Yearly Archives: 2018
Oct 9, 2018 Kevin C. Walsh
Kristin Hickman pursues a “modest” goal in Symbolism and Separation of Powers in Agency Design: “to raise a few reservations regarding judicial refashioning of agency design via [a] severance remedy for separation of powers violations.” This understated approach commands attention to Hickman’s analysis. In this contribution to a Notre Dame symposium on “Administrative Lawmaking in the Twenty-First Century,” Hickman clearly identifies and carefully analyzes problems arising out of what might otherwise have passed as unremarkable applications of existing severability doctrine. With an eye toward big-picture legitimacy of courts and agencies, and with attention toward doctrinal and statutory detail, Hickman provides fresh reasons for judges to rethink this doctrine. And the increased attention earned by relatively restrained criticisms like Hickman’s may eventually move the law in the direction of more radical critiques that have started to receive an audience at the Supreme Court.
Hickman describes three cases or sets of cases in which the Supreme Court or the D.C. Circuit held an agency design unconstitutional based on separation of powers principles and then “fixed” the problem by “severing” a structural provision of the statutory agency design. These cases addressed the structure of the Public Company Accounting Oversight Board, the Copyright Royalty Board, and the Consumer Finance Protection Bureau.
The accounting oversight board was protected by two layers of for-cause removal restrictions. Board members were removable by SEC commissioners, but only for cause; SEC commissioners were removable by the President, but also only for cause. The Court fixed this problem by eliminating the for-cause restriction on SEC Commissioners’ ability to remove board members.
The Copyright Royalty Board’s three Copyright Royalty Judges, who were appointed subject to removal by the Librarian of Congress, were judicially determined to be principal rather than inferior officers. This status was owing, in part, to a for-cause limitation on the Librarian’s authority to remove them. Because the Librarian of Congress is not constitutionally permitted to appoint principal officers, the D.C. Circuit transformed the royalty judges into inferior officers. The court accomplished this by eliminating the statutory for-cause limitation on the Librarian’s removal authority.
The Consumer Finance Protection Bureau, according to a split D.C. Circuit panel, was unlawfully headed by a single director removable only for cause, rather than by a multimember commission made up of commissioners removable only for cause. The panel fixed this problem by eliminating the for-cause limitation on the President’s ability to remove the Bureau’s director. The need for severance was ultimately obviated, though, when the D.C. Circuit took the panel decision en banc and reversed on the constitutional merits. That en banc decision removed the need to determine whether the panel’s severance move was correct.
Hickman raises three reservations about the appropriateness of severance in these three cases. First, the remedy was not as restrained as it seems when compared with the alternative of leaving the statute operative as is but without a functioning agency for the time it takes Congress to fix it, and when taking into account the tradeoffs reflected in the now-invalidated agency design. Second, litigants will have less incentive to challenge agency design when the end result makes little practical difference to the outcome of their particular cases. Third, severance of for-cause removal restrictions renders agency actors less politically independent and thereby undercuts their perceived legitimacy.
These criticisms are not of equal weight—the first and third are more powerful than the second. Hickman acknowledges that a reduction in litigation incentives may not be that significant given the presence of other available actors to press structural separation of powers arguments in challenging agency actions. She properly sees a form of “cause lawyering” at work in the accounting oversight board case, for example.
Adding to Hickman’s points about mixed litigation incentives, one might also observe that severance in the three cases reduced the practical costs of the underlying constitutional holding by leaving the agency’s day-to-day operations untouched. And the Supreme Court may have been more responsive to the substantive constitutional arguments presented by separation-of-powers “cause lawyers” precisely because of the availability of a non-disruptive fix. While this observation limits the force of the litigation-incentives argument, it provides greater cause to be concerned about judicial interference with the agency-design choices that Hickman discusses in connection with her other two reservations.
A few weeks after the November 2017 symposium at which Hickman presented her paper, the Supreme Court heard oral arguments in Murphy v. NCAA. The case had nothing to do with agency design, but the resulting opinions had much to do with severability doctrine. After declaring a federal statute partially unconstitutional, the Court used severability doctrine to render it totally unenforceable.
