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Judge Brown's Non-Delegation Doctrinal Revival:

It is not very often that the non-delegation doctrine is raised in federal appellate litigation, and perhaps for good reason. The Supreme Court has not looked favorably upon a non-delegation challenge to federal agency action in decades. Yet in a recent case before the U.S. Court of Appeals for the D.C. Circuit, Michigan Gambling Opposition v. Kempthorne, the appellants pressed a non-delegation challenge to aspects of the Indian Reorganization Act (IRA), and actually managed to secure one judge’s vote.

Michigan Gambling Opposition (MichGO) challenged the Bureau of Indian Affairs (BIA) decision to take approximately 150 acres of land in Michigan and place it in trust for use by an Indian tribe for the construction and operation of a casino. According to MichGo, the provisions of the IRA upon which the BIA relied constituted an unconstitutional delegation of legislative authority to the agency. Specifically, MichGO argued, Section 5 of the Act’s authorization for the BIA to acquire land “for the purpose of providing land for Indians” lacks an “intelligible principle” to guide the agency’s implementation of the Act’s delegation of authority.

Two judges on the panel, Douglas Ginsburg and Judith Rogers, found this argument wholly unconvincing. Their per curiam opinion noted that an “intelligible principle” may be derived not only from the statutory text, but also its purpose, “factual background” and “statutory context.” Further, they noted, the Supreme Court has been quite permissive in its enforcement of the nondelegation doctrine, and has upheld far broader delegations than that contained in the IRA. (Indeed, some commentators suggest that the doctrine is all but a dead letter.) The opinion also noted that the First, Eighth, and Tenth Circuits had also rejected nondelegation challenges to the IRA within the past ten years.

Judge Janice Rogers Brown was convinced by MichGo’s arguments, however. As she explained in her dissent:

Like other courts that have rejected nondelegation challenges to § 5 [citations omitted], the majority nominally performs a nondelegation analysis but actually strips the doctrine of any meaning. It conjures standards and limits from thin air to construct a supposed intelligible principle for the § 5 delegation. Although I agree the nondelegation principle is extremely accommodating, the majority’s willingness to imagine bounds on delegated authority goes so far as to render the principle nugatory. Analyzing the statute using ordinary tools of statutory construction, as the Supreme Court has always done in nondelegation cases, I am forced to conclude § 5 is unconstitutional.
And she concludes:
Section 5 gives the Secretary unguided authority to transfer areas of land from the jurisdiction of state and local government to that of various bands of Indians. None of the foregoing implies BIA has exercised its authority wantonly. But the question is not what it has done, but what it has authority to do. The authority was Congress’s to give, and the boundaries were for Congress to provide as well. Since it has failed to do so, I am forced to conclude § 5 of the IRA is an unconstitutional delegation.
One might expect such an argument from an academic – indeed there are several academics who have written quite powerfully on the need to reinvigorate the nondelegation doctrine in administrative and constitutional law. Yet given the Supreme Court’s reluctance to endorse even the most tepid nondelegation principles, it is somewhat surprising to see these arguments aired by a federal appellate judge. Will Judge Brown's opinion be a lonely and singular dissent? Or could it be a herald of a doctrinal revival?

Related Posts (on one page):

  1. More Signs of a Non-Delegation Doctrinal Revival?
  2. Judge Brown's Non-Delegation Doctrinal Revival:
krs:
Oh no! Judge Brown wants to roll back the clock to 2000, before Whitman v. American Trucking! Danger!
7.6.2008 12:42pm
vassil petrov (mail):
Janice Rogers Brown on SCOTUS.
7.6.2008 1:26pm
loki13 (mail):
Way to get the troops fired up. As I'm sure you know, the correct answer is (a), a lonely and singular dissent.
7.6.2008 2:02pm
stunned:
it's worth noting that Rhenquist found a violation of the non-delegation doctrine in his concurrence in the Benzene case (1980).
7.6.2008 3:39pm
Wahoowa:
I've said it before, and I've said it again: JRB for SCOTUS.
7.6.2008 4:49pm
OrinKerr:
It strikes me as a bit odd when a lower court judge claims to be "forced" to reach a result that (a) is not generally seen as consistent with Supreme Court precedents but (2) is very likely consistent with the judge's personal preferences for what the law should be. It always makes me wonder, forced by what?
7.6.2008 4:52pm
Originalism Is Useful (mail):
Forced by the law, Orin. Forced by the law.
7.6.2008 5:11pm
OrinKerr:
oiu,

I gather you mean the law that is the brooding omnipresence in the sky, not the law that is in the U.S. Reports?
7.6.2008 5:19pm
Originalism Is Useful (mail):
No, I mean Article I, section I of the Constitution.

Oh, snap!
7.6.2008 5:21pm
pireader (mail):
The whole campaign to resurrect a strong form of the "non-delegation doctrine" presents an interesting dilemma for the "libertarian originalist" crowd that usually gathers here at the VC.

The constitution's original text and intent hardly require the strong-form doctrine; it was a great example of 'activist judges making law'. But a revived non-delegation doctrine would make a handy stick for beating back the administrative state. So no surprise that some conservatives and libertarians have championed it. (Judge Rogers most recently.)
7.6.2008 5:22pm
pireader (mail):
Sorry--the reference above should be to Judge Brown.
7.6.2008 5:24pm
OrinKerr:
OIU,

How does Article I "force" this result in light of the Court's precedents? Or is your view that lower court judges are not bound by mere Supreme Court decisions? (And if so, are U.S. citizens bound by them?)
7.6.2008 5:38pm
Libertarian1 (mail):
How does Article I "force" this result in light of the Court's precedents? Or is your view that lower court judges are not bound by mere Supreme Court decisions? (And if so, are U.S. citizens bound by them?)



On more than a few occasions Judge Reinhardt appears not to be so bound. And as he famously said "They can't catch them all". So why not give it the old college try?
7.6.2008 6:15pm
Originalism Is Useful (mail):

How does Article I "force" this result in light of the Court's precedents?





