example, to take one possibility, independent agencies might need to first submit proposed rules to Congress for approval in the legislative process before the rules can take effect. I will not prolong the point here. Congressional delegations of policymaking authority to independent agencies raise significant Article II issues. In an appropriate case, this Court should address that problem.

Why "or" and not "and"? I think both of these solutions are viable. But I doubt Justice Kavanaugh agrees. If he is willing to overrule Humphrey's Executor, then there is no need to police delegation. But if the Court upholds Humphrey's Executor, then Justice Kavanaugh would more carefully scrutinize whether Congress delegated too much discretion to these unaccountable agency directors. This tease sounds like he is telling his colleagues what he is willing to do.

With Kavanaugh on board, I am certain that Justices Thomas, Alito, and Gorsuch would level up the intelligible principles test for independent agencies. But you need one more to play ball. It is true that Chief Justice Roberts joined Justice Gorsuch's Gundy dissent, but I never thought he actually believed it. It was a free vote, and he could keep his options open for the future. Remember that Justice Alito did not join the Gundy dissent, because sex offenders. And Justice Kavanaugh did not participate in that case, which was argued on October 2, 2018. Kavanaugh should have been confirmed in time for the start of the term, but there were delays, as readers will recall.

What about Justice Barrett? As usual, she said nothing. Would she join an opinion giving teeth to the non-delegation doctrine for independent agencies? I am skeptical. There is nothing close to the scholarly consensus that she would require to go that far. What is the theory, she will ask? I still haven't gotten to writing about CASA, but this opinion doesn't really change how ACB approaches constitutional issues.

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[Josh Blackman] Justice Kagan Rejects "Combination Theory" Claims For Separation of Powers Cases

["A meritless public non-delegation challenge plus a meritless private nondelegation challenge cannot equal a meritorious 'combination' claim."]

In Employment Division v. Smith, Justice Scalia identified the concept of hybrid rights: a restriction that targets two constitutional rights would be reviewed with heightened scrutiny. For example, a ban on saying "Merry Christmas" would offend both the freedom of speech and the free exercise of religion. The hybrid rights doctrine was a useful way for Justice Scalia to distinguish the outcome in Smith with earlier free exercise clause cases that applied heightened scrutiny. Yet, this doctrine never quite caught on in the Free Exercise context.

Still, the hybrid rights doctrine always made sense to me as a logical matter. Sometimes the whole is greater than the sum of the parts. Even if individual features of some policy are barely constitutional, when those features are combined, the policy becomes unconstitutional. The Court employed this reasoning in Free Enterprise Fund, in which the two layers of insulation triggered a violation of the Appointments Clause.

In two recent separation of powers cases, the Fifth Circuit adopted this sort of combination logic.

In CFSAA v. CFPB, the Fifth Circuit found that several factors of the structure of the CFPB, when combined, violated the Appropriations Clause:

Taken together, the Bureau's express insulation from congressional budgetary review, single Director answerable to the President, and plenary regulatory authority combine to render the Bureau "an innovation with no foothold in history or tradition." Seila Law, 140 S. Ct. at 2202.

And more recently, in Consumers' Research v. FCC, the en banc Fifth Circuit found that the combination of factors concerning the universal fee violated the non-delegation doctrine

Seila Law and Free Enterprise Fund thus evince a general principle that, with respect to the separation of powers at least, two constitutional parts do not necessarily add up to a constitutional whole. Cf. Aristotle, Metaphysics, in 1 Works of Aristotle 569 (Mortimer J. Adler ed., W. D. Ross trans., 1990) (observing "the whole is" often "something besides the parts"). Rather, reviewing courts must consider a government program holistically, with an eye toward its compatibility with our constitutional history and structure. See Seila L., 591 U.S. at 222.

Yet, in both cases, the Supreme Court reversed.

Last term, in CFPB v. CFSAA, the Court found that the structure of the CFPB was not so unprecedented, and there was no violation of the Appropriations Clause. Justice Alito, in dissent, reaffirmed the combination logic:

By addressing the individual elements of the CFPB's setup one-by-one, the Government seeks to divert attention accountability to Congress. Elements that are safe or tolerable in isolation may be unsafe when combined. In the case of the CFPB, the combination is deadly. . . . In sum, the CFPB's unprecedented combination of funding features affords it the very kind of financial independence that the Appropriations Clause was designed to prevent.

