The Volokh Conspiracy

Oh no! Judge Brown wants to roll back the clock to 2000, before Whitman v. American Trucking! Danger!

Way to get the troops fired up. As I'm sure you know, the correct answer is (a), a lonely and singular dissent.

I've said it before, and I've said it again: JRB for SCOTUS.

Forced by the law, Orin. Forced by the law.

No, I mean Article I, section I of the Constitution.

Oh, snap!

Sorry--the reference above should be to Judge Brown.

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?

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."

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.

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?

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.

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.

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!

:)

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.

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.

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.

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.

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.

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".

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.

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.

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!

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.

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!
;-)

If you're going to moderate your attacks after you post them, there's no point! I can take it, man!

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!

"Oh snap!" is code for Orin Kerr is my hero.

I just provided a link to the Urban Dictionary, thereby providing the requisite substance to back up my cocky claims.

Oh, snap!

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?

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.

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

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