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33 posts from November 2018


John Yoo & James Phillips on Originalism and the Religion Clauses
Michael Ramsey

At NRO, John Yoo & James C. Phillips: Religion and the New Supreme Court.

In the wake of the confirmation of Justice Brett Kavanaugh to the Supreme Court, religion will probably present the first test of the new Roberts Court’s commitment to the original meaning of the Bill of Rights. ...

Even though the main commands of the religion clauses may seem clear, the Supreme Court has distorted them for over a century. While the Roberts Court has done better than previous courts, it has yet to fully embrace their full, original meanings. ...

The new Roberts Court can begin to bring order to its protection of religion by flatly overturning two decisions: Lemon v. Kurtzman on the establishment clause and Employment Division v. Smith on the free-exercise clause. Justice Kavanaugh’s confirmation may now give conservatives enough of a Court majority to restore the First Amendment’s original meaning. It could do so with the support of Congress, which in 1993 sought to overrule Smith with the Religious Freedom Restoration Act, which passed the House or Representatives by unanimous voice vote, the Senate by 97–3, and was signed into law by President Bill Clinton.

And further on Smith:

The sad irony of Smith was that its author, Justice Scalia, failed to engage with the original meaning of the free-exercise clause. While normally persuaded by historical arguments, Scalia instead worried about cabining judicial discretion. With a denuded constitutional right to religious freedom, the religious have turned to statutory remedies, or characterizing the government practice as targeting religion. This has left a gaping hole in the First Amendment, one that the Court can now fill. ...

... [I]n place of Smith, the Court should return to the understanding of the clause in 1791. Those who drafted and ratified the Bill of Rights would have understood the right to free exercise of religion to protect religious practice, not just belief. They would have understood it to safeguard not just worship at church or religious practice in the home or in church, but also in public.

Of course, religious freedom — like any other individual right — does not exist unfettered. At the time of the Founding, the free exercise of religion was understood to be a natural right. According to John Locke, natural rights are limited by the law of nature, meaning they could not be exercised to injure the equal rights of others. James Madison, who authored the first draft of both the Constitution and the Bill of Rights, argued that the free exercise of religion must respect others’ private rights as well as the public peace. Free-exercise clauses in Founding-era state constitutions incorporated various exceptions to the right, such as practices “repugnant to the peace and safety of the State” or that injure others’ “natural, civil, or religious rights.” Only the strongest interests of the state or the rights of others could overcome the “unalienable right” of religious freedom.

These materials suggest that Smith incorrectly removed the privileged place of religious freedom. Contrary to the Court’s interpretation, the Constitution requires that most religious dissenters receive an exception to even neutral and generally applicable laws.

An approach rooted in history would flip the burden in the courts by requiring the state to show that a religious practice harms others or public safety, rather than today’s regime, which requires religious minorities to prove they deserve an exception because laws that appear neutral are actually targeting religious practices. Or, at the very least, the Roberts Court could overrule Smith and return to the free-exercise cases of the past, which held that government could infringe religious freedom only if it had a compelling interest and achieved that interest in the least restrictive possible way.


Timbs Oral Argument Followup
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Today's Supreme Court Oral Argument in Timbs v. Indiana Suggests Justices are Likely to Apply Excessive Fines Clause to State Asset Forfeitures.  

[Oral argument in the Timbs case] makes clear that the Court will almost certainly rule that the Excessive Fines Clause does indeed apply to the states. The justices also seem likely to rule that at least some state asset forfeitures violate the Clause. Both liberal and conservative justices seemed to support Timbs on these two issues, especially incorporation. It is hard to say, however, what - if anything - the Court will do on the question of how to define "excessive." The justices could well decide to leave it to the lower courts, at least for the time being.

On the incorporation question, all the justices who spoke seemed to favor incorporating this right against the states. This is not surprising, since it would be anomalous to incorporate nearly all of the rest of the Bill of Rights against states (including other parts of the Eighth Amendment, such as the Excessive Bail Clause), yet leave out the Excessive Fines Clause. The justices seem to agree on this fundamental point. As Neil Gorsuch put it in today's argument, "[w]e all agree that the Excessive Fines Clause is incorporated against the states." Similarly, Justice Brett Kavanaugh asked Indiana Solicitor General Thomas Fisher: "Isn't it just too late in the day to argue that any of the Bill of Rights is not incorporated?"


