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28 posts from November 2022


Symposium on Michael Greve's "The Upside-Down Constitution" after 10 Years [Updated]
Michael Ramsey

At the Law & Liberty Forum, a symposium on the tenth anniversary of Michael Greve's important book The Upside-Down Constitution (Harvard University Press 2012).  Here are the contributions:

The Upside-Down Constitution and Its Critics, by Michael Greve (George Mason - Scalia)

The Nature of the Instrument Tells You How to Read It, by Jack Balkin (Yale)

Constitutional Interpretation and the Brooding Omnipresence, by Aditya Bamzai (Virginia)

No Exit, by Justin Walker (Judge, U.S. Court of Appeals, D.C. Circuit) & Benjamin T. Lee (Law clerk, U.S. Court of Appeals, D.C. Circuit)

From the second essay, some interesting thoughts on interpretation from Professor Bamzai:

What justifies the unwritten and uncodified rules of constitutional interpretation? Or are they, like the general federal common law, a brooding omnipresence in the sky?

Let me start with some ground that (I think) I share with Greve on this topic. Unwritten rules govern the interpretation of every document ever written. ...

The fact that readers have to rely on unwritten rules to interpret legal documents by no means renders the interpretive exercise hopeless. Some interpretive rules—such as the assumption that the authors of a Constitution did not write it with a wink and a finger crossed behind their back—simply are far more plausible than any rule to the contrary. (To be sure, the contrary interpretive rule—that the authors of a Constitution lied about its protections—may well be plausible in lawless societies, where the written law is truly nothing more than a parchment barrier.) But because the unwritten interpretive rules cannot be found solely within the written text, one must derive them in some fair way.

In my view, the unwritten rules that form the core of modern-day originalism rest upon a particularly robust understanding of the Aristotelian maxim that “like cases should be treated alike.” Just as a set of rules govern the interpretation of contracts and statutes, so too (originalists argue) similar rules should govern the interpretation of the Constitution. Thus, to the extent structure, logic, and purpose, properly understood, are relevant for interpreting the former (as I believe they are), so too must they be used to interpret the latter.

The question is how best to derive the structure, logic, and purpose of an instrument like the Constitution. In this regard, Greve relies on the “precepts of public choice theory and constitutional political economy.” But can we derive the rule of Swift v. Tyson or Erie R.R. v. Tompkins directly from the abstractions of public choice theory? In my view, no. We need something more—whether that is evidence of the specific meaning of the Rules of Decision Act or the general understanding of the term “laws” within the community that adopted the statute. In this instance, abstractions don’t get us to concrete results. In addition, would it be fair to attribute public choice theory, in all of its particulars, to the authors of the Constitution? I don’t know. Those authors might have had a rough sense of similar concepts, but care must be taken not to presume that the Constitution incorporated all of the perspectives of twentieth-century economists.

The Upside-Down Constitution recognizes these points and spends time and energy canvassing the views of various participants in the constitutional debates of the eighteenth and nineteenth centuries. That is all to the good. It is partly through that kind of in-the-weeds work that we might better understand the provisions of the Constitution. But Greve is correct that we cannot divorce the in-the-weeds work from the broader logic of the whole instrument. To borrow the words of Edward Corwin, writing just under a century ago, that logic is part of The “Higher Law” Background of American Constitutional Law. Ten years after The Upside-Down Constitution’s publication, we are still puzzling over the place of unwritten rules of interpretation in our constitutional order.

Mike Rappaport adds

            Has it been ten years?  Wow.  Here are two blog posts I wrote about Michael's book a decade ago:   Here and here

Further update by Michael Ramsey:  The symposium now includes a response from Michael Greve: No Brooding Over the Upside-Down Constitution. (Thanks to Aditya Bamzai for the pointer.)


