The First Step Act and the Pardon Power – Dave Yost & Benjamin M. Flowers

Posted by mmullin on Sep 29, 2023 in Per Curiam

The First Step Act and the Pardon Power

Dave Yost & Benjamin M. Flowers*

Mercy is a virtue.  It implies a lack of worthiness on the part of the person to whom mercy is shown—to release an innocent prisoner is not mercy, but justice.  Mercy is an act that overlooks a wrong and acts humanely, with compassion and with a view toward restoration.

But mercy is not the only virtue.  And it can work at cross-purposes with others, especially in government.  Consider prudence.  Exhibiting mercy to a criminal defendant generally means exposing the public to some risk of injury.  Prudence may counsel against imposing such risks on innocent third parties.  But the zealous distributor of mercy may forget this.

Now consider humility.  In a republic like ours, a good public servant realizes that he possesses only limited powers, and that this prevents him from righting every wrong.  When government officials arrogate power to themselves in hopes of furthering “preferred policies, even urgent policies,” “they always undermine” the “vertical and horizontal separation of powers, the true mettle of the U.S. Constitution, the true long-term guardian of liberty.”[1]  An over-eagerness to show mercy to every deserving recipient can lead to precisely this sort of arrogation.

The brilliant minds who wrote our Constitution understood all this.  That is apparent in their decision to give the President alone the power to grant commutations. [2]  The President alone wields the awesome responsibility to spare fellow citizens from the (potentially very serious) consequences of their criminal acts.  This vesting of exclusive authority empowers the President to exercise mercy while simultaneously encouraging prudence.  Because the responsibility of issuing commutations is the President’s alone, the President must live with the consequences—personal and political alike—of showing or denying mercy to a prisoner.

The First Step Act of 2018 upsets this framework.  It empowers courts to grant “compassionate release” to prisoners.[3]  Courts may reduce a prisoner’s sentence if “extraordinary and compelling reasons warrant such a reduction.”[4]  In other words, the Act empowers courts to issue commutations.  It thus reflects a profound lack of humility.  Congress, apparently frustrated with Presidents’ cautionary approach to commutations, exercised power it lacks:  it took from the President, and gave to the courts, the constitutionally assigned responsibility over issuing and denying commutations.

The Act’s compassionate-release provisions, by empowering the judiciary to exercise a power that the Constitution gives to the President alone, violates the Constitution.  It is terrible policy to boot.  In this essay, we address both issues.

I

A

“The Constitution creates a Federal Government of enumerated powers.”[5]  That “enumeration of powers is also a limitation of powers, because ‘the enumeration presupposes something not enumerated.’”[6]  “The Constitution’s express conferral of some powers makes clear that it does not grant others.  And the Federal Government ‘can exercise only the powers granted to it.’”[7]

One upshot of these principles is that no branch may exercise powers vested in another.[8]  After all, if each of the three branches is limited to exercising its enumerated powers only, then any branch that exercises a power vested in another branch violates the Constitution to the same degree as it would by exercising a power vested in no branch—in either situation, the offending branch exercises power the Constitution does not give it.  When a government “function requires the exercise of a certain type of power,” “only the branch in which that power is vested can perform it.”[9]

B

The United States Constitution vests the President with the “Power to grant Reprieves and Pardons for Offenses against the United States.”[10]  It vests that power in no other branch.  From this, and from the foregoing principles, it follows that no other branch may exercise the pardon power.[11]

What does this pardon power consist of?  The “language used in the constitution, conferring the power to grant reprieves and pardons, must be construed with reference to its meaning at the time of its adoption.”[12]  At that time, a “pardon” was “a work of mercy,” whereby the executive, “either before attainder, sentence or conviction, or after, forg[ave] any crime, offence, punishment, execution, right, title, debt or duty.”[13]  This definition encompasses commutations, which forgive a “punishment” or “execution” rather than a “crime.” Accordingly, the President’s pardon power has long been understood to include the power to exercise mercy by commuting a sentence.[14]

II

With these principles in mind, we turn to the First Step Act and its intrusion on the President’s prerogatives.

The First Step Act empowers courts, upon motion by a convict, to award “compassionate release.”  The relevant provision states:

(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that–

(i) extraordinary and compelling reasons warrant such a reduction; or

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission . . . .[15]

This provision empowers courts to reduce an inmate’s sentence as an act of mercy; courts may reduce a sentence not because of an error in the original judgment, but for non-legal reasons that a court deems “extraordinary and compelling.”[16]  A court-imposed sentence reduction justified with reference to non-legal reasons is a commutation by another name.  And that presents a rather serious problem: as discussed already, only the President may wield the pardon power.

Congress cannot evade the constitutional division of power by giving the judiciary the power to grant pardons by another name.  As the Sixth Circuit observed almost thirty years ago, courts cannot “change” a custodial sentence “into a sentence of probation” once the “convict has begun serving [his] custodial sentence”—to do so would require exercising the pardon power, which the Constitution vested in the President alone.[17]  The Supreme Court signaled its agreement about a half century earlier.  In Affronti v. United States, it interpreted a federal sentencing statute as giving the courts, in cases involving a convict sentenced to consecutive prison terms, no “authority to put [the] convict on probation of an uncommenced term” once “service of an earlier term ha[d] begun.”[18]  A contrary interpretation, it reasoned, would cause the law to conflict with the President’s pardon power.[19]

These cases confirm what the Constitution’s text and structure make clear:  because courts have no power to grant commutations, they cannot change an already-commenced sentence into something lesser as an act of mercy.[20]   To effect such a change is to grant a pardon.  And to grant a pardon is to exercise power the Constitution vests in the President alone.

To be clear, accepting our argument would not jeopardize the courts’ power to correct legally improper sentences, either on appeal or through reconsideration proceedings.  The power to correct erroneous sentences is part and parcel of the “judicial Power” that Article III vests in the federal courts; that power has long been understood to permit review and correction of earlier entered judgments.[21]  The conflict with the pardon power arises only when courts change an already-commenced sentence as an act of mercy.  Since that is what the First Step Act’s compassionate-release provisions invite courts to do, it is unconstitutional.

III

Because the compassionate-release provision is unconstitutional, courts cannot enforce it.[22]  And Congress should repeal it.  Indeed, Congress would be wise to consider repealing the provision without regard to its unconstitutionality.  The compassionate-release provision “reflects one particular view about crime and punishment that is ascendant in some quarters today”—a view pursuant to which our criminal-justice system is too harsh on criminals.[23]  Whatever one makes of that view generally—we are dubious, to put it mildly—it has little traction in the commutation context.

Begin by considering public safety.  Prisons are dangerous places.  Most Americans never check in.  Barely any take extended stays.  Those who do are among “society’s most antisocial and violent people,” who have either committed a heinous crime or shown a repeated inability to conform to society’s behavioral expectations.[24]

The pardon power enables the President to let such individuals loose on society.  And it comes with almost no restrictions; the President can unilaterally pardon anyone for any “Offence[] against the United States, except in Cases of Impeachment.”[25]  He can do so for any reason, or for no reason at all.[26]  “The pardon power is, then, a sweeping constitutional power that is checked only by the political process and the power of voters to elect a new President should they disagree with the clemency decisions of the current one, or a Congress angry enough to seek impeachment.”[27]

That political check is powerful.  Most Presidents (and most governors, too), are unwilling to risk their own political futures, or the political futures of their allies, by pardoning a convict who has even a small chance of reoffending.[28]

The political check is complemented by the unitary nature of the executive branch.  The Constitution vests all “legislative Powers” it grants “in a Congress of the United States”—a Congress composed of numerous individuals.[29]   It vests the “judicial Power of the United States … in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”[30]  That too amounts to the vesting of authority in multi-member institutions.  In sharp contrast, the “executive Power shall be vested in a President of the United States of America.”[31]  The Constitution thus vests the executive power in a single office run by a single person; the “entire ‘executive Power’ belongs to the President alone.”[32]  Of course, “it would be ‘impossible’ for ‘one man’ to ‘perform all the great business of the State.’”[33]  Thus, as George Washington recognized long ago, the Constitution permits “lesser executive officers” to “‘assist the supreme Magistrate in discharging the duties of his trust.’”[34]  But these lesser officers are assistants only.  Aside from independent agencies irrelevant for present purposes, the entire executive branch answers to the President.  In the folksier language of a twentieth-century successor to Washington, “the buck stops” with the President.[35]

The unitary executive makes the pardon power work.  As Joseph Story observed two centuries ago, a “sense of responsibility is always strongest in proportion, as it is undivided.”[36]  An official who must accept personal responsibility for either continuing a fellow citizen’s incarceration or releasing that citizen and risking his reoffending, is “at once a more enlightened dispenser of mercy, and a more firm administrator of public justice.”[37]  Precisely because the President’s power is undivided, the executive branch is “most ready to attend to the force of those motives, which might plead for a mitigation of the rigour of the law; and the least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance.”[38]

In sum, political pressures, and the weight of the responsibility conferred by the pardon power, impose important limits where otherwise there are none.  The First Step Act, however, evades these limits by vesting a commutation power in the judiciary, “the unelected and politically unaccountable branch of the Federal Government.”[39]  The judiciary, in addition to being insulated from political pressures, is far from “undivided.”[40]  Every judge in the entire judiciary exercises only a share of the judicial power, and none reports to any superior in the way the President’s subordinates report to him.  Thus, at least at the appellate level, no one judge must take sole responsibility for the decision to release a convict early; the responsibility for doing so is likely to be borne by the entire judiciary, or at least shared with other members of the appellate panel.  Plus, the judge who commutes the sentence of a convict who goes on to reoffend upon release can always evade responsibility (or find comfort) by claiming that Congress forced his hand.  The President, who exercises the unqualified pardon power, has no such luxury.

Congress seems to have treated the judiciary’s insulation from political pressures as a feature, not a bug.  Remember, the First Step Act empowers courts to grant compassionate release upon a motion filed by either the defendant or “the Director of the Bureau of Prisons.”[41]  The Director of the Bureau of Prisons reports to the President.  So the Director could simply ask his superior to commute the sentences of anyone deserving of commutation.  But the Act empowers the Director to instead seek a commutation through the courts.  There is just one conceivable reason to allow the Director to seek a court order accomplishing something his superior could do directly:  Congress believed that, without some mechanism to distance politically accountable actors from the negative effects of early release, few prisoners would be released early.

Congress was almost certainly correct.  Because courts are not hemmed in by political and other pressures that apply to the President, the compassionate-release provisions are likely to result in more early releases.  At least some of these individuals will go on to assault, maim, rape, and murder law-abiding citizens—citizens well-served by the Founders’ choice to vest the pardon power in a politically accountable actor.

While the First Step Act risks public safety, it does so without obviously helping criminal defendants.  If sentencing courts know that compassionate release is available years after sentencing, they have one less reason to show mercy when imposing the sentence.  A judge may reasonably choose a higher sentence over a lower one, comforted by the fact that he (or one of his peers) can issue a commutation.

Regardless, the Act’s instruction to focus on the defendant’s difficult circumstances unbalances the determinations that ought to bear on sentencing.  The sentencing factors glancingly referred to in the First Step Act include the protection of the public, deterrence, the needs of the defendant, and the seriousness of the crime.[42]  But the First Step Act directs courts’ attention primarily to the presence or absence of “extraordinary and compelling” circumstances facing the defendant.[43]  This defendant-first focus risks demeaning the seriousness of the crime.  Most people would be unmoved by the suffering of an aged and infirm child rapist.  A sentence deters and punishes, but it also represents a statement of society about the degree of the evil involved in the underlying crime.  The President, elected to make broad decisions applicable to all, is in much better position to balance those interests than the judicial officer whose role is to decide individual cases and controversies.

*

We acknowledge the vital role that mercy plays in our system.  But there is also a place for protecting the public.  The Constitution, by vesting the pardon power in a single executive officer, struck a balance between mercy and protection—a balance that has served us well for almost 250 years.  Even if the Constitution permitted Congress to pass a law striking a new balance, we see no reason to run the risk to public safety posed by the compassionate-release provision.

* Dave Yost is the Ohio Attorney General.  Benjamin M. Flowers is the Ohio Solicitor General.  All views expressed in this piece are theirs alone.

[1] In re MCP No. 165, 20 F.4th 264, 269 (6th Cir. 2021) (Sutton, C.J., dissenting from denial of initial hearing en banc).

[2] U.S. Const. art. II, § 2, cl. 1.

[3] First Step Act of 2018, Pub. L. 115-391, §603(b), 132 Stat. 5194, 5239 (2018).

[4] 18 U.S.C. § 3582(c)(1)(A)(i).

[5] United States v. Lopez, 514 U.S. 549, 552 (1995).

[6] NFIB v. Sebelius, 567 U.S. 519, 534 (2012) (alteration accepted) (quoting Gibbons v. Ogden, 22. U.S. (9 Wheat.) 1, 195 (1824)).

[7] Id. at 534–35 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819)).

[8] See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 31–32 (2015); Stern v. Marshall, 564 U.S. 462, 484 (2011).

[9] Dep’t of Transp. v. Ass’n of Am. Railroads, 575 U.S. 43, 69 (2015) (Thomas, J., concurring); accord City of Arlington v. FCC, 569 U.S. 290, 304 n.4 (2013).

[10] U.S. Const., art. II, § 2, cl. 1.

[11] United States v. Williams, 15 F.3d 1356, 1361 (6th Cir. 1994); see also Affronti v. United States, 350 U.S. 79, 83 (1955); see also Joseph Story, Commentaries on the Constitution, Vol. 2, § 1498, 320-321 (Thomas M. Cooley ed., 4th ed. 1873).

[12] Ex parte Wells, 59 U.S. (18 How.) 307, 311 (1855).

[13] Id. (quoting Lord Coke, 3 Inst. 233).

[14] Id. at 314–15; Schick v. Reed, 419 U.S. 256, 263–264 (1974).

[15] 18 U.S.C. § 3582(c)(1).

[16] Id.

[17] United States v. Williams, 15 F.3d 1356, 1363 (6th Cir. 1994).

[18] 350 U.S. 79, 83 (1955).

[19] Id.

[20] Williams, 15 F.3d at 1363–65.

[21] U.S. Const. art. III, § 1.

[22] See generally Br. of Amici Curiae States of Ohio and Montana in Support of Neither Party at 24-27, California v. Texas, 141 S.Ct. 2104 (2021) (Nos. 19-840, 1019); Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018).