Fisher, in fact, made little effort to oppose incorporation of the Clause. Instead, he argued that, while it might be incorporated as a general rule, it should not be applied to "in rem" forfeitures of property (where the proceeding is technically against property allegedly used in a crime, rather than against the owner). On this theory, the Excessive Fines Clause applies to "punitive" fines that target the owner, but not civil forfeitures that seek to confiscate property without imposing any penalty on the owner as such.

The justices seemed skeptical of this argument, too. Among other things, it would enable states to impose massive penalties on defendants simply by relabeling fines as in rem forfeitures. ...

As Justices Gorsuch and Sonia Sotomayor pointed out, modern civil asset forfeitures have a massive punitive component, which cannot be eliminated simply by labeling them as "in rem" proceedings. Similarly, Justice Ruth Bader Ginsburg emphasized that "whether you label it in rem or in personam, let's remember that .. things don't have rights or obligations in and of themselves. It's people that have rights or obligations with respect to things."


Various justices also noted that the Supreme Court has already ruled, in Austin v. United States (1993), that some federal in rem forfeitures are covered by the Excessive Fines Clause - thos that are "punitive" in nature. If the Clause is incorporated against the states, the same logic should apply to state forfeitures, as well.

SCOTUSblog's post-argument assessment, by Amy Howe, is similar: Court appears ready to rule that Constitution’s bar on excessive fines applies to the states.


Thomas Berry on the Whitaker Appointment
Michael Ramsey (With Update by Andrew Hyman)

At the Notice and Comment blog, Thomas Berry (Pacific Legal Foundation): Is Matthew Whitaker’s Appointment Constitutional? An Examination of the Early Vacancies Acts.  The post discounts the main theory advanced by the Justice Department -- that the Acting Attorney General in an inferior officer -- and instead considers that perhaps he is not an officer at all:

Why then did those who passed these [early vacancy] acts believe they were constitutional? Several pieces of evidence suggest that rather than viewing acting officials as inferior officers, Congress instead viewed these officials as not officers at all.

Research into the meaning of the word “officer” at the time of the Framing has shown that one defining feature of an office is that it is “ongoing” or “continuing.” “Both under the Articles of Confederation and during the First Congress, there was a category of contractors or other nonofficer persons whom officers hired for services outside the Article II appointment process. Therefore, one additional requirement for federal officer status appears to be responsibility for ongoing duties.” Jennifer Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443, 534 (2018). ...

There is also evidence in the Constitution’s text that only those with ongoing duties are officers. “The Constitution refers to an office as something that one ‘holds’ and ‘enjoys’ and in which one ‘continues,’ and these descriptions suggest that an office has some duration and ongoing duties.” Officers of the United States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 101 (2007).

 In drafting the text of the 1792 act, Congress seemed to take pains to avoid describing an acting officer as actually “holding” an office. Instead, these officials are “authorize[d] . . . to perform the duties of the said respective offices.” While such semantic distinctions should not necessarily make the difference between whether a statute is upheld or struck down, they do provide valuable insight into the reasoning of Congress when it passed the act. And they strongly suggest that Congress viewed an “authorization” under the act as an assignment to temporarily perform a set of duties for the express purpose of achieving a single project: that of caretaking. Congress most likely viewed such an assignment as distinct from holding an office.

As to practice:

Using several sources, I attempted to make as complete a list as possible (though one in which I have likely missed at least a few) of acting Secretaries of State, War, and Treasury during this period.  What does this history show? First, although the early Vacancies Acts made no distinction between who could be appointed during absences and vacancies, presidents showed a clear pattern in their selections. In the case of absences of the secretary due to travel or sickness, the chief clerk in the department, an inferior officer not confirmed by the Senate, was usually chosen to serve as acting secretary. In the case of vacancies, however, it was more common for presidents to select another Senate-confirmed secretary to serve as the ad interim secretary, especially if the vacancy was to last a significant time.