Ed Whelan on Moore v. Harper [Updated]
Michael Ramsey

At NRO Bench Memos, Ed Whelan: Thinking Through Moore v. Harper (part 1 and part 2).  From the introduction:

On December 7, the Supreme Court will hear oral argument in Moore v. Harper. At issue in the case is the meaning of the so-called Elections Clause set forth in Article I, section 4 of the Constitution. The case has elicited a lot of apocalyptic rhetoric, often unaccompanied by any hint of the constitutional text in question. In this post and follow-on posts, I hope to begin working my way through the issues that the case presents....

1. Let’s start with the facts of the case. In November 2021, after receiving the 2020 census data, the North Carolina legislature enacted a new redistricting map for federal elections for its seats in the U.S. House of Representatives. Various plaintiffs sued, alleging that the new redistricting map violated the North Carolina constitution. In February 2022, the North Carolina supreme court ruled in favor of plaintiffs and ordered the state legislature to submit a remedial redistricting map. After the state legislature did so, a state superior court rejected the legislature’s remedial map and adopted a map proposed by special masters it had appointed.

2. The Elections Clause of the Constitution states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

From what I can tell, everyone* agrees that a state legislature’s enactment of a new redistricting map for House seats is an exercise of this Elections Clause. (The notion, I gather, is that determining that House members will be elected by district and defining what the congressional districts are is a necessary part of the “Manner of holding Elections for … Representatives.”)

One big issue in the case is what it means for congressional districts to “be prescribed … by the [State] Legislature.” Among other things: What counts as the “the Legislature”? Can a state constitution impose substantive limits on the Legislature’s authority under the Elections Clause? What role do the state courts have in interpreting and applying any such limits? Can the Legislature delegate its power to someone else or enact enforceable limits on how it exercises its power?

Later on, he has this helpful summary of the petitioners' position:

a. The word “Legislature” in the Elections Clause (and in other provisions of the federal Constitution that refer to the “Legislature” of a state) means the representative body that, pursuant to the state constitution, makes the laws in a state.

b. The Elections Clause assigns to the state legislature the authority to prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives.” When a state legislature exercises that power, it is exercising federal authority.

c. A state constitution may prescribe the procedure, or method, by which a state legislature makes a legislative enactment. So provisions of the constitution that, say, require a bicameral vote or subject legislation to a governor’s veto, may apply to legislation under the Elections Clause.

d. But the state constitution may not impose substantive limits on what a state legislature may enact pursuant to its Elections Clause authority.

e. A state court may well have the authority to review a law enacted by a legislature pursuant to its Election Clause authority. But if and when it does so, the question it is reviewing is whether that law complies with the federal Constitution and federal statutes, not whether it complies with the state constitution.

... The respondents’ position, by contrast, is that the word “Legislature” means a body that is not just created by the state constitution but also always constrained by it, including in its exercise of authority under the Elections Clause. Therefore, state courts may invalidate a law enacted pursuant to the Elections Clause on the ground that it violates the state constitution.

And in conclusion (to the second post):

Petitioners argue—correctly, I believe—that under respondents’ position a state constitution could entirely exclude the state legislature from having any role in prescribing the rules governing federal elections. The state constitution could provide, for example, its own set of rules for federal elections, and it could state that any addition or revision to those rules could be made only by popular referendum. With respect to redistricting specifically, the state constitution could confer redistricting authority directly on the governor, or on the state supreme court, or on some other body.

Respondents’ position that a state legislature is always constrained by its state constitution would apply as well to the legislature’s role under the Electors Clause and in the Article V amendment-ratification process. That would mean that the people by referendum could, say, adopt a constitutional provision that entirely excludes the state legislature from the appointment of presidential electors and that instead confers on the governor or the state supreme court justice plenary authority to appoint the state’s electors. It would also mean that the southern states before the Civil War could have embedded in their constitutions a provision barring the legislature from ever voting to ratify an amendment that ended slavery or prohibited discrimination on the basis of race.

