- Julian Davis Mortenson, Article II Vests Executive Power, Not the Royal Prerogative, 119 Colum. L. Rev. 1169 (2019), available at MLaw Repository;
- Julian Davis Mortenson, The Executive Power Clause, 167 U. Pa. L. Rev. (forthcoming), available at SSRN.
Maybe you have been wondering, for one reason or another, just what the “executive power” entails. If so, you are in luck, for Professor Julian Davis Mortenson has an answer for you in two magisterial, deeply researched articles that also happen to be compelling reads: Article II Vests Executive Power, Not the Royal Prerogative, and its sequel, The Executive Power Clause. It turns out that “The executive power meant the power to execute. Period.” (Executive Power, P. 5.)
It will come as no news to readers of this website that, about a quarter of a millennium ago, Article II of the Constitution vested the “executive power” of the United States in the president. And ever since that time, Americans have been arguing about just what this “executive power” entails. In truth, it seems this debate is likely to last as long as the Republic does—which suggests that the debate sometimes says as much about the debaters as their subject.
Much of this debate has revolved around the scope of congressional power to protect the independence of administrators from the president via for-cause restrictions on termination. In recent decades, the core argument against such restrictions, familiar from cases such as Morrison and Free Enterprise Fund, is that they may unduly interfere with the president’s ability to exercise the executive power and to carry out the duty to “take care that the laws of the United States be faithfully executed.” The Supreme Court will take yet another run at this unitary-executive problem during the current term in Seila Law LLC v. Consumer Financial Protection Bureau, in which the Court will decide whether Congress infringed too much on presidential authority by imposing a for-cause restriction on removal of the director of the Consumer Financial Protection Bureau. (Spoiler: Things are not looking so good for the director’s independence.)
This debate regarding agency independence implicates the most obvious element of the “executive power,” which is the power to implement (i.e., execute) legislative commands enacted by Congress or embedded in the Constitution. A reader unscarred by legal training might be forgiven for thinking that Article II’s Vesting Clause grants the president only this enforcement power. This reader would be in good company insofar as there have been presidents, justices, and scholars who have shared this understanding. (Article II, P. 11.) On this view, which Professor Mortenson refers to as the “Law Execution” thesis, the president’s executive power is an empty vessel into which somebody else must pour the content by legislative action. (Executive Power, P. 4.)
Many prominent scholars, as well as a president, some justices, and some legislators, have subscribed to a much more expansive understanding of the executive power as embracing a grab-bag of powers and privileges exercised by the British Crown at the time of the Constitution’s drafting. (Article II, P.11.) This view is commonly referred to as the “Vesting Clause” thesis, but Professor Mortenson calls it the “Royal Residuum” thesis on the ground that this name provides a more accurate description. Adoption of the Royal Residuum thesis yields a considerably more potent and king-like president with powers over national security and foreign affairs that Congress cannot constitutionally override. A president convinced she possesses such powers might, for example, conclude that statutory limits on wiretaps cannot restrict efforts to protect national security or that statutory restrictions on torture are unconstitutional. (Article II, P. 2.) So the choice between the Law Execution and Royal Residuum theses is, one might say, a big deal.
The title of the first of his two companion pieces gives its game away: Article II Vests Executive Power, Not the Royal Prerogative. Professor Mortenson explains that his methodology was “motivated by a metaphor: standing in front of James Madison’s bookshelf and pulling texts off the wall to ask, what was the foundation on which the Founders were building?” (Article II, P. 20.) To this end, his research relied “on more than a thousand contemporaneous published texts by hundreds of commentators, with a research methodology that involved reviewing every instance of the word root ‘exec-’ and reading most of the texts cover to cover with the topic of presidential power squarely in mind.” (Article II, P. 19.) Usual suspects, such as Blackstone, Bracton, Locke, Hobbes, and many others, duly appear, as do a legion of more obscure authors. Based on this research, Professor Mortenson concludes that, at the time of the Constitution’s drafting, political and legal discourse consistently used the term “royal prerogative” to refer to “the basket of non-statutory powers held by the British Crown.” (Article II, P. 5.) The phrase “executive power” was consistently used to mean “the narrow but potent authority to carry out projects defined by a prior exercise of the ‘legislative power.’” (Article II, P. 5.)
One compelling example of the evidence for Professor Mortenson’s case comes from Blackstone’s listing of the elements of the “King’s Prerogative.” The “supreme executive power” of enforcing the laws is the first royal authority. (Article II, P. 53 (citing Blackstone, Commentaries, Ch. 3).) The King’s Prerogative also, however, contains about forty other powers, which include such matters as sending and receiving ambassadors, making treaties, erecting lighthouses, vetoing legislation, and many others. Accordingly, “[t]he royal prerogative, as it was understood in the Founding era, thus comprised a long list of separate and highly particularized legal authorities within a well-understood framework of English constitutional law.” (Article II, P. 57.) This list was composed of “‘stuff the King can do,’ so long as Parliament didn’t tell him otherwise.” (Article II, P. 57.) The “executive power” to enforce the law was just one especially important element from this long list.
The second of Professor Mortenson’s articles, The Executive Power, shifts focus from the views contained in Madison’s bookshelf to the views of the drafters and ratifiers of the Constitution. This effort involved “exhaustive review of every instance of the word root ‘exec-’ in three major collections spanning millions of words: the 29-volume Documentary History of the Ratification of the Constitution, the 34-volume Journals of the Continental Congress, and the 26-volume Letters of Delegates of the Continental Congress.” (Executive Power, Pp. 8-9.) Based on this research, Professor Mortenson concludes that the Founders unanimously understood the “executive power” as an “empty vessel” that is “subsequent and subordinate” to legislation. (Executive Power, P. 60.)
He also tells a coherent story of how this understanding of the “executive power” fits the overall constitutional project. By the mid-1780s, the Confederation was near collapse due to its lack of sufficient executive authority, and an urgent need to fix this fatal flaw was a consistent theme of the Constitution’s drafting and ratification. (Executive Power, P. 15.) The answer to this problem turned out to be, of course, the office of the presidency, vesting in the president the “executive power” to enforce the laws. This power, though subordinate to and confined by the legislative authority, was regarded as enormously consequential and dangerous. Proponents of the Constitution therefore strained to reassure people that the president was not a king by some other name, emphasizing that the former had fewer, more constrained powers than the latter. (Executive Power, P. 72.) Professor Mortenson acutely observes that, given the strongly anti-monarchical views of the day, “it would be deeply weird to imagine that the Framers snuck in—much less that the Ratifiers approved—an amorphous mass of royal power that no English monarch has claimed since James II.” (Executive Power, P. 72.) The royal prerogative is a pretty big elephant to stuff into Article II’s executive power mousehole.
Professor Mortenson concludes that “[a]s a historical matter, the competition between the royal residuum and law execution interpretations of the Executive Power Clause isn’t close.” (Executive Power, P. 88.) The latter commands essentially unanimous support in the historical materials; the former rests on “an interpretation whose proponents have yet to identify a single sentence of direct affirmative support among the millions of words contained in our records of framing and ratification.” (Executive Power, P. 88.) Still, I am quite sure that proponents of an expansive understanding of executive power will have quite a bit to say in response to Professor Mortenson’s extraordinary articles—i.e., this is not the sort of debate that ends. It will be very interesting to read these responses.
The preceding paragraph sure reads like a closing paragraph, but I have just a couple more observations to make that I didn’t manage to weave in before now. First, both Article II and The Executive Power Clause are delights to read. The text is wonderfully clear and at times downright breezy; the deep research is always handy in the extremely extensive footnotes. Also, Professor Mortenson’s work has engendered a remarkable amount of popular attention, with discussions appearing in venues such as The Atlantic, Slate, and the Lawfare Podcast. It seems like the scope of executive power is on a lot of people’s minds. If you would like to hear about this research while, say, gardening or on a long drive, you might check out The Lawfare Podcast: Julian Mortenson on “The Executive Power” or Amicus With Dahlia Lithwick: Redefining the Executive Power.