Justice Thomas took the occasion to write a powerful concurrence, one that deserves the serious and sustained attention it will receive over time. Thomas details many ways in which the Court’s “modern severability precedents are in tension with longstanding limits on the judicial power.” The judicial power is the power to render judgments in cases, and what we now call “judicial review” is “a byproduct of that process.” As a consequence, “when early American courts determined that a statute was unconstitutional, they would simply decline to enforce it in the case before them.” Later deviations from this practice should be curbed.
If Thomas is correct, there is more reason to reject the statutory severance Hickman calls into question. The three cases Hickman discusses exemplify what happens when the metaphor of “severability” gets away from the judges and they mistakenly think that severance is a thing that they can do. But just as Hamilton was right in Federalist No. 78 that the judiciary lacks the power of the sword, Justice Thomas is right that the judiciary lacks the power of the Exacto knife.
And this brings our consideration full circle to Hickman’s explanation of how things might have worked better if the judiciary had simply followed the traditional path of setting aside the challenged agency action in these cases. The most powerful part of Hickman’s analysis is her insistence on the obvious but overlooked fact that “declaring an administrative agency’s structure to be unconstitutional and the agency’s actions to be inoperative” is not the same as “invalidating a statute altogether.” Statutory prohibitions and requirements would remain in force even if there is no enforcement agency at work. And Congress could then revive the agency by making any necessary changes. If severance were not available, the litigants who successfully challenged the agency design would have been better off, and the agencies would not have been judicially reconstituted in ways that risk undermining their perceived legitimacy and that ignore legislative debates and choices.
In his Murphy concurrence, Thomas emphasized the way in which modern severability doctrine “requires courts to weigh in on statutory provisions that no party has standing to challenge, bringing courts dangerously close to issuing advisory opinions.” The scenario in which this worry has appeared most acutely is when a holding of inseverability threatens the enforceability of parts of a statute not otherwise properly before the court. But the cases that Hickman discusses reveal a different version of an advisory opinion problem. The courts purported to remove a sentence or two from the agencies’ governing statutes—which they can only do metaphorically—while leaving “the actions of the challenged agency, and the structures and actions of identically or similarly designed agencies, largely or entirely untouched.”
Although Hickman does not question the fundamental legitimacy of modern severability doctrine, her analysis of its application in a few cases shows the power of raising reservations “regarding judicial refashioning of agency design.” If the Supreme Court and the D.C. Circuit were to follow Hickman’s advice and contemplate their application of modern severability doctrine more thoroughly, they might find their conclusions more unsettling than Hickman’s lawyerly disclaimer of any “grand proposals” suggests.
Sep 25, 2018 Robin J. Effron
Irina Manta,
Tinder Lies, ___
Wake Forest L. Rev. ___ (forthcoming 2019), available at
SSRN.
In a world dominated by online dating, my own marriage seems quite quaint. We were introduced to each other! In person! By another human being! Sometimes I think that people give me a faintly odd look – a look that just 15-20 years ago was reserved for the bold (and seemingly “shameless”) people who dared to look for a partner online. When I left the dating world, it consisted primarily of websites. But as Irina Manta points out in her intriguing and provocative new article, Tinder Lies, online dating has become even easier and more ubiquitous with the surge in popularity of dating apps such as Tinder and Bumble. Manta confronts a problem that is as old courtship itself, that of sexual fraud, or “lies 1) that were put in profiles on online dating apps/sites, 2) whose content would materially influence the decision of a reasonable person whether to have sexual intercourse with the profile owner, and 3) remained uncorrected before sexual intercourse took place.” Like many problems, the issue of truth and disclosure in dating and sexual interactions has become more magnified and widespread when the primary platform for romantic and sexual introduction involves a great deal of anonymity, self-description, and the uncomfortable knowledge that one is, essentially, in a marketplace.