I will emphasize that I do not present these consequences as some sort of proof that respondents’ position is wrong. Petitioners’ own position is also vulnerable to illustrations of how it could be exploited in unseemly ways. But these consequences do, I think, suggest that the intuition that state legislatures are of course subject to state constitutional limitations when they exercise federal constitutional roles might not be right.

UPDATE:  Ed Whelan has added a short Part 3 to the series.  It makes this worthwhile concluding point:

Anyone on either side who is inclined to view this case through a partisan lens should be aware that there is no reason to think that a victory for the Republican petitioners in North Carolina would be a victory for Republicans more broadly. As this Wall Street Journal article discusses, if the New York legislature’s gerrymander of congressional districts had been allowed to stand in the face of contrary state constitutional provisions, Democrats would likely have had a net gain of seven House seats (a 22-4 advantage rather than the 15-11 margin that resulted from the elections). Republican gains in North Carolina and perhaps some other states might have offset the Democratic gains in New York. But neither in the short term nor especially in the longer term is it at all clear which political party would benefit nationally from a victory for petitioners.


Two Points Concerning the Proposed “Respect for Marriage Act”
David Weisberg

I would like to make two points concerning the U.S. Senate’s proposed “Respect for Marriage Act” (RFMA), which would make it unlawful for any State official “to deny full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex … of those individuals.”  It should be noted that there is no requirement that any or all States permit same-sex marriages; there is only the requirement that a State not deny the validity of a same-sex marriage validly entered into in another State.  The RFMA would also require the federal government to recognize same-sex marriages.  The motivation for the RFMA clearly is Justice Thomas’ concurring opinion in Dobbs, in which he urged reconsideration of “all of this Court’s substantive due process precedents, including GriswoldLawrence,  and Obergefell.  

The first point is that, with all due respect to Justice Thomas, I think the odds are close to zero—or perhaps I should say 8 to 1 against—that the Court will overturn Obergefell.  The U.S. Census Bureau has estimated that, in 2019, there were 543,000 same-sex married couples in the U.S.; that amounts to more than one million married individuals, and does not include the many thousands of children and other dependents in those families.  There almost certainly are even more such couples today.  The reliance issues arising from those marriages are vastly weightier than those arising from the abortion right proclaimed by Roe and its progeny, which was reversed in Dobbs.  The practical consequence of that reversal is that some pregnant women will have to travel farther than otherwise to undergo abortions.  It is, I believe, virtually unimaginable that a majority of the Court would overturn Obergefell and thus chaotically disrupt the domestic relations of substantially more than one million Americans.  For that reason alone, even if (as I believe) it was wrongly decided in 2015, Obergefell will not be disturbed by the Court. 

The second point relates to Andrew Hyman's interesting recent post on this blog, questioning whether the RFMA would be consistent with First Amendment free speech rights States might enjoy as against the federal government.  He writes: “[I]t is at least questionable that Congress would now require states to refer to gay couples as ‘married,’ assuming that there are other non-derogatory words available, and also assuming that all substantive and procedural rights that a state offers are the same for gay couples as for straight couples.”  This assumes that the RFMA would require States to refer to gay couples as “married”.  I’d like to offer an alternative analysis. 

When Henry VIII required his subjects to swear an oath affirming the validity of his marriage to Anne Boleyn, Thomas More remained silent; he did not take the oath, but he also did not deny the validity of the marriage.  It seems to me that a State and its officials could—without running the risk of being beheaded, as More finally was—similarly remain silent as to the validity of an out-of-State same-sex marriage, while nevertheless treating it the same way it treats any other marriage.  For example, a State’s income tax form could include an instruction such as: “If two persons residing in this State have either entered into and remain in a valid marriage in this State, or have entered into and remain in a marriage that was valid in the State where it was entered into, then those two persons may use ‘Form M – Filing Jointly’ for this State’s income tax return.”

