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Sunday, June 23, 2019

Institutional Flip-Flops and Mushy Doctrine: Why Gorsuch’s Non-Delegation Revolution Won’t Happen

Following my post below on Gundy, I got some typically thoughtful push-back from Nick Bagley (on Twitter) and Marty Lederman (in the comments) that I thought deserved a whole new post on why I think that mushy doctrine cannot generally be the vehicle for a constitutional revolution. Mushy doctrine typically leads to institutional flip-flops — that is, inconsistent use of the doctrine to invalidate laws disliked by the swing voter on the SCOTUS. The members of a would-be SCOTUS majority that cares about the institutional principle (say, that the executive should be constrained by legislation in some mushy way), anticipating such flip-flops, backs off enforcing the principle in any case where a law that the member likes is at risk. Lacking any mechanism for assuring each member that the principle will be consistently enforced across cases, the would-be coalition falls apart. The SCOTUS eventually converges on pure Thayerism, adopting abnegating (in Vermeule’s term) legal constraints that mostly pass the buck to the political branches.

In short, one cannot hold together a coalition without some sort of plain doctrinal “contract” that makes it easy to name and shame defectors. Mushy doctrine IMHO cannot be the basis for such a contract. After the jump, some specific illustrations from immigration law for why the coalition being summoned by Gorsuch’s dissent in Gundy will (again, just MHO as a betting man) never emerge.

Suppose that Gorsuch rallies Kavanaugh, the Chief, Alito, and Thomas to support some sort of more robust “legislative-delegations-of power-to-the-executive-cannot-be-too-broad” principle. Even if all five agree that they will take a “principled” stand and enforce this mushy principle consistently against both “liberal” and “conservative” statutes, the cases do not come to the SCOTUS all at once but seriatim. So how can each member of the would-be coalition be assured that their fellow coalition partners will hold fast to the bargain when the preferences of the coalition members start to diverge?

The Trump Administration starkly poses this problem of coalitional instability for the Gorsuch Five, because the first few cases involving vague delegations will likely involve statutes favored by the Trump Administration and nativist conservatives. (Indeed, the statute most vulnerable to a non-delegation challenge might have been 8 U.S.C. Section 1182(f) at issue in Trump v. Hawaii). Consider, for instance, the power of the AG to define “particular social group” (“PSG”) under the Refugee Act: General Sessions used this power to exclude victims of private violence from the scope of PSGs in Matter of AB.

I was speaking last night to an experienced immigration law who was ecstatic that Gorsuch & Co. might strike down broad delegations of power to agencies, because she is fighting the Trump Administration’s use of such delegations in Arizona to deny entry to refugees who are fleeing gang and domestic violence. If liberal circuit judges take a cue from Gorsuch and start striking down these “conservative” laws on some sort of non-delegation basis, then the Gorsuch Five will face a difficult choice: They could risk getting hate mail from Trump’s fan base and uphold the liberal judges’ decisions to lay the groundwork for a later and larger scale attack on other statutes (say, the Clean Air Act, the OSH Act, etc.). But their decision will hearten the Resistance and undermine Trump who is the source of judicial appointments that share Gorsuch’s views.

Being principled jurists, the Gorsuch Five could brush aside these worries and strike down those vague delegations that produce conservative results in particular cases. Each member might, however, reasonably worry that the mushy principle will not be consistently followed over the future run of cases involving “liberal” statutes by other members of their coalition. Some swing voter, some squish (the Chief, maybe?) will balk when an extraordinarily popular and long-standing statute like the OSH Act is on the block. The mushiness of the “too-broad” principle allows such defections. Of course, dissenters will denounce the defector, but the defector could credibly say that this case is different and be applauded by a sufficiently large number of lawyers and profs for their “statesman-like” under-theorized opinion that the biting dissents will not bite too hard.

The Gorsuch Five, therefore, may anticipate that their mushy principle will be used as a tool of the Resistance and discarded once Trump is out of office. Such an institutional flip-flop, of course, does not advance the “principled” separation-of-powers agenda of the Gorsuch Five. So they balk. Someone like Justice Alito concurs with the liberals in upholding a very broad delegation, saying that it would be “freakish” to invoke the non-delegation principle against SORNA (a statute favored by conservative law-and-order types) when there is no assurance that the same principle will be consistently enforced in the future against other statutes.

In fact, that’s close to what Alito actually wrote in his Gundy concurrence — not, to be sure, with the coalitional logic laid out neatly, but a wink is as good as a nod to a blind man. I have spoken to judges at various FedSoc events in which conservative judges have bluntly told me that they will not reinvigorate various principles that they generally favor (Separation of Powers of various stripes, Thayerism, federalism of this or that variety, textualism, etc), unless they can be sure that such general principles will be consistently enforced against both liberal and conservative positions. Of course, they are absolutely correct to take such a stance: It is madness to adhere individually to a “principled” stance that produces unprincipled outcomes, because it is the outcomes and not the ringing rhetoric of frustrated dissents that we should care about.

