Ohio v. EPA Oral Argument and Standards of Review on the Emergency Docket – Thomas Koenig

Posted by on Feb 21, 2024 in Per Curiam

Ohio v. EPA Oral Argument and Standards of Review on the Emergency Docket – Thomas Koenig
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Ohio v. EPA Oral Argument and Standards of Review on the Emergency Docket

Thomas Koenig*

The Supreme Court held oral argument this morning in Ohio v. EPA.  The oral argument offers some insights on the potential for the Court to clarify its standard of review for assessing attempts to temporarily halt administrative action.

In the case, a number of States and private industry are asking the Court to “stay” the EPA’s implementation of its new “Good Neighbor” rule for ozone.  The rule requires certain upwind states to reduce their ozone emissions so as to not interfere with downwind states’ ability to meet national air quality standards for ozone.  A fuller overview of the Environmental Law issues in the case is available here.

The Court made the unusual move of holding oral argument on this application for emergency relief.  It did the same thing in the vaccine-or-test NFIB v. OSHA case a few terms back.  Today’s oral argument offered a window into how some of the Justices are conceiving of attempts to temporarily halt administrative action.

Normally, when a litigant asks the Supreme Court to stop an actor (like an executive branch actor) from doing something, they ask the Court for an “injunction.”  But emergency challenges to agency action are routinely framed as “stays.”  Whether that is the case because some of the foundational caselaw on this front arose in a world in which agencies were more apt to act like courts (by doing adjudications) than legislatures (by issuing rules), such that conceiving of the relief along the lines of a stay of a lower court order was more natural, or because more recent caselaw has at times conceived of this sort of relief in specific statutory contexts (like immigration removal orders) as a stay, is a question for another day.

The more pressing question is what standards ought to guide the Court in issuing such relief.  This is especially relevant in a situation like Ohio v. EPA, wherein the lower court (the D.C. Circuit) concluded that the new Good Neighbor Plan should not be halted as the plaintiffs’ merits challenge plods its way through the federal courts.  In this sort of scenario, litigants have begun sparring in their briefs over what exactly they are asking the Supreme Court to do.

Petitioners (like the private industry and States in Ohio v. EPA) regularly fashion their requests as a “stay” that should be governed by the Supreme Court’s standards for issuing “stays.”  In recent years, however, the Solicitor General’s Office has begun combatting this characterization of the relief.  Including in Ohio v. EPA, the SG’s briefing contends that in fact what petitioners are seeking when they aim to halt administrative action at the Supreme Court is an “injunction.”  What’s more, argues the SG, is that the Supreme Court’s traditional standard for issuing such preliminary injunctive relief is much higher than its standard for issuing stays.  That is, the petitioners’ right to injunctive relief, unlike stays, must be “indisputably clear,” to use the phrasing of in-chambers opinions authored by Chief Justice Rehnquist and Justice Scalia.

The Court has not yet resolved this brewing dispute between petitioners and the SG.  It could use Ohio v. EPA as a vehicle to do so.  Did oral argument shed light on how the Court might come out?

Yes and no.

Surprisingly, the SG’s Office did not spend any time during oral argument hammering home its brief’s argument that petitioners were in fact seeking injunctive relief.  The SG’s Office seemed to accept the framing of the relief as a stay.

Similarly surprising was Justice Kagan’s invocation of the Nken framework — a framework for lower courts’ issuances of stays — given that she seems partial to the EPA’s position in the case and has publicly dissented from alleged overuse of the Court’s “shadow docket.”  That is surprising because accepting the SG’s brief’s framing of the sought after relief as an “injunction” — and then applying the proffered Rehnquist/Scalia heightened standard to that relief — cuts in EPA’s favor in this specific case and cuts against the Court issuing consequential rulings in the preliminary stages of litigation by way of emergency orders.

Another interesting piece of oral argument was that Justice Barrett seems to have reupped her Does 1–3 v. Mills concurring opinion’s framework for assessing motions for preliminary injunctive relief.  In that separate opinion, Justice Barrett argued in favor of considering certworthiness as part of the likelihood of success on the merits prong for preliminary injunctive relief.  During oral argument today, Justice Barrett voiced some skepticism with respect to just applying Nken (which, again, articulated the standard for lower courts to apply when issuing stays, and thus does not include any certworthiness considerations).

This move by Justice Barrett raises some interesting questions.  If Justice Barrett wants to include a consideration of certworthiness when assessing motions for emergency relief against agency action but conceives of the requested relief against the EPA as a stay, then she could easily invoke the Supreme Court’s own standard for issuing stays, which does include consideration of certworthiness.  See Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam).

But the way in which she framed her question during oral argument — and the way in which Justice Kavanaugh built off it (note, too, that he had joined her Does 1–3 v. Mills concurrence) — indicates that Justice Barrett is not necessarily conceiving of the relief here as a stay.  Surely she would have rebutted the application of Nken with reference to Hollingsworth if so.  Instead, Justice Barrett said that likelihood of success on the merits entails a certworthiness consideration.  That is, she seems to be baking a certworthiness consideration into the injunctive relief inquiry.  Just like she did in her Does 1–3 v. Mills concurrence.  In short, one could read this line of questioning to indicate that Justice Barrett is conceiving of the relief against the EPA as injunctive relief.

If that’s the case, then an even more interesting question arises: how can certworthiness necessarily be a consideration in the preliminary injunctive relief context when that relief, traditionally speaking, requires that the petitioner’s rights be “indisputably clear”?  The tension here is acute when a split in lower court authority provides the grounds for certworthiness.  In an in-chambers opinion assessing an application for preliminary injunctive relief a few years back, Chief Justice Roberts reasoned that the existence of a circuit split cuts against granting the relief.  Why?  Because if the lower courts are divided on the question of petitioner’s right to relief, then the petitioner’s right to relief is probably not “indisputably clear.”  In short, there’s a potential tension between Justice Barrett’s approach and the Rehnquist/Scalia/SG briefing approach.

Finally, that brings me to Justice Jackson’s questions at oral argument today.  Reminiscent of those Rehnquist and Scalia opinions, Justice Jackson evinced discomfort with respect to applying a traditional stay analysis in this posture.  She worried that without a sufficiently heightened standard, the Supreme Court risks supplanting the role of the lower federal courts during the preliminary stages of litigation.  Based on her questioning, her solution to that concern seems to be to require a particularly high level of irreparable harm, something “extraordinarily harmful.”  If one shares Justice Jackson’s concerns about the Supreme Court stepping in too early and too often, though, then it would seem that the “indisputably clear” standard (which goes to the likelihood of success on the merits prong as opposed to irreparable harm) has a stronger foothold in the doctrine.

Time will tell whether the Supreme Court gives a clear answer in Ohio v. EPA to the question of what standard it is applying when it decides whether to temporarily halt agency action.  I have a working draft of a forthcoming student Note available here with my own suggestions on the proper standard, but hopefully those suggestions will be preempted.

In the meantime, today’s oral argument leaves us with a lot of interesting questions — though no answers, yet.

* J.D. Candidate, Harvard Law School 2024.

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Ideological Leanings in Likely Pro Bono Biglaw Amicus Briefs in the United States Supreme Court – Derek T. Muller

Posted by on Jan 16, 2024 in Per Curiam

Ideological Leanings in Likely Pro Bono Biglaw Amicus Briefs in the United States Supreme Court – Derek T. Muller
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Ideological Leanings in Likely Pro Bono Biglaw Amicus Briefs in the United States Supreme Court

Derek T. Muller*

Each term, the United States Supreme Court receives hundreds of amicus briefs filed in merits docket cases. These totals have increased over the years,[1] and these briefs have found increasing influence in front of the Court.[2] Many of the largest law firms file amicus briefs before the United States Supreme Court.[3] These amicus briefs are often pro bono, which means the clients do not pay for the firm to file the brief.[4] That pro bono work can quickly total millions of dollars of legal briefing subsidized by the law firm.[5] And pro bono work often reflects the law firm’s desire to work for its prior commitments to what it identifies as the “public good.”[6]

Controversies have arisen in recent years over ideological rifts in America’s largest law firms, sometimes for attorneys representing politically unpopular clients,[7] at other times for publicly articulating politically unpopular positions.[8] The ideological leanings of the largest law firms have been a topic of lively debate.

Some efforts have been made to evaluate law firm partisanship based on the political contributions of their attorneys or employees.[9] Such efforts have their own limitations and complexities, so it is worth considering other ways to examine the political leanings of law firms. This Article offers a different approach. It examines the ideological leanings of pro bono work of the largest law firms.

By focusing on pro bono amicus briefs, this Article focuses on the most discretionary aspects of legal practice. Pro bono reflects the choices of attorneys to invest time and resources into a case. The American Bar Association’s Model Rules of Professional Conduct encourage attorneys to provide at least 50 hours of pro bono work each year.[10] A great deal of pro bono work may have no particular ideological valence—indeed, the ABA encourages pro bono work for “persons of limited means.”[11] But some work may have an ideological valence. And large law firms must approve attorneys’ choices, which can reflect the firms’ priorities, too. Filing an amicus brief can consume substantial resources at the law firm—the law firm is putting its significant financial backing behind the effort.[12]

Rather than representing a client as an adversarial party in the case, or being compensated by a paid client, the firm opts to use its valuable resources to assist others at no cost to the client, and to have a voice in litigation where the client is not a party to the dispute but has an interest in the outcome. Cases before the Supreme Court have the highest profile and can affect significant policy in the United States. It offers one way to examine the commitments of law firms.

Data Collection

I developed a novel dataset for all Supreme Court merits cases from October Term 2018 to October Term 2021, a four-year period. I collected 3280 amicus briefs filed on merits cases in that period.[13]

There are admitted limitations. This data does not include cases where amicus briefs were filed at the certiorari stage where the Supreme Court declined to hear the case,[14] or in “emergency docket” cases where the Court may issue significant decisions without a full merits briefing and oral argument.[15] Amicus practice also extends to state courts and lower federal courts; this Article only focuses on one slice of litigation, albeit the highest profile litigation—cases before the Supreme Court. And this Article only focuses on the largest firms—many large firms, smaller firms, boutique firms, and public interest organizations file briefs.

The dataset coded each case using the Supreme Court Database at Washington University for “liberal” or “conservative.”[16] This methodology has its own documented limitations and is of course reductionist given the complicated issues that can attend any case,[17] but it allows for a ready reference to an established dataset.[18] I then compared all amicus briefs filed in those cases to determine whether they supported the “liberal” or “conservative” side. There is a limitation to taking the ideology of “liberal” or “conservative” in briefing and translating it ideologically in firms. It is possible, of course, that one’s political preferences do not necessarily perfectly overlap with these ideological legal positions. That said, the reason I chose to examine amicus briefs—those cases where parties volunteered to make their positions known to the court—is because it is more likely that it reflects ideological preferences.

I focused on “Biglaw,” here defined as the American Lawyer 100 (“Am Law 100”)—the top 100 law firms in the United States by gross revenue measured in 2021.[19] Nearly every one of the top 100 firms filed at least one amicus brief before the United States Supreme Court in the October 2018 to October 2021 terms (cases decided between October 1, 2018 and June 30, 2022). Occasionally, two Am Law 100 firms joined on the same brief. In those cases, I coded both Am Law 100 firms.[20]

Overall Results

Of the 3280 amicus briefs filed in this period, the Am Law 100 firms signed onto 928 amicus briefs. But amicus briefs may be on behalf of paying clients or on behalf of pro bono clients. For pro bono clients, there is greater flexibility, discretion, and selectivity—which means it can offer insight into the firm’s priorities. It can represent a contribution of time and money that the firm is willing to make on behalf of a client in pursuit of a particular outcome in a particular case.[21]

I examined whether the firm represented what I labeled a “likely pro bono” client. Firms typically do not disclose the fee arrangements with clients, although there are occasional publicized exceptions.[22] So this Article creates a proxy for clients who are “likely pro bono.” These clients included several groups: non-profit or not-for-profit organizations; current or former government officials; professors and scholars; professionals, such as scientific experts, chaplains, prison guards, and immigration officials; and survivors or victims. It is likely that this is overinclusive, by adding non-profits who may be paying clients of the firm;[23] and it is possibly underinclusive, as there might be for-profit corporations or other individuals who have firms representing them pro bono. It is also possible that law firms provide discounted rates for some non-profits instead of pro bono services.

Most law firms filed amicus briefs—851 briefs in total—that fit this “likely pro bono” category. Of these, 545 (64%) aligned with the liberal position, 261 (31%) with the conservative position, and 45 in support of neither party. See Figure 1.

Figure 1

Figure 1 includes all cases, but not all cases are alike. The Supreme Court decides dozens of cases each year, but different cases attract different levels of attention. In the 223 cases with at least one amicus brief filed, the median was 10 briefs filed.[24] The mean was 14.7 and the standard deviation was 16.4.[25]

Some have more public or legal significance or salience than others. There are a variety of ways to consider salience.[26] For this Article’s purposes, I look at amicus briefs filed in relation to other amicus briefs—the more briefs, the higher the salience.[27] I created three cohorts of amicus briefs. The first are those with the “lowest salience,” with fewer than 30 amicus briefs filed. The second are those in “moderate salience” cases, those with at least 30 but fewer than 60 amicus briefs amicus briefs filed (around one and three standard deviations above the mean). The final category are the “highest salience” cases, those with at least 60 amicus briefs filed (around three standard deviations above the mean). The terminology of “salience” is an imperfect one, as cases have salience or significance for any number of reasons regardless of the volume of amicus briefs filed, but for my purposes it is a way of determining cases more “popular” among amicus briefs filed generally—a proxy, however imperfect, for significance, actual or perceived. Any line-drawing is admittedly subject to a certain degree of arbitrariness.

Most cases fit the “lowest salience” cohort—201 of the 223. In those lowest salience cases, Biglaw firms signed onto 526 briefs in support of liberal or conservative positions. (I removed the briefs in support of neither party for this and subsequent analysis.) The briefs in the “lowest salience” cohort were fairly evenly distributed—322 in support of liberal positions (62.4%) and 194 in support of conservative positions (37.6%).

In “moderate salience” cases—17 cases—the briefs skewed a bit more toward the liberal position. In 192 briefs signed onto by Biglaw firms in moderate salience cases, 130 were in support of the liberal position (67.7%), and 62 in support of the conservative position (32.3%).

And just five cases fit the “highest salience” profile: Dobbs v. Jackson Women’s Health Organization[28] (131 briefs); Bostock v. Clayton County and Harris Funeral Homes v. EECO[29] (93); New York State Rifle & Pistol Association Inc. v. Bruen[30] (81); Fulton v. City of Philadelphia[31] (80); June Medical Services v. Russo[32] (69). Two cases were about abortion, two about sexual orientation or gender identity (one of which included a religious liberty issue), and one about the Second Amendment. These “highest salience” cases touch on some of the most divisive areas of political controversy. Ninety-eight amicus briefs were filed in these five cases by fifty Biglaw firms. Ninety-three briefs (94.9%) aligned with the liberal position, and five (5.1%) with the conservative position. While there is a larger amount of ideological diversity among the less salient cases, in these five “highest salience” cases, the briefs skewed heavily in one direction.[33] For the comparison of the three cohorts of “salience,” see Figure 2.

Figure 2

 

Firm Specific Results

In a short period of time (just four years and 223 cases with amicus briefs), it can be difficult to identify trends for individual law firms. But I attempted to identify preliminary trends (again excluding amicus briefs filed in support of neither party).

First, I pulled the firms that filed 10 or more amicus briefs on behalf of liberal positions for likely pro bono clients (here, 16 firms):

Figure 3

Gibson, Dunn & Crutcher 34
WilmerHale 30
Sidley Austin 27
Jenner & Block 25
O’Melveny & Myers 24
Covington & Burling 22
Hogan Lovells 19
Orrick, Herrington & Sutcliffe 16
Arnold & Porter Kaye Scholer 15
Mayer Brown 14
Paul, Weiss, Rifkind, Wharton & Garrison 13
Jones Day 12
Latham & Watkins 12
Davis Wright Tremaine 11
Cooley 10
McDermott Will & Emery 10

Second, I examined the firms that filed 10 or more amicus briefs on behalf of conservative positions for likely pro bono clients (here, five firms):

Figure 4

Gibson, Dunn & Crutcher 19
Mayer Brown 18
Sidley Austin 11
Jones Day 11
Baker Botts 10

Sixteen firms filed at least 10 amicus briefs in support of liberal positions; just five filed at least 10 in support of conservative positions. And four of the five firms on the conservative list also appear on the liberal list.

If we expect firms to have a coherent and consistent ideological preference, we might expect firms to lean overwhelmingly in one direction or another. But many firms appear on both lists. Perhaps, however, this is unsurprising—the firms with the largest Supreme Court amicus practices simply have the most opportunities to engage in appellate amicus practice, and many opportunities arise regardless of ideology.