This instruction would apply to a couple that now resides in State A but had formerly entered into a common-law marriage (which State A does not permit) in State B, or a marriage of first cousins (which State A does not permit) in State B, as well as a couple that had entered into a same-sex marriage (which State A does not permit) in State B.  The instruction does not assert or imply that State A itself affirms the validity of either common-law, first cousin, or same-sex marriages; it implies only that the State recognizes that other States affirm the validity of those kinds of marriages.  I think careful drafting could yield instructions, rules and regulations that would all treat out-of-State same-sex (or common-law, or first cousin) marriages the same as in-State marriages, without any affirmation of the validity of those out-of-State marriages.

The foregoing depends on a distinction—the difference between not denying the validity of certain marriages and positively affirming the validity of those marriages—that is admittedly a fine one.  Still, fine or not, there is such a distinction.   Moreover, it’s hornbook law that, if a statute can be construed to avoid questions of constitutionality, it should be so construed.  So, it may be that, if the RFMA becomes law, that fine distinction can obviate a difficult issue.      

2023 Originalism Works-in-Progress Conference Papers and Commentators
Michael Ramsey

The University of San Diego's Originalism Center is pleased to present the complete list of papers and commentators for the Fourteenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference scheduled for February 10-11, 2023, at the University of San Diego Law School:

William Baude (Chicago), Jud Campbell (Richmond) & Stephen Sachs (Harvard),  General Law and the Fourteenth Amendment

            Commentator: Jack Balkin (Yale) 

Andrew Coan (Arizona) & David Schwartz (Wisconsin), Enumeration and Original Meaning

            Commentator: Randy Barnett (Georgetown)

John Harrison (Virginia), Natural Rights, Incorporation, and the Original Meaning of the Fourteenth Amendment

            Commentator: Michael McConnell (Stanford)

John McGinnis (Northwestern) & Michael Rappaport (USD), An Originalist Approach to Prospective Overruling

            Commentator: Richard Kay (Connecticut)

Julian Mortenson (Michigan), “They Stood Forth in a Manly Way At Their Own Risk”: The Violate-and-Ratify Paradigm for Emergency Action in the Founding Era

            Commentator: Amanda Tyler (Berkeley)

Andrea Pin (Padua) & Graziella Romeo (Bocconi), Antonin Scalia and Hans Kelsen: An Odd Couple? Originalism and Neopositivism in Europe

            Commentator: Fred Schauer (Virginia)

Jed Shugerman (Fordham), Why “Executive Power” Did Not Include Removal: Vénalité, Offices as Property, and the Building/Buying of the Modern State

            Commentator: Ilan Wurman (Arizona State)


New Journal: The Journal of American Constitutional History
Michael Ramsey

From the editors of a new journal:

You are cordially invited to submit articles to the Journal of American Constitutional History, a new online peer-reviewed journal. At a time when law office history is increasingly casting its shadow over both scholarship and jurisprudence, the Journal of American Constitutional History will offer a space for scholarship that tries to understand the past, rather than to distort it to influence present controversies.

The Journal seeks to promote inter- and multi-disciplinary scholarly dialogue on constitutional history, and we therefore invite submissions from disciplines outside of law, including history and political science. The Journal will publish articles of all lengths, from shorter essays and thought-pieces in the 4,000-to-6,000-word range to longer, traditional articles. Authors will be able to conform to the norms and citation styles of their respective fields.

Why this journal?

The Journal of American Constitutional History offers a serious alternative to student-edited law reviews and the constraining expectations of student editors. Authors will not need to erect elaborate scaffolding that shows some present-day "doctrinal payoff." Nor will authors have to devote thousands of words to well-known background material, unnecessary footnotes, or literature reviews.

The Journal offers much faster publication decisions and time-to-publication than most peer-reviewed journals. Authors can expect to receive first-level decisions within a week of submission, and articles submitted for double-blind peer review will receive a decision within 3-4 weeks. Each author will receive written feedback explaining our publication decision. Articles will be published via the Journal website as soon they are completed rather than awaiting compilation of a full issue. Each article will be assigned a unique page range for citation purposes, and published articles will be carried by Hein Online and other searchable electronic databases.

