Thomas J. Graves, a former member of WLF‘s Legal Policy Advisory Board and a pro bono contributor to its Legal Studies Division publications on federalism and constitutional questions, retired after 40 years as a Washington D.C. attorney in a career devoted in substantial part to legal reform initiatives pertinent to this post.
“A Republic madam, if you can keep it.”
This was Dr. Benjamin Franklin’s admonition to his friend’s question on what type of government the Founders had devised inside Independence Hall as he emerged from the debates in the summer of 1787.
Under the United States Constitution, power resides in the citizenry; the republican form requires three branches of government which are bound by separation of powers that serve as a check on the usurpation of each’s proper authority, or its abrogation; the rule of law is supreme; individual liberties are protected by the rule of law from arbitrary governmental restraints; and the rule of law must have viable enforceability.
Serious threats to sustaining the republican design and protecting individual liberties are growing from arbitrary actions of the protean federal Administrative State and proliferating state legal regimes that pile on more regulation and litigation. Yet this erosion of the supremacy of the law can be reversed. The Constitution has viable tools unused, underused, or misapplied, which can correct much of this wayward trendline threatening the integrity of the federalism construct: Congress and the judiciary need to provide the force those tools deserve to serve their intended purpose, since the rule of law must contain the elements of subject, scope, and sanction/enforceability. Otherwise, it is reduced in practice to a philosophical statement or principle, lacking adhesion.
The coordinate branches of government at the state and federal level must understand their limits of power but also their affirmative duties to protect and exercise their functions: the legislative branch must not delegate away its authority; the executive branch must not arrogate authority from the legislature or otherwise exceed its statutory powers; and for the rule of law to be supreme, courts must be available to enforce republican norms and citizens’ rights or privileges against governmental abuse. The carefully structured checks and balances are the necessary brakes and the grease maintaining this extraordinary 234-year running constitutional flywheel.
Specifically, Congress and the courts should move to “keep a Republic” as Franklin suggested through meaningful corrective actions that will: 1. Revive two critical constitutional mandates and give them the full force of law; 2. Adhere to the explicit text of the Constitution and Supreme Court edict to ensure judicial impartiality; and 3. Establish a set of principles to enforce separation of powers protecting against the illegitimate delegation of legislative authority to the administrative state; and the unlawful arrogation of power by agencies and the President.
Reviving Two Critical Constitutional Mandates
In the Constitution, the Founders guaranteed citizens a republican form of government through Article IV. Section 4, characterized simply as the Guarantee Clause. The Constitution also perfected a federal republic with federal laws supreme but with powers not specified to the national government reserved to the states and with all privileges and immunities retained by the citizens of the “several states.”
While the Framers spelled out the republican form of the federal government in considerable detail, states were free to form their individual types of republican government without a constitutionally prescribed framework. Yet according to the Federalist Papers and the congressional actions pertaining to states gaining admission, and re-admission following the Civil War, certain elements would be crucial to a state qualifying with a republican government, particularly: representation by election to fixed terms; all power vested in the people; separation of powers; deliberation; impartiality in the exercise of authority in the public interest; accountability; and the ability of the people to change their form of government.
To date, the U.S. Supreme Court has wrestled with whether enforcement of the Guarantee Clause can occur in court, i.e., whether such authority is vested solely with Congress (a political question) and is not justiciable. For most of our history, the Court presumed it stood outside its realm. Lately, that question has been reopened but remains undecided. Without justiciability, enforcement of the Guarantee Clause languishes in the absence of a viable way to curb states’ departure from their mandate. Congress should consider clarifying that state citizens can enforce the Guarantee Clause as an imperative right under the Constitution. The supremacy of the law cannot be protected without states sustaining the fundamental form of government on behalf of the people.
