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During a recent trip to DC, I accepted a longstanding invitation to visit the Congressional Research Service’s American Law Division at the Library of Congress. I saw a number of cool Supreme Court documents, which I reproduce below.

First, here is a limerick written by Justice Rehnquist in 1975:

There was a young girl from Cape Cod.

Who thought little babies came from God.

But if not the Almighty

Who lifted her Nighty

It was Roger the Dodger by God!

Second, here is a memo that Justice Blackmun wrote to the conference concerning Roe v. Wade. Specifically, he addressed whether the line should be addressed at viability, or at the first trimester. As history would reveal, the Court in Casey would drop Roe, and adopt viability as the relevant line.

Third, here is a memorandum from Justice O’Connor to Justice Blackmun on 4/17/1990, the day the Court decided Employment Division v. Smith. She wrote:

Harry:

The Court took the wrong turn today in the Free Exercise case in my view. It pains me. S.

Someone scribbled in, “88-12-13 Peyote Case.”

Fourth, here is a sketch of the Court from 1986 or 1987 when Justice Scalia was the junior justice. Were the chairs ever green?

Fifth, Adam Liptak described the following memo this way:

In 1973, while the court heard arguments during the National League Championship Series, Justice Potter Stewart passed a note to Justice Harry A. Blackmun that exhibited a nice sense of proportion.

I will post many other fascinating documents I found in the coming days.

On February 26, 2018, Texas and nineteen other states filed suit against the Affordable Care Act’s individual mandate. The states alleged that because the recent tax reform legislation zeroed out the ACA’s penalty, Chief Justice Roberts’s saving construction no longer holds. As a result, the individual mandate—which was not repealed—must be declared unconstitutional. And, because the mandate cannot be severed from the remainder of the statute, the entire ACA must fall. Alternatively, the individual mandate should be invalidated along with the guaranteed-issue and community-rating provisions, which prevent insurers from considering an applicant’s health conditions when pricing a policy.

Most analyses of this suit have begun at the final step: severability. That is, because the Supreme Court will not be willing to strike down the entire ACA, the case has no merit. This approach puts the cart before the horse. Courts only reach the question of severability after determining that a provision of the statute is unconstitutional. And determining why the mandate is unconstitutional will inform the application of the severability analysis. This series of posts will start at the very beginning. Part I will explain how Affordable Care Act itself carefully distinguishes between the individual mandate, and the penalty that enforces that mandate. Even if the latter is repealed, the ACA still relies the existence of the former. Part II will revisit Chief Justice Roberts’s saving construction, in light of the recent tax reform legislation. Part III will turn to whether the mandate can be severed from the ACA, or alternatively, from the ACA’s guaranteed issue and community rating provisions.

 The Affordable Care Act Distinguishes Between The Mandate and the Penalty

26 U.S.C. § 5000A, which Congress labelled the “Requirement to maintain minimum essential coverage,” has seven sections:

1. 5000A(a) creates the individual mandate: “An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.”
2. 5000A(b) creates the shared responsibility payment: “if a taxpayer who is an applicable individual . . . fails to meet the requirement of subsection (a) for 1 or more months, then, except as provided in subsection (e), there is hereby imposed on the taxpayer a penalty.”
3. 5000A(c) provides a formula to calculate the “amount of [the] penalty” based on a taxpayer’s income.
4. 5000A(d) exempts three classes of people from the individual mandate; that is, they are not “applicable individual[s]” for purposes of § 5000A(a). First, the ACA exempts those with conscious-based religious objections, or those who are members of health care sharing ministries. Second, the ACA exempts aliens that are not lawfully present. Third, the ACA exempts those who are incarcerated. By definition, a person not subject to the individual mandate (§ 5000A(a)) will not be assessed a penalty. Thus, those exempted from the mandate are also exempted from the penalty.
5. 5000A(e) exempts five categories of people from the penalty. That is, “no penalty should be imposed under subsection (a) with respect to” (1) individuals who cannot afford coverage, (2) taxpayers with income below the filing threshold, (3) members of Indian tribes, (4) people with short gaps in coverage, and (5) those who have “suffered a hardship” as defined by the Secretary. These individuals are still subject to mandate, but are exempt from the penalty.
6. 5000A(f) defines what constitutes “minimum essential coverage,” that is, the minimum level of insurance needed to avoid triggering a violation of the individual mandate.
7. 5000A(g) spells out the “administration and procedure” of how the penalty is to be collected.

In 42 U.S.C. § 18091 Congress made a number of findings about the “Requirement to maintain minimum essential coverage.” § 18091(1) provides the “constitutional” findings: “The individual responsibility requirement provided for in this section (in this section referred to as the “requirement”) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).” In Unprecedented (pp. 49-50). I discuss the importance of these findings, and how members of the American Constitution Society were instrumental to their addition.

In § 18091(2), Congress made findings concerning the individual mandate’s “effects on the national economy and interstate commerce.” Critically, as I noted in Unprecedented five years ago, “none of these official findings alluded to the tax power of Congress.” (p. 50). Indeed, the findings make no mention of the “penalty,” let alone a tax. Rather, the statute refers in several places to “other provisions of this Act.” For example, § 18091(2)(I) provides:

if there were no requirement, many individuals would wait to purchase health insurance until they needed care. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums. The requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.

