St. John Henry Newman’s Development of Doctrine and Law: Some Preliminary Notes and Questions – Jeffrey A. Pojanowski

Posted by JLPP on Nov 26, 2024 in Per Curiam

St. John Henry Newman’s Development of Doctrine and Law: Some Preliminary Notes and Questions

Jeffrey A. Pojanowski*

When one thinks about the relationship between Newman’s thought on the development of doctrine in the Church and the development of legal doctrine, it is hard to know where to begin. There are so many potential parallels and fruitful avenues of inquiry, but also worries about superficial resemblances or imperfect analogies between theological doctrine and legal doctrine. This is all the more challenging because Newman’s work on doctrinal development is complex, subtle, and hotly contested. That different theologians interpret Newman in such different directions makes it all the trickier for the interloper. One cannot help but feel that one is building the ship while at sea.

To anchor this discussion, I will rely on the work of three excellent scholars. First, my legal focal point is Professor Marc DeGirolami’s work on tradition in general and constitutional law in particular.[1] This work, which is the occasion for this conference, is theoretically sophisticated and, given the recent prominence of tradition of the Supreme Court’s constitutional decisionmaking, timely indeed.[2] For the theological side of the discussion, in addition to Newman’s masterwork on doctrinal development,[3] I have profited from reading two recent, excellent works by Professors Matthew Levering and Tracey Rowland.[4]

Rowland contends that Newman’s work served as a crucial via media in Catholic theology between intellectualism and historicism.[5] Theories about legal doctrine have similarly dangerous terrain. First, consider intellectualism. Scholars of private law will be well aware of philosophies of tort, contract, and property that drink deeply of Kant’s philosophy of right or Hegelian understanding of personhood but treat messier case law as unfortunate dregs at the bottom of the glass. Rationalist theories of constitutional law also abound, as we observe Ronald Dworkin’s Judge Hercules (and his judicial imitators) laboring to make the Constitution the best it can be in light of abstract political morality.[6]

Historicism also abounds, especially in pragmatic legal theory. For all their differences in other respects, legal realists and descriptive doctrinalists alike in private law regard the common law as contingent developments directed by forces of history or general intellectual trends. Much of the same can be said for constitutional law, including by originalists of the legal positivist variety who think the domain of law is limited to rules and conventions that we happen to have. There, in the legal domain at least, all that succeeds is success.

One might note, provocatively here in a conference focused on tradition, that some forms of legal traditionalism are particularly susceptible to the risk of historicism. One of the early leading theorists of the common law tradition was David Hume, whose conventionalism is well known.[7] Classical common lawyers often had a kind of ambivalence about natural law, leaving it to lie at the subterranean level and feeling much more comfortable talking about how the law is suitable to the ways and practices of a particular people.[8] More contemporary theorists of classical common law thinking like Brian Simpson and Gerald Postema also focus on convention, shared reasoning, and local particularity.[9] And if one reads Martin Krygier, the excellent Australian philosopher of legal tradition, it is hard to find anything but tradition as the fundament of law.[10] To echo Levering’s question: Could there be any standard for corruption if all that succeeds in tradition is historical success?[11]

The specter of relativism therefore hangs over this approach to traditionalism. Professor DeGirolami, as a natural lawyer and non-relativist, would surely like to avoid that. And his theory traditionalism in constitutionalism does that: there is some space for the critique and replacement of bad traditions, with “bad” meaning objectively wrong as a moral matter, not simply unpopular.[12] But how does one find a via media here in law?

It is important to note here that merely transposing Newman’s “seven notes”[13] of doctrinal development to the legal context might not be enough. Certainly, they are illuminating aids for seeing how a body of law can be coherent within itself, how a tradition can grow in an organic fashion rather than sit frozen in amber. It can provide a measure, internal to the body of law itself, of doctrinal development or corruption. Any student of ordinary doctrinal legal science would benefit from seeing how Newman’s seven notes characterize the development of a doctrinal tradition.[14]

But tradition, for Newman, was not enough. Presumably one could use the seven notes to track the development of Eastern Orthodox or Protestant doctrine, or the development of Halachah and particular schools of Islamic Jurisprudence. That fact would not lead him to assent to those teachings. Tradition, as Newman understands it, seems crucial for building a mode of thought that is an alternative to deductive rationalism or idealism but is not sufficient unto itself.[15] Non-historicist legal theorists who value tradition, then, need something more.