The Privileges or Immunities Clause of the Fourteenth Amendment preserves citizens’ privileges and immunities against federal intrusion. Until very recently (two ground-breaking opinions by Justice Thomas), courts have ignored citizen enforcement against state infringement of their privileges or immunities, thanks in part to the 150-year-old Supreme Court opinions in the so-called Slaughterhouse Cases. The Court’s decisions in those cases abruptly departed from Congress’ clear intent directly after the Civil War to incorporate citizen enforcement on behalf of newly liberated slaves so the states could not deprive or erode their substantive liberties as full citizens. For all citizens, citizen enforcement is intended to fill a gap left by the Constitution as a necessary enforcement counterpart to the Privileges and Immunities Clause: the original acting as a constraint on federal power and the later-added companion clause serving a safeguard against abuse of fundamental rights by states. Under a republican form of government, all power resides with the citizens of the state, as said, and cannot be undermined by the state for popular political causes or even public policy expediency.
Revival of citizens’ ability to enforce the Privileges or Immunities Clause could put to rest longstanding judicial and political debates over whether the Fourteenth Amendment’s Due Process Clause confers substantive rights, or merely guarantees procedural protections. Privileges or Immunities Clause enforcement could protect citizens’ specified substantive rights, and the Due Process Clause would provide the procedural rights in the manner the Framers intended.
Were Congress to pass a measure reasserting these two fundamental constitutional requirements, which would logically work in tandem, much of what is unfairly hurting businesses in states and violating citizens’ privileges or immunities could be subjected to a prism of constitutional scrutiny. The Privileges or Immunities Clause, with its intended purpose so recognized, would serve as an effective enforcement vehicle to ensure that citizens of all states enjoy a republican form of government. In the process, it could cure many systemic ills plaguing our nation.
For example, affected parties could more successfully challenge draconian “direct-democracy” initiatives and referendums as constitutionally suspect. These “popular” propositions, such as California’s longstanding Proposition 65, tend to grant unfettered delegations to the executive, and even private enforcers, with wholly inadequate standards to maintain accountability; and, thereby, they are a clever illegitimate end-run on separation of powers, deliberation, and representative government. Congress can clarify that a state’s deviation from its obligation to maintain a republican form of government is legally assertable to protect against what’s been happening in California and many others emulating the Golden State. The arbitrary nature of these directly passed measures also threaten citizens’ privileges or immunities. Congress can act to explicitly provide jurisdiction for such challenges.
Another ripe target for citizen enforcement of the Guarantee and Privileges or Immunities Clauses is the growing trend of state and local governments attempting to regulate business conduct through public-nuisance litigation. A national network of wealthy plaintiffs’ lawyers has been pitching attorneys’ contingent-fee services to government officials as “no cost to the state” actions. Many state attorneys general and municipal prosecutors have hired these private lawyers and armed them with the mantle of public authority. Government lawsuits evade several key constraints that private litigators face, such as statutes of repose and limitations. Such advantages help the private attorneys strongarm settlements out of businesses for alleged harm caused by their products or past activities in the hundreds of billions of dollars. These “restitution-styled” funds dedicated for a public purpose, e.g., old lead paint removal in public housing, arguably constitute a massive indirect state tax. These schemes fail the required republican government elements of a representative government, proper delegation, and accountability. To date, though, challenges to these arrangements as standardless delegations of public enforcement powers typically fail; state courts are inclined to lend credence to the facial argument that public enforcers retain ultimate control over these cases, including the ability to withdraw them. This claim is a canard, however, because outside law firms are contractually able to bill the public their time spent prosecuting the case to that point, a figure running as high as scores of millions of dollars.
Ensuring Judicial Impartiality
For U.S. corporations, the aggregate “litigation tax” that results from all manners of product liability suits, both public and private party generated, has been tabulated in the trillions of dollars. And this litigation tax, while increasingly being imposed to some extent overseas, has been a U.S. hallmark for more than 40 years, profoundly handicapping our nation in overall business research and development, innovation, and trade, while raising the price of ordinary and necessary products. Perpetuating this economic drain is an Iron Triangle of plaintiffs’ attorneys, public-official allies, and “swamp district” state tribunals, the latter bearing this moniker for entering enormous anti-commercial judgments by admitting “experts” offering speculative scientific or technical theories untethered to material facts, otherwise applying elastic rules of evidence, and entertaining theories of law that sidestep proof of causation.