Gorsuch lacks a crisp doctrine that can anchor a doctrinal coalition that will consistently attack the Administrative State. The suspicion runs high in conservative circles that Roberts is a squish who could play the role of swing voter that Kennedy once played, undermining any across-the-board adherence to any austere non-delegation principle. I predict, therefore, that the coalition needed to undermine the Administrative State over even a medium run of cases will never emerge for decision-theoretic reasons: Absent a mechanism of credible commitment, there will always be defectors in every case who balk at enforcing the principle against laws or agency actions that, for “attudinal” reasons unrelated to the principle, they favor. (Think of Justice Alito’s “I-like-dogs” dissent in United States v. Stevens as the paradigm of such a defection).

Yes, Nick Bagley is absolutely right that Gorsuch is playing the long game. But to play that game, you need more than a wish: You need a credible commitment. Only hard-edged, crisp, defection-proof doctrine provides such a commitment, and the Gorsuch Five cannot agree on any such doctrine. So I sleep soundly at night knowing that the Administrative State is likely perfectly safe.

Posted by Rick Hills on June 23, 2019 at 10:54 AM | Permalink


Devin writes: “The idea [in Gorsuch’s dissent] is that questions of law cannot be delegated, while questions of fact can be delegated. Mixed questions of law and fact are a little more complex, but likely the standard that has to be met must be set by Congress, [while] likely an Agency can determine if a given circumstance meets that standard.” Devin concludes that “[t]his is about as clear of a line as you can get in a non-delegation context.”

First, thanks for the head’s up on your amicus brief and its interesting argument. Second, I suspect that any NDD based on the distinction between law and fact will face the usual dilemma of all non-delegation doctrines: It will either be trivially easy for Congress to meet, or it will be impossible for the Court to apply. If Congress can satisfy the standard by inserting “fair and reasonable” after every grant of rule-making power to an agency, then it is difficult to see what is gained by adopting the constitutional limit. Certainly such a doctrine would not prevent Congress from creating Gary Lawson’s Goodness & Niceness Commission (assuming that goodness and niceness count as a legal standard). Such a doctrine is just a brand of Thayerism, right? (Nothing wrong with that, of course, but I am not sure what all the fuss is about).

On the other hand, if a NDD problem could arise when an agency decides whether or not a particular set of facts counts as fair, equitable, good, nice, reasonable, etc., then are we not back to a mushy mess that invites unstable majorities? Such debates about the fact-law distinction reminds me of those 19th century fights over whether or not a jury rather than a judge should decide “legal” questions of negligence under particular circumstances — i.e., a highly politicized debate that turned on whether or not the judge liked juries in the particular context.

But I am less committed to this view of Devin’s and Gorsuch’s proposed standard for the NDD: Maybe such a doctrine is crisp enough to anchor a stable coalition on SCOTUS. I emphasize only that, without such clarity, it is unlikely that any revival of the NDD will last very long or have any important effects on the administrative state.

Posted by: Rick Hills | Jun 25, 2019 3:54:13 PM

Any coalition is not under as much threat by "mushy doctrine" as Rick suggests. The reason why is because there is the first order problem of deciding whether a particular case involves that doctrine to begin with. Trump vs HI is an example. Even though the litigants may want to frame the case as a "non-delegation case" there are obvious alternative grounds for upholding the Trump order; the court doesn't have to take the non-delegation question if it doesn't want to.

Another way to think about this issue is that non-delegation only becomes "mushy" and "hard" if one is an Academic. The court isn't filled with Academics; it is filled with political sausage makers.

Posted by: James | Jun 25, 2019 2:05:22 PM

Concerning mixed questions of fact, I do think that one must be careful that the agency is only deciding whether facts meet the standard set by Congress concerning if currently the facts do or do not meet such standard. Allowing the executive to set what future acts by people will or will not meet the standard set by Congress seems, to me, to cross into lawmaking.

Posted by: Devin Watkins | Jun 25, 2019 10:51:02 AM

I actually agree with your argument, just not your premise. I think the rule that is being proposed by Justice Gorsuch is actually quite a bright line rule. We focused on such a "bright-line" rule in our brief to the Court: https://www.supremecourt.gov/DocketPDF/17/17-6086/48696/20180530154406207_Gundy%20v.%20United%20States%20final.pdf. And, looking at Gorsuch's opinion, he seems to have adopted our end conclusion.