Cite as: Richard Murphy, It’s “Executive Power,” Not “Executivish Power”
, JOTWELL Feb. 21, 2020 (reviewing Julian Davis Mortenson, Article II Vests Executive Power, Not the Royal Prerogative
, 119 Colum. L. Rev. 1169 (2019) and Julian Davis Mortenson, The Executive Power Clause,
167 U. Pa. L. Rev. (forthcoming)), https://adlaw.jotwell.com/ its-executive-po…xecutivish-power/
In 2001, Elena Kagan published Presidential Administration—her now well-known account of presidents’ increasingly aggressive efforts to control agencies’ regulatory decisions. In the nearly two decades since her article appeared in the pages of the Harvard Law Review, presidents have exerted more and more control over agencies. Indeed, in recent years, the entrenchment of presidential administration has been evident simply by reading the nation’s news headlines. In 2015, for example, the New York Times trumpeted that “Obama Announces New Rule Limiting Water Pollution,” and then in 2019, the same paper announced: “Trump Administration Rolls Back Clean Water Protections.” Similar headlines about other presidentially influenced regulatory reversals abound.
In response to the entrenchment of presidential administration, many scholars have written about potential counterweights that might come from various federal actors, such as the federal courts, Congress, or the executive-branch bureaucracy. Largely missing from this scholarly discourse, however, has been a focus on the important role that the states can and have played in both furthering—and counteracting—presidential administration. In her forthcoming article titled Administrative States: Beyond Presidential Administration, Professor Jessica Bulman-Pozen seeks to remedy this scholarly void. Specifically, Professor Bulman-Pozen seeks to bring the states into the modern day account of presidential administration.
Although Professor Bulman-Pozen makes many important contributions in her article, I found three of her assertions to be the most thought provoking. First, citing to the Supreme Court’s recent Census case, Professor Bulman-Pozen asserts that the federal courts have accepted presidential control as not only permissible but also legitimating. Yet, at the same time, she also argues that the courts have expressed an interest in limiting the power enjoyed by the administrative state. According to Professor Bulman-Pozen, if the courts continue to treat presidential control as legitimate while at the same time limiting agencies’ power to adopt rules, then the zone in which presidents can direct agencies’ rulemaking activities will shrink. And, as a result, the president may need to look outside the federal executive branch to advance her agenda. It is here that Professor Bulman-Pozen argues that the states could play a big role by helping presidents to achieve ends that they could not achieve through federal agency action alone.
On this first point, I think it remains to be seen whether Professor Bulman-Pozen is correct in her assertion that the courts are likely to continue to treat presidential administration as legitimate. Here, for example, I cannot help but think of the spate of recent high-profile litigation, such as the transgender troop litigation and deferred action immigration litigation, in which lower federal courts seemed to treat presidential involvement as a tainting, not a legitimizing, factor. Nonetheless, the broader point raised by Professor Bulman-Pozen—that the president may look to the states if the courts limit what presidents can achieve through the federal regulatory state—seems absolutely correct.
Second, Professor Bulman-Pozen argues that “[i]ncorporating states into understandings of presidential administration reveals not only additional resources for presidential policymaking” but “also a set of actors who may oppose the President’s choices.” (p. 39) In other words, the states can collaborate with a president and thus help to solidify a president’s policies, or the states can push back against a president’s policies. Indeed, the very same state might be seen as doing both. For example, “the same states that are providing an afterlife for Obama-era policies are actively rejecting President Trump’s administrative decisions.” (p. 54) On this point, Professor Bulman-Pozen also seems quite clearly correct: The states need to be thought of both as a resource that presidents can use to further their own policy agendas and as a potential tool of opposition to be used by those who seek to challenge presidential policies.
Third, Professor Bulman-Pozen suggests that states’ efforts to support—or to push back against—presidential policies may well bring greater accountability and representativeness into our governmental system. For example, California legislation that adopts net neutrality rules or California legislation limiting cooperation with federal immigration enforcement is more politically responsive to the will of the people than policies adopted by unelected administrative agencies at the federal level. In addition, such legislation helps to further pluralism. Here too, I agree with Professor Bulman-Pozen: When policies that had been simply a matter of executive action at the federal level become a matter of legislation at the state level, greater political representation flows. Nonetheless, in focusing primarily on state legislation in this particular article, I think Professor Bulman-Pozen downplays to some degree how the states may turn to non-legislative modes of supporting or attacking presidential policies, such as litigation, which will not necessarily ensure political accountability.
Thanks to cases like Massachusetts v. EPA, the states can and often do establish standing to challenge federal executive policies, and in an era of nationwide injunctions, a single state can succeed—by appealing to the unelected federal judiciary—in blocking a given presidential policy from being implemented anywhere in the nation, not just simply within that one state. As a result, Professor Bulman-Pozen may be a bit too quick to suggest that adding states into the story of presidential administration helps to ensure greater political accountability and electoral responsiveness. To the extent that a state’s Attorney General is elected (as is often the case), litigation pursued by a given state may help to further accountability and political responsiveness from the perspective of that one state’s voters. Yet it might do so at the expense of the preferences of the voters in the country as a whole. In light of this, it seems to me that whether state involvement does or does not help to ensure greater political accountability (similar to whether it does or does not help to bring about more durable policies) depends largely on the specific tool used by the states. Although legislation is a powerful tool at states’ disposal, it is not the only tool, and it is important to consider whether different tools (e.g., state-led litigation versus state legislation) might carry with them different benefits and costs.
In short, how states choose to both further and oppose presidential policies is an area to watch moving forward. Regardless of how state-level involvement in presidential policymaking plays out in the future, Professor Bulman-Pozen’s article does an excellent job of reminding those who are fixated on presidential power not to forget the states at this moment in time. For all who are interested in issues of presidential power and agency policymaking, her article is well worth a read.
Cite as: Kathryn Watts, Don’t Forget the States
(February 5, 2020) (reviewing Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration
, 98 Tex. L. Rev.
265 (2019)), https://adlaw.jotwell.com/dont-forget-the-states/
Bijal Shah, Executive (Agency) Administration
, 72 Stan. L. Rev.
__ (forthcoming), available at SSRN
Independent agencies are subject to a host of interesting academic debates, including debates that go to the heart of what makes an agency independent and which agencies qualify. Most of those debates focus, however, on the relationship between independent agencies and the President. Some of them explore the relationship between independent agencies and the public, the courts, or Congress. But the horizontal examination of the relationship between independent agencies and executive agencies has gone under-examined.
In a meticulous accounting, Professor Bijal Shah documents one fascinating aspect of that relationship in her forthcoming article, Executive (Agency) Administration. There, she focuses on litigation brought by the Justice Department (DOJ) on behalf of executive agencies against independent agencies. This litigation dynamic is unusual, but as she shows, not unheard of; her painstaking gathering of all such cases since 1900 yielded about 175 cases. What is more, these cases are incredibly illuminating. The vast majority fall into one of three categories. First, when an independent agency adjudicates a matter against an executing agency as a party—typically labor-related—these cases serve as the means for judicial review. Second, when independent agencies assert power that interferes with executive agencies’ own authority, lawsuits serve to protect executive agencies’ purview. And third, there is a smaller category of cases where DOJ has challenged independent agency decisions to approve certain antitrust matters.
Even just identifying this body of litigation and describing how it has evolved over time contributes meaningfully to our understanding of the relationship between executive and independent agencies. This sort of work—using original data to illuminate a previously unexamined aspect of administrative law—is gaining traction in the field, and with good reason.
Beyond these insights, however, Professor Shah goes much further and demonstrates how this litigation actually forms a powerful tool of executive control over independent agencies. While Shah explains that sometimes these decisions are made at the presidential level, and thus can be categorized as an attempt to exert presidential influence over independent agencies along the lines of now-Justice Kagan’s “presidential administration,” more often the decisions are made by career DOJ staff at the behest of executive agencies as their clients. These instances mark a very different kind of balance of power between executive and independent agencies.