This lack of specificity, though, is important. Based on these findings, Congress determined that the individual mandate, by itself, plays a role in minimizing adverse selection and broadening the risk pools. The mandate, in conjunction with the penalty, is no doubt more effective. But the mandate, minus the penalty, still has some effectiveness. What is still true, to this day, is that Congress found that the mandate was “essential to creating effective health insurance markets.” Don’t take my word for it. Solicitor General Verrilli expressly relied on § 18091(2)(I) in the government’s severability brief in NFIB v. Sebelius:

Congress’s findings establish that the guaranteed-issue and community-rating provisions are inseverable from the minimum coverage provision. Congress specifically found that in a market with guaranteed issue and community rating, but without a minimum coverage provision, “many individuals would wait to purchase health insurance until they needed care.” 42 U.S.C.A. 18091(a)(2)(I). . . . Congress therefore expressly found that the minimum coverage provision is “essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.” . . . .  It is evident that Congress would not have intended the guaranteed-issue and community-rating reforms to stand if the minimum coverage provision that it twice described as “essential” to their success, 42 U.S.C.A. 18091(a)(2)(I) and (J), were held unconstitutional. (pp. 45-47)

If Congress had stated in its findings that the “requirement and the penalty are essential to creating effective health insurance markets,” my argument here would be very different. But it did not make such a finding. (The “other provisions of this Act” language doesn’t cut it for me; but it will be cited by the inevitable intervenors supporting the mandate.) Rather, the finding stated only that “The requirement is essential to creating effective health insurance markets.” And this is the finding that will inform the severability analysis.

What the Tax Reform Legislation Did, and Did Not Do

Following the enactment of the tax reform legislation in December 2017, many Republicans boasted that they had repealed the individual mandate. But this claim is not accurate. Section 11081 of the bill, titled “elimination of shared responsibility payment for individuals failing to maintain minimum essential coverage,” merely modified § 5000A(c): starting in 2018, the penalty will be $0. It did not modify any other provision of § 5000A. Nor did it repeal any of Congress’s statutory findings about the mandate. Critically, Congress’s findings that the mandate was “essential” to the operation of the mandate remains, intact.

To conclude that the mandate is no longer “essential” to the mandate, a court would have to find that the 2017 tax bill repealed § 18091(2)(I) through implication. Here, the presumption against implied repeal is important. Scalia and Garner discussed this canon in Reading Law:

The Supreme Court of the United States long ago announced that an implied repeal may occur in either of two circumstances: “(1) Where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act.” Though rare, implied repeals of each type are hardly unknown.

First, there is no “conflict,” let alone an “irreconcilable conflict” between the ACA and the 2017 tax bill. The mandate can continue to operate in the absence of a penalty. (For reasons I’ll discuss in the next section, the mandate, standing by itself, can still achieve its intended goal of reducing adverse selection, albeit by a smaller amount.) Second, the 2017 tax bill provision is in no sense a substitute for § 5000A; it only mentions one discrete subpart. These congressional findings remain in force.

What Remains of the Individual Mandate

Commentators have suggested that after the tax reform bill, the mandate exists in name only. That is, a mandate without a penalty to back it up, is not a mandate at all. This argument ignores the role that the individual mandate still plays in the Affordable Care Act.

First, the Congressional Budget Office concluded that a penalty-less mandate would still influence some people to purchase health insurance. Timothy Jost observed of this report, “the repeal of the mandate would reduce federal expenditures over ten years by $338 billion, but opined that repeal of the penalty in the tax bill would reduce expenditures by only $318 billion.” In other words, he wrote, “as long as the requirement remained in the law, some individuals would continue to purchase individual coverage because it was legally required, even if the penalty was repealed.”

You may ask yourself, why would anyone comply with a mandate that is not backed by a penalty? In December 2008, CBO explained how social dynamics, beyond monetary fines, support compliance with the law:

Compliance, then, is probably affected by an individual’s personal values and by social norms. Many individuals and employers would comply with a mandate, even in the absence of penalties, because they believe in abiding by the nation’s laws. However, such compliance may also be moderated by perceptions of fairness; individuals may comply more readily if they believe that a mandate is fair and is consistently enforced. If enforcement efforts appear to be unevenly applied, compliance may diminish. Social psychologists find that compliance could be affected not only by personal values but also by individuals’ perceptions of how others will act. Such studies find that many people want to take the popular—as well as the moral—course of action. (pp. 53-54)

Some people comply with the law because it is the right thing to do, not because they seek to avoid punishment. No matter how small this class is, such virtuous individuals do exist. And these are the individuals who are still affected by a penalty-less mandate. To bolster standing, I expect individual tax payers will intervene in the litigation. If they do, their affidavits should make clear that they seek to comply with the mandate based on “personal values and by social norms,” apart from any monetary penalties. Specifically, that the repeal of the penalty will not change their decision to comply with the mandate. The ideal intervenors would be those who can claim an exemption from the penalty under  § 5000A(e): (1) individuals who cannot afford coverage, (2) taxpayers with income below the filing threshold, (3) members of Indian tribes, (4) people with short gaps in coverage, and (5) those who have “suffered a hardship” as defined by the Secretary. Such individuals were never subject to the penalty, but were always subject to the mandate. For this category, the tax reform bill had no impact on their decision whether to comply with the mandate, or not. Even if they were insured before, or sought an exemption, now they can explain what role the mandate still plays on their decision in 2018. These new claims will bolster the individual claims to standing, and also bolster the state’s claim of standing.