It is therefore worth briefly considering the other building blocks in addition to tradition that Professor Rowland notes in her chapter on Newman. She identifies three others besides “the organic account of tradition”: first: a “historical account of Revelation”; second, an understanding of the teaching office of the Pope and the ecclesia docens more generally; and third, conscience.[16] I will focus on the first two.

First, revelation. Newman does not value tradition for its own sake, but rather for the way it can help reveal a deposit of faith that has always existed but becomes clearer to us in the fulness of time.[17] If we are going to transpose the development of legal doctrine, especially constitutional doctrine, into a Newmanian key, it is worth wondering whether there is a legal analogue to “revelation” and what it would look like. This raises very important questions that I cannot easily answer but are worth considering.

Now, we need to be very careful here, lest we slide into a kind of legal idolatry. Nevertheless, if the development of legal doctrine is to avoid just being the story of one thing after another, there needs to be a measure of doctrinal corruption more robust than internal coherence. One natural candidate is, of course, the natural law. I believe in natural law and think all human law is answerable to it, but I worry whether that alone is enough of an anchoring analogue. The natural law directs, but leaves unanswered, many important questions of human affairs. While this suggests the natural law can provide inspiration for, and a salutary check on, the development of tradition, it also seems to present risks for understanding natural law alone as the anchoring source of human law’s magisterium.

My worry here is that it seems odd to suggest that the development of our contingent legal system is the revelation of the natural law over time. This is so even if the legal system is entirely compliant with the natural law, which underdetermines so many questions. It may be plausible to say our Constitution, ratified in 1789, in some sense provided the seed for the Supreme Court’s doctrine on the removal of executive officers in a fashion analogous to the way that the magisterium always contained but had not yet articulated the Assumption of Mary.[18] It would be strange, however, to say the natural law contained the seed of such officer-removal doctrine. Especially since many just constitutions have no such provision. On the other side of the coin, it is not so easy for Catholics to say the Immaculate Conception was one of many reasonable options for revelation in the way we can say that about the contents of Article II, section 2 of the U.S. Constitution.

A more fitting analogue, then, seems to be a kind of foundational document or, if we are in a country with an unwritten constitution, statutes and fixed practices of equivalent status. A tradition that departs from that original, fixed lodestar law is a doctrinal corruption, which is the measure and starting point of any tradition.[19] To put it in originalist terms, doctrinal development can occur in the construction zone but cannot replace interpretation of the original norms.

I suspect Professor DeGirolami would resist this, though his theory does have a proviso that says traditions cannot depart from the clear text of the constitution.[20] And I wonder if Newman and the Fathers of Vatican II would resist the analogy as well. This analogy views human law, and its revelatory analogue, as a kind of propositional information contained in a canonical document (and its separate source of tradition, whose teachings are somehow “contained” in scripture). Dei Verbum, however, treats scripture and tradition as interpenetrating each other and working together as the living revelation of Christ himself in our world.[21] Understanding sublunar, civil law in those terms, however, is trickier. Taking the analogy too seriously risks treating all human law as the unfolding of some kind of divine plan (and thus either ignores or gives little explanation for human law’s well known and crucial variety) or it suggests a kind of legal polytheism where each system has an eternal essence revealed in the fulness of time through legal science. And I know Professor DeGirolami does not want to go back to the most exotic branches of the historical school of jurisprudence and its discussion of national essences and the like. So, either we need to think more and better about human law and how it can relate to revelation in our adaptation, or perhaps we need to conclude that translating Newman to this context requires a humbler understanding of a doctrinal anchor. And if it is the latter, we might need something more fixed if tradition and development are to be more than just change over time.

