Blog

In addition to the end-of-semester rush, a few big projects have been keeping me busy:

• The Constitutionality of DAPA Part I in the Georgetown Law Journal Online
• The Constitutionality of DAPA Part II in the Texas Review of Law & Politics
• State Judicial Sovereignty, to be published in the Illinois Law Review
• Collective Liberty, to be presented at the Yale Law School Freedom of Expression Conference
• Cert-Stage Amicus in Schwalier v. Carter (Appointments Clause case)

Plus I have two more briefs I’m working on that haven’t been filed yet, but will be available soon. Stay tuned.

I have posted to SSRN my new article, “Collective Liberty.” This article brings together several themes I’ve developed on the blog over the years with respect to the move on the left towards a collective notion of free speech and exercise, mirrored by the move on the right towards more robust protection for freedom of speech and exercise. Here is the abstract:

The story of our Constitution is a tale of two liberties: individual freedom and collective freedom. The inherent tension between these the two is well known. Judicial protection of individual liberty inhibits the collective from freely arranging society through the democratic process. In contrast, judicial protection of this collective freedom to structure society may infringe on individual liberty, especially for those out of the mainstream. Like a pendulum, over the last century, the rights of free speech and exercise have swung between the individual and the collective, between right and left. This article traces these arcs from individual liberty to collective liberty, and back.

Historically, progressives tended to favor broad conceptions of individual rights, with respect to protecting unpopular speech and minority religious groups. Conservatives, in contrast, often disfavored such rights to the extent they impeded the preservation of traditional social norms and structuring society. In recent years there has been a reversal, as the right has asserted the mantle of individual liberty against claims of governmental intrusion into time-honored institutions. But for the left, a robust freedom of speech and religion—no longer serving progressive causes of social justice and equality—can now more easily be subordinated to what Justice Breyer referred to as “collective” liberty.

By looking at two controversial cases in this arena—McCutcheon v. FEC and Burwell v. Hobby Lobby—this article chronicles the juxtaposition of positions on the right and left between collective, and individual views of rights, and explains what this means for the development of the First Amendment on the Roberts Court, as freedom from government clashes with freedom by government.

I will be presenting this paper next week at the Floyd Abrams Freedom of Expression Scholars Conference at Yale Law School. The hosts of the conference said my proposal was “provocative.” I suspect it will be.

I welcome any comments or insights you have.

I am pleased to announce that “State Judicial Sovereignty” will be published in the Illinois Law Review. Here is the abstract.

In our “dual sovereignty,” we have a dual judiciary. While the Constitution creates a single Supreme Court, and gives Congress the power to constitute inferior tribunals, predating our federal union were the courts of the states. Through concurrent jurisdiction, these courts, subject to the complete control of the states, were deemed parallel forums to adjudicate federal claims. Yet, in specific areas, Congress designated the federal courts as the exclusive forums of certain federal claims, depriving the state courts of that jurisdiction. In other areas, the Supreme Court has determined that state courts, with or without the consent of the state, are required to entertain certain federal causes of action.

Each of these well-known features of our judicial system — concurrent, mandatory, and exclusive jurisdiction — represents efforts by one sovereign, the federal government, to command and control the jurisdiction of another sovereign, the states. Though the power to mandate, and exclude state court jurisdiction has been construed broadly, certain limits have been placed on this authority based on a respect for the autonomy of each state to manage their courts. I refer to the basis of these constraints on federal power as state judicial sovereignty. State judicial sovereignty refers to the power of states to vest their courts with subject matter jurisdiction to hear, or not to hear, federal causes of action.

This article articulates a framework to explain how the autonomy of the states to control their own courts interacts with Congress’s efforts to use, or disregard the state courts for federal claims. Building on the analysis of concurrent, mandatory, and exclusive jurisdiction, I identify three attributes of state judicial sovereignty that are repeated throughout the Court’s precedents. First, state judge sovereignty refers to the constitutional obligations and state-law duties, of state judges with respect to federal causes of action. Second, state jurisdictional sovereignty, explains the autonomy of the states to vest their state courts with jurisdiction, subject to the strictures of the federal constitution. Third, state judge sovereignty, working under the auspices of state jurisdictional sovereignty, places a limit on the federal government’s power to regulate the state court, based on the anti-commandeering principle.

The bounds of federal authority over the way state courts conduct their business have remained undefined for over 200 years. This article aims to bring some clarity to those boundaries.