The Journal's Board of Editors comprises leading scholars in the field of constitutional history. Authors can thus be assured of reaching their target audience from a distinguished platform and need not associate "prestige" with killing trees.

To submit articles, please visit our website, starting December 1, 2022. For questions, please contact the Journal's editor-in-chief, David Schwartz, at editor-jach@law.wisc.edu.

(Via Dan Ernst at Legal History Blog).


Ethan Leib: The Textual Canons in Contract Cases
Michael Ramsey

Ethan J. Leib (Fordham University School of Law) has posted The Textual Canons in Contract Cases: A Preliminary Study (2022 Wisconsin Law Review 1109) (30 pages) on SSRN.  Here is the abstract:

This Essay is a first effort to explore how linguistic canons function in contract cases. Most lawyers know about ejusdem generis, expressio unius, and noscitur a sociis from their work in statutory interpretation, but no one has attempted any systematic inquiry into how these canons figure in contract interpretation. Looking at two jurisdictions’ use of textual canons in contract cases over time and in careful detail, this Essay reports findings and offers preliminary conclusions, about the specific jurisdictions under review and more generally in a comparative vein, both inter-jurisdictionally and as compared to what we know about the same canons’ use within practices of statutory interpretation.


Emile Katz: Due Process & The Standing Doctrine
Michael Ramsey

Emile J. Katz (University of California, Berkeley - School of Law, JD '21) has posted Due Process & The Standing Doctrine (65 pages) on SSRN.  Here is the abstract:

The standing doctrine undergirds every case litigated in federal court yet, despite its ubiquity, the doctrine is difficult to apply, cannot be derived from the plain meaning of Article III of the Constitution, and doesn’t effectively serve the goals the Supreme Court has explained as its raison d'être. Accordingly, the standing doctrine has frequently been criticized as a policy-driven and judicially-invented fabrication. This article posits that, if appropriately understood, the standing doctrine is required by the Constitution’s text—but by the Due Process Clauses of the Fifth and Fourteenth Amendments, not by Article III. The Due Process Clauses prohibit courts from depriving a person of life, liberty, or property without due process of law. As Justice Amy Coney Barrett has explained, stare decisis can often function similarly to preclusion and consequently the application of stare decisis can deprive litigants of their life, liberty, or property rights without due process of law. This article proposes that standing resolves the due process issue identified by Justice Barrett by ensuring that litigants presently before a court are adequately representing potential future litigants and thereby providing those future litigants with due process. In short, the Due Process Clauses require courts to check for standing because otherwise the application of stare decisis—a legal principle tracing back to before the Founding—would deprive future litigants of their rights without due process of law. Viewing standing as a due process requirement both ties the doctrine to the Constitution’s text and helps explain much of the Court’s discussion of the standing doctrine’s purposes. This article additionally discusses the implications which arise from reframing standing as a due process requirement rather than an Article III requirement.


The U.S. Senate Marriage Bill and the Constitution
Andrew Hyman

House Resolution 8404 titled the “Respect for Marriage Act” seems on track to become law soon, having been amended in the Senate, and then having cleared the 60-vote filibuster threshold (62 to 37).  The full text of the bill following the Senate amendment is here.
Journalist Byron York opines that the bill is needless in view of the U.S. Supreme Court’s decision seven years ago in  Obergefell v. Hodges. My perspective is somewhat different; this legislation seems like a good sign that people realize there’s something insufficient and peculiar about a purported democracy having social policy changed judicially without any clear constitutional authority to do it through the courts alone.