"To summarize, the statutory language lacks any discernible boundaries. To rely on the purpose of “providing and for Indians” does nothing to cabin the Secretary’s discretion over providing land for Indians because it is tautological. To say the purpose is to provide land for Indians in a broad effort to promote economic development (with a special emphasis on preventing land loss) is tautology on steroids. Making a different selection from the same smorgasbord, I might posit quite different principles—to provide land for landless Indians; to acquire trust lands to be used for farming; to supplement grazing and forestry lands; to provide lands in close proximity to existing reservations; to consolidate checkerboarded reservations. All of these goals would be reasonable, but none can be derived from the text of the IRA. The very fact that so many standards can be proposed merely highlights the fact that the statute itself fails to describe how the power conveyed is to be exercised. Thus, the Secretary’s assertion of unguided power is not subject to any judicial check; nor, conversely, can he be required to act whenever he voluntarily refrains from using his discretionary power.

...

My point here is not to quibble with the majority’s conclusion that the purpose of § 5 is to enable self-support
rather than dependency or to prevent losses rather than acquire new land. Rather, the court should not be playing this game at all. Indeed, the court’s approach differs radically from the Supreme Court’s analytical process in nondelegation challenges. For example, in the Intermountain Rate Cases, the Court, recognizing that “we must be governed by the statute and its plain meaning,” interpreted a challenged section to incorporate a prohibition on “undue preference and discrimination” from the text of a neighboring section. 234
U.S. 476, 485–86, 488 (1914). In American Power &Light Co., the Court relied on a statute’s specific standards for new security issues that constituted “a veritable code of rules” to inform the SEC’s discretion to ban “unduly or unnecessarily complicate[d]” corporate structures. 329 U.S. at 105. I could continue with examples, but they all illustrate the same point: even in a nondelegation challenge, a court must find meaning for an ambiguous phrase in some relevant text. Here, by contrast, the majority perceives a mood of economic development, which Congress did not articulate, and the majority justifies this mood by its own assessment of Congress’s good intentions.

Given the absence of standards to govern the Secretary’s exercise of his § 5 authority, I conclude the authority is too broad to be valid. Unquestionably, a standardless delegation is valid if it is small; “the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” Whitman, 531 U.S. at 475. While the majority recognizes that scope matters, it fails to acknowledge that under established nondelegation doctrine, a standardless delegation must be quite narrow. Whitman provided the canonical example of a sufficiently small delegation: EPA can “define ‘country elevators,’ which are to be exempt from new-stationary-source regulations governing grain elevators.” Id.; see 42 U.S.C. § 7411(i) (“Any regulations promulgated by the Administrator under this section applicable to grain elevators shall not apply to country elevators (as defined by the Administrator) which have a storage capacity of less than two million five hundred thousand bushels.”).

By contrast, the § 5 power is quite broad."
7.6.2008 6:22pm
Originalism Is Useful (mail):

How does Article I "force" this result in light of the Court's precedents?





"To summarize, the statutory language lacks any discernible boundaries. To rely on the purpose of “providing and for Indians” does nothing to cabin the Secretary’s discretion over providing land for Indians because it is tautological. To say the purpose is to provide land for Indians in a broad effort to promote economic development (with a special emphasis on preventing land loss) is tautology on steroids. Making a different selection from the same smorgasbord, I might posit quite different principles—to provide land for landless Indians; to acquire trust lands to be used for farming; to supplement grazing and forestry lands; to provide lands in close proximity to existing reservations; to consolidate checkerboarded reservations. All of these goals would be reasonable, but none can be derived from the text of the IRA. The very fact that so many standards can be proposed merely highlights the fact that the statute itself fails to describe how the power conveyed is to be exercised. Thus, the Secretary’s assertion of unguided power is not subject to any judicial check; nor, conversely, can he be required to act whenever he voluntarily refrains from using his discretionary power.

...

My point here is not to quibble with the majority’s conclusion that the purpose of § 5 is to enable self-support
rather than dependency or to prevent losses rather than acquire new land. Rather, the court should not be playing this game at all. Indeed, the court’s approach differs radically from the Supreme Court’s analytical process in nondelegation challenges. For example, in the Intermountain Rate Cases, the Court, recognizing that “we must be governed by the statute and its plain meaning,” interpreted a challenged section to incorporate a prohibition on “undue preference and discrimination” from the text of a neighboring section. 234
U.S. 476, 485–86, 488 (1914). In American Power &Light Co., the Court relied on a statute’s specific standards for new security issues that constituted “a veritable code of rules” to inform the SEC’s discretion to ban “unduly or unnecessarily complicate[d]” corporate structures. 329 U.S. at 105. I could continue with examples, but they all illustrate the same point: even in a nondelegation challenge, a court must find meaning for an ambiguous phrase in some relevant text. Here, by contrast, the majority perceives a mood of economic development, which Congress did not articulate, and the majority justifies this mood by its own assessment of Congress’s good intentions.

Given the absence of standards to govern the Secretary’s exercise of his § 5 authority, I conclude the authority is too broad to be valid. Unquestionably, a standardless delegation is valid if it is small; “the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” Whitman, 531 U.S. at 475. While the majority recognizes that scope matters, it fails to acknowledge that under established nondelegation doctrine, a standardless delegation must be quite narrow. Whitman provided the canonical example of a sufficiently small delegation: EPA can “define ‘country elevators,’ which are to be exempt from new-stationary-source regulations governing grain elevators.” Id.; see 42 U.S.C. § 7411(i) (“Any regulations promulgated by the Administrator under this section applicable to grain elevators shall not apply to country elevators (as defined by the Administrator) which have a storage capacity of less than two million five hundred thousand bushels.”).

By contrast, the § 5 power is quite broad."
7.6.2008 6:22pm
Same judge?:
Isn't this the same judge who wrote that embarrassing tax opinion?
7.6.2008 6:36pm
Jacob Berlove:
Pireader,

I disagree. I think that the framers were very concerned that each branch of the government excercise only the powers in which the constitution invests it, in order to avoid too much power being in any branch's hands. Just like they surely didn't want congress to excercise executive authority, even with the consent of the president, they also didn't want the executive excercising legislative authority, even with the consent of congress. You call a strong invocation of the non-delegation doctrine "activist judges making law", but there is nothing non-originalist in being "activist" in refusing to enforce laws ajudged to be unconstitutional, and I wouldn't call that "making" law.