This term, in FCC v. Consumers' Research, Justice Kagan expressly rejected combination logic, or what she calls the "combination theory":

The Fifth Circuit, as noted earlier, founded its combination theory—that a constitutional non-violation plus a constitutional non-violation may equal a constitutional violation—on this Court's decision in Free Enterprise Fund. . . .  But the court's analogy and associated logic do not work. In Free Enterprise Fund, each of the two layers of for-cause protection limited the same thing—the President's power to remove executive officers. And when combined, each compounded the other's effect, so that the President was left with no real authority. Or otherwise said, the two layers of restrictions operated on a single axis with the one exacerbating (we thought exponentially) the other.

But that reasoning has no bearing here. A law violates the traditional (or call it, for comparison's sake, "public") nondelegation doctrine when it authorizes an agency to legislate. And a law—whether a statute or, as here, a regulation—violates the private nondelegation doctrine when it allows non-governmental entities to govern. Those doctrines do not operate on the same axis (save if it is defined impossibly broadly). So a measure implicating (but not violating) onedoes not compound a measure implicating (but not violating) the other, in a way that pushes the combination over a constitutional line. "Two wrong claims do not make one that is right." Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U. S. 438, 457 (2009). If a regulatory scheme authorizes neither executive legislation nor private governance, it does not somehow authorize an unlawful amalgam. Contra the Fifth Circuit, a meritless public non-delegation challenge plus a meritless private nondelegation challenge cannot equal a meritorious "combination" claim.

Justice Gorsuch's dissent does not address the combination theory.

I think Justice Kagan's opinion doesn't simply foreclose this particular challenge. It closes off an entire way of thinking about the separation of powers. This opinion is significant in ways that are not yet apparent. Consumers' Research might be one of Justice Kagan's most significant majority opinions of her tenure. And Chief Justice Roberts assigned it to her.

This is your friendly reminder that if President Trump elevated any of his Fifth Circuit nominees to the Supreme Court, we would have a very different Court.

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[Josh Blackman] SCOTUS Holds, In A Footnote, That The "Capable Of Repetition, Yet Evading Review" Doctrine Can Apply Even When Plaintiff Does Not Seek A Preliminary Injunction

[Justice Kagan mows down many circuit precedents without much explanation.]

There is an exception to the mootness doctrine, known as "Capable of repetition, yet evading review." The most prominent example of this doctrine occurs in abortion cases. A pregnancy lasts about nine months, while a challenge to an abortion restriction lasts much longer. The courts have allowed such litigation to continue, even after the pregnancy has completed.

This test is hard to satisfy. It is far easier for courts to find a particular dispute is moot, especially when an appeal arises months or years later. Indeed, many courts have imposed limitations on the doctrine. For example, the D.C. Circuit and other circuits have held that a plaintiff can only invoke the doctrine if they sought a preliminary injunction, or sought a stay of an adverse ruling.

For example, in Newdow v. Roberts (2010), Michael Newdow sought to prevent  Chief Justice Roberts from issuing the constitutional oath, which included the phrase "So help me God," to then-President-Elect Obama. But by the time the D.C. Circuit decided the case in May 2010, the dispute had become moot. The panel opinion, per judge Janice Rogers Brown, found the controversy became moot. (Then-Judge Kavanaugh concurred in the judgment.)

Even if we assume plaintiffs' challenge is capable of repetition, they are barred from asserting it evaded review because plaintiffs failed to appeal the district court's denial of their preliminary injunction motion. Had plaintiffs pursued an appeal of that denial and had the preliminary injunction been granted, their case would not have become moot. This circuit—along with every other circuit to have considered the issue—has held that "a litigant who could have but did not file for a stay to prevent a counter-party from taking any action that would moot his case may not, barring exceptional circumstances, later claim his case evaded review." Armstrong v. FAA, 515 F.3d 1294, 1297 (D.C.Cir.2008) (citing consistent cases from other circuits).