[23] United States v. Haymond, 139 S. Ct. 2369, 2400 (2019) (Alito, J., dissenting).

[24] Farmer v. Brennan, 511 U.S. 825, 858 (1994) (Thomas, J., concurring).

[25] U.S. Const. art. II, § 2, cl. 1.

[26] See Ex parte Grossman, 267 U.S. 87, 121 (1925).

[27] Rachel E. Barkow, Clemency and Presidential Administration of Criminal Law, 90 N.Y.U. L. Rev. 802, 813 (2015) (footnotes omitted).

[28] See Paul Rosenzweig, Reflections on the Atrophying Pardon Power, 102 J. Crim. L. & Criminology 593, 594 (2012) (footnote omitted).

[29] U.S. Const. art. I, § 1.

[30] U.S. Const. art. III, § 1.

[31] U.S. Const. art. II, § 1 (emphasis added).

[32] Seila Law LLC v. CFPB, 140 S.Ct. 2183, 2197 (2020) (quoting U.S. Const. art. II, § 1).

[33] Id. (alterations accepted) (quoting 30 Writings of George Washington 334 (J. Fitzpatrick ed. 1939)).

[34] Id. (quoting 30 Writings of Washington, at 334).

[35] President Harry S. Truman, Motion Picture MP2002-401, Screen Gems Collection, Harry S. Truman Library, [https://perma.cc/SCZ2-YEPH]

[36] Story, supra note 11, at 348.

[37] Id. at 349.

[38] Id. at 348–49.

[39] Rucho v. Common Cause, 139 S. Ct. 2484, 2507 (2019).

[40] Story, supra note 11, at 348.

[41] 18 U.S.C. § 3582(c)(1)(A) (emphasis added).

[42] 18 U.S.C. § 3553(a).

[43] 18 U.S.C. § 3582(c)(1)(A)(i).

What Part of “In Common Use” Don’t You Understand?: How Courts Have Defied Heller in Arms-Ban Cases—Again – Mark W. Smith

Posted by mmullin on Sep 27, 2023 in Per Curiam

What Part of “In Common Use” Don’t You Understand?: How Courts Have Defied Heller in Arms-Ban Cases—Again

Mark W. Smith[*]

Introduction

In the year since New York State Rifle & Pistol Association v. Bruen[2] was decided, a line of argument has developed in the lower courts that effectively seeks to relitigate and nullify District of Columbia v. Heller.[3]

Heller established the constitutional test to determine what arms are protected by the Second Amendment. After examining the text of the Second Amendment, as illuminated by history, Heller determined that bearable arms that are “in common use” today are constitutionally protected and cannot be banned.[4]

To circumvent Heller, government litigants, their amici, and some lower courts have seized upon a single sentence in Bruen that states that “[w]hile the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.”[5] Gun-control proponents claim that improvements in firearms technology, such as the development of semiautomatic weapons, are “dramatic technological changes” and that mass shootings are “unprecedented societal concerns” that did not exist at the Founding. According to some courts, these changes and concerns justify bans on so-called “assault weapons” and what are mislabeled “large capacity magazines.”[6]

That contention is wrong because Heller’s “in common use” test governs in all arms-ban cases including “assault weapon” bans, “large capacity magazine” bans, and non-roster handgun bans. The language from Bruen regarding technological changes and societal concerns is not a legal test that governs decisions either in arms-ban cases or in non-arms-ban cases. It is part of a description of the methodology that Bruen lays out for lower courts in deciding “other cases” not governed by Heller’s “in common use” test or by Bruen’s actual decision regarding restrictive, discretionary licensing systems regulating the public carry of arms.

Just as generations of Latin students learned that “All Gaul is divided into three parts,”[7] all Second Amendment cases after Heller and Bruen are divided into two categories: 1) laws that ban the possession or sale of particular arms (or the components required for them to function),[8] or 2) laws that otherwise regulate the sale or use of arms without banning particular weapons.[9] Cases in the first category are directly controlled by Heller and its test for arms bans. Cases in the second category are not.

In arms-ban cases, Heller’s “in common use” constitutional test controls, and there is nothing for the lower courts to do except apply that test to the facts at issue. In other, non-ban cases, the methodology described in Bruen must be followed to arrive at a test that provides the rule for deciding that case and similar cases.[10] It is only in the second, non-arms ban category of cases that “unprecedented societal concerns” and “dramatic technological changes” might have some application. But that language is not itself a test, and it is irrelevant in arms-ban cases.

The Heller test looks at what arms are “in common use” today, not in the past. If semiautomatic rifles and handguns that accept detachable magazines are in common use today, they are protected. Their ubiquity, and their being “in common use,” confirms their protected status under the Second Amendment.

Such arms cannot be banned simply because they employ technology that some legislators or judges think is too dangerous. When Heller was before the Court, the parties and their amici presented arguments concerning the alleged exceptional “dangerousness” of modern firearms (in that case, handguns).[11] After considering these arguments, the Supreme Court adopted the “in common use” test without any exceptions for weapons that are allegedly too dangerous.

Likewise, parties also presented arguments concerning “unprecedented societal concerns” to the Heller Court.[12] The Court adopted the “in common use” test without any limitation based on these allegedly unprecedented concerns.

Nevertheless, some post-Bruen courts have utterly disregarded the Supreme Court’s binding precedent in Heller governing what arms are protected. Having lifted language about “unprecedented societal concerns” and “dramatic technological changes” from Bruen’s description of the methodology for non-arms-ban cases, some courts, as discussed below, have refused to apply Heller’s binding test. Instead, these courts conduct their own historical analyses to determine what arms are protected and formulate new tests that are contrary to Heller. Under such tests, lower courts have held that arms that are “exceptionally dangerous” or “particularly dangerous”—such as “assault weapons”—may be banned, even though they are unquestionably “in common use.”[13] In doing so, these courts have not only refused to apply binding Supreme Court precedent but have also resurrected the discredited “interest balancing tests” rejected in Heller and expressly abrogated in Bruen.

I. Heller’s “in common use” test was reaffirmed in Bruen and governs in arms-ban cases.

Heller was an arms-ban case. The District of Columbia had imposed a ban on the possession of handguns, with only minor exceptions.[14] The Heller Court, therefore, had to decide whether handguns fell within the scope of the Second Amendment’s protection of “arms,” and thus could not be banned. To do that, the Court first had to decide the constitutional test for determining whether a class of arms is protected by the Second Amendment, and then determine whether that protection extended to the kind of arm at issue in the case.

The Heller Court applied the methodology later explicitly spelled out in Bruen to decide the appropriate constitutional test.[15] That methodology starts with evaluating the plain text of the Second Amendment. The plain text of the Second Amendment is clear—it protects the right to “keep and bear arms.”[16] Because it is the right to keep and bear arms, that implies one limitation of the right—the arms it protects must be “bearable.”[17] And what are arms? “Weapons of offence, or armour of defence”; in other words, “any thing that a man wears for his defence, or takes into his hands or useth in wrath to cast at or strike another.”[18] The plain text of the Second Amendment thus has an expansive scope: “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”[19] Moreover, the term “arms” includes “modern instruments that facilitate armed self-defense.”[20]

Heller also indicated that the Second Amendment’s protection, like that of other constitutional rights, is “not unlimited.”[21] Although those in support of arms bans quote that language as a talisman, the statement is really an unremarkable observation about constitutional law. The Court read United States v. Miller[22] as recognizing that “the Second Amendment extends only to certain types of weapons.”[23] When it came to consider “what types of weapons Miller permits,” the Court noted that “Miller said … that the sorts of weapons protected were those ‘in common use at the time.’”[24] The Court identified one and only one historical tradition that could fairly support a ban on possession of a type of arm: “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”[25] This limitation dovetailed with the historical practice of the militia bringing “the sorts of lawful weapons that they possessed at home to militia duty”; i.e., weapons that were “in common use at the time.”[26]

These passages, taken together, established a constitutional test for determining what kinds of arms are protected under the Second Amendment. In more formal language, Heller established the rule of decision for arms-ban cases: that is, the legal principle governing judicial decision-making in cases of a particular kind.[27] The general rule of decision embraced in Heller is that arms “in common use” are protected by the Second Amendment and cannot be banned. That is the legal test in a Second Amendment challenge to an arms ban. The Court then applied that constitutional test or rule of decision to the facts presented by Heller and held that because handguns are “in common use,” handguns cannot be banned.

Heller remains good law and provides the binding rule of decision in arms-ban cases.[28] When the modern-day regulation seeks to ban a type of arm, the Heller test controls. Far from undermining or altering Heller, Bruen reinforced it, stating expressly that Heller found that “the Second Amendment protects the possession and use of weapons that are in common use.”[29] And Bruen added that “even though the Second Amendment’s definition of ‘arms’ is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense.”^[30]

In its discussion of historical analogues, Bruen was merely describing, for the benefit of litigants and lower courts, the methodology that should be followed in future non-arms-ban cases, so that courts could perform the proper analysis in those cases. Only in non-arms-ban cases might the societal concerns and technological changes have some relevance. But such concerns and changes do not create an exception to Heller’s “in common use” test or allow that test to be cast aside. The Heller test is not an exception to the Bruen methodology, but rather the result of the Court’s application of that same “text and historical tradition” methodology to the facts in Heller. Bruen merely described for lower courts how to apply that methodology in types of Second Amendment cases yet to be decided. Arms-ban cases are not such cases, for Heller already has decided that the “in common use” test governs.

Straightforward application of the “in common use” test should lead courts to strike down bans on “assault weapons” and on “large capacity magazines” because those arms and magazines are unquestionably in common use.

II. Bruen described the methodology to be followed in cases in which Heller does not establish the rule of decision.

Heller’s “in common use” test is of little, if any, relevance in Second Amendment cases in which the question presented is not whether a particular arm is protected, but some other issue regarding the possession or use of arms.

Because the lower courts had largely misapplied Heller for fourteen years, the Bruen Court felt compelled to explain exactly how an originalist approach should proceed in non-arms-ban cases in the future. The Supreme Court used Bruen as a teaching tool for lower courts that failed to follow the clear originalist methodology demonstrated in Heller. But Bruen first had to clear away the underlying mistakes made by the lower courts. No, Bruen said, there is no two-step test, in which Second Amendment rights could be, and nearly always were, eliminated by intermediate scrutiny “interest balancing.”[31] No, Bruen said, addressing the specific issue before the Court, Second Amendment rights are not a privilege that can be denied to almost everyone through a restrictive, discretionary licensing system that requires a showing of “proper cause” (that is, a special need) to obtain a license.[32]

Having done away with these past errors, Bruen then outlined how lower courts should conduct an originalist analysis in non-arms-ban cases. Courts should begin with an examination of the plain text of the Second Amendment as it bears on the question under consideration.

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”[33]

Note that this is not itself a test or a rule of decision. This is instead a description of a methodology that a court must employ to arrive at a rule of decision comparable to the “in common use” test that Heller ultimately arrived at for arms-ban cases. Bruen expressly tied this methodology to the approach the Court had followed in Heller; hence, Bruen’s phrase “in keeping with Heller.” In explaining why the two-step approach previously employed by the lower courts must be rejected, the Bruen court “summarize[d] Heller’s methodological approach to the Second Amendment.”[34] That summary showed that Heller’s methodological approach, even though not made so explicit, was the same as the methodology described in Bruen. Indeed, in explaining and exemplifying a methodology for Second Amendment cases to come, Bruen bolstered Heller’s approach and constitutional test. Bruen not only described the methodology to be applied, but also served as its own example of how the text-and-historical-tradition methodology is to be applied by the lower courts—i.e., Bruen showed by practice how to do what it and Heller preached.

Having explained the ways in which the lower courts had gone wrong under Heller, Bruen then went on to prescribe in detail how Heller’s methodology should be implemented in other cases by use of historical analogues. That methodology for the future included observations about three situations in which the presence or absence of analogues might suggest the unconstitutionality of a present-day law,[35] a discussion of reasoning by analogy and when two laws may be “relevantly similar,”[36] two important “metrics” for comparing analogues,[37] and related matters.

It is deep within this discussion of analogues that Bruen noted that, unlike the relatively straightforward analogues in Heller and in Bruen itself, there might be circumstances in “other cases” in which “unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.”[38] But this consideration comes into play only when a court is engaged in examining analogues in non-arms-ban cases for which Heller does not provide the binding rule of decision. Bruen acknowledges that in these “other,” non-arms-ban cases some questions may require a “more nuanced” approach to the use of historical analogues than the relatively easy questions presented in Heller and Bruen. Because Bruen’s discussion of societal concerns and technological changes applies only in non-arms-ban cases, arguments about alleged societal concerns and technological changes are not relevant in arms-ban cases because Heller provides the relevant legal test.

III. The Heller “in common use” test already accounts for technological changes and societal concerns arising from those changes by providing Second Amendment protection to arms “in common use” today.

A common argument raised in support of “assault weapon” bans is that due to alleged “dramatic technological changes” so-called “assault weapons” and “large capacity magazines” are more lethal than previous kinds of firearms, and lead to increased mortality in mass shootings. But that argument is misplaced for many reasons.

First, the Supreme Court has been aware of such contentions throughout the development of its Second Amendment jurisprudence. In the 2010 McDonald case, some respondents had urged that the “Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety.”

But the Supreme Court dismissed this assertion by correctly noting that:

The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.[39]

Second, briefing in Heller pointed out the alleged exceptionally dangerous nature of handguns, the rise of mass shootings, and similar concerns about violence and public safety. Ironically, when Heller was briefed in 2008, the District of Columbia and its amici argued that handguns were particularly dangerous and lethal, while there were few, if any, mentions of rifles such as “assault weapons” being “especially dangerous.” In Heller, the District argued that its handgun ban “do[es] not disarm the District’s citizens, who may still possess operational rifles and shotguns.”^[40] It further argued that “the [D.C.] Council . . . adopted a focused statute that continues to allow private home possession of shotguns and rifles, which some gun rights’ proponents contend are actually the weapons of choice for home defense.”^[41] Today, gun ban advocates argue that so-called “assault rifles” are unusually dangerous and must be banned.