Relatedly, there was a recent debate here at the Originalism Blog between Professors Earl Maltz and Lawrence Lessig about what the Supreme Court meant in The Slaughter-House Cases.  Did the Court mean that the Fourteenth Amendment expanded Congress’s power to compel states to respect new “privileges or immunities of citizens of the United States” or not?  Professor Maltz argued "not" and I think his argument is correct.  However, the language of the Equal Protection Clause is very different from that of the Privileges or Immunities Clause, and the former specifically references "the laws" which refers to both state statutes and federal statutes.  Thus, the Equal Protection Clause contemplated a substantive role for Congress, not merely an enforcement role under Section 5, in my opinion.  So, on that score, it looks to me like a very good thing that Congress is now getting ready to act on the same-sex marriage issue, instead of leaving it solely to the Supreme Court.  

But regardless of whether congressional action is necessary now or not, that still leaves the question whether Congress is going about it in an entirely constitutional way.   The article I linked above from Byron York says that the Senate amendment did not change the fact that the bill “gave the right to sue to one side but not to the other” with regard to religious objectors.  York also says that another Senate amendment was rejected that would have protected a person who "speaks, or acts, in accordance with a sincerely held religious belief, or moral conviction” about what marriage means.  And religion is not the only issue here.

In addition to First Amendment issues about religion, there are also free speech issues unrelated to religion.  First and foremost, the great advances that the United States has made in the area of racial equality never required any state to refer to black people as “white” (or vice-versa).  So, it is at least questionable that Congress would now require states to refer to gay couples as “married,” assuming that there are other non-derogatory words available, and also assuming that all substantive and procedural rights that a state offers are the same for gay couples as for straight couples.  Indeed, when Proposition 8 was passed by Californians in 2008, everyone in the ensuing legal controversy agreed that the state’s civil partnership regime provided all the same rights, including the right of private citizens to call civil unions “marriages,” with only one exception: the right of people in civil unions to demand that the state refer to them as “married.”  As the Supreme Court of California put it: "Proposition 8 … carves out a narrow exception applicable only to access to the designation of the term 'marriage….'"

From an originalist point of view, the Full Faith and Credit Clause (upon which the present House Res. 8404 is largely based) should be construed in a way that causes minimum conflict with the later-enacted First Amendment and any discrepancy resolved in favor of the latter.  Likewise, I do not see any evidence that the Fourteenth Amendment was meant to alter the First Amendment in any way that is pertinent here (nor any way at all).  A state would seem to have a legitimate First Amendment interest in using a word for same-sex couples that the state reasonably believes (1) is respectful, (2) does not imply that having a mother and father is exactly the same as having two fathers or two mothers, and (3) does not modify longstanding definitions of English words.
In a 2015 blog post, Professor Eugene Volokh wrote: “Do state and local governments have First Amendment rights against federally imposed speech restrictions? You'd think this would be settled, but it hasn't been.”  As far as I know, the leading law review article on this subject remains State Actors as First Amendment Speakers by Professor David Fagundes.  Fagundes wrote:

I thus suggest an approach that draws from two strains of constitutional theory, arguing that government speech can lay claim to constitutional protection only where the expressive conduct at issue is intrinsic to the public function of the entity speaking and where that conduct furthers the values of democratic self-government that animate the First Amendment.

Issuing licenses to couples is a longstanding public function dating back to the early 1600s in the United States, and phrasing those licenses is an intrinsic part of that function.  Moreover, the Full Faith and Credit Clause was designed to prevent significant disruptions between states, and the vocabulary dispute at issue here seems rather non-disruptive in an interstate sense.  Quebec uses an entirely different language from Saskatchewan, but Canada survives, and here we are discussing but a single word, albeit one with large social ramifications.  The First Amendment should stop the federal government from forcing states to use one reasonable vocabulary instead of another reasonable vocabulary, when it comes to this matter.


