Topic: Constitution, the Law, and the Courts

Is That an Alchemist’s License in Your Pocket or Are You Just Happy to See Me?

Everyone knows the government can’t ban political speech, but what about putting conditions on it? The Supreme Court has (for better or for worse) upheld noise ordinances and restrictions on the time, place, and manner of speech, but what if a state banned political speech with an exception for those who could successfully turn lead into gold? Would this be a complete ban? Or would the impossible alchemists’ exception mean it could somehow be squared with the First Amendment?

That hypothetical might sound absurd, but is effectively how California currently treats handguns. California’s Crime Gun Identification Act of 2007 was the first piece of legislation to require firearms in the United States to contain “microstamping” technology. It requires that any new semiautomatic handgun sold in California must stamp each fired casing in two locations with “a microscopic array of characters that identify the make, model, and serial number of the pistol.”

There are a number of problems with this law, but one stood out to us: the technology to do what California demands does not exist. While a patent exists and prototypes were tested, the concept remains “unreliable, easily defeated and simply impossible to implement.” Because of this, no gunmaker has been able to introduce a new firearm to California since 2013.

Ivan Pena, Roy Vargas, the Second Amendment Foundation, and others challenged the law in federal court. Pena had sought to buy a handgun that was previously legal in California, while Vargas, who was born without an arm below the right elbow, was unable to buy a new firearm with controls best suited to his needs. The district court found for the state and the Ninth Circuit affirmed, believing that the technology was perfectly feasible (despite a lack of evidence) but that gun companies simply didn’t want to comply.

The plaintiffs now seek Supreme Court review, hoping to have their right to arms vindicated. Because the law cannot require the impossible, especially in the context of fundamental rights, Cato has filed an amicus brief supporting their petition.

We provide a technical primer on the functionality of semi-automatic handguns, explaining why what California is asking for is impossible. As the Court made clear in D.C. v. Heller (2008), a “prohibition of an entire class of ‘arms’… overwhelmingly chosen by American society” for lawful purposes is unconstitutional. That’s precisely what California is attempting here: to slowly but surely ban the sale of new handguns—the weapons Americans overwhelmingly choose for self-defense—through the imposition of impossible conditions.

The Second Amendment was not written to reward lawmakers for using creative and confusing mechanisms to reach the same ends the Constitution forbids. Allowing this broad, unreasonable ban contravenes the Founding-era understanding that the Second Amendment protects the right of all American to buy and sell commonly used arms for lawful purposes nationwide.

We’ll learn later this winter whether the Supreme Court will take up Pena v. Horan.

Does Kisor Really Threaten the Foundations of Administrative Law?

As I describe alongside Ilya and Trevor in our recent filing, in Kisor v. Wilkie, the Supreme Court has agreed to revisit the Auer v. Robbins doctrine, which requires courts to give binding deference to an agency’s interpretation of its own regulations.

Setting aside the arguments for overturning Auer, the purpose of this post is to address a couple recent arguments in favor of retaining Auer. Every day last week, the invaluable SCOTUSblog published a post in a symposium about Kisor. For my part, I was struck by two points repeated by some or all of the proponents of Auer deference.

The first eye-catching claim is that Kisor is a bad vehicle for addressing many of the complaints raised against Auer deference. Explains Prof. Gillian Metzger:

Central to the attack on Auer are concerns that by deferring to agencies’ interpretations of their own rules, courts encourage agencies to adopt broad and vague regulations in order to maximize their interpretative freedom. Auer critics worry that agencies will exploit that freedom to change policy through informal issuances that avoid the rigors of notice-and-comment rulemaking. But these concerns are decidedly not present in Kisor itself. The regulatory interpretation at issue in Kisor was reached through formal adjudication, with ample process and two levels of well-justified administrative decisions.

And here’s Prof. Adrian Vermeule making this same point:

Petitioners in cases like Kisor typically want to focus not on (formal) adjudication but on interpretation through guidances, which they take to be the best case for their critique of Auer. It is thus extremely awkward for the petitioners in Kisor that, in their own case, the agency interpretation was instituted by means of a relatively formal adjudication, not a guidance. This means that the principle of agency procedural discretion over the choice between rulemaking and adjudication is at maximum force.