Tinder Lies is a terrific read. Manta takes on a question of increasing significance in the lives of many Americans who use online dating services and apps: What, if anything, should be done about users who lie about themselves in their profiles, where these lies lead other users to make decisions of significant personal import that they would not have otherwise made–to have sex with the person in the deceptive profile or to invest a significant amount of time and emotional resources in a relationship with a fraudster? While some lies might strike us as relatively harmless and easily debunked upon a face-to-face meeting, such the height or weight of the user, other lies are far more consequential, such as the person’s marital status,.
With these questions in mind, Manta offers an engaging primer on the history and current doctrinal landscape of legal responses to sexual fraud. She uses trademark law as a useful analogue to the problems of sexual fraud in online dating and offers a framework for a state law response to sexual fraud in which behavior that amounts to false advertising subjects that person to civil liability. She concludes by suggesting that this legislative framework could be operationalized by offering claimants access to expedited proceedings in small claims court. As a civil procedure scholar, it is this last piece that I find most intriguing (and which is, presumably, of most interest to JOTWELL Courts Law readers).
At the outset, I applaud Manta for incorporating a procedural aspect into what is otherwise a mostly substantive discussion about the merits and drawbacks of permitting or designing causes of action for sexual fraud at all. Procedure is often an afterthought in substantive policy or legislative proposals. For our part, proceduralists are sometimes less attentive to the substantive components of our ideas than we should be. Manta recognizes serious barriers to enforcement of claims for sexual fraud and realizes that some are as much procedural as they are substantive. Many plaintiffs would not have the financial (or, frankly, emotional) resources to file a lawsuit in a court of general jurisdiction where the filing costs might dwarf any recovery, where litigation is slow and expensive, and where proving actual damages might be a significant barrier to a meaningful recovery.
To counter these procedural problems, as well as to crystalize a coherent cause of action, Manta proposes a model state statute that essentially sets statutory damages for sexual fraud at a level below that state’s jurisdictional limit for small claims court. It is easy to see the appeal of such a proposal. Small claims court enables claimants to file lawsuits without the expense or need of retaining counsel, paying hefty filing fees, and engaging with the other costly processes associated with litigating in a court of general jurisdiction.
Although these are noble aspirations, the reality of small claims courts may be at odds with Manta’s stated goals. The hallmarks of small claims courts (besides their low jurisdictional limits for amount in controversy) are relaxed procedural and evidentiary rules and a norm of proceeding pro se. Given the nature of a claim of sexual fraud, there may be problems with encouraging plaintiffs to file suits in a system that does not treat evidence and witnesses with the same rigor as courts of general jurisdiction. As Manta acknowledges, claims of sexual fraud involve a good deal of “he said, she said” controversy. Whether the plaintiff would have engaged in a sexual relationship but for the lie told by the defendant may be difficult to prove in a procedurally abbreviated format. Even the facts that Manta considers straightforward might be “easy” to prove, but nonetheless expensive. Take, for example, the question of whether the defendant lied about his or her marital status. The plaintiff would need to produce some sort of record of what the defendant said on his or her profile. This information is easy to change, and save for the plaintiffs who are savvy enough to take screen shots (which should really be subject to evidentiary authentication), that information is in the hands of the dating app rather than the plaintiff. This information is not impossible to obtain. But getting records from a third party is expensive and requires procedural savvy – precisely the sort of process that Manta wants to spare complainants in these cases. Even the question of marital status requires some work. A recalcitrant defendant can essentially force a plaintiff to unearth a marriage certificate or corroborating witness in discovery to prove marital status at the time in question. These questions differ from “typical” small claims cases, such a garden variety suit between a home owner and a contractor, where the parties are largely in possession and control of a few key documents or other easily captured pieces of evidence.
