Topic: Constitution, the Law, and the Courts

John Dingell and the Death of Institutional Pride in Congress

John Dingell, who represented southeastern Michigan for 59 years in the House of Representatives, died on 7th February. While I disagreed with virtually all of Rep. Dingell’s policy preferences, I very much admired the man for the institutional pride he took in Congress. It’s a quality sorely lacking in contemporary lawmakers.

Rep. Dingell was a master parliamentarian. He is famous in Washington D.C. for his steady accumulation of power as chairman of the Energy & Commerce Committee during the 1980s. Due to his efforts, Energy & Commerce presently exercises the broadest jurisdiction of any authorizing committee in Congress. 

From this perch, he regulated the regulators. His use of agency “details”—i.e., commandeering executive branch officials to assist in oversight—was legendary. His investigations were feared. Again, I disagreed with his policy preferences, but, undoubtedly, he was effective in competing with the president (and his colleagues) for control over agency policymaking.

Today, alas, the president calls the shots at regulatory agencies, largely unfettered by Congress. As described by then-Prof. Elena Kagan in a celebrated law review article, we live in a time of “presidential administration.”

Over the last few decades, the president has developed powerful mechanisms, including budget management and White House regulatory review, to superintend the administrative state. Yet, in the face of growing executive power, Congress declined to compete. As I explain further below, party allegiance trumps institutional pride in today’s Congresses. Most congressional Democrats looked the other way, or even cheered, when “their guy” used a “phone and pen” to circumvent Congress and unilaterally impose a deferred action immigration policy. And most congressional Republicans looked the other way, or even cheered, when “their guy” declared a “national emergency” to circumvent Congress and unilaterally build a wall. I’m confident that such obsequiousness would’ve been anathema to a Congress full of John Dingells.

What made Rep. Dingell different? He was a product of his times. Whatever else their flaws, lawmakers of his era abided certain norms that made for a more competent Congress. Under the “apprenticeship” norm, new members of Congress were expected to keep a low profile and instead devote themselves to committee work. Under the “specialization norm,” lawmakers were expected to master one to two narrow issues within their committee’s jurisdiction. To be sure, Dingell’s generation engaged in overbroad delegations of lawmaking functions to agencies, but these lawmakers at least felt a duty to counterbalance such grants by taking the time to understand the inner workings of the agencies they created and funded. The 1946 Legislative Reorganization Act, for example, requires congressional committees to exercise “continuous watchfulness” over regulatory agencies.

Moreover, lawmakers of Dingell’s era genuinely cared about Congress as an institution. To the Congresses that legislated the administrative state into existence, the president was a competitor, and oversight was a primary means for ensuring that laws were faithfully executed. To a large extent, the legislature’s oversight role was codified in various enabling statutes, which often required agencies to consult with appropriate committees before implementing proposed policies. Back then, agencies usually acknowledged and honored objections voiced by members. Congresses of yesteryear also authorized lawmakers to check regulations after they already had been issued. From the New Deal until the early 1980s, Congress legislated 295 veto provisions in 196 statutes, pertaining to every field of governmental concern. In 1983, however, the Supreme Court ruled that this sort of legislative oversight is unconstitutional.

At about the same time that the Supreme Court rejected the legislative veto, Congress began a structural change that further undermined its capacity to compete with the president. Specifically, there was a shift from committee-control to party-control over both chambers of Congress, such that, again, party affiliation currently takes priority over institutional affiliation. In large part, this centralization of power resulted from demographic shifts that homogenized the Democratic and Republican parties, primarily the decline of northeastern Republicans and southern Democrats. Another major factor contributing to this trend is the “fiscalization” of politics in Washington D.C., by which scholars mean that congressional affairs are now dominated by periodic high-stakes negotiations over budget deficits, debt ceilings, and government shutdowns. In these recurrent crises, congressional leadership naturally assumes a greater hand. Congressional leaders accelerated the centralization of power by slashing professional support staff at committees and Article I agencies.