And the executive agencies are very successful in this litigation, winning around two-thirds of the cases they bring. This flips traditional administrative challenges on their head; typically defending agencies win about two-thirds of the time. Indeed, as Professor Shah explains, this phenomenon is one example of judicial review as an ex post check on independent agencies’ decision-making, where ex ante political checks are not possible. Some of her data even suggest that the quality of independent agency decision-making may truly be improved by these checks—independent agencies’ least defensible decisions are overturned routinely in this context.
Though there are many other aspects of Professor Shah’s work that are notable, including implications for judicial standards of review of independent agency actions, I found the most salient her observations about implications for aggrandizement of presidential control over independent agencies. As she says, litigation on behalf of executive agencies against independent agencies can easily be harnessed for the political aims of the president. Although some past examples suggest court skepticism in cases where such goals are blatant, the changing nature of the presidency and the Supreme Court may, in her view, suggest more openness to that strategy in the future.
Her evidence is convincing, and in some ways quite troubling. In particular, Justice Gorsuch recently rejected the NLRB’s interpretation of its own organic statute in favor of DOJ’s views on the Federal Arbitration Act, a statute of general applicability where DOJ has no special expertise. And now-Justice Kavanaugh, then a D.C. Circuit judge, wrote a panel decision and a dissent in the en banc decision that later reversed it, taking the position that certain kinds of for-cause removal restrictions are unconstitutional, demonstrating some appetite for additional presidential control over independent agencies. If these trends hold, and if the current or future administration shows a willingness to engage the courts for political ends, we may see this phenomenon gain traction.
Professor Shah’s ability to shed light on an under-appreciated aspect of administrative law is a refreshing addition to the literature that I am certain will be the beginning of much more consideration of the topic in the future. I personally believe that her troublesome predictions about the future of independent agencies’ independence will prove both prescient and problematic for administrative law.
Jeffrey A. Pojanowski, Neoclassical Administrative Law
, 133 Harv. L. Rev.
__ (forthcoming 2019), available at SSRN
“It is hard to sketch a river while sailing midstream,” says Jeff Pojanowski, as he begins an article that does a remarkable job of doing just that. Pojanowski’s forthcoming article offers an illuminating taxonomy of a vast array of administrative law theory and scholarship concerning the question of judicial review of agency action, which he organizes into three overarching frameworks or models. After sketching the river with aplomb, Pojanowski introduces us to a fourth model—“neoclassical administrative law”—and explains what the neoclassical framework would offer that earlier models lack. There, the image that might come to mind is not so much gazing at a river, but staring at a refrigerator. It is hard to decide what to have for dinner while standing in front of the refrigerator. A buffet’s worth of pretty good leftovers is probably sitting right there—but sometimes, to really hit the spot, you just have to roll up your sleeves and make something new anyway.
Pojanowski begins by noting the well-known “cracks” in the “comfortable, overlapping consensus” (P.3) of administrative law, including from academics and from the Court. Conventional administrative law doctrine is “under fire for being both too timid and too intrusive.” (P. 4.) Something new seems needed—but before getting to that new framework, Pojanowski presents a detailed sketch of three extant models.
This part of the article organizes an enormous range of administrative law doctrine and theory into three ideal-type frameworks: “administrative supremacy”, “administrative skepticism”, and “administrative pragmatism.” The administrative supremacists, in Pojanowski’s telling, display “an unapologetic embrace of the administrative state” (P. 7), advocate deference to agency interpretations “across the board” unless “Congress clearly did not want the court to defer” (P. 9), and resist hard-look review as “unwise and illegitimate.” (P. 11.) The administrative skeptics are the polar opposite: they reject Chevron and Auer (P. 15), demand strict adherence to procedural constraints established by positive law (P. 16), and urge the revival of a robust non-delegation doctrine. (P. 17.) Between these two camps sit the administrative pragmatists—the “largest and…least precise category.” (P. 18.) Pragmatists calibrate judicial deference to agency legal interpretation depending on the context (P. 19); they embrace a “mixture of supervision and deference” that attempts to curb agency discretion, but not overmuch (Pp. 20-21); and they endorse the balance struck by the administrative common law of hard-look review. (P. 22.) As Pojanowski usefully summarizes the three approaches, administrative supremacy “emphasizes legislative supremacy vested in agencies via congressional delegation”; administrative skepticism “emphasizes the rule of law, insisting that courts are the guardians of legal interpretation while regarding non-congressional lawmaking as ultra vires” and administrative pragmatism “seeks to integrate both values into a judicial supervised and modulated administrative state.” (P. 23.)
These three frameworks would seem to so exhaust the spectrum of possible responses to the administrative state that there could not be much room left over for a fourth approach. Yet Pojanowski then turns to the task of contending that there is indeed a fourth way—neoclassical administrative law. The neoclassicist, he explains, combines the skeptic’s approach to questions of legal interpretation with the supremacist’s approach to questions of policymaking discretion. The neoclassicist would reject Chevron deference as inconsistent with both the judicial role and the Administrative Procedure Act (APA) and would reject the general presumption that statutory ambiguity is an implicit delegation of interpretive authority to the agency. (Pp. 25-26.) Courts would apply a strong “Step One,” while also recognizing that certain types of statutory provisions (e.g., a requirement for an “adequate margin of safety”) are not amenable to analysis through formal legal tools and instead are delegations to agencies. (Pp. 27-28.) On policy questions, the neoclassicist would thus leave agencies great leeway: instead of vetting agency policy choices via hard-look review, a neoclassicist court would only “police the outer bounds of reasonableness when it comes to agency policymaking” (P. 31) in the style of rational-basis review. But even as judicial review of pure policy would become more accommodating, making policy in the first place would become more difficult: the neoclassicist might require that agencies return to formal rulemaking by overturning Florida East Coast Railway—a shift that Pojanowski acknowledges would “certainly bring a shock to the administrative system.” (P. 30.)
Pojanowski then turns to elaborate the theoretical commitments of the neoclassical vision for administrative law and to explain how that vision brokers a compromise between the “competing principles of legislative supremacy and the rule of law.” (P. 39.) The neoclassicist calls for renewed focus on the APA’s original meaning and of governing organic statutes. (P. 35.) The neoclassical approach embraces formalism and originalism in statutory interpretation, and eschews purposivism, dynamic statutory interpretation, and the legal realism of the post-New Deal Legal Process era. (P. 34.) But perhaps the chief selling point of the neoclassical framework is what it would not do. The neoclassical stance, says Pojanowski, would avoid a full-frontal collision between current administrative law and the constitutional originalism that would “[b]low up the administrative state with Hamburgerian dynamite.” (P. 49.) Instead, he notes, the neoclassicist would accept that the “constitutional nettle” is “too sharp to grasp today” (P. 52), and that the Court “lacks the institutional capital and perhaps even the capacity to turn the aircraft carrier around on a dime.” (P. 50.) In fact, Pojanowski explains, it is “[t]his tendency to avoid large-scale constitutional engagement with the administrative state…[that] puts the ‘neo’ in neoclassicism.” (P. 36.)
Let us return to our refrigerator. As Pojanowski is careful to signal throughout, the neoclassical framework is not a wholly new meal cooked up from wholly new ingredients. It uses many ingredients that were already in the refrigerator. But it then recombines, adds to, and plates these ingredients in a way that the current Court might find very appetizing. As Pojanowski notes, the Court’s “modest constitutional holdings have not tracked its anxious rhetoric about the administrative state.” (P. 33.) Pojanowski may well prove correct that the neoclassical framework, or something close to it, “may become the equilibrium resting point” (P. 33) for a “legal formalist” Supreme Court that “accepts the necessity, or at least the ongoing existence, of the administrative state Congress has constructed.” (P. 53.) There are certainly inklings of the neoclassical approach in Justice Gorsuch’s dissent in Gundy v. United States, as well as in the fractured opinions in Kisor v. Wilkie—both of which were decided after Pojanowski first posted his draft article, and which I hope the final published version will discuss.
