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The Connection Between Judge Gorsuch, Justice Scalia’s Dissent in Morrison v. Olson, and Chevron Deference

Nearly three decades after he authored it, Justice Scalia’s dissent in Morrison v. Olson has stood the test of time. Indeed, Judge Kavanaugh’s recent decision in the CFPB case cites the dissent far more than Chief Justice Rehnquist’s majority opinion. But few people may know the connection between the author of that dissent, and the person nominated to replace him.

In 1982, the Democrat-controlled House of Representatives issued two subpoenas to the Administrator of the Environmental Protection Agency concerning the enforcement of the “Superfund.” At the time, Ted Olson served as the Assistant Attorney General for the office of Legal Counsel. (A position held by both Rehnquist, who wrote the majority opinion and Scalia who dissented).

Acting on the advice of the Justice Department, the President ordered the Administrator of EPA to invoke executive privilege to withhold certain of the documents on the ground that they contained “enforcement sensitive information.”  The Administrator obeyed this order and withheld the documents. In response, the House voted to hold the Administrator in contempt, after which the Administrator and the United States together filed a lawsuit against the House. The conflict abated in March 1983, when the administration agreed to give the House Subcommittees limited access to the documents.

After the fallout of this scandal, the Administrator resigned. But that did not conclude the conflict. House Democrats continued an investigation into the Justice Department’s role concerning the EPA documents. Ted Olson testified before a House Subcommittee on March 10, 1983, the day after the Administrator resigned. Two years later, the majority staff “published a lengthy report,” which “suggested that appellee Olson had given false and misleading testimony.” The Chairman of the Judiciary Committee sent a report to the Attorney General, pursuant to 28 U.S.C. 592(c), and requested the “appointment of an independent counsel to investigate the allegations against Olson.” After an internal review, the Attorney General found cause existed to proceed. He requested that the Special Division appoint an independent counsel–they chose Alexia Morrison.

Olson refuse to comply with Morrison’s investigation–arguing that it was unconstitutional–which gave rise to the famous separation of powers battle, Morrison v. Olson. By a vote of 7-1 (Justice Kennedy had recently joined the Court, but did not participate), the Court upheld the constitutionality of the independent prosecutor statute. Justice Rehnquist’s majority opinion explained that independent counsel was not a principal officer, and thus did not require Senate confirmation. Because Morrison was under (at least) some supervision of the Attorney General, the Court held, there was no affront to the separation of powers.

Justice Scalia’s dissent is legendary.

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish — so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

Read the rest of it when you can.

So what’s the connection you ask, between Justice Scalia, and Judge Neil Gorsuch, his appointed successor: the Administrator of the EPA who resigned was Anne Gorsuch Burford. Neil’s mother. Indeed, according to Anne’s biography, her young son understood the idea of the unitary executive, implicitly:

When his mother resigned in March of 1983, an upset young Gorsuch told his mother she “never should have resigned,” his mother wrote in a memoir.

“You didn’t do anything wrong,” Anne Burford quoted her son as telling her. “You only did what the president ordered. Why are you quitting? You raised me not to be a quitter.”

But there is yet another SCOTUS connection at hand. Judge Gorsuch has made waves by stating that he would be willing to reconsider Chevron deference. Of course, Chevron arises from the famous case of Chevron v. NRDC, which was decided on June 25, 1984. That case considered whether the Court would defer to the interpretation of the Environmental Protection Agency.

But what was the case called in the D.C. Circuit? NRDC v. Gorsuch (1982). Yes–Neil’s mom! By the time the case was appealed up to the Supreme Court, Gorsuch had already resigned.

Had Gorsuch still been at the agency, and filed her petition quicker–as Lawrence Hurley pointed out–the case would have been Gorsuch v. NRDC.  We would have the Gorsuch deference. Imagine if Justice Gorsuch overruled the Gorsuch doctrine?

There is yet another more level of nerdiness, courtesy of Professor David Noll. Anne Gorsuch signed the rule at issue in Chevron.