Congress took the first major step in judicial reform to restore fairness, integrity, and efficiency to this systemic problem by passing the Class Action Fairness Act of 2005. (CAFA) This measure significantly expanded federal diversity jurisdiction, conferring subject matter jurisdiction to federal courts over a majority of class and mass action lawsuits and changing the rules for removal from state court to accommodate this transfer. The central feature was to permit “minimal” jurisdiction, a departure from the ironclad requirement that to gain removal to federal courts, parties must demonstrate complete diversity. The rationale for passage was to give corporate and other defendants the fairness of the built-in impartiality of federal courts and the advantages of Federal Rules of Evidence which generally are stricter and are designed to safeguard against admitting into evidence experts’ untestable theories and methodology.
In accordance with the express language of the Constitution, Congress should consider amending the Judiciary Act of 1789 to codify Article III, Section 2. The amendment could state that should any party be from another state, any action for damages exceeding a certain amount can be removed to the appropriate federal court according to the laws for such removal. Such a reform would expand CAFA removal to a sizable majority of cases that don’t currently fall under the law, but which equally merit its economic and equitable benefits.
CAFA has proven a boost for expediting legitimate large-scale multi-party product liability and toxic tort claims and dealt a serious blow to illegitimate strike suits brought by plaintiffs’ attorneys in friendly state courts without the checks of life-tenured federal judges and their stricter rules of evidence. Restoring in full measure the actual language of the Constitution, and the Founders’ intent that state bias be curtailed as a potential factor in a lawsuit wherein any party is not of that state, is paramount to fixing the current litigation tax crises.
Extending the thrust of CAFA to all regular cases tracks both with the guarantee of a republican form of government and the Constitution’s federalism construct geared to eliminate state burdens imposed on out-of-state commerce that so commonly occurred under the old Articles of Confederation. Unfortunately, Chief Justice Marshall, in an 1806 ruling, (Strawbridge, a decision he reputedly regretted), held that all parties to a dispute must be diverse to remove to federal court; otherwise, it could not take subject matter jurisdiction. This maxim defied the express language of the Constitution and the Founders’ intent evidenced in the Constitutional Convention’s Committee on Details’ note. In practice, until the modern day, the jurisdictional requirement of complete diversity was rarely an issue.
But with the advent of modern national and international corporations, heavily capitalized plaintiffs’ lawyers, and their cozy political alliances, this “regrettable decision” has morphed into one of the crucial obstacles to fair treatment, efficacious justice, and economic security for companies, their employees, and their shareholders. (As well, in cases targeting deep pocket out-of-state corporations, small in-state companies often find themselves held hostage as co-defendants in these protracted cases as a tactic to defeat diversity and removal to federal courts.)
As noted above, state courts’ generally lenient approach to admitting expert evidence of questionable relevance and reliability provide plaintiffs with a considerable advantage in litigation against businesses. The U.S. Supreme Court, starting in the 1990s with the notable Daubert decision (and reiterated in two subsequent related decisions), directed all trial judges to exercise their “gatekeeper” responsibility to protect jurors from entertaining such prejudicial/dispositive witness opinion. Too many state judges, and even some federal judges, permit experts to influence jurors by propounding theories that have not (or cannot) been tested sufficiently and are not analyzed with application to the facts in the case.
In June 2022, the Committee on Rules of Practice and Procedure voted unanimously to amend Federal Rules of Evidence (“FRE”) 702. The amendments will, inter alia, require preponderance of the evidence as the standard and require that the expert’s opinion be tested according to reliable methodology that fit the facts of the case. The Judicial Conference of the U.S. will soon consider and vote on these changes. If approved, The Judicial Conference submits the measure to the U.S. Supreme Court. If the Court approves, and Congress takes no negative action, Rule 702 amendments go into effect December 1. This amendment, along with the proposed alteration to defendants’ ability to remove litigation to federal court, could initiate a sea change in civil litigation.