Second, beyond the requirement of social norms, the law still imposes obligations on those who do not maintain minimum essential coverage. Line 61 of 2017 IRS Form 1040 asks an individual if he had minimum essential coverage for all twelve months of the year. If the taxpayer checks “yes,” there is no need to calculate the penalty. If the box is not checked, the taxpayer must complete Form 8965. This form asks whether the taxpayer is subject to an exemption. As explained by the instructions, Form 8965 does not appear to distinguish between exemptions from the mandate under § 5000A(d) and exemptions from the penalty under § 5000A(e). Going forward, at least some people may still apply for exemptions from the mandate and from the penalty.

It is possible that Line 61 will be abolished altogether. There is no indication yet whether these forms will be amended in 2018. Though, there is reason to suspect that the IRS may still request information about individual coverage, even if there is no penalty associated with it: the individual tax returns can be used to verify whether information provided by employers is accurate (through forms 1095-A and 1095-B). That is, if an employer reports that it provided insurance to an employee, pursuant to 26 U.S.C. § 6055, but the employee reports that he is uninsured, there is a conflict. If in fact the employer submitted false information, the individual return will make it easier for the government to impose the employer mandate penalty.

***

Even though the penalty is set to $0, the individual mandate still plays an important social function to reduce adverse selection, and plays a role in the operation of employer-based coverage. Far from toothless, the mandate still has some bite.

The next part in this series will focus on how the recent tax reform legislation affects Chief Justice Roberts’s saving construction in NFIB v. Sebelius.

Last year, the St. Thomas Journal of Law & Public Policy hosted a symposium on the 5th Anniversary of NFIB v. Sebelius. My address was titled “The Saving Construction At Five Years.” In short, it has not held up well. I’ve actually come to grips with the fact that the Chief Justice read the penalty as a penalty for purposes of the Anti-Injunction Act, but a tax for purpose of the taxing power. I find that analysis implausible, but I can accept it. I still cannot accept the Chief’s flippant treatment of whether that tax was a direct tax.

Here is an excerpt:

The difficulty with the Chief’s opinion—and I’m going to focus on something that most people don’t care about but actually matters quite a bit to me—is what does it mean to be a tax? Congress has fairly specific authority over taxing. This is a question going back to the 1790’s. First, this is not an income tax. Second, you can have certain types of excise taxes like on whiskey.74 This is not really a tax on buying something. You can have something called a direct tax, but those have to be apportioned by population.75

The Constitution has fairly strict rules over how taxes are imposed on people. So, what kind of tax is this? Is it an excise tax? Is it an income tax? Is it a direct tax? This is a major constitutional question—a question the Chief Justice ignored. So, in his zealous attempt to avoid the constitutional question concerning the commerce clause, he basically made something up. My friend Ilya Shapiro calls this the unicorn tax. 76 It’s a tax never before seen, that’ll never before seen again.

So, my antagonism to Chief Justice Roberts’ saving construction is not even about the Anti-Injunction Act—I’ve gotten over that part. I still can’t get over the taxing power of the Constitution. You made it up, Chief Justice John Roberts, admit it. The Solicitor General put like three or four sentences in his brief on this point and basically said, yeah, it’s a hard point.77

The entire opinion is a sham. You don’t avoid one constitutional problem by creating another. That’s not how it works. You don’t read a statute in the least plausible way such that it raises a very serious constitutional issue that’s plagued us since the Hylton case in 1796. 78 This was an old question that Chief Justice Roberts, with a lick and prayer, dismissed.

That’s not constitutional law. And I think the way to understand the Chief’s opinion, we really have to go a couple years later to the King v. Burwell decision which I talk about in my second book, Unraveled. 79 The Chief Justice in King v. Burwell upheld the reading of the statute that the government wanted—I won’t get into the details.80 But the Chief said that the purpose of the ACA is to improve health insurance, not to destroy it, and we will read the statute in that fashion.81

Statutes are complicated. They don’t have single purposes. They have lots of purposes, federalism among others, right. The dissent by Justice Scalia— which would be his last dissent delivered from the bench—criticized the Chief Justice, and you could tell a lot of the Scalia oomph from NFIB spilled over into the King dissent. 82 And, he said, “This Court has now twice saved this law. We should perhaps not call it not Obamacare, but SCOTUScare.”83 And, Scalia wrote about the Chief’s opinion, It seems that we are now applying a special set of rules for this new law and perhaps one day this law will achieve the status of perhaps the Social Security Act, or the Taft-Hartley Act, or others.84

It was only five-years-old at the time. But for now, the guiding principle of the ACA is that the law must be saved and that the Chief Justice has decided—for whatever reasons and you can ask about it during Q and A— that this law must be saved. So, after five years, the saving construction, my friends, has not aged well. There’s been no effort to defend it. I haven’t seen anyone actually agree with it as a matter of constitutional interpretation that reconciles the taxing power. And it, I think, shakes the Chief’s commitment to being this neutral arbiter. I think his concern for legitimacy and institutionalism trumps his own commitment to the Constitution, and for that, we are all much worse off. Thank you very much for your attention.

On Sept. 24, 2017, President Trump signed a proclamation, better known as “travel ban 3.0,” which would have denied entry to aliens from six predominantly-Muslim nations. In doing so, he invoked “the authority vested in me by the Constitution and the laws of the United States of America.” In previous iterations of the travel ban, the president also cited both sources of power: constitutional and statutory. Several courts have ruled that the Immigration and Nationality Act (INA) does not give the president the statutory power to implement the travel bans. Yet, none of these courts engaged with the far more pressing question: Does Article II give the president the inherent power to issue the proclamation?