Prof. Kerr,

I think Judge Brown's comments are straightforward. She was simply saying that she was "forced" by what she believed the correct interpretation of the constitution to be- an interpretation arguably not contrary to supreme court precedent (and therefore not out-of-bounds to a lower court judge)- to take a course that 1) goes against perhaps the better reading of precedent, and 2) is "activist" in that it declares an act of congress unconstitutional. I don't think that there's anything odd in it at all, especially if she honestly believes (quite plausibly) that the framers shared the many of the same views as found in her article.
7.6.2008 6:36pm
Jacob Berlove:
*her article --> her speech
7.6.2008 6:37pm
OrinKerr:
OIU,

Now I'm even more confused than I was before: Your case for why Article I, Section I forces this result is to quote an excerpt that does not even mention Article I, Section I. So much for "oh, snap!"

Perhaps you meant instead to argue that Judge Brown's reading was actually more consistent with Supreme Court precedent than the majority's reading?
7.6.2008 6:39pm
Originalism Is Useful (mail):

Your case for why Article I, Section I forces this result is to quote an excerpt that does not even mention Article I, Section I.



No. That is not "my case for why". You asked "How Article I forces this result in light of the Supreme Court's precedents?" Your implication was that there might be tension between the demands of Article I (the source of nondelegation doctrine) and subsequent developments in constitutional law (cases applying the nondelegation doctrine). My reply was to supply an excerpt from Judge Brown's dissent that shows it is perfectly consistent with subsequent developments in constitutional law. Because there is no tension between the demands of Article I and subsequent developments in constitutional law, Article I forces the result.


Perhaps you meant instead to argue that Judge Brown's reading was actually more consistent with Supreme Court precedent than the majority's reading?



That is not an "instead" argument. Oh, snap!
7.6.2008 6:52pm
Snarky:
Judge Janice Rogers Brown is an activist.

But that is okay. Because she is out to save us all from "kleptocracy."

Save us Ms. Brown! Save us! You alone can heroically stand against the "constructions" found in Supreme Court precedent.
7.6.2008 6:59pm
OrinKerr:
OIU,

I'm having trouble understanding you, so let me try to summarize. As I understand you, your view is that Judge Brown was forced to reach the result because her presentation of the law as interpreted by the Supreme Court is entirely correct, giving her no choice, no matter what her policy preferences may be. So your answer to my initial comment, if articulated explicitly, would be something like this:
It may be that Judge Brown's view "is not generally seen as consistent with Supreme Court precedents," but that is a false understanding: It is not only consistent, but it is the only principled and honest application of those precedents.
Do I understand you correctly? If so, that raises an interesting question of why Judge Ginsburg voted the other way given his lament about "the Constitutional in Exile." Do you think he was voting tactically to keep the case away from the Supreme Court?
7.6.2008 7:04pm
Cornellian (mail):
Sometimes the court gets dragged into disputes between the executive and legislative branches and has to make a ruling for one or the other when it probably would prefer to stay out of it. In delegation cases, the executive and legislative branches are on the same side (Congress wants to delegate, the Executive wants the delegated power), the constitution provides no clear dividing line between executive and legislative power and so it's understandable, if not doctrinally pure, that SCOTUS tends to shy away from non-delegation arguments.

As for JRB, she strikes me as having a Thomas-like disregard for stare decisis, which I suppose is good or bad depending on how much you like the precedent she wants to disregard.
7.6.2008 7:11pm
loki13 (mail):
OK-

I have to ask- is this how you end up abusing.... um, teaching students in your class? Because it's mighty entertaining. Observing (as opposed to being on the receiving end). Only two observations-

1. I don't think I ever used *snap* when I was on the end of a schooling.

2. Reminds me of my attempt to defend my definition of a security under the Securities Act of 1933. Unpleasant memory that, but I learned something.
7.6.2008 7:35pm
Originalism Is Useful (mail):

1. I don't think I ever used *snap* when I was on the end of a schooling.



Sorry to say, Loki, but I fail to see the schooling. Professor Kerr may be feigning misunderstanding of my argument, which, by his lights, has been “implicitly articulated,” but clearly my chosen method of articulation has sufficed for him not only to understand my argument, but to replicate its content in alternate phrasing. It would stand to reason that his claims of confusion are strategic moves in the debate we seem to be having. I am more than happy to play the foil, but it should be rather obvious that we simply disagree about a number of things: the status of constitutional law in relation to the Constitution; the value of incorrect precedent when the Constitution’s text is clear on the point; the fealty to precedent the Supreme Court has in cases of constitutional law as opposed to statutory construction; and even down to more practical assessments, such as how many votes there are on the current composition of the Supreme Court to revivify the non-delegation doctrine in the context of Indian law. Unlike Professor Kerr here, I do not believe the Constitution requires judges engaged in interpretation in order to be law, as it was already ratified properly and published widely; I believe that constitutional law can conflict with the Constitution, regardless of what temporary personnel on the Supreme Court happen to say; I believe that the Supreme Court has a duty to correct errors embedded in constitutional precedent, because constitutional amendments are difficult to achieve and Congress cannot therefore quickly correct interpretive errors or adverse public policy consequences; and I think that in the particular area of Indian law, Justices Thomas and Justices Roberts have axes to grind, and Justices Alito and Scalia would be interested in deciding a clean non-delegation doctrine case that drew a bright-line without threatening the whole of the regulatory state. I take it this is now explicit enough for someone like you, Loki, to understand.

Oh, snap!


So your answer to my initial comment, if articulated explicitly, would be something like this: It may be that Judge Brown's view "is not generally seen as consistent with Supreme Court precedents," but that is a false understanding: It is not only consistent, but it is the only principled and honest application of those precedents.

Do I understand you correctly? If so, that raises an interesting question of why Judge Ginsburg voted the other way given his lament about "the Constitutional in Exile." Do you think he was voting tactically to keep the case away from the Supreme Court?