Relatedly, I decided to look the distribution among firms that filed at least 10 amicus briefs on behalf of likely pro bono clients in this period—29 firms in all. See Figure 5.

Figure 5

Amicus Briefs by Ideology (at least 10 filed, OT 2018-2021)
Firm Liberal Briefs Conservative Briefs Pct Liberal
Paul, Weiss, Rifkind, Wharton & Garrison 13 0 100%
Orrick, Herrington & Sutcliffe 16 1 94%
O’Melveny & Myers 24 3 89%
Davis Wright Tremaine 11 2 85%
McDermott Will & Emery 10 2 83%
Perkins Coie 9 2 82%
WilmerHale 30 7 81%
Latham & Watkins 12 3 80%
Morrison & Foerster 8 2 80%
Ropes & Gray 8 2 80%
Arnold & Porter Kaye Scholer 15 4 79%
Hogan Lovells 19 6 76%
Jenner & Block 25 9 74%
Covington & Burling 22 8 73%
Sidley Austin 27 11 71%
Akin Gump Strauss Hauer & Feld 7 3 70%
Skadden, Arps, Slate, Meagher & Flom 7 3 70%
Cooley 10 5 67%
Kirkland & Ellis 9 5 64%
Gibson, Dunn & Crutcher 34 19 64%
Dechert 7 4 64%
Goodwin Procter 9 6 60%
Greenberg Traurig 6 4 60%
Baker & Hostetler 7 6 54%
Jones Day 12 11 52%
Foley & Lardner 5 5 50%
Mayer Brown 14 18 44%
Baker Botts 6 10 38%
Troutman Pepper 3 8 27%

There is a fairly broad spread across these firms. Only three filed more amicus briefs in likely pro bono cases for conservative positions over liberal positions, and most firms fall on the liberal side of the 50% divide. But most firms filed at least 25% of amicus briefs in support of conservative positions. And several firms filed overwhelmingly in support of liberal positions. It shows some variance among firms in terms of the kinds of likely pro bono amicus work they engage in.

Finally, I examined the five “highest salience” cases. Recall that these cases had the strongest ideological polarization, with Biglaw overwhelmingly favoring the liberal positions in these cases. Fifty Biglaw firms filed amicus briefs on behalf of likely pro bono clients in these cases. Forty-six filed in support of the liberal position in at least one case, and four in support of the conservative position in at least one case. Zero firms filed on behalf of both a conservative position and a liberal position across these five cases. There was more ideological polarization in these cases. That is admittedly harder to measure, given how many firms only filed one or two briefs in a set of five cases. But a consistent pattern did emerge across the firms of filing on the liberal side. See Figure 6.

Figure 6

Likely pro bono amicus briefs filed in five “very significant” cases Liberal Conservative
5 briefs Covington & Burling

Kramer Levin Naftalis & Frankel

WilmerHale

none
4 briefs Arnold & Porter Kaye Scholer

Hogan Lovells

Orrick, Herrington & Sutcliffe

none
3 briefs Cleary Gottlieb Steen & Hamilton

Crowell & Moring

Gibson, Dunn & Crutcher

Jenner & Block

Morrison & Foerster

Paul, Weiss, Rifkind, Wharton & Garrison

Skadden, Arps, Slate, Meagher & Flom

none
2 briefs Cooley

Cravath, Swaine & Moore

Duane Morris

Fried Frank

Goodwin Procter

Latham & Watkins

Mayer Brown

Milbank

Perkins Coie

Ropes & Gray

Simpson Thacher & Bartlett

Willkie Farr & Gallagher

Foley & Lardner
1 brief Akerman

Akin Gump Strauss Hauer & Feld

Baker McKenzie

Bryan Cave Leighton Paisner

Cozen O’Connor

Davis Polk & Wardwell

Davis Wright Tremaine

Debevoise & Plimpton

Dechert

Greenberg Traurig

Husch Blackwell

K&L Gates

McDermott Will & Emery

O’Melveny & Myers

Paul Hastings

Pillsbury Winthrop Shaw Pittman

Quinn Emanuel Urquhart & Sullivan

Shearman & Sterling

Sidley Austin

Squire Patton Boggs

Weil, Gotshal & Manges

Hunton Andrews Kurth

McGuireWoods

Nelson Mullins Riley & Scarborough

Limitations, Implications, and Areas for Future Inquiry

There are limitations to conclusions one may draw from these figures, and a variety of questions about causation. For law firms, it does not tell us about cases where an attorney at a firm wanted to file a brief, but a conflicts check found a difficulty. A firm that has a partner who has long represented a major non-profit in pro bono work in Supreme Court briefs is likely to continue to do so when similar cases arise, and it can lead to a set of similar ideological briefs being filed without an opportunity for someone else at the firm to weigh in on the other side. This may be particularly true in the “highest salience” cases, where representing one position in, say, an abortion dispute in the past likely results in similar positions in the future. That said, it may reflect a reluctance to abandon a position previously staked or a pro bono client previously taken on.

It also cannot tell us about rejections of requests from attorneys to file an amicus brief—whether it was a decision of resources and time, or a decision that the firm did not support the underlying position. Another reason for rejection may well be client preferences. Firms may choose positions in amicus briefs that signal support for a particular cause, or refuse to take positions elsewhere, to appease clients.[34]

Even claiming that “the firm” has a position can be misleading, as it may well be a decision of the committee that clears such requests, and it may well reflect the preferences of the committee more than the firm as a whole. And it may be that partners or associates at the firm are not requesting the work for a particular ideological position in the first place, as opposed to having their requests denied for one reason or another. That said, a fruitful area of future research might try to compare political contributions at law firms with the ideological preferences of likely pro bono amicus briefs.[35] Similarly, a look at individual Supreme Court litigators at these firms and their previous ideological or partisan affiliations may be useful.

Relatedly, it is possible that some conservative-leaning pro bono organizations do not request Biglaw firms to join briefs, particularly in high salience cases, because they anticipate the answer will be no. Or perhaps there are fewer conservative-leaning than liberal-leaning groups out there who are interested in such briefs. Or some pro bono organizations may prefer to file on their own, if they have attorneys in-house who prefer to be named as the attorney of record on brief and maintain control of the brief. That decision, of course, loses the signaling mechanism of an elite law firm’s name on a brief.[36] And it is possible that groups supporting liberal-leaning positions are better at coordinating amicus brief activity than groups supporting conservative-leaning positions.[37] A qualitative analysis of the non-profit organizations that file amicus briefs may be illuminating.

For all its limitations, this Article does offer some insight into likely pro bono amicus work at large law firms. There is little doubt that America’s largest law firms invest more resources in more liberal-leaning causes than conservative-leaning causes on behalf of likely pro bono clients in front of the United States Supreme Court.[38] But they invest substantial resources into conservative-leaning causes, too. In the biggest cases of this recent four-year period, however, the firms’ likely pro bono amicus work overwhelmingly leaned in the liberal direction.[39]

That said, there is some meaningful ideological diversity even within a firm in likely pro bono amicus briefs. It may show that political donations are only one measure—and an imperfect measure—of ideology within a law firm, either among the attorneys at the firm or as a signal for the firm’s clients.[40] And there is also some diversity across firms—a few firms leaned more conservative in this time period, some firms had a more even split, and most others leaned somewhat heavily toward liberal positions. The data also presents a more complicated portrait of law firms that may be publicly portrayed through a particular ideological or partisan lens. The data shows a variety of ways in which the largest law firms are putting their time and resources in litigation before the United States Supreme Court, and some diversity among law firms’ approach to amicus briefs on behalf of likely pro bono clients.

* Professor of Law, Notre Dame Law School. Special thanks to Adam Feldman, Andy Hessick, and Kyle Rozema for feedback on earlier drafts of this piece.

[1] See, e.g., Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the United States Supreme Court, 148 U. PA. L. Rev. 743 (2000).

[2] Allison Orr Larsen & Neal Devins, The Amicus Machine, 102 Va. L. Rev. 1901 (2016); Paul M. Collins, Jr., Pamela C. Corley, & Jesse Hamner, The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content, 49 L. & Soc. Rev. 917 (2015).

[3] See, e.g., H.W. Perry Jr., The Elitification of the U.S. Supreme Court and Appellate Lawyering, 72 S.C. L. Rev. 245, 262–63 (2020); Larsen & Devins, supra note 2, at 1906–07, 1916–17, 1927–30.

[4] See Larsen & Davis, supra note 2, at 1918, 1929–31. See also Nancy Morawetz, Counterbalancing Distorted Incentives in Supreme Court Pro Bono Practice: Recommendations for the New Supreme Court Pro Bono Bar and Public Interest Practice Communities, 86 N.Y.U. L. Rev. 131 (2011).

[5] See infra note 12.

[6] See, e.g., Pro Bono, Morgan Lewis, https://www.morganlewis.com/our-firm/our-culture/pro-bono (last visited Jan. 5, 2024) (“Our firm’s commitment to doing work for the public good manifests through the pro bono efforts of lawyers in every one of our global offices. We take on matters impacting individuals or small groups as well as litigation driving large-scale societal change.”); Pro Bono, Arnold & Porter, https://www.arnoldporter.com/en/about/pro-bono (last visited Jan. 5, 2024) (“We have a long history of taking on matters to redress injustice . . . . The broad spectrum of pro bono work we undertake is driven by our dedication to amplifying the voices of those who might not otherwise be heard.”); Pro Bono, Cleary Gottlieb, https://www.clearygottlieb.com/practice-landing/pro-bono (last visited Jan. 5, 2024) (“Founded in a spirit of inclusiveness, personal and professional responsibility, compassion for the needs of others, and dedication to improving the communities in which we live and work, Cleary Gottlieb is fully committed to the duties of good global citizenship. We believe pro bono work should be a mindful choice, one that expresses both personal and collective interests.”).

[7] See, e.g., Marisa M. Kashino, Clement Praised by Peers for Leaving King & Spalding Over DOMA, Washingtonian, Apr. 25, 2011, https://www.washingtonian.com/2011/04/25/clement-praised-by-peers-for-leaving-king-spalding-over-doma/; David Lat, Paul Clement Leaves Kirkland & Ellis Amid a Dispute Over Gun Cases, Original Jurisdiction, June 24, 2022, https://davidlat.substack.com/p/paul-clement-leaves-kirkland-and.

[8] See, e.g., David Lat, Biglaw’s Latest Cancel-Culture Controversy, Original Jurisdiction, Dec. 1, 2022, https://davidlat.substack.com/p/biglaws-latest-cancel-culture-controversy.

[9] See, e.g., Derek T. Muller, Ranking the most liberal and conservative law firms, Excess of Democracy, July 16, 2013, https://excessofdemocracy.com/blog/2013/7/ranking-the-most-liberal-and-conservative-law-firms; Adam Bonica, Adam S. Chilton, & Maya Sen, The Political Ideologies of American Lawyers, 8 J. of L. Analysis 277 (2016); Derek T. Muller, Ranking the most liberal and conservative law firms among the top 140, 2021 edition, Excess of Democracy, Nov. 8, 2021, https://excessofdemocracy.com/blog/2021/11/ranking-the-most-liberal-and-conservative-law-firms-among-the-top-140-2021-edition.

[10] Model Rules of Pro. Conduct r. 6.1. (Am. Bar Ass’n 2019).

[11] Id.

[12] See, e.g., Katherine Snow Smith, What is an amicus brief, exactly? Let us explain, The Legal Exam’r, Nov. 5, 2020, https://www.legalexaminer.com/legal/what-is-an-amicus-brief-exactly-let-us-explain/ (citing one scholar in 2020 who estimates the price on an amicus brief at $40,000, and a practitioner who noted, “I’m aware of some that cost $60,000, $70,000, $80,000 or more…”); Kelly J. Lynch, Best Friends?: Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J.L. & Pol. 33, 58 (2004) (noting 2004 estimate from Sidley Austin Brown & Wood that “an amicus brief would run approximately $50,000 today”).

[13] Any data entry or coding errors are my own. Amicus briefs exclude briefs filed by the United States or the Solicitor General.

[14] See, e.g., Adam Bonica, Adam Chilton, & Maya Sen, The “Odd Party Out” Theory of Certiorari (Harv. Kennedy School Working Paper, Paper No. RWP20-020, 2023), https://scholar.harvard.edu/sites/scholar.harvard.edu/files/msen/files/odd-party-out.pdf.

[15] See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 NYU J.L. & Liberty 1 (2015).

[16] The Supreme Court Database, Wash. U. L., http://supremecourtdatabase.org/documentation.php (last visited Jan. 5, 2024). The Codebook for the Database explains the methodology. See http://supremecourtdatabase.org/_brickFiles/2022_01/SCDB_2022_01_codebook.pdf. For instance, “liberal” in “issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys” include pro-affirmative action, pro-female in abortion, pro-person accused or convicted of crime positions; and “conservative” the opposite. In tax cases, “liberal” positions are pro-United States and “conservative” pro-taxpayer. In an occasional case where the outcome was “unspecifiable,” I supplied coding. For instance, in Frank v. Gaos, 139 S. Ct. 1041 (2019), the parties briefed the case, amici filed briefs in support, and the Court later asked for briefing on another issue and decided the case on that basis.

[17] See id. (“Hence, if you are analyzing issue, legal provision, or direction (liberal, conservative, indeterminate), keep in mind that the data pertain only to the first of what may comprise an additional number of issues or legal provisions for any given case.”). See also Michael Heise, Beyond Replication: A Few Comments on Spruk and Kovac and Martin-Quinn Scores, 61 Int’l Rev. L. & Econ. 1, 2 (2020); Todd E. Pettys, Free Expression, In-Group Bias, and the Court’s Conservatives: A Critique of the Epstein-Parker-Segal Study, 63 Buff. L. Rev. 1 (2015); Aaron-Andrew P. Bruhl, Measuring Circuit Splits: A Cautionary Note, 3 J. Legal metrics 361 (2014). And some cases may not necessarily code as “liberal” or “conservative” to a popular understanding. For instance, a case construing Article III standing narrowly may be coded as “conservative,” but the outcome of the case may appear to be a liberal victory. See California v. Texas, 141 S. Ct. 2104 (2021). Likewise, a case involving the free exercise of religion may be coded as “liberal,” but the outcome of the case may appear to be a conservative victory. See Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020).

[18] There are admittedly alternative ways of determining ideological positions through textual analysis, and it is possible to explore ideology in texts using large language models or other “big data” methods, too. See, e.g., Michael Laver, Kenneth Benoit, & John Garry, Extracting Policy Positions from Political Texts Using Words as Data, 97 Am. Pol. Sci. Rev. 311 (2003); Justin Grimmer, We Are All Social Scientists Now: How Big Data, Machine Learning, and Causal Inference Work Together, 48 Pol. Sci. & Pol. 80 (2015).

[19] The 2021 Am Law 100: Ranked by Gross Revenue, Am. Law., Apr. 20, 2021, https://www.law.com/americanlawyer/2021/04/20/the-2021-am-law-100-ranked-by-gross-revenue/. Any firms that merged during this period of time were coded together.

[20] In the relatively rare event that more than one Am Law 100 law firm was on the brief, I counted each law firm separately, as if co-authors on an article. This means the total of amicus briefs “signed by” large law firms is a slightly larger total than the raw number of amicus briefs filed.

[21] See supra notes 6 and 12 and accompanying text.

[22] See supra note 12.

[23] For instance, political parties are tax-exempt organizations in the United States, but political parties spend significant money on litigation costs. See, e.g., Derek T. Muller, Reducing Election Litigation, 90 Fordham L. Rev. 561 (2021). These and other complexities in using “likely pro bono” as a proxy for pro bono work likely overstate some of the work. There are also many non-profit trade organizations that represent the interests of groups like commerce, petroleum, manufacturers, lawyers, and doctors. I coded them all as “likely pro bono” and did not try to distinguish between types of non-profit organizations. I did, however, run a rough estimate to see if pulling out these organizations, which were about one quarter of all “likely pro bono” amicus briefs in this period, would change the results. The positions of briefs of these organizations did tend to skew more conservative than other “likely pro bono” organizations, likely because “pro-business” positions are coded “conservative,” see supra note 17. That means the overall analysis might skew more in the “liberal” direction if business organizations were excluded.

[24] In consolidated cases, some briefs are filed in one or another case, and some in both. I ensured briefs were only counted once, but I took the larger cases and consolidated them even if briefs were only filed in one or another case (e.g., Rucho v. Common Cause and Lamone v. Benisek).

[25] See Aaron-Andrew P. Bruhl & Adam Feldman, Separating Amicus Wheat from Chaff, 106 Geo. L.J. Online 135, 135 (2017) (noting that cases with thirty or more amicus briefs are “no longer particularly rare”). Cf. Kearney & Merrill, supra note 1, at 831 (identifying thirty-four cases that triggered twenty or more amicus briefs in a fifty-year period between 1946 and 1995).