Enforcing Separation of Powers; Correcting Non-Delegations and Runaway Arrogation of Power by the Executive Branch
Since the New Deal, the federal Administrative State has grown alarmingly in size and power. After years of discussion and debate in all three branches of government, some of which focused on the judiciary’s role in enabling this growth, the opportunity seems to be at hand for the Supreme Court to reassert the most fundamental structural feature of our Founders’ constitutional republic—the separation of powers. Under the Vesting Clause of Article I, Congress alone is vested with the legislative power and Congress cannot delegate that authority in any way which undermines separation of powers.
The increasingly complex, technical, and intertwined nature of our modern nation, the tendency to regulate virtually every detail of our society, the desire to set up safety nets and to eliminate risk, and the mystical-like faith placed in the hands of scores of thousands of entrenched technocrats, are all contributing factors to a burgeoning Administrative State. Like the parasitic plant in the “Little Shop of Horrors,” it seems to scream “FEED ME!” with an insatiable appetite to consume power unto itself, growing with the “life-blood” drained from the other branches and individual liberties.
The judicial architects of the New Deal shrewdly recognized that the so-called Lockner era of commercial property-rights protections (dubbed “substantive due process”) would have to be derailed as an obstacle to nationalizing a host of economic regulatory activities that progressives believed were imperative in dire economic times, regardless of legitimate constitutional strictures. As a testament to their sustained success, the basic prohibition on illegitimate delegation and/or usurpation of the legislative power (“non-delegation doctrine”) has been a dead letter save for two lone exceptions involving two provisions of one statute (The National Industrial Recovery Act of 1935). Conservative legal scholars have laid the groundwork for judicially reestablishing limits on regulatory agencies. For instance, a noteworthy treatise by Columbia Law Professor Philip Hamburger traces instructive jurisprudence history, notably the English 17th century constitutional period limiting the tyranny of the administrative fiat, to suggest that the Court should reject as unconstitutional virtually any statutory grant of authority to adopt legally binding regulations regardless of whether it contains a reliable “intelligible principle.”
Simply put, the Court has granted administrative agencies a virtual free pass via permissive interpretation of Congress’s delegation of authority as well as forgiving levels of “deference,” both of which allow regulators to leverage loosely structured legislation drafted with significant textual ambiguities. On the question of delegation, the longstanding controlling principle employed by the Court, as referenced, is to evaluate whether Congress provided in the statute an “intelligible principle” to direct and constrain executive action. Agencies claim to satisfy this threshold principle by setting limits on business conduct that are “reasonable and necessary” for workplace chemical exposure; or that “pose a significant risk or harm” for environmental toxic chemicals; or to “regulate in the public interest;” or air pollution controls “requisite to protect the public health” with an “adequate margin of safety.” (e.g., Industrial Union Development, AFL-CIO v. API, Inc.)
The judicial doctrine of deference to regulatory actions, based in two Supreme Court decisions from 1984 and 1996, respectively, have together rendered the non-delegation doctrine moot. Courts apply the first type of deference, Chevron deference, to agency interpretations of federal statutes. Even when agencies’ interpretations are vague or clearly deficient, some courts have taken it upon themselves to infer “better” interpretations when upholding regulatory authority. Courts apply the second type of deference, Auer deference, when agencies interpret (“cure”) the ambiguities they thereafter confront in their own rulemaking.