Though I would disagree that “Judge Brown’s view is not generally seen as consistent with Supreme Court precedents” – it seems to me that everyone (including Orin Kerr) knows her view is the only principled and honest application of those precedents, I think that as an empirical matter the federal judiciary does not enforce the non-delegation doctrine because (i) the New Deal is popularly viewed as a success and the average voter loves his Social Security and Medicare benefits and (ii) enforcement of the nondelegation doctrine by libertarians or conservatives would lead to Democrats or liberals decrying the looming threat to any and all federal environmental protection.

As for Ginsburg being in the majority, it is worthwhile to note that Ginsburg was in the majority in Murphy. Once the Murphy panel felt the political winds blowing against it, that opinion was “corrected.” It is plausible that Ginsburg may have been voting tactically to shield the case from Supreme Court review. But, if the Supreme Court desires to hear the case once a cert petition is filed, it will find a way. I would agree that, as a tactically matter, it would be smarter to file for cert rather than seek en banc review, because one judge out of three looks better than one judge out of nine. (Then again, neither one of us knows what Kavanaugh or Griffith or Sentelle would do.) It seems your belief that Ginsburg may have wanted to shield the case from review rests on the assumption that Justice Kennedy would certainly reject any non-delegation doctrine argument and the four liberals would vote in lockstep. I am not so certain that is true. It may be that Stevens and Ginsburg would surprise us.

Oh, snap!
7.6.2008 8:32pm
krs:
I'm writing a brief right now in a district court case. I'm considering using Oh, snap! between sections of the brief instead of the ordinary roman numerals and point headings... and then, of course, another Oh, snap! at the end of the brief. I'm leaving it out of the proposed order, though.

If it gets past the partner I'm working for, I'll let everyone know which way the court rules.
7.6.2008 8:40pm
Originalism Is Useful (mail):
:)
7.6.2008 8:44pm
OrinKerr:
Originalism is Useful,

I'm not being strategic or playing a game: I'm genuinely just trying to figure out what you're trying to say. You seem to have a lot of strong views about what is right and wrong, but I cannot identify them absent explanation. It's not that you and I necessarily disagree, I should be clear. But I have been genuinely trying to understand your position, not playing a game.

As for your comment "it seems to me that everyone (including Orin Kerr) knows her view is the only principled and honest application of those precedents," I think we may have identified the source of the misunderstanding. Obviously I do not know that her view is the only principled and honest application of those precedents: otherwise none of my comments would make sense.

As for which side is right, I don't know with certainty: I haven't read the case, and without reading it carefully I cannot be sure. At the same time, given the panel, and the recent history of the nondelegation doctrine in the Supreme Court, I think it's much more likely that the majority faithfully applied existing precedents than that Judge Brown did so. Here's my rule of thumb: If Douglas "Constitution in Exile" Ginsburg says there's no nondelegation problem, then there is no nondelegation problem.

Indeed, my assumption in the beginning was that this is so obvious that we could move on to the interesting question of rhetoric, namely the use of the word "forced". Now, your comments raise an interesting different perspective: Maybe Judge Brown actually has the better argument as a matter of precedent. In that case, the rhetorical question isn't interesting, as it becomes the conventional type of "forced" outcome -- forced by precedent.

In any event, I think you and I are simply interested in very different things.
7.6.2008 8:55pm
OrinKerr:
Oh, and OIU, I should add, thanks for explaining your view. I think it would have been better if you had taken out your claims that I am acting in bad faith, as I am not, but I appreciate your taking the time to explain your position so I can try to understand what you're saying.
7.6.2008 8:59pm
loki13 (mail):
OIU-

I'll break this down in easily digestable steps (something a senior partner wouldn't do for you, which is why Professors are much nicer):

1. You original claim was-
"No, I mean Article I, section I of the Constitution.

Oh, snap!"

At this point, kindly Professor Ames pushes up his glasses, looks at you, and says, "I'm sorry, OIU, where in AI, sI is the non-delegation doctrine contained? I must have missed that. Could you point that out to me?"

2. You reply by quoting a long section from the decision, which nowhere refers to the Constitution, and, instead, refers to the activist Supreme Court precedent in that area. The teacher then replies, "Oh, so you're not making an argument from the text of the Constitution, you're making an argument that the judge is merely correctly applying stare decisis?"

3. Your reply (paraphrased) is that the text of Article I (still not citation to the actual text, because non-delegation is a structural argument untethered to particular language) forced the previous jurisprudence, which forced the result. You then add another snap.

4. At this point, the rest of the class is in hysterics, while Prof. Ames asks you if the other judges sitting on the panel also had their opinions forced from the jurisprudence that was forced from Article I, or perhaps the other judges, who might favor the same result as JRB, might simply be voting tactically. Clearly, you have beeen led down a primrose path.

End scene.
7.6.2008 9:07pm
Originalism Is Useful (mail):
If Douglas "Constitution in Exile" Ginsburg says there's no nondelegation problem, then there is no nondelegation problem.

Well. I read the book review in which Douglas Ginsburg uses the term. Contrary to what Jeffrey Rosen claims, there is no Constitution-in-Exile movement, and Ginsburg was responding to a book, not articulating explicitly and fully his own position.

Now, your comments raise an interesting different perspective: Maybe Judge Brown actually has the better argument as a matter of precedent. In that case, the rhetorical question isn't interesting, as it becomes the conventional type of "forced" outcome -- forced by precedent

I don't think one can be forced by precedent (see Justice Kennedy's opinion in Boumediene). The Constitution forces the result in constitutional cases because to the extent the result is not forced by the Constitution, the precedent is malleable by future judges. To say you are forced by precedent in a constitutional case is just to say you have been forced by the Constitution.

At the same time, given the panel, and the recent history of the nondelegation doctrine in the Supreme Court, I think it's much more likely that the majority faithfully applied existing precedents than that Judge Brown did so.

I think they're just playing politics, taking cues from the Supreme Court and popular opinion. Enforcing the nondelegation doctrine would not be popular and the Supreme Court hasn't indicated it wants to do so, so they're interpreting the relevant cases in line with that understanding. That could change if their perception of the political climate changed.
7.6.2008 9:17pm
Originalism Is Useful (mail):
Oh, and OIU, I should add, thanks for explaining your view. I think it would have been better if you had taken out your claims that I am acting in bad faith, as I am not, but I appreciate your taking the time to explain your position so I can try to understand what you're saying.