While the public policy arguments based on “dangerousness” that were briefed in Heller cannot be listed comprehensively here, the following are a few examples:

• “In the recent Virginia Tech shooting, a single student with two handguns discharged over 170 rounds in nine minutes, killing 32 people and wounding 25 more.”[42]
• “When more rounds are fired and guns can be more quickly reloaded, the likelihood of inflicting wounds, and the severity of the resulting injuries, increases. This unfortunate fact is illustrated all too often in mass shootings in America’s schools, malls, places of worship, and other public arenas.”[43]
• “Handguns also are used in an extraordinary percentage of this country’s well-publicized shootings, including the large majority of mass shootings. A review of 50 high-profile shootings over the past four decades revealed that from 1980 onward the bulk of such incidents (39) were mass shootings. A handgun was used in 74 percent of these mass shootings as the only or primary weapon.”[44]
• “The [D.C.] Council targeted handguns because they are disproportionately linked to violent and deadly crime…. [The Council found that] ‘handguns are used in roughly 54% of all murders, 60% of robberies, 26% of assaults and 87% of all murders of law enforcement officials.’ Handguns were also particularly deadly in other contexts: ‘A crime committed with a pistol is 7 times more likely to be lethal than a crime committed with any other weapon.’”[45]
• “The District considered evidence indicating that murders, robberies, and assaults were more likely to be committed with a handgun. Based on this evidence, the District concluded that handguns were uniquely dangerous and that it was necessary to prohibit the possession and use of such guns, while still permitting access to other weaponry if licensed and stored safely.”[46]
• “Handguns for the civilian market now fire ammunition capable of piercing body armor—the last line of defense responsible for saving thousands of police officers’ lives.”[47]

Arguments that certain firearms must be banned because of alleged technological changes or social problems are not new. As illustrated above, those same arguments were made to the Supreme Court about handguns in Heller. Parties supporting the District of Columbia’s handgun ban in Heller focused a great deal on societal problems such as the criminal misuse of the firearms, mass shootings, and the allegedly dramatic technological developments in firearms that supposedly created or exacerbated these problems. The only difference between those arguments in Heller and the arguments today is that those made in 2008 concerned the “uniquely” dangerous nature of modern handguns in relation to societal problems. Now, those very arguments are being advanced against modern rifles and magazines, i.e., so-called “assault rifles” and “large capacity magazines,” with no substantive difference. In short, arms-ban advocates switched their pre-Heller strategy of “rifles good, handguns bad” to a post-Heller strategy of “handguns good, rifles bad.” If those arguments failed to persuade the Supreme Court in Heller to rule against handguns, they can’t work against rifles—the criminal misuse of handguns is orders of magnitude higher than the criminal misuse of rifles.

After Heller, these arguments against “assault weapons” and “large capacity magazines” were again advanced under the now-discredited two-step interest balancing test that was erroneously adopted by many courts post-Heller.[48] The Heller test does not involve weighing the dangers and benefits of weapons, but instead asks only whether they are “in common use” at the present time.[49]

Recent decisions by courts post-Bruen seek to get around Heller’s “in common use” test by ignoring Heller and then smuggling in dangerousness arguments under the guise of historical analogues. Arguments about “dramatic technological changes” cannot affect the “in common use” test mandated by Heller. That is because the “in common use” test looks at arms that are in common use by Americans now, and that necessarily includes any modern or new technology which those firearms use. Even though technology may have changed or improved over time, any form of modern firearm technology that is currently “in common use” is constitutionally protected.[50]

As the Bruen Court explained, even if a state could identify historical “laws [that] prohibited the carrying of handguns because they were considered ‘dangerous and unusual weapons’” at that time, that would “provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.”[51] With this language, Bruen reaffirmed the test Heller prescribes for identifying protected arms, which already and necessarily accounts for technological changes and societal concerns allegedly caused by those changes; it does this by ensuring that the Second Amendment’s protection extends to all firearms that are in common use at the time a court conducts the “in common use” analysis—even if such firearms or such firearms technology were not in common use at some time in the past.

Because the “in common use” test looks at contemporary firearms and thus firearms technology in existence today,[52] there is no justification for trying to limit the technology[53] available to civilian possession of arms to some indefinite point in the past. Heller made this point explicitly, stating that “[s]ome have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment.”[54] By classifying ordinary semiautomatic rifles as “assault weapons,” legislatures in some states have sought to limit Second Amendment protection only to firearms technology that existed at some point in the past. That, too, “borders on the frivolous.”

Underlying the “in common use” test is the premise that the American people—not the government—get to choose their desired firearms technology. It is “the American people [who] have considered the handgun to be the quintessential self-defense weapon,” and since “handguns are the most popular weapon chosen by Americans for self-defense in the home, … a complete prohibition of their use is invalid.”[55] Likewise, Americans choose modern-day rifles for any number of lawful purposes including for self-defense, and under Heller’s test the courts must defer to their choices.

IV. Lower courts have improperly disregarded Heller’s “in common use” test in arms-ban cases and replaced it with a “dangerousness” test of their own.

Confusion on the part of courts between the rule of decision announced in Heller and the methodology described in Bruen has led to erroneous results in firearms-ban cases. For example, three consolidated lawsuits in Delaware challenged that state’s newly enacted bans on so-called “assault weapons” and “large capacity magazines,” and sought a preliminary injunction against their enforcement.[56] The plaintiffs, relying on Heller as providing the rule of decision, correctly argued that “once a weapon is found to be ‘in common use’ it cannot be regulated, and no historical analysis is necessary.”[57] The district court responded:

I disagree. As the Supreme Court made clear in Bruen, “the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”[58]

That would be true if a court was analyzing a non-arms-ban firearms law ab initio. But the Delaware court was not analyzing a Second Amendment question anew. The issue in that case was whether so-called “assault weapons” and “large capacity magazines” are protected arms under the Second Amendment. Heller had already done the historical analysis to determine what kinds of arms are protected by the Second Amendment and had determined that the test is whether they are “in common use” today. Lower courts are not permitted to do their own historical analysis and invent their own new test in cases where the Supreme Court has already done the work and provided the test that lower courts must apply. The only question presented in an arms-ban case is whether the arms in question meet the “in common use” test. The Delaware district court continued:

If the standard were as Plaintiffs propose, then Bruen need not have proceeded beyond the first step of the analysis. Instead, however, after concluding that the Second Amendment’s plain text “presumptively guarantee[d]” the plaintiffs a right to bear arms in public for self-defense, the Supreme Court turned to the question of historical tradition. Thus, so do I.[59]

That is simply incorrect. The reason Bruen proceeded to examine the historical tradition is because the question in Bruen did not involve an arms ban and could not be resolved by applying Heller’s rule of decision. The question in Bruen, for which it performed a historical review, was whether New York’s highly restrictive licensing system for the public carry of firearms was justified by historical analogues. That and related issues had never been addressed by the Supreme Court using historical methodology, whereas the question of what arms are protected had been addressed and settled in Heller.

As illustrated above, this passage from the Delaware district court’s decision deeply confuses the rule of decision or constitutional test that Heller mandates in arms-ban cases, with the description of the methodology to be applied in non-ban cases that are not controlled by Heller, as described in Bruen. The district court did not understand that Bruen proceeded beyond the first step because Bruen was not an arms-ban case controlled by Heller. As a result, that court erroneously strayed off into its own historical analysis for bans on arms that are unquestionably in common use by Americans today.

That took the district court right back into the interest balancing rejected in Bruen. “Defendants argue that the instant regulations implicate ‘unprecedented societal concerns’ and ‘dramatic technological changes.’ I agree.”[60] The court then adopted defendants’ view of the history of semiautomatic technology, arguing that “assault long guns and LCMs represent recent advances in technology.”[61] The opinion then goes on to address “unprecedented societal concerns,” allegedly due to the rise in public mass shootings over the past four decades.[62]

The district court concluded that defendants had “sufficiently established that assault long guns and LCMs implicate dramatic technological change and unprecedented societal concerns for public safety.”[63] The court found that defendants had demonstrated that “assault rifles and LCMs are exceptionally dangerous.”[64]

These “societal” and “technological” arguments are precisely the same types of arguments advanced by the gun-ban advocates in Heller and pushed for years under intermediate scrutiny before Bruen. These are merely interest-balancing arguments dressed up as “dramatic technological change” and “unprecedented societal concerns.” But those changes and concerns were never presented by Bruen as forming a separate test or rule of decision. They were merely an acknowledgment that in cases not involving arms bans the examination of analogues might need to be “more nuanced.”[65] There is nothing in Bruen or in any other Supreme Court case that indicates that the rule of decision in arms-ban cases—the “in common use” test announced in Heller—has been overruled, replaced, or modified.

Several other post-Bruen “assault weapon” ban cases and litigants have employed a similarly confused approach. First, they ignore Heller and the binding, applicable test concerning what arms are constitutionally protected. Then they perform an idiosyncratic historical analysis of what weapons are protected, generally finding that weapons that are particularly or exceptionally dangerous can be banned, regardless of whether they are “in common use.”

For example, a group of law professors purporting to be Second Amendment experts recently submitted an amicus brief in support of the United States in United States v. Rahimi, a case the Supreme Court will hear this term. Rahimi will consider the constitutionality of the federal ban on firearm possession by anyone subject to a domestic violence restraining order. In their brief, the professors (unnecessarily) expounded on the test applicable to arms-ban cases but twisted it, asserting that “[i]f a firearm is in ‘common use’ and can facilitate armed self-defense,’ then it is relevantly similar to the arms protected by the Second Amendment at the time of its adoption and the right to bear that weapon warrants constitutional protection.”[66]

Seeking to unnecessarily complicate the straightforward test prescribed by Heller, these professors attempt to create a conjunctive test requiring not just common use, but also that the arm be shown to “facilitate armed self-defense.” As explained in detail above, this second requirement is not part of the rule of decision in arms ban cases, but in the wake of Bruen the professors have again sought to create a test that is “one step too many.”[67] Rather, it acts as an open invitation to courts to assess whether individuals really need the banned firearms, or whether their features are, in the judgment of experts and the courts, well-suited to the self-defense needs of Americans. But Heller made clear that such questions are not for expert or even court decision. Rather, it is the judgment of the American people that matters and “whatever the reason” that they choose certain weapons, that they choose them is enough.[68]

In a federal district court case from Washington State,[69] the court performed a similar distortion of Heller’s “in common use” test. There, plaintiffs properly relied on the “in common use” test to urge that the weapons at issue in that case could not be banned. The district court responded:

The Plaintiffs misread Heller and Bruen. Heller noted that the right to keep and bear arms protected under the Second Amendment is limited to the sorts of weapons “in common use at the time.” Heller at 627. It found that this limitation is “supported by the historical tradition of prohibiting ‘dangerous and unusual weapons.’” Id. Heller does not hold that access to all weapons “in common use” are automatically entitled to Second Amendment protection without limitation.[70]

But, yes, Heller does so hold. Where did this “automatically” and “without limitation” language come from? Heller did not create any exceptions to the “in common use” test, and nothing in Heller or Bruen permits lower courts to create exceptions to that test. The court then continued:

Further, under Bruen, if Plaintiffs demonstrate that their proposed conduct, that of buying and selling weapons regulated by HB1240, is covered by the Second Amendment, the “Constitution presumptively protects that conduct.” Bruen at 2126, 2129-2130 (emphasis added). This presumption can be overcome. Id.[71]

But that language about presumptions is just the first part of Bruen’s methodology description. In short, the court shrugs off Heller, and then launches into its own historical analysis, contra Heller, of which arms are not protected by the Second Amendment. It concludes that “[t]hese weapons are exceptionally dangerous,” and that there is a tradition of “exceptionally dangerous arms regulation.”[72] But that is not the test. And this is yet another instance of improper interest balancing in another guise.

Another federal district court case that gets it wrong, albeit through more convoluted reasoning, is Bevis v. City of Naperville.[73] The district court there denied a preliminary injunction against the enforcement of city and state-wide “assault weapon” and “large capacity magazine” bans. In doing so, it erroneously considered the challenged regulations “on a tabula rasa,” concluded that “Bruen is now the starting point,” and substituted its own dangerousness test for Heller’s “in common use” test. [74] But “dangerousness” alone is not the test. To be banned, a weapon must be “unusual” (by definition, not “in common use”) as well as dangerous.[75]

Another case from the Northern District of Illinois, Herrera v. Raoul,[76] applied the “dangerousness” test devised by the Bevis court. But it also leaned heavily on the “dramatic technological changes” and “unprecedented societal concerns” language from Bruen. According to the court, this language allows “local and state governments to respond to “‘dramatic technological changes’ and ‘unprecedented societal concerns’ of increasing mass shootings by regulating the sale of weapons and magazines used to perpetrate them.”[77] Once again, the flagrant conflict between the “in common use” test and the ad hoc determination that any weapon that is “particularly dangerous” can be banned was not addressed.

A case from the District of Connecticut, National Association for Gun Rights v. Lamont,[78] misconceived Heller and Bruen on two fronts. There, the district court began by fabricating a “common use” test requiring Plaintiffs to show that “assault weapons” are commonly used specifically for self-defense.[79] But there is no such mandate in Heller or Bruen. After finding that Plaintiffs failed to meet their newly created burden, the district court doubled down, concluding that Bruen permits bans on “new and dangerous weapon technology” that underpins “unprecedented societal concerns”—which, according to the district court, encompasses “assault weapons.”[80] Again, this is plainly wrong. Bruen’s language concerns only non-arms-ban cases, and the whole point of the “common use” test is that it inherently accounts for changes in firearm technology.

Fortunately, the district court in Barnett v. Raoul got it right when it preliminarily enjoined enforcement of the Illinois “assault weapon” and “large capacity magazine” bans.[81] Regarding the probability of success on the merits of the preliminary injunction, he noted that “Plaintiffs rely on recent Supreme Court decisions that made it clear that the Second Amendment protects the possession and use of weapons that are in common use.”[82] Plaintiffs contend there can be no question regarding the likelihood of success because the items banned under [the Illinois statute] are in common use today.”[83] The court agreed.[84] And while the district court did consider Defendants’ analogues, the court concluded that “the commonality of ‘arms’ banned under [the Illinois act] is dispositive.”[85]

Conclusion

Many lower courts have made fundamental legal errors in “assault weapon” and “large capacity magazine” ban cases. They have failed to recognize that Heller’s “in common use” test governs in arms-ban cases and have wrongly relied on a single sentence in Bruen describing the methodology to be applied in non-arms-ban cases. Those courts have treated the “dramatic technological changes” and “unprecedented societal concerns” language from Bruen’s methodological description as if it formed part of the governing test for determining which arms are protected by the Second Amendment, when that language has no role whatsoever in arms-ban cases. Because the “in common use” test looks to arms that are in common use today, that test automatically and necessarily protects existing technology, and addresses any contemporary societal concerns stemming from such modern technology. Lower courts are not free to disregard Heller’s “in common use” test and instead substitute a “dangerousness” test of their own devising. Doing so is merely “interest balancing” in a different guise, which is prohibited by both Heller and Bruen in Second Amendment challenges to gun-control laws.