In his concurring opinion to the Fourth Circuit’s en banc opinion, handed down on Feb. 15, 2018 Chief Judge Roger Gregory answers this question in the negative. He finds that the president had neither the constitutional nor the statutory authority to issue the proclamation. Other judges on the Fourth Circuit resolved the case entirely on statutory grounds through the application of the avoidance canon. The Ninth Circuit had earlier punted on the constitutional question. For the courts to hold that the president’s power to exclude can only be traced to delegations from the INA is to hold that the president has no inherent power in this arena. Failing to address this question, through the avoidance canon or otherwise, is tantamount to denying this power exists in the first place.

I commend Gregory for recognizing the necessity of addressing both grounds of authority cited by the president in the proclamation. I have long contended that the Supreme Court will not resolve this case on the basis of the establishment clause but on the basis of the separation of powers. This post will address the interaction between the travel ban, Article II powers, and the nondelegation doctrine.

Does Knauff Recognize an Inherent or Exclusive Power?

In December, the Ninth Circuit ruled that the president lacked the statutory authority to implement travel ban 3.0. However, in a fairly brief portion of the opinion, the court concluded that “the President lacks independent constitutional authority to issue the Proclamation, as control over the entry of aliens is a power within the exclusive province of Congress.” The Ninth Circuit cited three cases to support this conclusion, none of which concerned the President’s inherent powers to deny entry to aliens. As I noted on Lawfare, the court ignored the most relevant precedent, United States ex rel. Knauff v. Shaughnessy (1950), which addressed the interaction between the president’s inherent authority over entry and Congress’s rules concerning naturalization.

To his credit, Gregory, in his concurring opinion to the en banc Fourth Circuit’s opinion, cites Knauff several times. Yet his reading is incomplete.

In Knauff, Congress delegated to the president the power to “impose additional restrictions and prohibitions on the entry into and departure of persons from the United States during the national emergency proclaimed May 27, 1941.” Pursuant to this statute, the president issued a proclamation, which “provided that no alien should be permitted to enter the United States if it were found that such entry would be prejudicial to the interest of the United States.” (This statutory regime bears similarities to the 8 U.S.C. §1182(f), which President Trump cited as the basis of the travel ban.) Knauff was denied entry on the basis to regulations that were promulgated under this statutory regime, and the proclamation.

At 338 U.S. 542 of the controlling opinion, Justice Sherman Minton explained the nature of the president’s inherent power to exclude aliens:

The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. United States v. Curtiss-Wright Export Corp (1936); Fong Yue Ting v. United States (1893). When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power. (emphases added).

The citation to Curtiss-Wright is important. In this 1936 case, Congress delegated to the president the power to ban arm sales in Latin America. While such a criminal prohibition might otherwise be viewed as a legislative act, the court upheld the delegation. Justice George Sutherland explained:

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. (Emphasis added.)

This passage from Curtiss-Wright is very similar to the quoted passage from Knauff, except for one very important difference in terminology. Curtiss-Wright spoke of an “exclusive power,” while Knauff spoke of an “inherent executive power.” What’s the difference? An “inherent” powers allow the president to act, even if Congress has not delegated the authority to do so. Such an action could survive Justice Robert Jackson’s second tier of Youngstown. Congress can place certain limitations on an “inherent” power, which need not be “exclusive.”

However, an “exclusive” power is one that the president and the president alone can exercise. Congress lacks the authority to limit that “exclusive” power. Such an action would likely survive the third tier of Youngstown. “Courts can sustain exclusive Presidential control in such a case,” Jackson wrote, “only be disabling the Congress from acting upon the subject.” For an example, Jackson cited the president’s “exclusive power of removal in executive agencies” that was upheld in Myers v. United States (1926). There are other examples. Curtiss-Wright upheld the “plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.” And most recently, Zivotofsky v. Kerry (2015) recognized an “exclusive” power of the president to “recognize foreign nations and governments.” (As Jack Goldsmith observed, though the “majority in Zivotofsky II appeared to distance itself from some aspects of Curtiss-Wright,” it did not “repudiate” the decision.)

Did the Knauff court mean to suggest that the president’s power to exclude aliens was “exclusive” as in Curtiss-Wright, or merely “inherent”? If it is “inherent,” the power to exclude aliens inheres in the president by virtue of Article II, regardless of whether Congress has delegated any authority and regardless of whether there is a declared war, or some sort of national emergency. With such an authority, Congress would retain the right to constrain that power. If it is “exclusive,” the power to exclude belongs to the president alone, and Congress cannot impose any limitations on the entry of aliens into the United States.

For purposes of the travel ban case, it does not make a difference whether the power is “inherent” or “exclusive,” because the president prevails either way. Pursuant to 8 U.S.C. §1182(f), Congress has in fact given the president the plenary authority to “suspend the entry” of “aliens” if their “entry” would be “be detrimental to the interests of the United State.” This delegation works in either fashion: as a recognition of an “exclusive” power under Curtiss-Wright or as a recognition of an “inherent” power that is shared with Congress.

In contrast, Congress has prohibited nationality-based discrimination with respect to the issuance of immigrant visas. Here, Congress’s enumerated power over naturalization is plenary, and the president has neither an exclusive, nor an inherent power to rely on. As I’ve noted since the outset of this litigation, there is an important distinction between the power to deny entry (the president’s inherent power) and the power to issue visas (Congress’s plenary power). The government has sought to resolve this tension in this fashion: People who are subject to an entry ban should not be issued a visa, for such an act would be futile. The court could disagree with this distinction and find that the proclamation violates the INA’s prohibition on nationality-based discrimination with respect to immigrant visas. (With respect to the executive power to deny immigrant visas on the basis of nationality, see my discussion of the saving construction.) That holding would still permit nationality-based discrimination for non-immigrant visas. But such an opinion would not reach the conclusion that Chief Judge Gregory did: that the president lacks such an inherent power altogether.