Second, there is Newman’s understanding of the role of the Pope and the ecclesia docens. Although Newman rejected the strongest versions of ultramontanism on offer,[22] he gave an important role to the Holy Office as an authoritative developer of doctrine.[23] A crucial custodian of tradition that helps manifest revelation, if you will. Some classical common lawyers would readily agree, though focusing more on the learning of the twelve men in scarlet who used to supervise the King’s justice. As Brian Simpson wrote, a traditionary system “can function only if it can preserve a considerable measure of continuity and cohesion, and it can do this only if mechanisms exist for the transmission of traditional ideas and the encouragement of orthodoxy.”[24] In the development of Catholic doctrine, at least, the papacy plays an important, if contested role. Professor DeGirolami’s work on constitutional traditionalism pays some credence to such a need: he does not argue for a kind of popular constitutionalism in which the courts in general, and the Supreme Court in particular, get entirely out of the way and allow the people to govern themselves through their own organic traditions alone.[25]

The Supreme Court’s role is for Professor DeGirolami, however, somewhat ambiguous. The primary driver of determining traditional constitutional meaning under his theory is popular practice.[26] The role of the Supreme Court, then, is to identify and recognize authoritatively the popular practices that are presumptively authoritative for the meaning of what our law is.[27] One can’t help but reach for sensus fidelium analogies here. But the Church doesn’t treat sensus fidelium as the same things as majority opinion or popular custom. As Pope Francis said in his 2013 address to the International Theological Commission, for authentic expressions of the sensus fidelium, there needs to be a disposition of participation in the life of the Church, listening to the word of God, openness to reason, adherence to the magisterium, holiness, and seeking edification in the Church.[28] As Rowland points out in her chapter, for Newman “it is the saints who embody the sensus fidei in its highest power and especially the saints who stand out among the Church doctors.”[29] If, for the lawyers in the room, we are going to draw a crude analogy, sensus fidelium looks a lot more like the constitutional doctrine of liquidation, where prominent members who are faithful to the constitution seek to settle through argument and reasoned decision the meaning of an uncertain provision,[30] not the more populist, practical construction we see in Professor DeGirolami’s legal traditionalism.[31]

Again, law is not theology and the constitution is not Our Lord’s revelation incarnate on Earth. It is possible we need to adjust our analogies accordingly. And, if we do, there could be difficult questions about what a system that hangs together well in Catholic theology can tell us once we alter the dimensions of some of those building blocks. In any event, the parallels and resemblances between the two systems of development are too striking to ignore. Nevertheless, if we are going to discover what Newman’s development of doctrine can teach us about law, we might first have to answer important threshold questions about the nature and relevant similarities between human law and revelation, the proper way of reading those texts, and the constitutive role of the people in the City of Man versus the City of God. Those answers will take far more than one person with fifteen minutes to provide, but it sounds like a very fruitful research agenda for a community of Catholic legal scholars. I am clearly in the right place to raise these questions about Newman and the law, and Catholic University’s Columbus School of Law could not have picked a better eponymous chair to lead the pursuit of such answers.

* Biolchini Family Professor of Law, Notre Dame Law School. This essay is adapted from remarks the author delivered on October 18, 2024, at the conference “St. John Henry Newman, Tradition, and Law,” hosted by the Catholic University of America’s Columbus School of Law and Center for Law and the Human Person.

[1] See generally, e.g., Marc O. DeGirolami, The Very Idea of Tradition, 35 Harv. J. L. & Pub. Pol’y Per Curiam (2024) [hereinafter DeGirolami, Idea of Tradition]; Marc O. DeGirolami, Traditionalism Rising, 24 J. Contemp. Legal Issues 9 (2023) [hereinafter DeGirolami, Traditionalism Rising]; Marc O. DeGirolami, The Traditions of American Constitutional Law, 95 Notre Dame L. Rev. 1123 (2020) [hereinafter DeGirolami, Traditions of American Constitutional Law].