Several Supreme Court justices are finally signaling a significant movement away from runaway discretionary executive authority. Justice Gorsuch has expressed that these overly permissive standards for agency deference have “gained a life of their own,” unmoored from any traditional understanding of the nondelegation standard so evident in the Constitution. Joined by Chief Justice Roberts and Justice Thomas in a notable recent dissent, he assailed the Attorney General’s actions in enforcing a section of a sexual predator statute as “unbounded” policy choices with “profound consequences.” As part of his dissent, he set forth what he believes tracks with the Framers’ intent for permissible congressional delegations, terming them “important guiding principles:” 1. Although Congress must “make the policy decisions when regulating private conduct, it may authorize another branch to ‘fill up the details;’” 2. Although Congress must “prescribe a rule governing private conduct, it may make application of that rule depend on executive fact finding;” and 3. Congress may assign the executive and judicial branches certain non-legislative responsibilities.” (Gundy v. U.S.)
In a subsequent case involving OSHA’s “emergency rulemaking” under an obscure statutory provision—which would have mandated the Covid-19 vaccine for all U.S. employees—the Court stayed the action, based on separation of powers as the foundational backdrop. The Court relied on the “clear statement” maxim to describe the “major questions” doctrine: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” OSHA’s authority to set “workplace safety standards” was far exceeded by the breath of its vaccine mandate and the lack of precedent for public health mandates showed it could not be operating as an agent of delegated authority, according to the Court. (NFIB v. OHSA).
As has occurred for generations, across the full range of the administrative empire, OSHA peremptorily presumed it could vastly expand the scope of its authority and its consequences for those persons and activities it sought to regulate. (In this instance, and other examples, apparently to fulfill a broader political objective.) But the NFIB opinion recited Justice Scalia’s memorable aphorism that “Congress does not hide elephants in mouseholes” in rebuking the agency. In that 20-year-old case, which involved an EPA air standard rulemaking, American Trucking Ass. v. EPA, Justice Scalia also opined that “an agency cannot cure an unconstitutionally standardless delegation of power.”
Considering the Court’s use of a major questions inquiry in recent cases, some commentators have opined that this inquiry is a limiting cannon of statutory construction and could be an alternative to courts’ search for an intelligible principle in a statute. Justices reluctant to wake the hibernating non-delegation doctrine will continue to criticize the major questions inquiry as an inherently subjective one.
Justice Gorsuch, however, appears ready to take the issue head-on. In a breakthrough concurrence in the OSHA vaccine case, joined by Justices Alito and Thomas, he puts forth a new unified separation-of-powers doctrine whereby the non-delegation doctrine protects the legislative power from intentional overly broad delegations of authority by Congress, and the major questions doctrine protects the legislative power from unintentional delegations of authority.
Justice Gorsuch has set the alarm clock to awaken the non-delegation doctrine. He is activating Justice Rehnquist’s concurrence in the 1980 bellwether decision, Industrial Union Dept., AFL-CIO v. American Petroleum Institute, involving EPA setting restrictive limits for benzene without congressional standards, wherein he argued that separation of powers requires Congress itself to decide major questions rather than delegating them to the executive branch. Justice Gorsuch’s approach does not go as far as to embrace the argument that any delegation to the executive branch to promulgate legally binding rules is unconstitutional. But, buttressed with his three guiding principles for regulating private conduct and combined with Justice Scalia’s rule that an agency cannot cure a standardless delegation of power, his new construct could help move the Court toward restoring the republican notion.
Emerging from the proverbial cave: a grant of certiorari on May 1, 2023, in Looper Bright Enterprises Inc. v. Raimondo. Looper Bright Enterprises challenged a NOAA fisheries rule that requires Atlantic herring vessels to pay up to a fifth of their proceeds to hire third-party monitors that collect data for the agency. The Petitioner’s brief posed the Court with two questions; notably, the Court limited its grant to the specific question of whether the Court should revisit its 1984 decision (involving the Clean Air Act) that established the Chevron doctrine. Justice Jackson recused because of her presence on the D.C. Circuit when that appeals court decided the case, so an eight-member Court will hear arguments this coming fall.