The Power to Exclude Recognized in Knauff was not limited to “A Time of National Emergency”

Gregory dismisses this reading of Knauff, under which the president has an “inherent” power to exclude. He wrote:

One might misconstrue some language in Knauff to say that delegating immigration power can never violate nondelegation given the executive’s inherent powers. See 338 U.S. at 542–43. However, Knauff upheld a delegation of broad discretion because that discretion was to be exercised only “during a time of national emergency.” Id. at 543 (“Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency.”). Whatever the President’s inherent powers during war or national emergency, it does not follow that he has the same powers under ordinary circumstances. (Emphasis added.)

We can quibble whether the power identified in Knauff recognized an “inherent” or an “exclusive” power. The quoted sentence on 338 U.S. 543, however, does not support the conclusion that this power can “be exercised only ‘during a time of national emergency.’” Justice Minton’s analysis lacks that qualifier:

Thus the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General. The action of the executive officer under such authority is final and conclusive. Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien. Nishimura Ekiu v. United States; Fong Yue Ting v. United States; Ludecke v. Watkins. Cf. Yamataya v. Fisher. Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency. Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent. (Emphasis added.)

It is not the case, as Chief Judge Gregory writes, that this power can be exercised “only ‘during a time of national emergency.’” Not at all. Instead, Congress “may”—and that’s the key word, may—“during a time of national emergency” choose to delegate such authority, as it did so in Knauff. The Court was not discussing when the President could exercise the power, but when Congress may choose to delegate that power. Gregory gets it entirely backwards. In any event, Minton explains earlier at 338 U.S. 542 that the “exclusion of aliens” is an “inherent executive power.” Full stop. Gregory does not quote this section of the opinion. He merely critiques those who “might misconstrue” it.

To be even more precise, the quoted passage speaks only of a “national emergency,” not “war.” The latter qualifier about “war” was a gloss added by Gregory. And, as I noted in an earlier post, there is still a lingering question about whether the 2001 and 2002 authorizations for use of military force could bolster the case that such a “national emergency” exists. Indeed, the proclamation itself explains that its purpose is to “address both terrorism-related and public-safety risks.” (emphasis added). Gregory’s incomplete treatment of this question undercuts his analysis.

Later, Gregory writes “no one has identified a single case adopting what would be an astonishing view of inherent executive power.” That case is Knauff itself. Additionally, I found several decisions that cited Knauff for that exact proposition. See e.g., Defs. of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 129 (D.D.C. 2007) (“The construction of the border fence pertains to both foreign affairs and immigration control—areas over which the Executive Branch traditionally exercises independent constitutional authority.”); Encuentro Del Canto Popular v. Christopher, 930 F. Supp. 1360, 1365 (N.D. Cal. 1996) (“President Reagan enacted Proclamation 5377 based partly on his inherent Constitutional authority to do so”); Haitian Refugee Ctr., Inc. v. Gracey, 600 F. Supp. 1396, 1400 (D.D.C. 1985) (“In addition to statutory authority, the President has implied constitutional power under Article II of the Constitution to suspend entry of certain groups of aliens”). Admittedly, this issue does not come up often—because immigration decisions of this sort are generally not subject to review—but other courts have given Knauff the reading that the government and I have. In contrast, I could not find any opinions (before the instant litigation) that support Gregory’s cramped reading. The concurring opinion fails in its effort to read a “national emergency” requirement into the president’s exercise of his own inherent powers.

Finally, Gregory is mistaken to assume that the president’s “inherent powers” fluctuate during a time of “war or national emergency.” To the contrary, the very nature of an inherent power is that the president has it, regardless of whether or not Congress takes action, such as with a declaration of war, or the delegation of some other authority. The essence of an inherent power under Article II, is that it can be exercised unilaterally, regardless of the situation. What does fluctuate, however, are delegations of authority from Congress. This premise illustrates Jackson’s framework in Youngstown. At all times, the president can rely on his own inherent powers. What determines whether the actions falls in the first, second, or third zone, is whether Congress has delegated additional powers to the president. If Congress has so delegated, the action falls in the first tier. If Congress has withheld such powers, the action falls in the third tier. But even if the president is acting at the “lowest ebb” of his authority—that is, he relies only on his own executive powers (perhaps those of the “exclusive” type), or Congress has forbidden him from taking such an action—the president can still prevail.

Such was the case in Zivotofsky v. Kerry (2015). Congress passed a bill that ordered the State Department to update passports for U.S. citizens born in Jerusalem, with Israel listed as the place of birth. President Bush, who signed that bill into law, refused to comply, citing his inherent constitutional authority over recognition. He, and not Congress, could decide what the capital of Israel was. President Obama continued that practice. The Supreme Court upheld that exercise of authority, even though it was properly considered in Jackson’s third tier. Congress forbade the president from doing something, and he did it anyway, relying solely on inherent powers. That is, the Article II “exclusive” power trumped the statutory regime.

To the extent that Knauff remains good law, the president has this inherent power to exclude aliens. , hen 8 U.S.C. §1182 is fairly read, Congress has in fact recognized that the president already has this power. It provides:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

I have long read this provision as merely an affirmation of the power the president already had—the inherent power recognized in Knauff. Gregory reads it differently. He writes that this is a mere “gap-filling provision that empowers the President to exclude (1) foreign nationals whose individual conduct or affiliation makes their entry harmful to national interests for reasons unanticipated by Congress and (2) foreign nationals in response to a foreign-affairs or national-security exigency.” Neither of those criteria are present in the statute, and should not be read into an area where the president enjoys broad powers..