In this environment, Congress has had insufficient political will to reinstitute a viable mechanism for checking administrative policymaking. In 1996, Congress partially revived the legislative veto, but its scope was limited to resolutions of disapproval rather than resolutions of approval, which meant that a sitting president could use his constitutional veto power to protect regulations promulgated during his term. As a result, Congress gained veto power over only a small subset of some presidents’ regulations—basically, those rules promulgated in the final five months of an outgoing presidency, where the incoming president is from a different party. The crucial point is that the legislative veto is a shell of former self.

Obviously, norms like specialization and apprenticeship have fallen by the wayside—just look at the AOC phenomenon. Less than two months into her first term, she has basked in the political limelight and even introduced a sweeping proposal that would fundamentally overhaul the American economy. “Apprenticeship” plainly does not apply. Nor does “specialization.” In modern Congresses, members tend to be generalists when they enter, and they are content to remain generalists while they stay.

Compared to members from Dingell’s time, lawmakers today know less and have fewer resources. They also work fewer days. Effective oversight has suffered accordingly. Consider the House Natural Resources subcommittee hearing on climate change last Tuesday, which was adjourned by the minority party because too few Democrats bothered to attend. Mind you, it’s a Democrat party plank that climate change is the most pressing problem of our time.  Quality of oversight isn’t any better in a cleanly divided government, where both chambers are held by the party in opposition to the president, as was demonstrated amply by the Republicans during the Obama era.

To be clear, I’m wide-eyed about the realities of power. I understand that Dingell wielded his authority to benefit his constituents—in particular, the Big Three automakers in Detroit. While there are those who genuinely believe that “what is good for GM is good for America,” I’d no more want Rep. John Dingell than anyone else to wield the powers of the modern president. Rather, my preference is for Congress and the president to battle to manage the administrative state—like they used to—and thereby tame the leviathan. That’s how the system is supposed to work. 

What will it take to make Congress great again? We’re going to need a few score more members like John Dingell, in both houses and on both sides of the aisle. R.I.P.

Even Something as Great as School Choice Should Not Be Federalized

Today, Sen. Ted Cruz (R-TX) and Rep. Bradley Byrne (R-AL), in conjunction with U.S. Secretary of Education Betsy DeVos, will unveil a bill to create a $5 billion scholarship tax credit, an unprecedented federal school choice effort. An op-ed all three have in USA Today spells out both the good of federal school choice, and inadvertently, the potential bad which makes it too dangerous to justify.

First, the good. DeVos, Cruz, and Byrne argue, quite rightly, that “education isn’t about school systems. It is about school children.” If you recognize basic reality, you’ll know that all children and families are different—different talents, values, dreams—hence it makes no sense to say all should get uniform education. But opposing school choice is de facto endorsing the idea that education should be largely uniform. One size must fit all.

They also make another crucial point, one that is starting to elicit push-back from public schooling advocates who insist that public schooling and public education are synonymous. DeVos, Cruz, and Byrne write that their proposal is not “an attack on public education.” Of course it isn’t. For one, they say their proposal would allow credit-eligible funds to be used for public school options. More broadly, just as public assistance doesn’t mean every recipient of help must go to a government grocery store, nothing about public education implies government must supply the schools. Indeed, we’ve been moving away from things like government housing projects for decades.

Now the bad. School choice is about individualization and freedom, and almost certainly that is what DeVos, Cruz, and Byrne want. But federal initiatives are a terrible way to deliver that. The reality is that what the feds fund, even indirectly, they inevitably want to control. DeVos, Cruz, and Byrne specifically acknowledge that historical reality in federal education policy. They write, “A series of administrations on both sides of the aisle have tried to fill in the blank with more money and more control, each time expecting a different result.” Note that the primary vehicle for that control, the Elementary and Secondary Education Act, started aimed just at funding low-income districts. It eventually became the uber-controlling No Child Left Behind Act.

DeVos, Cruz, and Byrne are looking to skirt the control problem, sticking with tax credits instead of vouchers, and letting states opt in. But not only is this unconstitutional—taxes are authorized to execute specific, enumerated powers, not to lightly engineer state policy—it won’t, ultimately, prevent encroaching federal control. If enacted, the credit would spur people to demand their states participate, and as more schools benefited from federally connected scholarships all schools would be financially pressured to use them. But the federal government will have the power to decide which state programs are or are not eligible, and on what grounds. As Corey DeAngelis and others have noted, what happens when, instead of a President Trump, we have a President Sanders or Harris and they don’t like the policies of religious schools, or maybe how economics is taught? Suddenly lots of private schools and other options will be federally pressured to look very similar—shape up or credit eligibility goes away—and true choice will be curtailed.