The Court’s grant in Looper Bright raises many intriguing questions. Will it serve as the platform for Justice Gorsuch to establish from his NFIB dictum a new dual-tenet framework (“intentional non-delegation/unintentional major questions”) perfecting with his own “filling in of the details” from his Gundy opinion? Might he thus lead a major ruling to ensure that agency deference is no longer able to have its own life; but, rather, it is corralled intelligently, forcing Congress to uphold its responsibility to speak clearly with sufficient fundamental detail in its delegation, or have its wayward, ambiguous, onerous, unprecedented, disproportional authority vacated? Or will the Court’s decision be a disappointing “red herring” (puns intended) for true reformists; e.g., with more cautious justices depicting this a poor vehicle for throwing Chevron overboard altogether, coopting a plurality for a more modest ruling based on a “major questions doctrine” too tame to be meaningful? (Next session certainly is not far off for an answer to a question of enormous potential republican consequences, considering that the New Deal has been in power since 1933.)
Scrutinizing Arbitrary and Unreasonable Presidential Lawmaking
Unchecked, and often arbitrary, presidential lawmaking is yet another emerging threat to our republican system. Such lawmaking takes the form of executive orders, some issued in the guise of suspect national emergencies. In recent years, executive orders from presidents of both political parties have involved far-reaching and highly controversial public policy issues such as border security and climate change.
Article II imparts specific powers to the President for expediency and effectiveness with the assumption that the executive will use those powers responsibly and accountably to act decisively without the burden of unnecessary delay or deliberation. Congress can augment these powers via specific legislation, delegating to the President alone and/or with agencies’ new authority. Yet, Congress remains the solely-vested legislative body as supported by the courts. Like state initiatives and referendums that evade systematic deliberation by a representative legislative body, executive fiats designed to circumvent that process and escape judicial scrutiny undermine the republican system.
Courts, perhaps understandably, are reluctant to “second-guess the motives behind declarations of national emergencies,” as a federal district judge opined in a singular-styled challenge of a presidential order based on its unreasonableness (President Trump’s appropriation of funding for the Southwest border wall). Moreover, in two 1990s Supreme Court rulings involving first-instance challenges to executive orders, the Court declared that President was not subject to Administrative Procedure Act review (Franklin v. Massachusetts), and, in a unanimous ruling, rejected an ultra vires challenge involving final decisions by the White House on military base closings, stating that abuse of power in exercising discretion is “beyond the reach of judicial power.” (Dalton v. Specter).
When addressing this Supreme Court’s self-imposed empty space where there should be a judicial check, constitutional-law commentators, especially William Yeatman at the Pacific Legal Foundation, cite Founder and Justice James Wilson’s pertinent admonition that “every wanton act of authority over the citizen is wrong, unjustifiable, and tyrannical.”
The judicial branch should provide a check on executive lawmaking. A rational judicial-review construct might first determine as a threshold for taking review of executive action whether, akin to “political question” analysis, Article II commits such style of action to the president explicitly. For a court to appropriately defer, though, it should require the executive to provide “a reasoned explanation for presidential lawmaking including the purported constitutional basis” in each executive order. Further, if the order involves authority arguably provided by Congress, but not the Constitution under Article II, per se, courts could review for abuse of discretion with an implied presumption in favor of the claimed presidential authority. (Obviously, this would mean the Supreme Court would have to overrule Dalton.)
Conclusion
The rule of law must remain paramount in our republic. Without it, individuals are left without political or judicial redress and the public in general loses faith in a republican form of government as checks and balances erode. Tyranny by the majority or minority is tyranny alike. When the judicial branch cannot determine whether another branch of government applied a law erroneously, as Justice Louis D. Brandeis’ maxim goes, there is no supremacy of the law. And, whenever that occurs, the Guarantee of a republican form of government is jeopardized and the Constitution compromised. Yet, with a panoply of reforms along the lines delineated herein, this erosion could be reversed rationally and with fundamental fairness to support the Constitution’s design and sustain our magnificent republic.