[2] See, e.g., United States v. Rahimi, 144 S. Ct. 1889, 1898 (2024) (“[T]he appropriate analysis [under the Second Amendment] involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” (citing New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2111 (2022))); see also Sherif Girgis, Living Traditionalism, 98 N.Y.U. L. Rev. 1477, 1496–1502 (2023) (cataloging the extent to which the Court’s jurisprudence relies on tradition to inform constitutional meaning).

[3] John Henry Cardinal Newman, An Essay on the Development of Christian Doctrine (6th ed. 1989).

[4] Matthew Levering, Newman on Doctrinal Corruption (2022); Tracey Rowland, John Henry Newman on the Development of Doctrine: A Via Media between Intellectualism and Historicism, in A Guide to John Henry Newman: His Life and Thought 352 (Juan R. Vélez ed., 2022).

[5] Rowland, supra note 4, at 354 (citing Heinrich Fries, Newmans Bedeutung für die Theologie, in Newman Studies Erste Folge 181–99 (1948)).

[6] See Ronald Dworkin, Law’s Empire 239 (1986) (introducing his mythical Judge Hercules).

[7] See Gerald J. Postema, Bentham and the Common Law Tradition 110–43 (1986).

[8] See id. at 37 (“[T]his reveals a deep ambiguity in Common Law theory, for it is not clear whether Common Law is regarded as itself defining the standard of reason and justice in this area of social life (Common Law regarded as reason), or whether Common Law is the working out of reason (reason regarded as working in or through Common Law). Both can be regarded as historicist . . . .”).

[9] See generally Gerald J. Postema, Philosophy of the Common Law, in The Oxford Handbook of Jurisprudence and Philosophy of Law 588 (Jules Coleman & Scott Shapiro eds. 2002); Brian Simpson, The Common Law and Legal Theory, in A.W.B. Simpson, Legal Theory and Legal History: Essays on the Common Law 359 (1986).

[10] See generally Martin Krygier, Law as Tradition, 5 Law & Phil. 237 (1986).

[11] See Levering, supra note 4, at 41 (“My goal is to reflect with Newman upon the threat of doctrinal corruption as it presented itself to him over the course of his long career of faithful proclamation of the Gospel.”)

[12] See Marc O. DeGirolami, First Amendment Traditionalism, 97 Wash. U. L. Rev. 1653, 1671 (2020) (“[T]here are times where a tradition violates a moral or political principle of great power that defeats it—and rightly so.”) [hereinafter DeGirolami, First Amendment Traditionalism].

[13] See Newman, supra note 3, at 169–206.

[14] See, e.g., DeGirolami, Idea of Tradition, supra note 1; Adrian Vermeule, Common Good Constitutionalism 123–24 (2022) (drawing on Newman’s seven notes to distinguish development from corruption in constitutional doctrine).

[15] See Rowland, supra note 4, at 361 (stating that “the organic account of tradition [was] not however Newman’s only building blocks” for constructing his doctrinal theory).

[16] Id. at 361–62.

[17] See Levering, supra note 4, at 38–39 (“Newmanian doctrinal development does not entail moving beyond the apostolic deposit of faith as communicated in Scripture and Tradition, as though new revelation were being received or parts of revelation now could be rejected.”).

[18] Compare Morrison v. Olson, 487 U.S. 654 (1988) (seeking to synthesize conflicting doctrine on the President’s power to remove principal officers) with Pope Piux XII, Apostolic Constitution of Pope Pius XII, Munificentissimus Deus (Nov. 1, 1950), https://www.vatican.va/content/pius-xii/en/apost_constitutions/documents/hf_p-xii_apc_19501101_munificentissimus-deus.html [https://perma.cc/F6XJ-LEWM] (defining the dogma of the Immaculate Conception of Mary).

[19] Cf. Jeffrey A. Pojanowski and Kevin C. Walsh, Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule’s New Theory, 98 Notre Dame L. Rev. 403, 415 (2022) (“The central criterion [for such a theory of development is] whether the legal development [is] consistent with or authorized by the original law of the Constitution, or rather a departure that contravenes the original law.”).