[26] One way to determine salience might be popular salience ascertained by media coverage. See, e.g., Tom S. Clark, Jeffrey R. Lax, & Douglas Rice, Measuring the Political Salience of Supreme Court Cases, 3 J.L. & Cts. 37 (2015). Other ad hoc measures include the CQ Press “Key Cases,” identified by CQ Press authors as the “most important in American constitutional and political history,” see Supreme Court Collection, CQ Press, https://library.cqpress.com/scc/static.php?page=about&type=public (last visited Jan. 5, 2024); and Segal-Cover scores, which focus on “civil liberties and civil rights” issues, see Jeffrey A. Segal & Albert D. Cover, Ideological Values and the Votes of U.S. Supreme Court Justices, 83 Am. Pol. Sci. Rev. 557 (1989).

[27] Looking at the total number of briefs filed could be a more challenging measure to use across eras, as amicus practice has grown significantly, but in this limited window of time it should offer a comparable measure regardless of the term in which the Court heard the case. See also Ryan Salzman, Christopher J. Williams, & Bryan T. Calvin, The Determinants of the Number of Amicus Briefs Filed Before the U.S. Supreme Court, 1953-2001, 32 Just. Sys. J. 293 (2011).

[28] 142 S. Ct. 2228 (2022).

[29] 140 S. Ct. 1731 (2020).

[30] 142 S. Ct. 2111 (2022).

[31] 141 S. Ct. 1868 (2021).

[32] 140 S. Ct. 2103 (2020).

[33] See also Bruhl & Feldman, supra note 25, at 146–47 (noting that high profile cases attract more amicus briefs of “quite different kinds,” a qualitative and quantitative increase in briefs).

[34] Indeed, at least one prominent law firm dispute over the appellate litigation positions of one its attorneys appears to have been driven by client concerns. See supra note 7 and accompanying text; Jess Bravin, Winning Lawyers in Supreme Court Gun Case Leave Firm, Wall St. J., June 23, 2022, https://www.wsj.com/articles/winning-lawyers-in-supreme-court-gun-case-leave-firm-11656026132 (“After recent mass shootings, other Kirkland clients began expressing reservations over the firm’s work for the gun movement, a person familiar with the matter said. Kirkland ‘started getting a lot of pressure post-Uvalde, hearing from several big-dollar clients that they were uncomfortable,’ this person said. ‘Several partners agreed that they should drop that representation.’”).

[35] An initial comparison of some of my previous research on law firm political contributions with the data here shows some relationship between political giving and amicus contributions. See supra note 9. That said, most firms mostly contribute to Democratic political candidates and mostly support liberal positions in likely pro bono amicus briefs, which deserves separate inquiry in later research.

[36] See Larsen & Devins, supra note 2, at 1921–24 (describing parties “wrangling” amicus briefs to include coveted attorneys on brief).

[37] See id. at 1919–26 (describing the “wrangling” and “whispering” of organized amicus brief practice).

[38] Cf. supra note 12 (approximating a financial value for drafting amicus briefs).

[39] Additionally, the skew of briefs could be overstated in one direction or another if some categories labeled “likely pro bono” are not actually pro bono but on behalf of paying clients. See supra note 23 and accompanying text.

[40] See, e.g., Larsen & Devins, supra note 2, at 1940–41 (identifying varying benefits to the law firm in filing amicus briefs). See also Janet M. Box-Steffensmeier, Quality Over Quantity: Amici Influence and Judicial Decision Making, 107 Am. Pol. Sci. Rev. 446 (2013) (noting heterogenous influence of outside groups in amicus brief filing on the United States Supreme Court).

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Justice Thomas Reconceptualizes Civil Rights Laws, and a Recovery of the Original Meaning of the Fourteenth Amendment is Long Overdue – Frank J. Scaturro

Posted by on Nov 15, 2023 in Per Curiam

Justice Thomas Reconceptualizes Civil Rights Laws, and a Recovery of the Original Meaning of the Fourteenth Amendment is Long Overdue – Frank J. Scaturro
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Justice Thomas Reconceptualizes Civil Rights Laws, and a Recovery of the Original Meaning of the Fourteenth Amendment Is Long Overdue

Frank J. Scaturro*

The Supreme Court’s decision in Students for Fair Admissions v. President and Fellows of Harvard College[1] effectively ends race-based affirmative action in university admissions as violations of both Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. The extensive commentary that has followed has largely overlooked how a detail in Justice Clarence Thomas’ concurrence prompts a reconceptualization of the constitutional basis for federal civil rights laws.

While laying out an originalist defense of the Court’s holding, Justice Thomas makes a historical observation about the Civil Rights Act of 1875,[2] the first anti-segregation statute of national scope. Among other things, the law prohibited racial discrimination in “inns, public conveyances on land or water, theaters, and other places of public amusement.”[3] Justice Thomas describes it as “[t]he marquee legislation” among the Reconstruction-era statutes eliminating discriminatory state laws and “criminalizing racially motivated violence.” The 1875 law, the Justice recognizes, was grounded by its proponents in the Fourteenth Amendment, and it provided “further evidence for the colorblind view” contained in that post–Civil War amendment to the Constitution.[4] Later in his concurrence, Justice Thomas reiterates that the law had been passed under congressional “authority to enforce the Fourteenth Amendment.”[5]

As a historical matter, these are basic observations. As a jurisprudential matter, identifying the Fourteenth Amendment as the basis for the 1875 law is a bold step, because the Supreme Court struck down the law’s public accommodations provisions as unsupported by that amendment in the Civil Rights Cases in 1883.[6] The Court reasoned that this was an impermissible “direct and primary” regulation of individual conduct and that Congress was limited to passing corrective legislation tailored to address some form of state-sanctioned conduct.[7] (The decision did not go quite so far as to say that Congress cannot regulate the conduct of private individuals, but that is nonetheless how the Court’s “state action” doctrine would ossify during the twentieth century.[8])

Section One of the Fourteenth Amendment provides, among other things, that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.” Section Five establishes that “Congress shall have the power to enforce” the amendment “by appropriate legislation.” Viewed in a vacuum, this is broad language susceptible to multiple interpretations. Viewed in historical context, whether the postwar amendment authorized Congress to pass the Civil Rights Act of 1875 is not a difficult question.

Consider the congressional debates that occurred over the course of Reconstruction spanning from the inception of the Fourteenth Amendment, which Congress passed in 1866 with only Republican votes in favor prior to ratification in 1868, to the civil rights legislation passed in 1875. The predominant Republican view held the amendment to be an affirmative conferral of substantive personal rights that Congress could enforce. Those rights included freedom from racial discrimination by entities that were not limited to governmental actors.[9] That view was articulated often during post-ratification debates to refute the notion that congressional power was strictly corrective, which was the theory embraced by Democratic opponents of the Fourteenth Amendment—belying the fear they sometimes stoked while the amendment was pending in 1866 that it would expand congressional power so much that it would rob the States of all their power.[10] As John Bingham, the principal author of Section One of the Fourteenth Amendment, put it during debates over the Ku Klux Klan Act[11] in 1871, laws to enforce the amendment could be “preventive,” not merely “remedial and punitive.” He asked, “Why not in advance provide against the denial of rights by States, whether the denial be acts of omission or commission, as well as against the unlawful acts of combinations and conspiracies against the rights of the people?”[12]

The Supreme Court’s paradigm in the Civil Rights Cases disregarded a parallel concern about nonstate actors that occupied much attention from the Reconstruction Amendments’ framers from the beginning. While discriminatory state action was certainly a prominent motivation for constitutional change, the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, collected from the vast majority of witnesses testimony regarding wrongs by private individuals perpetrated against freedmen and their white allies.[13]

As Reconstruction proceeded, this problem persisted with the rise of the Ku Klux Klan and other terrorist organizations that engaged in rampant violence and intimidation. The Fifteenth Amendment, which banned racial discrimination in voting, was passed in that environment by Congress in 1869 and ratified in 1870. It was framed using language similar to that of its predecessor, stating that the right of citizens “to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Congressional enforcement of that amendment predictably addressed misconduct by nonstate actors acting on their own as well as by government officials, and even the very Supreme Court Justices who decided the Civil Rights Cases did not question that construction. Just one year after confining Fourteenth Amendment enforcement to state-sanctioned conduct, a unanimous Court in Ex Parte Yarbrough[14] rejected the argument that a similar standard should apply to enforcement of the Fifteenth Amendment and upheld the conviction of a group of private individuals who had brutally beaten an African-American voter. Years later, however, in James v. Bowman,[15] a different group of Justices applied a rigid state action doctrine to the Fifteenth Amendment and struck down a provision that had originated as Section Five of the first Enforcement Act,[16] passed in 1870, that applied to private individuals.

During the Civil Rights Movement of the twentieth century, the Supreme Court would arrive at a different conclusion about congressional power to pass the Civil Rights Act of 1964,[17] which included prohibitions of racial discrimination in public accommodations similar to the provisions of the Civil Rights Act of 1875 involved in the Civil Rights Cases. But at that time, case law had stretched congressional power under the Interstate Commerce Clause well beyond its original meaning, and it was under that provision rather than the Fourteenth Amendment that the 1964 law’s public accommodations provisions were upheld.[18] The first Supreme Court decision to do so, Heart of Atlanta Motel v. United States,[19] involved a motel that advertised extensively on interstate highways with transient interstate travelers comprising 75 percent of its guests. But the Court subsequently upheld the act under the Commerce Clause in circumstances so tenuously related to interstate commerce that, as Justice Hugo Black maintained in dissent in Daniel v. Paul,[20] it was “stretching the Commerce Clause so as to give the Federal Government complete control over ever little remote country place of recreation in every nook and cranny of every precinct and county in every one of the 50 States.”[21]

Section Five of the Fourteenth Amendment would thus remain relatively dormant. That situation appeared to be on the verge of change in United States v. Guest,[22] a case of statutory construction in which a total of six Justices expressed, over the course of two concurrences or partial concurrences, the opinion that the Fourteenth Amendment empowers Congress to punish private conspiracies in the absence of state action.[23] But a majority of the Court made it clear in City of Boerne v. Flores[24] and United States v. Morrison[25] that Section Five of the Fourteenth Amendment still gave Congress merely corrective or remedial power. In Morrison, the Court reaffirmed the state action doctrine that had prevailed over the twentieth century and dismissed the language of the Guest concurrences as insufficient “to cast any doubt upon the enduring vitality of the Civil Rights Cases.”[26]

The endurance of oft-cited precedent is not surprising in the absence of historical understanding to the contrary. A common mistake with respect to the Civil Rights Cases is the assumption that a decision handed down a mere fifteen years after the Fourteenth Amendment’s ratification reflected its original meaning. But Reconstruction is no ordinary period of constitutional innovation. Within a decade after the ratification of the Fourteenth Amendment came an intense public backlash against federal intervention in the South and the withdrawal of the last remaining troops from their posts in that region by President Rutherford B. Hayes in 1877.[27] That event, traditionally viewed as the end of Reconstruction, came six years before the Civil Rights Cases were decided.

Whether or not the Morrison Court, which struck down part of the Violence Against Women Act, reached the correct result under Section Five of the Fourteenth Amendment, it went astray in its embrace of the Civil Rights Cases. Failing to explore the years before 1883, the majority’s analysis in Morrison simply observed that every Justice on the Supreme Court “had been appointed by President Lincoln, Grant, Hayes, Garfield, or Arthur—and each of their judicial appointees obviously had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment.”[28] As a matter of originalist analysis, that observation was sloppy and ill-informed. While President Abraham Lincoln obviously did not live long enough to witness the relevant events, President Ulysses S. Grant signed the Civil Rights Act of 1875 into law, with future President James A. Garfield among the congressmen voting in favor of passage.[29] After the Court handed down its decision in the Civil Rights Cases striking down that law, former President Hayes wrote Justice John M. Harlan to praise his lone dissenting opinion in the case—as did retired Supreme Court Justices Noah H. Swayne (a Lincoln appointee) and William Strong (a Grant appointee).[30] Incumbent President Chester A. Arthur expressed his disapproval of the Court’s decision in his Third Annual Message.[31]

On top of that, the author of the Court’s decision, Justice Joseph P. Bradley, used to hold contrary views about the Fourteenth Amendment. In 1871, he wrote to William B. Woods, a circuit judge who sought advice in a case before him involving a challenge to the constitutionality of Section Six of the 1870 Enforcement Act, which criminalized private conspiracies that attack a citizen’s federally protected rights and privileges. Justice Bradley advised why he considered the law to be constitutional. He considered congressional legislation “which will operate directly on offenders and offenses” to be appropriate, and he explained that the Fourteenth Amendment

prohibits the states from denying to all persons within its jurisdiction the equal protection of the laws. Denying includes inaction as well as action. And denying the equal protection of the laws includes the omission to protect, as well as the omission to pass laws for protection.[32]

Judge Woods not only reached the same conclusion as Justice Bradley, but he quoted the above language nearly verbatim in his circuit court opinion.[33] Justice Bradley’s own notes in his papers accompanying his correspondence with Woods admit that his views expressed in 1871 “were much modified by subsequent reflection.”[34] He was not alone in changing his mind by the time he wrote for the Court in the Civil Rights Cases. Judge Woods, who was elevated to the Supreme Court in 1881, made a similar about-face and joined Bradley’s opinion.

Like the Fourteenth Amendment itself, the Civil Rights Act of 1875 was passed by Congress with only Republicans voting in favor of passage. While there were Republican defectors who joined Democrats in voting no,[35] 27 out of 28 votes cast by those who had voted for the Fourteenth Amendment in 1866 (combining totals in the House and Senate) were in favor of passage.[36] Even the exception who voted no, Senator William Sprague, cannot be said to have had a track record in favor of the Court’s state action doctrine, having voted in 1870 for the first Enforcement Act, which exceeded what the Court’s 1883 standard would permit Congress to pass.[37] The same is true of another senator, Lot Morrill, who voted for the Fourteenth Amendment but was absent for the 1875 vote. Additionally, James G. Blaine, who had voted for the Fourteenth Amendment in 1866, did not cast a vote in 1875 as a matter of custom because he was then speaker of the house, but he facilitated the measure’s passage,[38] and two Republican House members recorded as not voting in 1866 voted for the 1875 bill.[39]

Viewed as an originalist exercise, the 1883 Court was effectively telling the framers of the Fourteenth Amendment that they did not understand their own amendment. But the Court’s opinion in the Civil Rights Cases taken on its own terms gave no indication that it was attempting to discern original meaning. How could it when its author was departing from his own original understanding? It was Justice Harlan, the dissenter, who articulated his “earnest conviction that the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted.”[40] The New York Times editorialized at the time, “The tendency during the war period was toward the construction which” Harlan “favors. Since then, a reaction has set in, which, so far, is beneficent.” The Court’s opinion thus “has satisfied public judgment, and Justice Harlan’s will hardly unsettle it.”[41]

Living constitutionalists, take note: as time moves forward, changing attitudes do not necessarily improve. The retreat from Reconstruction demonstrates this. If original meaning should be discarded to suit the times, the Court during this period was simply proceeding as it naturally should. And in this case, the regression that enabled the Civil Rights Cases intensified in future years. During the years after the Court handed down its “state action” doctrine, States would in fact act to compel racial segregation in public accommodations and conveyances, and the Court would take a further step away from the Fourteenth Amendment’s egalitarian meaning by validating the notion of “separate but equal” in Plessy v. Ferguson.[42] There again, Justice Harlan was the lone dissenter, and his opinion, which among other things invoked the “intent of the legislature,”[43] would be repeatedly vindicated between Brown v. Board of Education[44] and the recent affirmative action decision.