Or at least that was the rule. In FCC v. Consumers' Research, the Supreme Court discarded that standard. Indeed, Justice Kagan's majority opinion rejected it in a mere footnote:

When we granted certiorari, we asked the parties to address whetherthis case is moot. The parties agree that it is not moot, and we do too. The relevant facts are as follows. Consumers' Research filed suit to avoid payments arising from the contribution factor that the FCC set for the first quarter of 2022. But by now Consumers' Research has made those payments, and a court might not be able to order a refund. Assuming not, the case would be moot—except that it qualifies as "capable of repetition, yet evading review." Kingdomware Technologies, Inc. v. United States, 579 U. S. 162, 170 (2016). A given contribution factor is in effectfor only three months, a period "too short to complete judicial review of [its] lawfulness." Ibid. And "it is reasonable to expect" that Consumers'Research will have to make the same kind of payments again. Ibid. So the case, as the Fifth Circuit concluded, is not moot. See 109 F. 4th 743, 753 (2024). Several other courts of appeals would have arrived at the opposite conclusion, because they require a party to seek preliminary relief in order to avail itself of the capable-of-repetition rule. See, e.g., Newdow v. Roberts, 603 F. 3d 1002, 1008–1009 (CADC 2010), cert. denied, 563 U. S. 1001 (2011). But our decisions have never hinted at such a requirement. See, e.g., Kingdomware Technologies, 579 U. S., at 170; SEC v. Sloan, 436 U. S. 103, 108–110 (1978). And for good reason: The "capable of repetition" rule applies because of the nature of some controversies, not because of the parties' litigating decisions.

As a matter of first principles, I'm not sure this statement is correct. When a complaint is filed, it is usually known in advance when relief is needed by. Indeed, the Supreme Court has rebuked a federal judge for not ruling on a complaint in a manner of hours. Why should the Court make an exception for the usual rules for a Plaintiff who does not seek expedited relief? PIs and TROs are the normal course of litigation nowadays.

In any event, Justice Gorsuch's dissent agreed with Kagan on this point, so the Court is unanimous:

When granting certiorari, we also asked the parties to address whether this dispute is moot. I agree with the Court that it is not. See ante, at 10, n. 1.

This holding seems like a fairly significant FedCourts ruling that was decided with little analysis. Indeed, this should make it far easier to invoke the "capable of repetition" exception, even for plaintiffs who fail to seek a PI.

I think this ruling will discourage plaintiffs from seeking expedited relief, even when expedited relief is actually needed. Then, months or even years later, an appellate court can re-open the controversy based on an exception to the mootness doctrine.

I agree with Judge Brown in the Newdow case: "It is clear the principle of Armstrong requires a plaintiff to make a full attempt to prevent his case from becoming moot, an obligation that includes filing for preliminary injunctions and appealing denials of preliminary injunctions." Maybe Justice Kagan considered these issues and rejected them, but there is so little reasoning. I think the Court may have erred here.

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[Josh Blackman] What Is A "Liberty Interest" And Why Does The Due Process Clause Protect It?

[Once again, Justice Thomas raises questions the other Justices simply do not wish to answer.]

I continue to make my way through the final decisions of the term. Next up is Gutierrez v. Saenz. At first blush, this is the sort of case you might skip over. Can a convicted murderer sue the District Attorney under Section 1983 to force him to test potentially exonerating DNA evidence? This dispute turns, in part, on whether the District Attorney's refusal to test the DNA deprives the defendant of life, liberty, or property, without due process of law. To be clear, the Defendant was afforded more than the process he was due at the criminal trial, through the appellate process, and through collateral review. The constitutional question presented here is whether the refusal to test the DNA violates the Due Process Clause.

The Fifth Circuit panel did not reach the merits. Rather, the panel found that the Defendant lacked standing to bring the Section 1983 claim. The Supreme Court, by a vote of 6-3, reversed the lower court. Justice Sotomayor's majority opinion found that the Defendant had standing to bring the claim.

Justice Barrett concurred in judgment. She thinks the lower court misapplied Reed v. Goertz, but wrote that the Court's analysis "muddies the waters of standing doctrine." I wish the Process Formalist would have written more than a paragraph to explain why. But this is all we got.

Justice Alito dissented, joined by Justices Thomas and Gorsuch. Justice Thomas wrote a solo dissent that was enlightening and thought provoking: what do "life, liberty, or property" mean in the Due Process Clause? In particular, he addresses a question I've long wondered: what exactly is a "liberty interest?" This opinion raises similar issues as Thomas's Medina concurrence, which challenges the breadth of Section 1983.

First, Thomas returns to the themes of his Obergefell dissent with the meaning of "liberty." At common law, "liberty" referred to a freedom from physical restraint. Thomas cites Magna Carta, Coke, Blackstone, and other foundational sources.