[20] See DeGirolami, First Amendment Traditionalism, supra note 12, at 1666 (noting that “clear text to the contrary” can displace traditional practices).

[21] Documents of the Second Vatican Council, Dei Verbum, No. 9 (Nov. 18, 1965),  https://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_const_19651118_dei-verbum_en.html [https://perma.cc/3YLA-HQ4F] (“Hence there exists a close connection and communication between sacred tradition and Sacred Scripture. For both of them, flowing from the same divine wellspring, in a certain way merge into a unity and tend toward the same end . . . . Therefore both sacred tradition and Sacred Scripture are to be accepted and venerated with the same sense of loyalty and reverence.” (footnote omitted) (citing Council of Trent, session IV, Decree on Scriptural Canons: Denzinger 783 (1501))).

[22] See Levering, supra note 4, at 317 (“Most importantly, Newman rejects a maximalist interpretation of the dogma.”)

[23] See Rowland, supra note 4, at 361–62 (citing Heinrich Fries, Die Dogmengeschichte des fünften Jahrhunderts im theologischen Werdegang von John Henry Newman, in 3 Das Konzil von Chalkedon 431 (Aloys Grillmeier, S.J., & Heinrich Bacht, S.J., eds. 1954)).

[24] Simpson, supra note 9, at 377.

[25] DeGirolami, Idea of Tradition, supra note 1.

[26] See DeGirolami, Traditions of American Constitutional Law, supra note 1, at 1161–68 (arguing that traditionalist constitutional interpretation looks to political practices of longstanding duration).

[27] Id. at 1168–70 (explaining how longstanding political practices enjoy a presumption of constitutional validity).

[28] See Address of Pope Francis to Members of the International Theological Commission (Dec. 6, 2023), https://www.vatican.va/content/francesco/en/speeches/2013/december/documents/papa-francesco_20131206_commissione-teologica.html [https://perma.cc/YU4D-35CL] (discussed in Rowland, supra note 4, at 368–70).

[29] Rowland, supra note 4, at 370.

[30] See generally William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019) (identifying the elements of liquidation).

[31] See DeGirolami, Traditionalism Rising, supra note 1, at 25–34 (distinguishing traditionalism from liquidation).

The Very Idea of Tradition in the Law – Marc O. DeGirolami

Posted by JLPP on Nov 26, 2024 in Per Curiam

The Very Idea of Tradition in the Law

Marc O. DeGirolami*

It is a pleasure to be with you, on the occasion of this conference to honor the polymath and prince of the Church, St. John Henry Newman.

It is customary in lectures of this sort to make grand pronouncements to other scholars in one’s field. But I have a different audience in mind. I want to talk to students, friends, colleagues in other areas, and generally interested people, about tradition. To those who might find in tradition something appealing, enchanting, and attractive. I want to ask why so many Americans—and, increasingly, so many young Americans—are drawn to or even wish to “return” (here the “u” is sometimes spelled with the Latin “v”) to tradition. How can we account for the worth of tradition? How might we understand its persistent allure, in our lives and in our law today?

For the appeal to tradition has become something of a lingua franca in constitutional law. The Supreme Court seems to have discovered tradition’s many attractions. But tradition is a hard word. It gets lumped together with other things—history and tradition, for example; or text and tradition; or history, analogy, and tradition; or some other pastiche, with the result that tradition itself becomes obscured or is even erased. Yet if tradition really is a legal lingua franca—a language meant to bridge cultural difference or make communication possible for a scattered people—we will need to know a good deal more about what it might be.

Hence my subject, the very idea of tradition, which may be taken in two senses. First, as scandalized remonstration, as in, “the very idea he told me I look like I’ve been eating well,” or, for my students, “the very idea that I must suffer through this tedious lecture.” Second, as the earnest attempt to get at the truth of a matter. As in, “I want to get at the very idea of the reasonable person in criminal law, or the Christian doctrine of the Trinity, or the nature of love.”