Even the roll out of the proposal raises the specter of federal control. Though the great benefit of tax credits is they do not use government money, and hence are less prone to regulation than vouchers, DeVos, Cruz, and Byrne write that through their proposal they “are putting forward a historic investment in America’s students.” That sure sounds like the federal government is doing the funding, and what government funds it tends to control. Also, that Secretary DeVos is so prominent in the proposal release at least symbolizes not only federal intervention in education policy, but a strong connection to the executive—the dangerously regulatory—branch of the federal government.

School choice is great, and DeVos, Cruz, and Byrne recognize that. But as with so many policies, we cannot let our hearts overcome either our adherence to the rule of law—the Constitution—or make us underestimate the potentially crushing unintended consequences that the product of our pure motives may have.

A Rose by Another Name Still Merits First Amendment Protection

Barronelle Stutzman owns and operates Arlene’s Flowers, where she designs floral arrangements for a variety of occasions, including weddings. Mrs. Stutzman is also a practicing Christian; she believes that marriage is a spiritual union between a man and a woman and will not create floral arrangements for same-sex ceremonies. For this reason, when long-time clients Robert Ingersoll and Curt Freed asked Mrs. Stutzman to create floral arrangements for their wedding, she respectfully declined and referred them to several nearby florists.

To be clear, Mrs. Stutzman serves everyone. She gladly created Valentine’s Day and anniversary floral arrangements for Messrs. Ingersoll and Freed for nearly a decade before this litigation, all the while knowing they were a same-sex couple. She just has a sincere religious objection to creating her expressive floral works for same-sex weddings.

Nevertheless Ingersoll and Freed sued Stutzman, which suit was later consolidated with another one brought by the state of Washington. The state trial court ruled against Arlene’s Flowers and the state supreme court affirmed, holding that floral design did not constitute First Amendment-protected artistic expression. Stutzman took her case to the U.S. Supreme Court, which held it pending its decision in the factually similar Masterpiece Cakeshop case last year. The Supreme Court then remanded Arlene’s Flowers v. Washington back to the Washington Supreme Court for reconsideration. As it has in previous stages of this litigation, Cato has filed an amicus brief supporting Arlene’s Flowers, urging the Washington Supreme Court to revise its earlier ruling and hold that floral design is constitutionally protected expression.

The plaintiffs here simply fail to recognize the difference between discrimination based on sexual orientation and refusing to create messages that violate one’s conscience, which is an important First Amendment right that the Supreme Court has repeatedly affirmed. Floristry, like painting, dance, or music, is art, and art is speech protected by the First Amendment. The Court declared in Wooley v. Maynard (1977) that the government can’t force people to speak, even when the message is simply a state motto, and the means of speaking is just displaying the motto on one’s license plate. The First Amendment protects “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say. Forcing a florist to create a unique piece of art similarly intrudes on that freedom of mind.

Just last year, the U.S. Supreme Court in NIFLA v. Becerra and Janus v. AFSCME reaffirmed its commitment to striking down laws that compel speech. Justice Clarence Thomas’s concurrence in Masterpiece Cakeshop also illustrates the unique danger of forcing someone to speak against his or her conscience.

While Wooley provides important constitutional protection, it also offers an important limiting principle to that protection: Although florists, writers, singers, actors, painters, and others who create speech must have the right to decide which commissions to take and which to reject, this right does not apply to others who do not engage in protected speech. The court can rule in favor of Arlene’s Flowers on First Amendment grounds without blocking the enforcement of antidiscrimi­na­tion law against denials of service by caterers, hotels, limousine drivers, and the like.

In sum, the government should not be allowed to persecute expressive professionals for declining to create the government’s preferred messages.

Trump Administration Proposes to Check Itself in Remarkable Kisor Brief

On Monday, the Solicitor General filed an extraordinary brief in Kisor v. Wilkie, a case in which the Supreme Court is reconsidering “Auer deference,” or binding judicial respect for an agency’s interpretation of its own regulation. The brief is remarkable, perhaps even unprecedented, because it reflects the evident desire of the president to cede significant power to another branch of government.