[T]he [Office of Legal Counsel] opinion’s flaw is that, like previous OLC opinions, it once again glosses over the distinction between acting and ad interim officers. The opinion lumps these two categories together in order to reach the figure of “at least 160” non-Senate-confirmed temporary department heads serving between 1809 and 1860. Id. at 10. But examining these appointments in more detail shows that the significant majority were only acting heads, not ad interim. To give one example, the opinion states that at least 110 chief clerks temporarily led the Departments of State, War, and Treasury between 1809 and 1860 Id. at 9–10. Of the 93 that I could identify, 80 were acting heads serving during travel or sickness, and only 13 were ad interim. By not differentiating these two types of temporary service, the opinion gives the impression that non-Senate-confirmed officials were appointed to lead departments after a death or resignation far more frequently than actually occurred.

And in conclusion:

When acting officers served for only a limited, non-extendable amount of time, a more plausible argument could have been made that they were brought on to perform only a distinct and non-continuing project. Indeed, this is one potential explanation for why Congress amended the first Vacancies Act after only three years to add a six-month upper limit on acting service. (And although it would be difficult to enforce, an even stronger case could be made that acting service is non-continuing if acting department heads were limited to only overseeing the projects started by their predecessors, not starting any new projects.) Whether the early Congresses were correct in their view that the time-limited 1795 act complied with the Appointments Clause is a close question. But under the current Vacancies Act, the question is less close. Given that Whitaker has not been confirmed by the Senate, has no superior but the president, and has no certain end-date for his duties, I believe it is highly likely that his service violates the Appointments Clause.

(Thanks to Andrew Hyman for the pointer).

UPDATE (by Andrew Hyman): 

Here is the Solicitor General’s opposition to the Motion to Substitute in Michaels v. Whitaker:
And here is a handy link to the Maryland litigation.


Timbs Tomorrow
Michael Ramsey

Tomorrow the Supreme Court will hear oral argument in Timbs v. Indiana, a case of likely originalist interest.  Here is the SCOTUSblog preview

[T]he Supreme Court will hear oral argument in the case of Tyson Timbs, an Indiana man who lost his Land Rover after his conviction on state drug charges. A state trial court agreed with Timbs that requiring him to forfeit his car went too far, violating the Eighth Amendment’s ban on “excessive fines,” but that won’t be the issue before the justices. Instead, the question is whether the Eighth Amendment applies to state and local governments at all. The justices’ eventual answer will be important not only for Timbs, who hopes to get his $42,000 car back, but also for those state and local governments, for which fines and forfeitures have become a key source of revenue.

It may come as a surprise to readers that the entire Bill of Rights – the first 10 amendments to the Constitution – does not automatically apply to the states. But the Bill of Rights was originally interpreted as applying only to the federal government. Beginning in the 20th century, however, the Supreme Court ruled that some (and eventually most) provisions of the Bill of Rights apply to the states through the Constitution’s 14th Amendment, which – among other things – bars states from depriving anyone “of life, liberty, or property, without due process of law.” Most recently, in 2010, the Supreme Court ruled that the Second Amendment’s right to bear arms applies fully to the states because it is “deeply rooted in this Nation’s history and tradition”; in a footnote, Justice Samuel Alito observed that the court had not decided whether the Eighth Amendment’s ban on excessive fines applies to the states.

As the preview goes on to describe, Timbs' argument is strongly historical: 

In the Supreme Court, Timbs argues that protection from excessive fines has a long history in our legal tradition, dating as far back as the reign of King Henry II, who ruled England in the 12th century. When the Eighth Amendment was ratified in the 1790s, Timbs notes, nine of the 13 states at the time had constitutional provisions guarding against excessive fines. By the time the 14th Amendment was ratified in 1868, all of the states included protection from excessive fines in their constitutions, and all but two of the 37 states did so using language that mirrored the language of the federal constitution’s excessive fines clause.

Moreover, Timbs adds, the 14th Amendment was passed to combat the tactics deployed by southern states in the years after the Civil War to oppress their African American citizens, including a variety of fines and forfeitures. For example, Alabama law imposed a fine of up to $1,000 and six months in jail for performing an interracial marriage, while teaching at African American schools without a special license was punishable by a fine of up to $500 in Florida.

