Topic: Constitution, the Law, and the Courts

An Exchange on Consent Decrees

Readers interested in federalism and legal policy may want to check out my recent exchange on federal consent decrees with Cato alumnus Radley Balko, famed for his writing on police misconduct. It started when I wrote a partial defense at National Review of former Attorney General Jeff Sessions’s signing of guidelines somewhat narrowing the Department of Justice’s discretion in arriving at future consent decrees with cities and states that it sues. My piece emphasized that discontent over consent decrees has been building for decades in policy areas like education, mental health, and welfare, even though policing may have been the subject of the most recent headlines. Balko wrote a detailed response at the Washington Post (“The Trump administration gave up on federal oversight of police agencies — just as it was starting to work”) and I followed up a week later with a rejoinder agreeing with many of his points but taking issue with a couple of others.  

Here is one bit of common ground I cited: “Neither I nor, so far as I can see, the Sessions memo argued that decrees are necessarily illegitimate as a legal or constitutional matter. To the contrary, we all assume that such decrees will often have a sound legal basis and will continue to be negotiated in the future.” As my colleague Roger Pilon has pointed out, the post-Civil War Fourteenth Amendment confers on the federal government “the power to negate state actions that deny their citizens the privileges and immunities of citizens of the United States.” It’s more than plausible that the practices of police departments like those in Chicago and Baltimore deny some citizens those rights. 

But moving from the case for consent decrees in principle to the way they should operate in practice quickly gets more complicated. I wrote about the Baltimore decree at the time as follows (more): 

The decree (documentsummary of high points) mingles some terms that rise to genuine constitutional significance with others that no court would have ordered, and yet others that appear not to be requirements of the law at all, but at most best practices. Many are virtually or entirely unenforceable (“professional and courteous” interaction with citizens). Whether or not the decree results in the less frequent violation of citizens’ rights, it is certain to result in large amounts of new spending and in the extension of the powers of lawyers working for various parties.

Meanwhile, the more systematic problems with consent decrees, and especially with their cumulative accretion over time, have been widely documented, as in the case of children’s services

13 years after Ross Sandler and David Schoenbrod’s groundbreaking book Democracy by Decree, small groups of litigators, experts, special masters and other insiders continue to run many government agencies … “the Illinois child-welfare system is burdened by 10 different consent decrees, including one that has lasted nearly 40 years.” … By design, it is made hard to get out from under a decree, which can leave the small controlling group in control indefinitely: Connecticut’s 25-year-old child-welfare consent decree “contains 22 outcome measures that all must be met and sustained for six months before exit,” which has never happened.

The issues of federalism, practicality, and unintended consequences will not always be easy to sort out, but I hope our exchange makes at least a start. 

States Can’t Engage in Protectionism by Labeling It Environmentalism

The Commerce Clause was designed not only to give Congress the authority to regulate interstate commerce, but also to ensure that states don’t disrupt the flow of goods and services over state lines. States cannot prefer in-state producers, sellers, or buyers over out-of-state ones, or regulate conduct outside the state. This is a fundamental principle of federalism that prevents states from gaining advantage over others when it comes to trade.

Despite that anti-protectionist mechanism, Oregon enacted its Low Carbon Fuel Standard, which caps emissions not just from the use of fuels, but also from their production and transportation. It uses a methodology called “life cycle analysis” to include these factors. But a life cycle analysis that includes transportation penalizes out-of-state producers—who often have to travel much further than in-state producers—forcing them to buy credits, while allowing Oregon producers to generate credits much more easily.

The U.S. Court of Appeals for the Ninth Circuit upheld an identical California law in Rocky Mountain Farmers Union v. Corey(2013). No doubt Oregon saw Rocky Mountain as a green light to enact its policy, and a Ninth Circuit panel here likewise upheld the Oregon law.

The Supreme Court has repeatedly held that states can discriminate against certain goods based on features of the goods themselves but cannot control out-of-state conduct or merely attempt to help in-state producers at the expense of others. Similarly, states cannot reach into other states to regulate things like greenhouse gas emissions. Life cycle analysis is a legal fiction that permits Oregon to benefit its citizens while penalizing outsiders, and control how other states produce fuel. Like interstate import duties and other trade restrictions, the Oregon law thus undermines constitutional structure.

The stakes here are dire: if states can use regulations to affect the national fuel supply chain, they will no longer be on an even footing with respect to the national economy and interstate commerce. If allowed to stand, this decision will essentially allow states like Oregon and California to start domestic trade wars, over fuel or anything else. 

Cato thus joins the Pacific Legal Foundation, Competitive Enterprise Institute, and five other policy organizations in filing an amicus brief supporting fuel manufacturers’ petition for Supreme Court review. We argue that the Oregon law violates the Commerce Clause, as well as Supreme Court precedent, and should be struck down. Federalism requires that no state can be superior to another, nor set the terms of trade for the entire country. 

The Supreme Court will decide this spring whether to take the case of American Fuel & Petroleum Manufacturers v. O’Keeffe.

The Indian Child Welfare Act Infringes on Parents’ and Children’s Rights

The Indian Child Welfare Act (ICWA) gives tribal governments exceptional power over the fate of children who are “eligible” for tribal membership and have a member as a parent, whether or not they are themselves tribal members. Although the law was originally intended to prevent the breakup of intact Native American families at the hands of state officials, ICWA now operates to make it harder for non-Native adults to adopt such children even in circumstances in which approval would otherwise be routine, while sometimes forcing child welfare officials to place abused and neglected children in households in which they are at serious risk of further harm.

Although tribes are legally permitted to use genetic criteria as qualifications for membership, the Fifth Amendment’s Due Process Clause forbids the federal government from discriminating on the basis of race or lineage. Yet ICWA explicitly imposes race-based restrictions on foster care and adoption. If Native children cannot be placed with relatives or members of the same tribe, it directs that placement be sought with “other Indian families” or in “Indian” institutions, regardless of tribe. It thus enforces a further racial classification that is both unusual and suspect, that of the “generic Indian,” one that disregards significant differences between tribes as well as the interests of individual children.

While engaging in this improper racial classification, ICWA also removes Native children from the benefit of protections deemed important through much of existing law. For example, many states employ a “best interests of the child” standard, but the federal Bureau of Indian Affairs (BIA) and several state courts have declared that ICWA overrides it. But Congress does not have the constitutional authority to dictate what is in the best interests of the children in a single racial class, let alone to do so in a way that itself promotes racialized outcomes.

In addition, subjecting American citizens living far from Indian country — both children and adoptive parents — to tribal courts, absent some indicia of consent to be thus governed, imperils their rights to due process and disregards the longstanding “minimum contacts” rule that forbids judges from reaching across borders to impose binding judgments on parties that have no real contact with their jurisdiction.

Together with the Goldwater Institute and the Texas Public Policy Foundation, Cato has filed an amicus brief in the Fifth Circuit on behalf of parent plaintiffs frustrated in a wish to adopt children of Native descent. We argue that the government may not treat American citizens differently based on whether their lineage would qualify them for tribal membership. Put simply, Native families are entitled to the same legal protections as families of all other races and lineages. For Congress to impose a racialized and non-neutral regime on parents and children is not only unwise and unfair, but unconstitutional.


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.