[*] Mark W. Smith is a Visiting Fellow in Pharmaceutical Public Policy and Law in the Department of Pharmacology, Oxford University; Distinguished Scholar and Senior Fellow of Law and Public Policy, Ave Maria School of Law. He is a graduate of the NYU School of Law and hosts the popular The Four Boxes Diner YouTube Channel, which addresses Second Amendment scholarship, history, and legal issues.

[2] 142 S.Ct. 2111 (2022).

[3] 554 U.S. 570 (2008).

[4] Id. at 627.

[5] Bruen, 142 S.Ct. at 2132 (emphasis added).

[6] See, e.g., Herrera v. Raoul, No. 1:23-cv-00532, 2023 WL 3074799 (N.D. Ill. Apr. 25, 2023) (discussed below in detail).

[7] Julius Caesar, The Gallic Wars, Book 1, Ch. 1 (Trans W. A. McDevitte and W. S. Bohn).

[8] The Second Amendment’s protection of the right to possess (“keep”) arms logically and necessarily entails the right to come into possession of the protected arms, by sale or manufacture, since possession presupposes acquisition. It is for that reason that it would be absurd for a State to say after Heller, for example, that people can keep whatever handguns they have, but ban all sales, manufacture, and import of handguns. After all, constitutional rights “implicitly protect those closely related acts necessary to their exercise.” Luis v. United States, 578 U.S. 5, 26 (2016) (Thomas, J., concurring). Similarly, the right to keep and bear arms also necessarily entails the right to keep and bear the components of protected arms that make them what they are—triggers, magazines, barrels, etc. are all protected. Furthermore, all these components are themselves “modern instruments that facilitate armed self-defense” that Bruen clarified are protected as a matter of text. Bruen, 142 S.Ct. at 2132.

[9] Such laws concern the age at which young people can acquire or possess arms, where and under what conditions arms can be carried, restrictions on gun ranges or training, and other issues that do not involve the question of whether an arm or class of arms is protected.

[10] For example, after a review of alleged historical analogues to New York’s restrictive licensing regime for public carry, Bruen concluded that a licensing scheme that “prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms” is unconstitutional. Bruen, 142 S.Ct. at 2156. That articulates the rule applied in Bruen and that may be applied in other cases relating to the carrying of arms.

[11] See generally Brief for Petitioner, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290); see also Brief for Violence Pol’y Ctr. et. al. as Amicus Curiae Supporting Petitioner at 2, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290) (“The handgun ban is a reasonable restriction, because handguns constitute a unique class of firearm that have an unmatched ability to cause violence and kill human beings.”).

[12] Id.

[13] See, e.g., Hartford v. Ferguson, No. 3:23-cv-05364-RJB, 2023 WL 3853011(W.D. Wa. June 6, 2023) (order denying motion for preliminary injunction).

[14] Heller, 554 U.S. at 574.

[15] Bruen, 142 S.Ct. at 2127–28.

[16] U.S. Const. amend. II.

[17] Heller, 554 U.S. at 581.

[18] See Heller, 554 U.S. at 581. In Heller, the phrase “weapons of offense, or armour of defense” is from Samuel Johnson, 1 Dictionary of the English Language 107 (4th ed. 1773). The phrase “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another” is from Timothy Cunningham, 1 A New and Complete Law Dictionary (1771).

[19] Id. at 582 (emphasis added).

[20] Bruen, 142 S.Ct. at 2132.

[21] Heller, 554 U.S at 594.

[22] United States v. Miller, 307 U.S. 174 (1939).

[23] Heller, 554 U.S. at 623.

[24] Id. at 627.

[25] Id.

[26] Id. (quoting Miller, 307 U.S. at 179).

[27] The words “test” and “rule of decision” are used interchangeably here. As Karl Llewellyn put it in his classic work, the “rule of the case” may be equated with “the ratio decidendi, the rule the court tells you is the rule of the case, the ground, as the phrase goes, upon which the court itself has rested its decision.” K. Llewellyn, The Bramble Bush: The Classic Lectures on the Law and Law School 42 (Oxford University Press 2008) (reprint of The Bramble Bush: On our Law and its Study 1930) (emphasis in original). However expressed, the rule applied by a court in its deliberations, and set forth in an ultimate decision, is very different from a description of the methodology for analyzing historical evidence using an originalist approach.

[28] Bruen did not overrule Heller. When the Supreme Court overrules a precedent, it usually leaves no doubt as to the effect of its decision. See, e.g., Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228, 2284 (2022) (“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”). Bruen cites Heller many times, generally favorably and never negatively.

[29] Bruen, 142 S.Ct. at 2128 (quotation marks omitted).

[30] Id. at 2132.

[31] Id. at 2131.

[32] Id. at 2125.

[33] Id. at 2126.

[34] Id. at 2127.

[35] Id. at 2131.

[36] Id.

[37] Id. at 2133.

[38] Id. at 2132 (emphasis added).

[39] McDonald v. City of Chicago, 561 U.S. 742, 782–83 (2010) (listing numerous examples, including the exclusionary rule sometimes setting the guilty free, speedy trial requirements resulting in dangerous criminals being released, and the requirement of Miranda warnings that may “return a killer, a rapist or other criminal to the streets … to repeat his crime.”).

[40] Brief for Petitioner at 11, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290).

[41] Id. at 54.

[42] Id. at 53.

[43] Brief of Violence Pol’y Ctr. et al. as Amicus Curiae Supporting Petitioner at 16–17, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290) (citations omitted).

[44] Id. at 24.

[45] Brief for Petitioner at 4, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290).

[46] Brief of D.C. Appleseed Ctr. et al. as Amicus Curiae Supporting Petitioner at 22, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290) (emphasis added and citations omitted).

[47] Brief of Violence Pol’y Ctr. et al. as Amicus Curiae Supporting Petitioner at 18, District of Columbia v. Heller, 554 U.S. 570 (2008) (No. 07-290).

[48] See Bruen, 142 S.Ct. 2125–27.

[49] Heller, 554 U.S. at 634–35.

[50] Because the “in common use” test automatically protects today’s existing firearms technology, it is unclear that Bruen’s “dramatic technological changes” language has any relevance to firearms technology at all. It might be relevant to other kinds of technological changes, such as airplanes and airports, which might be considered “sensitive places” today even though ships and coaches during the Founding period might have had no restrictions on the carrying of weapons.

[51] Bruen, 142 S.Ct. at 2143.

[52] Id. at 2134, 2143.

[53] There have been no dramatic technological changes to firearms in the past century. The big changes were in the 19th century, not recent decades. By the end of the 19th century and often well before, the elements that make up modern firearms were in place (guns that fire by percussion on a cap or primer; self-contained metallic cartridges that combine powder, bullet, and ignition source; repeating firearms including semiautomatics; smokeless powder). Bolt actions, lever actions, revolvers, and semiautomatic actions were all developed in the 19th century, and those are the main types in use today. Modern firearms today function in essentially the same way as at the turn of the 20th century with no breakthrough changes in technology.

[54] Heller, 554 U.S. at 582.

[55] Id. at 629.

[56] Del. State Sportsmen’s Ass’n v. Del. Dep’t of Safety and Homeland Sec., No. 22-951-RGA, 2023 WL 2655150 (D. Del. Mar. 27, 2023) (“DSSA”).

[57] DSSA at 17–18.

[58] DSSA at 18 (citation omitted and emphasis added).

[59] Id.

[60] Id. at 20.

[61] Id. at 10.

[62] Id.

[63] Id. at 23.

[64] Id. at 21.

[65] Bruen, 142 S.Ct. at 2132.

[66] Brief for Second Amendment Law Scholars as Amicus Curiae Supporting Petitioner at 10, United States v. Rahimi (2023) (No. 22-915).

[67] Bruen, 142 S. Ct. at 2127.

[68] Heller, 554 U.S. at 629.

[69] Hartford v. Ferguson, No. 3:23-cv-05364-RJB, 2023 WL 3836230, at *3 (W.D. Wash. Jun. 6, 2023).

[70] Id. (emphasis added).

[71] Hartford v. Ferguson, No. 3:23-cv-05364-RJB, 2023 WL 3836230, at 5 (W.D. Wash. Jun. 6, 2023).

[72] Id.

[73] No. 22 C 4775, 2023 WL 2077392 (N.D. Ill. Feb. 17, 2023).

[74] Id. at 17.

[75] See Caetano v. Massachusetts, 577 U.S. 411, 417 (2016) (Alito, J., concurring) (stating that “As the per curiam opinion recognizes, this is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual. Because the Court rejects the lower court’s conclusion that stun guns are ‘unusual,’ it does not need to consider the lower court’s conclusion that they are also ‘dangerous.’”).

[76] No. 23 CV 532, 2023 WL 3074799 (N.D. Ill. Apr. 25, 2023).

[77] Id. at 15 (citations omitted).

[78] No. 22 CV 1118, WL 4975979 (D. Conn. Aug. 3, 2023).

[79] Id. at 29.

[80] Id. at 63.

[81] Barnett v. Raoul, No. 3:23-cv-00209-SPM, 2023 WL 3160285, at *12 (S.D. Ill. Apr. 28, 2023), appeal of preliminary injunction pending, No. 23-1825 (7th Cir. 2023).

[82] Id. (quoting Heller, 554 U.S. at 627).

[83] Id.

[84] Id.

[85] Id. (emphasis added).

Review: Keeping Our Republic – Benjamin Pontz

Posted by mmullin on Sep 26, 2023 in Per Curiam

Review: Keeping Our Republic

Benjamin Pontz*

Bernhardt, David. You Report to Me: Accountability for the Failing Administrative State. New York: Encounter Books, 2023.

Thapar, Amul. The People’s Justice: Clarence Thomas and the Constitutional Stories That Define Him. New York: Regnery Publishing, 2023.

Wallach, Philip. Why Congress. New York: Oxford University Press, 2023.

***

Americans love Benjamin Franklin. An electricity-experimenting daredevil, an independent thinker whose penchant for pithy one-liners shines through his legendary almanac, and an unflinching partisan for his home state, America’s first—and arguably greatest[1]—commonwealth (Pennsylvania), what’s not to like?

Perhaps no quotation of Franklin’s has endured to greater acclaim than his quip on September 18, 1787, at the end of a grueling summer of drafting a constitution to replace the Articles of Confederation. As the story goes, when asked what kind of government this new constitution would institute, Franklin responded, “A republic, if you can keep it.”

Franklin’s declaration has reverberated ever since. Justice Neil Gorsuch used it as the title of his 2019 book.[2] Former House Speaker Nancy Pelosi invoked it as she announced that the House would seek to impeach former President Donald Trump.[3] Scores of articles (including this one) have leveraged it for titles and analytical frameworks.[4]

Its cultural resonance is as deep now as its revolutionary character was then. But more profound than Franklin’s aphorism is the text of that constitution itself. Especially its first word, “we.” True, the Constitution’s preamble contains high-minded rhetoric about the aspiration to form a union more perfect each day than the one before it. At its core, though, “we” is a statement about where sovereign power lies: the people.

But cognizant of the peril in concentrating power,[5] almost immediately, our charter for a new republic began to divide it. First, the Constitution “split the atom of sovereignty” between the federal government and the states.[6] And from there, in its first three articles, it divided the power that remained in the federal government among three departments: the legislative, the executive, and the judiciary.[7] For any institution under this new constitution to discharge power in a manner inconsistent with what it delineates would be to act ultra vires, beyond the law.

I begin with these first principles not to belabor a Schoolhouse Rock conception of American democracy,[8] but to start with the premise that the legitimate exercise of power in the United States must trace its origin to this constitutional structure. Two leading originalist scholars of their generation—William Baude and Stephen Sachs—treat this idea like a chain of title, arguing that our law “comprises the rules which were law at the Founding and everything that has been lawfully done under them since.”[9] Although this framework may more commonly examine claims about rights, it applies with equal force to matters of structure.[10] This idea that process drives the legitimacy of legal change is uniquely part of our constitutional fabric and, indeed, our law.[11]

Against that backdrop enter three new books: Why Congress by Philip Wallach, You Report to Me by David Bernhardt, and The People’s Justice by Judge Amul Thapar. Superficially, the first is about Article I, the second is about Article II, and the third is about Article III. Really, though, they offer complementary perspectives on the structural separation of powers: the first offering perspective from outside the institution, the last two from within. And taken together, they paint a rich portrait of what a government that operates in accordance with our Constitution might look like. Just as importantly, they offer a call to reclaim the substantive value of procedure—the idea that self-government according to a rule of law prescribed in advance through methods that are ours until we change them has inherent value, independent of particular outcomes.

I should note here this review essay’s ulterior motive: to announce that the Federalist Society’s 2024 National Student Symposium, to be held at Harvard Law School, will focus on this structural separation of powers. Specifically, what is the point? And rather than gloss over practical questions of implementation or dwell in the land of hollow ipse dixit (where, unfortunately, talk of the structural separation of powers often languishes), the symposium will focus squarely on the question of why we should care so much about procedure.

In a panel on federalism, we will explore the curious—and sometimes nebulous—line between federal and state governments. We will consider how common law adjudication in states relates to the legislation we demand to make law at the federal level. We will examine how states may regulate the content of substantive rights and whether state regulation may transcend state borders.[12] We will think about the Tenth Amendment. And we will weigh what all of this means for the “double security” federalism ostensibly provides to the people’s liberty.[13]

In a panel on executive-legislative relations, we will examine the possible tension between a desire for stability across presidential administrations (implicit in the rule of law) and the president’s role in driving policy change (part of the accountability rationale in recent Supreme Court decisions such as Seila Law[14]). Along the way, we will consider how useful the unitary executive theory and the nondelegation doctrine might be to analyzing these sorts of questions.