In other words, the defendant in these suits can easily put the plaintiff to her proof. And any law or system that would abbreviate such rights of the defendant and allow the plaintiff to prevail more-or-less on her own assertions should give everyone serious pause. Sorry as I feel for people who have made heartbreaking choices based on false information, the judicial system is especially solicitous of protecting the rights of defendants on claims involving either sexual conduct or fraud. A claim of sexual fraud carried serious moral weight, even if Manta’s statutory penalty is low. And I am uncomfortable with applying a system of relaxed evidentiary rules and abbreviated procedures to these claims. One source of this discomfort is that such a statute could hurt women more than men. Manta believes that dating app sexual fraud is perpetrated more by men than by women. But given a recent study showing that in online dating men’s desirability peaks at age 50 whereas women’s desirability peaks at age 18, women are under significant (and understandable) pressure to misrepresent their age. This lie could be the source of many, many claims. And to funnel these cases into a system where people have a limited ability to defend their reputations, or to do so at what is ultimately a much higher cost than typical small claims court promises, is dicey territory.
Finally, even if one were to set aside reservations about having these sorts of claims proceed in low-jurisdictional-limit courts, there are reasons to tamper enthusiasm about the efficacy of small claims courts. These courts offer abbreviated procedure; they do not always offer meaningfully abbreviated timelines. While cases in small claims court are resolved faster than those in courts of general jurisdiction, it can still take 6-12 months of waiting and hours in line at the courthouse for a 5-10 minute hearing before a judge. Moreover, small claims court judgments are notoriously difficult to enforce. One study found that only 55% of small claims court judgments resulted in any payment to the plaintiff at all, and that when judgments were collected, they amounted to about 31% of what the plaintiffs were actually awarded.
Having stated those words of caution, I still think that Manta makes a significant contribution. Few scholars are as specific about exploring the connection between cause of action, remedy, and a meaningful forum for enforcing that remedy. I wish that Manta had engaged further with the difficulties of small claims courts. Although this might be perceived as a damper on enthusiasm for her idea, it is actually an opportunity to reinvigorate scholarly dialogue about litigation and dispute resolution in alternative public forums. Procedural and substantive scholarship could benefit with such engagement. Manta’s proposal is an excellent starting point for this kind of scholarly dialogue.
Sep 7, 2018 Fred O. Smith, Jr.
Aaron Tang,
Rethinking Political Power in Judicial Review, __
Cal. L. Rev. __, (forthcoming 2019), available at
SSRN.
Courts and commentators have long debated the proper role of judicial review in democracies, particularly the question of how deferential courts should be when determining whether to uphold legislation. Much constitutional adjudication is devoted to understanding phrases that are reasonably susceptible to various meanings, even when history and precedent are consulted. In those situations, how certain should jurists be that their interpretations of constitutional phrases or terms are correct before they vote to invalidate democratically enacted legislation?
At least two facts drive and complicate the answer to this question. First, we live in a land where the people purportedly govern themselves; there must be some limitations on the ability of unelected judges to invalidate legislation. Second, we live in a land where history has taught that, when left unchecked, elected officials sometimes trample individual rights and subjugate politically powerless minorities with impunity. Attentive to both of these facts, adherents of the political process theory of judicial review advocate for a judiciary that is deferential to politically accountable branches unless (1) the law undermines the capacity of citizens to make political change or (2) the law burdens a politically unpopular group. Under John Hart Ely’s traditional understanding of political process theory, when a law “clog[s] the channels of political change,” or targets a politically powerless group, this should increase courts’ readiness to invalidate a potentially unconstitutional law.
Aaron Tang’s forthcoming article persuasively makes the case that this traditional articulation of political process theory provides an incomplete accounting of the ways that political power can and should inform judicial review. Political process theory, he contends, is not just about political powerlessness; it is also about political powerfulness. Not only should courts be more willing to invalidate legislation that burdens politically powerless groups; they should also be less willing to invalidate legislation that burdens politically powerful groups.