I highlighted the identical problem with their argument, which is their mischaracterization of the administrative process by which the agency issued its interpretation in Kisor. Both Metzger and Vermeule claim that the regulatory interpretation at issue in Kisor resulted from a formal adjudication, but that’s an incomplete description. The professors suggest that the regulatory interpretation resulted from a textbook-style adjudication under the Administrative Procedure Act. Under this process, a claims officer rules against the applicant on the basis of a regulatory interpretation; then the parties dispute the interpretation before the administrative tribunal; and, finally, the tribunal would resolve the interpretation in a final order.

Were this what actually happened in the Kisor controversy, then the professors would have a valid point. But that’s not what happened. Instead, the Department of Veterans Affairs issued its regulatory interpretation completely unprompted (not after an adversarial process). To be sure, the agency could have issued its regulatory interpretation when it last amended its rules, in 2006. But the agency chose to leave the regulation vague. And because the agency’s subsequent interpretation escaped any procedural safeguard whatsoever from the regulatory agency, Kisor is, in fact, an excellent vehicle for reexamining Auer.

The second striking commonality among Auer proponents at SCOTUSblog is their excessive speculation. Specifically, each scholar voiced the alarming possibility that overturning Auer would rock the foundations of administrative law. Per Vermeule, “overruling Auer would cause ramifying, unpredictable consequences throughout the structure of administrative law.” Metzger echoes the same point: “The radical import of these attacks is not limited to overturning Auer, but would call into question the core legal foundations of the administrative state.” For that matter, here’s Brianne Gorod, chief counsel at the Constitutional Accountability Center (with whom Cato joins on briefs in other areas of law), writing that “these attacks on Auer are part of a broader attack on the administrative state.”

Courts Must Reassert Control Over Administrative Agencies

Those who hold the reins of political power will not always be benevolent, self-restrained public servants—and the procedural safeguards that seem frustrating and counterproductive in one instance may very well be necessary bulwarks in another. Those safeguards are undermined by the Supreme Court’s requirement that courts give deference to a regulatory agency’s interpretation of its own rules. Under this principle, most recently enunciated in Auer v. Robbins (1997), agencies can change their minds on how to enforce the law without so much as giving the public notice.

Consider James Kisor, a Vietnam veteran whose claim for disability benefits hinged on the interpretation of the term “relevant” in the Board of Veterans Appeals rules of procedure. The Department of Veterans Affairs last amended its rules in a more formal notice-and-comment proceeding in the mid-2000s. During such a process, agencies seek input from the public on proposed rules. During that rulemaking, the VA could have defined evidentiary “relevance,” but it declined to do so. Only when the board denied Kisor’s full claim—eight years later—did the agency announce its interpretation unprompted and without having been briefed on the matter. Obviously, Kisor was given no advance notice of the new “rule”—which was really just a new semantic wrinkle—much less the opportunity to participate in the formulation of regulations that ultimately would curtail his rights.

Mr. Kisor appealed the denial of his claim to the Veterans Court, which sided with the government. He then sought review in the U.S. Court of Appeals for the Federal Circuit, which again sided with the government. The three-judge panel determined that the term “relevant” was ambiguous, and that both parties had advanced reasonable interpretations, but applying Auer deference, the agency wins.

In December 2018, the Supreme Court agreed to hear this case, specifically on the question of whether to overrule Auer and presumably go back to granting deference to agency interpretations only to the extent they’re well-reasoned an based on special expertise. Cato, joined by Professors Jonathan Adler, Richard Epstein, and Michael McConnell, as well as the Cause of Action Institute, has filed an amicus brief supporting the overruling of Auer. We argue that the judiciary should no longer blindly accept self-serving agency interpretations. Instead, judges should make their own independent determinations of regulatory meaning based on a searching and reasoned reading of the regulations at issue.

We argue that Auer, by concentrating lawmaking and law-interpretation in regulatory agencies, both offends separation of powers principles and facilitates procedural shortcuts. It deprives regulated entities of fair notice, which is fundamental to the integrity of the law, and also robs administrative policymaking of legitimacy by allowing agencies to avoid public participation in the formulation of their rules. Finally, despite some predictions that overturning Auer will wreak havoc in administrative agencies, we point out that independent judicial assessment will only change the outcome in a small minority of cases.

Overturning Auer is an important step towards reining in the administrative state, so Kisor v. Wilkie may end up being the most important case of the term. The Supreme Court will hear argument on March 27, with a decision expected at the end of June.