Let me begin with the scandalous sense. To say in America today that we are bound by tradition, let alone improved or ennobled by it, is to flirt with taboo. Many of us want to believe, perhaps we really do believe, that we are entirely self-moved and self-motivated agents, unconstrained by our past and at perfect liberty to choose our own destinies:

It matters not how strait the gate,

How charged with punishments the scroll,

I am the master of my fate,

I am the captain of my soul.[1]

William Ernest Henley’s poem is something of a modern American anthem. It may then seem surprising, or even bizarre, to say that in our world, tradition exerts a powerful influence on us.

In this lecture, I will reflect on four matters. First, and to create the conditions for a favorable hearing, on tradition in ordinary life. Second, on tradition in law, and constitutional law especially. Third, on the value or worth of tradition, where I will somewhat tentatively and speculatively explore an analogy between constitutional law and Christianity. Fourth, and drawing insight from some of Cardinal Newman’s political writing, on the relationship of tradition and change.

I. Tradition in Life

To begin to see how tradition maintains claims on us, it may be helpful to begin with something commonplace and familiar: food. Here we will notice the very idea of tradition everywhere. Consider a well-known Italian restaurant in New York City (not a destination widely regarded as the beating heart of traditionality), Il Gattopardo—“The Leopard”—after the novel by the Sicilian nobleman, Giuseppe Tomasi di Lampedusa. Though the restaurant itself is just a generation old, it proclaims that it maintains “the tradition of Italian culture.” Quoting the book’s most famous line, the restaurant says, “If we want things to stay as they are, they will have to change.” Or, as Cardinal Newman said of an idea, “it changes with them to remain the same.” New York follows in Italy’s wake. There is a common Italian expression—“un ristorante tipico”—which means a restaurant of a locality or a region that specializes in the ancient recipes and methods that endure and that “typify” the best of the spirit of the people of that place. The “traditional” manner of dining.

Or reflect on a story a few years ago about an uncanny spike in demand for Chartreuse, a green liqueur made for centuries by Carthusian monks.[2] The recipe is known only to them, based on a secret manuscript given to them in 1605, which was itself derived, so the lore goes, from a medieval alchemist’s brew for an “elixir for long life.” During the COVID-19 years, when cocktail creation as well as collective thirstiness were trending upward, the monks stubbornly declined to expand production in response to these market pressures, as this would have interfered with their life of prayer and solitude. The spirit in consequence became even more desirable. The ancientry of the method, the mystery of the ingredients, the hand-crafted care with which the cordial is made, and its sheer endurance across the centuries—all of these seem somehow to hold Chartreuse’s aspiring drinkers spellbound. Even today, green Chartreuse remains as expensive and as difficult to acquire.

Many other similar stories could be told. But are these anecdotes about merely inessential matters? I do not think so. What could be more essential, more elemental, than how we eat and how we think about our food? It was the eminent ancien régime French lawyer and judge, the author of “The Physiology of Taste,” Jean Anthelme Brillat-Savarin, who once said, “tell me what you eat, and I will tell you who you are.”[3] In fact, one sees appeals to tradition in cuisine routinely. In cooking, in fine dining, in the fashioning of specialty foods and spirits, and in far less bespoke and more everyday settings: in the kitchen and the cellar and the dairy and the distillery and the little grocery and the bodega, to be traditional is often thought desirable and admirable. We see in this a longing for access and connection to prior worlds by respecting and perfecting the recipes of old, those that endure, those that are correct and pure and perfect.

Other areas of ordinary human endeavor are like this, too: singing and the playing of musical instruments, sports, and other games; auto mechanics and repair; sailing or seamanship; drawing and painting; carpentry; the composition of poetry; the practice of learning how to write well; even the learning of a language. To engage in these activities is to submit oneself to a body of past and enduring standards of excellence. Of quality, knowledge, and expertise.

II. Tradition in Law

Now, to my second theme—what about law? It is also this way. In the common law, the body of law determined (some say “discovered,” others say “made”) in judicial decisions over long spans of time, tradition is a constant and subterranean force in the form of “custom.” Custom serves as a way to construct and transmit the legal past, looking back at it from the present. A lawyer or a judge approaching the law generally intends to carry on some lasting way of thinking or reasoning or behaving into the present.