Tang’s observation has both descriptive and normative dimensions. s a descriptive matter, he identifies ways that the Supreme Court has invoked groups’ political powerfulness as a reason to defer to elected officials’ legislative choices. For example, the Court cited the political influence of taxpayers while upholding legislation taxing state workers. More recently and famously, the Court upheld legislation burdening States, citing States’ political power in our constitutional design. The Court cited unique advantages that States have in the federal legislative process, particularly the equal suffrage that each State receives in the Senate. Garcia v. San Antonio Metropolitan also cited victories that States had achieved in the national political arena, including federal revenues that are directed to State treasuries and exemptions from broad swaths of legislation.
The Supreme Court further relied on political power when upholding legislation against challenges under Dormant Commerce Clause jurisprudence. In upholding legislation in Minnesota v. Clover Leaf Creamery, the Court observed that the law most adversely affected powerful in-state interests. Those “major in-state interests” stood as “a powerful safeguard against legislative abuse.”
Tang notes that in recent cases, a range of justices from across the ideological spectrum have cited groups’ political power as a reason to uphold legislation involving gun rights and same-sex marriage, albeit in dissent. Dissenters in McDonald v. City of Chicago argued that the elected branches were capable of safeguarding interests in keeping and bearing arms, adding that “no one disputes that opponents of [gun] control have considerable political power.” Chief Justice Roberts’ dissent in Obergefell v. Hodges emphasized that supporters of same-sex marriage “ha[d] achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view.”
In addition to persuasively showing that a number of justices do invoke political power as a ground to uphold legislation, Tang argues that they should do so. This would bolster democratic values and perhaps even judicial legitimacy. When constitutional text is ambiguous, it is generally sound to defer to politically accountable bodies, so long as the political process is working as it should. In our democratic republic, legislation is understood to be a valuable expression of majoritarian will. When a constitutional challenge is based on ambiguous text, history, and precedent, it is hardly clear that judges should always err on the side of invalidating the people’s political choices.
Moreover, in the face of indeterminate constitutional text, principles and values assist judges with close calls; but it is not apparent why their principles and values are institutionally more sound or legitimate than those of the people’s elected representatives. This is more true when a law burdens a group with outsized political power, because a majority of voters overcame powerful forces to enact their will. Further, courts may weaken their own legitimacy by regularly invalidating legislation designed to tame politically powerful forces in the face of ambiguous text.
Tang offers concrete examples of cases that would potentially yield a different result if the Court focused more consistently and explicitly on political power when determining whether to defer to a legislative choice. His most compelling examples attack so-called “First Amendment Lochnerism.” The Supreme Court has relied on ambiguous constitutional text to invalidate the people’s attempts to check corporations’ runaway financial influence over American elections. Citizens United relied on ambiguous text to (1) invalidate congressional limits on corporate expenditures and (2) overrule precedent that was more deferential to elected officials’ choices. Large corporate interests are politically powerful in our electoral system, particularly compared to most juridical or natural persons.
Tang’s contribution is remarkably timely. The role of political powerlessness in constitutional adjudication appears to be waning. The Court has not identified a new suspect class for equal protection purposes in roughly forty years. Trump v. Hawaii upheld government action burdening non-citizens and religious minorities, with nary a mention of those groups’ relative inability to protect themselves in the political process. Tang highlights ways that political power does and should play a role in constitutional adjudication, as have a broad range of justices. This suggests that the phenomenon may survive the shifting ideological winds. Tang’s observations can and should shape the future of judicial review in powerful ways.
Aug 14, 2018 Steve Vladeck
The military justice system receives embarrassingly little attention from the legal academy in general and from legal scholarship in particular. Part of that may be the Supreme Court’s fault; it has been 35 years since Congress gave the Court direct appellate jurisdiction over the Court of Appeals for the Armed Forces (“CAAF”), the Article I court that sits atop the court-martial system. In that time, the Court has taken ten cases from CAAF—almost all of which, including Ortiz from this Term (which I argued on behalf of the Petitioner), have involved structural questions about the jurisdiction of military courts, the appointments of military judges, or both. There are compelling reasons why the Justices can and should take more (and more substantive) cases from CAAF, but there are important limits on their power to do so. Under current law, CAAF has discretion to choose which cases it hears (it has mandatory jurisdiction only in capital cases and those referred to CAAF by service-branch Judge Advocates General), and the Supreme Court can grant certiorari only if CAAF itself reviewed a court-martial appeal. As a result, a direct constitutional challenge to a criminal conviction cannot get to the Supreme Court if it arises from a court martial that CAAF does not review—the only context in the entire federal system today in which that is true. And as I have argued elsewhere, it is not because these cases are unimportant. Instead, “there are plenty of cases that the Court can take from CAAF but doesn’t, and there are even more cases that it can’t take but otherwise should.”