Let me apologize here, because I didn't mean to imply you were acting in bad faith. I just don't believe that Orin Kerr could ever be confused.
7.6.2008 9:20pm
Balder is Back!!! (mail):

I'm sorry, OIU, where in AI, sI is the non-delegation doctrine contained? I must have missed that. Could you point that out to me?



Article I
Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.


It doesn't say "some legislative powers herein granted shall be vested in a federal agency", nor does it say "all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of federal agencies."

Thanks for playing.
7.6.2008 9:23pm
OrinKerr:
OIU,

I think you are confusing the roles of lower court judges and the roles of Supreme Court Justices. You are describing a view of how you think Justices should behave that really doesn't work at the lower court level. Supreme Court Justices are not bound by precedent: they can vote to overturn them. Lower court panels are bound both by Supreme Court decisions and prior panel decisions in their circuit. So when you say that judges aren't actually "bound by precedent", you are saying something that makes sense when applied to Supreme Court Justices but not something that makes much sense when applied to lower court judges.

Thus, while you criticize the majority of the DC Circuit for "taking cues from the Supreme Court," I would submit that this is not only something good for a lower court to do, but actually something required by the job of lower court judge.
7.6.2008 9:34pm
Originalism Is Useful (mail):

1. My point is that Judge Ginsburg does indeed lament that doctrines like the nondelegation doctrine are in their current state. The question is why he would then vote contrary both to law *and* his policy preferences.



I addressed this above. I think your account is plausible, but, if true, Ginsburg may be reading the signals incorrectly.



2. Supreme Court Justices are not bound by precedent: they can vote to overturn them. Lower court panels are bound both by Supreme Court decisions and prior panel decisions in their circuit. So when you say that judges aren't actually "bound by precedent", you are saying something that makes sense when applied to Supreme Court Justices but not something that makes much sense when applied to lower court judges.




First, I would say that Supreme Court Justices are bound by the Constitution. I hope you agree!

Second, I would say that they are bound by the logic of their own precedents to the extent they claim to be applying them. For example, to the extent you claim that there is no national consensus in favor of child rape because there is no federal law on the matter, your claim is false if there is federal law on the matter that was recently enacted.

Third, I think now we are having an is/ought argument. We agree that lower court judges ought to be bound by precedent, but the fact of the matter is district court judges are only bound by precedent to the extent appellate courts are willing to overturn them and intermediate appellate judges are only bound by precedent to the extent that the Supreme Court is willing to overturn them. Last time I checked, federal district courts annually hear around 160k cases, Circuit Courts of Appeals hear 80k, and the Supreme Court hears 80-90. That means the law is primarily "made" through district court judge discretion and intermediate appellate court decisions on the law. Not by the Supreme Court. Clearly, not all judges agree as to how precedent binds, or else Circuit splits would never develop. So the sense in which lower court judges are bound is really weak; they are generally making the law, not applying it.

Lastly, all federal judges have lifetime tenure and take an oath to uphold the Constitution. Don't you think the diversity of views on, say, detainee rights or FISA shows just how un-bound lower court judges are? I agree that Reinhardt is oft rebuked, but for every bad Reinhardt decision, isn't there a Luttig or Wilkinson or Posner or Easterbook decision that wasn't granted cert? Isn't Hudnut a seminal case in the First Amendment context?


3. You criticize the majority of the DC Circuit for "taking cues from the Supreme Court." I would submit that this is not only something good for a lower court to do, but actually something required by the job of lower court judge.



I was describing, not criticizing, and I partially agree with you as a normative matter. But given the low likelihood that the Supreme Court would hear the case, why not act on the basis of your oath and uphold the Constitution? You are an independent judge. That's your job, too. And it's what you usually do, anyway.
7.6.2008 9:59pm
OrinKerr:
Oops-- OIU, I changed my comment soon after posting it, and unfortunately you saw the one before I rewrote it. Sorry about the confusion.

As for Supreme Court Justices being bound by the Constitution, every Supreme Court Justice agrees with that 100%. However, no two Justices -- no two people -- agree on what the Constitution binds them to do. Given that, my experience is that simply saying that you follow "the Constitution" isn't particularly helpful.

As for lower court judges, I totally disagree: they are NOT independent from the Supreme Court. As you know, the Constitution labels the lower courts "inferior courts." The Constitution explicitly makes them "inferior" to the Supreme Court, and thus they must follow what their superior court tells them (even if they think the chances of review are zero).
7.6.2008 10:15pm
Originalism Is Useful (mail):
As for lower court judges, I totally disagree: they are NOT independent from the Supreme Court. As you know, the Constitution labels the lower courts "inferior courts." The Constitution explicitly makes them "inferior" to the Supreme Court, and thus they must follow what their superior court tells them (even if they think the chances of review are zero).

Well, I agree that the Supreme Court hears cases last and so controls the final disposition of a case. But the Supreme Court also shares "the judicial Power" with Congress, and inferior federal courts are "inferior" only in the sense that Congress may destroy them at will by statute. The Supreme Court, on the other hand, may not be abolished without a constitutional amendment. I take it our argument reduces to this:

OK: Ginsburg read the tea-leaves cautiously and should have, even if his chance of being overturned was zero.

OIU: The Supreme Court had yet to rule on this case, and Ginsburg should have voted with Brown to vindicate the Constitution in the absence of contrary precedent, even if the chance the Supreme Court would overturn him was 100%, thereby foreclosing his public policy preferences from realization in the near term.

I guess you think the social custom of judicial restraint is more important than separation-of-powers in the constitutional structure. Perhaps, likewise, Ginsburg and Brown simply have a different conception of conservatism.
7.6.2008 10:29pm
OrinKerr:
OIU writes:
I agree that the Supreme Court hears cases last and so controls the final disposition of a case. But the Supreme Court also shares "the judicial Power" with Congress, and inferior federal courts are "inferior" only in the sense that Congress may destroy them at will by statute. The Supreme Court, on the other hand, may not be abolished without a constitutional amendment.
This sounds like living Constitutionalism to me, and maybe I am not seeing the penumbras correctly. But assuming that you meant to say that the Supreme Court shares the judicial power with lower courts, not Congress, doesn't your reading render the plain language of the Constitution redundant and meaningless? And assuming you think the Constitution means what it says, isn't your own reading contrary to the Constitution?