In short, like his essay Without Deference, this article displays not only Pojanowski’s deft ability to map administrative law as it is, but also his talent for imagining and explaining administrative law as it might come to be in not too long from now. Even if you do not generally devote much time to poking around in the refrigerator of administrative law theory—or perhaps especially if you do not—Pojanowski’s article is thus well worth a read, as it offers a basis for anticipating what the Court may serve up to us in the coming years.
Rebecca Ingber, Congressional Administration of Foreign Affairs
, 106 Va. L. Rev.
__ (forthcoming, 2019), available at SSRN
In Congressional Administration of Foreign Affairs, Rebecca Ingber directly challenges deep-seated assumptions about presidential power in the field of foreign affairs. Her account should prompt a rethinking of reigning assumptions about presidential power over administration of domestic affairs as well.
Ingber demonstrates that Congress can shape the President’s foreign policy and national security policies without constraining the President directly or dictating the substantive terms of foreign policy, but rather by structuring and reorienting the decision-making processes and relative powers of executive branch actors. She argues that Congressional input on matters of foreign affairs is normatively desirable, but there are legal, constitutional, and political hurdles to Congress substantively mandating foreign policy. Congressional administration avoids these hurdles and, according to Ingber, actually can be more effective than direct confrontation with the President.
Ingber defines Congressional administration as “the management and manipulation of internal executive branch decisionmaking processes for the purpose of advancing a substantive agenda.” (P. 4.) Congress uses many tools to “administer” foreign affairs, including: agency design; procedural requirements; designation of decision-makers within the executive branch and definition of their employment status and relationship to the President; earmarking of appropriations to agencies and offices; and strategic requests for Congressional testimony by particular executive branch officials at particular moments during the policy-making process. Using these tools, Congress can force executive branch officials to make decisions they might wish to avoid, delay disfavored decisions by stoking internal executive branch tensions, or place a thumb on the scale in favor of Congress’ preferred outcomes by advantaging a particular set of actors engaged in intra-executive branch conflict.
Ingber notes that intra-executive branch conflict is key to the success of Congressional administration strategies to influence Presidential foreign policy prerogatives. These strategies depend largely on Congress’ ability to aggrandize the power of executive branch officials who flatly disagree with the President’s policy preferences or who bring a different set of policy orientations and substantive expertise to bear on certain foreign policy problems. So, for instance, Congress thwarted President Obama’s pledge to close Guantanamo Bay by leveraging opposition to the policy among many Department of Defense officials. Similarly, Congress sometimes empowers State Department officials to weigh in on certain foreign policy decisions in order to ensure consideration of perspectives focused on the soft power of diplomacy rather than hard military power.
Ingber provides several examples to illustrate her arguments. She recounts how Congress maintained the funding levels for the Department of State, including specific specialized offices within the Department, in direct opposition to President Trump’s requests to cut their funding. Ingber explains this maneuver as Congress maintaining “fora for particular types of decisionmaking and ensuring that they remain populated with personnel devoted to a particular mandate.” (P. 19.) She argues that this is an effective means of controlling presidential prerogatives because it “creates path dependencies and presumptions that favor continuity of particular policy objectives and hurdles to significant change.” (P. 19.)
She also describes the process controls enacted by Congress to constrain President Obama from closing the military prison at Guantanamo Bay. Congress attached riders to defense appropriations bills containing onerous procedural restrictions on the President’s ability to transfer detainees from facilities abroad. Among the requirements was a mandate that no detainee could be transferred to a foreign country unless the Secretary of Defense certified that the government of the destination country could provide adequate assurances that the individual would not be able to take any action to threaten the United States, its citizens, or its allies in the future. For obvious reasons, the Secretary of Defense was loathe to publicly make such certifications. This procedural requirement effectively halted Guantanamo transfers even before Congress took more pointed action to prohibit funding for transfers or for closure of the prison.
Based on this analysis, Ingber concludes: “The fact that the President usually ‘wins’ in foreign affairs does not mean that the position the President ultimately chooses to take is preordained.” (P. ii.) Diverse components of the executive branch are engaged in questions of national security. Different agencies and actors have different and often conflicting sets of priorities, expertise, and biases. These must coalesce into a single executive branch position. Consequently, the decision-making context, the decision-making process, and the distribution of authority among decision-makers shape the position that the President ultimately takes. And Congress has many tools to control all of these things.
Of course, for any of this to work, one must take seriously the specific statutory delegations of authority Congress makes to designated officials. If executive branch officials with decision-making authority are seen as mere arms and eyes of a unitary executive who can order them to reach the President’s preferred outcomes, Congress’ careful calibration of decision-making processes amounts to little more than tinkering. Ingber recognizes that the President has broad authority over administration generally and particularly over the foreign policy functions of the executive branch. Yet, she insists that officials within the foreign policy bureaucracy maintain some independent decision-making authority. Indeed, Ingber contends that Congress often allocates national security decision-making in ways calculated to remove certain decisions from political control.
This is, perhaps, the most provocative claim in the paper, largely because it is not clear that this is true in the realm of domestic administration. In the realm of domestic affairs, the President has long claimed the prerogative to direct executive officials exercising delegated statutory authority to reach specific policy outcomes, and there is broad scholarly, political, and jurisprudential consensus that the President may do so when the ostensible aim is to ensure that administrative policies maximize welfare based on cost-benefit criteria. Moreover, in the realm of domestic affairs there is an institutional apparatus, centered in the Office of Information and Regulatory Affairs, effectively equipped to ensure that the President’s policy priorities are achieved. Taken together, the legal endorsement of executive regulatory review and the powerful institutional apparatus for effectuating it significantly constrain the ability of agency officials implementing domestic policy to resist the President’s policy demands. Could it be that the President enjoys greater power over administration in the realm of domestic affairs than in the realm of foreign affairs?
There are many reasons to doubt that this should be the case. Presidential primacy is well established in the realm of foreign affairs for a variety of reasons that have no applicability in the domestic sphere. First, the President’s unfettered and real time access to intelligence resources affords an information advantage in the realm of foreign affairs. Not so in the administration of domestic policy. The President is unlikely to have an expertise advantage in the regulation of, say, the environment or U.S. capital markets. Second, in the realm of foreign affairs, the President has the institutional advantage of being able to speak with one voice on the world stage. This particular institutional competence has no relevance to the administration of domestic policy. Third, as a practical matter, the President often has the resources to act unilaterally in defiance of substantive Congressional constraints on foreign policy—for instance, by mobilizing the military or entering into executive agreements. Such power is lacking in domestic administration (or, at least, has yet to be broadly validated by the courts).
Thus, it is curious to contemplate that the President might actually exercise less power over the foreign policy bureaucracy than over the domestic policy bureaucracy. Ingber could go further to explain this seeming paradox in the paper. However, I do not believe that this puzzle ultimately undercuts her argument. Rather, it places the onus on proponents of presidential administration in domestic affairs to explain how it could be that we can tolerate independent bureaucratic decision-making in the realm of foreign policy but not in the realm of domestic policy. Why not Congressional administration for all affairs?
Tara Leigh Grove, Presidential Laws and the Missing Interpretive Theory
, 168 U. Pa. L. Rev.
__ (forthcoming, 2020), available at SSRN
On the first day of Legislation and Regulation, I kick off class by showing the classic Schoolhouse Rock music video I’m Just a Bill. We then spend the first half of the semester exploring how the legislative process actually works today and how that process affects statutory interpretation. At the start of the second half of the course, I show How a Bill Does Not Become a Law—Saturday Night Live’s witty take on the Schoolhouse Rock classic based on President Obama’s deferred-action immigration directives. We then spend the rest of the semester exploring how the regulatory process actually works and how that process affects regulatory and statutory interpretation.