William Van Alstyne, R.I.P.

One of the nation’s foremost constitutional scholars, Professor William Van Alstyne, died on January 29. In his later years he was a friend of Cato’s Center for Constitutional Studies. In fact, in 2010, at the conclusion of the Center’s annual Constitution Day Symposium, he delivered our ninth annual B. Kenneth Simon Lecture in Constitutional Thought. 

A graduate of the University of Southern California and the Stanford Law School, Professor Van Alstyne spent most of his distinguished career as a chaired professor at the Duke Law School, after which he served from 2004 to 2012 as the Lee Professor of Law at the College of William and Mary Law School. His scholarship, covering a vast array of legal subjects, is voluminous, his honors numerous. His First Amendment casebook sits on my shelf. His seminal 1994 article, “The Second Amendment and the Personal Right to Arms,” underpinned the long march to District of Columbia v. Heller, in which Cato played so prominent a part. 

I first heard Professor Van Alstyne address that subject in the late ’70s, at an Association of American Law Schools convention, of all places. He was not reluctant to stand against the tide. Years later, in June of 2008, shortly before Heller was decided, he demonstrated that spirit again in a way personal to me. The Legal Times had run a piece of mine criticizing a decision the Supreme Court had just handed down in a case called Engquist v. Oregon Department of Agriculture. I thought the opinion, written by Chief Justice Roberts for himself, the Court’s four other conservatives, and Justice Breyer, had fundamentally misread the Fourteenth Amendment’s Equal Protection Clause in this anomalousclass-of-one” case. Having thus staked out so contrarian a view, you can imagine my surprise and delight when I received a very nice note from Professor Van Alstyne, whom I had never before met, explaining why I was exactly right! 

That spirit was evident again in Professor Van Alstyne’s 2010 Simon Lecture, which he titled “Clashing Visions of a ‘Living’ Constitution: Of Opportunists and Obligationists.” In that lecture he took on a number of the nation’s most prominent legal academics, from both Left and Right, to show how the Constitution has been systematically misread over the years. He will be missed. May he rest in peace.

Judge Blocks Maryland Law On Political Ads

Last year, amid the outcry over Russian online operations during the 2016 election, the Maryland legislature reacted by passing a law imposing disclosure and compliance burdens on social media providers and newspapers that accept online advertising. Now, in a victory for freedom of the press, a federal judge has blocked enforcement of key provisions of the state’s Online Electioneering Transparency and Accountability Act. The decision provides a reminder that lawmakers should not allow panics over “bad” kinds of speech to undermine basic freedoms protected by the First Amendment. 

The Maryland law as a whole tightened regulations on “campaign materials,” broadly defined to include online and physical material that “relates to a candidate, a prospective candidate or the approval or rejection” of either an actual or a “prospective” ballot measure. The specific provisions that gave rise to the challenge required larger online platforms, such as Facebook, Google, and many daily newspaper websites, to collect and publish information from advertisers that place such materials.

In particular, the platforms would be required to publish within 48 hours on their sites in searchable form a record of who had bought political ads and what they had paid, and would need to make available to the state election board for inspection on demand considerably more detail concerning each ad, including a digital copy of the ad itself, which candidate or question it related to and whether it was for or against, when it had run, what its planned or actual target audience was, and how many impressions of it had been served. Some of the ideas here mimicked the ways federal regulation requires broadcasters to maintain a public inspection file of what they have broadcast on public issues.  

Among those testifying for the bill, the Campaign Legal Center declared the bill a “well-crafted and constitutional” way to advance “greater accountability for online platforms” and said it “should serve as a model for other states.” The Brennan Center said “voluntary efforts are not enough” and favored provisions even tougher than those of the draft bill.  

By contrast, Eric Wang of the Institute for Free Speech called the public file rule “likely unconstitutional” and pointed out that the U.S. Court of Appeals for the Ninth Circuit had found a Nevada law with some similar provisions to be improperly overbroad. And Gov. Larry Hogan, citing constitutional problems as well as protests from the state’s newspaper association, declined to sign the bill, which became law anyway.

Major newspapers in the state promptly sued and on January 3 federal judge Paul W. Grimm granted them a preliminary injunction barring the state from enforcing the provisions, ruling against the state on almost every point. He observed that although federal courts under Buckley v. Valeo had upheld some restrictions on candidates, political committees and donors, all of whom were actors seeking to influence election outcomes, they had never approved using campaign law to regulate third-party media outlets or publishers. (Broadcast cases aren’t a relevant exception because courts have long handled them under a less speech-protective regime ultimately traceable to notions of scarce public airwaves.)