Let's go to the Constitution:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour . . .
If the only meaning of the word "inferior" was "existing at the discretion of Congress," then the phrase "inferior courts as the Congress may from time to time ordain and establish" would be redundant and the word "inferior" mere surplusage. Further, it would be a pretty strange to refer to "the judges, both of the supreme and inferior courts," as the plain text seems to use the word "inferior" in contrast to "supreme". Was there some common law understanding that a "supreme" court was a court that the legislature could not eliminate? I have not encountered such an understanding. I think the Constitution is plain: one court is supreme, the others inferior; the inferior is below the supreme.

Anyway, I would be interested in hearing more of why you think the word "inferior" only means "existing at the discretion" of Congress and not "inferior to the supreme court". Or perhaps you think that we must be creative and nontexual in reading Article III to save the text of Article I? And if you think this, why did you choose to be creative and nontextual in the Article III setting and not the Article I setting? What parts of the Constitution forced you into that?
7.6.2008 10:59pm
Originalism Is Useful (mail):
But assuming that you meant to say that the Supreme Court shares the judicial power with lower courts, not Congress, doesn't your reading render the plain language of the Constitution redundant and meaningless?

I'm confused here. I explicitly said that the Congress shares the judicial power with the Supreme Court, which is what the Constitution says. Furthermore, if your reading is correct, then state courts would have no role in relation to the Supreme Court, which is incorrect. If Congress had not established inferior federal courts, the Supreme Court still would have had jurisdiction over appeals of denials of federal rights from state courts, and state courts are not called inferior in the Constitution. Were you right, then state courts should be mentioned as inferior courts also, and all state supreme court judges, by your logic, have lifetime tenure by virtue of Article III of the Constitution.

Anyway, I would be interested in hearing more of why you think the word "inferior" only means "existing at the discretion" of Congress and not "inferior to the supreme court".

We were talking about "inferior federal courts," not any and all courts. There are courts whose decisions the Supreme Court may review, and those courts are not called inferior in Article III. If we had been talking about both sets of courts, that would have been a different discussion.


If the only meaning of the word "inferior" was "existing at the discretion of Congress," then the phrase "inferior courts as the Congress may from time to time ordain and establish" would be redundant and the word "inferior" mere surplusage.

By that logic, the word "such" is redundant surplusage, too, but it is there.

Was there some common law understanding that a "supreme" court was a court that the legislature could not eliminate?

No need for that. The text says: "The judicial power of the United States, shall be vested in one Supreme Court".
7.6.2008 11:29pm
OrinKerr:
OIU writes:
I'm confused here. I explicitly said that the Congress shares the judicial power with the Supreme Court, which is what the Constitution says.
Article III, Section I of the Constitution says:
"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."
As I think you can see, the Constitution does not say that the Supreme Court shares the judicial power with Congress. Rather, it says that the power is vested in the Supreme Court, and, if Congress makes inferior courts, the judicial power is also vested in those inferior courts Congress has created. That's what the Constitution says, anyway.

I'm really not sure why you see this as saying something about state courts. State courts were preexisting courts of general jurisdiction belonging to different sovereigns, not an entity for the Constitution to create. The Constitution discusses the role of state courts in the Constitutional structure in the Supremacy Clause of Article VI, not in Article III. The phrase "inferior courts" referred to the lower federal courts, not state courts, and the text indicates that Congress could establish or not establish them as it wished.
7.7.2008 12:12am
OrinKerr:
A quick additional point, OIU, just to cover my bases. The fact that the Supreme Court has appellate jurisdiction over the state courts on questions of federal law is dealt with explicitly in Article III, Section II, not Article III, Section 1:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
7.7.2008 12:21am
Originalism Is Useful (mail):
As I think you can see, the Constitution does not say that the Supreme Court shares the judicial power with Congress. Rather, it says that the power is vested in the Supreme Court, and, if Congress makes inferior courts, the judicial power is also vested in those inferior courts Congress has created. That's what the Constitution says, anyway.

Since Congress has the at-will power to create or destroy inferior federal courts, Congress shares the judicial power with the Supreme Court. Whatever judicial power the Supreme Court has is always subject to the Madisonian compromise. We are now having a semantic argument.

In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

This is but another clause of the Constitution that justifies asserting that the Supreme Court and Congress "share" the judicial power, as I did.

I'm really not sure why you see this as saying something about state courts.

I do not.

State courts were preexisting courts of general jurisdiction belonging to different sovereigns, not an entity for the Constitution to create.

I know.

The phrase "inferior courts" referred to the lower federal courts, not state courts, and the text indicates that Congress could establish or not establish them as it wished.

Yes. That is my point. Therefore, "inferior" in Article III does not necessarily mean "any court whose cases the Supreme Court reviews as a matter of judicial administration". It must have a more narrow meaning than that.
7.7.2008 12:32am
loki (mail):
OIU- I think my criticism for you is mainly for your tone; repeatedly telling someone *oh snap* when you really haven't proven a point is, um, kind of calling ridicule on yourself. As for your argument....

Pointing out the text of Art. I no more compels the result of the non-delegation *doctrine* than does any reciting the 1st Am. point compulsion of our current 1st Am. jurisprudence. That the non-delegation doctrine rose in a time and place known for a certain type of judicial activism (albeit one favored by those on this board) makes it no more (or less) constitutionally compelled than, well, not having it at all. While the text could certainly allow for that interpretation, it could also mean that Congress, through valid legislation, could delegate some legislative powers... the modern argument for the non-delegation doctrine is not vested simply in the language of Art. I, but rather in the tripartite structure of the Constitution itself.