Ilya Somin has more at Volokh Conspiracy, with this observation: 

Rejecting incorporation of the Excessive Fines Clause would be an extreme anomaly at a time when the Court has already incorporated both the rest of the Eighth Amendment (which forbids "excessive bail" and "cruel and unusual punishment"), and also every other provision of the Bill of Rights that protects property rights. It would be especially strange to conclude that the Excessive Bail Clause is incorporated while the Excessive Fines Clause is not....

Agreed.  Once one accepts incorporation (as I think most originalists do, although under the privileges or immunities clause rather than the due process clause), it's hard to see why the excessive fines clause should not be incorporated.  Perhaps sensing that, Indiana has a different response.  From SCOTUSblog again: 

For its part, Indiana suggests that the excessive fines clause doesn’t apply to Timbs’ case at all because he is complaining about the forfeiture of  property used to violate the law, known as an “in rem” forfeiture,  which was not traditionally regarded as a penalty. The excessive fines clause, Indiana contends, applies only to payments imposed as punishment. This is consistent, the state explains, with the problem that the excessive fines clause was intended to target, which was “to prevent judges from incarcerating individuals on the basis of unpayable discretionary fines.”

But even if the excessive fines clause does extend to in rem forfeiture, the state continues, there is no reason to interpret the clause to apply to the states. To make that determination, the state argues, the Supreme Court shouldn’t look generally at whether there is a right to be free of excessive fines, but instead should look at the specific right that Timbs is asserting – the right to be free of forfeitures of property whose value far outweighs the seriousness of the crime. And there is no deeply rooted historical tradition supporting such a right, the state maintains. To the contrary, property forfeitures have been common in U.S. law, even when the consequences have been “draconian” and even when the owner of the property is innocent. For example, a 400-ton ship was forfeited in the 19th century for having one more passenger on board than allowed by federal law.

Despite the often harsh results of forfeitures, the state continues, courts did not apply the excessive fines clause (on either the state or federal level) to property forfeitures until 1992, over two centuries after the ratification of the Constitution and 124 years after the ratification of the 14th Amendment, which “strongly implies that no one understood the Excessive Fines Clause to impose a proportionality requirement on these forfeitures.” Further evidence that no one thought that the excessive fines clause applied to forfeitures, the state adds, can be found in the fact that property owners had challenged the constitutionality of forfeitures under other provisions in the Constitution, such as the right to a jury trial or due process, but not the excessive fines clause.

There's a good possibility of a left/right alliance in Timbs' favor, at least on the threshold question of whether the clause is incorporated.  As SCOTUSblog also notes: 

Timbs came to the Supreme Court with one of the most diverse collections of allies in recent memory – everyone from the conservative watchdog Judicial Watch and the U.S. Chamber of Commerce, which bills itself as “world’s largest business organization,” to the American Civil Liberties Union and the Southern Poverty Law Center, which told the Supreme Court that state and local governments are using fines and forfeitures to generate money to pay for the criminal justice system without having to raise taxes. Another “friend of the court” brief supporting Timbs came from the Foundation for Moral Law, which describes itself as a public-interest group “dedicated to the defense of God-given liberties and the strict interpretation of the Constitution.” 

But (much as I distrust forfeiture, basically for the reasons Professor Somin explains) it seems like Indiana might have a point about the historical distinction between fines and forfeitures.  I have not seen a fully persuasive response to the state's argument on this point.


John McGinnis on Originalists in Congress
Michael Ramsey

At Liberty Law Blog, John McGinnis:  Meet the Federalist Society Caucus.  It begins:

Much has been written about the rise of judges who were nurtured in the Federalist Society. They are likely to continue a revolution of formalism in both statutory and constitutional interpretation. But almost nothing has been said about the rise of U.S. Senators who also grew up with the Federalist Society. With the election of Josh Hawley from Missouri, there are now four such senators, including Ted Cruz of Texas, Mike Lee of Utah, and Tom Cotton of Arkansas.