This conception of liberty, however, was expanded during the Lochner era:

The original meaning of "liberty" in the Fourteenth Amendment was likely far narrower than our precedents currently hold. The term originally appears to have referred only to freedom from physical restraint. But, in the Lochner era, the Court began to hold that "liberty" includes fundamental rights generally. See Lochner v. New York, 198 U. S. 45 (1905). This Court has since adhered to that broader meaning.

Does Justice Thomas think the Lochner-era precedents concerning "fundamental" rights are consistent with the original meaning of the Fourteenth Amendment? Thomas does not say so expressly. He does say that the meaning of "liberty" in the Fifth and Fourteenth Amendment were the same. And he criticizes the notion of substantive due process. But he doesn't mention the Privileges or Immunities Clause here. Then again Thomas also seems to accept the list or "pre-political" rights from Meyer v. Nebraska, at least as a matter of precedent.

This Court eventually repudiated Lochner's muscular version of substantive due process—at least for economic rights. See Ferguson v. Skrupa, 372 U. S. 726, 730 (1963); West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937). But, the Court continues to treat Meyer's definition of "liberty"as authoritative. E.g., Roth, 408 U. S., at 572. . . .

The understanding of liberty as a natural right persisted until well after the enactment of the Fourteenth Amendment. Even as this Court expanded the notion of "liberty" in the Lochner era, it remained faithful to the idea of liberty as "individual freedom from governmental action, not as a right to a particular governmental entitlement." Obergefell, 576 U. S., at 726 (THOMAS, J., dissenting). None of the liberties enumerated in Meyer, for instance, could be characterized as state-created benefits.

I am not sure that Thomas has clearly settled this issue. He is a bit cagey, which is unusual.

Second, Thomas is quite clear that the Supreme Court's Due Process precedents from the 1970s were entirely wrong:

Some decisions of this Court, while recognizing the general principle that the Fifth and Fourteenth Amendments' Due Process Clauses should be read together, have left open the possibility "that questions may arise in which different constructions and applications of [the Clauses] may be proper." French v. Barber Asphalt Paving Co., 181 U. S. 324, 328 (1901). Even assuming that caveat is correct, however, reading "liberty" in the Fourteenth Amendment to mean fundamental rights generally, see infra this page and 8, would appear to render the Fourteenth Amendment so broad that it would destroy the general rule that the Fifth and Fourteenth Amendments should be read coextensively. And, even if "liberty" in the Fourteenth Amendment were entirely decoupled from its meaning in the Fifth Amendment, I am aware of nothing showing that the term was understood to encompass government entitlements before the 1970s.

Third, Thomas provides a useful summary of the meaning of "property" in the Due Process Clause.

Scholars generally agree that the term "property" in theDue Process Clauses originally referred only to those interests traditionally recognized as property at common law. Property at common law did not include entitlements to government benefits. See 2 Blackstone 16–19, 384–399; J. Kent, Commentaries on American Law 324–330, 613–614 (W. Browneed. 1894) (Kent). And, consistent with their general view of civil liberties, Americans at the founding and in the early Republic viewed property—like liberty—as a natural, prepolitical right. See, e.g., Virginia Declaration of Rights, §I,in Finkelman 154; Calder v. Bull, 3 Dall. 386, 388–389 (1798) (opinion of Chase, J.); H. Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States 136 (1837); Kent 203.

But the modern Supreme Court has deviated from this meaning in modern times. And Justice Thomas blames Charles Reich--who was Justice Alito's Constitutional Law professor.

In the 1960s, Professor Charles Reich of the Yale Law School published two articles proposing a radical reinterpretation of the concept of property. See Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L. J. 1245 (1965) (Individual Rights); The New Property, 73 Yale L. J. 733 (1964) (The New Property). Taking direct aim at the Framers' understanding, Reich argued that "[p]roperty is not a natural right but a deliberate construction by society" that could be redefined to meet contemporary social needs.

And Justice Thomas explains how the Supreme Court followed Reich in Goldberg v. Kelly, a decision that had no grounding in the text or history of the Constitution.

This Court embraced Reich's vision in 1970, holding that "welfare benefits" are property under the Fourteenth Amendment's Due Process Clause because they "are a matter of statutory entitlement for persons qualified to receive them." Goldberg, 397 U. S., at 261–262. The Court dismissed any distinction between "a 'privilege' and . . . a 'right,'" and did not attempt to ground its conclusion in thetext or history of the Due Process Clause. Id

Fourth, Thomas turns to the origin of the term "liberty interest."