But the dearth of Supreme Court attention to the military justice system hardly explains the dearth of scholarship about it. After all, the Court has decided exactly one case arising out of the Guantánamo military commissions since they were established in November 2001, which have produced exactly eight convictions, all or parts of five of which have not survived appeal. Yet the pages of law reviews and legal monographs are replete with detailed analyses of the various disputes arising from those proceedings. Instead, the best that can be said about the paucity of good military justice scholarship is that, for whatever reason, there is not the same interest among non-military lawyers in the myriad substantive, procedural, and evidentiary issues that arise in the court-martial system. This is true even though that system has (1) increasingly focused its work on offenses that look less and less like the classic military offenses subjected to military justice at the Founding and that therefore increasingly raise legal questions of general applicability; and (2) recently undergone some of the most important and sweeping reforms since the enactment of the Uniform Code of Military Justice (UCMJ) in 1950. Instead, almost all of the best military justice scholarship these days has come from military lawyers—such as Captain Brittany Warren’s 2012 Military Law Review article.
The latest example is a 2016 article by Rodrigo M. Caruço, a Captain and lawyer in the U.S. Air Force Judge Advocate General’s corps, which offers a quantitative and qualitative assessment of the role of CAAF within the military justice system. As Caruço documents, CAAF both is, and sees itself as, “the supreme court of the military judicial system,” which is why Congress created its predecessor as part of the UCMJ. But rather than act like a “court of last resort,” CAAF “acts as an intermediate error-correction court…far too often.” Even though CAAF only conducts plenary review of approximately 40 convictions per year, Caruço’s quantitative analysis suggests that somewhere between half and 90% of its decisions in such cases entail little more than modest error correction. And because of the aforementioned limits on the Supreme Court’s appellate jurisdiction, the net effect is to dramatically reduce the incidence of “law declaration” within and without the military justice system. Instead, the overwhelming majority of cases (and issues) within the military justice system get no further than the intermediate appeals courts—the service-branch courts of criminal appeals—which themselves dispense of most appeals summarily.
The indirect but inescapable takeaway from Caruço’s insightful analysis is that much of the most important law in the military justice system is made by trial courts and does not become the subject of appeals (or, at least, of detailed appellate opinions that tend to provide fodder for academic commentary). It therefore may not be surprising that these rulings receive less scholarly attention—they are both less accessible and non-precedential. Indeed, although its focus is on whether CAAF truly behaves as a “court of last resort,” one of the most important takeaways from Caruço’s article is the more general conclusion that too many legal issues are resolved on a case-specific basis by military trial judges without the rigors of meaningful appellate oversight. To fix that deficiency, Caruço proposes a series of procedural reforms that would principally increase the number of cases CAAF takes, with a specific eye toward increased law declaration from that court.
But real reform may need to come from Congress, which has the unquestioned authority to increase the size of CAAF’s mandatory (as opposed to discretionary) docket and to allow servicemembers to seek review from the Supreme Court even if they are turned away by CAAF. If necessary, Congress could also add judges to CAAF (which currently has five seats—the fewest of any circuit-level federal appeals court) to handle the increased caseload. Until and unless some combination of these reforms take place, it may well be that military justice continues to receive short shrift from scholars. Not because military law is uninteresting or unimportant or because it is irrelevant to broader assessments of contemporary criminal law and procedure, but for the far less interesting—and far more important—reason that its shape and scope are harder for outside observers to see.