In a panel on judging, we will focus on how the judicial role as it has evolved comports with our constitutional structure. In particular, we will examine universal vacatur under the Administrative Procedure Act, the evolution of standing doctrine (including “special solicitude” for states), and the arguments for and against so-called “judicial supremacy,” the idea that judges are the final, unreviewable arbiter of what the law means.

Finally, in a panel on changing how we separate powers, we will confront the question of what to do if we are unsatisfied with how our Constitution configures powers. Can it be changed? If so, how? Elections? New statutes? Judicial reinterpretation? Liquidation? Constitutional amendments? A constitutional convention? We will consider the virtue of large-scale constitutional reform as well as what we can learn from states (and perhaps even judicial reform efforts in other countries, like Israel).[15]

The animating theme of the symposium will be the substantive value of separating power. All three of these books cast new light on that question, making them well worth examining in connection to this symposium.

I.               Wallach

The most substantial book of the trio, Wallach’s ode to Congress makes the case that a legislature—for all its warts—remains the one indispensable institution in a republic like ours. Not only is this true as a matter of constitutional first principles, but, Wallach argues, it is also true as a practical matter. Only through the legislative process can Americans reconcile their “disparate interests, conflicting visions of the good, and divergent judgments about prudent policy” in a way that is legitimate and enduring.[16] That might be true in some sort of metaphysical sense—against some external, outcome-oriented metric, the policies that emerge from Congress might just be “better.” But Wallach’s thesis is that some combination of the formal imprimatur of a representative institution and the functional bargaining inherent in the legislative process leads to a “viable and functional politics . . . far more valuable to our social well-being than a few technocratically optimal policy choices ever could be.”[17] Put more simply, in a republic, the process is the point.

The remainder of the book tracks the effect of how legislative process has evolved on the capacity of Congress. Wallach structures his story in three sections: when Congress worked,[18] how Congress transformed,[19] and the cost of congressional dysfunction,[20] his contemporary diagnosis falling somewhere between declinist screed and low-key cheerleading[21]  He closes with three visions for what Congress’s future might hold.[22] In contrast to many books of this genre, in which policy recommendations read like a slapdash appendage that cheapens the preceding analysis, Wallach’s concluding reflections are the best part of the book.

In the opening section, Wallach offers two vignettes that, in his telling, show Congress at its best. The second is more convincing than the first. Wallach begins by detailing Congress’s interactions with the Roosevelt administration during World War II, especially in the realm of domestic policy. Conceding that “even history buffs” might draw a blank as to Congress’s role in World War II and acknowledging Congress’s tendency to delegate to nascent executive agencies, Wallach nevertheless contends that “delegations were bounded, both in scope and in time, and legislators did not merely recede into the background once they empowered executive branch officials. . . . Their efforts were indispensable in generating the trust in the executive branch’s activities (including secretive ones) that was necessary to marshal the nation’s resources effectively.”[23] Interesting nuggets about the Current Tax Payment Act of 1943 and the reauthorization of the Office of Price Administration notwithstanding, the chapter can have the feel of reverse engineering a totalizing goldilocks justification for Congress’s behavior.[24] To be sure, staring down the barrel of the Holocaust amid a nationwide war effort that fueled dramatic social change likely had a certain clarifying effect as to the stakes of congressional action (or inaction). But this chapter was the first of a few occasions where the general zeitgeist of the time seems likely to have played a more formative role in shaping congressional behavior than Wallach lets on through his necessarily Congress-centered account.

Wallach’s second vignette is more compelling. Complicating the popular narrative about President Johnson and Martin Luther King Jr. as the “great men” of the struggle for civil rights,[25] Wallach focuses on legislative bargaining in Congress laying the groundwork for the broad, enduring social consensus that the Civil Rights Act of 1964 prefigured.[26] It is a tough case. Treating the requirement that two-thirds of senators vote to break what became a 75-day filibuster as a “blessing in disguise” and praising the Senate’s “wisdom” in celebrating its “institutional values and therefore the endurance of the American republic” by naming one of its office buildings after Richard Russell, one of the chief architects of that filibuster, are not arguments most scholars would make.[27] But those rhetorical flourishes are peripheral to Wallach’s core argument: in contrast to what southerners regarded as the “undemocratic imposition” of Brown v. Board of Education,[28] the painstaking legislative process conferred a procedural legitimacy on the Act that preempted meaningful backlash and enabled bipartisan consensus on civil rights that changed the nature of American public opinion.[29]

Wallach describes the legislative maneuvering in detail. It suffices here to make two observations. First, Senate Minority Leader Everett Dirksen (R–IL) bought into the legislative process, tinkered with the bill around the edges, and ultimately claimed credit for advancing the bill with support from the Senate’s Republican minority.[30] Letting a “white, antigovernment Midwestern conservative . . . [who] blocked legislation for years . . . [be] allowed to take credit for” a bill he was finally forced to accept “irked liberals.”[31] But it gave Dirksen and his Republican conference a stake in the outcome. Second, Senate leaders—perhaps having no other choice—let “obstruction” play out on the Senate floor. In those days, the filibuster stopped other action on the Senate floor, so it forced attention on the matter at hand. And after seventy-five days and 534 hours of debate, the bill passed 73–27.[32] Thereafter, only a “tiny minority” of elected Southerners obstructed the Act’s implementation; the legislative process displayed to Americans having laid bare the overwhelming consensus forged in the Senate.[33]

In Wallach’s telling, the lesson of Congress’s ability to pass civil rights legislation is simple: “A well-functioning legislature is indispensable to ensuring that in the process of navigating social changes, no group is driven to desperation.”[34] Only in a legislature can the vast diversity of a country like ours and the vast complexity of the challenges we face interact in ways that lead to lasting social peace.

But not every legislature. And not the one we have today. In the decades that followed that high point of civil rights legislation in the 1960s, political realignment, institutional reform, and societal change have left Congress on the path to “decrepitude.”[35] With the benefit of hindsight, the warning signs are legion.

During a period of Democratic dominance in Congress and Republican dominance in the White House during the 1970s and 1980s, Republicans lost the faith. Even after reclaiming control of the House in 1994, Speaker Newt Gingrich’s institutional reforms—such as giving the president a line-item veto and repealing the War Powers Resolution—sought to hamstring his own institution at the expense of the presidency, his Reaganite critiques about the president’s superior electoral legitimacy sounding awfully Wilsonian in their contempt for Congress.[36]

Democrats, meanwhile, lost the plot. A clash between Reps. Richard Bolling (D–MO) and Phillip Burton (D–CA) lays bare the tension between process and outcomes that has led us to the worst of both worlds. Just a few years after the success of civil rights legislation, the pair clashed ostensibly over the jurisdictional divides between committees and subcommittees in the Democratic caucus.[37] Bolling, the putative institutionalist who favored centralization, accused Burton of having the “damn fool idea that getting something done [is] more important than the process of democracy real to people.”[38] Burton, who sought to divert power to subcommittees (where more junior and more liberal members could exercise greater influence over policy), accused Bolling of being a “white collar liberal” whose “interest in rules blinded him to the importance of winning policy victories.”[39]

The period’s reforms—cameras in committee rooms, increased use of the legislative veto (prior to its eradication by the Supreme Court)[40], sunset provisions requiring congressional reauthorization of programs, and appropriations riders allowing members to exercise greater control over spending among them—certainly increased the level of activity in Congress.[41] But by trying to focus on everything, Congress in fact ended up focusing on little more than performative process and hollow outcomes that laid the groundwork for members of Congress to “run[] for Congress by running against Congress,”[42] what came to be known as “Fenno’s paradox.”[43]

Implicit in much of Wallach’s argument is the idea that, when functioning at its fullest potential, Congress gives Madisonian factions skin in the game—an incentive to play ball rather than complain (and grandstand and fundraise) from the sidelines. By its nature, Congress requires broad buy-in to succeed.[44] Absent those incentives, Congress does the bare minimum to keep the lights on and the trains running: appropriating money and delegating broad swaths of authority to the executive branch through eleventh-hour deals negotiated by party leaders absent meaningful debate.[45] That dynamic fuels a vicious cycle. The more power delegated, the less pressure on Congress to act, the more pressure on presidential administrations to stretch that power to (perhaps even beyond) its limits, the more contentious issues inevitably end up in the courts whose rulings—generally on questions of procedure and constitutional structure—are refracted through the lens of policy outcomes, which is understandable (if not excusable) given the dearth of meaningful policy making efforts elsewhere in the federal government. Wallach walks through this story in the area of immigration,[46] but it is hardly limited there. Environmental regulation, where a recent iteration of this cycle birthed a more robust rejoinder from the Supreme Court in the form of the major questions doctrine,[47] is another example.

One response to these dynamics is resignation. This vision treats presidential elections as the ultimate expression of public opinion, the Supreme Court as the final site for political contestation, and Capitol Hill largely as a fancy building for press conferences by legislators seemingly powerless to do anything but lobby the administration, litigate in the courts, and raise money—lots of money.[48] Wallach calls that vision decrepitude, and he acknowledges (somewhat ruefully) that it is the current course.[49] Another response, surrender (which has some proponents on the right and on the left), would shift our attention to the executive branch, perhaps with some form of administrative process replacing legislative process as a legitimating force for public policymaking.[50] In this vision, conspicuous failure in the form of government shutdowns or debt ceiling disasters would eventually lead to some degree of congressional reform that puts the functioning of government on autopilot with the day-to-day levers pulled by the president.[51] This system would have some echoes of parliamentary democracy, but as Wallach warns, would short-circuit the deliberative work that legislatures can achieve.[52]

Unsurprisingly, Wallach favors a third path he calls “revival.”[53] Resting on a coup against party leadership, internal organizing by congressional moderates, and substantial investments in the legislature’s staff capacity, the path to this revival that Wallach outlines is somewhat fanciful (as he acknowledges).[54] But it is worth taking this vision seriously on its own terms. To sustain a body capable of working through the pressing challenges of the day, Wallach argues that Congress will need to be willing to let go of minor ones (which he concedes is at odds with many of his fellow conservatives’ prescriptions).[55] Messy though it may be, Wallach argues such revival will have a salutary effect: “[T]hrough Congress’ deliberations, we come to feel that the country’s future is ours.”[56] That is the essence of “why Congress.”[57]

II.             Bernhardt

David Bernhardt seeks to answer a different question, though one connected and no less important to the structural separation of powers. A longtime official in the Department of Interior who rose from aide in the administration of George W. Bush to secretary in that of Donald Trump, Bernhardt offers his take on the role of executive branch officials in our system of government. The book’s title—a reference to his first conversation with President Trump upon becoming Secretary of the Interior in 2019—provides at least part of his answer: officials in the executive branch report to and serve at the pleasure of the elected president.[58] The other part of his answer emerges in various examples throughout the remainder of the book: the text of statutes.[59] Taken together, Bernhardt’s answer is consistent with a classic exposition of the unitary executive theory, that all executive power is vested in a president whose agents discharge whatever discretion the faithful execution of the law allows in his name (and must do so in accordance with his wishes).[60]

And if the book stopped there, it would be unoffensive and useful enough, as these sorts of policy memoirs go, if a bit prosaic. Where Bernhardt makes a real contribution, however, is with his apparent audience. This book is written as a field guide for public servants in a future presidential administration that takes the rule of law seriously and wants to implement a president’s agenda effectively. Peppered with anecdotes from his time in government service, Bernhardt’s book provides a first-hand account of how administrative agencies work on the ground. Although it offers a whirlwind tour that bounces from administration to administration and incident to incident with asides that do not always seem central to its argument,[61] You Report to Me nevertheless provides a useful introduction to administrative law for those not already steeped in the subject and would be well-placed on the bookshelves of those charged with implementing an administration’s policy program.

Successive chapters walk through the basics of delegation,[62] agency adjudication,[63] judicial deference,[64] presidential directive authority,[65] and the removal power.[66] Written in plain English with limited (though sufficient) legalese, the chapters provide a useful primer on the constitutional principles, case law, and statutes that shape each area. But just as valuable are anecdotes nestled within the chapters that illuminate how agencies actually operate day to day.

For example, Bernhardt discusses the practice of “sue and settle,” in which outside groups sue an agency for something like missing a statutory deadline and an agency—rather than litigate the issue to judicial resolution—enters a consent decree committing to a set of actions in exchange for ending the lawsuit.[67] Sounds innocent enough. And as Bernhardt acknowledges, “entering a consent decree or settlement agreement can be a prudent use of taxpayer resources, avoiding costly, drawn-out litigation that an agency is likely to lose.”[68] But as Bernhardt explains, so many agencies miss so many deadlines and benchmarks that their entire regulatory agendas can be driven by negotiation with litigants rather than the traditional notice-and-comment rulemaking process.[69] Sometimes, such suits can even be collusive, allowing an agency to “tie its hands” to an unpopular position through litigation to evade political accountability.[70] This under-the-radar practice bears on the structural separation of powers along the same dimension as higher profile issues like the president’s authority to remove agency heads,[71] and Bernhardt effectively links the issues in his larger quest to explain how government operates.

Bernhardt closes with a chapter on “driving change as a political appointee” that lays bare the true purpose of the book: coaching a future administration to cut through bureaucratic inertia and effect policy change.[72] To his credit, from explaining in gory detail the differences between political appointees requiring Senate confirmation, Schedule C and noncareer Senior Executive Service advisory positions, and the career civil service to advising agency “beachhead teams” at the start of a new administration to secure control of an agency’s Executive Resources Board, Bernhardt remains laser-focused on authority within the law.[73] And although he makes rather fine distinctions between the verve with which he encourages future administration officials to search for legal authority and the skepticism with which he treated an effort by the Biden administration’s Bureau of Land Management to identify new ways to fight climate change,[74] the importance of good judgment and forbearance shines through his admonition that the law—rather than policy preferences—must act as an agency’s ultimate restraint: “Appointees must try to provide their superiors with unbiased, intellectually honest advice regarding their options under the law. The president’s preferred policy outcomes can usually be achieved in various ways, but in the unlikely event that Congress has not delegated authority to the agency to take the president’s preferred ctionn, political appointees should make that fact clear to their superiors and suggest how such authority could be gained.”[75]

Article II, Section 3 of the Constitution requires the president to “take care that the laws be faithfully executed.” Bernhardt closes by calling attention to the word “faithfully” as it is used in a different context, the oath of office taken by all federal officials except the president.[76] In both cases, the word highlights the fidelity to one’s role that Bernhardt argues ought to animate the whole executive branch: Congress passes laws, the president decides how to implement those laws, and administrative agencies execute the president’s command within the bounds of those laws. Therefore, in our republic, Bernhardt writes, all administration officials “report to you and me.”[77]

III.           Thapar

Fidelity to role is an overarching theme in The People’s Justice too.[78] Written by Judge Amul Thapar, who joins a coterie of his Sixth Circuit colleagues in authoring recent books,[79] the importance of this tribute to Justice Clarence Thomas lies not in breaking new doctrinal ground, nor revealing new biographical details about Justice Thomas, nor even in synthesizing Justice Thomas’s jurisprudence in a new way. Rather, The People’s Justice stands for the simple proposition that the Constitution belongs to all of us. And although the judiciary is not a representative body, Judge Thapar argues forcefully that respect for the Constitution’s original meaning—as ratified by the people’s representatives and reflected in Justice Thomas’s brand of originalism—tends towards outcomes that promote human flourishing.