What are we to make of the modern Supreme Court’s largely unchanged jurisprudence on congressional power under the Fourteenth Amendment? When the Court decided Boerne and Morrison, there was so little awareness of the relevant history that even the dissenters made no historical argument to challenge the Civil Rights Cases. The three dissenters in Boerne, a decision that invalidated the Religious Freedom Restoration Act’s application to the States, focused on the right to free exercise and other arguments.[45] The four Morrison dissenters were content to rest their argument on the ahistorical expansion of the Commerce Clause.[46] (Justice Stephen Breyer, joined by one other dissenting Justice, briefly touched on the Fourteenth Amendment in Morrison but confined himself to what the majority had said in 1883.[47])

Although Justice Thomas joined the Court’s opinions in Boerne and Morrison, it is he who, over the course of his concurring and dissenting opinions, ended up leading the way in recent years to arguing for the correction of lingering distortions of the Fourteenth Amendment’s original meaning. He has criticized the Court’s decision in the Slaughter-House Cases[48] for eviscerating the amendment’s Privileges or Immunities Clause.[49] He identified that provision as the true means by which rights mentioned in the Bill of Rights were incorporated and applied to the States.[50] In Students for Fair Admissions, he recognized it as a source of the Fourteenth Amendment’s prohibition against racial discrimination along with the Equal Protection Clause while the Court has largely confined itself to the latter clause for the nondiscrimination principle.[51]

Justice Thomas has already rejected a major premise of Boerne—the cramped conception of free exercise that the Court handed down in Employment Division v. Smith,[52] the overruling of which he advocated in Fulton v. City of Philadelphia in 2021.[53] In another case two years ago, Biden v. Knight First Amendment Institute,[54] Justice Thomas wrote a concurrence in the dismissal of the case as moot in support of his suggestion that a digital platform like Twitter might be subject to the government’s power to limit the right of a private company to exclude. Such power, he explained, derives from the longstanding regulation of common carriers as well as the related ability to “limit[] a company’s right to exclude when that company is a public accommodation,” i.e., “companies that hold themselves out to the public but do not ‘carry’ freight, passengers, or communications.”[55] For that proposition, Justice Thomas cited Justice Harlan’s dissent in the Civil Rights Cases, which tracked the same rationale advanced by proponents of the Civil Rights Act as it was being debated during the 1870s.[56]

Concurring in United States v. Vaello Madero[57] last year, Justice Thomas also favorably cited Justice Harlan’s dissent along with the great Justice’s other judicial opinions articulating a right to equal treatment inherent in citizenship under the Fourteenth Amendment.[58] So his citation of the 1875 Civil Rights Act in Students for Fair Admissions as authorized by that amendment should have come as no surprise. It does deserve attention, because Justice Thomas’ opinions suggest an originalist case for reconceptualizing the Fourteenth Amendment as the constitutional basis for federal civil rights laws. Also noteworthy is that the newest member of the Court, Justice Ketanji Brown Jackson, sided with Justice Harlan’s Civil Rights Cases dissent in her dissenting opinion in the Students for Fair Admissions companion case involving the University of North Carolina.[59]

The Reconstruction historian Eric Foner asserted, “The elevation of the Commerce Clause into a ‘charter of human rights,’ a way of compensating for the Supreme Court’s cramped view of the Reconstruction amendments, has made the judiciary look ridiculous.”[60] Foner is not an attorney, but he is correct on that point. The long, dark chapter in American history that came with the retreat from Reconstruction should teach a lesson to judges who would change the Constitution’s original meaning to conform to the times: conditions can regress over time, and constitutional rights must not be diminished when the times deem it acceptable to disregard them.

In an appropriate future case, the Court should overturn the blight on Fourteenth Amendment jurisprudence that is the Civil Rights Cases. And the senior associate Justice appears to have the vote of the junior associate Justice for doing so. Who else among the Justices may join them?

 

* Frank J. Scaturro is Vice-President and Senior Counsel of JCN and author of The Supreme Court’s Retreat from Reconstruction.

[1] 143 S. Ct. 2141 (2023).

[2] 18 Stat. 335.

[3] Id.

[4] 143 S. Ct. at 2184 (Thomas, J., concurring).

[5] Id. at 2190–91 (Thomas, J., concurring).

[6] 109 U.S. 3 (1883).

[7] Id. at 14–20, 23.

[8] See James v. Bowman, 190 U.S. 127, 136–38 (1903); Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction 103, 161–70, 186–90, 206 (2011).

[9] See Frank J. Scaturro, The Supreme Court’s Retreat from Reconstruction: A Distortion of Constitutional Jurisprudence 79–93 (2000).

[10] See id. at 132; Horace Edgar Flack, The Adoption of the Fourteenth Amendment 138–39 (1908).

[11] 17 Stat. 13.

[12] Cong. Globe, 42d Cong., 1st Sess. app. 85 (1871).

[13] Eugene Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich. L. Rev. 1323, 1329–30 (1952); Laurent B. Frantz, Congressional Power to Enforce the Fourteenth Amendment Against Private Acts, 73 Yale L.J. 1353, 1354–55 (1964).

[14] 110 U.S. 651 (1884).

[15] 190 U.S. 127 (1903).

[16] 16 Stat. 140.

[17] 78 Stat. 241.

[18] See Scaturro, supra note 9, at 193–98.

[19] 379 U.S. 241 (1964).

[20] 395 U.S. 298 (1969).

[21] Id. at 315 (Black, J., dissenting).

[22] 383 U.S. 745 (1966).

[23] See id. at 761–62 (Clark, J., concurring); id. at 781–84 (Brennan, J., concurring in part and dissenting in part).

[24] 521 U.S. 507 (1997).

[25] 529 U.S. 598 (2000).

[26] Id. at 624.

[27] See Scaturro, supra note 9, at 7–18.

[28] 529 U.S. at 622.

[29] 3 Cong. Rec. 1011 (1875) (House vote).

[30] Alan F. Westin, John Marshall Harlan and the Constitutional Rights of Negroes: The Transformation of a Southerner, 66 Yale L.J. 637, 681–82 (1957).

[31] See 8 A Compilation of the Messages and Papers of the Presidents, 1789–1897, at 188 (James D. Richardson ed., 1900).

[32] Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit at xv (2021).

[33] United States v. Hall, 26 F. Cas. 79, 81 (C.C.S.D. Ala. 1871).

[34] Charles Fairman, 7 History of the Supreme Court of the United States: Reconstruction and Reunion, 1864–88, pt. 2, at 192 (1987).

[35] Pamela Brandwein maintains that Republicans were “not a unit” when it came to “the principles, political wisdom, or constitutionality of this bill.” Brandwein, supra note 8, at 68. But she does not differentiate between the voting record of more recent arrivals in Congress during this era of backlash against Reconstruction and that of those who had previously served in 1866.

[36] See Cong. Globe, 39th Cong., 1st Sess. 3042 (1866) (Senate vote); id. at 3149 (House vote)­; 3 Cong. Rec. 1011 (1875) (House vote); id. at 1870 (Senate vote).

[37] Cong. Globe, 41st Cong., 2d Sess. 3809 (1870) (Senate vote).

[38] Alan Friedlander & Richard Allan Gerber, Welcoming Ruin: The Civil Rights Act of 1875, at 525–28 (2019).

[39] The two members were Representative John A. Kasson of Iowa and Representative William Lawrence of Ohio. See Cong. Globe, 39th Cong., 1st Sess. 3149 (1866) (House vote); 3 Cong. Rec. 1011 (1875) (House vote).

[40] The Civil Rights Cases, 109 U.S. 3, 26 (1883) (Harlan, J., dissenting).

[41] N.Y. Times, Nov. 19, 1883, at 4 (typeface in original).

[42] 163 U.S. 537 (1896).

[43] Id. at 558–59 (Harlan, J., dissenting).

[44] 347 U.S. 483 (1954).

[45] See 521 U.S. at 544–65 (O’Connor, J., dissenting); id. at 565–66 (Souter, J., dissenting); id. at 566 (Breyer, J., dissenting).

[46] See 529 U.S. at 628–55 (Souter, J. dissenting); id. at 655–66 (Breyer, J., dissenting).

[47] Id. at 664–66 (Breyer, J., dissenting).

[48] 83 U.S. (16 Wall.) 36 (1873).

[49] See Saenz v. Roe, 526 U.S. 489, 521–28 (1999) (Thomas, J., dissenting).

[50] See McDonald v. City of Chicago, 561 U.S. 742, 805–51 (2010) (Thomas, J., concurring in part and concurring in the judgment).

[51] 143 S. Ct. 2141, at 2182–83, 2203 (2023) (Thomas, J., concurring).

[52] 494 U.S. 872 (1990).

[53] 141 S. Ct. 1868, 1883–1926 (2021) (Alito, J., concurring in the judgment); id. at 1926–31 (Gorsuch, J., concurring in the judgment).

[54] 141 S. Ct. 1220 (2021).

[55] Id. at 1222–23 (Thomas, J., concurring).

[56] Id. at 1223 (Thomas, J., concurring); see, e.g., Cong. Globe, 42d Cong., 2d Sess. 382–85 (1872) (statement of Sen. Sumner).

[57] 142 S. Ct. 1539 (2022).

[58] See id. at 1550–51 (Thomas, J., concurring).

[59] 143 S. Ct. at 2265, 2268 (2023) (Jackson, J., dissenting).

[60] Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution 172 (2019).

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John Bates, Johns Manville, The Boyscouts of America, and Johnson & Johnson – Lawrence A. Friedman

Posted by on Oct 16, 2023 in Per Curiam

John Bates, Johns Manville, The Boyscouts of America, and Johnson & Johnson – Lawrence A. Friedman
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JOHN BATES, JOHNS MANVILLE, THE BOYSCOUTS OF AMERICA, AND JOHNSON & JOHNSON

Lawrence A. Friedman*

The convergence of two cases from half a century ago is allowing trial lawyer vultures to destroy our bankruptcy system in cases involving some of the most storied names in America.

The bankruptcy system feels like it is coming apart at the seams.  There have been a litany of stories in recent years demonstrating how trial lawyers have turned the bankruptcy process upside down.[1]  And I have written before in these pages about how mass tort trial lawyers were running a shake down inside the bankruptcy system, capturing leverage once companies enter bankruptcy.[2]  But the recent events surrounding Johnson & Johnson’s second failed attempt at putting its LTL subsidiary into bankruptcy in response to a wave of a tort claims over talc products is showing that mass-tort trial lawyers have also figured out how to capitalize on the bankruptcy rules and statutes to convince courts to keep companies out of bankruptcy and keep the mass-tort gravy train running when the trial lawyers deem it more to their liking.

The ability of personal-injury trial lawyers to game the system coming and going—feasting on cases in bankruptcy while blocking cases like Johnson & Johnson/LTL from bankruptcy—is an existential problem for the system.  Yet there is little evidence that bankruptcy judges, practitioners, or even most companies are taking the threat seriously enough.  That needs to change, especially if we are going to allow bankruptcy courts to be used to solve societal issues.  We can make the bankruptcy system more resilient to this threat, giving it a chance of serving its important role and not just being a captured province of the mass-tort empire.  But it is time to wake up and get moving before trial lawyers entrench themselves and gain effective control over more billion-dollar gold mines.

I.               Johnson & Johnson & LTL

Johnson & Johnson has been beset by a wave of lawsuits over talc products, with the drama featuring all the trappings one would expect of the most savage and high-stakes game of mass-tort litigation: trial lawyers piling lawsuits on top of lawsuits, the removal of talc products from the United States and global markets, a Johnson & Johnson lawsuit against doctors over studies that linked talc-based products to cancer, and nonstop media attention.[3]

Johnson & Johnson has been attempting to conclusively resolve these tort claims by spinning off their tort liabilities to a subsidiary (LTL), with the intent of putting it into bankruptcy.[4]  The theory, known as the Texas two-step, involves creating a subsidiary, transferring the tort liabilities to that subsidiary, and then agreeing to fund the subsidiary with insurance proceeds and/or assets sufficient to pay tort claimants.[5]  The goal, from Johnson & Johnson’s perspective, has been to try and reach an end to the talc war with the mass-tort trial lawyers and to do so with less money on the table than the mass-tort lawyers might otherwise necessitate with their fully operational shake and bake machinery.

The trial lawyers weren’t so pleased.  But they also sensed an opportunity.  If they could force dismissal of the LTL bankruptcy case, and bar the door to bankruptcy court at least for the time being, they could force Johnson & Johnson to a negotiating table on weaker terms.

And sure enough, mere hours after the United States Court of Appeals for the Third Circuit reversed the initial bankruptcy court ruling and dismissed LTL’s first bankruptcy as a bad faith filing, LTL renegotiated with the various groups of trial lawyers and filed a second bankruptcy case, in which Johnson & Johnson promised to pay some $9 billion, nearly 4 times what they offered in the first case.[6]  Just like the mass tort-trial lawyers effectively gamed the system in the Boy Scouts of America bankruptcy to the tune of multiple billions in their favor—something that very well could be in the cards for the LTL case if it is allowed to proceed—we now see that the LTL bankruptcy has turned into a trial lawyer plaything, with the trial lawyers driving the ship and singing the tune at key procedural turns, all while their ledgers swell and almost every other player in the drama suffers.

In short, Johnson & Johnson/LTL, coming so soon after the Boy Scouts of America debacle, lays out in full display how trial lawyers have managed to exert influence over the bankruptcy process on the front end and the back end, ensuring that mass-tort bankruptcies are starting to look like trial lawyer playthings rather than a well-functioning part of our legal system.

II.             The Road Here: Manville and Bates

It seems fair to ask how we got here in the first place, and why bankruptcy judges buy into any of this chicanery.  And the answers lie in part in two cases from half a century ago.

The year was 1977.  A young lawyer named John Bates sought to build a practice offering low-cost services to middle America.  And he set about to do so by advertising various legal offerings, such as uncontested divorces, wills, and other (primarily process-based) mass-market consumer offerings.[7]

The State Bar of Arizona objected to this and sought to discipline young Mr. Bates for violating ethics rules that prohibited lawyers from advertising.  Mr. Bates argued that the ban on attorney advertising violated his first amendment rights.  The Bar argued that allowing attorney advertising would be “inherently misleading,” negatively affect the “administration of justice,” have “undesirable economic effects,” harm the quality of legal services, and be difficult to police.[8]

The State Bar of Arizona lost.  The Supreme Court of the United States held that attorney speech was commercial speech protected under the first amendment. Further, the restriction on any attorney advertising had “served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable.”[9]

Enter Johns Manville, a maker of construction materials that contained asbestos, subjecting them to some 16,000 lawsuits.  In 1982, facing a wave of lawsuits, Johns Manville filed bankruptcy.  While Johns Manville’s operation was not per se insolvent, the company had a major problem: insurers had been denying coverage even as the company faced the current wave of lawsuits and those to be expected from future plaintiffs whose claims might ripen in the coming years.  By filing bankruptcy, Johns Manville was able to draw those insurance policies into the bankruptcy estate and use them to help fund trusts to which future claimants would look for compensation, essentially forcing value from the insurance contracts and dealing with the problem of future claimants, thereby making confirmation of a final bankruptcy plan possible and allowing the company to move its operations past the wave of lawsuits it was facing.[10]  Problem solved from Manville’s perspective.

Following in the footsteps of Johns Manville, corporations now use bankruptcy to tap insurance policies to fund trusts that serve as the source of payment for current and future tort victims.  But the rules of bankruptcy were not designed to address mass torts.  And if you add in a healthy dose of attorney advertising you reach the point where Manville and Bates collide.

Yet this straightforward collision of Bates and Manville on its own could not cause the chaos we are seeing in the current mass-tort cases.  After all, for nearly 50 years we didn’t see the kinds of problems that exist today.  Agent Orange litigation was in the 1970s.  Asbestos was in the 1980’s.  And these helped generate the silicone breast implant and tobacco cases in the 1990s without generating the kind of situation we see now.

III.           The Quaintness of Mr. Bates: Mass Tort in The Digital Age

Fuel was needed to cause the explosion in claims which are now threatening our bankruptcy system. That fuel was technology.

Today we live in the digital age, and we’re headed quickly into the virtual world of artificial intelligence.  And mass-tort lawyers are wasting no time in enlisting the most modern methods for generating claims and pushing the envelope on attorney advertising.

The attorney advertising of the Bates era seems so quaint in retrospect.  I grew up in the 1970s.  Seat belts were only recently required (1966).  Headlight dimmer switches were found on the floorboard of cars.  Only 50% of radio listeners tuned into FM stations, and touch-tone phones were just showing up in homes.  Key punch machines were the backbone of billing systems and personal computers were still a decade away.  Attorney advertising was seen only in the classified section of your local newspaper or by those who stayed up to watch the late show after Johnny Carson, and by 2 am every TV station had signed off until morning.

Mass-tort lawyers have moved far beyond this quaint world.  They use lead-generation software that integrates consumers’ own information with public information to target consumers (search for anything relating to a mass tort case or topic and watch over the next few days how every search you perform, every Facebook thread you peruse, every article you look at, and every streaming service you listen to, is suddenly filled with targeted trial lawyer advertising directed specifically at you).  And that is only the beginning.  Once they trigger a click with one of these advertisements – you clicked because you were casually interested, perhaps – you then get the full onslaught of the seal-the-deal machinery.  And if you enter the sign-up rabbit hole but then decide to head for the exit?  Well, that is when the wave of “save the sale” software maneuvers come out—the same algorithms that kick in on consumer websites when you move away from a potential purchase now kick into gear to lock you in as a law firm’s client, signing over a massive portion of a potential legal claim as if it were  equivalent to picking out a new set of jeans.[11]

IV.           Corporate Bankruptcy’s Special Rules Make for Unique Mass-Tort Susceptibility

The success of the corporate bankruptcy process is driven in part by rules that were designed to make the reorganization process efficient.  At its core the corporate reorganization process is all about restructuring the company in a manner that maximizes its value and then redistributes that value efficiently to creditors (employees, bondholders, and so on), thus staving off liquidation; the goal is a confirmed plan, with other considerations taking a backseat.  To that end, bankruptcy courts rely on a concept that claims filed in a case are deemed allowed – subject to review later – and thus are eligible to vote for or against confirmation of a plan of reorganization.  Typically, these claimants are unsecured creditors who have provided goods or services to the company but have not been paid.  In larger cases an unsecured creditors committee is appointed to act as a voice for all unsecured creditors.  These committees investigate the financial affairs of the debtor, pursue certain actions within the case, and play an important role in the reorganization of the debtor.