Maryland’s rule, the judge wrote, would fail whether examined under either strict scrutiny or the somewhat more relaxed alternative known as exacting scrutiny. The provisions were decidedly overbroad in controlling activity unrelated to the law’s aims, nor were they the least restrictive means of attempting to get foreigners seeking to sway U.S. elections to identify themselves. Significantly, the provisions did not just mandate speech in the form of obligatory disclosures, but directly impinged on press freedoms themselves, with unpredictable effects. For example, because the required disclosures might furnish competitors with valuable information about a platform’s ad rates and viewer reach, some online platforms might find it more appealing simply to begin turning down political and issue ads as a category. 

Social media trickery is bad. Chipping away at First Amendment liberties to stop it is worse. 

Court Administrators Outpace the First Amendment

When people lack the means to hold their government accountable, tyranny flourishes. The First Amendment secures the public’s right to access public information, acting as one of many safeguards against government officials’ abusing their authority. James Madison famously quipped that “Popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.” Court records are one such form of information, and the right to acquire them serves as an important check on the judiciary.

The Administrative Office of the U.S. Courts (AO) runs the Public Access to Court Electronic Records (PACER), charging fees for people to access court records online. In the 1990s, PACER fees were much higher than the cost of providing the service; the AO overcharged and used the fees to subsidize other aspects of judicial administration. As a solution, Congress passed the E-Government Act, which authorizes fees only “as a charge for services rendered” and “only to the extent necessary” to “reimburse expenses” incurred. Despite that law, the AO still runs a large surplus from PACER and spends it on different projects.

The National Veterans Legal Services Program challenged the validity of those fees. The case is now before the specialized U.S. Court of Appeals for the Federal Circuit, where Cato has joined the ACLU and several other organizations on an amicus brief.

The Supreme Court uses a two-pronged “experience and logic” test to determine whether a right to access specific types of records is protected under the First Amendment. The experience prong asks if the public has traditionally had access to a type of record, while the logic prong asks whether such access plays a “significant positive role” in a governmental process. Since there is a long history of public access to court records, and this access acts as a check on the courts, it seems clear that a government action that impedes public access to judicial records, like PACER fees, must be narrowly tailored to meet a compelling interest. Here, the government has not met that burden of proof. Instead, the AO claims that it has congressional authority to impose unnecessary costs—an idea that even the author of the statute has refuted.

Although society and technology develop over time, rights—such as the right to access court records—are unchanging. The Federal Circuit should reject the government’s interpretation of the E-Government Act because it would raise a substantial constitutional question about congressional authority to intrude on the First Amendment, and should instead affirm the idea that people have the right to access court records without having to pay prohibitive costs.

Congress Isn’t Only Branch Enabling Trump’s Emergency Threats

As President Trump delivered a weekend salvo in the ongoing shutdown battle, White House aides reminded reporters that the president remains convinced of his “legal authority to declare a national emergency at the border, which could allow him to redirect Pentagon funding to a build a border wall.” The flacks’ messaging was clear: If congressional Democrats turn a deaf ear to Trump’s latest proposal, then the president retains recourse to his emergency powers.

In a thoughtful post earlier this month, my colleague Gene Healy explained that Trump’s threats are far from idle, and that the Congress bears much of the blame for this bizarre scenario whereby the president can win domestic policy priorities by declaring an ad hoc emergency. Gene pointed to “at least two provisions of the U.S. Code passed during the 1980s, 33 USC § 2293  and 10 USC § 2808,” that plausibly empower Trump to fund a border wall if he declares a national emergency.

Disconcertingly, these were only two out of more than a hundred delegations of emergency powers to the president! Returning to Gene’s post:  

[T]he U.S. Code today [is] honeycombed with overbroad delegations of emergency power to the executive branch. A Brennan Center report released last month identifies 136 statutory powers the president can invoke in a declared national emergency. Few of these provisions require anything more than the president’s signature on the emergency declaration to trigger his new powers—“stroke of the pen, law of the land—kinda cool,” in the Clinton-era phrase. 