Judge Thapar’s story unfolds in twelve chapters, each discussing an opinion authored by Justice Thomas (all of which, intriguingly, happen to be concurrences or dissents).[80] What makes the book unique among works that self-consciously promote originalism[81] is Judge Thapar’s unapologetic invocation of the stories of the individuals who were characters in what reached the Supreme Court as “cases and controversies” and the consequences of the Court’s decisions.[82] In Judge Thapar’s telling, although Justice Thomas “is committed to applying the law equally to all, come what may,” more often than not, that orientation means his rulings will favor “the ordinary people who come before the Court—because the core idea behind originalism is honoring the will of the people.”[83] The purpose of the book is not to test that proposition empirically. But in highlighting numerous cases in which convoluted court-created doctrine departs from how Justice Thomas understands the Constitution’s original meaning,[84] The People’s Justice serves as a useful corrective to accounts of originalism as subterfuge to serve special interests.[85] Rightly considered, originalism prevents special interests (or interests of any other kind) from “usurp[ing] power from the people” in whose name our Constitution was adopted unless and until they decide to change it themselves.[86]

One particularly moving chapter in Judge Thapar’s book tells the stories of Betty Smothers and her son, Warrick Dunn. Early in the morning on January 7, 1993—just two days after Dunn turned eighteen—Betty, an off-duty police officer, was murdered while working a second job as a security guard.[87] The oldest of six siblings, Warrick, a star high school running back who would go on to play at Florida State and later in the NFL, was “thrust into the role of father to his five younger siblings.”[88] Twenty-two years and a trail of state and federal appeals later,[89] the Supreme Court held in Brumfield v. Cain[90] that the state court that had sentenced Betty’s killer to death had made unreasonable factual findings about his mental capacity when determining that his death sentence did not violate the Court’s ruling in Atkins v. Virginia.[91]

Justice Thomas dissented.[92] In his view, the record before the state habeas court—all the way back in 2003—supported the judge’s finding that Brumfield was not intellectually disabled.[93] To rule for Brumfield, Justice Thomas wrote, the majority took “a meritless state-law claim, recast it as two factual determinations, and then award[ed] relief despite ample evidence in the record to support each of the state court’s actual factual determinations.”[94] Justice Thomas’s opinion also described Warrick Dunn and the crime’s impact on his life; Justice Thomas’s dissenting colleagues did not join that part of the opinion, which Justice Alito wrote in a separate dissent “is inspiring and will serve a very beneficial purpose if widely read” but is not “essential to the legal analysis in this case.”[95]

Judge Thapar frames this case as an example of the attention Justice Thomas pays to victims of crimes.[96] But how Justice Thomas pays attention to the rights of victims of crimes is key. He did not go searching in the Constitution’s interstices for lurking “penumbras” or “emanations” that might give rise to an unenumerated, substantive right.[97] Rather, Justice Thomas let the structural separation of powers—especially the vertical separation of powers inherent in our federal system—do the work. Federal habeas review of state court convictions, Justice Thomas explained, is a final backstop and imposes an intentionally high standard.[98] Why? For one thing, states are a separate sovereign.[99] Although state criminal proceedings must comply with incorporated federal rights, federal courts generally have no supervisory role over state courts; they adjudicate claims on behalf of a different sovereign, the United States. But Congress defined a limited exception. Through the habeas statute, federal law defines limited circumstances when federal courts may review state court convictions.[100] Part of what offended Justice Thomas about the majority’s ruling in Brumfield was the majority’s decision, in his view, to “toss[] [the state court] proceedings aside, concluding that the state court based its decision to deny Brumfield’s Atkins claim on an ‘unreasonable determination of the facts,’ even as it concede[d] that the record include[d] evidence supporting that court’s factual findings.”[101]

Justice Thomas’s concerns about federal habeas proceedings extending beyond what the statute permits transcend Brumfield. Just last November, he dissented from the denial of certiorari in Shoop v. Cunningham,[102] in which the Sixth Circuit had granted an evidentiary hearing “on the mere possibility that it might turn up some kind of admissible evidence supporting some sort of cognizable claim.”[103] Echoing his opinion in Brumfield, Justice Thomas pointed to real costs of breaching structurally separated powers: “It shows profound disrespect, not merely to the State, but to citizens who perform the difficult duty of serving on capital juries, to the surviving victims of Cunningham’s atrocious crimes, to the memories of the two young girls whose lives he snuffed out, and to their families who still, two decades later, have no assurance that justice will ever be done.”[104]

As Judge Thapar points out in the conclusion of the book, sometimes Justice Thomas’s originalism leads him to rule for criminal defendants, even when his conservative colleagues do not join him.[105] If Justice Thomas were Senator Thomas, he might not vote for some of the outcomes his opinions have reached.[106] But as Judge Thapar argues, “[Justice Thomas] knows, like all originalists, that you cannot fully respect a people unless you respect their choices, too. For that reason, Justice Thomas enforces the Constitution as the American people created it. He understands that ours isn’t just a Constitution for the people. It’s a Constitution by the people. So Justice Thomas sees his job as a humble one: to try his best to figure out what the American people understood the Constitution to mean when they ratified it.”[107] That orientation, Judge Thapar posits, is why, when Justice Thomas autographs a copy of the Constitution, he writes, “This is your Constitution.”[108] Because it is.

***

All three of these books center institutions, but they also center the role of people and, perhaps most fundamentally, “the people”—the sovereign actors in whose name this union formed—in doing the work of governing in our constitutional system. To some degree, all three books paint an idealized portrait of how the institutions and those who operate within them ought to behave. Well over two centuries into this constitutional order, we are not working on a blank canvas. But returning to the first principles of Congress, the executive, the courts, and federalism—as these books invite—yields several important insights.

First, in our Constitution, articles preceded amendments.[109] Our Constitution delineates the structure of our government before it delineates the substantive rights that government may not abridge. In a republic like ours, the process of self-government is a substantive outcome. Sure, extraconstitutional means may produce short-term solutions, but short-circuiting the process that the Constitution designed not only tends to fail to develop the durable consensus to which lasting policy solutions are anchored,[110] it also erodes the perceived utility in following (or the perceived capacity of) the Constitution’s process the next time.[111] That doom loop undermines the notion of representative self-government—the processes inherent in the structural separation of powers are, for now, part of “our law.”[112]

But their status is contested. And their normative value is not always obvious, especially to those who spend their days doing more than thinking about legal theory. Modern originalism centers how the people understand the law. [113] The modern conservative legal movement, meanwhile, traces its origins to three elite law schools: Harvard, Chicago, and a third one that need not be named.[114] Ironically, then—but perhaps unsurprisingly—ordinary citizens have not always been the target for explanations about why originalism, particularly in the separation of powers context, matters to daily life. That is a problem.

And responding effectively to hyperbolic attacks on the legitimacy of constitutional institutions (namely, the Supreme Court)[115] requires more than mere assertions about the system working like it is supposed to; explanations must explain why the system is supposed to work that way.

All three of these books help develop such explanations that can resonate beyond the legal academy. For example, Wallach explains the connection between actually legislating and developing social trust.[116] Bernhardt shows the pitfalls of executive agencies freelancing beyond their statutory authorization.[117] Judge Thapar disentangles the process of judging from its substantive outcomes.[118] Taken together, all three authors shed light on why politics operating short of our constitutional order can simultaneously feel hollow and chaotic.[119] Put more simply, the authors explain what our institutions are good for and why we might want to preserve them.

The essence of a legitimate institution is one where you can lose, move on, and live to fight another day, trusting that you got a fair shake and believing that continued engagement in the republic is better than all alternatives.[120] Keeping a republic depends on institutions that durable majorities see as legitimate.

***

I opened this essay with that famous story about Benjamin Franklin. But I left out a major character: Franklin’s interlocutor. Her name was Elizabeth Willing Powel.

According to the journal of Maryland delegate James McHenry, Powel asked Franklin: “Well Doctor, what have we got—a republic or a monarchy?”[121]

Born in Philadelphia and the daughter of the mayor, Powel was one of eleven children.[122] Beginning with the First Continental Congress in 1774, Powel and her husband Samuel opened their home to delegates and hosted frequent dinner parties and salons to discuss the issues of the day.[123] As a librarian at Mount Vernon (home to one of her frequent correspondents, George Washington), notes, “She was a political power player, in a time when women were not supposed to be involved with politics. Although she could not run for office, she used her home as her public stage, situating herself at the center of a robust network of powerful individuals. As her 1830 obituary would note, Powel had a ‘mind cast in an unusual mold of strength and proportion,’ which drew people to her home for conversation and entertainment.”[124]

During the Revolutionary War, British soldiers commandeered her home.[125] The destruction of Philadelphia during the war appears to have left a lasting impression.[126] By the time of the Constitutional Convention, Powel had resumed her hosting duties, witnessing lengthy and weighty deliberations on what the newly independent states were to become in the lead-up to her climactic conversation with Franklin.[127]

By the final day of the Constitutional Convention in September 1787, it seems safe to conclude that Powel had been a deeply informed observer.[128] So it likewise seems safe to assume that the question she asked was truly what was on her mind—would this new country be a monarchy or a republic? Her question was about process. Her home having been seized during the war, she understood the stakes of sovereignty. Who would decide to what laws Americans would be subject?[129] The people, through their elected representatives. The Constitution guaranteed that to her and to us—if only we keep it.

I hope you’ll join us next March in Cambridge to discuss how we might.

* J.D. 2024 (expected), Harvard Law School; President of the Harvard Federalist Society. He speaks only for himself. The author thanks Tom Koenig, Ben Rolsma, and Adam White as well as Per Curiam editors Marcos Mullin and Joel Erickson for advice and thoughtful feedback.

[1] This assertion is the first, though maybe not the last, for which that disclaimer about the author speaking only for himself is necessary.

[2] Neil Gorsuch, A Republic, If You Can Keep It (2019).

[3] Transcript of Pelosi Weekly Press Conference Today, House.Gov (Sep. 26, 2019) https://pelosi.house.gov/news/press-releases/transcript-of-pelosi-weekly-press-conference-today-43 (“Article II does not make anyone a king.  That’s exactly what our Founders avoided.  So said Benjamin Franklin when he came out on the Independence Hall steps, and they said, ‘Dr. Franklin, what do we have, a monarchy or a Republic?’  He said, ‘A Republic, if we can keep it.’”).

[4] See, e.g., Adam J. White, A Republic, If We Can Keep It, The Atlantic (Feb. 4, 2020) https://www.theatlantic.com/ideas/archive/2020/02/a-republic-if-we-can-keep-it/605887/; Michael Kimmage, A Republic, If You Can Keep It, Am. Purpose (Jul. 11, 2023); Richard R. Beeman, Perspectives on the Constitution: A Republic, If You Can Keep It, National Constitution Center. https://constitutioncenter.org/education/classroom-resource-library/classroom/perspectives-on-the-constitution-a-republic-if-you-can-keep-it.

[5] See generally Federalist No. 47.

[6] See U.S. Term Limits v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).

[7] See U.S. Const. arts. I, II & III.

[8] Though our republic would quite likely be healthier if we leaned into Schoolhouse Rock’s civic-minded spirit.

[9] William Baude & Stephen Sachs, Originalism and the Law of the Past, 37 Law & Hist. Rev. 809, 812 (2019). Other scholars, no less thoughtful, would push harder on “lawfully” than others to argue that legitimate changes in legal process can lead to legitimate change to substantive law. See, e.g., Richard Fallon, Constitutional Precedent Viewed Through the Lens of Hartian Positivist Jurisprudence, 86 N.C. L. Rev. 1107 (2008) (arguing that non-originalist precedent, for example, can attain the status of binding law through ongoing practice); cf. William Baude, Constitutional Liquidation, 71 Stanford L. Rev. 1 (2019) (envisioning a more limited role for the evolution of constitutional meaning through historical practice in the face of textual indeterminacy).

[10] See, e.g., Jud Campbell, General Citizenship Rights, 132 Yale L.J.  611, 696–97 (2023).

[11] See Stephen Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. & Pub. Pol’y 817, 839 (2015).

[12] See e.g., Tyler v. Hennepin County, 598 U.S. 631 (2023); National Pork Producers v. Ross, 143 S. Ct. 1142 (2023).

[13] The Federalist No. 51 (James Madison).

[14] Seila Law v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020).

[15] Cf. Jeffrey Sutton, Administrative Law in the States: An Introduction to the Symposium, 46 Harv. J.L. & Pub. Pol’y 307 (2023).

[16] Philip Wallach, Why Congress 1 (2023).

[17] Id. at 3.

[18] Id. at Chapters 2–3.

[19] Id. at Chapters 4–6.

[20] Id. at Chapters 7–8.

[21] Compare Beau Baumann, Americana Administrative Law, 111 Georgetown L.J. 466 (2023) (accusing conservative judges, in particular, of “deploying cynical and declinist notions of Congress to justify judicial self-aggrandizement”), with Simon Bazelon & Matt Yglesias, The Rise and Importance of Secret Congress, Slow Boring (Jun. 21, 2021) https://slowboring.com/p/the-rise-and-importance-of-secret (arguing that out of the spotlight, Congress remains remarkably effective in passing bipartisan legislation on lower-salience issues).

[22] Wallach, supra note 16, at Chapters 9–11.

[23] Id. at 47.

[24] See e.g., id. at 55 (“[W]e can acknowledge that Congress was obliged to endow the executive with unprecedented power without supposing that the questions of how it should do so were obvious or trivial. Congress needed to fashion a regime that was potent but still accountable, capable of beating back hostile empires without itself becoming imperious.”)

