Author: Gerard Magliocca


Charles Evans Hughes and Chevron Deference

Chevron deference is a hot topic. There is growing criticism from judges and scholars against the view that courts should defer for the most part to agency readingsof statutes they are charged with implementing. I do not have a dog in this fight, but I did come across an interesting nugget recently for people who do care.

Many of you have heard this famous line from Charles Evans Hughes: “We are under a Constitution, but the Constitution is what the judges say it is.” Legal Realism run amok, right? But the context in which then-Governor Hughes made this off-the-cuff remark was in a speech attacking the notion that courts should exercise robust review over the decisions of administrative agencies. The speech concerned a bill in New York
that proposed creating a commission to regulate railroads. Here is the relevant passage from Hughes:

But when you deal with a railroad man who fairly and squarely meets you, you will find that he will agree that these powers are needed, supposing that abuses exist which would call them into action. The other night I was talking to such a gentleman, and when we got through, the practical result of all was this : I said to him : ” What you really want is a chance to go to the courts ? ” And he said: ” Yes, that is all there is about it.” That seemed to be the main point. A chance to go from the commission to the courts.

I have the highest regard for the courts. My whole life has been spent in work conditioned upon respect for the courts. I reckon him one of the worst enemiesof the community who will talk lightly of the dignity of the bench. We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution. I do not want to see any direct assault upon the courts, nor do I want to see any indirect assault upon the courts. And I tell you, ladies and gentlemen, no more insidious assault could be made upon the independence and esteem of the judiciary than to burden it with these questions of administration, questions which lie close to the public impatience, and in regard to which the people are going to insist on having administration by officers directly accountable to them.

Let us keep the courts for the questions they were intended to consider. When questions of property rights are involved, the constitutional right to hold property and not to be deprived of it without due process of law is involved; when, under the guise of regulation or authority to supervise railroad management, there is an assumption of arbitrary power not related to public convenience; when there is a real judicial question let the courts have it and every good citizen will stand aside and hope to see it decided fairly and with even-handed justice. When you deal with matters of this sort you may be sure that there will be a variety of questions, which, whatever the fact may ultimately be proved to be, can by astute lawyers be said to involve such judicial matters, and there will be abundant opportunity for review of everything that should be reviewed.

But to say that all these matters of detail which will be brought before the commission, matters requiring men to give their entire attention to the subject, toget their information in a variety of ways, to have hearings of those interested, and to deal with questions from a practical standpoint, should, at the option of the corporations, be taken into court, is to make a mockery of your regulation. And, on the other hand, if that policy should succeed, it would swamp your courts with administrative burdens and expose them to the fire of public criticism in connection with matters of this description, from which I hope they will be safeguarded.

You must have administration, and you must have administration by administrative officers. You cannot afford to have it otherwise. Under the proper maintenance of your system of government and in view of the wide extension of regulating schemes which the future is destined to see, you cannot afford to have that administration by your courts. With the courts giving a series of decisions in these administrative matters hostile to what the public believes, and free from that direct accounting to which administrative officers are subject, you will soon find a propaganda advocating a short-term judiciary, and you will turn upon our courts the final safeguard of our liberties that hostile and perhaps violent criticism from which they should be shielded and will be shielded if left with the jurisdictions which it was intended they should exercise.

Now obviously this passage does not address all aspects of the Chevron debate. Still, I think it gets at important parts of that conversation, such as public accountability and the politics/law distinction.


Severability Analysis

The Supreme Court’s holding today that a portion of PAPSA (The Professional and Amateur Sports Protection Act) was unconstitutional under the Court’s anti-commandeering provisions was not a surprise. But the Court’s conclusion that the entire statute is invalid because the unconstitutional portion cannot be severed from the remainder was unexpected (to me anyway) because I think that conclusion is mistaken. I will concede that PAPSA was a deeply flawed statute as a matter of law, as I fail to see why sports gambling is OK so long as it only happens in Nevada. But still.

I think Justice Thomas was correct in saying (in his concurring opinion) that the Court should rethink the way in which sever ability is approached when Congress has not addressed the matter. We would be better off with a default rule stating that unconstitutional parts of a statute ARE severable unless Congress says the opposite, which would then provide a clear backdrop for legislation. The opposite default rule would still be better than the current ad-hoc approach.