As for your point about the lower Federal courts not having to follow Supreme Court precedent. Um... yeah. You go with that. They are bound by vertical stare decisis. To the extent that they do not follow it, they ARE NOT DOING THEIR JOBS. As pointed out by OK, the SCOTUS is bound solely by horizontal (weak) stare decisis, which is to say that while they should give the presumption of validity to their decisions in Constitutional areas (ignoring for now, statutory cases where the legislature can override, and especially in cases marked by frequent punctuation) they may revisit and overrule the precedent.

Blah blah blah. This is why JRB paid lip service to the SCOTUS precedent. Unfortunately, she chose not to apply it. The conscientious thing (I guess) would be to join the write a whiny concurrence saying that while the result is compelled by the current SCOTUS jurisprudence, JRB is of the opinion that it is incorrect. That, and $5, will get her coffee at Starbucks.
7.7.2008 12:49am
OrinKerr:
OIU,

First of all, there is a profound difference between the power to create an institution and the power that the institution exercises when created. Congress has power to create an institution that can exercise the judicial power. But that does not give Congress the judicial power itself: the judicial power is the power to adjudicate cases and controversies according to law, not the power to do something that has some impact on cases. This is not merely semantics: It's the very basic principle of separation of powers on which the entire constitutional edifice rests.

In any event, I never argued that "inferior" meant "any court whose cases the Supreme Court reviews as a matter of judicial administration." In my view, whether a court is "inferior" has nothing to do with the order of appeal, but rather with who is the leader and who is the follower. And I think the constitutional text is pretty clear that the "inferior" courts have to take the lead from the "supreme" court. The words "supreme" and "inferior" are pretty clear, I think.
7.7.2008 12:53am
Balder is back!!! (mail):
As for your point about the lower Federal courts not having to follow Supreme Court precedent.

I never made that point.

OIU- I think my criticism for you is mainly for your tone; repeatedly telling someone *oh snap* when you really haven't proven a point is, um, kind of calling ridicule on yourself. As for your argument....

Given that a law professor who clerked for the Supreme Court just engaged with me substantively over the course of this thread, your opinion of the quality of my argument or the *tone* of silent text is rather insignificant.

Oh, snap!
7.7.2008 12:55am
vassil petrov (mail):
My take at prof. Kerr-OIU dispute is this:
a lower court judges should normally follow Supreme Court jurisprudence even if it may be somewhat away from the true (original?) meaning of the text. But this is only a pragmatic arraingement. If a lower court judge is truly convinced that a Supreme Court precedent is wrong and dangerous for the liberty or the structure of government, it is his or her duty to disregard it. However, he or she should be very honest and open what he or she is doing and not trying to hide it like judge Reinhardt.
Judge Brown's attitude was quite appropriate - she did it in dissent.
We should never forget that the Supreme Court's or any other court's opinions about what a written Constitution means cannot be law much less law of the land. Only the Constitution is law and judicial opinions are attempts for the interpretation of the law. If there is misinterpretation of the Constitution and that interpretation is dangerous for the liberty or the structure of government, it should be corrected even if that means upsetting 70+ year jurispredence.
7.7.2008 12:58am
Originalism Is Useful (mail):

In my view, whether a court is "inferior" has nothing to do with the order of appeal, but rather with who is the leader and who is the follower. And I think the constitutional text is pretty clear that the "inferior" courts have to take the lead from the "supreme" court. The words "supreme" and "inferior" are pretty clear, I think.


Well, that's your construction of the text. But, again, I don't think that means we have much of a disagreement, then. I don't think that Judge Brown's dissent would have been improper if adopted by another judge on that panel, or would have in any way have violated the purpose of the words "inferior" or "supreme" in Article III. Though it seems that now you are getting into text and principle analysis, which is the mode of originalism that the former leading adherent of living constitutionalism advocates.




First of all, there is a profound difference between the power to create an institution and the power that the institution exercises when created. Congress has power to create an institution that can exercise the judicial power. But that does not give Congress the judicial power itself: the judicial power is the power to adjudicate cases and controversies according to law, not the power to do something that has some impact on cases. This is not merely semantics: It's the very basic principle of separation of powers on which the entire constitutional edifice rests.




I certainly think the ability to craft federal rules of procedure or federal rules of evidence counts as part of the judicial power (after all, the ability to craft rules to manage cases is inherently judicial), just as crafting federal common law is properly in a sense legislative. I certainly think that the power to do something that has an impact on cases may infringe on the judicial power, which is why you get cases like Klein and Plaut and Boumediene. But we can agree to disagree here.

I'm happy to call it a night and thank you for the remarkably in-depth and civil discussion.
7.7.2008 1:07am
Originalism Is Useful (mail):

a lower court judges should normally follow Supreme Court jurisprudence even if it may be somewhat away from the true (original?) meaning of the text.



This is simply a different argument than I understood myself and Professor Kerr to be having. Jurisprudence is not the same as precedents, as precedents are specific and concrete and already exist, but certain hypothetical cases may be anticipated by a jurisprudence. As I noted above, Professor Kerr seems to think that Ginsburg was right to think the Supreme Court leads and so not to join Brown's opinion. My contention was that with no specific precedent on point to decide that very case, all the judges in the majority were doing is crafting an opinion that was consistent with the precedents and responsive to popular opinion. The Constitution itself mandates a less popular, perhaps more scary result, but not one foreclosed by the precedents, and so Judge Brown was right to go with the Constitution. Nowhere in my argument is the contention that she is defying Supreme Court precedents, or that she should.
7.7.2008 1:14am
OrinKerr:
Balder is Back/Originalism is Useful writes:
Given that a law professor who clerked for the Supreme Court just engaged with me substantively over the course of this thread, [loki's] opinion of the quality of my argument or the *tone* of silent text is rather insignificant. Oh, snap!
Yeah, but I agree with loki. Your cocky tone in the beginning was ridiculous, and in the end I didn't think you really delivered anything substantive to back it up.

Okay, everyone, all at once now: Oh, snap!
;-)
7.7.2008 1:18am
Odin (mail):
Your confident tone was utterly ridiculous, and in the end you didn't really have any substance to back it up.

It appears our argument comes down to:


1. We disagree on whether the "judicial power" includes crafting federal rules of procedure and evidence; and

2. We disagree as to whether "supreme" and "inferior" include a substantive notion of leading/following that is nowhere in the Constitution.