Jul 12, 2018 Howard M. Wasserman
Jonathan F. Mitchell,
The Writ-of-Erasure Fallacy, 104 Va. L. Rev. __ (forthcoming 2018), available at
SSRN.
Everyone—public, media, government officials, courts, and first-year law students—understands constitutional litigation in light of two ideas. From Marbury v. Madison’s declaration that it is “emphatically the province and duty of the Judicial Department to say what the law is,” everyone believes that the Supreme Court gets the final, uncontestable word on what the Constitution says and means. And a court exercising judicial review “strikes down” or “sets aside” or “invalidates” unconstitutional laws, rendering them null and void for all purposes, erased from existence, as if never enacted and no longer available as “law.”
In a new article, Jonathan Mitchell labels this the “writ-of-erasure fallacy,” the erroneous “assumption that a judicial pronouncement of unconstitutionality has cancelled or blotted out a duly enacted statute, erasing that law from the books, vetoing or suspending it and leaving nothing for the executive to enforce now or in the future.” In fact, judicial review is more limited. Having identified a law as constitutionally invalid, a court may decline to enforce that law in a particular case or it may enjoin executive officers from enforcing the law while the injunction remains in effect. But the statute continues to exist as law unless and until repealed by the enacting legislature. It is a fiction that courts “strike down” or “block” or “invalidate” statutes. That fiction creates misunderstandings about constitutional litigation and the effect of judicial rulings in constitutional cases. And that fiction unnecessarily limits the power of the executive to enforce still-existing law and of the legislature to enact new or amended laws.
Mitchell first traces the fallacy to the early days of the Constitution. One source is Convention debates over a proposed Council of Revision that would have given federal courts a genuine power to veto legislation as unconstitutional, preventing a proposed law from taking effect. Of course, the Council idea failed—and with it the power of the federal judiciary to strike laws from the books. Another source is the rhetoric of Marbury and its progeny, in which courts describe judicially disapproved statutes as “void” or “not law.” A third is the courts’ tendency to adhere to precedent; because courts are unlikely to overrule constitutional precedent, judicial disapproval of a statute in one case is regarded as permanent. Courts therefore refuse to enforce the statute (previously declared constitutionally infirm) in future litigation and enjoin threats or attempts at future enforcement. History shows, however, that the Court does overrule precedent at times, putting lie to the assumption that any judicial declaration of constitutional invalidity is permanent.
Mitchell then illustrates the nefarious effects of the writ-of-erasure fallacy in two doctrines. The first involves the Civil Rights Act of 1875, a late-Reconstruction statute that prohibited race discrimination in places of public accommodation. In The Civil Rights Cases, the Court held that Congress lacked the authority under § 5 of the Fourteenth Amendment to prohibit private racial discrimination, while treating the statute as void for all purposes. By purporting to “erase” the Act, however, the Court disabled its future uses, such as against discrimination on a train traveling in interstate commerce or against state-compelled racial segregation in Plessy v. Ferguson. As to the latter, Mitchell argues that the Court should have held that the 1875 Act, still extant as federal law, preempted the discriminatory state law.
The second nefarious effect is to overstate the effect of judicial injunctions. An injunction “simply forbids the named defendants to enforce the statute while the court’s order remains in place.” The injunction does not suspend or revoke the statute. And it does not shield those who violate the statute from future prosecutions or penalties should the injunction be dissolved or should the court overrule the underlying pronouncement of unconstitutionality. Mitchell analogizes an injunction to a President ordering his subordinates not to enforce a statute he believes is constitutionally invalid. Neither voids or strikes down the law, which remains on the books, presently unenforced but potentially enforceable.