As with property, the Court's redefinition of "liberty" was a conscious break with the past. The Court rejected the inquiry of "whether [a] parolee's liberty is a 'right' or a 'privilege'" as "hardly useful any longer." Morrissey v. Brewer, 408 U. S. 471, 482 (1972) (emphasis added). It expressly repudiated its earlier case law holding that probation, as "an 'act of grace,'" triggers no due process protections. See Gagnon v. Scarpelli, 411 U. S. 778, 782, n. 4 (1973) (quoting Escoe, 295 U. S., at 492). And, seemingly to obfuscate the awkwardness of referring to a government-created entitlement as "liberty," the Court began to speak instead of "liberty interests." Kenosha v. Bruno, 412 U. S. 507, 515 (1973) (internal quotation marks omitted). Although it is now standard terminology in due process litigation, the phrase did not appear in the United States Reports before Goldberg.

It seems "liberty interest" is some sort of constitutional chimera between liberty and property. Go figure.

Fifth, Justice Thomas returns to the case at hand. The defendant has invoked Osborne to justify his Section 1983 suit. But Section 1983 can only be invoked if there is an actual violation of a constitutional right. And if the defendant's claim turns on Goldberg v. Kelly, the claim must fail:

Osborne thus cannot support Gutierrez's asserted "liberty interest." We may, consistent with the judicial power, defer to earlier decisions that "apply traditional tools of construction and arrive at different," but reasonable, "interpretations of legal texts." Gamble, 587 U. S., at 721 (THOMAS, J., concurring). But, Osborne rests on nothing more than Goldberg's abandonment of the Due Process Clause's original meaning.

I don't think people value how much Justice Thomas does. No one else on the Court can do these sorts of deep dives into doctrines that make little sense. I hope the Court thinks twice before it expands any precedent based in Goldberg v. Kelly.

The post What Is A "Liberty Interest" And Why Does The Due Process Clause Protect It? appeared first on Reason.com.

[David Post] On Schadenfreude

[It is time, I suggest, to give what-about-ism a well-deserved burial.]

Co-blogger Josh Blackman here acknowledges that he hasn't been following the legal developments in the TikTok case too closely, and that his reaction to the Attorney General's claim that the President had "nullified the legal effects of a statute passed by large bipartisan majorities in 2024" is "schaudenfreude."

For more than a decade, I've written about how the Obama Administration nullified the Affordable Care Act's mandates, as well as immigration law through policies like DAPA and DACA. I'm sure smart lawyers can draw distinctions between the Obama orders and Trump's orders. But I'm not sure those distinctions matter. President Obama found ways to disregard laws he didn't like through hyper-creative means, but since those laws accomplished "positive" goals, everyone looked the other way.

I haven't followed the developments too closely, either - though close enough to recognize that Trump is - again - defying the explicit, express command of the law.[1]

[1] The statute establishing the TikTok ban authorized the president to grant a "1-time extension of not more than 90 days" with respect to the date on which this subsection would otherwise apply" - that is, up until April 20 - but only if the president certifies to Congress concrete progress toward divestiture of TikTok—including "binding legal agreements to enable execution" of divestiture "in place." The President recently announced his third "extension" of his non-enforcement order, this time up until September 17, 2025.

Personally, I'm super-excited to see which of our President's billionaire buddies will get handed this multi-billion dollar gift - operational control over TikTok, at some huge discount from the market price, all tidily negotiated with the Chinese by you-know-who.  [The smart money is, apparently, on Larry Ellison of Oracle]. What's he going to get in return?! Can't wait to see. And I'm hopeful that this will help people see this grift for what it is.[*2]

[*2]On a number of occasions, Trump has indicated that there is a connection between the tariff negotiations and getting the Chinese to approve a TikTok sale. [See e.g. here] Something like: OK, I'll lower the tariff on toys from 50% to 40%, but only if you get ByteDance to sell TikTok to my pal [insert favored billionaire here] at 25% off.

I'm actually beginning to think that this helps explain much of Trump's erratic (to put it mildly) tariff policy, the whole point of which, it is now becoming pretty clear, was to get leaders from every country in the world to come to the President and beg for his blessing (and maybe throw in a hotel/golf club building permit or two).  Thank you, Godfather!

But all that is neither here nor there. What I really want to talk about is schadenfreude and what-about-ism.