In the mass-tort cases, damages incurred by victims are the vast majority of unsecured claims.  These unsecured claims become a numbers game.  Unlike the typical corporate case where unsecured creditors are generally known and listed in the company’s books, in the mass-tort case they are usually unknown at the outset of the bankruptcy proceedings.  The more of these claims a party controls, the more that party can influence the direction and outcome of the case.  You don’t need a law degree to understand the free-for-all this creates.  Control enough claims, control the case.  And with no guard rails in place to determine the validity and amount of these claims, the process is especially ripe for gaming by the same people who have perfected digital claim generation and client sign-up tools for their other purposes.

The tactics the personal injury lawyers use to manipulate the bankruptcy process include sophisticated lead-generation algorithms that promise lottery-ticket sized payouts and then ensure that potential claimants stay locked into the process for as long as necessary.  I reviewed a sampling of solicitations on the web for those wondering if they may have a claim against Johnson & Johnson for talc-related issues.  Preliminary questions suggest that if you or a family member has been diagnosed with cancer you may have a claim.[12]

The strongest recent example of this operation in action inside a bankruptcy case is the Boy Scouts of America Bankruptcy, where mass-tort trial lawyers swamped the case and took control of much of the plan negotiation, to the benefit of themselves and to the detriment of the initial set of seemingly deserving victims.[13]  When the Boy Scouts of America bankruptcy case was first filed, there were a few hundred tort cases pending.  Boy Scouts of America estimated that there may be a total of some 2,000 claims which would be filed in the case.  After ramping up their claims-generating machine, the mass-tort lawyers eventually filed some 80,000 claims in the bankruptcy.  That ended up increasing the size of the overall pot for these lawyers to $2.4 Billion.

And the same maneuvers are rearing their heads in the Johnson & Johnson/LTL cases, with groups of lawyers teaming up with doctors to link various cancers to the use of talc, foment a swarm of cases in private litigation, and separately gin up a pool of some 16,000 claims in order to object to the bankruptcy petition.[14]

V.             The Road Ahead: Stopping the Abuses and Helping Victims

Make no mistake, there is a real problem here.  Corporate bankruptcy reorganization is about dividing the limited assets of a distressed company.  It cannot be allowed to remain a trial lawyer toy.

One systematic way to respond to the problem here is legislation from Congress.  Congress could pass legislation to try and force disclosure of how claims are generated and otherwise more aggressively regulate the full-scale sales operations that the mass tort trial lawyers use to run their gambit in and around these bankruptcy cases.  But, as recent events in Congress have demonstrated, the path forward for any substantive, non-mandatory legislation, particularly judicial reform legislation, is questionable; passing the Bankruptcy Abuse Prevention and Consumer Protection Act in 2005 took nearly 10 years during a different time in terms of congressional cooperation and ability to forge bipartisan consensus around reforms to courts.

Another potential avenue for structural reform would be action through the Judicial Conference’s Committee on Rules of Practice and Procedure.  The rules could be changed to require more up-front disclosure and heightened certification requirements for the lawyers (and others, as the case may be) who help file claims in the bankruptcy process on behalf of tort claimants.  The Rules Enabling Act, 28 U.S.C. §§ 2071-2077, authorizes the Supreme Court of the United States to prescribe general rules of practice and procedure for the federal courts, including the bankruptcy courts.  Related to this authority is the power that Bankruptcy Rule 9009 gives to the Judicial Conference to prescribe the official forms that, pursuant to the Rule, shall be used in federal bankruptcy proceedings without alteration (except as otherwise provided in the bankruptcy rules, in a particular Official Form, or in the national instructions for a particular Official Form).[15]

Changing the pertinent Bankruptcy Rules themselves to heighten oversight of the claim-generation process—for example, by requiring that third-party providers employed by mass-tort trial lawyers be retained subject to an order of the bankruptcy court (like any other professional employed in furtherance of the bankruptcy), with the estate as the locus for payment and therefore greater transparency—would be a two- to three-year process (likely as a complement to updates to the Official Forms, as discussed below).[16]  The Advisory Committee on Bankruptcy would evaluate the proposal in the first instance, seek permission from the full Judicial Conference’s Committee on Rules of Practice and Procedure, better known as the Federal Rules Committee, to publish a draft of any contemplated amendment that the Advisory Committee thought worth pursuing, and then choose ultimately to transmit the amendment as contemplated to the full Federal Rules Committee (or not) based on comments from the bench, bar, and general public.  The Federal Rules Committee would then independently review the findings of the Advisory Committee and, if satisfied, recommend changes to the Judicial Conference itself, which in turn would recommend the changes to the Supreme Court of the United States (or not), at which point the Supreme Court would consider the proposal and ultimately be the entity to promulgate any change to the pertinent rules.

There is also a complementary path that the Federal Rules Committee could follow while full-scale rule changes were in process: changing the Official Forms for the federal bankruptcy proceedings.  This is how the Federal Rules Committee tackled some meaningful reform efforts when I was an ex officio member during my tenure as Director of the Executive Office for United States Trustees.  In the aftermath of the high-profile National Mortgage Settlement, the Federal Rules Committee revamped the official proof-of-claim form for mortgage debts, changing how the official form addressed deficiencies and how claims that might change based on contractual language are treated in the filing process—for example, mortgage claim holders must now give notice in the bankruptcy case in advance of any change in the amount of the monthly claim amount.[17]  Similarly, after the Supreme Court held that the Fair Debt Collection Practices Act did not apply to the filing of a proof of claim form in bankruptcy in Midland Funding, LLC v. Johnson,[18] the Federal Rules Committee revamped the official proof-of-claim form to require a prominently placed clear statement disclosing that the debt may be subject to legal defenses.  In both these instances, the changes to the Official Forms added additional requirements, disclosures, and detail in the initial claim-filing process to serve an information-forcing function and add transparency and trust to the system where it might have been lacking before.  This same approach could be deployed in a matter of months in response to the current mass-tort problems, with real systematic benefits.

Yet another expedient and meaningful option for addressing the real concerns here would be for bankruptcy judges to increase transparency through proactive appointment of claims examiners.  Bankruptcy judges can do this right away.  They have the power to appoint claims examiners pursuant to 11 U.S.C. § 1104.  And this would not be a wholly novel approach.  The use of examiners has grown dramatically since the United States Trustee Program sought the use of them in Enron, WorldCom, and Adelphia, and the appointment of examiners for particular matters within an ongoing bankruptcy proceeding (such as examiners to shed light on fees sought by all professionals in a case) is not uncommon.  Examiners can serve many purposes, but the common theme is that they do not work to fully adjudicate questions in their topic area, but instead perform an investigative function and file detailed reports regarding the matters they were tasked with investigating.  These reports serve many beneficial purposes.  For example, they help consolidate key information, aiding with eventual discovery and other related reviews, including any involvement by other departments within agencies like the Department of Justice and the Securities and Exchange Commission.  And, perhaps most importantly, the examiner reports, which can often be multi-volume affairs, pull back the curtain to shine light on what is actually happening in the bankruptcy proceedings or what precipitated the debtor’s insolvency.

The appointment of claims examiners in cases where large numbers of tort claims are swirling around the initiation or conclusion of a bankruptcy proceedings would shed light on who is driving the bankruptcy and who should have a say in the resolution of the proceedings.  A claims examiner is the best way to sift through the mess that mass tort trial lawyers are making of cases in and around bankruptcy.  And it could be a powerful way to figure out if mass tort lawyers are running a gambit to a keep a company out of bankruptcy for their own benefit.  Put simply, the increased transparency that systematic use of claims examiners would drive is exactly what is needed to help tamp down and dissuade future abuses.

 

*                       *                       *

 

The problems creeping into corporate bankruptcy because of mass tort trial lawyers are serious.  The damage to victims and other creditors is real.  And it is crucial that the bankruptcy world respond in short order lest our beloved corner of the legal world succumb to the mass-tort trial lawyers and become a mere vassal state where the trial lawyers control things from start to finish and real victims get crushed in a mass-tort gold rush that imposes huge costs and takes massive value out of a system that is meant to divide the limited assets of a distressed company.

Courts, judges, and other public officials should act now to increase transparency, expose the forces behind the problems, and respond in an appropriate fashion. So far, as the Johnson & Johnson/LTL and Boy Scouts of America cases illustrate, there is little evidence that judges and practitioners are taking the threat seriously enough.  That needs to change, especially if we are going to allow our bankruptcy courts to be used to solve societal issues.  We can make the bankruptcy system more resilient to this threat, giving it a chance of serving its important role and not just being a captured province of the mass-tort empire.  But it is time to wake up and get moving.

* Lawrence A. Friedman is the Managing Member of Friedman Partners LLC. He was the Director of the Executive Office for U.S. Trustees from 2002-2005 and prior to that served as a Chapter 7 bankruptcy trustee administering more than 10,000 bankruptcy cases.

[1] See, e.g., Philip Goldberg, How Mass Tort Litigation Is Gaming the Judicial System, Bloomberg Law (March 2, 2023), https://news.bloomberglaw.com/us-law-week/how-mass-tort-litigation-is-gaming-the-judicial-system; Lawrence A. Friedman, Reforming Corporate Bankruptcies to Stop the Mass Tort Shakedown, Bloomberg Law (April 25, 2022), https://news.bloomberglaw.com/bankruptcy-law/reforming-corporate-bankruptcies-to-stop-the-mass-tort-shakedown-16; The Editorial Board, Looting the Boy Scouts, Wall St. J. (March 2, 2021), https://www.wsj.com/articles/looting-the-boy-scouts-11614728612.

[2] Lawrence A. Friedman, Corporate Bankruptcy Gets A Shakedown From Mass Tort Trial Lawyers, Harv. J.L. & Pub. Pol’y: Per Curiam (Spring 2022, No. 7), https://journals.law.harvard.edu/jlpp/corporate-bankruptcy-gets-a-shakedown-from-mass-tort-trial-lawyers-lawrence-a-friedman/.

[3] See, e.g., Suryatapa Bhattacharya, Johnson & Johnson Sues Doctors Over Studies Linking Talc-Based Products and Cancer, Wall St. J. (July 13, 2023), https://www.wsj.com/articles/johnson-johnson-sues-doctors-over-studies-linking-talc-based-products-and-cancer-78ffd2a7; The Editorial Board, Why Lawyers Love Jackpot Talc Litigation, Wall St. J. (September 25, 2022), https://www.wsj.com/articles/why-lawyers-love-jackpot-talc-litigation-johnson-and-johnson-talcum-powder-lawsuits-tort-lawyers-11663965125; Talal Ansari, J&J to Stop Selling Talc-Based Baby Powder Globally Next Year, Wall St. J. (August 11, 2022), https://www.wsj.com/articles/j-j-to-stop-selling-talc-based-baby-powder-globally-next-year-11660258047; James R. Copland, Johnson & Johnson Takes A Powder, Wall St. J. (May 22, 2020), https://www.wsj.com/articles/johnson-johnson-takes-a-powder-11590167907.

[4] See, e.g., David Goldman, Johnson & Johnson is again trying to use bankruptcy to settle talc cases for $8.9 billion, CNN (April 4, 2023), https://www.cnn.com/2023/04/04/investing/johnson-and-johnson-talc-bankruptcy/index.html.

[5] Charlie Hu, Court Rejects Johnson & Johnson’s Use of the “Texas Two-Step” to Tackle Baby Powder Liability, U. Chi. Bus. L. Rev. (Online Edition 2023), https://businesslawreview.uchicago.edu/online-archive/court-rejects-johnson-johnsons-use-texas-two-step-tackle-baby-powder-liability.

[6] See, e.g., David Goldman, Johnson & Johnson is again trying to use bankruptcy to settle talc cases for $8.9 billion, CNN (April 4, 2023), https://www.cnn.com/2023/04/04/investing/johnson-and-johnson-talc-bankruptcy/index.html.

[7] Bates v. State Bar of Arizona, 433 U.S. 350, 350 (1977).

[8] See, e.g., id. at 372.

[9] Bates, id. at 376.

[10] See, e.g., David Skeel, Purdue Pharma’s Bankruptcy Heads to the Supreme Court, Wall St. J. (August 27, 2023), https://www.wsj.com/articles/purdue-pharmas-bankruptcy-heads-to-the-supreme-court-asbestos-sackler-trust-90d810a4.

[11] Judge Land of the U.S. District Court for the Middle District of Georgia was the first high-profile jurist to prominently call out these dynamics.  In 2016, while administering an MDL over mesh medical devices, he found most claims stockpiled in his MDL “should never have been brought in the first place,” as they were “fueled” by television solicitations, filed “with so little pre-filing preparation,” and couldn’t “stand on their own merit.”  See Philip Goldberg, How Mass Tort Litigation Is Gaming the Judicial System, Bloomberg Law (March 2, 2023), https://news.bloomberglaw.com/us-law-week/how-mass-tort-litigation-is-gaming-the-judicial-system.

[12] Of particular note is the consent the consumer is required to sign agreeing to be contacted including by email, telephone (including phone calls, text messages, autodialed/auto-selected or pre-recorded calls.  See, e.g., Pintas & Mullins, P.R., Free ClaimReview, https://www.ovariansettlements.com/?utm_source=google&utm_medium=PPC&utm_campaign=14817830815&utm_content=SL2&PN=8007497444&gclid=CjwKCAjwrranBhAEEiwAzbhNtVXQW6F35El0btQUXbxrKncq1CeUJG-SNkcblX0gdn5ewHDb7jRZyxoCcAYQAvD_BwE.

[13] See, e.g., Lawrence A. Friedman, Reforming Corporate Bankruptcies to Stop the Mass Tort Shakedown, Bloomberg Law (April 25, 2022), https://news.bloomberglaw.com/bankruptcy-law/reforming-corporate-bankruptcies-to-stop-the-mass-tort-shakedown-16; The Editorial Board, Looting the Boy Scouts, Wall St. J. (March 2, 2021), https://www.wsj.com/articles/looting-the-boy-scouts-11614728612.

[14] See, e.g., Suryatapa Bhattacharya, Johnson & Johnson Sues Doctors Over Studies Linking Talc-Based Products and Cancer, Wall St. J. (July 13, 2023), https://www.wsj.com/articles/johnson-johnson-sues-doctors-over-studies-linking-talc-based-products-and-cancer-78ffd2a7; Evan Ochsner, J&J Uses Cajoling, $9 Billion Offer to Sell New Talc Bankruptcy, Bloomberg Law (April 27, 2023), https://news.bloomberglaw.com/bankruptcy-law/j-j-uses-attorney-cajoling-8-9b-to-sell-new-talc-bankruptcy (“J&J says the settlement now has the purported support of up to 80,000 claimants, including about 16,000 who are represented by a lawyer, Mikal Watts, whose role in the case grew in recent months.”).

[15] Permitted Changes to Official Bankruptcy Forms, United States Courts, https://www.uscourts.gov/rules-policies/about-rulemaking-process/permitted-changes-official-bankruptcy-forms [https://perma.cc/A5PS-UBUC].

[16] About the Rulemaking Process, United States Courts, https://www.uscourts.gov/rules-policies/about-rulemaking-process [https://perma.cc/N42G-94EJ].

[17] See, e.g., Bankruptcy Rule 3002.1, Notice Relating to Claims Secured by Security Interest in the Debtor’s Principal Residence, and 2011 Committee Notes on Rules.

[18] 137 S. Ct 1407 (2017).