Although we spend some time on what then-Professor Elena Kagan coined “presidential administration,” the regulation half of the course focuses on how federal agencies regulate and how courts review such regulatory activities. In that sense, we might be stuck a bit in Dan Farber and Anne Joseph O’Connell’s “lost world of administrative law.” After all, presidential directives—like President Obama’s executive actions on immigration—play a substantial role in the modern administrative state, and even more so, it seems, in both the Obama and Trump administrations. Yet we know little about the process by which these presidential directives are made, much less how they should be interpreted. Until now. In Presidential Laws and the Missing Interpretive Theory, Tara Leigh Grove sheds important empirical and theoretical light on how presidents make directives and what that means for interpretive theory.
Grove’s bottom line is that, whatever the merits of the textualism-purposivism debate in statutory interpretation, when it comes to interpreting presidential directives, “Article II and the distinct institutional setting of the presidency point toward textualism.” (P. 3.) It is important to note that Grove broadly defines presidential directive as any presidential action that “requires, authorizes, or prohibits some action by executive officials.” (P. 6.) And, for Grove, textualism means:
[J]udges must abide by the public meaning of the text of a directive, understood in context. The relevant context encompasses, at a minimum, the text and structure of the directive at issue, other directives issued by the same administration (and likely those of past administrations), as well as linguistic conventions from legal terms of art, dictionaries, and colloquial speech.
(P. 4.) Part IV of the article advances a powerful case for this textualist approach to interpreting presidential directives, and it will no doubt spark a vibrant debate in an interpretive context lacking any serious scholarly conversation. These are important contributions to the administrative law, legislation, and legal interpretation literatures.
But my favorite part of the article comes earlier—when Grove explains how presidential directives are actually developed. In Part III, Grove develops an Article II-based theory for presidential directives. First, in Part III.A, she argues that Article II’s Opinions Clause gives the President substantial discretion in fashioning the process for making presidential directives—a novel use of a constitutional provision that has largely been left in the literature to debates about unitary executive theory and presidential supervision of the regulatory state. Grove, however, concludes that “the text of the Clause suggests that the information-gathering function may be its primary purpose.” (P. 16.) That function, she argues, fuels the modern process for presidential directives.
In Part III.B, Grove details that modern process—a process that “takes place almost entirely behind closed doors; the details are not publicly available for many years (if at all).” (P. 19.) In addition to drawing on the political science literature, Grove conducted interviews with numerous former executive branch officials. The list is impressive, including (from footnote 8): former Trump White House Counsel Don McGahn, Obama OLC DAAG John Bies, Obama Staff Secretary Raj De, Obama Deputy Counsel Chris Fonzone, Bush 43 Solicitor General Paul Clement, Bush 41 White House Counsel C. Boyden Gray, Bush 41 OLC AAG Michael Luttig, and Bush 41 Associate White House Counsel Lee Otis.
Every word of Part III.B is worth reading—and reading again. This is previously uncharted territory in the legal literature. The overriding theme is that federal agencies play a critical role in the presidential-directives drafting process. Much like agencies’ role in the legislative drafting process, as I have detailed elsewhere, there are two distinct paths for agency involvement in the directives drafting.
First, federal agencies approach the White House to ask the president to adopt a policy via presidential directive that binds other agencies. That process is highly proceduralized at the White House’s Office of Management and Budget (OMB), just as it is in the legislative context when an agency wants a presidential administration to advance the agency’s substantive policy agenda in Congress.
Second, the White House reaches out to federal agencies to solicit their input on proposed presidential directives. Like its counterpart “technical drafting assistance” in the legislative context, this process is much less formal and proceduralized. Yet, in either context, the agency-OMB drafting process is substantial: “Former officials suggested that many directives go through at least three drafts—and three rounds of comments—before leaving OMB.” (P. 21.)
In both contexts, however, Grove finds that “direct presidential involvement is the exception rather than the rule”: “Agency officials debate most directives among themselves—with the oversight of OMB—and the President does not get involved until a final draft is ready for him to sign.” (P. 21.) Again, this is remarkably similar to the role of federal agencies in the legislative process, where agency and congressional staff work out the drafting details, with members of Congress generally not involved until the legislation is ready to be formally introduced, marked up, or even voted on.
Once the agency has finalized its review, Grove explains, the draft presidential directive goes through the “form and legality” review at the Justice Department’s Office of Legal Counsel (OLC). Once such review is finalized, the White House Staff Secretary takes over—to review the directive and ensure all “relevant constituencies” at the White House approve. Only once the Staff Secretary is comfortable with the text of the draft directive does she forward it along for the president’s signature.
In other words, the president typically is not aware of the details of any of the negotiations, prior drafts, or internal debates about the directive. Instead, Grove reports, the president generally only receives: “(1) the text of the directive; (2) OLC’s ‘form and legality’ certification; and (3) a memo (typically prepared by the Staff Secretary or another White House official) summarizing the interagency consultation process and any remaining points of disagreement—with a focus on ‘high-level objections’ from Cabinet members or other top officials.” (P. 22.)
After detailing this process, Grove goes through a number of examples, notes deviations in the process, and explains how the process works for other presidential directives (that are not labeled “executive orders” or “proclamations”). Grove concludes that “officials repeatedly reaffirmed that virtually all directives go through some type of agency review” and that the process can be quite “tedious” and time consuming. (P. 27.)
This short summary does not do justice to the insights Grove uncovers about the process of drafting presidential directives. Unsurprisingly, the process is certainly more complicated than Saturday Night Live made it seem. Grove rightly focuses the normative and theoretical payoff on how this process should affect the interpretation of presidential directives. But the insights she has uncovered have important implications for administrative law and regulatory practice as well. With the increasing use of presidential directives, Grove’s pathbreaking account will certainly not be the last word on the subject.
Cite as: Christopher Walker, I’m Just a Presidential Directive
(September 27, 2019) (reviewing Tara Leigh Grove, Presidential Laws and the Missing Interpretive Theory
, 168 U. Pa. L. Rev.
__ (forthcoming, 2020), available at SSRN), https://adlaw.jotwell.com/im-just-a-presidential-directive/
Nicholas Bagley, The Procedure Fetish
, 118 Mich. L. Rev.
__ (forthcoming, 2019), available at SSRN
Every administrative law professor has been there. Perhaps you are discussing hard-look review, notice-and-comment rulemaking, or procedural challenges to non-legislative rules. Students, perhaps puzzled by the courts’ (mostly the D.C. Circuit’s) indifference to the spare requirements of the Administrative Procedure Act, may wonder where this layer of doctrine comes from or, more importantly, why it is there. At that point you go back to the beginning of the class. Remember concerns about how the “fourth branch of the Government . . . has deranged our three branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking”? Remember the theory about agency behavior that posits regulators’ incentives will steer them toward servicing the industry they are supposed to monitor in the public interest? These additional procedures are here to compensate for those worries about legitimacy, capture, and public participation, thus justifying and improving the workings of the administrative state.
So far, so familiar. But then the plot takes a twist. Professor Nicholas Bagley bursts like Kool-Aid Man through the wall of your classroom. This intruder, however, is telling you to stop drinking the Procedural Kool-Aid that has sustained so many administrative law jurists and scholars. (Not so much “OH YEAH!” as “No.”) In The Procedure Fetish, forthcoming in the Michigan Law Review, Bagley contends that procedural constraints on agency action can sometimes bolster legitimacy and improve governance, but lawyers’ unexamined fealty to the cult of procedure does not hold up to scrutiny. Further, Bagley argues that for progressive lawyers and scholars this faith is misguided and plays into hands of those who seek to undermine an activist state. Although Bagley speaks primarily here to his progressive fellows-in-arms, this sharply argued paper merits the attention of administrative lawyers of every stripe. It changes the way I will teach the subject. (Also, it is a great read; the prose sings and sometimes even struts.)