The Federalist Society Senate Caucus, as it were, is also an important development. It brings a kind of intellectual firepower to the Senate that Republicans have rarely had. John Stuart Mill called the Tories the “stupid party,” and their American counterpart rarely in the twentieth century possessed the kind of intellectual heft that the Democrats had in the form of such senators as Daniel Patrick Moynihan and Paul Douglas. But some of these new senators, although quite young, may yet rival these giants in intellectual vigor and achievement. For instance, Josh Hawley wrote a book on Teddy Roosevelt even before going to law school and Yale Professor Paul Kennedy called him the best student he ever had. Ted Cruz brilliantly argued many cases before the Supreme Court.

Greater intellectual acumen can make a difference. This has already been obvious on the Senate Judiciary Committee where Mike Lee and Ted Cruz are the most effective questioners, defending originalism better than many nominees. And the speeches of these Senators on constitutional interpretation remind us that defending the Constitution is not only the province of the judiciary, but of every department of government. It is essential to have articulate originalists in Congress if we are to have pressure for restoring a more originalist Constitution.


More from Will Foster on Janus v. AFSCME
Michael Ramsey

Will Foster (whose article I noted in this post), writes:

On August 3, 2018, I posted my paper "Why Janus Is Indefensible on Neutral Principles" on SSRN. My paper was subsequently featured on the Originalism Blog on August 9. In both the SSRN abstract and the blog post, I clearly identified myself as a high school student. 
Several weeks later, SSRN temporarily removed my paper from their site because I needed to "clarify [my] organizational affiliation and title," as well as state the "purpose [for which] this paper was written." I responded promptly with the required clarifications, but it took more than two weeks -- even with a follow-up email on my part -- for SSRN to restore the paper. Nevertheless, once it was restored I figured I was finally done with any SSRN craziness. Unfortunately, I was wrong. 
On October 8, I received an email from SSRN, out of the blue, stating that "high school-level papers are not eligible for inclusion in the SSRN eLibrary and are not accepted." Sure enough, the abstract link no longer worked when I tried it. No explanation was given for why it took SSRN two months to inform me of this supposed policy. 
In any event, here is the link to a public Google Doc of my article that you all can access:
Note that this version is different from the version I originally posted on SSRN -- I added a number of paragraphs throughout August in response to early comments and criticisms I received. 
That said, I am working on some brief but significant revisions and qualifications regarding my main argument, which I hope to be able to share with you on this blog within the next few weeks. Several law review articles I've read this fall have inspired me to reconsider some of the basic contentions in my paper. So stay tuned! 

Daniel Birk: Congressional Control of Supreme Court Appellate Jurisdiction in Light of British Precedent
Michael Ramsey

Daniel D. Birk (Chicago-Kent College of Law) has posted The Common-Law Exceptions Clause: Congressional Control of Supreme Court Appellate Jurisdiction in Light of British Precedent (Villanova Law Review, Vol. 63, No. 2, 2018) on SSRN.  Here is the abstract: 

Jurists and scholars widely acknowledge that the institutions, practices, and decisions of the British common-law court system at the time of the framing can provide an important guide in interpreting and applying the provisions of Article III of the U.S. Constitution. It is somewhat surprising, then, that students of the federal courts have so rarely turned to the common law in attempting to understand Article III’s most controversial and widely debated question: Whether Congress can use its power to make “exceptions” to the Supreme Court’s appellate jurisdiction to prevent the Supreme Court from deciding cases presenting particular questions of constitutional law.

This Article fills that gap in the Exceptions Clause literature by conducting a detailed examination of pre-1789 British cases and statutes related to parliamentary exceptions to the jurisdiction of the supreme courts of England and Scotland. By ignoring this precedent, participants in the debate over the Exceptions Clause have been missing an important piece of the puzzle. Strikingly, the evidence refutes the conventional view that Congress’s exceptions power is unlimited in scope and confirms textual arguments that a defining attribute of a “supreme” court is its ability to supervise the decisions of courts inferior to it. The evidence shows that, even where Parliament made an exception to the appellate jurisdiction of a supreme court, it was well-understood that the exception would never entirely divest that court of the power to correct major interpretive errors and denials of due process and to ensure that inferior courts remain within the bounds of the law. By resituating the Exceptions Clause within the common-law heritage familiar to the Framers of the Constitution, this Article offers an interpretation of the Clause that makes sense of and respects the constitutional text while assuaging fears that Congress could use its exceptions power to entirely preclude Supreme Court review of the decisions of lower federal and state courts.