3. You don't think Judge Brown's read of the precedents is correct because the Justices likely won't agree with her. I think her read of the precedents is correct and forced by the Constitution.


I don't want to get banned here, but it's not like you had a winning hand or that your arguments were substance saturated, either. And, please, don't encourage Loki.
7.7.2008 1:28am
Odin (mail):
If you're going to moderate your attacks after you post them, there's no point! I can take it, man!
7.7.2008 1:30am
Dave N (mail):
I am not about to wade into the debate between OK and OIU (which sounds like the refrain from a hoedown, "OK and OIU Tap your toes and count to two") but my take is that a federal judge should follow what they believe Supreme Court precedent says on a specific subject, followed by circuit precedent. Thus, a judge who strongly believes the law should be different than what the law is would be better to concur in the result and write separately, rather than dissent.

Oh, snap!
7.7.2008 1:39am
OrinKerr:
Originalism is Useful,

Your list of the three things we disagree on is wrong, actually. Issue #2 at least has some connection to what we have been discussing, but I haven't disagreed with you on #1 or #3. That's part of the difficulty I have been having with the thread: you have a tendency to think I have taken a position on something when I haven't.

Finally, is it possible to stick with one screenname? You have used at least three in this thread, and it's kind of confusing.

Obligatory sign off: Oh snap!
7.7.2008 1:49am
Angeleno:
This is, I suppose, off-topic, but certainly raised by the comments: Can anyone enlighten me as to what "oh, snap!" means (though I can guess from the context, I'd like to hear from someone who has more experience with it), and its etymology? I confess I am simply ignorant about this (should I be embarrassed?), and now am curious.
7.7.2008 1:51am
Originalism Is Useful (mail):
"Oh snap!" is code for Orin Kerr is my hero.
7.7.2008 1:57am
vassil petrov (mail):
Can anyone enlighten me as to what "oh, snap!" means

Me too.
7.7.2008 1:59am
Originalism Is Useful (mail):
I just provided a link to the Urban Dictionary, thereby providing the requisite substance to back up my cocky claims.

Oh, snap!
7.7.2008 2:01am
OrinKerr:
I much prefer this flowchart on the criteria for the proper usage of "oh snap".

Oh snap, etc.
7.7.2008 2:04am
vassil petrov (mail):
Jurisprudence is not the same as precedents, as precedents are specific and concrete and already exist, but certain hypothetical cases may be anticipated by a jurisprudence.

True, but the point of having a Supreme Court is not only for it to issie specific commands ("precedents") how this or that disputed point of law is to be decided, but mainly to give lower courts general guidance about principles and metods of constitutional and statutary interpretation.

My contention was that with no specific precedent on point to decide that very case, all the judges in the majority were doing is crafting an opinion that was consistent with the precedents and responsive to popular opinion.

What does popular opinion have to do with deciding cases ia a Court of Law?
7.7.2008 2:06am
Originalism Is Useful (mail):
What does popular opinion have to do with deciding cases i[n] a Court of Law?

Come on! The thread is over! Plus, Orin totally pwned me with the flowchart. Go to sleep!
7.7.2008 2:08am
Angeleno:
I had just found the flowchart and appreciated it too. The "urban dictionary" definitions don't shed much light on what OIU meant by the term, though.

I think I'll have to keep my ears open for nuances before I start using it myself, but I'm eager to learn and am sure it will be especially helpful to many of us ni many contexts, including as a rejoinder to our students or our teachers (if we ourselves are one or the other), and especially to spouses, children, parents, and judicial officers (superior or inferior).

I'm pleased that I learned something from this thread, though - I thoroughly agree with OK's comments above and am not sure why he bothered to take the time, but now at least the time I've spent reading the comments has proved worthwhile.
7.7.2008 2:12am
Angeleno:
Come on! The thread is over! Plus, Orin totally pwned me with the flowchart. Go to sleep!


Have to admit, I also just learned "pwned" about a month ago (again, I suppose I should be embarrassed) . . . . but the vocabulary building is why I keep reading this stuff.
7.7.2008 2:17am
John Bursch (mail):
Mr. Adler,

I represent MichGO and greatly appreciate that you've chosen our case as one to highlight on this blog. As to whether Judge Brown's opinion could herald a revivial of the nondelegation doctrine, I note three things:

(1) Justices Scalia and Thomas have already expressed their strong interest in hearing this particular nondelegation challenge. See South Dakota v. United States Dep’t of the Interior, 519 U.S. 919, 920-23 (1996).

(2) Chief Justice Roberts, when still in private practice, filed a cert. petition that advanced exactly the same position as MichGO. Petition for a Writ of Certiorari filed in Roberts v. United States, Sup. Ct. No. 99-1174 (2000).

(3) 16 amici states recently supported Rhode Island's request that the Supreme Court review this very issue in the Carcieri case that is currently pending before the Court. Although the Court declined review of the nondelegation question in Carcieri because there was a separate question of statutory interpretation that dictated the outcome, our case presents the constitutional question cleanly.

I welcome everyone's thoughts as to whether a fourth vote for cert. is out there . . .

John Bursch
Warner Norcross &Judd LLP
7.7.2008 12:09pm
nick:
Originalists should note that several of the Framers subsequently served in Congress and engaged in a numberf of in-depth debates over the nondelegation doctrine. In particular my paper on the Origins of the Non-Delegation Doctrine relates a lengthy debate about Post Office Roads in which James Madison, Elbridge Gerry, and others argued in favor of a very strict (by our standards) non-delegation doctrine under which. They argued that Congress could not delegate the power to define postal roads to the Executive: rather Congress itself must specify the postal routes. Their opponents argued that Congress need specify only a "principle" (i.e. a position similar to the modern "intelligible principle" doctrine, though I don't recall whether a very open-ended or Brownian "intelligible principle with teeth" approach was intended). In this debate, the Madisonians won, and the Congress passed a statute including a very detailed, indeed very tedious, description of every leg of every post road to be added by the statute.
7.7.2008 3:31pm
qqwalkerqqza (mail) (www):
MESSAGE
7.11.2008 6:38am