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Two Sort-Of Originalist Outcomes
Michael Ramsey

Yesterday the Supreme Court decided, among other cases, Lucia v. SEC and South Dakota v.  Wayfair, Inc.  Neither majority opinion (by Justices Kagan and Kennedy, respectively) is originalist.  But arguably the results are.

In Lucia, the Court held that the Securities and Exchange Commission's Administrative Law Judges are officers of the United States and thus must be appointed in accordance with the appointments clause.  The majority said the outcome was required by the prior decision in Freytag v. Commissioner (1991) [aside:  I have experience with Freytag.  It's too much of a mess to require anything, although it does support the majority].  Justice Thomas concurred, joined by Justice Gorsuch, relying on Jennifer Mascott's originalist account of "officers" [congratulations to Professor Mascott]: 

While precedents like Freytag discuss what is sufficient to make someone an officer of the United States, our precedents have never clearly defined what is necessary. I would resolve that question based on the original public meaning of “Officers of the United States.” To the Founders, this term encompassed all federal civil officials “‘with responsibility for an ongoing statutory duty.’” NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (THOMAS, J., concurring) (slip op., at 4); Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443, 564 (2018) (Mascott).

The Founders likely understood the term “Officers of the United States” to encompass all federal civil officials who perform an ongoing, statutory duty—no matter how important or significant the duty. See Mascott 454. “Officers of the United States” was probably not a term of art that the Constitution used to signify some special type of official. Based on how the Founders used it and similar terms, the phrase “of the United States” was merely a synonym for “federal,” and the word “Office[r]” carried its ordinary meaning. See id., at 471–479. The ordinary meaning of “officer” was anyone who performed a continuous public duty. See id., at 484–507; e.g., United States v. Maurice, 26 F. Cas. 1211, 1214 (No. 15,747) (CC Va. 1823) (defining officer as someone in “‘a public charge or employment’” who performed a “continuing” duty); 8 Annals of Cong. 2304–2305 (1799) (statement of Rep. Harper) (explaining that the word officer “is derived from the Latin word officium” and “includes all persons holding posts which require the performance of some public duty”). For federal officers, that duty is “established by Law”—that is, by statute. Art. II, §2, cl. 2. The Founders considered individuals to be officers even if they performed only ministerial statutory duties—including recordkeepers, clerks, and tidewaiters (individuals who watched goods land at a customhouse). See Mascott 484–507. Early congressional practice reflected this understanding. With exceptions not relevant here, Congress required all federal officials with ongoing statutory duties to be appointed in compliance with the Appointments Clause. See id., at 507–545. Applying the original meaning here, the administrative law judges of the Securities and Exchange Commission easily qualify as “Officers of the United States.” These judges exercise many of the agency’s statutory duties, including issuing initial decisions in adversarial proceedings. See 15 U. S. C. §78d–1(a); 17 CFR §§200.14, 200.30– 9 (2017). As explained, the importance or significance of these statutory duties is irrelevant. All that matters is that the judges are continuously responsible for performing them.

In short, the administrative law judges of the Securities Exchange Commission are “Officers of the United States” under the original meaning of the Appointments Clause. They have “‘responsibility for an ongoing statutory duty,’” which is sufficient to resolve this case. SW General, 580 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 4). Because the Court reaches the same conclusion by correctly applying Freytag, I join its opinion.

I agree.  Professor Mascott's article is very persuasive on this point.

In Wayfair, the Court held that the dormant commerce clause does not bar states from collecting taxes on sales made by out-of-state companies to in-state buyers, overruling Quill Corp.  v. North Dakota (1992) and National Bellas Hess, Inc. v. Department of Revenue of Ill. (1967).  Justice Thomas filed a brief concurrence, basically apologizing for his vote with the majority in Quill, and commenting: 

a quarter century of experience has convinced me that Bellas Hess and Quill “can no longer be rationally justified.” 504 U. S., at 333. The same is true for this Court’s entire negative Commerce Clause jurisprudence. See Comptroller of Treasury of Md. v. Wynne, 575 U. S. ___, ___ (2015) (THOMAS, J., dissenting) (slip op., at 1). Although I adhered to that jurisprudence in Quill, it is never too late to “surrende[r] former views to a better considered position.” McGrath v. Kristensen, 340 U. S. 162, 178 (1950) (Jackson, J., concurring).

Justice Gorsuch also concurred briefly, observing:

... My agreement with the Court’s discussion of the history of our dormant commerce clause jurisprudence, however, should not be mistaken for agreement with all aspects of the doctrine. The Commerce Clause is found in Article I and authorizes Congress to regulate interstate commerce. Meanwhile our dormant commerce cases suggest Article III courts may invalidate state laws that offend no congressional statute. Whether and how much of this can be squared with the text of the Commerce Clause, justified by stare decisis, or defended as misbranded products of federalism or antidiscrimination imperatives flowing from Article IV’s Privileges and Immunities Clause are questions for another day. See Energy & Environment Legal Inst. v. Epel, 793 F. 3d 1169, 1171 (CA10 2015); Comptroller of Treasury of Md. v. Wynne, 575 U. S. ___, ___–___ (2015) (Scalia, J., dissenting) (slip op., at 1–3); Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 610–620 (1997) (THOMAS, J., dissenting). Today we put Bellas Hess and Quill to rest and rightly end the paradox of condemning interstate discrimination in the national economy while promoting it ourselves.

Again, I agree.  An originalist account of the dormant commerce clause generally is a challenging project.  My sometime co-author Brannon Denning has convinced me that there may be something to be said for its anti-discrimination principle.  But as Justice Gorsuch says, the Court-created Quill rule was the opposite of an anti-discrimination principle; it required states to treat out-of-state sellers better than in-state sellers (by not taxing them).

Thus both cases are part of the project of gradually bringing constitutional law back to the Constitution's original meaning.  First, both majority opinions depended on the votes of Justices Thomas and Gorsuch.  Second, Thomas and Gorsuch made clear that their votes arose from an originalist assessment.  And third, I suspect that at least some of the other Justices were influenced by the originalist foundations of the winning arguments, even if the majority opinions were more doctrinal in nature.  One can see these cases as involving what Randy Barnett has called the "gravitational force of originalism."