Evan Bernick: Substantive Due Process Justice Thomas Could Love
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has posted Optimizing the Oxymoron: Substantive Due Process Justice Thomas Could Love (George Mason Law Review, forthcoming) on SSRN.  Here is the abstract: 

Originalists generally reject the proposition that the Due Process of Law Clauses of the Fifth and Fourteenth Amendments not only require that certain procedures be followed prior to any deprivations of “life, liberty, or property” but also constrain the content or substance of legislation. This Article defends "substantive due process" on originalist grounds. It then undertakes to improve substantive due process doctrine by deploying the theory of good-faith construction developed in previous articles, as well as tools drawn from cognitive psychology, welfare economics, agency cost theory, and public choice theory.

Part I briefly describes the leading originalist criticisms of substantive due process. Part II summarizes the the originalist case for judicial review of legislative deprivations of life, liberty, or property to determine whether those deprivations are calculated to achieve constitutionally proper ends or are instead arbitrary. It argues that the Due Process of Law Clauses were originally designed to thwart arbitrary deprivations of life, liberty, and property, and that due process of law doctrine should be designed to implement that original spirit. Part III provides an overview of the constitutional heuristics—strategies used to simplify constitutional decisionmaking—that the judiciary has used to thwart arbitrary legislation since the Fourteenth Amendment’s ratification. It then develops a strategy that will better equip judges to reduce the costs associated with the abuse of legislative discretion.

The Article ultimately calls upon the Supreme Court to reaffirm the standard of rational-basis review that was articulated and applied in United States v. Carolene Products. The default standard of constitutional review of state legislation that deprives people of life, liberty, or property should be similar to what it was before the Court embraced what can been termed the political judgment rule—a form of rational-basis review that effectively insulates legislation from scrutiny for arbitrariness. That default standard should, however, be informed by a coherent understanding of the states’ reserved “police” powers—one which holds that exercises of those powers must be calculated to reduce negative externalities—and a realistic model of legislative behavior.


Two Views of History and Nationwide Injunctions
Michael Ramsey

In the Seventh Circuit sanctuary city case, now called City of Chicago v. Whitaker, an impressive group of prominent legal historians has filed this amicus brief in support of the nationwide injunction.  Here is the brief's summary of argument:

Nationwide injunctions against the federal government were not issued in 1789. But that is the result of historical accident and not because of any inherent limitations on the remedies available in equity. Equity courts in 1789 could “adapt their decrees to all the varieties of circumstances …, and adjust them to all the peculiar rights of all the parties in interest.” 1 Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America § 28 (2d ed. 1839) [hereinafter Story, C. Eq.]. Courts of equity existed to decide upon and settle the rights of all persons interested in the subject matter of the suit. Courts of equity, it was said, do complete justice—not justice by halves. Case:

To that end, early American equity courts could fashion injunctions that protected the rights of non-parties and that even ran against non-parties. Courts of equity could also issue injunctions against government officials, and by doing so, functionally restrain the actions of governments at the municipal, state, and federal levels. No case from the early republic casts that proposition in starker light than Cherokee Nation v. Georgia, 30 U.S. 1 (1831). The Court dismissed the case for lack of jurisdiction. But Justice Joseph Story, dissenting, would have entered an injunction enjoining the State of Georgia and all of its officers and agents from enforcing any Georgia laws in Cherokee territory against anyone.

Not only did equity courts have the equitable power to grant injunctions that look like modern nationwide injunctions (save they did not run against the federal government itself), but they in fact issued injunctions of astonishing scope. In the late 1800s and early 1900s, federal courts sitting in equity issued labor injunctions restraining hundreds of thousands of workers to protect the free flow of commerce nationwide. While we doubt the lawfulness of similar injunctions today, and Congress limited the federal courts’ power to issue such injunctions in the 1930s, they show the power of traditional equity.