In Marbury v. Madison, Chief Justice Marshall concluded that “since [William Marbury’s commission] was signed by the President, and sealed by the secretary of state, [Marbury] was appointed.” Even though it was not delivered, “[t]o withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.” That much is black-letter law. But Marbury recognizes another, equally important proposition concerning the appointment power. At every juncture—even after the confirmation vote—the laws of Congress established the process through which Marbury would become an officer of the United States. The Court recognized that Congress has the power to “establish[] by law” the means of finalizing an appointment.

In a cert-stage amicus brief I authored on behalf of the Military Officers Association of America and the Flag & General Officers’ Network, I argue that Congress can structure this process, and the Federal Circuit erred in holding that such a process violates the separation of powers. The amicus is in support of a cert petition filed by Paul Smith, Matt Hellman, Adam Unikowsky, and the team at Jenner & Block on behalf of Gen. Terryl Schwalier.

As relevant to this case, President Clinton nominated Schwalier for promotion for a 1-star General to a 2-star General. He was confirmed by the Senate. In the meantime, Schwalier, who was in command of the Khobar Towers, took the blame for the bombing there (he was later cleared of any wrongdoing). After the return of the nomination, the President transmitted the nomination to the Secretary of Defense, who calculated and set what is known as a “promotion date” under the Defense Officer Personnel Management Act (“DOPMA). After that date is set, the President has 6 months to review the appointment. Schwalier argues that after the 6 months, if the President does not revoke the appointment, Schwalier’s promotion becomes final. President Clinton did not terminate the promotion until after the 6 month window.

At first glance, I thought, of course this is unconstitutional. Isn’t it the President’s prerogative to decide whether or not to appoint someone absolute? After some study, I realized that Marbury recognizes that Congress has a lot of latitude over the appointment process following nomination, and that under the statute the President’s transmission of the promotion list to the Secretary of Defense manifests his assent to begin the process.

Here is the summary of argument of this brief, which was a lot of fun to write:

Marbury v. Madison provides the rule of decision for this case. 5 U.S. (1 Cranch) 137 (1803). The decision below, Schwalier v. Hagel, 776 F.3d 832 (Fed. Cir. 2015) was “control[led]” by Dysart v. United States, 369 F.3d 1303 (Fed. Cir. 2004). In Dysart, the Federal Circuit considered a provision of the Defense Officer Personnel Management Act (“DOPMA”) that established a process for finalizing the appointment of certain military officers. 10 U.S.C. § 624(a)(2). Finding that this law would violate the separation of powers, the Federal Circuit read DOPMA such that “after confirmation,” Congress has no power over the appointment process. Dysart, 369 F.3d at 1316. This conclusion is contrary to the text and history of the Constitution, as well as Marbury v. Madison. 5 U.S. at 158 (1803). The Court should grant certiorari to reaffirm Congress’s constitutional authority to “establish[] by law” officers of the United States.

First, the Constitution vests Congress with broad authority over the appointments process, “which shall be established by law.” Art. II, § 2, cl. 2. This authority exists both before and after Senate confirmation. Prior to confirmation, the Congress can establish qualifications for officers. For example, the Solicitor General must be “learned in the law.” 28 U.S.C. § 505. Certain military officers must satisfy congressionally-imposed eligibility criteria before receiving a promotion. 10 U.S.C. §§ 611-641.

Congress can also establish the process that finalizes the appointment following confirmation. In Marbury, Chief Justice Marshall affirmed that Congress has the power to chart a “precise course accurately marked out by law,” to complete the appointment. 5 U.S. at 158. Though the President retains the absolute right not to appoint an officer, this congressionally-designed process “is to be strictly pursued.” Id. The Court reaffirmed this principle in Freytag v. Commissioner, finding that Congress can set the “duties, salary, and means of appointment for that office [as] specified by statute.” 501 U.S. 868, 881 (1991) (emphasis added).

Second, contrary to the Federal Circuit’s conclusion in Dysart, DOPMA bolsters the Constitution’s separation of powers. 369 F.3d at 1317. The Framers used the phrase “by law” in ten places in the Constitution to vest Congress with extraordinary authority to legislate over the Executive Branch, the States, individuals, and even its own members. This power includes the ability to design the appointment process to be followed for officers “established by law.” Art. II, § 2, cl. 2. The Federal Circuit’s decision nullifies this congressional power.