Invoking a provocative blog post by Mark Tushnet, Bagley argues that progressives should abandon the “defensive crouch administrative law” that manifests itself in the eternal solicitude for ever more procedural protections in doctrine and legislation. (P. 9.) Pressing for such procedures to shore up the administrative state’s legitimacy concerns buys into the narrative, unjustified in Bagley’s view, that its legitimacy is in question at all. This, Bagley argues, is a sucker’s game: we have sought ever more procedure for decades, but complaints about legitimacy have never gone away. It is time to recognize that “a crisis that endures is not a crisis; it is the steady state.” (P. 41.) Failing to do so only plays into the hands of conservative and libertarian critics who benefit from framing the administrative state as a problem to be solved and who will never be satisfied with the half-measures on offer anyway. (P. 60) (Oddly enough, in this respect Bagley’s argument resembles originalists who view calls for judicial restraint and respect for stare decisis as unilateral disarmament against living constitutionalism.)
To make this case, however, Bagley needs to cure his fellow administrativists of procedural neuroses that, in his telling, amount to a kind of irrational faith. There is no need to “redeem” the administrative state through a “separation-of-powers liturgy” that re-presents the original constitution through a form of procedural transubstantiation. (P. 41.) Bagley both proclaims the death of the procedural gods that failed and, with reformist zeal, seeks to strip administrative law’s altars of the scholastic encrustments impeding a true, unadulterated faith in the administrative apparatus. In doing so, he smashes two idols in mainstream doctrine: arguments that administrative procedure is necessary for (1) the legitimacy of the administrative state and (2) its accountability to the public interest.
Even if concerns about legitimacy are valid (a point Bagley vigorously disputes), he contends that arguments that additional procedures will cure the problem are too abstract to be useful and fail in many particular instances. Not only is the administrative state’s legal pedigree unblemished, he contends, it’s a lawyer’s mistake to think that bulking up notice-and-comment rulemaking or allowing pre-enforcement review will put to rest broader, popular concerns about its legitimacy. “Legitimacy arises more generally from the perception that an agency is capable, informed, prompt, responsive, and fair.” (P. 49.)
Adding procedures may sometimes do that, but it can also bog down agencies and make them look more like mere producers of Federal Register tomes, not nimble defenders of the public interest. If anything, invasive judicial review can undercut legitimacy. The searching review of hard look and intricate requirements of notice-and-comment rulemaking make it such that “[a]gencies are … bashed in court and in the press for their purported negligence and carelessness. Sometimes the bashing is warranted; often it is not.” (P. 59.) An agency (often unfairly) cast as a poor student staying after school to redo homework is hardly a figure of esteem and legitimacy in the public eye. To underscore this point, Bagley notes that two of the most respected agencies in the public eye—the Federal Reserve and the Defense Department—are the least procedurally constrained.
Bagley then takes aim at the nostrum that additional procedure is necessary to prevent regulated industries from capturing agencies. If anything, he contends, this argument does not take the lessons of public choice theory seriously enough. Procedure is not always neutral, Bagley contends, but rather can help well-funded, repeat industry players trip up activist agencies that run through the many traps of administrative law and policymaking. Even when rules are not invalidated for one or another procedural flaw, the gold-plating necessary to insulate rules from judicial review diverts scares resources away from enforcement and other new regulatory projects.
In sum, proceduralism “has a complex, contingent, and often ambiguous connection to legitimacy and capture.” Bagley counsels progressive lawyers to “develop a more granular perspective” about the costs and benefits of particular procedures, greet new proposed procedures “with skepticism,” and stop the “endless handwringing over agency legitimacy and accountability,” which abets a “suspicion of the state” that is difficult “to harmonize with a progressive belief in the promise of government to achieve collective goals.” (P. 78.)
All told, we can view this work as administrative-law spin on Gerald Rosenberg or Morton Horwitz, pointing toward the hollow hope of administrative procedure and asserting that the rule of law(yers) in administrative law is not an unqualified human good. Its particular prescriptions overlap with a broader coalition of scholars skeptical of administrative common law. Kathryn Kovacs has argued, from the perspective of superstatute theory, that the administrative common law of procedure is illegitimate. Cass Sunstein and Adrian Vermeule have recently argued for judicial minimalism in this area not, as Bagley does, in the name of progressive governance, but rather based on more general welfarist concerns. Finally, a scholar more sympathetic to originalism and legislative supremacy will question departures from the Administrative Procedure Act’s often sparse requirements of agencies. Having pressed the last point myself, I will happily rely on Bagley’s analysis when critics claim that the sky will fall without administrative common law. (On the other hand, I am more open than Bagley to proposals that would require Congress to approve major administrative rules.)
Those likely to disagree with Bagley’s prescriptions form a similarly motley coalition. Small-government or constitutional originalist critics of the administrative state may find the administrative common law of procedure a second-best solution for hamstringing Leviathan. (It is no surprise that in Christopher v. SmithKline Beecham, conservative and libertarian public interest groups filed amicus briefs defending the D.C. Circuit’s Paralyzed Veterans doctrine, which required agencies to go through notice-and-comment rulemaking to amend an interpretive rule.) In the event she is not convinced by Bagley, Professor Gillian Metzger, a prominent and eloquent defender of administrative common law, might find herself lined up, methodologically at least, with the “anti-administrativists” she chastised in her recent Harvard Law Review Foreword.
All of which is to show that, as I remind my students, doctrinal positions and ideological stances do not always line up administrative law and scholarship. This is part of what makes the subject so fun and fresh. As are articles like Bagley’s, which I encourage all administrative lawyers and scholars to read.
It is a truism that agency organizational charts are at least in part aspirational or idealized. The political appointees at the top lack perfect control over the career employees beneath them in the hierarchy. When all are rowing in the same direction, such agency costs matter little and may go unnoticed. But suppose they are not. What if they barely perceive themselves as in the same boat?
Right now, in many or most federal agencies, it seems that the always present gap between political and career officials is extraordinarily, perhaps unprecedentedly, wide. We see calls for and examples of outright defiance. The historical moment raises the question: Can direct disobedience by agency rank and file ever be justified?
Here, in Civil Servant Disobedience, Jennifer Nou offers an answer.
In two much-read blog posts, Bureaucratic Resistance from Below and Taming the Shallow State, both themselves the subject of a previous jot, Nou laid out a valuable taxonomy and practical guide to steps that both sides can take in these disputes. Civil Servant Disobedience is a different sort of project. First, Nou here focuses solely on the most extreme forms of civil servant “resistance.” This is not about job slowdowns, giving a miss to particular assignments, intentionally failing to understand, prioritizing the wrong tasks, or subtle undermining. This is about direct and overt defiance. Second, she assesses this practice from a more abstract and normative perspective.
The first step, of course, is definitional. For Nou, civil servant disobedience involves “conscientious [i.e., serious, sincere, and based on conviction] and public [i.e. visible] acts of defiance against political appointees” (Pp. 352, 355) by subordinate career staff—“overt, good-faith acts of protest by civil servants acting in their official capacity in violation of executive directives.” (P. 353.) Thus, it is the public employee equivalent of traditional acts of civil disobedience by private citizens, undertaken in the actor’s official capacity.
Nou’s premise, appropriately, is that it is extremely hard to justify such actions. After all, they violate both statutory provisions and settled norms and are at least superficially undemocratic. But regular old civil disobedience also violates laws and norms, and in the right circumstances it is not only understood to be permissible, it is celebrated. Drawing on philosophical literature regarding civil disobedience generally, Nou identifies the conditions under which civil servant disobedience is justified.
Given the constraints of the Jot form, I should just cut to the chase. For Nou, the prerequisites for legitimate civil servant disobedience are:
- A breakdown of the system of “reciprocal hierarchy.” Under many different theoretical understandings of the administrative state, bureaucracies only function properly in conditions of “reciprocal hierarchy.” Yes, there is an organizational pyramid, with the boss at the top exercising control. At the same time, there must also be opportunities for information, expertise, and ideas to flow upward. Political appointees do not have to adopt the views of the civil servants, but they must give those views attention. If the hierarchy is not reciprocal—the upward flow of ideas and expertise is blocked—disobedience can be justified and “understood as a form of bureaucratic process-perfection.” (P. 366.)