Thus, equity courts had the equitable powers to issue nationwide injunctions in the early republic. There are likely a variety of reasons that no modern-style nationwide injunctions issued. At the threshold, very few federal laws were held unconstitutional in the 18th and 19th centuries. Moreover, the federal government was structured in a fundamentally different fashion than it is today. And federal courts lacked their modern broad federal question jurisdiction.

But the likeliest explanations for the absence of nationwide injunctions before the 20th century relate to sovereign immunity, jurisdiction, and venue—not the nature of the federal courts’ equity powers. First, the United States did not waive its sovereign immunity from suit in a general way until 1976. A nationwide injunction against the United States could not have issued before 1976. Second, restrictions on venue and personal jurisdiction meant litigants needed to sue cabinet-level officers in Washington, D.C. if they wanted something approximating a modern nationwide injunction. Geography and expense, not the powers of courts of equity, were the practical obstacles to nationwide injunctions for much of American history. (Though as we point out, as early as 1935, railroads were financially able and willing to join together to sue in Washington, D.C. to enjoin laws on a nationwide basis.)

In any event, it makes no sense to ask whether a remedy is a traditional equitable remedy by referring to the parties enjoined and the persons protected. Whether an equitable remedy is proper should be determined by equity’s historical principles (e.g., whether the remedy grants complete relief, whether the remedy runs in personam against a party). The history of equity is a complex and contradictory one, characterized by flexibility and discretion; rarely by unyielding rules. Especially where, as here, the history is inexact and the practice of granting nationwide injunctions is already entrenched, the proper body to pare back nationwide injunctions, should it be necessary, is Congress, not the courts.

Thanks to Andew Tutt (Arnold & Porter) for the pointer.

At Volokh Conspiracy, Samuel Bray (Notre Dame) has two long posts specifically in response to the historians' brief:

National Injunctions: Historians Enter the Lists

More Notes on the Historians' Brief

From the first post:

In this post I will highlight three key weaknesses in the historians' argument. In a follow-up post I'll comment on other specific claims and evidence in the brief.

First, the case that the historians identify as their best case does not support a national injunction. . . .

Second, the historians' brief does not address the strong evidence that equitable principles precluded a national injunction. . . .

Third, it is rather astonishing that the historians' brief defends the national injunction by likening it to the fin de siècle anti-labor injunctions (6, 16-18) and to structural injunctions (24). The former are widely discredited and were expressly rejected by Congress; the latter have been a subject of controversy for fifty years. Whatever view one takes as to the anti-labor and structural injunctions, their weak point is their lack of basis in traditional equity. This is not their strength. I do not think it is much reassurance to say that national injunctions are traditional in equity just like the anti-labor and structural injunctions.

Introducing the second post:


Craig Green: Deconstructing the Administrative State
Michael Ramsey

Craig Green (Temple University - James E. Beasley School of Law) has posted Deconstructing the Administrative State: Constitutional Debates over Chevron and Political Transformation in American Law on SSRN.  Here is the abstract: 

In 2018, Justice Kennedy wrote that the Supreme Court should “reconsider the premises” of Chevron v. NRDC based on “separation-of-powers principles.” In 2015, Justice Thomas was the first judge to argue in an opinion that Chevron is unconstitutional, and Justices Gorsuch and Kavanaugh are the only judicial nominees whose anti-Chevron critiques were featured elements of their candidacy. Petitions for certiorari have challenged Chevron’s constitutionality, echoing litigants in other federal courts, and academics have joined both sides of the debate. This Article responds to modern disputes over Chevron with a new history of how the constitutional crisis developed, a rebuttal of modern critiques, and a description of their potentially destructive effect on administrative governance and constitutional law. The Article describes a shift from Reagan-era support for Chevron to “post-Scalian” attacks. It concludes by considering anti-Chevron constitutional critiques alongside other Trumpist efforts to “deconstruct the administrative state.” To overrule Chevron would be the most radical decision about constitutional structure in eighty years, unsettling hundreds of judicial decisions, thousands of statutes, and countless agency decisions. This Article contributes to existing literature with novel historical research, and detailed engagement with anti-Chevron critiques that have become newly sophisticated and politically powerful.