The idea is that questions of law cannot be delegated, while questions of fact can be delegated. Mixed questions of law and fact are a little more complex, but likely the standard that has to be met must be set by Congress, but likely an Agency can determine if a given circumstance meets that standard.

This is about as clear of a line as you can get in a non-delegation context. Questions of law/fact/mixed are commonly decided by judges in a very clear way that cannot be easily avoided. They are often used to determine if the judge or jury decides. But those are facts about a specific event, rather than facts about the world that are independent of any event.

Now if you look at Gorsuch's opinion you will see exactly this distinction. "once Congress prescribes the rule governing private conduct, it may make the application of that rule depend on executive fact-finding." Schechter was unconstitutional as "it did not announce rules contingent on executive fact-finding." Panama was unconstitutional as the "statute did not call for the executive to 'ascertai[n] the existence of facts to which legislation is directed.'" In Hampton, "The President's fact-finding responsibility may have required intricate calculations, but it could be argued that Congress had made all the relevant policy decisions." And SORNA is unconstitutional as "Far from deciding the factual predicates to a rule set forth by statute, the Attorney General himself acknowledges that the law entitles him to make his own policy decisions."

This is a very clear line in the sand that can be easily applied to a variety of other contexts. Some of these will benefit conservatives, and some will benefit liberals, but it can be done consistently without a "I'll know it when I see it" kind of mushy test.

Posted by: Devin Watkins | Jun 25, 2019 10:47:48 AM

Asher, if I understand you correctly, then I think I agree with your basic point, which I would re-state as follows:
“You might only need a peppercorn of loyalty to legal principle (in this case...for that principle to be durable on a closely and ideologically divided bench. But that legal principle would have a much easier time if it were embodied in crisp, clear precedents that allay justices' concerns about precedents' being manipulated for partisan reasons.” I said as much two years ago here: https://prawfsblawg.blogs.com/prawfsblawg/2017/05/is-scotus-transcending-partisan-voting-in-the-race-districting-decisions.html

So, yes, of course, four conservatives, four liberals, and one doctrinal purist could consistently enforce a doctrine across liberal and conservative cases. But you still need a doctrine, right? Color-blindness supplied a crisp and simple rule for Thomas (as I noted in the post just cited). What clear rule plays such an anchoring role for Gorsuch?

Posted by: Rick Hills | Jun 24, 2019 6:21:15 PM

Asher gets it. Hills' logic only makes sense to hold together a 5-judge coalition. It can't hold together a minority coalition.

Suppose we get to a situation where Thomas, Gorsuch and Kavanaugh are voting against all improper delegations, Alito is voting against all improper delegations unless they serve Republican interests, and Roberts is voting against all improper delegations unless striking them down would be too controversial. Net result - improper delegations get struck down unless it's too controversial, or serve Republican interests. It's not the ideal result for T, G and K, but they'd take it. So the "conservative" voting pattern is stable.

In such circumstances, the "liberal" coalition would be under tremendous pressure to crack.

Posted by: Salem | Jun 24, 2019 5:18:30 PM

I don't think that's responsive. His point is that this rule, once it gets off the ground in a single 5-4 case, doesn't need any stable coalition to support it. Liberal Justices could take advantage of it to strike down conservative delegations they don't like, even if some conservatives less attached to the rule than others "defect"; meanwhile, conservatives could use it to strike down liberal delegations. There's no reason whatsoever that once this rule, however mushy, becomes law, liberals would generally refrain from using it in cases where it would yield results they like because of their original opposition to the rule. Breyer and Ginsburg presumably still think Shaw v. Reno and its 90s sequelae are wrong, having dissented in all of the latter until they finally drew O'Connor's vote in Easley, and Sotomayor undoubtedly thinks those cases are wrong, but they are very happy to vote to apply Shaw to collaterally attack what they view as Republican gerrymanders. Those cases too, of course, adopted an infamously mushy standard (namely, predominant motive); nevertheless, racial-gerrymander plaintiffs have lost only one of the nearly ten cases that have come to the Court, even with massive conservative defections in liberal-favoring challenges to districting maps from the original conservative coalition that created the rule. So long as just one true believer from the original coalition (thus far, Thomas) will continue to neutrally support the doctrine, it will keep going.

Posted by: Asher | Jun 24, 2019 4:34:01 PM

Salem writes:

“This is a strange argument, because it takes for granted the resilience and coherence of the pro-delegation coalition. Why wouldn't they be equally vulnerable to defection?”