Finally, the appointment process in Marbury parallels the appointment process in this case. In Marbury, the final act “established by law” was sealing the commission, following Presidential assent. Under § 624(a)(2) of DOPMA, the final act “established by law” was setting the promotion date, following Presidential assent. Consistent with Marbury, Congress, and not the President, determines how the Executive’s assent is manifested. For § 624(a)(2) of DOPMA, the President’s decision to transmit the list of confirmed names to the Secretary of the Air Force manifests his assent to begin the appointment process. Upon the Secretary’s receipt of the list of confirmed names, Congress charges him with the duty to set the promotion date. This calculation triggers a congressionally-designed six-month window for the officer’s appointment. While the President retains the absolute power to revoke his previous assent at any point during this period, after six months the officer’s appointment “established by law” becomes final.

Consistent with Marbury v. Madison, § 624(a)(2) of DOPMA is a permissible exercise of Congress’s authority under the Appointments Clause. Certiorari should be granted, as this Court’s voice is essential to reaffirm once again Congress’s constitutional role in the appointment process. NLRB v. Noel Canning, 134 S.Ct. 2550, 2578 (2014).

After Noel Canning, I think there is a decent shot the Court gets involved.

DOPMA’s appointment process is a permissible exercise of Congress’s authority under the Appointment Clause. The Federal Circuit erred in its sub silentio invalidation of 10 U.S.C. § 624(a)(2), as it negated Congress’s role in ensuring an orderly and fair appointment process for military officers of the United States. As this Court recognized last term, “the separation of powers can serve to safeguard individual liberty . . . [and] it is the ‘duty of the judicial department’—in a separation-of-powers case as in any other—‘to say what the law is.’” Noel Canning, 134 S.Ct. 2559-60 (quoting Clinton v. City of New York, 524 U.S. 417, 449-450, (1998) (Kennedy, J., concurring); Marbury, 5 U.S. at 177

More likely than not, this petition will fall into the long conference, depending what the government does. Stay tuned.

 

I am pleased to announce that my two articles on the legality of DAPA are now final. First, the Georgetown Law Journal Online has published my article, “The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action.” Second, the Texas Review of Law & Politics has published my article, “The Constitutionality of DAPA Part II: Faithfully Executing The Law.”

A brief note about the origin of these pieces. DAPA was announced on November 20, 2014. After my initial cautious reactions (NY Times, LA Times), I began to realize that the OLC memo justifying the policy had weaknesses from a separation of powers perspective (National Review), but I did not know nearly enough about immigration law to make an informed judgment. Over the next month, I dove deep into the INA, and thanks to the help of a few colleagues who are experts in this area, I began to sketch a theory of how DAPA was inconsistent with previous grants of deferred action. That work culminated in Part I.

I owe a deep and special thanks to the editors of the Georgetown Law Journal Online. Last summer we had discussed publishing a reaction piece on Noel Canning, but by the time I was done with it, it took on a life of its own and became Gridlock and Executive Power. (At this point, it will probably become a book before an article).  But we stayed in touch. When I realized that the timing of this article would be critical, I reached out to the editors of the GLJ Online, and they were enthusiastic to provide a home for this timely piece. They managed to go through the entire publishing process in less than three months.

As I was writing Part I, I realized there was a significant gap with respect to the constitutional issue–there was very little written on the Take Care Clause and DAPA. So, rather than trying to fit in a Take Care clause analysis in Part I, where it didn’t really fit, I decided (on about 2 minutes of deliberation) that I needed to write a second article, focusing solely on the Take Care clause. This article evolved parallel to the litigation in the district court (see here and here). As Texas offered new arguments, and the government produced numerous documents and declarations, I was able to piece together how DACA, and now DAPA, operate. I could not have written the article I did at the outset

I also owe a debt of gratitude to the editors of the Texas Review of Law & Politics. I pitched the idea to the editors on December 26, 2014, with only an outline of what I wanted to write about. Based only on the idea, they accepted it. I labored to write the article in about 6 weeks. They expedited it through the editing and publication process, and published a polished piece that offers a top-to-bottom analysis of DAPA. I still can’t believe it came together the way it did.

(On the downside, I had no time to work on my Obamacare book during the past three months, but duty called).

There is always the risk when publishing an article of being preempted. These articles posed a significant risk. Had the district court dismissed the challenge, and the program gone into effect, the articles wouldn’t have been worth the paper they were printed on. But here, the publishing risk paid off for the journal. Kudos to these enterprising and entrepreneurial law journals.