Under Auer’s canonical formulation, an agency’s regulatory interpretation is “controlling unless plainly erroneous or inconsistent with the regulation.” The problem is that, in practice, Auer allows agencies to bind the public with putatively nonbinding advisories, and thereby evade procedural safeguards.

Astonishingly, the government’s brief recognizes the harms engendered by Auer. In a forthright section titled “Overly broad deference to agency interpretations can have harmful practical consequences,” the Solicitor General concedes that “[Auer] deference can discourage agencies from engaging in notice-and-comment rulemaking.” More importantly, the government proposes to mitigate these concerns by narrowing the doctrine.

To this end, the brief argues that Auer deference is appropriate only if the regulatory text involves a “genuine ambiguity.” While this may seem obvious, reasonable minds often disagree about “how clear is clear?” The Solicitor General intimates that courts have been too quick to defer–that is, they’ve been too easily satisfied the regulatory text is ambiguous–when the brief claims that “[a] rigorous application of the tools of construction would obviate any need for [Auer] deference in many cases.” Here, the government borrowed from the late Justice Scalia, who made the same point about judicial deference to an agency’s statutory interpretations.

Even if the regulatory text is genuinely ambiguous, the government argues that “the agency’s interpretation should be given [Auer] deference only if certain threshold requirements are satisfied.”

First, the Solicitor General argues that controlling deference should be “limited to interpretations that are not inconsistent with the agency’s prior views.” This is already a tremendous concession, but the government goes further. “Even when there is no express inconsistency,” the brief continues, “[Auer] deference should not apply when the agency adopts a novel interpretation that disrupts settled expectations.” By arguing that binding deference is inappropriate where it offends “settled interests,” the Solicitor General goes a long way towards reviving the defunct “Alaska Hunters doctrine,” which required agencies to undertake notice-and-comment rulemakings whenever they changed a regulatory interpretation in a manner that affected the reliance interests of regulated parties. In Perez v. MBA, the Supreme Court rejected the Alaska Hunters doctrine, but the government appears to be trying to revive it in Kisor.

Second, the brief argues that “a reviewing court [] should not apply [Auer] deference if a particular interpretive dispute does not implicate the agency’s expertise.”

Finally, the Solicitor General advises that “[Auer] deference is unwarranted [if] a proffered interpretation was given by field officials or other low-level employees who cannot be said to speak for the agency.”

Together, these three conditions—but particularly the requirement for interpretive consistency—would go far to cure the ills of Auer. The government, however, stopped short of calling for an outright repeal of the doctrine. Nor did the brief call for the Court to account for the administrative procedure behind the agency’s interpretation. For administrative law nerds, this means that the government seeks an Auer framework with robust “steps” one and two, but no step zero. 

Of course, I’d prefer if the Court rejected Auer deference wholesale, and the Cato Institute has filed a brief in Kisor supporting the overruling of Auer. Notwithstanding my preference to jettison the doctrine, I’m favorably impressed by the government’s brief. To my eyes, it represents a wise abnegation of presidential power.  

Theoretically, the Solicitor General is supposed to represent the interests of the United States, not the executive branch, per se. And, in practice, it retains a healthy degree of independence from political meddling. At the same time, the office is aware of the institutional interests of its political bosses, and, historically, the Solicitor General rarely has adopted legal positions out of line with those that protect or advance presidential authority. The upshot is that it’s virtually certain that the Trump administration was the impetus for the anti-executive reasoning in the government’s Kisor brief.

For this, the administration deserves credit. To riff off a famous biblical passage, it is easier to thread a camel through the eye of a needle than it is for the president to give up power. Yet that’s precisely what the Solicitor General proposes to do in its Kisor brief. By arguing for a limited Auer doctrine, the government argues for limits on its own power. Specifically, the executive branch seeks to transfer interpretive policymaking authority from itself to the judicial branch.