Josh is a strong what-about-ist. "What about Obama's suspension of the ACA mandates? What about Biden's student loan forgiveness orders? Etc. Where were you then? Why weren't you concerned about executive encroachment when the president had a 'positive' goal, but you're so concerned now?"

He writes "I'm sure smart lawyers can draw distinctions between the Obama orders and Trump's orders. But I'm not sure those distinctions matter."

Here is a distinction that matters, and matters a great deal, between Trump's orders and Obama's (and Biden's, and GW Bush's, and Clinton's, and Eisenhower's, and Truman's …): Trump, unlike all of those other presidents, has clearly expressed, in word and deed, his disregard of any limits on his powers to do pretty much anything he wants to do. Tariffs, funding freezes, bombing Iran, deploying the National Guard in L.A., dismantling US AID and the Nat'l Science Foundation, etc.

Again. And again.

And again. And again.

Maybe you disagree with that. I gather some people do, though I find it difficult to imagine how someone could look at this Administration's record to date and think: this is a President who has appropriate respect for the constraints on his powers that the Constitution lodged in the other branches of the federal government. But maybe you do.

But to me - and, I would suggest, anyone looking objectively and rationally at Trump's record in office so far - it gives each individual act of malfeasance - such as "nullifying" a federal statute - a much, much more sinister resonance.

So no, I didn't write anything about executive overreach when Obama suspended the Affordable Care Act's mandates, or when Biden implemented his loan forgiveness program. Why not? Because I doubted that I had anything much to add to a necessarily rather technical argument about what the president was doing and what the statute required him to do, and because those actions did not seem to me to be part of some larger Obama or Biden project to dismantle the law-making institutions of this country and to arrogate all power to the president.

 

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[Josh Blackman] TikTok Schadenfreude

I'll admit, I have not followed all of the legal developments in Trump 2.0 carefully. During the first administration, I closely tracked nearly every policy and district court ruling. It was exhausting. This time around, I've triaged. If I've written about something, it means I am following the issue. If I haven't written about it, that means I am not following the issue. Please do not take my silence on an issue as a reflection on whether I agree or disagree with any particular position.

One such issue that I've let go is TikTok. I wrote about the Supreme Court's (quickly forgotten) decision, President Biden's outgoing order, and President Trump's incoming order. But since then, I haven't tracked the issue.

Recently, Charlie Savage published an article in the Times titled "Trump Claims Sweeping Power to Nullify Laws, Letters on TikTok Ban Show."

Attorney General Pam Bondi told tech companies that they could lawfully violate a statute barring American companies from supporting TikTok based on a sweeping claim that President Trump has the constitutional power to set aside laws, newly disclosed documents show.

In letters to companies like Apple and Google, Ms. Bondi wrote that Mr. Trump had decided that shutting down TikTok would interfere with his "constitutional duties," so the law banning the social media app must give way to his "core presidential national security and foreign affairs powers."

The letters, which became public on Thursday via Freedom of Information Act lawsuits, portrayed Mr. Trump as having nullified the legal effects of a statute that Congress passed by large bipartisan majorities in 2024 and that the Supreme Court unanimously upheld.

My reaction? Schadenfreude.

For more than a decade, I've written about how the Obama Administration nullified the Affordable Care Act's mandates, as well as immigration law through policies like DAPA and DACA. I'm sure smart lawyers can draw distinctions between the Obama orders and Trump's orders. But I'm not sure those distinctions matter. President Obama found ways to disregard laws he didn't like through hyper-creative means, but since those laws accomplished "positive" goals, everyone looked the other way. It might be true that Trump has leveled up with his most recent actions, but none of this would have been conceivable without precedents more than a decade ago.

Perhaps the greatest Schadenfreude comes from the aftermath: no one has standing to challenge the suspension of the laws. The OLC opinion announcing DAPA boasted about this fact. Here too, Trump's latest order does not seem susceptible to a challenge. Then again, people like to scroll through TikTok videos, so there is no appetite to stop it.

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[Josh Blackman] Medina v. Planned Parenthood: Abandoning the Abortion "Distortion" Field For Section 1983 and the Spending Clause

[The Court faults lower courts for not anticipating the abandonment of Wilder and other Section 1983 precedents.]

Four decades ago, Justice O'Connor observed that the Supreme Court's "abortion decisions ha[d] already worked a major distortion in the Court's constitutional jurisprudence." In the wake of Dobbs, the Court is slowly but surely eliminating that distortion field.  Or as I put it, the Court is ending the epicycles of Roe.