- Exhaustion of administrative remedies. Nou does not use this phrase, but it captures what she is asserting. Before turning to disobedience, the civil servant must first have explored all non-futile internal mechanisms of protest and dissent—speaking to colleagues and superiors, perhaps going to the Inspector General, perhaps the Merit Systems Protection Board (MSPB), and so on. Civil servant disobedience is a last resort.
- Observance of professional norms; essentially, protestors should stay in their lane, limiting their disobedience to matters on which they have relevant expertise and complying with the norms of their profession even while violating the norms of their workplace.
- A willingness to accept the legal consequences of one’s actions.
- A clear violation by the powers that be of a relevant value. These values include legality, scientific integrity, or morality. Nou’s focus is on the first of these—the order that is clearly illegal—but she is alert to the possibility that a legal order may be so morally repugnant as to justify disobedience.
(I might offer three very quick comments on this checklist. First, as to the last item, Nou does not discuss the importance (by what metric?) of the value violated or the extent of the violation, only its clarity. That strikes me as too narrow a focus. Second, I wonder whether a European-style proportionality test might not be helpful here; the disobedience should be proportional to its justification. Third, one wonders whether a civil servant ever has not just the option but a dutyof disobedience; that question goes unanswered.)
The article’s final section briefly touches on two further considerations. First, Nou considers the argument that civil servant disobedience is never justified, and never comparable to regular civil disobedience, because the government employee always has the option of exit. She can just quit. (Elliott Richardson leaps to mind, though as a political appointee he is not a directly relevant example.) In a somewhat inconclusive discussion, Nou points out that exit has its own set of harms, to the government and to the individual, so it is not clear that saying “so quit if you don’t like it” in fact is much of a response. Second, she acknowledges that one additional harm from civil servant disobedience, not factored into the earlier discussion, is that it will inevitably produce a presidential backlash and likely do harm to effective administration in general for some time after the immediate instance.
One might wish that the question of civil servant disobedience was moot or purely academic. Alas, its salience seems only to grow. Nou does not offer her schema as definitive or complete. So it seems unlikely that this article will be the last word on the subject. But this is an enormously useful first word in what is likely to be a vital scholarly, and practical, discussion.
Cite as: Michael E Herz, Gandhis of the Deep State, JOTWELL (July 23, 2019) (reviewing Jennifer Nou, Civil Servant Disobedience, 94 Chi.-Kent L. Rev. 349 (2019)), https://adlaw.jotwell.com/gandhis-of-the-deep-state/.
James W. Coleman & Alexandra B. Klass, Energy and Eminent Domain
, 104 Minn. L. Rev.
__ (forthcoming, 2019), available at SSRN
Energy and Eminent Domain, by James Coleman and Alexandra Klass, is a must read for anyone who is interested in administrative law, government regulation, constitutional law, property law, energy law, environmental law, or climate change. I hope that I have not left anyone out, because I think that anyone who has any interest in law or public policy should read this article. Its substance is important and timely, and its narrative style makes it an easy and pleasant read.
The topic of the article is the use of eminent domain by privately-owned companies that construct oil and gas pipelines and electricity transmission lines. I suspect that many legal academics are not even aware of the routine use of eminent domain by private energy companies. I know that the Justices of the Supreme Court are not aware of that longstanding and ubiquitous practice. In its unanimous April 29, 2019 opinion in Thacker v. TVA, the Court held that TVA is immune from tort suits only when it performs a governmental function and not when it “acts like any other company producing and supplying electric power.” The Court referred to use of the eminent domain power as an illustration of a uniquely governmental function that cannot be performed by a private company: “When the TVA exercises the power of eminent domain, taking landowners’ property for public purposes, no one would confuse it for a private company.”
Coleman and Klass begin the article by describing the “Kelo Revolution”—the major changes in state laws governing the exercise of the eminent domain power by government that took place after the Supreme Court issued its 2005 opinion in Kelo v. City of New London. (P. 1.) Many people reacted with anger to what they perceived as judicial tolerance of government overreach by allowing government to take private property for purposes that they considered illegitimate. State legislatures and courts responded by narrowing the circumstances in which government can exercise eminent domain power.
The authors contrast government uses of eminent domain with use of eminent domain by private companies:
These examples make it clear that the public, legislative, and judicial eminent domain reform at the time of the Kelo decision were focused squarely on government-initiated economic development takings and that energy, utility, and transportation takings were not perceived as a problem. To the contrary, such takings were used as illustrative examples of acceptable “public uses” even though the property at issue would be placed in private ownership.
(P. 10.) Coleman and Klass then discuss in detail the ways in which takings by private energy companies have increased over the past decade and the recent backlash that those takings have produced. The authors include references to the many federal and state statutes that authorize virtually any private company that wants to construct an oil or gas pipeline or electric transmission line to use eminent domain to obtain the property rights required for the construction.
The authors explain why there has been a dramatic increase in the need to construct new pipelines and transmission lines in the last decade. In the case of oil and gas pipelines, the increased need is tied to the increased use of fracking. The fracking revolution has massively increased the quantity of cheap oil and gas produced in locations that were not previously served by pipeline capacity that is sufficient to transport the oil and gas to markets. In the case of electricity transmission lines, the increased need is tied to the enormous increase in the quantity of electricity that can be generated at low cost through the use of wind farms that are in locations that are a long distance from the major markets for electricity.
Both the increased availability of cheap gas and the increased availability of cheap wind power have been critical to the successful U.S efforts to mitigate climate change. A decade ago, electric generating plants accounted for 38% of U.S. emissions of carbon dioxide—the most important cause of climate change. Over the last decade the U.S. has reduced its emissions of carbon dioxide by much more than any other nation. The International Energy Agency described the U.S. role well in 2017: “The decline was driven by a surge in shale gas supplies and more attractive renewable power that displaced coal. Emissions in the United States [in 2016] … were at their lowest level since 1992.”
Coleman and Klass then describe the opposition to the use of eminent domain by private companies to construct pipelines and transmission lines that has emerged in reaction to the increase in proposals to construct new pipelines and transmission lines. The opposition comes primarily from landowners and environmental advocacy groups. As the authors describe it:
Notably, the advocacy groups partnering with affected landowners in these eminent domain challenges to oil and gas pipelines have a very different mission than the advocacy groups that represented Suzette Kelo and drove the post-Kelo reforms in the states. The opponents in Kelo were libertarians attempting to limit government power that needs to be limited by defining public use narrowly. For them, eminent domain represents government intrusion into individual rights that needs to be limited by defining public use narrowly. By contrast, the primary advocacy groups opposing fossil fuel energy projects come from the other end of the political spectrum. They advocate broad government intervention in the energy economy to protect the environment by (among other things) limiting the ability to burn fossil fuels. The energy project opponents generally favor government action on behalf of the public interest over private rights. As illustrated below, the environmental advocacy groups have strategically adopted many of the arguments of their libertarian predecessors despite the differences between their philosophies and ultimate objectives.
(Pp. 17-18.) Coleman and Klass attribute similar motives to the parties that oppose the use of eminent domain to construct electric transmission lines: “Despite the renewable energy benefits associated with these new electric transmission lines, states, counties, and landowners often continue to oppose such lines because of their impact on local land values and aesthetics.” (P. 34.) Given the critical role that new gas pipelines and electric transmission lines have played, and will continue to play, in mitigating climate change, it is ironic that the opposition to gas pipelines and transmission lines comes primarily from parties that are trying to protect the environment.