Worse yet, the president’s statutory powers aren’t limited to putative national emergencies; instead, there are many and diverse congressional delegations of law-making power directly to the president. For example, through the Antiquities Act, the president can regulate millions of acres of public lands with a brief proclamation. Under trade statutes, the president can impose tariffs backed by little more reasoning than his signature. Prof. Kevin Stack provides other examples in this excellent article.

Gene’s post spotlighted Congress’s complicity to the dangerous accumulation of direct statutory authority in the president’s hands. But Congress isn’t the only branch of government to blame; the judiciary is a co-enabler of executive excess.

Out of undue solicitude for the office of the presidency, the Supreme Court has abandoned substantive review of presidential decision-making pursuant to overbroad delegations of congressional authority. The upshot is that courts won’t scrutinize the president’s decision that a “national emergency” exists. Nor will courts perform a meaningful inquiry of the relationship between the putative national emergency and the border wall. That is, they won’t question if the wall is a reasonable policy to mitigate the supposed national emergency.

Instead, courts would perform a superficial “facial” review of the president’s declaration pursuant to Congress’s broad delegation of “emergency” powers, bending over backwards to accommodate the executive. It’s deference squared.

This ultra-permissive judicial review stands in stark contrast to how Article III courts review exercises of congressional delegations by all other actors in the Executive Branch. Under the Administrative Procedure Act (APA) 5 U.S.C. § 706, all “agency action” is subject to judicial review to ensure that the agency’s lawmaking is not “arbitrary or capricious.”  As interpreted by the Supreme Court, this provision requires courts to take a “hard look” at the reasonableness of an agency’s reasoning and decision-making.

In a seminal 1992 case, Franklin v. Massachusetts, the Supreme Court held that the president is not an “agency” under the APA. Unfortunately, the Franklin Court did not explain its reasoning, other than citing “respect for the separation of powers and the unique constitutional position of the President.” As observed by Prof. Kathryn Kovacs, this crucial question was neither briefed nor broached during oral argument. 

This absence of consideration is reflected by the weakness of Franklin’s legal reasoning.

Looking to the text of the APA, there seems to be ample evidence that the statute contemplates searching review of the president’s statutory powers. As I noted above, all “agency action” is subject to a “hard look” under the APA. In 5 U.S.C. § 701(b)(1), the APA defines “agency” as “each authority of the Government of the United States,” but it expressly does not include “the Congress” or “the courts of the United States.” It wouldn’t make sense for the Congress to explicitly exclude two of the three branches of government from judicial review under the APA, but, at the same time, to implicitly exclude the third branch of government.

There’s another textual clue that a president’s statutory powers should be subject to judicial review under the APA. In 5 U.S.C. § 701(a)(2), the APA precludes from hard look review “agency action [that] is committed to agency discretion by law.” In this context, “law” refers to “the common law’ of judicial review of agency action,” and included in this body of jurisprudence are such non-justiciability principles as the “political questions” doctrine. In turn, the political question doctrine allows courts to decline to take on controversies whose solution is better left to the political branches. Simply put, there’s no reason for the APA to account for the political question doctrine if presidents are not considered “agencies” whose actions are subject to “hard look” review under the APA.

There are also policy reasons why the president should be considered an “agency.” In many instances, the president’s statutory powers mirror policymaking authority possessed by administrative agencies. Consider, for example, the Antiquities Act, which authorizes the president to regulate public land to the same ends as can be achieved by the Interior Department pursuant to the Federal Land Policy and Management Act. The difference is that the Interior Department must submit to procedural safeguards and meaningful judicial review before it can regulate millions of acres of public land, while the president can achieve the same results with a stroke of the pen and meaningless judicial oversight.

Regardless whether the Court thought through what it was doing, the Franklin decision added a perverse complement to a president’s statutory powers. On the one hand, the president enjoys vague and therefore sweeping delegations of statutory authority. On the other, he escapes meaningful judicial review when exercising these overbroad delegations. It’s a toxic mix that permits the president to gin up bogus emergencies to achieve major domestic policy priorities. (Imagine President Elizabeth Warren’s Green New Deal in response to a climate-change “emergency.”)

In sum, Gene is absolutely right to endorse calls on Congress to “shore up the guardrails of liberal democracy” with comprehensive reform of the president’s statutory powers. To the same end, it’s also well past time for the Supreme Court to revisit Franklin v. Massachusetts.