Ready for a final mindblower: Who replaced Anne Gorsuch? William D. Ruckelshaus. Does that name sound familiar? Ruckelshaus was the Deputy Assistant General under President Richard Nixon. Recall that on Saturday, October 20, 1973, Nixon ordered Attorney General Richardson to remove Archibald Cox as Special Prosecutor. Richardson refused, and resigned. Who was next in line? Ruckelshaus. He too resigned. Ultimately the task fell to Solicitor General Bork. Bork indeed fired Cox. But the “Saturday Night Massacre” gave rise to the Independent Prosecutor statute, which gave rise to the investigation of Ted Olson over his role in the Gorsuch debacle, which gave rise to Justice Scalia’s dissent. Everything is connected.

“And now you know the rest of the story.”

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Scalia in 1974 OLC Opinion: “Officer” in Constitution “Invariably Refers to Someone Other than the President”

Relevant to the ongoing emoluments clause debate, Seth Barrett Tillman unearthed a 1974 OLC Opinion signed by none other than Assistant Attorney General Antonin Scalia, where the future Justice opines that “when the word ‘officer’ is used in the Constitution, it invariably refers to someone other than the President.”

Granted, in 2009 OLC opined that the emoluments clause “surely” applies to the President. As I noted in this post, that conclusory had no analysis of the text or history of the Constitution. But this position is not set in stone.

In 2012, Jack Maskell of the Congressional Research Service stated “The President and all federal officials are restricted by the Constitution, at Article I, Section 9, [C]lause 8.”

In an updated memo last month by Mr. Maskell, the relevant position changed to “the Foreign Emoluments Clause “might technically apply to the President.” This is a significant revision by CRS.

In a recent Brookings paper, Norman Eisen and Richard Painter, joined by Larry Tribe, disposed this argument in a footnote as “myopic and strained.”

It also has been suggested by one scholar that the Emoluments Clause did not cover elected, as opposed to appointed, federal office holders. See Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. C. 180 (2013). But this idiosyncratic suggestion is at best supported by ambiguous founding-era historical materials, rests upon a strained and counterintuitive textual analysis, and is flatly inconsistent with the recognized purpose of the Clause and the overwhelming thrust of modern (and historical) Executive Branch practice. See, e.g., Zephyr Teachout, Gifts, Offices, and Corruption, 107 Nw. U. L. Rev. C. 30 (2012); Zephyr Teachout, Constitutional Purpose and the Anti-Corruption Principle, 108 Nw. U. L. Rev. C. 200 (2013). Ultimately, only the most myopic and strained focus on the least plausible version of originalism to the exclusion of every other interpretive tool, coupled with a series of highly doubtful conclusions from the historical record, would support the conclusion that the President is not subject to the strictures of the Emoluments Clause. That approach must be rejected.

This is a close question, without any judicial precedent, Tillman has strong arguments based on text and history. I don’t need to remind anyone that four Justices in Noel Canning were willing to hold that “the recess” of the Senate referred only to the break between sessions, and that all intra-seession recess appointments were void. Rather than being “myopic and strained” originalism, I referred to this analysis as originalism in the open fields.

In any event, CRS’s revision reflects the uncertainty of this issue. I am organizing a symposium on behalf of the South Texas Law Review on the emoluments clause. Stay tuned for more information.

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Predict Justice Scalia’s Replacement with #FantasyJustice from #Fantasy SCOTUS

In 2010, FantasySCOTUS hosted a feature that allowed our fans to predict who would replace Justice Stevens. The results: then-Solicitor General Kagan came in first place, followed by Judges Wood and Garland. No doubt, President Obama checked our site before officially nominating Kagan a few weeks later.

Now that the election is settled, and by all accounts the Senate will move forward on President-elect Trump’s first nomination to the Supreme Court, it is time to launch a new #FantasyJustice tournament by LexPredict. The rules are simple, select the Justice-to-be, and the latest date he or she is likely to be confirmed. You can only vote once, but encourage your friends and colleagues to participate. May the odds ever be in your favor.

fantasy-justices

 

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