That Gregory misread Knauff is easy enough to demonstrate. Far more important is to explain why he felt compelled to draw this conclusion: If Knauff is read fairly, then President Trump has the inherent power to exclude aliens, and the remainder of this statutory analysis topples. In other words, whether or not Congress gave him such authority, he could exercise it; that Congress in fact delegated it is icing on the cake.

Panama Refining Revisited

Gregory’s discussion of the president’s constitutional powers relies on an incomplete analysis of Knauff. His discussion of the president’s statutory powers, however, relies on an incomplete analysis of the twentieth century.

Constitutional law students are taught to separate decisions of the Supreme Court from before and after 1937. While the myth of the “switch in time that saved nine” has been dispelled, 1937 still serves as a inflection point in the Supreme Court’s approach to the due process clause, the commerce clause, the taxing power, federalism, and, as relevant here, the nondelegation doctrine.

Article I, Section 1 of the Constitution, provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” Congress cannot surrender its “legislative Powers.” It can, however, delegate certain authority to the executive branch, so long as there is sufficient guidance—known as an “intelligible principle”—of how that power is to be exercised. Under the nondelegation doctrine, in theory at least, courts can invalidate laws that cross the line from mere delegation to surrender. I add the modifier in theory, because since 1937, the Supreme Court has ceased enforcing this line.

Justice Antonin Scalia’s majority opinion in Whitman v. American Trucking Associations (2001) summarizes the doctrine well:

In the history of the Court we have found the requisite “intelligible principle” lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring “fair competition.” See Panama Refining Co. v. Ryan (1935); A.L.A. Schechter Poultry Corp. v. United States (1935). . . . In short, we have “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Mistretta v. United States (1989) (SCALIA, J., dissenting); see id., at 373, 109 S.Ct. 647 (majority opinion).

Scalia identified only two decisions where the court found a violation of the nondelegation doctrine: Panama Refining Co. v. Ryan (1935) and Schechter Poultry Corp v. United States. Professor Cass Sunstein quipped that 1935 was “the conventional nondelegation doctrine’s only good year.” But that does not mean the nondelegation doctrine is dead. Instead, through what Sunstein referred to as the “nondelegation canons,” courts have narrowly construed delegations of authority to avoid raising serious constitutional questions. (In the Harvard Law Review, I discussed one such canon, known as the “major question” doctrine, at pp. 260-265.) It is in this nature of avoidance that Chief Judge Gregory invokes the non-delegation doctrine. That much is not problematic (at least to this anti-administrativist). What’s problematic, is that he uses Panama Refining Co. as the proper test for his analysis. He wrote:

The INA provisions invoked by the Proclamation are similar in critical respects to the statute at issue in Panama, which the Court invalidated on nondelegation grounds. See 293 U.S. at 414–15, 430 (invalidating statute that gave the President discretion to prohibit petroleum in interstate and foreign commerce because decision was “obviously one of legislative policy,” and Congress did not provide standards to guide President’s exercise of discretion). Congress, in both instances, delegated the power to suspend movement of people or goods in commerce. According to the Government, the INA simply authorizes the President to do whatever he believes best, which means that the only source of guidance derives from the President himself, not Congress. In terms of direction from the legislature, such a “requirement” may as well be nonexistent, as was the case in Panama.

I did a double-take when I read this. Was a circuit judge actually relying on a pre-New Deal precedent concerning the nondelegation doctrine? Granted Panama Refining has never been overturned. And in NFIB v. Sebelius (2012), the court favorably cited another pre-New Deal opinion concerning the taxing power, Bailey v. Drexel Furniture Co. (1922). But the so-called Child Labor Tax Case had not been eroded by decades of precedent (an issue that many in the professoriate overlooked in their defense of the Affordable Care Act’s individual mandate). The rule in Panama Refining, however, has been interred. Sunstein wrote that Panama Refining “is a controversial ruling, fitting poorly with post-World War II decisions, and it is most unlikely that the Court would follow it today.” He was right. And were it not true when Sunstein wrote his article in 1999, Scalia’s opinion in Whitman proved Sunstein unquestionably correct.

Let’s consider 8 U.S.C. §1182(f) once again to ascertain whether it has an “intelligible principle”.

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. (Emphasis added.)

There is, without question, an intelligible principle for the president to apply: The entry of the aliens must be “be detrimental to the interests of the United States.” Perhaps to a student of the English language, this delegation would seem open-ended and capacious. What does “detrimental” mean? What are the “interest of the United States”? How long does “he shall deem necessary” last? But, under the Supreme Court’s precedents, this statute is well within the boundaries of permissible delegations. This statute is far less vague than other standards that the court has upheld over the past seven decades. Scalia offered several of examples in Whitman:

We have, on the other hand, upheld the validity of § 11(b)(2) of the Public Utility Holding Company Act of 1935, 49 Stat. 821, which gave the Securities and Exchange Commission authority to modify the structure of holding company systems so as to ensure that they are not “unduly or unnecessarily complicate[d]” and do not “unfairly or inequitably distribute voting power among security holders.” American Power & Light Co. v. SEC (1946). We have approved the wartime conferral of agency power to fix the prices of commodities at a level that “‘will be generally fair and equitable and will effectuate the [in some respects conflicting] purposes of th[e] Act.’” Yakus v. United States (1944). And we have found an “intelligible principle” in various statutes authorizing regulation in the “public interest.” See, e.g., National Broadcasting Co. v. United States (1943) (Federal Communications Commission’s power to regulate airwaves); New York Central Securities Corp. v. United States (1932) (Interstate Commerce Commission’s power to approve railroad consolidations).

