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04/11/2021

Judge James Ho on Lower Court Originalism
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Originalism in the Lower Courts: Judge Ho's dissental in Texas v. Rettig.  From the introduction: 

[Friday] the Fifth Circuit denied rehearing en banc in Texas v. Rettig. In February, the three-judge panel (Barksdale, Haynes, and Willett) issued a substitute opinion in that case. This case presented a challenge to an ACA regulation. The panel turned away Texas's nondelegation doctrine challenge.

Judge Ho, and four of his colleague, dissented from the denial of rehearing en banc: Judges Jones, Smith, Elrod, and Duncan. Here, I'd like to praise the five judges who dissented. They embraced a central plank of originalism in the lower courts: the refusal to extend non-originalist precedents, unless that extension is justified by the original mening of the Constitution. I have written about this concept in my article, Originalism and Stare Decisis in the Lower Courts.

And from Judge Ho's opinion (favorably citing San Diego-based Judge Patrick Bumatay of the Ninth Circuit):

As judges, we have sworn an oath to uphold the Constitution. So if we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear: "[O]ur duty [is] to apply the Constitution—not extend precedent." NLRB v. Int'l Ass'n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc)….

"As inferior court judges, we are bound by Supreme Court precedent. Yet[] . . . judges also have a 'duty to interpret the Constitution in light of its text, structure, and original understanding.'" Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (quoting NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring)). "While we must faithfully follow [Supreme Court] precedent . . . , '[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.'" Id. (quoting Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff'd in part, rev'd in part and remanded, 561 U.S. 477 (2010)). See alsoe.g.Alvarez v. City of Brownsville, 904 F.3d 382, 401 (5th Cir. 2018) (en banc) (Ho, J., concurring) (noting that an important purpose of rehearing en banc is "to better align our precedents with the text and original understanding of the Constitution" "where the Supreme Court has not yet ruled").

SOMEWHAT RELATED: Also on Friday, the Supreme Court vindicated Judge Bumatay's dissent in Tandon v. Newsom, summarily reversing the Ninth Circuit on the constitutionality of California's covid-oriented restrictions on indoor religious services. (Via Professor Blackman, here.)