The authors then describe well the powerful arguments that support the of use of eminent domain to take property for public purposes, including for purposes of implementing critical infrastructure projects like pipelines and transmission lines. Notwithstanding those justifications for use of eminent domain for energy transportation projects, they express concern that the opposition to use of eminent domain for energy projects is so vocal and widespread that it “may spur the courts or Congress to adopt further restrictions on eminent domain. Perhaps a challenge to a pipeline could be a vehicle for overturning the Kelo case outright.” (P. 25.)
Coleman and Klass conclude their excellent article by suggesting ways in which proponents of the use of eminent domain for energy transportation projects might be able to blunt the attacks on that use of eminent domain and head off a potentially catastrophic defeat in court or in Congress. They place their proposals in three categories: (1) redefinition of public use in ways that might render the use of eminent domain for energy projects acceptable to more segments of the public; (2) use of the dormant Commerce Clause by states that would benefit from a project as an argument against a state that opposes the project; and, (3) experiments with the use of different methods of compensating landowners or changing the procedures for use of eminent domain for energy projects.
I cannot imagine a better use of time than to read this well-written and important article.
The September 2018 volume of the UCLA Law Review is a must-read page-turner (or its equivalent for the digital age) for followers of JOTWELL’s Administrative Law section. That volume collects the written essays originally delivered as talks at the Law Review’s symposium on The Safeguards of our Constitutional Republic, organized by UCLA Professor Jon Michaels, along with his colleagues Professors Kristin Eichensehr and Blake Emerson. As Michaels writes in his introductory essay for the volume, “The first two years of the Trump presidency have been marked by scandals, standoffs, travesties, and tragedies. Customs have been flouted, compacts broken, laws transgressed, responsibilities ignored, and individuals and communities threatened and debased.” In their contributions for the symposium, participants—distinguished public law scholars and civic institutional leaders from different corners of the nation—collectively “explored whether we are in a time of simple flux or full-blown crisis; whether any such crisis rises to the level of a constitutional—as opposed to just a political or cultural—dislocation; and how we can steer the ship of State back on course.”
While readers would be rewarded for perusing all of the essays, the one I want to focus on here is Mariano-Florentino Cuéllar’s essay, From Doctrine to Safeguards in American Constitutional Democracy, which he presented as the keynote address at the symposium. Justice Cuéllar (on the Supreme Court of California since 2015, and before that a member of the Stanford Law School faculty) soberly cautions “against facile rule-of-law optimism” about “the prominent role of courts in setting constitutional constraints on official power.” (P. 1400.) While Justice Cuéllar rightly does not name President Trump in the essay (in fact, he alludes to the “[d]ilemma” of “a judge seeking to thread the needle at a UCLA symposium when alluding to transgressions of norms by elected officials” (P. 1422)), the animating concern of the essay resonates closely with contemporary challenges in the administrative state and our republic more generally. Whether the legal question centers on arbitrary-and-capricious review, statutory authority, or constitutional permissibility, judicial review of the Trump administration’s actions is a daily occurrence, in ways both familiar and breathtaking.
Justice Cuéllar asks us to consider whether judicial review is enough—not simply to cabin the chief executive and his officials but to sustain “the constitutional order.” It is not, he concludes. To believe that it is reflects “an unrealistic worldview in which courts are assumed capable of shouldering the primary responsibility for protecting the constitutional order despite fraying norms, weak institutions, economic uncertainty, and interference from geopolitical rivals.” His account is important. It provides yet another reason why those of us who teach and write in public law fields like administrative law must focus on institutions beyond courts.
The headers of each of the essay’s five sections provide a high-level set of takeaways for the piece—the elevator pitch for the tightly constructed argument that follows. Constitutional Safeguards are Undertheorized says Part I. We might think of the Steel Seizure case as a primary example of such a safeguard, where the Court held that “the president did not have the power—in the midst of what he considered a national security emergency, but without any apparent statutory authority—to seize private property.” (P. 1404.) But that view ignores other contemporaneous public activities (federal loyalty screenings, state Jim Crow laws) that are constitutionally concerning but were for a long time legally sanctioned. A “more robust understanding of American constitutional democracy” must include attention to geopolitical considerations, nonjudicial institutions, and “the evolving norms and values of people with meaningful influence over the use of public power.” (P. 1407.)
Of course, says Part II, Judicial Institutions Matter to Constitutional Safeguards. We would be foolish to think otherwise. But, Part III continues, Safeguards Depend Even More on Nonadjudicatory Factors. For example, “the existence of some measure of shared public sentiment supporting constitutional democracy—assigning value to its larger project despite the costs of accepting leaders one may disdain or even loathe—seems valuable in no small measure because constitutional democracy’s underlying logic is precarious without such sentiment.” (P. 1415.) That shared public sentiment depends in part on the extent of “economic distress,” among other varied conditions, however. “[G]overnment’s demonstrated capacity to mitigate risks and deliver reasonably effective social outcomes” is thus an important part of “[t]he public’s perception that safeguards matter.” (P. 1420.) Also important are “norms and institutions,” and the symbiotic relationship between them, that bolster the existence of shared public sentiment about key features of constitutional democracy.
Meaningful Constitutional Safeguards Raise Nuanced Institutional Design and Implementation Questions, Part IV elaborates. How, for example, should we think about the value of “[c]ourt decisions and other official pronouncements of law” once we understand that their “importance is contingent and limited by the relevance of other institutions with competing agendas, the crucial role of groups and the public who must accept certain broad norms, and the realities of life in a noisy, uncertain world”? (P. 1421.)
For one thing, we should stop assuming that “American institutions are fundamentally resilient merely because the country has seen much worse.” (Id.) It is easy to see how bit by bit, norms that support these institutions can be chipped away—a point more fully examined in an essay by Josh Chafetz and David Pozen in the same UCLA volume. It is therefore important to acknowledge that, while “actors and institutions” like “universities, courts, individuals with ties to law enforcement” must generally “stand apart from partisan politics,” norms bolstering constitutional democracy are nonetheless “largely in the hands of public officials willing to send costly signals of their concern by speaking out, resigning, or going against perceived interests.” (P. 1422.) Laws governing our “communications infrastructure,” including internet platforms like Facebook and YouTube, are additionally a critical but underappreciated part of our constitutional safeguards.
For another thing, we should acknowledge that “some processes requiring a measure of insulation from the rough-and-tumble of ordinary politics—whether they involve adjudication or rulemaking—may also benefit from engagement with the often-messy world of public discourse and political action.” (P. 1424.) This engagement may involve doctrine (“cautiously, as in modern procedural due process doctrine and perhaps in the incorporation of concerns for institutional stability in statutory interpretation” (Id.)). It may involve public statements by lawyers, policymakers, and judges about important “norms of civility, restraint, comity, and decency underlying the institutions within which they are operating, or to which they are contributing through their work” (where, of course, “ethically appropriate”). (Id.) At the very least, it should involve clarity in judicial opinions to make concrete what legal “justifications imply about society’s painful trade-offs and subtle vulnerabilities.” (Id.)
In the end, Part V concludes, Constitutional Democracy’s Strength Depends on Recognition of Its Fragility. Unlike authoritarian systems, ours is one with “fractured, contradictory ideas about social welfare,” which acknowledges a troubling “gap between aspirations and reality.” (P. 1426.) When the foundations that protect this system are shaken— “safeguards rooted in public democratic sentiment, the opposition’s legitimacy, state capacity, and resilience against economic and security shocks”—it is not simply “wrong policy choices or stark ruptures of doctrinal sensibility” that are at issue: “The silent but no less serious specter is the slow undoing of extraconstitutional factors on which constitutional doctrine—and ultimately, law itself—depends for relevance.” (P. 1427.)
We can be thankful, as Chief Justice Roberts exhorts, for an independent judiciary. But Justice Cuéllar offers serious caution about the potential for overreliance on formal law and doctrine while paying insufficient attention to broader societal and institutional safeguards of our democracy. Our teaching in law schools, and in other educational institutions, should take this caution to heart.