[25] See, e.g., Jon Meacham, The Soul of America: The Battle for Our Better Angels (2019).

[26] Wallach, supra note 16, at 70.

[27] See id. at 71–72; 88; see also id. at 72 (“For those 21st-century readers who regard racism as the worst sin imaginable, this forbearance may seem like something to be ashamed of. Such an absolutist position is fundamentally anti-democratic and insensitive to the value of social peace.”).

[28] 347 U.S. 483 (1954).

[29] Wallach, supra note 16, at 88–90; accord. Justin McCarthy, U.S. Approval of Interracial Marriage at New High of 94%, Gallup (Sep. 10, 2021) https://news.gallup.com/poll/354638/approval-interracial-marriage-new-high.aspx (noting that from 1958 until 2021, the percentage of the American public expressing approval of marriage between Black people and white people rose from 4% to 94%).

[30] Id. at 82.

[31] Id. (citing Julian Zelizer, Fierce Urgency of Now 120 (2015)).

[32] Id. at 88.

[33] Id. at 88–89.

[34] Wallach, supra note 16, at 93.

[35] Id. at 225.

[36] Id. at 130; 140; 244. On the Wilsonian critique of Congress, see id. at 30–42.

[37] Id. at 102.

[38] Id.

[39] Id.

[40] Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).

[41] Wallach, supra note 16, at 113–14; 117.

[42] Id. at 119.

[43] See generally Richard Fenno, Home Style: House Members in Their Districts (1978).

[44] Cf. James Curry & Frances Lee, Non-Party Government: Bipartisan Lawmaking and Party Power in Congress, 17 Perspectives on Politics 47 (2019) (observing that the coalitions that have supported major legislation are just as bipartisan in the 2010s as they were in the 1970s).

[45] Wallach, supra note 16 at 149; 173.

[46] Id. at 189–90.

[47] See West Virginia v. EPA, 597 U.S. __ (2022).

[48] Wallach, supra note 16, at 227.

[49] Id. at 228.

[50] See, e.g., William Howell & Terry Moe, Relic: How Our Constitution Undermines Effective Government and Why We Need a More Powerful Presidency (2016); Adrian Vermeule, Common Good Constitutionalism (2022).

[51] Wallach, supra note 16, at 238–39.

[52] Id. at 244–45; 247.

[53] Id. at 251.

[54] Id. at 255.

[55] Id. at 260 (citing James Burnham, Congress and the American Tradition 347 (1959)).

[56] Wallach, supra note 16, at 262.

[57] Id. at 263.

[58] David Bernhardt, You Report to Me: Accountability for the Failing Administrative State 2 (2023).

[59] See, e.g., id. at 10.

[60] See, e.g., Myers v. United States, 272 U.S. 52 (1926).

[61] E.g., mocking a Fish and Wildlife Service (FWS) employee who reported that her job was to “speak for the mice,” see Bernhardt, supra note 58, at 139; four pages to explain his disagreement with a memo written by a different FWS employee about the status of the Northern Spotted Owl, see id. at 49–53; a two-paragraph aside condemning Dr. Deborah Birx, the “career bureaucrat who was selected to coordinate the Trump administration’s coronavirus response,” for circumventing elected officials and their designees that seemed a bit gratuitous in a chapter about accountability for the civil service that had made its point long before, id. at 46.

[62] Id. at 49.

[63] Id. at 79.

[64] Id. at 97.

[65] Id. at 115.

[66] Id. at 139.

[67] Id. at 108–10.

[68] Id. at 109.

[69] Id. (citing Jamie Conrad, We Shouldn’t Dismiss ‘Sue and Settle’ – or Other Regulatory Problems, Reg. Rev. (May 18, 2015), https://www.theregreview.org/2015/05/18/conrad-sue-and-settle/).

[70] Cf. Arizona Grocery v. Atchison, Topeka & Santa Fe Railway, 284 U.S. 370 (1932).

[71] See generally Seila Law v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020) (holding that limitations on the president’s ability to fire an agency head unconstitutionally limits his ability to discharge the executive power).

[72] Bernhardt, supra note 58, at 173.

[73] See id. at 178; 182.

[74] Compare id. at 190, with id. at 74.

[75] Id. at 190. But cf. Remarks by President Biden on Fighting the Covid-19 Pandemic, The White House (Aug. 3, 2021) https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/08/03/remarks-by-president-biden-on-fighting-the-covid-19-pandemic/ (President Biden announcing the extension of an eviction moratorium despite acknowledging that “the bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster” but hoping that the moratorium would have a salutary effect until there was time for a court to say so).

[76] See 5 U.S.C. § 3331 (“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”)

[77] Bernhardt, supra note 58, at 211.

[78] Amul Thapar, The People’s Justice: Clarence Thomas and the Constitutional Stories That Define Him (2023).

[79] See, e.g., Jeffrey Sutton, Who Decides? States as Laboratories of Constitutional Experimentation (2022); Jeffrey Sutton, Fifty-One Imperfect Solutions: States and the Making of American Constitutional Law (2018); Raymond Kethledge & Michael Erwin, Lead Yourself First: Inspiring Leadership Through Solitude (2017); John K. Bush, Should We Cancel the Founders? (forthcoming).

[80] In order, those cases and opinions are: Kelo v. City of New London, 545 U.S. 469 (2005) (Thomas, J., dissenting); Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (Thomas, J., concurring); Grutter v. Bollinger, 539 U.S. 306 (2003) (Thomas, J., concurring in part and dissenting in part); Gonzales v. Raich, 545 U.S. 1 (2005) (Thomas, J., dissenting); Doe v. United States, 593 U.S. __ (2021) (Thomas, J., dissenting from denial of certiorari); McKee v. Cosby, 586 U.S. __ (2019) (Thomas, J., concurring in the denial of certiorari); Brumfield v. Cain, 576 U.S. 305 (2015) (Thomas, J., dissenting); City of Chicago v. Morales, 527 U.S. 41 (1999) (Thomas, J., dissenting); McDonald v. City of Chicago, 561 U.S. 742 (2010) (Thomas, J., concurring in part and concurring in the judgment); Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011) (Thomas, J., dissenting); State Farm v. Campbell, 538 U.S. 408 (2003) (Thomas, J., dissenting); Virginia v. Black, 538 U.S. 343 (2003) (Thomas, J., dissenting).

[81] See Thapar, supra note 78, at XVIII.

[82] See U.S. Const. art. III, § 2, cl. 1.

[83] Thapar, supra note 78, at XXI.

[84] On how Justice Thomas evaluates the original meaning of the Constitution, see Gregory Maggs, Which Original Meaning of the Constitution Matters to Justice Thomas? 4 N.Y.U. J.L. & Liberty 494 (2009).

[85] See, e.g., Michael Waldman, Supermajority: How the Supreme Court Divided America 184; 267 (2023); Eric Segall, Originalism As Faith (2018).

[86] Rosenkranz Originalism Conference Features Justice Thomas ’74, Yale Law School (Nov. 4, 2019), https://law.yale.edu/yls-today/news/rosenkranz-originalism-conference-features-justice-thomas-74; cf. Baude & Sachs, supra note 9.

[87] Thapar, supra note 78, at 108–09.

[88] Id. at 110.

[89] Kevan Brumfield was convicted by a jury that unanimously recommended the death penalty after finding three aggravating factors. See Brumfield v. Cain, 576 U.S. 305, 330 (2015) (Thomas, J., dissenting). He went on to appeal his conviction in state court on direct appeal, Thapar supra note 78, at 112, and then, in 2003, filed his first amended habeas petition, raising, in light of the Supreme Court’s intervening ruling in Atkins v. Virginia, 536 U.S. 304 (2002), that he was mentally disabled and thus ineligible for the death penalty, id. at 113. The state court denied his petition, finding insufficient facts to support his claim of disability. Id. He then filed a federal habeas petition in 2004. See Brumfield v. Cain, 854 F. Supp. 2d 366, 372 (M.D. La. 2012). Six years later, the federal court held an evidentiary hearing. Id. Eighteen months after that, a federal district court ruled that the state court had denied Brumfield’s Adkins claim based on an unreasonable determination of facts and had incorrectly applied clearly established Supreme Court precedent in failing to provide funds to Brumfield to develop his claim. See Brumfield, 576 U.S. at 333–34 (Thomas, J., dissenting) (summarizing the procedural history). The Supreme Court ruled in 2015, and a resentencing hearing—in which Brumfield was sentenced to life in prison without parole—occurred in 2016. Thapar, supra note 78, at 120.

[90] 576 U.S. 305 (2015).

[91] 536 U.S. 304 (2002) (holding that the Eighth Amendment prohibits the execution of mentally disabled individuals).

[92] Brumfield v. Cain, 576 U.S. 305, 324 (2015) (Thomas, J., dissenting).

[93] Thapar, supra note 78, at 119.

[94] Id. (quoting Brumfield, 576 U.S. at 342 (Thomas, J., dissenting)).

[95] Brumfield, 576 U.S. at 350 (Alito, J., dissenting).

[96] Thapar, supra note 78, at 118.

[97] Cf. Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”)

[98] Brumfield, 576 U.S. at 343 (Thomas, J., dissenting).

[99] See id. (citing Harrington v. Richter, 562 U.S. 86, 103 (2011)).

[100] Id. at § 2254(d).

[101] Brumfield, 576 U.S. at 349 (Thomas, J., dissenting).

[102] 598 U.S. __ (2022).

[103] Id. Slip Op. at 12 (Thomas, J., dissenting).

[104] Id. Slip Op. at 13 (Thomas, J., dissenting).

[105] See, e.g., Alleyne v. United States, 570 U.S. 99, 103 (2013) (holding that the original meaning of the Sixth Amendment requires that any fact that, by law, increases the penalty for a crime must be found by a jury).

[106] Judge Thapar suggests that Gonzales v. Raich, discussed in pp. 67–86, might be an example. Thapar, supra note 78, at 213.

[107] Id. at 211.

[108] Id. at 214.

[109] I owe this construction to Judge Patrick Bumatay, who told attendees at the 2023 Federalist Society National Student Symposium that one of his favorite clerkship interview questions is “articles or amendments?”

[110] See, e.g., Wallach, supra note 16, at 90–93.

[111] See, e.g., Bernhardt, supra note 58, at 198 (recalling a conversation with a senator who told him that an issue was “too complicated for Congress to deal with” and, after Bernhardt responded that it was Congress’s job to “mak[e] complicated policy decisions,” agreed that “Congress really should act . . . [but would not] until the political need to act was more acute”).

[112] Cf. Baude & Sachs, supra note 9, at 812; William Baude, Is Originalism Our Law? 115 Colum. L. Rev. 2349 (2015).

[113] See generally Thapar, supra note 78, at 211.

[114] Cf. Kyle Swanson, At Hill, Chief Justice Roberts Offers Advice, Laughs, Mich. Daily (Sept. 13, 2009) https://www.michigandaily.com/uncategorized/hill-chief-justice-roberts-offers-advice-laughs/ (Chief Justice Roberts, responding to a question about Supreme Court justices attending elite institutions, observing, “Not all of the justices went to elite institutions; some went to Yale.”)

[115] See, e.g., Aaron Belkin & Mark Tushnet, An Open Letter to the Biden Administration on Popular Constitutionalism, Balkinization (July 19, 2023) https://balkin.blogspot.com/2023/07/an-open-letter-to-biden-administration.html (condemning “MAGA justices” and urging the Biden administration to pursue “popular constitutionalism” in response); see also Thomas Koenig, The Incoherence of Illegitimacy, The Dispatch (July 15, 2023) https://thedispatch.com/article/the-incoherence-of-illegitimacy/ (criticizing attacks on the Supreme Court’s legitimacy as conceptually confused).

[116] See, e.g., Wallach, supra note 16, at 40–42.

[117] See, e.g., Bernhardt, supra note 58, at 52–53.

[118] See, e.g., Thapar, supra note 78, at 211–14.

[119] See, e.g., Jason Bivins, Embattled America: The Rise of Anti-Politics and America’s Obsession with Religion (2022); Colin Hay, Why We Hate Politics (2007); Jonathan Rauch, How American Politics Went Insane, The Atlantic (July 2016) https://www.theatlantic.com/magazine/archive/2016/07/how-american-politics-went-insane/485570/.

[120] Cf. James Gibson, Legitimacy Is for Losers: The Interconnections of Institutional Legitimacy, Performance Evaluations, and Symbols of Judicial Authority, in Motivating Cooperation and Compliance with Authority: The Role of Institutional Trust, Brian Bornstein & Alan Tomkins (eds.), 81 (2015).

[121] James McHenry, Diary: September 18, 1787, Library of Congress (manuscript division), https://www.loc.gov/exhibits/creating-the-united-states/convention-and-ratification.html#obj8.

[122] See David W. Maxey, A Portrait of Elizabeth Willing Powel, 96 Transactions of the American Philosophical Society 3, 15–16 (2006).

[123] Samantha Snyder, The Influencer, 6 Mount Vernon Magazine 18 (2020) https://magazine.mountvernon.org/2020/Winter/the-influencer.html.

[124] Id.

[125] Maxey, supra note 122, at 24–25.

[126] Id. at 25.

[127] Id. at 30.

[128] See Elizabeth Willing Powel, Mount Vernon Digital Encyclopedia, https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/elizabeth-willing-powel/ (citing Elizabeth Willing Powel to Martha Hare, 25 April, 1814, Powel Family Papers, Historical Society of Pennsylvania).

[129] Cf. Wallach, supra note 16, at 23 (“But again, their objections to ‘a long train of abuses and usurpations’ revolved as much around their insufficient protection through representation as around their objections to particular policies.”)

Groff v. DeJoy: Hardison is dead, long live Hardison! – Nick Reaves

Posted by mmullin on Sep 15, 2023 in Per Curiam

Groff v. DeJoy: Hardison is dead, long live Hardison!

