« Richard Samuelson on the Constitutionality of a Global Minimum Tax
Michael Ramsey
| Main | John McGinnis on Fulton, Smith and Originalism
Michael Ramsey »


Three Perplexing Cases from the Supreme Court
Michael Ramsey

This week's decisions by the Supreme Court featured some originalism (mostly in concurrences), but it's unclear who (if anyone) had the right answers.

In Mahanoy Area School District v. B.L., the Court held (8-1) that the First Amendment protects profane commentary on school activities by grade-school students posted on social media.  Justice Breyer's opinion for the majority is a characteristically unhelpful bit of pragmatism.  Justice Thomas in dissent argued that historical analysis favors the school:

While the majority entirely ignores the relevant history, I would begin the assessment of the scope of free-speech rights incorporated against the States by looking to “what ‘ordinary citizens’ at the time of [the Fourteenth Amendment’s]  ratification would have understood” the right to encompass. McDonald v. Chicago, 561 U. S. 742, 813 (2010) (THOMAS, J., concurring in part and concurring in judgment). Cases and treatises from that era reveal that public schools retained substantial authority to discipline students. As I have previously explained, that authority was near plenary while students were at school. See Morse v. Frederick, 551 U. S. 393, 419 (2007) (concurring opinion). Authority also extended to when students were traveling to or from school. See, e.g., Lander v. Seaver, 32 Vt. 114, 120 (1859). And, although schools had less authority after a student returned home, it was well settled that they still could discipline students for off-campus speech or conduct that had a proximate tendency to harm the school environment. 

Justice Alito, joined by Justice Gorsuch, offered a sort-of-originalist response in concurrence.  I'm not sure who has the better of the argument, but Thomas explored the history much more deeply.

In Arthrex Inc. v. Smith & Nephew Inc., the Court held (5-4) in a generally originalist-oriented opinion by Chief Justice Roberts that Administrative Patent Judges  (APJs) cannot exercise unreviewable executive authority because they are appointed by the Secretary of Commerce without Senate advice and consent.  Justice Gorsuch in concurrence took a textualist/originalist view:

By definition, an “‘inferior officer’ . . . has a superior.” Edmond v. United States, 520 U. S. 651, 662 (1997). To be an “inferior” officer, then, one must be both “subordinate to a[n] officer in the Executive Branch” and “under the direct control of the President” through a “chain of command.” Morrison, 487 U. S., at 720–721 (Scalia, J., dissenting). In this way, the “text and structure of the Appointments Clause” require a “reference to hierarchy.” Calabresi & Lawson, The Unitary Executive,  Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia, 107 Colum. L. Rev. 1002, 1018–1020 (2007). Only such an understanding preserves, as Madison described it, the “chain of dependence,” where “the lowest officers, the  middle grade, and the highest”—each and every one—“will depend, as they ought, on the President.” 1 Annals of Cong. 499 (Madison). And where the President, in turn, depends “on the community,” so that “[t]he chain of dependence” finally “terminates in the supreme body, namely, in the people.” Ibid.

I agree with the Court, too, that the statutory regime before us breaks this chain of dependence. In the America Invents Act of 2011 (AIA), Congress authorized the inter partes review (IPR) process, which permits anyone to file a petition asking the Patent and Trademark Office to “cancel” someone else’s patent. 35 U. S. C. §311. Congress assigned the power to decide an IPR proceeding to a specific group of officials—the Patent Trial and Appeal Board (PTAB). Under the AIA’s terms, three members from the PTAB—often, as here, administrative patent judges (APJs)—sit on a panel to decide whether to cancel a patent. §6(c). After the three-member panel issues its decision, a party may seek rehearing from another three-member panel. Ibid. But only a PTAB panel—and no other official within the Executive Branch—may grant rehearing. Ibid. If that fails, a losing party’s only recourse is to seek judicial review in the Court of Appeals for the Federal Circuit, which reviews the PTAB’s factual findings under the deferential substantial evidence standard of review. See §319; Oil States, 584 U. S., at ___ (slip op., at 4).

Under this statutory arrangement, APJs are executive officers accountable to no one else in the Executive Branch. A panel of bureaucrats wields unreviewable power to take vested property rights. This design may hold its advantages for some. Often enough, the Director of the Patent and Trademark Office and the President may be happy to wash their hands of these decisions. But by breaking the chain of dependence, the statutory scheme denies individuals the right to be subjected only to lawful exercises of executive power that can ultimately be controlled by a President accountable to “the supreme body,  namely, . . . the people.”

Gorsuch disagreed with the majority principally on the remedy; he thought the entire APJ structure was void, whereas the majority found that the provision making the APJ decisions nonreviewable could be severed and thus the defect could be cured by giving the Director of the Patent and Trademark Office power of review over them.

Justice Thomas in dissent responded that the the APJs are inferior officers under the functional test of Edmonds, but in his final section questioned Edmonds on originalist grounds.  I'm not sure what to think about this one either: on one hand Thomas seems right that the APJs are fairly minor officials well down the Commerce Department hierarchy, so it's odd to think of them as superior officers; but on the other hand Gorsuch seems right that they exercise a good bit of unreviewable authority, making them seem not inferior.

And in Yellen v. Collins the Court held that the structure of the Federal Housing Finance Agency (FHFA) is unconstitutional because its director is removable only for good cause.  That ruling was expected given the Court's holding last year in Seila Law as to the similarly-structured Consumer Financial Protection Bureau.  The difficult issue in Collins was the remedy: were the actions of the FHFA void due to its unconstitutional structure?  Justice Gorsuch thought so (consistent with his view in Arthrex, which raised a somewhat similar issue):

As the Court observes, the only question before us concerns retrospective relief. Ante, at 32. By the time we turn to that question, the plaintiffs have proven that the Director was without constitutional authority when he took the challenged actions implementing the Third Amendment. In response to such a showing, a court would normally set aside the Director’s ultra vires actions as “contrary to constitutional right,” 5 U. S. C. §706(2)(B), subject perhaps to consideration of traditional remedial principles such as laches. See ante, at 36, n. 26; Abbott Laboratories v. Gardner, 387 U. S. 136, 155 (1967). Because the Court of Appeals did not follow this course, this Court would normally vacate the judgment in this suit with instructions requiring the Court of Appeals to conform its judgment to traditional practice. Today, the Court acknowledges it has taken exactly this course in cases involving unconstitutionally appointed executive officials. Ante, at 33–34. Still, the Court submits, we should treat this suit differently because the Director was unconstitutionally insulated from removal rather than unconstitutionally appointed. Ante, at 33–34; see also ante, at 7 (THOMAS, J., concurring).

It is unclear to me why this distinction should make a difference. Either way, governmental action is taken by someone erroneously claiming the mantle of executive power—and thus taken with no authority at all....

But Alito for the majority disagreed, instead concluding that because the Director was constitutionally appointed, the claimants had to show particular harm from the defective removal provision, and remanded for the court of appeals to consider that question.  (Aside: if the claimants haven't made that showing I'm not sure why they have standing, but in an earlier part of the opinion Justice Alito said they do.)

In sum, I'm doubtful that originalism handles any of these cases well (or, at least, that the originalist-oriented Justices have found any conclusive guideposts).