Rocky Rhodes & Andra Robertson on Originalist Arguments in Mallory v. Norfolk Southern
Michael Ramsey

At Prawfsblawg, Rocky Rhodes (South Texas) and Andra Robertson (Case Western), guest blogging: The Mallory Argument on Personal Jurisdiction via Corporate Registration.  From the introduction:

... Mallory v. Norfolk Southern Railway Co. [argued to the Supreme Court earlier this month], ... addresses the constitutional limits on states asserting jurisdiction over a nonresident corporate defendant that registers to do business in the state. Under 42 Pa. C.S. § 5301, state courts obtain “general jurisdiction” over a nonresident corporation registering to do business. Mallory claims that this statute supports Pennsylvania’s jurisdiction over his FELA claim against his employer Norfolk Southern Railway because the railroad is registered to business in the state—even though Mallory is a citizen of Virginia, the railroad is incorporated with a then-principal place of business in Virginia (now in Atlanta, Georgia), and his claim arose from his alleged exposure to carcinogens in Virginia and Ohio. The railroad counters that the exercise of personal jurisdiction violates the Due Process Clause and the unconstitutional conditions doctrine. We had a series of posts on this case on Prawfs shortly after certiorari was granted last April (see herehere, and here), and Howard invited us back to report on the oral argument and the briefing in the case. We’ll highlight the primary positions of the parties, the Justices who pushed back, and some interesting tidbits for our fellow jurisdictional aficionados.

On the claimant's  historical arguments:

Mallory’s primary argument is that the Pennsylvania statute is constitutional under the original public meaning of the Fourteenth Amendment. His merits brief includes an exhaustive compilation of state statutes during the 1800s tying corporate registration to a state’s adjudicative jurisdiction, with the first of these statutes appearing in the 1820s. This listing is not a surprising strategy for a plaintiff confronting a Court that has a reputation for being sympathetic to business interests while also (at least sometimes) singing the praises of originalism. Such historical archival compilations may become as commonplace in constitutional cases before the Roberts Court as the Brandeis brief was during the Lochner era.

But several Justices questioned the impact of these statutes, as did the railroad. Justice Barrett doubted that all the listed statutes were on point—some involved questions of service of process and others did not authorize all claims against the registering defendant, but rather only claims brought by a resident of the forum. The railroad also argued that most of the statutes were distinguishable and that nineteenth century cases did not support that jurisdiction was appropriate under these statutes when the plaintiff was a nonresident and the cause of action arose outside the forum. Mallory responded that all the statutes were relevant, while admitting that there were very few cases that employed these statutes in “foreign cubed” cases, where neither the defendant nor the plaintiff was a resident of the forum and the events giving rise to the claim occurred outside the forum. The statutes were more commonly applied in “foreign squared” cases, where at least the plaintiff was a resident of the forum. But in response to Justice Alito, Mallory maintained that the existence of the statutes was enough—he did not have to show a tradition of those statutes being applied by the courts to establish original public meaning.

Justice Thomas asked a question that he was able to avoid (by discounting the many proffered analogies to gun restrictions in the Founding and Reconstruction eras) in his opinion this summer in New York State Rifle & Pistol Association v. Bruen—how many state statutes are necessary to establish the original meaning? Mallory responded that was a difficult issue, but thought the compilation of statutes in the brief satisfied the requirement. But that would not be the case, of course, if the Court views the statutes as distinguishable.


The railroad, of course, had a different view. Tag jurisdiction against natural persons [ed.: which the Supreme Court approved in Burnham v. Superior Court, a Scalia plurality], the railroad contended, was supported by a longstanding historical tradition, while there was only a smattering of statutes and almost no cases indicating that registration could support general jurisdiction. The railroad maintained that the old service of process statutes referenced in Mallory’s brief were simply not enough. And tag jurisdiction was also different since a person can only be in one state at a time, while a corporation might be coerced to consent to jurisdiction simultaneously in each and every state.

The how-much-practice-is-enough question is a very significant methodological issue for which I think the Justices don't have a clear answer.  In my view it necessarily involves a related question about who has the burden of proof -- another very significant methodological issue for which I think the Justices don't have a clear answer.