The Second Amendment and the Parkland Shooting

I gave my Constitutional Law Exam yesterday. Here was one of the questions:

In March 2018, Florida enacted a law that (among other things) raised the minimum age for purchasing a firearm from 18 to 21. The National Rifle Association (NRA) filed a federal lawsuit in response alleging that prohibiting people between 18 and 21 from buying any gun violates the Second Amendment right recognized in Hellerand extended to the states by McDonald. The complaint also alleges that the age restriction as applied to women violates the Equal Protection Clause “[b]ecause females between the ages of 18 and 21 pose a relatively slight risk of perpetrating a school shooting such as the one that occurred at Marjory Stoneman Douglas High School, or, for that matter, a violent crime of any kind.” Please assess the likelihood of success of these claims.

The equal protection claim is rather weak. Not long after the NRA filed this suit, a woman did perpetrate a mass shooting at You Tube headquarters. The fact that men are far more likely to engage in gun violence does not, to my mind, mean that the state lacks the power to restrict firearms for similarly situated women.

The Heller claim, though, strikes me as strong. A law barring everyone under 21 from owning any type of gun is hard to square with the Second Amendment right recognized by the Supreme Court. With the exception of alcohol sales, the age of majority in the United States is 18. The Twenty-Sixth Amendment recognizes this as the relevant age for assessing the right to vote. In part, that is because the military draft applies at 18. And there are other cases, such as when capital punishment can be imposed, that recognize 18 as the baseline.

Perhaps there is some history or tradition of restricting gun sales to people under the age of 21. If so, then that could be used to uphold the Florida statute given that Heller emphasized that traditional restrictions on gun ownership were still valid. Of course, you might say that such a history just reflects the fact that the age of majority used to be 21 and thus is not terribly relevant to modern conditions.

Anyway, I’ll be curious to see what arguments Florida puts forward as the litigation moves forward.



The Supermajority Cure

I’m writing away on my ERA article and have settled on a new idea. Suppose that more than two-thirds of each House of Congress voted to waive the ERA’s ratification deadline and disregard the rescissions of the states that attempted to withdraw their yes votes back in the 1970s in reaching a count of 38 states in favor. Would that supermajority vote allay the legitimacy concerns that would naturally arise if a bare majority of each house did the same?

I’m not sure, but I pose this as an alternative that Congress could pursue in lieu of counting the rescinding states as no votes. Partly I’m influenced by the observation that the congressional votes to reject rescissions during Reconstruction were done by a greater than two-thirds vote (I think–I need to double check). Thus, one way of understanding state rescissions is that they are presumptively valid but can be overridden by a supermajority of each House of Congress. The other more bass thought is that obtaining a supermajority is hard, so doing so is a strong indication that a proposed amendment really commands the necessary support.


Fixing Law Reviews

Barry Friedman has an excellent new paper out about improving the selection and editing process for law review articles. I agree with many of the paper’s suggestions, but I was shocked by one fact that Friedman discusses at some length. Many legal scholars submit incomplete papers to law reviews, which get accepted based on their promise, the reputation of the author, or the reputation of their school.

“You’ve got to be kidding,” I said to nobody in particular. Serious people do this? Shame on them. While articles get edited after acceptance (either through the author’s self-reflection, student comments, or both) and citation errors/typos get corrected, my thought is that what I submit should be the final paper. If not, then I wait until the next window for submissions. Outsourcing scholarship to students, whether though research assistants, whom I rarely use, or law review editors is deeply wrong.

I wonder whether more informal peer review would cure this problem. I’ve done a few such reviews for article committees, and if I ever saw something incomplete like that (so far, I have not) I would tell the student editors to throw the thing in the trash.


Mass Resignation as a Political Constraint

There are many formal and informal limits on government power. One that probably does not receive enough attention is the prospect that certain actions with lead to a mass resignation of officials such that the government official either (a) gets crushed politically or (b) cannot effectively function.

Let’s take some recent examples. First, after the allegations of sexual harassment came out against Judge Kozinski, his law clerks quit. Then he apparently couldn’t get replacements. Perhaps he would have retired from the bench in any event, but perhaps he simply concluded that he could not function without clerks.

Second, why doesn’t the President just fire Rod Rosenstein if he thinks that the DOJ is rigged? One thought is that the political blowback from that would just be too great. Another possibility, though, is that others in the DOJ ranging from the Attorney General to the Solicitor General may have made it know that they will also resign. At some point, a “Saturday Night Massacre” scenario leaves only civil servants to manage some Cabinet agency, which presents a President with a serious problem beyond the optics. Something like this was threatened by DOJ officials (included James Comey) back during the Bush Administration.