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Interim Final Rules and the APA: Some Rule of Law Problems – Thomas E. Nielsen

Posted by on Oct 4, 2023 in Per Curiam

Interim Final Rules and the APA: Some Rule of Law Problems – Thomas E. Nielsen
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Interim Final Rules and the APA: Some Rule of Law Problems

Thomas E. Nielsen*

Introduction

Almost a century ago in Crowell v. Benson,[1] Chief Justice Charles Evans Hughes highlighted the benefits of delegating certain classes of issues to administrative agencies for “prompt, continuous, expert, and inexpensive” resolution,[2] but cautioned that unfettered agency discretion risked “establish[ing] a government of a bureaucratic character alien to our system.”[3]  When Congress enacted the Administrative Procedure Act[4] (APA) in 1946, it offered a broad framework to negotiate this tension – between administrative power and the rule of law[5] – by balancing “a range of variables, including stability, constraints on executive power, accountability, and the need for expedition and energy, for vigorous government.”[6]  In the following decades, as agencies and the lower courts gave content to the APA’s vague generalities, a hydraulic give-and-take emerged: agencies sought avenues for efficient, expertise-driven policymaking, and courts answered by erecting various limits on administrative power.[7]

One avenue of efficiency is the “interim final” rule (IFR).  Used with increasing frequency since the 1980s,[8] IFRs are promulgated without notice and comment using the APA’s “good cause” exception.[9]  Although the IFR is immediately binding,[10] the agency simultaneously invites public input on it.[11]  The agency then issues a “final final” rule (FFR) that – at least theoretically – is edited to respond to the comments received.[12]

IFRs have long threatened the rule-of-law values undergirding the informal rulemaking process, a threat since intensified by the Supreme Court’s 2020 decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania,[13] which appeared to “write [the APA’s informal rulemaking procedures] out of the statute entirely.”[14]  Little Sisters’ questionable reading of the APA, which made interim-final rulemaking markedly easier than it was before, nudges the administrative state towards the “government of a bureaucratic character” against which Chief Justice Hughes cautioned.[15]  But just as the hydraulics of our legal system have responded to bold assertions of administrative power in the past, so too can they respond to Little Sisters and cabin the use of IFRs: by way of arbitrary-and-capricious review, and (in certain cases), by limiting agencies’ invocations of the APA’s good cause exception.  Through these pathways, lower courts can rein in the unfettered administrative discretion Little Sisters appears to allow, restoring the APA’s balance between administrative power and the rule of law.

This Essay proceeds as follows.  Part I offers a brief history of the use and judicial review of IFRs.  Part II discusses the rule-of-law values undergirding various constraints on agency action, and argues that the IFR process represents a threat to these values – a threat the Court in Little Sisters disregarded.  Part III offers two devices lower courts can use to cabin the IFR process while remaining faithful to the APA’s text.

I.               A Brief History of IFRs

Since the 1980s, agencies have relied on the IFR process to promulgate a growing number of rules.  This Part describes the rise of IFRs, the various approaches the circuit courts took in evaluating their validity prior to 2020, and the effect of Little Sisters on these approaches.

A.    The Rise of IFRs

The familiar procedure of notice-and-comment rulemaking, set forth in § 553 of the APA, requires that agencies publish a general notice of a proposed rulemaking in the Federal Register, give “interested persons an opportunity to participate in the rule making” by submitting comments, and then, “[a]fter consideration of the relevant matter presented,” issue a final rule along with a “concise general statement of [its] basis and purpose.”[16]  In the wake of the wholesale shift from formal adjudication to informal rulemaking in the 1960s, however,[17] courts grafted various additional requirements onto this relatively sparse text.[18]  Such requirements, coupled with the development of so-called “hard look” review in the 1970s–80s,[19] transformed notice-and-comment rulemaking from a simple, streamlined procedure into a “cumbersome and costly” one.[20]

IFRs emerged as a way to circumvent this process while retaining some of its benefits.  The APA contains several exceptions, including a “good cause” exception that permits agencies to forego notice and comment if the procedure would be “impracticable, unnecessary, or contrary to the public interest.”[21]  By using this exception to promulgate a binding IFR, an agency is able to swiftly respond to a perceived problem or a statutory command to act, avoiding the burdens of adhering to § 553’s paper hearing requirements.[22]  And by soliciting postpromulgation comments after issuing an IFR (which is legally unnecessary if the good cause exception applies), the agency can reap some of the benefits of public participation in rulemaking, gaining “valuable information . . . at low cost.”[23]  As a result of such comments, the FFR is less likely to contain mistakes and may be better suited to “deal[ing] with unexpected and unique applications or exceptional situations” to which the comments adverted.[24]

In light of these advantages, agencies have embraced IFRs with increasing enthusiasm since the 1980s.  The trend is especially pronounced with respect to so-called “major” rules – those with an economic impact of $100 million or more.  In 2018, James Yates observed that agencies averaged seven major IFRs per year during President Clinton’s second term, which increased to eight during the George W. Bush Administration and ten during the Obama Administration.[25]  But even outside the context of major rules, agencies are using the IFR process more frequently than they once did, [26] suggesting a widespread belief within the administrative state that agencies can “get their rules implemented . . . quickly and economically by foregoing prepromulgation notice and comment.”[27]  Put simply, IFRs “have become part of the rulemaking routine.”[28]

B.     IFRs in the Circuit Courts

The rise of IFRs has put the judiciary “in an awkward position.”[29]  On one hand, the good cause exception is generally understood to be narrow, existing “principally to give agencies flexibility in dealing with emergencies and typographical errors, plus the occasional situation in which advance notice would be counterproductive.”[30]  On the other hand, once an agency has promulgated an IFR, invited postpromulgation comments, and issued an FFR after considering those comments, it has arguably adhered to the letter of the APA’s informal rulemaking provisions.[31]  Moreover, the APA’s judicial review provisions include a harmless error rule,[32] suggesting that categorically declaring all IFRs to be procedurally invalid without investigating the prejudice, if any, caused by the procedure would itself violate the APA.

As Professors Kristen E. Hickman and Mark Thomson explain, these competing considerations led the circuit courts to adopt an array of approaches to addressing the procedural validity of IFRs.[33]  Certain courts “declined to give any effect to postpromulgation notice and comment” on the grounds that upholding IFRs would “provide a powerful disincentive for agencies to comply with § 553’s prepromulgation notice-and-comment requirements.”[34]  Others “treated postpromulgation notice and comment as curing or mooting procedural defects” in all IFRs.[35]  Still other courts developed an intermediate approach called the “open mind” standard, upholding the procedural validity of rules “subjected to postpromulgation notice and comment if, during the postpromulgation notice-and-comment period, the agency kept an ‘open mind’ with respect to the comments it received” as reflected in the FFR.[36]  Finally, in a handful of cases involving the EPA, courts invalidated an IFR for being procedurally defective but remanded to the agency without vacatur, which in turn “effectively require[d] a second round of postpromulgation comment” limited to “those parties that petitioned the court for relief.”[37]  This diverse collection of views led Hickman and Thomson to conclude, in 2016, that “courts have struggled to resolve” the issue of how to consistently evaluate IFRs under the APA framework.[38]

C.    IFRs After Little Sisters

In Little Sisters, the Supreme Court finally brought some clarity to the IFR issue, rejecting the “open mind” standard and strongly implying that IFRs are always valid so long as the agency invites postpromulgation comments and issues an FFR, even if the agency lacks good cause to issue the IFR in the first place. Little Sisters arose from two IFRs promulgated pursuant to the Affordable Care Act (ACA).[39] The ACA requires that employers offer insurance that includes “preventative care and screenings,” but delegates authority to define this term to the Health Resources and Services Administration (HRSA), a subsidiary of the Department of Health and Human Services (HHS).[40]  Soon after Congress enacted the ACA, HRSA determined that the preventative care plans had to include contraceptive coverage, but exempted “certain religious nonprofits” from the requirement.[41]  Such nonprofits could “self-certify” their religious objections to the insurance provider, who would in turn “direct the insurer to exclude contraceptive coverage from the organization’s plan.”[42]  But in 2017, the Trump Administration issued two IFRs – invoking the good cause exception – that did away with the self-certification process and simply allowed any employer with a religious or moral objection to decline to offer contraceptive coverage to its employees.[43]  Simultaneously, HRSA invited public comments on the IFRs.[44]

Pennsylvania challenged the IFRs in the U.S. District Court for the Eastern District of Pennsylvania, which issued a nationwide preliminary injunction.[45]  Among other concerns, the district court expressed serious doubt that HRSA had good cause to dispense with notice and comment.[46]  The district court also rejected the idea that inviting postpromulgation comments itself cured the procedural defects in the IFRs, since “an agency may seek post-issuance commentary only if and only after having shown that it had good cause to avoid notice-and-comment rulemaking.”[47]  The Trump Administration appealed, and while the appeal was pending before the Third Circuit, HRSA issued FFRs “virtually identical” to the IFRs.[48]  The Third Circuit subsequently affirmed the District Court, applying the “open mind” standard to conclude that “[t]he notice and comment exercise surrounding the Final Rules does not reflect any real open-mindedness toward the position set forth in the IFRs.”[49]

The Supreme Court reversed, concluding that because HRSA had promulgated FFRs after providing notice and an opportunity for comment, there was no procedural error.[50]  Writing for a majority of five, Justice Thomas “decline[d] to evaluate the final rules under the open-mindedness test,” which violated the “general proposition,” first set forth in Vermont Yankee Nuclear Power Corp. v. NRDC,[51] that “courts are not free to impose upon agencies specific procedural requirements that have no basis in the APA.”[52]  Concluding that § 553 only requires “adequate notice” and “an opportunity to participate in the rule making” through comments, the Court explained that HRSA “complied with each of these statutory procedures”[53]: the IFRs themselves constituted notice, and were issued concurrently with an invitation to “interested parties . . . to submit comments.”[54]  In a footnote, the Court further noted that “[b]ecause . . . the IFRs’ request for comment satisfies the APA’s rulemaking requirements,” there was no need to reach the argument that “the Departments lacked good cause to promulgate the . . . IFRs” in the first place.[55]

As several commentators noted, Little Sisters seemed to not only endorse the IFR process,[56]  but also contemplate that agencies could issue IFRs irrespective of good cause, potentially gutting § 553’s requirements for the mine-run of substantive rules.[57]  The Court thus followed the handful of circuit courts that had taken the most permissive view towards IFRs,[58] embracing the idea that postpromulgation opportunity for comment, coupled with an FFR, cures any procedural defects present in an IFR.

II.             IFRs and the Rule of Law

The APA’s notice-and-comment process strikes a balance between administrative power, with all its advantages of flexibility and expertise, and rule-of-law values.  This Part describes those values and the manner in which the APA’s notice-and-comment process embodies them.  It then offers an account of how IFRs aggrandize agency discretion at the expense of the rule of law, disrupting the APA’s “compromise[]” between these “opposing . . . forces.”[59]  Finally, this Part explains how Little Sisters, through an overly literalistic and non-contextual interpretation of the APA’s text, ignored the threat.

A.    Rule-of-Law Values in the Administrative State

In the mid-twentieth century, legal philosopher Lon Fuller posited that law could not exist without a “fundamental framework within which the making of law takes place,” a framework understood and accepted by both the sovereign and the public.[60]  Central to this jurisprudential theory was what Fuller termed the “internal morality of law itself,” the notion that “the authority to make law must be supported by moral attitudes that accord to it the competency it claims.”[61]  In The Morality of Law, Fuller set forth eight principles that he argued infused a legal system with the requisite sense of morality: laws must be (1) generally applicable, (2) sufficiently publicized; (3) prospective in effect; (4) clearly understandable; (5) consistent with each other; (6) reasonable in what they ask of the populace; (7) relatively stable and unchanging; and (8) congruent, by their terms, with how they are enforced in practice.[62]  To Fuller, a system that failed to adhere to some or all of these rules was incapable of “creat[ing] anything that can be called law, even bad law,” since “[l]aw by itself is powerless to bring . . .  morality into existence.”[63]

As Professors Cass Sunstein and Adrian Vermeule have explained at length, the APA offers adaptable, expert-driven modes of policymaking that are nonetheless limited by Fullerian values.[64]  This balance is especially visible in the APA’s “most significant” innovation[65]:  notice-and-comment rulemaking.  Section 553 of the APA and the judicial opinions explicating it set forth two basic requirements.  First, the agency must provide the public with notice of a proposed rulemaking and an opportunity for comment.[66]  Second, the agency must offer a reasoned justification for its final rule after “consider[ing]” the comments received,[67] or, in the alternative, explain why there is good cause to depart from § 553’s normal procedures.[68]  The notice requirement embodies a “cluster” of Fullerian principles.[69]  It provides that proposed rules are adequately publicized, such that “they may be subject to public criticism.”[70]  It guards against retroactivity.[71]  And it ensures, by inviting feedback from interested parties, that the proposed rule does not “command[] the impossible” and can be adequately followed, giving it the practical force of law.[72]  Similarly, the reasoned explanation requirement promotes clarity, forcing agencies to square their ultimate choice with the evidence before them, as well as existing law.[73]  Finally,   § 553’s structure – of a standard procedure followed by limited, enumerated exceptions – itself establishes the general rule that agencies cannot dispense with notice-and-comment on an ad hoc basis, abiding Fuller’s concern that if the lawmaker “habitually disregards his own rules, he may find his system of law disintegrating.”[74]

B.     Rule-of-Law Problems Posed by IFRs

1.     Fullerian Failures of Clarity, Generality, and Publicity

The IFR process represents a risk to a panoply of rule-of-law values embedded in the notice-and-comment process. Most obviously, the process frustrates the values of clarity and generality.  After Little Sisters, it also frustrates the value of publicity.

Start with clarity and generality.  Even before the Court decided Little Sisters, agencies routinely justified IFRs through questionable invocations of the good cause exception: given the high costs of the notice-and-comment process and the fact that the good cause exception is enforced inconsistently[75] (and evaluated under varying standards of judicial review),[76] agencies have a strong incentive to invoke the exception to promulgate IFRs, notwithstanding the risk that a court might invalidate them later.[77]  Citing this incentive, Hickman and Thomson conclude that “at least a significant percentage of agency regulations lacking prepromulgation notice and comment are not, in fact, exempt from those procedures under the APA.”[78]

IFRs promulgated pursuant to the good cause exception, then, have clarity and generality problems due to their impermissibly ad hoc character: because a reasoned justification is not possible, the agency is left to make an essentially arbitrary decision to depart from § 553’s typical procedures, which in turn is evaluated on an arbitrary basis by the courts.  A pair of cases arising out of one of the Biden Administration’s COVID-19 vaccine rules illustrates these failures in practice.  In September 2021, HHS announced that the conditions of participation in the federal Head Start Program would be amended to include a COVID-19 vaccination requirement.[79]  At the end of November, HHS promulgated an IFR to this effect, invoking the “impracticable” and “public interest” prongs of the good cause exception.[80]  The IFR was promptly challenged in multiple lawsuits.  On January 1, 2022, the U.S. District Court for the Western District of Louisiana held that the IFR was procedurally invalid because HHS lacked good cause, observing that “[i]t took [HHS] almost three months . . . to prepare the [IFR],” and concluding that “the situation was not so urgent that notice and comment was not required.”[81]  Evaluating the same fact pattern, the U.S. District Court for the Eastern District of Michigan reached the opposite result two months later, holding that the “82 days that it took to publish the IFR after it was first announced did not ‘constitute[] “delay” inconsistent with the Secretary’s finding of good cause.’” [82]

These courts’ division on the good cause issue reveals the clarity and generality issues inherent in the IFR process.  As to clarity, HHS offered a host of factual reasons why good cause applied,[83] but did not attempt to connect them to the prongs of the exception (“impracticable” and “public interest”) it invoked.[84]  As to generality, HHS’s inability to provide a reasoned explanation grounded in the APA contributed to the appearance that HHS had arbitrarily selected the IFR process over standard rulemaking – especially in light of HHS’s delay between announcing the IFR and promulgating it.  And when the question reached the courts, they split without providing guidance beyond the fact-bound ruling that the eighty-two-day wait was (or was not) too long, perpetuating the cycle of incoherence and arbitrary decisionmaking, or what Fuller called a “fail[ure] to develop any significant rules at all.”[85]

The rule-of-law problems that arise when agencies opportunistically invoke the good cause exception to promulgate IFRs are intensified by Little Sisters.  If, as Little Sisters suggested, notice and comment before the issuance of a binding pronouncement is optional, agencies can ignore the procedure at will, issuing IFRs that double as notice while inviting postpromulgation comments, and then issuing FFRs if the IFRs are challenged.[86]  In this universe, agencies do not need to even attempt to show good cause to avoid notice and comment and can instead disregard § 553’s general order of operations whenever they want, rendering it a nullity.[87]  Such disregard pushes the IFR process closer to a purely ad hoc mode of decisionmaking with no discernible standards than it was before Little Sisters, when agencies had an obligation to at least try and link an IFR to one of the APA’s “good cause” prongs.

Little Sisters brings with it a third Fullerian failure, too, threatening the publicity safeguarded by the notice-and-comment process. IFRs, like all substantive rules, are subject to the APA’s requirement of publication in the Federal Register thirty days before going into effect, which provides a modicum of notice to the public.[88]  But prepromulgation comments foster additional dimensions of publicity, opening up the “internal procedures of deliberation and consultations” by which a binding rule is made and exposing the rule to scrutiny before it acts on the public.[89]  In this way, post- and prepromulgation comments are not the same: once an agency has published a binding IFR, it is “less likely . . . [to] deviate from its position” in the FFR.[90]  If the public feels that that an invitation for postpromulgation comments is a mere pro forma exercise, such an attitude could create a malaise whereupon “citizens [do] not take seriously the opportunity to offer comments” and perceive that the “resulting rules . . . [are] less the product of a representative process and more the product of bureaucratic fiat.”[91]  The IFR process, in other words, risks making rules appear illegitimate due to a lack of genuine public input.