Nick Reaves*

For decades, lower courts and litigators labored under the (mis)impression that the Supreme Court meant what it said in TWA v. Hardison: that an employer can deny a religious accommodation if it imposes anything more than a “de minimis” (or minimal) cost on the employer’s business.[1] So understood, Hardison cost countless religious minorities their jobs and allowed this country’s largest employers to deny religious accommodations by pointing to the all but trifling administrative burdens of providing such accommodations (like facilitating voluntary shift swaps or permitting religious garb in the workplace). It took 46 years, but the Supreme Court in Groff v. DeJoy finally “clarified” that Hardison’s de minimis standard was, in the words of Justice Sotomayor, merely “loose language.”[2] Going forward, this means that lower courts must interpret Title VII’s religious accommodation provision—requiring workplace religious accommodations absent “undue hardship”—consistent with the statute’s plain textual meaning.[3] Groff therefore corrects Hardison’s grave error and helps ensure that all Americans will be treated fairly in the workplace.

Background

In Groff v. DeJoy, postal carrier Gerald Groff sought a Sabbath accommodation from the United States Postal Service (USPS) so he could observe his religiously mandated day of rest.[4] At first, he was accommodated. But after USPS entered into a contract with Amazon to deliver packages seven days a week, Groff faced progressive discipline for refusing to work on his Sabbath. Groff eventually resigned and sued.[5] Both the district court and Third Circuit concluded that Title VII didn’t require USPS to accommodate Groff because any accommodation would impose more than a de minimis burden on USPS. Groff petitioned the Supreme Court to hear his case.

The Supreme Court granted review on January 13, 2023, causing most Court watchers to believe that it would overturn TWA v. Hardison. But after oral argument, this conventional wisdom was thrown into doubt. Justice Gorsuch, for example, appeared to focus on the numerous points of “common ground” between the parties.[6] And forceful arguments from the Solicitor General, combined with concerns over statutory stare decisis coming from several corners, suggested a narrower ruling. It was therefore unsurprising that initial reactions to the Court’s opinion in Groff were also uncertain: On the one hand, the Court did not overturn TWA v. Hardison. On the other, the Court repeatedly emphasized that Hardison’s most enduring legacy, the de minimis standard, was no longer good law.

So, how can we understand Groff and Hardison going forward? And what does Groff mean for religious minorities? Put simply, Groff gave Hardison a brain transplant. Instead of overruling the decision, the Supreme Court replaced what every federal court had treated as Hardison’s key holding with a brand-new standard. This new legal test is both more consistent with the statutory text and will better protect the rights of religious minorities in the workplace.

I.               The world before Groff

If you had only listened to oral argument in Groff and then read the Supreme Court’s opinion, you would be forgiven for thinking that most courts had been correctly interpreting the phrase “undue hardship” in Title VII, and that “not all courts, but some courts” had taken Hardison’s “‘de minimis’ language and run with it.”[7] Therefore, all the Supreme Court needed to do in Groff was “clarify”[8] a “single . . . sentence”[9] from Hardison—a sentence which had been “leading courts of appeals astray.”[10] Further, you might also believe this clarification was hardly controversial, as even the Solicitor General of the United States (representing USPS) agreed “the ‘de minimis’ language should not be taken literally.”[11]

While all technically true, the problem with such a conclusion is that this is not how lower courts have understood Hardison for the past 46 years. Before Groff, federal appellate courts uniformly read Hardison as definitively interpreting Title VII to require evidence of only de minimis costs to deny religious accommodations.[12] The Justices who decided Hardison seemed to read it this way too. Writing in dissent, Justices Marshall and Brennan pointed out (to no avail) that after Hardison, employers “need not grant even the most minor special privilege to religious observers to enable them to follow their faith.”[13] They even questioned “whether simple English usage permits ‘undue hardship’ to be interpreted to mean ‘more than de minimis cost.’”[14]

Nor was Hardison’s de minimis language simply a case of faulty terminology masking proper application of the law, as the Solicitor General at oral argument seemed to suggest.[15] It is clear that Congress enacted statutory text imposing a broad religious accommodation mandate on employers. When Congress amended Title VII in 1972, debate over workplace religious accommodations—and Sabbath observance in particular—took center stage. The Amendment’s author, West Virginia Senator Jennings Randolph, was a Seventh-day Baptist,[16] who repeatedly criticized the “partial refusal at times on the part of employers to hire or to continue in employment employees whose religious practices rigidly require them to abstain from work . . . on particular days.”[17] The Amendment’s text reflected these concerns, explaining that accommodation of the employee’s “religious observance and practice, as well as belief,” was required unless the employer “demonstrates” the accommodation would impose an “undue hardship on the conduct of the employer’s business.”[18]

But while Congress enacted a statute whose plain text required robust accommodations, within five years Hardison essentially repealed it. The promise of vigorous religious accommodations therefore turned into a paper tiger that employers could subvert by citing minor administrative costs, hypothetical burdens, and imagined or real co-worker displeasure.[19] Thus, rather than protecting the rights of religious minorities, Title VII’s religious accommodation framework after Hardison dealt loss after loss to religious employees, especially religious minorities. Across all religious accommodation appeals decided since 2000, employers prevailed 83.7% of the time when the undue hardship defense was raised.[20] Yet claims brought by Christian plaintiffs (excluding Christian faiths that are primarily practiced by racial minorities) were over twice as likely to prevail as claims brought by employees of minority faiths.[21]

Indeed, despite Senator Randolph’s best efforts, Hardison’s reinterpretation of Title VII made it significantly easier for employers to deny religious accommodation for those employees most likely to suffer from unfair prejudice in the workplace: religious minorities. Instead of increasing religious diversity in the workforce, Hardison allowed employers to cite the very administrative costs associated with increasing religious diversity (like flexible dress codes to accommodate religious garb or shift swaps to allow Sabbath observance) to justify restricting workplace accommodations. This in turn decreased workplace tolerance for religious diversity. As one federal judge put it before Groff was decided, “The irony (and tragedy) of decisions like Hardison is that they most often harm religious minorities—people who seek to worship their own God, in their own way, and on their own time.”[22]

II.             Groff

Groff mercifully corrected this state of affairs. But rather than confront Hardison’s error head on, Groff took a different tack. It carefully parsed Hardison’s text and concluded “it [wa]s doubtful” the Court in Hardison intended its gloss on the “undue hardship” standard to constitute an “authoritative interpretation” of Title VII or “to take on th[e] large role” that lower courts had ascribed to it.[23] While scholars can debate whether this revisionist reading of Hardison is correct, the bottom line is that Groff rejected the lower courts’ unanimous interpretation of Hardison. And in doing so, Groff explained that “like the parties,” the Supreme Court now “understand[s] Hardison to mean that ‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.”[24] While the Court justified this reinterpretation by a careful reading of Hardison, the test it adopted looked as much to Title VII’s text as to Hardison itself, using dictionary definitions to explain that an “undue hardship” was not only a hardship (“something hard to bear”), but one that rises “to an ‘excessive’ or ‘unjustifiable’ level.”[25]

Having reinterpreted “undue hardship,” the Court also provided several guideposts for lower courts going forward. First, the Court embraced the EEOC’s position that “temporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs” do not impose an undue hardship in employers.[26] Second, the Court suggested that providing “incentive pay” or coordinating across offices “with a broader set of employees” were accommodations the lower courts should consider on remand, implying that such accommodations would not impose an undue hardship.[27] Finally, rather than look to related Americans with Disabilities Act caselaw or simply adopt the EEOC’s existing guidance (as Groff and USPS suggested, respectively), the Court invited lower courts to develop post-Groff precedent by using standard tools of statutory interpretation to “resolve whether a hardship would be substantial in the context of an employer’s business in the commonsense manner that [they] would use in applying any such test.”[28]

Groff also directly addressed a question that often arises in accommodation cases: when and how should courts factor in impacts on coworkers when assessing undue hardship? For instance, what if other employees start grumbling about a religious accommodation—does a decrease in coworker morale count as an undue hardship? Without completely barring courts from considering these impacts, Groff significantly narrowed their use in the undue hardship analysis in two ways. First, the Court made clear that some “burdens” on coworkers are simply “off the table.”[29] These include a coworker’s dislike or hostility toward “religious practices and expression in the workplace” and the “mere fact of an accommodation.”[30] As the Court explained, “a hardship that is attributable to employee animosity . . . cannot be considered ‘undue.’”[31] To hold otherwise would put “Title VII . . . at war with itself,” as it was enacted to forbid “bias or hostility to a religious practice.”[32] Second, the Court emphasized that merely citing an impact on coworkers is insufficient; instead, courts must take the “further logical step” seriously and determine how the alleged impact on coworkers would “affect the conduct of the employer’s business.”[33]

III.            The world after Groff

So where do things stand now? After Groff, there is no question that the de minimis standard is out. Instead, courts must apply the “actual text”[34] of Title VII’s religious accommodation provision. This will likely result in significantly more religious accommodations in the workplace. For large employers, it is hard to see how the costs of providing an accommodation—like overtime or incentive pay, or the administrative cost associated with shifting schedules—would rise to the level of an undue hardship in all but the most unusual cases (like an NFL quarterback unable to work on Sundays). But even for small employers, many accommodations can be made at little to no cost—they simply require flexibility and the willingness to work with religious employees instead of against them. And for Sabbatarians in particular—by confirming that voluntary shift swaps, occasional incentive or overtime pay, and minor administrative costs are not undue hardships–the Court has all but guaranteed more accommodations.

Conclusion

Groff on its face carefully “clarifies” (without overturning) existing precedent and adopts an interpretation of Title VII that both parties generally supported—a fact that the Court notes repeatedly throughout the opinion. This modest approach shows why the Court’s opinion garnered the votes of all nine Justices. But make no mistake, Groff is also a significant repudiation of nearly 50 years of precedent interpreting Title VII. Lower courts therefore cannot ignore Groff; going forward, they must interpret Title VII’s religious accommodation provision according to its text. While only time will tell, this appears to be a significant victory for religious minorities and for all those who seek the opportunity to make a living without sacrificing their faith.

* Nick Reaves is counsel at the Becket Fund for Religious Liberty and visiting clinical lecturer at Yale Law School. The views expressed here do not necessarily reflect the views of Becket and its clients or of Yale Law School. The author thanks Eric Rassbach for his contributions to this piece. Any errors remain his own.

[1] Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).

[2] Groff v. DeJoy, 143 S. Ct. 2279, 2297 (2023) (Sotomayor, J., concurring).

[3] 42 U.S.C. § 2000e(j).

[4] See 143 S. Ct. at 2286.

[5] See id. at 2286-87.

[6] Transcript of Oral Argument at 61:16–18, Groff v. DeJoy, 143 S. Ct. 2279 (2023) (No. 22-174).

[7] Id. at 66:15–16.

[8] Id. at 74:9.

[9] Groff, 143 S. Ct. at 2291.

[10] Transcript of Oral Argument at 71:7, Groff v. DeJoy, 143 S. Ct. 2279 (2023) (No. 22-174).

[11] Id. at 67:14–15.

[12] See, e.g., Lowe v. Mills, 68 F.4th 706, 720 (1st Cir. 2023) (“Title VII does not define ‘undue hardship,’ see id. § 2000e, but current law holds that ‘[a]n accommodation constitutes an “undue hardship” if it would impose more than a de minimis cost on the employer.’” (quoting Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 134 (1st Cir. 2004))); Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 486 (2d Cir. 1985) (applying Hardison’s de minimis standard); United States v. Bd. of Educ. for Sch. Dist. of Philadelphia, 911 F.2d 882, 894 (3d Cir. 1990) (same); EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008) (same); Tagore v. United States, 735 F.3d 324, 330 (5th Cir. 2013) (same); Small v. Memphis Light, Gas & Water, 952 F.3d 821, 825 (6th Cir. 2020) (“But the company did not have to offer any accommodation that would have imposed an ‘undue hardship’ on its business—meaning (apparently) anything more than a ‘de minimis cost.’” (quoting Hardison, 432 U.S. at 84)); EEOC v. Walmart Stores E., L.P., 992 F.3d 656, 658 (7th Cir. 2021) (“To require [an employer] to bear more than a de minimis cost in order to give [an employee] Saturdays off is an undue hardship. (From now on, we’ll use the phrase “slight burden” to avoid the Latin.)” (quoting Hardison, 432 U.S. at 84)); Mann v. Frank, 7 F.3d 1365, 1369 (8th Cir. 1993) (“Hardison held that any accommodation involving more than de minimis costs to the employer constitutes undue hardship.” (citing Hardison, 432 U.S. at 84)); Opuku-Boateng v. State of Cal., 95 F.3d 1461, 1468 n.11 (9th Cir. 1996) (“The Supreme Court has made it clear that an accommodation that imposes more than a de minimis cost to the employer constitutes an undue hardship.” (citing Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 367, 371 (1986))); Graff v. Henderson, 30 F. App’x 809, 810 (10th Cir. 2002) (applying Hardison’s “de minimis” standard); Dalberiste v. GLE Assocs., Inc., 814 F. App’x 495, 498 (11th Cir. 2020) (same).

[13] Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 87 (Marshall, J., dissenting).

[14] Id. at 92 n.6 (Marshall, J., dissenting). As the majority in Groff points out, Hardison also suggests that the burden on TWA in that case was “substantial,” but descriptions of the burden on TWA do not change the opinion’s legal holding that anything more than a de minimis burden is an undue hardship. Groff, 143 S. Ct. at 2292.

[15] See Transcript of Oral Argument at 71:11–72:3, Groff v. DeJoy, 143 S. Ct. 2279 (2023).

[16] Debbie N. Kaminer, Title VII’s Failure to Provide Meaningful and Consistent Protection of Religious Employees: Proposals for an Amendment, 21 Berkeley J. Emp. & Lab. L. 575, 584 (2000).

[17] 118 Cong. Rec. S228 (daily ed. Jan. 21, 1972) (statement of Sen. Randolph).

[18] 42 U.S.C. § 2000e(j).

[19] See Petition for Writ of Certiorari at 25–31, Dalberiste v. GLE Associates, 141 S. Ct. 2463 (2021) (mem.); Petition for Writ of Certiorari at 22–26, Small v. Memphis Light, Gas & Water, 141 S. Ct. 1227 (2021).

[20] See Petition for Writ of Certiorari at 29, Dalberiste v. GLE Associates, 141 S. Ct. 2463 (2021) (mem.).

[21] See id. at 30.

[22] Memphis Light, Gas & Water, 952 F.3d at 829 (Thapar, J., concurring).

[23] Groff, 143 S. Ct. at 2291–92.

[24] Id. at 2294.

[25] Id. at 2294.

[26] Id. at 2296.

[27] Id. at 2297.

[28] Id. at 2296.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Id.