Medina v. Planned Parenthood continues that effort.

Medicaid is a conditional spending program. The federal government gives money to the states with certain conditions. If the states do not comply with those conditions, the federal government can sue the states or withdraw the funding or do nothing at all. Conversely, if the states object to how the conditions are being enforced, the states can sue the federal government. Cases like South Dakota v. Dole and NFIB v. Sebelius illustrate how these principles work. (Justice Gorsuch's majority opinion provides a very readable survey of this caselaw.)

Yet there is a wrinkle. In certain circumstances, the courts have allowed recipients of state Medicaid funding to sue the states under Section 1983 for not following the federal conditions. As relevant in Medina, the courts have allowed Planned Parenthood to sue states for cutting off their funding. I won't walk through the precise statutory framework here. I think Justice Gorsuch's majority opinion lays it out fairly clearly. What is significant, however, is the Court's pivot.

In Wilder v. Virginia Hospital Association (1990), the Court "suggested that spending-power legislation can give rise to an enforceable right under §1983 so long as the legislation is 'intended to benefit the putative plaintiff 'and the plaintiff's interest in the statute is not 'too vague and amorphous.'" That is the sort of nebulous balancing test that was once the hallmark of the Supreme Court's caselaw. No longer.

In Medina, the Fourth Circuit ruled that Planned Parenthood could invoke Section 1983 in light of Wilder and related precedents. But Justice Gorsuch contended that more recent precedents repudiated Wilder:

Some lower court judges, including in this case, still consult Wilder, Wright, and Blessing when asking whether a spending-power statute creates an enforceable individual right.

They should not. Gonzaga "reject[ed]" any reading of our prior cases that would "permit anything short of an unambiguously conferred right to support a cause of action brought under §1983." Armstrong "repudiate[d]" any other approach. And Talevski reaffirmed that "Gonzaga sets forth our established method" for determining whether a spending-power statute confers individual rights.

Yet the Court doesn't actually overrule Wilder--it just encourages lower courts not to rely on the precedent:

To the extent lower courts feel obliged, or permitted, to consider the contrary reasoning of Wilder, Wright, or Blessing, they should resist the impulse.

This reasoning has the scent of Lemon. In Kennedy v. Bremerton, Justice Gorsuch faulted the lower courts for not realizing that the Lemon test had been "abandoned," even though the Court never expressly overruled the precedent. It is a longstanding rule that lower courts cannot anticipate that a Supreme Court precedent has already been, or will be, overruled. But Kennedy and Medina suggest otherwise. And Justice Gorsuch seems kind of annoyed that the lower courts didn't take the hint. Perhaps Hill v. Colorado has been abandoned as well, even if lower courts haven't gotten the memo yet. And I think Goldey. v. Fields, decided without recorded dissent, signals that Bivens has been abandoned as well. 

For the past 45 years, this Court has consistently declined to extend Bivens to new contexts. See Egbert, 596 U. S., at 490–491. We do the same here.

Get the picture?

In dissent, Justice Jackson assails the majority for contracting a landmark Reconstruction Era law. She compares Medina to decisions like the Civil Rights Cases and Cruikshank. 

The Court's decision today is not the first to so weaken during the Reconstruction Era. See, e.g., Civil Rights Cases, 109 U. S. 3 (1883); United States v. Cruikshank, 92 U. S. 542 (1876); Blyew v. United States, 13 Wall. 581 (1872). That means we do have a sense of what comes next: as with those past rulings, today's decision is likely to result in tangible harm to real people. At a minimum, it will deprive Medicaid recipients in South

I, of all people, understand the value of using hyperbole. But this argument is a bit much. Cruikshank, which followed from Slaughter-House and Bradwell, ruled that the Fourteenth Amendment did not "incorporate" any provisions of the Bill of Rights. The Civil Rights Cases effectively eliminated Congress's power to remedy private discrimination under Section 5 of the Fourteenth Amendment, and narrowed Congress's powers under Section 2 of the Thirteenth Amendment to actual chattel slavery. These were foundational decisions interpreting the newly-ratified amendments. They were not mere constructions of statutes. KBJ's criticism misses the mark wildly. Justice Gorsuch described the limited nature of Medina: "we reach the unsurprising conclusion that it generally belongs to the federal government to supervise compliance with its own spending programs." 