Good question — albeit one that, I had hoped would have been answered by the title of my post. The cause of defection from doctrinal coalitions is “mushy doctrine”: Mushy doctrine does not provide a stable focal point around which a constitutional coalition can take political cover and resist defection when a favored cause is threatened by the doctrinal rule in a particular case. By contrast, a crisp, hard-edged rule allows a judge to say to the rank-and-file in their attitudinal faction, “it is true that our cause will take a hit in this case, but you can count on the doctrine helping us out later in a later case, because the doctrine is clear enough that, by signing this opinion, all of the doctrinal coalition members will have committed themselves irrevocably to following the doctrinal rule later even in a case where the doctrine gores their ox.”

The traditional NDD doctrine is essentially a brand of Thayerism: The Court is supposed to bend over backwards to defer to the Congress’ choice of a vague statutory standard. That’s a pretty bright-line categorical rule: It admits of no balancing, no exceptions, no provisos that a coalition member could use to weasel out of the doctrinal bargain. So Kagan can take shelter in the clarity of the rule by pointing to a broad variety of precedents in the past in which the Thayerist version of the NDD has been used to protect “liberal” outcomes (say, price controls during WWII in Yakus) and credibly promise the Left portion of the bar and the professoriate that Thayerism will still be there later when they need it.

Put another way, what “political question” doctrine calls “judicially manageable”doctrine can be re-=described as politically manageable doctrine: Judicial manageability is simply the idea that the rule of law is the law of rules the violation of which is so easy to detect that judges who have signed on to those rule will be ashamed to defect from them in an opportunistic way.

Posted by: Rick Hills | Jun 24, 2019 2:05:14 PM

This is a strange argument, because it takes for granted the resilience and coherence of the pro-delegation coalition. Why wouldn't they be equally vulnerable to defection?

You are right that a revived non-delegation doctrine could be put to "liberal" ends. But that very fact will tempt certain "liberals" to defect now to join the anti-delegation coalition. Don't you think Kagan must be pretty embarrassed having to write opinions like Gundy? Suppose a loose, fragile coalition of anti-delegation and "conservative" justices strikes down a couple of extreme "liberal" delegations. Won't Kagan be tempted to join the non-delegation justices, to make sure that the principle gets applied more across the board? And what then?

Once an anti-delegation coalition gains momentum, it will snowball. They don't need a permanent majority as long as they can opportunistically pick up votes on one side or the other. They can strike down the Clean Air Act and the Refugee Act, with different partners. And then, because the principle is being applied across the board, it will embed itself, and Breyer will be the one writing angry dissents about how will no-one shed a tear for the poor beleaguered bureaucrats?

Will that happen? I'm not betting on it. But it's far more of a possibility than this post allows.

Posted by: Salem | Jun 24, 2019 1:18:46 PM

Just another correction:

"You don't want" of course,not:"you don't won't".


Posted by: El roam | Jun 23, 2019 3:02:58 PM

Just correcting my comment down there:

Should be "to live elsewhere" of course,not "to leave elsewhere".


Posted by: El roam | Jun 23, 2019 1:17:03 PM

Interesting, but the respectable author of the post, is presenting a sort of panoramic view, without really going down to details and closely watched and analyzed illustrations. Of course, such stances of judges can't be consistent over time or the long run. Societal shifting, cultural shifting, one administration substitute the other. International law is to be applied, International and Geo political occurrences harm us all, and so forth..... Yet, what counts, is:

The absolute reasoning. Absolute transparency. Can one suggest, that judges are not totally committed to the latter ?? Can one suggest that their decisions is not based upon clear and transparent legal and constitutional basis. It would be very hard to prove differently.

And bunch of endless illustrations can be brought her, but, Trump v. Hawaii is a good one, I quote:

More fundamentally, plaintiffs and the dissent challenge the entry suspension based on their perception of its effectiveness and wisdom. They suggest that the policy is overbroad and does little to serve national security interests. But we cannot substitute our own assessment for the Executive’s predictive judgments on such matters, all of which “are delicate, complex, and involve large elements of prophecy.”

End of quotation:

Such citation, bears almost everything. There is flip flop here, but the court observes the legality and constitutionality of the action. Not the wisdom of it. It is not its duty ( generally speaking). So, what to do ? The so called " administrative state " is very complicated matter. But finally, it does serve the will of the people. For the will of the latter, vary constantly. That is the disadvantage of democracy. We don't deal with professional governance, but laymen. The only professional branch, is the judicial branch. Yet, it is subjected to the laws and the vote and the action of the sovereign(the people).

So, the very nature of the democratic state, is to constantly flip flop on its head and legs. An opposition would take down any government, even if the latter, is well functioning. Trust your Christ, you don't won't to leave elsewhere in totalitarian regime, with " incredible " uniformity.


Posted by: El roam | Jun 23, 2019 1:08:56 PM

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