Finally, Mitchell considers four doctrinal areas that would be altered by rejecting the writ-of-erasure fallacy; two are of present interest. One is the doctrine of standing in Establishment Clause cases in which plaintiffs claim injury from laws or regulations that by their words endorse religious beliefs or project a message of exclusion of those who do not adhere to those beliefs. The source of the constitutional injury in such cases purports to be the statute itself. But if the statute (as opposed to its actual or threatened enforcement) causes the injury, the only remedy is repeal or elimination of the statute. But a court cannot repeal a statute nor order a legislature to repeal a statute. That means no judicial order can redress the plaintiff’s injury, depriving her of standing in such cases. This doctrinal change would affect current debates over President Trump’s travel ban, as several plaintiffs are claiming injury from the existence of the executive order and its message of exclusion; standing becomes a problem in that litigation if a court cannot order the repeal of the executive order, the only remedy that would resolve the claimed injury.
A second doctrinal area involves the pre-clearance provisions of the Voting Rights Act of 1965 (VRA), which require certain “covered” (mostly Southern) jurisdictions to clear voting-related laws with the Department of Justice (DOJ) or a federal court. In Shelby County v. Holder, the Court held that the formula for defining covered jurisdictions was constitutionally invalid, such that covered jurisdictions could enact and implement voting-related laws without pre-clearance, something many jurisdictions have done since. But the pre-clearance provisions continue to exist as federal statutes and have not been repealed, erased, revoked, or amended. Shelby County means a covered jurisdiction can disregard the statutory pre-clearance regime without fear of a court enjoining their actions should DOJ attempt to stop it from implementing a non-precleared law. But, Mitchell argues, covered jurisdictions must recognize that the pre-clearance provisions remain as federal law, that a future Supreme Court could overrule Shelby County, and that any new, non-precleared voting-related measure could be challenged and found to violate a now-constitutionally valid VRA. Mitchell suggests that covered jurisdictions should continue submitting laws for pre-clearance, consistent with the VRA, unless and until the pre-clearance provisions are repealed—something that Shelby County did not achieve and that only Congress can do.
This article that I like lots furthers scholarly debates (to which I offer my contributions) about the proper scope and operation of constitutional litigation and constitutional remedies. There are many dimensions to this issue, and Mitchell does not address all of them. He does not specify whether the anti-suit injunctions courts are authorized to issue can prohibit enforcement of the challenged law as to the named plaintiffs (he acknowledges the injunction prohibits enforcement only by the named officials) or whether courts can issue universal/nationwide/”cosmic” injunctions prohibiting enforcement against all persons who might be subject to the law. Mitchell also identifies, but avoids, the debate between departmentalism and judicial supremacy. He need not resolve the debate, because even in a world of judicial supremacy, courts can repudiate prior constitutional pronouncements, empowering the political branches to resume enforcement of these statutes, including retroactively.
If we do resolve those debates in favor of departmentalism and particularized/non-universal injunctions, however, the political branches gain even more power than Mitchell suggests. Consider Shelby County and the VRA’s pre-clearance requirements. Mitchell allows that covered jurisdictions may encounter pre-clearance problems with new laws if a future Supreme Court overrules Shelby County and a future DOJ resumes enforcement. But if the point of Shelby County is that five members of the Supreme Court as it existed in 2013 believed the VRA’s coverage formula unconstitutional and the resulting injunction only prohibited DOJ from requiring Shelby County to obtain pre-clearance for changes to particular voting laws, then DOJ need not wait that long. It could continue demanding pre-clearance from other jurisdictions as to other voting laws, without violating the injunction. Of course, DOJ’s efforts in that direction will fail as soon as they reach court (whether through its action to enforce pre-clearance or a covered jurisdiction’s action to enjoin DOJ from enforcing pre-clearance); courts must follow Shelby County as precedent and find that pre-clearance is constitutionally defective and unenforceable as to the new laws enacted by the new covered jurisdiction.
But Mitchell’s insights into the operation of constitutional litigation and the nature of constitutional remedies maps how this process will play out and the additional steps required. He shows that it is richer and more complicated than the simplistic “the court struck the law down and it is gone forever” narrative in which we operate.
Mitchell’s paper is long and detailed, but wonderfully written and highly readable. It is a significant scholarly work that should change how we think and talk about judicial review and constitutional adjudication.