For some, the Solicitor General’s brief demonstrates dangerous “anti-administrativism” at the highest levels of government. I’ve a more positive take (though, admittedly, I’m an “anti-administrativist”). Thanks to overbroad congressional delegations and judicial deference doctrines, the president has accumulated unhealthy domination over domestic policymaking, via his control of the administrative state. We live in a time of “presidential administration,” as put by then-professor Elena Kagan. In this current political environment, where the legislature and judiciary aren’t competing to the extent they should, one of the primary limitations on presidential power is internal—that is, the duty to “take care that he laws be faithfully executed.” In this spirit, the Solicitor General’s brief recognizes that Auer deference undermines procedural safeguards set forth in the Administrative Procedure Act, and, therefore, recommends limiting the doctrine’s domain.

Obviously, the Trump administration rarely abides this internal check; the wall funding imbroglio represents a powerful example to the contrary. But when this presidency does the right thing, as with the Kisor brief, then kudos are in order.

Justice Sotomayor on the “Stacked Deck” of Administrative Law

Last week the Supreme Court heard oral argument in Return Mail Inc. v. USPS, posing the patent law issue (to quote SCOTUSBlog) of “Whether the government is a ‘person’ who may petition to institute review proceedings under the Leahy-Smith America Invents Act.” On pp. 30-31 of the transcript, Justice Sonia Sotomayor referred favorably to the Cato Institute’s brief on the unique dangers that can arise when federal agencies litigate before tribunals operated by federal agencies.

And that wasn’t even the best part! This was, from her comments immediately afterward, on the failure of the law to specify whether the word “person” includes the government:

It does seem like the deck is stacked against a private citizen who is dragged into these proceedings. They’ve got an executive agency acting as judge with an executive director who can pick the judges, who can substitute judges, can reexamine what those judges say, and change the ruling, and you’ve got another government agency being the prosecutor at the same time.

In those situations, shouldn’t you have a clear and express rule?

[cross-posted from Overlawyered]

Judicial Sanity on Occupational Licensing and the First Amendment

States often impose costly licensing restrictions on professionals who want to engage in certain businesses. Mississippi, however, has taken this practice to an absurd level in an attempt to regulate not only a profession, but also the definition of a commonly used word. A Magnolia State statute prevents anyone from using the term “engineer” commercially unless licensed by the state as an engineer.

Express Oil Change and Tire Engineers, a business that provides tire repair, maintenance, and replacement services, has a long-standing trademark on the term “Tire Engineers.” Express has refused to change the term, arguing that the First Amendment protects its use. Much is at stake for Express: the penalties for violating the statute include severe punishments like imprisonment, all for “misusing” a phrase that it had trademarked. Mississippi sued Express and won in district court, before losing last week before the U.S. Court of Appeals for the Fifth Circuit. The case is Express Oil Change v. Mississippi Board of Licensure for Professional Engineers & Surveyors.

The First Amendment guarantees that speech—even when done for money—is constitutionally protected. But such speech is subject to government regulation, the contours of which were defined by the U.S. Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission (1980). First, the speech itself “must concern lawful activity and not be misleading” to receive protection. To justify regulating the speech, a court asks if “the asserted governmental interest is substantial.” Finally, a court must establish “whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”

The Fifth Circuit correctly noted that the term “Tire Engineers” passes the Central Hudson test with flying colors. First, it is not, as Mississippi argues, “inherently misleading.” The word engineer means different things in different contexts. “Tire Engineers,” trademarked in 1948, is not the same as the Mississippi statute definition but, as the Fifth Circuit explains, that surely does not make it misleading. Next, the court upheld the district court’s finding that the state has a substantial interest in “ensuring the accuracy of commercial information in the marketplace,” an assertion unchallenged by both parties. Certainly, states can step in to ensure that consumers get what they pay for and know what they’re buying. But Mississippi’s statute took it too far; a total ban on a challenged term is a highly restrictive means of achieving the state’s goal. This is far from a narrowly tailored solution.

The Fifth Circuit has recognized when states go too far in similar contexts. For instance, in Byrum v. Landreth (2009), the court noted that it is unconstitutional for states to simply define and then ban common terms from being used in the market. A state could thus avoid constitutional challenge by “allowing only [interior] designers who satisfy its licensing qualifications to represent themselves as ‘licensed’ interior designers.” Such a solution would be far more narrowly tailored; all it asks is that unlicensed businesses not misrepresent themselves as licensed. Although state licensing schemes are often far too restrictive and present their own constitutional problems, this solution comports with the First Amendment.