Unsurprisingly, courts cognizant of the Fullerian morality of the APA’s notice-and-comment process have repeatedly expressed an intuition (in contexts outside interim-final rulemaking) that agencies should not be empowered to ignore that process whenever it is convenient to do so.  For instance, in Tennessee Gas Pipeline Co. v. FERC,[92] the D.C. Circuit rejected the argument that “the limited nature of [a] rule” could “justify a failure to follow notice and comment procedures.”[93]  To rule otherwise, the court cautioned, would allow the APA’s exceptions to “soon swallow the notice and comment rule.”[94]  In Northern Mariana Islands v. United States,[95] the U.S. District Court for the District of Columbia came to a similar conclusion, holding that a statutorily mandated eighteen-month implementation period did not constitute good cause to dispense with notice and comment.  There, too, the court observed that accepting such an argument would “swallow the [notice-and-comment] rule, as every agency obligated to develop a new federal program in a finite amount of time could decide that it had good cause to dispense with public participation in rulemaking.”[96]  Both Tennessee Gas and Northern Mariana Islands seemed to express a “mood”[97]  that giving agencies broad discretion to dispense with prepromulgation comments would threaten the rule-of-law values implicit in § 553.  But the IFR process as interpreted in Little Sisters appears to grant agencies precisely this sort of discretion.

2.     Little Sisters’ Refusal to Recognize the Problem

Little Sisters could have responded to the rise of IFRs by recognizing the problems they posed under the APA’s framework.  Instead, the Court engaged in a questionable reading of § 553’s text that failed to respect the rule-of-law principles underlying it.  As Hickman explains, § 553’s description of the comment process, through repeated uses of the word “after,” assumes that comments follow notice but precede the issuance of a final, binding rule.[98]  The good cause exception empowers agencies to entirely dispense with this requirement.[99]  Thus, the concept of inviting “postpromulgation comments” on a binding rule is alien to the APA’s text: rather, the APA gives agencies the choice either (a) to seek comments before promulgating a binding rule, or (b) to forgo the procedure entirely after making a showing of good cause.  So Little Sisters’ decision to treat postpromulgation comments on an IFR the same as prepromulgation comments on a typical rule,[100]  despite being justified textually, finds no support in § 553 read contextually.[101]

From this, it follows that inviting postpromulgation comments on an IFR is never relevant to its procedural legality: if an agency has good cause, it can (but does not have to) invite postpromulgation comments, and if an agency lacks good cause, it must offer prepromulgation comments.  Consequently, the Little Sisters Court’s footnote[102] observing that its decision mooted the good cause issue makes little sense: since postpromulgation comments should not count as an “opportunity to participate” under § 553’s general provisions, the only way the FFRs in Little Sisters could have been valid was if the agency had good cause to dispense with prepromulgation comments.  The Court’s conclusion to the contrary ignores the “implicit procedural logic”[103] of      § 553 in lieu of an overly wooden, literalistic interpretation.  And because the Court ignored that logic, it also ignored certain values – clarity, generality, and publicity – that infuse the informal rulemaking process with Fullerian morality.[104] The result is an erosion of agencies’ broader legitimacy as lawmakers: as Hickman pointedly wrote after the Court announced Little Sisters, “[w]e likely will get more agency regulations faster” as a result of an increased use of IFRs, “but in the end, we may not like the cost.”[105]

III.           Cabining the IFR

Little Sisters’ reliance on the APA’s text to reject court-crafted constraints on agency discretion recalls a chestnut of administrative law, Vermont Yankee, which offers lessons for those concerned about the threat IFRs pose to the rule of law.  This Part briefly describes the analytical link between Vermont Yankee and Little Sisters.  Then, drawing on how the law developed after Vermont Yankee, it provides two ways lower courts can draw on the APA to constrain the IFR process.

A.    Lessons from Vermont Yankee

Vermont Yankee purported to rely on the APA’s text to conclude that “reviewing courts are generally not free to impose [additional procedural rights not enumerated in the APA] if agencies have not chosen to grant them.”[106]  But in reaching this conclusion, the Court arguably ignored other sections of the APA,[107] instead embracing the idea that “procedural mandates need some kind of [positive] legal foundation.”[108]  Four decades later, Little Sisters relied heavily on Vermont Yankee to reject the “open-mindedness test” as the sort of common law-esque procedural requirement the Court had long renounced.[109]  Little Sisters, too, is arguably inconsistent with the language of the APA,[110] but like Vermont Yankee, reflects a methodological commitment to “judicial restraint and . . . strict judicial adherence to [the APA’s] . . . text,” read in isolation.[111]

Despite appearances, however, Vermont Yankee did not actually leave “the formulation of procedures . . . [entirely] within the discretion of . . . agencies.”[112]  Rather, as then-Professor Antonin Scalia observed, Vermont Yankee only barred courts from “supplementing” the APA’s procedures in a common-law fashion.[113]  The opinion was noticeably silent on “expansive interpretation[s] of the language of the APA itself” that had the effect of imposing new procedures on agencies, and “its silence on this point seem[ed] to be an implicit approval” of such a practice.[114]  Vermont Yankee also endorsed the substantive policing of a rule’s content through           5 U.S.C. § 706’s arbitrary-and-capricious review provision, a constraint the Court had been developing since 1971.[115]

In the years following Vermont Yankee, then, “judicial decisions reinterpreting the APA in a relatively permanent fashion” persisted, imposing new hurdles on agencies and raising the costs of the informal rulemaking process.  Though not without their critics,[116] such decisions were a natural continuation of what the courts had been doing for decades: devising tools within the APA framework to ensure, as agencies asserted power in new ways, that the administrative state remained within the bounds of the law’s morality.  Lower courts concerned about the rise of IFRs can take a lesson from Vermont Yankee, then, and use arbitrary-and-capricious review, as well as well as procedural constraints grounded in § 553’s text, to rein in the IFR process.

B.     The Substantive Approach: Policing IFRs and FFRs Through Arbitrary-and-Capricious Review

The first – and best – option for lower courts is to expose IFRs and FFRs to a searching form of arbitrary-and-capricious review on the ground that they are overbroad and thus lack a rational connection to the purported issue the agency is trying to address.  Call this the “substantive” approach.  When evaluating an agency action under the arbitrary-and-capricious standard, courts must ask, among other things, whether the agency articulated a “rational connection between the facts found and the choice made.”[117]  This requirement often implicates a question of fit – of whether the “scope” of a rule accords with “the problem the agenc[y] set[s] out to address.”[118]  One of the virtues of inviting prepromulgation comments, of course, is that an agency can adjust the reach of a proposed rule after receiving submissions providing precise information about the problem at issue.[119]   But IFRs, which are promulgated without public input, deprive the agency of the ability to make this sort of adjustment.  FFRs, which are issued after the agency invites postpromulgation comments on an IFR, have a similar issue, since “regulatory inertia,” as well as “status quo bias, confirmation bias, and commitment bias” all make the agency less likely to significantly alter the IFR in the FFR.[120]   So compared to a typical notice-and-comment rule, both IFRs and FFRs have a potential overbreadth problem.

Justice Kagan raised the overbreadth issue concurring in the judgment in Little Sisters.  She observed that HRSA had justified the IFRs at issue, which did away with the previous self-certification requirement, as necessary to assuage certain groups’ “sincere religious objections” to the contraceptive mandate.[121]  But the IFRs “exempted all employers with objections to the mandate, even if the [previous] accommodation met their religious needs.”[122]  This, to Justice Kagan, meant that the rules “went beyond what the Departments’ justification supported – raising doubts about whether the solution lack[ed] a ‘rational connection’ to the problem.”[123]

Taking a cue from Justice Kagan, lower courts have since used the “fit” issue to strike down IFRs as arbitrary and capricious.  Texas v. Becerra,[124] a case arising from the Biden Administration’s vaccine mandate for Medicare- and Medicaid-certified healthcare employers, is instructive.  In November 2021, the Centers for Medicare and Medicaid Services issued an IFR announcing the mandate and simultaneously requested postpromulgation comments.[125]  The IFR was soon challenged, including in the U.S. District Court for the Northern District of Texas.  In issuing a preliminary injunction, the court concluded that the challengers were likely to succeed on their claim that the IFR failed arbitrariness review for three reasons relating to overbreadth.[126]  First, HHS justified the IFR based on data “elicited from . . . long-term-care” facilities, but applied the rule to all facilities, including “psychiatric residential treatment facilities . . . and community-care oriented health centers.”[127]  Second, the IFR “fail[ed] to consider the disruptions to staff shortages and healthcare resources especially in rural areas for its enforcement.”[128]  Third, the IFR lacked the option of a “regular testing” requirement as an “alternative to vaccination,” and failed to exempt “employees and contractors . . . [who] telework and administrative employees who have little to no patient contact.”[129]

The Supreme Court, evaluating other district court opinions enjoining the same IFR in Missouri v. Biden,[130] ultimately concluded that the mandate was likely not arbitrary and capricious, citing the “challenges posed by the global pandemic.”[131]  Nevertheless, the opinion from the Northern District of Texas hints at the sort of analysis that might successfully cabin the IFR process in situations less dire than a large-scale health crisis like COVID-19.  This substantive approach has several advantages.  First, it takes account of the APA’s harmless error rule,[132] reserving courts the discretion to uphold an IFR or FFR if the agency’s failure to adhere to § 553’s normal order of operations does not result in any prejudice.  Second, it allows courts to address both IFRs and FFRs, avoiding the problem that under Little Sisters, any procedural issues surrounding the good cause exception are apparently mooted whenever an agency provides postpromulgation comment and issues an FFR.  Third, it enables courts to impose the targeted remedy of remand without vacatur, which offers appealing flexibility when, for instance, an IFR makes large changes to a regulatory scheme and is challenged after regulated parties have already begun to adjust their conduct to adhere to it.[133]

In sum, the substantive approach would provide courts with a workable means of raising the costs of the IFR process, pushing agencies back towards the APA’s baseline of inviting prepromulgation comments and furthering the Fullerian values that baseline promotes.[134]  It would also preserve the availability of IFRs in exceptional circumstances where, as Missouri suggests, a departure from the APA’s normal order of operations might be warranted in the name of efficiency and dispatch.[135]

C.    The Procedural Approach: Policing IFRs Through the Good Cause Exception

A second – though less effective – means of policing the IFR process is to more stringently limit agencies’ use of the good cause exception to promulgate IFRs.  Call this the “procedural” approach. Such an approach would impose de novo review on agency invocations of good cause[136] and demand a link between an agency’s reasons for using the IFR process and the prong of the good cause exception it seeks to invoke, allowing for the development of consistent standards.[137]  Like the substantive approach, the procedural approach allows courts to take account of the APA’s harmless error rule[138] and provide the remedy of remand without vacatur where appropriate.[139]  But unlike the substantive approach, the procedural approach only reaches IFRs, not FFRs promulgated following an opportunity for comment.  Moreover, because the procedural approach targets the good cause exception writ large, it risks overly narrowing it (even outside the IFR context), frustrating agencies’ ability to respond to genuine emergencies.[140]

A case from the U.S. District Court for the District of Maryland, Association of Community Cancer Centers v. Azar,[141] illustrates how the procedural approach might work in practice.  In November 2020, HHS issued an IFR that “require[d] reimbursements made for certain drugs covered by Medicare Part B to be based on the lowest price in a group of ‘most favored nations’ rather than the average U.S. sales price.”[142]  HHS justified its invocation of good cause on the grounds that delay would be “contrary to the public interest,” asserting that “COVID-19 . . . has created an emergency in Medicare Part B drug pricing.”[143]  The court rejected this rationale, observing that the “public interest” prong of good cause typically only applies where “it [is] necessary to issue rules of life-saving importance immediately, or where delaying implementation of a rule would jeopardize the very reason for implementing the rule.”[144]  Here, the IFR merely aimed to “alleviate general financial instability.”[145]  The court concluded that the IFR was likely procedurally invalid, warranting preliminary injunctive relief.[146]

The Community Cancer Centers court used the procedural approach to cabin the IFR process in two ways.  First, it did not defer to HHS’s assertion of good cause.[147]  Second, it rigorously analyzed the link between the purported ground for good cause and the content of the IFR.[148]  As noted in Part II, inconsistent enforcement of the good cause exception incentivizes agencies to invoke it for tenuous reasons, giving IFRs and opinions evaluating them an ad hoc quality.[149]  But de novo review, coupled with guidance from the courts rooted in the APA’s three categories and prior caselaw, addresses these concerns.[150]  Consequently, even though the procedural approach does not work in all cases after Little Sisters and has its own risks, it could, where applicable, further the Fullerian values safeguarded by a principled use of the good cause exception.[151]

Conclusion

Despite their intuitive appeal, IFRs disrupt the compromise the APA strikes between administrative power and the rule of law.  On one hand, the APA gives agencies broad discretion to craft policy using informal rulemaking.  On the other, it cabins this discretion by creating a procedural order of operations agencies must follow, including the provision of notice (which ensures that rules are publicized, prospective, and reasonable) and the requirement of a reasoned explanation (which ensures that rules are clear).  In this way, the APA and the judicial opinions giving it content are part of a project, dating back to Crowell, in which the courts and Congress both worked to balance the virtues of administrative power with the morality of administrative law so as to guard against the development of a lawless bureaucracy.[152]

The IFR process threatens this project, moving the needle towards administrative power and away from the rule of law.  It incentivizes agencies to exploit the APA’s good cause exception to minimize rulemaking costs, leading to incoherent explanations and the appearance of ad hoc decisionmaking.  And when interpreted expansively, it permits agencies to dispense with notice and comment without invoking good cause at all, clouding the rulemaking process and intensifying the appearance of ad hoc decisionmaking.  In an era marked by a “fundamental assault on the legitimacy of the administrative state,” the risks posed by IFRs unshaped by public input and unconstrained by rule-of-law values play into critics’ worst fears – fears Little Sisters failed to acknowledge.  The time is ripe, then, for courts to cabin the IFR process, reassert the APA’s settlement between administrative power and the rule of law, and redeem the “authority” of agencies to “make law[s]” that bind us all.[153]

* J.D. Candidate, Harvard Law School (2024).  Thanks to Professors Cass Sunstein and Adrian Vermeule for class discussions that led to this Essay, and to Luiza Leão for our many conversations about the importance of the rule of law.  All errors are mine.

[1] 285 U.S. 22 (1932).

[2] Id. at 46.

[3] Id. at 56.  The normative implications of Chief Justice Hughes’ statement are outside the scope of this Essay, which takes his words at face value.  For an interesting exploration of these implications, see Evan Bernick, The Regulatory State and Revolution: How (Fear of) Communism Has Shaped Administrative Law, Yale J. on Reg.: Notice & Comment (Aug. 11, 2019), https://www.yalejreg.com/nc/the-regulatory-state-and-revolution-how-fear-of-comm-unism-has-shaped-administra-tive-law-by-evan-bernick/.

[4] Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. §§ 551, 553–559, 701–706).

[5] This Essay, following Professor Jeremy Waldron, defines the “rule of law” as the idea that “people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner,” and that “citizens should respect and comply with legal norms, even when they disagree with them.”  Jeremy Waldron, The Rule of Law, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., Summer 2020 ed.), https://plato.stanford.edu/entries/rule-of-law/. See also A.V. Dicey, Introduction to the Study of the Law of the Constitution 179–201, 324–401 (7th ed. 1908) (describing the tension between the rule of law and an overly bureaucratic administrative state).

[6] Cass R. Sunstein & Adrian Vermeule, Law & Leviathan: Redeeming the Administrative State 30 (2020).

[7] See Antonin Scalia, Vermont Yankee, the APA, and the D.C. Circuit, 1978 Sup. Ct. Rev. 345, 381 (describing how lower courts, and particularly the D.C. Circuit, attempted to craft restrictions on agencies that “restore[d] the balance which the Supreme Court’s consistent approval of ‘the contrivance of more expeditious administrative methods’ had upset”).

[8] See Michael Asimow, Interim-Final Rules: Making Haste Slowly, 51 Admin. L. Rev. 703, 712–15 (1999).

[9] See 5 U.S.C. § 553(b)(3)(B).  See also Kyle Schneider, Note, Judicial Review of Good Cause Determinations Under the Administrative Procedure Act, 73 Stan. L. Rev. 237, 248 (2021).

[10] “Immediately” is a slight overstatement, as rules generally must be published thirty days before going into effect.  See 5 U.S.C. § 553(d).

[11] See Asimow, supra note 8, at 711.

[12] In reality, many IFRs are never replaced by FFRs.  See Dan Bosch, Interim Final Rules: Not So Interim, Am. Action Forum (Dec. 8, 2020), https://www.americanactionforum.org/res-earch/interim-final-rules-not-so-interim/.

[13] 143 S. Ct. 2367 (2020).