Mila Sohoni: The Major Questions Quartet
Michael Ramsey

Mila Sohoni (University of San Diego School of Law) has posted The Major Questions Quartet (Harvard Law Review, Vol. 136, p. 262, 2022) (57 pages) on SSRN.  Here is the abstract:

This Case Comment, prepared at the invitation of the Harvard Law Review for its annual Supreme Court issue, describes and evaluates the “major questions quartet”: the CDC eviction moratorium case, the OSHA vaccine mandate case, the CMS vaccine mandate case, and the EPA Clean Power Plan case. Because none of these cases reached a constitutional holding, they are overshadowed by the Term’s blockbuster decisions involving fundamental rights. But no one should mistake these cases for anything but what they are: separation of powers cases in the guise of disputes over statutory interpretation.

While ostensibly applying existing major questions case law, the quartet in actuality altered the doctrine of judicial review of agency action in its method and content, in ways that will have momentous consequences. To begin with, the quartet unhitched the major questions exception from Chevron, which has been silently ousted from its position as the starting point for evaluating whether an agency can exert regulatory authority. Instead, the CDC case initiated, and the OSHA and EPA cases completed, a transition to a new order of operations for evaluating the legality of major regulatory action. Under the test that the quartet has now designated as the “major questions doctrine,” the Court will not sustain a major regulatory action unless the statute contains a clear statement that the action is authorized. The import of this shift can be measured by the yardstick of earlier cases. If the method enunciated by the quartet is the law, King v. Burwell and Babbitt v. Sweet Home (among others) cannot possibly have been right, and Massachusetts v. EPA is standing on quicksand. Yet no Justice acknowledged, let alone defended, the disjoint between such precedents and the method charted in the quartet.

There is one prediction, though, that the Court notably did not fulfill last Term. The world of administrative law has recently been on tenterhooks, awaiting with bated breath the Court’s revival of the nondelegation doctrine. Yet, strikingly, this did not occur, despite the obvious opening for a nondelegation renaissance that these cases supplied. Rather than saying anything of substance about what the law (of nondelegation) is, the Court instead told us that it is emphatically the province of the judicial branch to say what the law must say clearly. The Court’s reticence on nondelegation creates deep conceptual uncertainty about what exactly it was doing in the quartet — a conceptual uncertainty that will matter for future cases. It is not clear what theory of nondelegation, if any, underlies and justifies the major questions quartet. And without knowing what that underlying theory is, it becomes much harder to sensibly apply a rule that ostensibly exists “in service of” that underlying doctrine. The major questions quartet may seem to be a pragmatic type of light-touch nondelegation that pumps the brakes on the occasional instance of regulatory overreach while carefully eschewing hard constitutional limits on Congress’s power to delegate. But whenever the Court — especially a supposedly textualist Court — imposes a requirement on Congress that it legislate with special clarity, the Court should articulate a concrete and specific constitutional value that justifies that rule. The Court chose not to do that in the quartet, and — as this Comment argues — serious reasons exist to doubt whether it could.

The Comment proceeds as follows. Part I describes the evolution of the major questions exception into a new clear statement rule that operates as a presumption against reading statutes to authorize major regulatory action. It then explores how the quartet broke ties with one landmark case (Chevron) and silently ignored the methodology of many others, and closes with an examination of the hard questions posed by the quartet concerning the Court’s commitment to textualism. Part II turns to the dog that didn’t bark in these cases — nondelegation — and the relationship of the major questions quartet to nondelegation. It explains that the collective upshot of these cases may be to significantly reduce the set of cases in which it will be necessary to reach a full-dress constitutional nondelegation holding while still allowing nondelegation doctrine to be effectively resurrected, though less visibly, on a retail level. It then evaluates whether the quartet’s clear statement rule can be justified by the principle of constitutional avoidance or as a device to protect constitutional values. In the brief conclusion that follows, the quartet is situated in a broader historical arc as the latest installment of a longer pattern in which the Court has used interpretive methods to promote, and now to curtail, administrative governance.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Important, impressive, and highly recommended.  Download it while it's hot!"  Agreed!