Actually, the most striking example of a mass resignation is not well known. When President John Tyler vetoed a bill that would have created the Third Bank of the United States, his entire Cabinet (except the Secretary of State) resigned in protest. (Imagine something like that happening today.) In this case, though, the threat of resigning or the actual resignations did not work–Tyler’s veto was sustained and the Third Bank was never created.

One wonders how many other examples there are that are just shrouded in secrecy.


Trust the Process

Sports fans know that this is a slogan of the Philadelphia 76ers, as they rebuilt from last place to playoff contender. This argument also could have been the slogan of the Solicitor General in the travel ban case. He repeatedly stressed that the President’s Executive Order was the product of “Cabinet-level” input (in other words, from some Cabinet officials and their departments). The implication was that there could not have been discriminatory intent no matter what the President may have said or may think, because the same view could not have been held by all of the “Cabinet-level” people who were involved. Another consequence of this argument is that many “experts” were involved, which provides a reason for the Court to defer to their views.

I find this fascinating because I’ve long wondered about how the Cabinet gets used in constitutional law. The Cabinet is one of the many unwritten British concepts that America absorbed, though by implication the 25th Amendment gives the Cabinet some recognition. Now there are two ways of understanding the Cabinet. One is the classic British version (which does not exist anymore) whereby there was collective decision making by the parliamentary leaders of the majority party in the House of Commons. Some US presidents have gone with a model like on some occasions. The more prevalent model, though, is exemplified by Lincoln’s view during the Civil War when he polled the Cabinet, was the lone vote in favor of his proposal, and allegedly said “the ayes have it.”

Which model describes the current Administration or the process that led to the Executive Order? Is this an issue where the Court can look behind the forms to examine the substance? Perhaps that’s the real point, rather than whether the Court should defer to the substantive judgment of an Administration.


Justice Scalia’s Dissent in Morrison

The Senate is considering legislation that would make it more difficult for the President to fire Robert Mueller. This bill is unlikely to become law, but one noteworthy aspect of the debate involves the Supreme Court’s decision in Morrison v. Olson, which upheld the validity of the Independent Counsel statute that was in force from the late 1970s until the late 1990s. (Mueller’s position does not rest on a freestanding statute.)

Some Republican Senators have come out against the legislation by arguing, in part, that the bill is flawed under the analysis of Justice Scalia’s dissent in Morrison. They contend that Justice Scalia was correct and that the Court wrong. For taking this view, they have been criticized by some Democrats and legal scholars.

I think that this criticism is misplaced. First, a member of Congress can when voting on proposed legislation take a view of the Constitution that is different from the Supreme Court’s view. (So can a President in using his veto power, as Andrew Jackson did in vetoing the Second Bank of the United States as unconstitutional notwithstanding M’Culloch.) Second, Justice Scalia’s Morrison dissent advanced several policy arguments against insulating independent counsels from presidential control through legislation. I’m not sure if every Senator citing the Morrison dissent is doing so on constitutional grounds or on the more general idea that Justice Scalia was right in a broader “spirit of the Constitution” sense. Third, Morrison is a underwhelming opinion, largely because it was written by Chief Justice Rehnquist. (As one conservative former Supreme Court clerk told me years ago, the only problem with Seminole Tribe is that Rehnquist wrote the opinion.)

At present, a fear of getting routed in the midterm election is providing Mueller with adequate protection from being fired.



The Date of Corfield v. Coryell

Here’s an interesting tidbit that came up recently in conversation. The year given in the cite that everyone uses for Corfield v. Coryell is 1823. If you read the report on the case, though, you learn that the opinion came out in 1825. This must be true because Justice Washington discussed Gibbons v. Ogden, which came out in 1824. Why, then, does the cite say 1823?

I’m not 100% sure, but I think that the case was held over because Gibbons was pending in the Supreme Court. Corfield raised the question of whether the Commerce Clause vested exclusively in Congress, and thus could not be resolved until after Gibbons. What the precise citation convention was in a circuit court then that resulted in the 1823 date, though, is not yet clear.


“Pay No Attention To That Man Behind the Curtain”

This is the basic question that the Court will confront when the “travel ban” case is heard later this week. If the Justices focus on only the formal aspects of the case, then the President’s executive order could well be upheld. If they think that presidential tweets or campaign statements are relevant proof of discriminatory intent, then invalidation is more likely. (The Executive Order could be invalidated even if the tweets are ignored, but that’s a harder claim.)

Just a sidenote. The famous line from The Wizard if Oz is not in the book written by L. Frank Baum. In the book there’s a screen (not a curtain) that just gets knocked over to expose the Wizard. (He doesn’t try to hide again.)