[14] Kristen E. Hickman, Did Little Sisters of the Poor Just Gut APA Rulemaking Procedures?, Yale J. on Reg: Notice & Comment (July 9, 2020), https://www.yalejreg.com/nc/did-little- sisters-of-the-poor-just-gut-apa-rulemaking-procedures/.

[15] Crowell v. Benson, 285 U.S. 22, 56 (1932).

[16] 5 U.S.C. § 553(b)–(c).

[17] See Ronald M. Levin, The Administrative Law Legacy of Kenneth Culp Davis, 42 San Diego L. Rev. 315, 324 (2005).

[18] See, e.g., Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 394 (D.C. Cir. 1973) (agencies must disclose material studies on which they relied); United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2d Cir. 1977) (agencies must give meaningful consideration to significant comments); Chocolate Mfrs. Ass’n of U.S. v. Block, 755 F.2d 1098, 1105 (4th Cir. 1985) (agencies must craft final rules that are a “logical outgrowth” of the proposed rule).

[19] See generally Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).

[20] Asimow, supra note 8, at 708.

[21] 5 U.S.C. § 553(b)(3)(B). Each of these three prongs has a distinct statutory meaning.  According to the APA’s legislative history, “‘[i]mpracticable’ means a situation in which the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rule-making proceedings.  ‘Unnecessary’ means unnecessary so far as the public is concerned, as would be the case if a minor or merely technical amendment in which the public is not particularly interested were involved.  Public interest supplements the terms ‘impracticable’ or ‘unnecessary’; it requires that public rule making procedures shall not prevent an agency from operating and that, on the other hand, lack of public interest in rule making warrants an agency to dispense with public procedure.”  Administrative Procedure Act: Legislative History, 79th Cong., 1944–46, at 200 (1946) [hereinafter APA Legislative History].

[22] See Asimow, supra note 8, at 707.

[23] Id.

[24] Id. at 708.

[25] James Yates, Essay, Good Cause is Cause for Concern, 86 Geo. Wash. L. Rev. 1438, 1449 (2018).  Major rules are subject to a sixty-day delay in implementation pursuant to the Congressional Review Act, see 5 U.S.C. §§ 801–808, as well as a cost-benefit analysis that must be submitted to the Office of Information and Regulatory Affairs, see Exec. Order No. 12,866, 3 C.F.R. 638 (1993).  Given these additional procedural hurdles, it makes sense that agencies seeking to enact significant policy initiatives would want to minimize delays wherever possible.

[26] See Yates, supra note 25, at 1450.

[27] Kristen E. Hickman & Mark Thomson, Open Minds and Harmless Errors: Judicial Review of Postpromulgation Notice and Comment, 101 Cornell L. Rev. 261, 266 (2016).

[28] Asimow, supra note 8, at 712.  Congress, too, has on occasion authorized the IFR process in agencies’ organic statutes. See id. at 712 n.40 (providing examples touching, inter alia, social security, mine safety, and environmental protection matters).

[29] Hickman & Thomson, supra note 27, at 263.

[30] Kristen E. Hickman, Coloring Outside the Lines: Examining Treasury’s (Lack Of) Compliance with Administrative Procedure Act Rulemaking Requirements, 82 Notre Dame L. Rev. 1727, 1782 (2007).

[31] See Asimow, supra note 8, at 726 (outlining the contours of this argument).  But see Hickman, supra note 14 (critiquing such an interpretation for ignoring the repeated use of the word “after” in § 553); infra section III.B (offering further criticisms).

[32] See 5 U.S.C. § 706; APA Legislative History, supra note 21, at 214 (“The requirement that account shall be taken ‘of the rule of prejudicial error’ means that a procedural omission which has been cured by affording the party the procedure to which he was originally entitled is not a reversible error.”).

[33] Hickman & Thomson, supra note 27, at 285.

[34] Id. at 286; see also id. n. 151 (collecting cases from the Fifth, Fourth, and Third Circuits).

[35] Id. at 291; see also id. n. 169 (collecting cases from the Tenth and Federal Circuits).

[36] Id. at 294; see also id. nn. 176–177 (collecting cases from the D.C., Third, and Federal Circuits).  The “open mind” standard is “implicitly rooted” in the APA’s harmless error rule.  Id. at 295.

[37] Hickman & Thomson, supra note 27, at 302.  This remedy is legally controversial.  Id. at 304.  Even so, Professor Ronald Levin has argued that it has a basis in the traditional equitable discretion of the federal courts.  See generally Ronald M. Levin, “Vacation” at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke L.J. 291 (2003).

[38] Hickman & Thomson, supra note 27, at 268.

[39] Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of the U.S. Code).

[40] Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2373 (2020).

[41] The Supreme Court, 2019 Term – Leading Cases, 134 Harv. L. Rev. 410, 560–61 (2020).

[42] Id. at 561.

[43] Id.

[44] Little Sisters, 140 S. Ct. at 2378.

[45] Pennsylvania v. Trump, 281 F. Supp. 3d 553, 585 (E.D. Pa. 2017).

[46] See id. at 572.

[47] Id. at 575 (emphasis added).

[48] Little Sisters, 140 S. Ct. at 2379.

[49] Pennsylvania v. President of the United States, 930 F.3d 543, 568–69 (3d Cir. 2019).

[50] Little Sisters, 140 S. Ct. at 2386.

[51] 435 U.S. 519 (1978).

[52] Id. at 2385.

[53] Id. at 2386.

[54] Id.

[55] Id. n.14.

[56] See, e.g., Katie Keith, Supreme Court Upholds Broad Exemptions to Contraceptive Mandate – For Now, Health Affairs (Jul. 9, 2020), https://www.healthaffairs.org/do/10.1377/fore-front.20200708.110645/.

[57] See, e.g., Hickman, supra note 14 (“[T]he Court has come pretty close to, if not writing APA § 553(b) and (c) out of the statute completely, then at least minimizing those provisions to the point of irrelevancy in most instances.”).

[58] See supra note 35 and accompanying text.

[59] Wong Yang Sung v. McGrath, 339 U.S. 33, 40 (1950).

[60] Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. L. Rev. 630, 639 (1958).

[61] Id. at 645.

[62] See Lon L. Fuller, The Morality of Law: Revised Edition 33–94 (1969).

[63] See Fuller, supra note 60, at 645.

[64] See generally Sunstein & Vermeule, supra note 6; Cass R. Sunstein & Adrian Vermeule, The Morality of Administrative Law, 131 Harv. L. Rev. 1924 (2018).

[65] Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 514 (1989).

[66] See 5 U.S.C. § 553(b)(1)–(3).

[67] Id. § 553(c).

[68] See id. § 553(b(3)(B) (requiring rules promulgated pursuant to the good cause exception to contain a “brief statement of reasons” why “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest”).

[69] Kevin M. Stack, An Administrative Jurisprudence: The Rule of Law in the Administrative State, 115 Colum. L. Rev. 1985, 1988 (2015).

[70] Fuller, supra note 62, at 51.  See also David S. Rubenstein, Taking Care of the Rule of Law, 86 Geo. Wash. L. Rev. 168, 227–28 (2018).

[71] See Fuller, supra note 62, at 51–65 (discussing the dangers posed by retroactive laws). See also Sunstein & Vermeule, supra note 6, at 58–59 (discussing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988), which announced a presumption against retroactivity in rulemaking as a “background principle, apparently reflecting part of the morality of administrative law”).

[72] Fuller, supra note 62, at 79.  See also United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 253 (2d Cir. 1977).

[73] See Stack, supra note 69, at 1988–89.  The APA’s text itself suggests that only minimal explanation is necessary. See 5 U.S.C. § 553(c) (requiring final rules to be accompanied by a “concise general statement of their basis and purpose”). But arbitrariness review and the paper hearing rules associated with § 553 effectively require agencies to provide significantly more elaborate justifications for final rules.  See Thomas O. McGarity, Some Thoughts on “Deossifying” the Rulemaking Process, 41 Duke L.J. 1385, 1397, 1419 (1992).

[74] Fuller, supra note 62, at 48.

[75] See Schneider, supra note 9, at 251–52.

[76] See id. at 252–57.

[77] See Hickman & Thomson, supra note 27, at 266.  See also Kirsten E. Hickman, The Limitations of Law and Leviathan, Yale J. on Reg: Notice & Comment (April 22, 2021), https://www.yalejreg.com/nc/law-leviathan-redeeming-the-administrative-state-part-10/ (citing data suggesting a “highly aggressive agency conception of what constitutes good cause”).

[78] Hickman & Thomson, supra note 27, at 266.

[79] See Livingston Educ. Serv. Agency v. Becerra, 589 F. Supp. 3d 697, 704 (E.D. Mich. 2022).

[80] Id. at 704.

[81] Louisiana v. Becerra, 577 F. Supp. 3d 483, 500 (W.D. La. 2022).

[82] Livingston Educ. Serv., 589 F. Supp. 3d at 711 (quoting Biden v. Missouri, 142 S. Ct. 647, 654 (2022)).

[83] See Vaccine and Mask Requirements To Mitigate the Spread of COVID-19 in Head Start Programs, 86 Fed. Reg. 68052, 68058 (2021).

[84] See Louisiana, 577 F. Supp. 3d at 499.

[85] Fuller, supra note 62, at 47.

[86] See Hickman, supra note 14 (describing this reading of Little Sisters).

[87] See id.

[88] See 5 U.S.C. § 553(d); Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2386 (2020).

[89] Fuller, supra note 62, at 50.

[90] Hickman & Thomson, supra note 27, at 287.

[91] Id. at 287–88.

[92] 969 F.2d 1141 (D.C. Cir. 1992).

[93] Id. at 1145.

[94] Id.

[95] 686 F. Supp. 2d 7 (D.D.C. 2009).

[96] Id. at 16.

[97] Cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951).

[98] See Hickman, supra note 14.  See also 5 U.S.C. § 553(c) (“After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making . . . .  After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.”) (emphasis added).

[99] See 5 U.S.C. § 553(b)(3)(B).

[100] See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2386 (2020).

[101] Cf. West Virginia v. EPA, 142 S. Ct. 2587, 2607 (2022) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”).

[102] See Little Sisters, 140 S. Ct. at 2386 n.14.

[103] Sunstein & Vermeule, supra note 6, at 18.

[104] See supra notes 65–74 and accompanying text.

[105] Hickman, supra note 14.  Interestingly, Hickman has also argued that “none of the Fullerian principles of administrative law morality are inconsistent with interim-final rulemaking, even where the agency lacks good cause,” instead critiquing IFRs for their effects on regulated parties, who “feel[] ignored, skeptical of the agency’s motives, and resentful of the rules in question.”  See Hickman, supra 77. But these effects are symptomatic of a legal system that lacks the necessary Fullerian morality. See Fuller, supra note 62, at 33–38 (offering a parable describing various results of immoral lawmaking, including “resent[ment], id. at 35, “near revolution,” id. at 36, and “popular discontent,” id. at 37).

[106] Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 524 (1978).

[107] See Kenneth Culp Davis, Administrative Common Law and the Vermont Yankee Opinion, 1980 Utah L. Rev. 3, 12 (citing 5 U.S.C. § 559, which provides that the APA does not “limit or repeal additional requirements . . . otherwise recognized by law,” for the proposition that the APA imposes only minimum procedural requirements and permits reviewing courts to “add to [those] protections”).

[108] Sunstein & Vermeule, supra note 6, at 95.

[109] See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2386 (2020) (“We have repeatedly stated that the text of the APA provides the ‘maximum procedural requirements’ that an agency must follow in order to promulgate a rule.”) (quoting Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 102 (2015)).

[110] See supra notes 98–105 and accompanying text.

[111] Scalia, supra note 7, at 344.

[112] Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 524 (1978).

[113] Scalia, supra note 7, at 397.

[114] Id. at 394.

[115] Vt. Yankee, 435 U.S. at 535 n.14.  See also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419–20 (1971) (imposing the obligation to develop a “full administrative record” in informal proceedings, id. at 420, so as to allow a court to evaluate whether an agency provided an “adequate explanation” for its action, id.).

[116] See, e.g., Am. Radio Relay League, Inc. v. F.C.C., 524 F.3d 227, 248 (D.C. Cir. 2008) (Kavanaugh, J., concurring in part, concurring in the judgment in part, and dissenting in part).

[117] Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co, 483 U.S. 29, 43 (1983).

[118] Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2398 (2020) (Kagan, J., concurring).

[119] See Jacob Gersen & Adrian Vermeule, Thin Rationality Review, 114 Mich. L. Rev. 1355, 1396 (2016).

[120] Hickman & Thomson, supra note 27, at 287.

[121] Little Sisters, 140 S. Ct. at 2398 (Kagan, J., concurring).

[122] Id. (emphasis added).

[123] Id. at 2399.

[124] 575 F. Supp. 3d 701 (N.D. Tex. 2021).

[125] See Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination, 81 Fed. Reg. 61555 (2021).

[126] See Texas, 575 F. Supp. 3d at 721.

[127] Id.

[128] Id.

[129] Id. at 723.

[130] 142 S. Ct. 647 (2022) (per curiam).

[131] Id. at 654.  Cf. Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095 (2009) (explaining how the parameters for good cause are “dialed down in times of perceived crisis” and “dialed up again when the crisis has passed,” rendering the exception a “temporar[y] . . . legal grey hole”).

[132] See 5 U.S.C. § 706(2).

[133] See Levin, supra note 37, at 298–99.  Given the number of “major” rules (as defined in Exec. Order No. 12,866) implemented via the IFR process, this is not a speculative possibility. See supra note 25 and accompanying text.

[134] See supra section II.B.2 (discussing these values).  See also Hickman, supra note 14.

[135] See Missouri v. Biden, 142 S. Ct. 647, 651 (2022) (per curiam).

[136] See Schneider, supra note 9, at 269 (recommending this reform).

[137] See 5 U.S.C. § 553(b)(3)(B).  Courts are inconsistent in conducting good cause analyses within the framework of these three prongs.  For instance, in the two Head Start Program cases described in Part II, supra, neither court linked the prongs of the good cause exception invoked by HHS with the factual reasons it offered for dispensing with notice and comment.  See Livingston Educ. Serv. Agency v. Becerra, 589 F. Supp. 3d 697, 711–12 (E.D. Mich. 2022); Louisiana v. Becerra, 577 F. Supp. 3d 483, 499–501 (W.D. La. 2022).

[138] See Schneider, supra note 9, at 248 (describing how courts frequently “find improper use of the [good cause] exception to be harmless error when comments are accepted after promulgation”).

[139] See, e.g., Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 98 (D.C. Cir. 2002).

[140] See Vermeule, supra note 131, at 1123 (noting that the drafters of the APA “expressly anticipated” that the good cause exception would “cover administrative action in emergencies”).

[141] 509 F. Supp. 3d 482 (D. Md. 2020).

[142] Id. at 488; see also Most Favored Nation (MFN) Model, 85 Fed. Reg. 76180 (2020).

[143] Ass’n of Cmty. Cancer Centers, 509 F. Supp. at 497.

[144] Id. at 496.

[145] Id. at 497.

[146] See id. at 501.

[147] See id. at 495 (“Courts review an agency’s finding of good cause de novo.”).

[148] See id. at 497–98.

[149] See supra section II.B.1.

[150] See Schneider, supra note 9, at 281–82 (arguing that while “[i]t may be impossible to precisely enumerate the factors relevant to evaluating the substance of future good cause assertions,” id. at 282, de novo review, along with the “careful testing of arguments against the record,” id. at 281, will deter agencies from “skip[ping] the APA’s procedural requirements merely because they can get away” with it, id. at 282).

[151] See supra section II.B.1 (discussing these values)

[152] See Sunstein & Vermeule, supra note 6, at 8–10; Crowell v. Benson, 285 U.S. 22, 56 (1932).

[153] Fuller, supra note 60, at 645.

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Hon. Laurence H. Silberman Symposium: His Life and Legacy

Posted by on Oct 2, 2023 in Per Curiam, Uncategorized

Hon. Laurence H. Silberman Symposium: His Life and Legacy

JLPP: Per Curiam is proud to present the Hon. Laurence H. Silberman Symposium: His Life and Legacy on October 2, 2023 – the one year anniversary of his passing.  The essays in this symposium, authored by several of Judge Silberman’s former law clerks, honor the life and career of Judge Silberman.  We hope readers of these essays can learn the valuable lessons that Judge Silberman imparted to his clerks.

The essays in this symposium can be accessed at the following links:

Remembering the Life and Legacy of Laurence H. Silberman – Justice Amy Coney Barrett

Common Ground with an Uncommonly Good Man: A Tribute to Judge Laurence H. Silberman – Rachel Barkow

Baloney, Fortuity, and Character – Paul Clement

Judge Laurence H. Silberman Symposium Essay – Viet Dinh

Judge Silberman, Party Presentation, and the Non-Court Court – Judge Eric D. Miller

Two Lessons From Judge Silberman – David E. Nahmias

Judge Silberman and International Law: A Unified Approach – John Yoo

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