When states try to establish only one definition for a common word, they create monopolies on language and severely encumber an individual’s ability to speak. Surely nobody believes that the act of repairing or changing a tire requires an advanced degree in mechanical engineering. The use of “tire engineer” in this context is thus neither misleading nor in need of regulation. Instead, the Mississippi statute serves as an example of states going too far in establishing protectionist licensing schemes and inhibiting commercial speech as a result.

In sum, a state does not get to corner the market on a word and crowd out all other possible uses. The Fifth Circuit acknowledged the speech-inhibiting nature of Mississippi’s statute and stood for the principle that speech – even for money – deserves First Amendment protection.

The Supreme Court is highly unlikely to take up this case even if the Mississippi Board deigns to appeal, so at least liberty is safe in this little corner of our world.

Unanimous Supreme Court Upholds Right to Be Free of Excessive Fines

It’s gratifying that the Supreme Court unanimously agreed that the Eighth Amendment’s Excessive Fines Clause applies to the states, meaning that states can’t fine you in a way that’s wholly disproportionate to the offense you commit. As one of the long-established natural rights in the Anglo-American legal tradition, there’s no reason it wouldn’t be and the debates over the Fourteenth Amendment’s ratification support this conclusion. (Here’s Cato’s brief in Timbs v. Indiana.)

At the same time, it’s disappointing that Justices Neil Gorsuch and Clarence Thomas were the only ones who explained, in separate concurrences, that the Fourteenth Amendment’s Privileges or Immunities Clause is the more constitutionally faithful way of extending rights as against state infringement. (Justice Ruth Bader Ginsburg’s majority opinion, joined by all but Justice Thomas, used the Due Process Clause.)

We’ll have to wait for some more difficult/less clear case to see if anyone else joins that originalist refrain. For practical purposes, it may not matter which clause of the Fourteenth Amendment provides the mechanism by which the Excessive Fines Clause is applied to the states. But it certainly matters for unenumerated rights (those not listed in the Bill of Rights), the jurisprudence regarding is confusing and controversial. If the Fourteenth Amendment ratification debates elucidate which such rights are covered under which clause, that would be important.

For that matter, it could matter in cases where the meaning of even an enumerated right was different in 1868 (at the Fourteenth Amendment’s ratification) than in 1791 (when Bill of Rights was ratified). Take the right to keep and bear arms, which the Supreme Court extended to the states in McDonald v. Chicago (2010). One of the key motivations behind the Second Amendment was the Founders’ concern about government tyranny. After the Civil War, however, the right to armed self-defense took on a different dimension as the Fourteenth Amendment’s enacters were quite concerned about the disarmament of freed slaves, as well as of other people who held unpopular opinions during Reconstruction. Justice Thomas – who provided the necessary fifth vote in McDonald – pointed this out in his solo concurrence.

Moreover, because using the Privileges or immunities Clause is more textually sound, the worst that could happen from moving away from “substantive due process” analysis is that there’s no change – but the upside is that only those rights supported by the original public meaning of constitutional text would be protected. That’s the dynamic that Josh Blackman and I described in the run-up to McDonald as “Keeping Pandora’s Box Sealed.” 

And now we have two justices for that view, as Josh and I predicted in an early draft of our forthcoming George Mason Law Review article “The Once and Future Privileges or Immunities Clause.” Before final publication, we’ll have to tweak some language regarding the “prediction” there now that the Court has ruled and we know what Gorsuch thinks, but you can see our  discussion at a Fourteenth Amendment conference hosted by Scalia Law School and the Institute for Justice last October. It’s unfortunate that Justice Brett Kavanaugh didn’t join either of his colleagues’ concurrences; he had no occasion to rule on the Fourteenth Amendment on the D.C. Circuit – nor do any of his scholarly writings touch on this area – so his vote today could indicate that he simply doesn’t want to revisit this area of law. Or, of course, it could mean that he didn’t want to rock the boat in a case where it doesn’t matter. 

In any event, with two justices and near-complete (and cross-ideological) agreement in the legal academy, there is real potential for movement on the Privileges or Immunities Clause – even if that potential hasn’t yet been realized.