If the court upheld delegations which only asked the executive branch to determine if a regulation was in “the public interest,” then it is perfectly permissible for a delegation to ask the president to determine if an alien is “detrimental to the interests of the United States.” Without question, such a determination is within the president’s expertise and competency. Further Curtiss-Wright still stands for the proposition that courts should read delegations in the foreign-policy context in a generous fashion. And it is no answer to say that immigration is a large area of concern that is part of a complicated regulatory scheme. Several of the cases Scalia cited concerned significant areas of activity, including the public airwaves and the railroads. And here, Congress has spoken with clarity that it “it wishes to assign to [the President] decisions of vast ‘economic and political significance.’” Utility Air Regulatory Group v. EPA (2014).

On page 99 of his opinion, Gregory briefly cites Whitman, but he omits its rejection of Panama Refining. And in a footnote, he parries Whitman with a favorable citation to Panama Refining. This opinion fails to grapple with, and indeed brushes over, the sea change in constitutional law since 1937.

As an outed anti-administrativist, I write this post with the slightest regret. I would relish the court’s reinvigorating the nondelegation doctrine. Indeed, Justice Neil Gorsuch has hinted that he is inclined to do so. But this is not the right case for that. Why? The president here is not only acting with an intelligible statutory delegation, but he is also acting pursuant his own inherent executive powers. This latter authority renders the nondelegation doctrine largely irrelevant. As I explained in my prior post, under this analysis, “there cannot be a violation of the nondelegation doctrine, because Congress is not delegating legislative power at all.”

If the court wants to breathe life into Panama Refining and Schechter Poultry, let it start with a mundane statute regulating an inconsequential segment of the American economy, not national security. And without question, it is up to the Supreme Court, and not a concurring circuit court opinion, to restore the lost Constitution. It is no surprise that none of Gregory’s colleagues joined him. In any event, I am grateful that he wrote the opinion he did, which lays bare why the statutory analysis is so fraught.

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In my very first post for Lawfare, I explained why the first iteration of the travel ban was within the president’s statutory and constitutional authority:

President Trump’s executive order does not wallow in [Justice] Jackson’s third tier [of Youngstown], nor does it linger in the so-called “zone of twilight.” Through §1182(f) Congress has, with unequivocal language delegated its Article I powers over immigration to the President. In Trump’s own words—as a relevant statement about the scope of his constitutional authorities—it “couldn’t have been written any more precisely.” Further, as a matter of inherent Article II authority, even in the absence of any statute, the President could deny entry to the United States of those he deems dangerous. As a result, the President was acting pursuant to an amalgamation of Article I and Article II powers, combined. Here, Jackson’s first tier provides the rule of decision

I stand by this framework, and I predict that the question of Article II authority will undergird the Supreme Court’s final resolution of the case. That Chief Judge Gregory had to disregard much of Knauff, to say nothing of the twentieth century, reaffirms the strength of the government’s position on this fundamental question.

Cross-Posted at Lawfare

Throughout the Emoluments Clauses litigation (See Parts 1, 2, 3, 4, and 5), we have argued in amicus briefs filed with federal district courts in New York, the District of Columbia, and Maryland: that the complaints were each filed against the President exclusively in his “official” capacity, but the conduct plaintiffs are complaining about is not “official” conduct. As we noted in Part 6 of this series, the Department of Justice (“DOJ”), which is defending the President, has failed to argue that the Maryland complaint (where the issue was discussed during oral argument) or any of the other two complaints were improperly pleaded. To the contrary, DOJ has maintained that the Maryland case is properly pleaded as an official capacity suit. Part 7 explained why the President’s acceptance or receipt of purported profits and purported emoluments are not, as DOJ argued, “executive action.”

This eighth installment will address an essential follow-up question. Even if the Plaintiffs (in the Maryland case) amend their complaint to enjoin conduct taken by the President in his individual capacity, they still will have failed to state claim on which relief can be granted. Why? Because there is no express or implied constitutional cause of action under which the Plaintiffs can bring such an individual capacity suit.

As a general matter, federal officers can be sued in their official capacity for purported violations of the Constitution. We have already addressed (in parts 6 and 7) why the allegations made against President Trump do not amount to an official capacity suit. (Likewise, we set aside for a moment whether a federal court has the power to issue an injunction against the sitting President, in light of Mississippi v. Johnson.) On the other hand, in order for such officers to be sued in their individual capacity, the Plaintiffs must identify a relevant cause of action. No cause of action exists to allow a suit against the sitting President in his individual capacity for violating the Constitution’s Foreign and Domestic Emoluments Clauses. Causes of action come in two types: express and implied.

Express Causes of Action. Unlike the traditional congressionally-enacted action brought under 42 U.S.C. § 1983—which allows suits against state officers in their official and individual capacities—Congress has never seen fit to create by statute an express cause of action against federal officers, much less a cause of action against federal officers based on the Emoluments Clauses. (That Congress could have enacted such a statute, and have not done so, should provide courts some pause to resolve these matters.)

