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05/25/2017

Larry Solum on Leah Litman on Novelty and the Constitution
Michael Ramsey

At Legal Theory Blog, Larry Solum has extensive comments on a post by Leah Litman on the Take Care Blog.  From the introduction: 

Leah Litman has a very good post entitled The CFPB Is (Allegedly) A New Kind of Agency. Who Cares? (Part I) on Take Care Blog.  Here is an excerpt:

In an article that was just published in the Duke Law Journal, I explained why that’s wrong—that is, why a federal statute’s novelty is not an indication that the statute is unconstitutional, and why it shouldn’t be treated as one. The CFPB’s structure is established by statute, so a decision holding the CFPB’s structure unconstitutional amounts to holding unconstitutional the part of the statute that establishes the CFPB’s structure.

The novel feature of the CFPB that Litman discusses was described by the DC Circuit as follows:

[N]o independent agency exercising substantial executive authority has ever been headed by a single power. * * * Until now.

Litman's post discusses various possible rationales for the proposition  that the novelty of a statute is a reason to consider the statute unconstitutional.  One of these rationales has a strong connection to originalism.  This is the "thus far but no farther" rationale for treating novel or unprecedented departures from original meaning differently than departures that are supported by longstanding precedent the reversal of which is simply impracticable.

And in conclusion:

As should now be apparent, Litman fundamentally misunderstands the "thus far but no farther" version of the novelty argument.  Litman is right, there is no "magic" about novelty.  Novelty is important because it allows us to draw a line between violations of the original meaning that must be tolerated (at least in the short to medium run) for pragmatic reason and constitutional violations that can be redressed without creating enormous disruption.

It is entirely understandable that Litman would make this mistake.  Like most constitutional scholars (who reject originalism), Litman takes the Dynamic New Deal Settlement for granted.  Given this constitutional gestalt, novelty has no constitutional significance.  Indeed, the very idea of the Dynamic New Deal Settlement is that novel practices should be accommodated by adjustments in constitutional doctrine.  The alternative constitutional gestalt rejects this assumption.  The understanding expressed by Frozen New Deal Settlement is precisely that novelty is crucially important if and only if the novel assertion of government power is inconsistent with the original meaning of the constitutional text.  "Thus far but no farther" represents an originalist second best--a rule that aims preserves the constitutional status quo.  The normative justification for adhering to the second best is based on the normative case for originalism itself--a topic I have addressed in The Constraint Principle: Original Meaning and Constitutional Practice.

(See also this article [by me] that suggests something like the "thus far but no further" idea as a way of dealing with nonoriginalist precedent).