If Justice Jackson is serious about undoing Cruikshank, she should go on record and join Justice Thomas in overruling the Slaughter-House cases. Or would Justice Jackson be opposed to reinvigorating the Privileges or Immunities Clause because it is limited to "citizens," or out of fear if Lochner? Until we see some actual action, KBJ is just hurling empty rhetorical bombs that fizzle out.

Justice Thomas, as he often does, writes that the Court should reconsider its Section 1983 jurisprudence in an appropriate case. Over the decades, the Court has transformed Section 1983 into an all-purpose tool to challenge state action. Thomas explains:

The "scant resemblance" between §1983 today and §1983 as it was traditionally understood creates good reason to doubt our modern understanding. Crawford-El, 523 U. S., at 611 (Scalia, J., dissenting). After all, a statute's meaning turns on what its words "conveyed to reasonable people at the time they were written." A. Scalia & B. Garner, Reading Law 16 (2012). To ensure that we are not "elevat[ing] demonstrably erroneous decisions" over "duly enacted federal law," we should in appropriate cases revisit the properbounds of §1983. Gamble v. United States, 587 U. S. 678, 711 (2019) (THOMAS, J., concurring). Although the potential problems are numerous, this case implicates two in particular: the extension of §1983 into the spending-power context, and an ahistorically modern understanding of the "rights" protected by §1983. . . . This case does not present an occasion to remedy our error because the petitioner did not ask us to revisit our precedents. But, in a case where the issue is properly presented, I would make clear that spending conditions—which are by definition conditional—cannot "secure" rights. . . . Separately, I question whether our current understanding of §1983 is overbroad with respect to the range of"rights, privileges, or immunities" covered by that statute.Given the degree to which the judicial conception of "rights"evolved over the 20th century, I doubt that §1983, as originally understood, protects the full range of "rights" thatcourts now construe it to cover. . . In light ofthe distinctly modern nature of our §1983 jurisprudence, I doubt that we have correctly interpreted the term "rights"for purposes of §1983.

Usually when Justice Thomas calls for the reconsideration of an entire line of doctrine, his colleagues ignore him. But not Justice Jackson. She charges that Thomas has not yet done enough work to justify this effort:

Finally, JUSTICE THOMAS's concurrence calls for a "fundamental reexamination of our §1983 jurisprudence" based on his view that the "history of §1983 makes clear that thestatute has exceeded its original limits." Ante, at 1–2, 13. Because his opinion is not tethered to the specific facts or arguments presented in this case, an extensive response isnot necessary here. But it is worth pausing briefly to think about whether the historical account he offers reflects the level of depth, nuance, or context needed to support thewholesale reappraisal he is envisioning. . . . All of which is to say: more caution (and more research)may be warranted before our longstanding precedents inthis area can be seriously scrutinized or attacked—especially in cases where no party has made such a claim or presented any such argument.

Justice Thomas responds to Justice Jackson:

The dissent questions whether sufficient "research" supports my current conclusions. Post, at 20–21 (opinion of JACKSON, J.). But, my point is precisely that further examination is warranted. Insofar as the dissent highlights the existence of other "historical sources" beyond the scope of this concurring opinion, the "broader" historical record at which the dissent gestures only reinforces the need to consider the relationship (or lack thereof ) between our current §1983 jurisprudence and §1983's original meaning. Post, at 21.

Most people do not understand the role that Justice Thomas plays on the Court. He sets the agenda. The Chief Justice may think he is playing a "long game" but Roberts is mostly treading to keep the Court above water, one case at a time. Thomas sets the long-term intellectual arc of the Court. Over the decades, he has written so many concurrences and dissents that would later become, or at least influence, majority opinions. Thomas single-handedly shifts the Overton Window. Is it any surprise that none of Thomas's colleagues join him?

Moreover, Justice Thomas's separate writing are like a Bat Signal that scholars, lawyers, and lower court judges can see. I'm sure we will now see a outburst of writings about the Court's Section 1983 decisions. Will the Court ever adopt Thomas's approach in whole? Who knows? But we will keep moving in his direction. We should all be grateful for the invaluable role Justice Thomas plays--but I am still salty about his joining Justice Barrett's Skrmetti concurrence, which rehabilitated Footnote 4.

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[Josh Blackman] Today in Supreme Court History: July 5, 1867

7/5/1867: Justice James Wayne dies.

Justice James Wayne

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