Implied Causes of Action Based on the Constitution. The Supreme Court has created implied constitutional causes of action under the Fourth, Fifth, and Eighth Amendments pursuant to the doctrine announced in Bivens v. Six Unknown Named Agents. 403 U.S. 388 (1971). However, the Supreme Court has not seen fit to imply a constitutional cause of action against federal officers with respect to any other rights-conferring provisions of the Bill of Rights. See generally Erwin Chemerinsky, Federal Jurisdiction § 9.2 (7th ed. 2016). Indeed, the Supreme Court’s recent plurality decision in Ziglar v. Abbasi casts serious doubt on extending this doctrine to any “new Bivens context” with respect to the Fourth Amendment. 137 S. Ct. 1843, 1860 (2017).

This rule would apply with even greater force to structural provisions (as opposed to rights-conferring provisions) of the Constitution, such as the Foreign Emoluments Clause and the Domestic Emoluments Clause. These two structural provisions have never been the basis for an implied cause of action. The plaintiffs in the Maryland litigation have cited Bond v. United States (2011) for the proposition that claims based on structural provisions of the Constitution are justiciable. Plaintiffs’ claim is a stretch. In Bond, the defendant raised the Tenth Amendment as a defense against a criminal prosecution. The usual rules of justiciability are very different in the civil and criminal context. In any event, because of the ongoing prosecution, the defendant in Bond did not need to rely either on an implied or an express cause of action. Bond therefore does not speak, one way or the other, to whether a new and novel judicially-created implied constitutional cause of action should be implied from the Foreign Emoluments Clause or the Domestic Emoluments Clause.

Furthermore, under Ziglar, courts should hesitate before creating a new judicially-created implied constitutional cause of action based on provisions of the Constitution that have never been interpreted by the Supreme Court at all. Finally, although we have questioned whether the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342(a)(1)(E) is premised on the Foreign Emoluments Clause, (Response at 18–19), to the extent that the former statute is authorized by the latter constitutional provision, the case for an implied constitutional cause of action becomes even weaker because Congress’s statute occupies the field. That a federal statute occupies the field, counsels against a court crafting a novel judicially-created implied constitutional cause of action.

A federal officer could violate the Foreign Emoluments Clause in either his official or individual capacity—that is, such a constitutional violation may or may not involve government policy. While both types of constitutional violations are unlawful, the manner in which the clause is violated matters for purposes of litigation. Here, for example, a lawsuit to prevent a federal officer from accepting unlawful emoluments in his official capacity would seek declaratory or injunctive relief to halt the government policy that authorizes or orders him to receive the (purported) emoluments. The Supreme Court recently explained that such an official capacity suit would “require action by the sovereign or disturb the sovereign’s property.'” Lewis v. Clarke (2017) (quoting Larson v. Domestic and Foreign Commerce Corp. (1949)). If the suit were successful, the court would enjoin the policy that permits or mandates the receipt or acceptance of the (purported) prohibited emoluments.

In contrast, if a federal officer received or accepted (purported) prohibited emoluments in his individual capacity—that is, not pursuant to any government policy—the prayer for relief would look very different. In this latter situation, the prayer for relief, if successful, would not “require action by the sovereign,” because the sovereign took no action in the first place to enable receipt or acceptance of emoluments.

The federal courts can hear the former type of lawsuit, i.e., an official capacity lawsuit, brought against an officer in his official capacity for constitutional violations, by virtue of the Constitution standing alone, without any federal statute. Individual capacity suits are entirely different. The latter type of suit, i.e., an individual capacity lawsuit, is theoretically possible, so long as a cause of action exists. Unlike an official capacity suit (which can be based on the Constitution standing alone), an individual capacity must be supported either by a federal statute or by a judicially-created implied constitutional cause of action. There is no express cause of action based on any applicable federal statute, and for the reasons discussed above, the weight of Supreme Court precedent would indicate (we think) that such a cause of action should and cannot be implied.

Indeed, we speculate that the reason these three lawsuits have not been argued in the alternative from the day each lawsuit was first filed, is because every step in the analysis above was entirely understood by (at least some of) plaintiffs’ attorneys. After all, the principles laid out here are basic: bread-and-butter principles taught in first-year civil procedure and third-year federal courts classes.

Admittedly, many aspects of this case are unsettled and novel. For example, the Supreme Court has never passed on whether the Foreign Emoluments Clause applies to the President, nor has it opined on whether such suits are justiciable. We do not purport to predict how the Court or any federal court will rule on such issues of first impression. However, the distinction between official and individual capacity suits is well-settled. Likewise, the Court’s jurisprudence has evinced a strong hesitancy to extend implied causes of action beyond the Fourth, Fifth, and Eighth Amendments. Even if the Maryland Plaintiffs establish standing, and show that the case is justiciable, the absence of an express (that is, a statutory) cause of action or an implied constitutional cause of action, and cases like Ziglar, provide the courts with an easy way to dispose of these cases.

There is, in fact, a distinct risk for the Maryland Plaintiffs in pressing the suit against the President in his individual capacity. In Ziglar, there was only a four-member majority, due to Justice Scalia’s passing. The Emoluments Clauses litigation could provide a five-member majority with an opportunity to slam the door shut, permanently, on implying new judicially-created causes of action (and perhaps terminating the doctrine entirely). This entire doctrine is largely a vestige of the Warren Court that has been fluttering on life support for two decades or so. The Emoluments Clauses cases, ironically enough, could put an end to this doctrine, altogether. We suspect several of the scholars who are closely affiliated with this litigation, as well as their amici, would not want to take this risk—which may explain why an amended complaint still has yet to be filed.

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The ninth part in this series will discuss additional follow-up questions concerning individual capacity suits.

Cross-Posted at Volokh Conspiracy