So, too, with judging and law practice, which are often described as “crafts.” Judge Learned Hand, himself known as a judicial craftsman, once even likened the qualities of a judge to those of a cook: “Into the composition of his dishes,” Hand said, “he adds so much of this or that element as will blend the whole into a compound, delectable or at any rate tolerable to the palates of his guests. The test of his success is the measure in which his craftsman’s skill meets with general acceptance.”[4]

Law practice is like this too. Lawyers learn the traditions and craft of letters, motions and memoranda, briefs, discovery documents, contracts, wills, trusts, legal codes, oral arguments, registration statements for the sale of securities, bits and scraps of official legal counsel, all the while applying what the late legal scholar, Frederick Schauer, has called distinctive “techniques of reasoning.”[5] These all have a shape and a form that must not deviate from the just-so formalities that have always made such artifacts what they are.

In constitutional law, traditions are made up of enduring political practices which are given presumptive authority as determinants of the law of the Constitution. Endurance is itself made up of the age of a practice, its longevity, and the density of its adoption across the nation. Traditions are ongoing sets of arguments representing the views of those situated within these practices, developing over time, concerning excellence in it. And what I have before called traditionalism in constitutional law gives primacy to enduring political practices for several reasons.

First, because constitutional justice—the justice referred to in the Preamble of the Constitution—is in part a collection of goods internal to the enduring practices that shape our constitutional law, and not merely the external result of those practices. Constitutional justice is often disclosed to us through lives of political practice, and in the social and political institutions that structure those practices. There are many features of constitutional justice that cannot be accessed or specified apart from the practices that determine our constitutional law. The complex of rules determining, for example, the just use of deadly self-defensive force with a firearm, over time and geographic space, or the laws and liberties that shape the proper exercise of legislative prayer, or the regulation of signage in the physical spaces where people live and work together—these are the traditions within which people acquire certain political excellences, or virtues, and through which those virtues are manifested in community.

This is not to say that constitutional justice is a matter of popular referendum or of mindless, repetitive behavior. It is not. But it is also not a matter of abstract thinking alone. Traditionalists in constitutional law believe that thinking and doing should be united. Thinking well about the worth of a political practice in constitutional law is bound up with engaging in the practice of constitutional government. And if thinking about the worth of the practice cannot be extricated from the practice itself, then getting a true grasp on the world depends upon our doing things in it—regulating behavior, governing, and participating politically—and not only thinking about the things that we or others do. Without that union, we fail to account for embodiment and purposiveness, for those features of actual thinkers who are always in particular situations.

Second, “We the People” are sovereign in our polity. The people are supposed to be, as the philosopher Matthew Crawford once put it, “masters of their own stuff.”[6] Shepherds and custodians of their own government, seeking political excellence as they see it. Why, then, do increasing numbers of Americans feel alienated and disaffected from their institutions of government and their Constitution? How is it that the deformation of our politics has made Americans particularly skeptical about their own Constitution and the possibility of excellence in constitutional governance?

The problem involves a central feature of republican agency: the people mature in their constitutional excellence through the experience of their practices, and they derive cognition of excellence from sources other than abstracted, universal, reflective reason. When constitutional theorists and judges refuse to incorporate or account for the people’s practices, they strip the people of that agency. They prop themselves up as the constitutional “scientific management” over the menial workers, as the meaning of constitutional work becomes more remote from the worker who does it. The people are in consequence alienated from their Constitution. They feel no affection for it. They come not to love it.

III. Tradition’s Worth: Theology & Constitutional Law Compared

But why? What is the value or the worth of tradition? I propose, in the spirit of this conference and yet with no small degree of trepidation, to reflect on this problem comparatively—in Christian theology and constitutional law.

Two rather sizable cautions are in order. First, I am not a theologian. There are theologians with us today, and I will do my best not to induce the excessive raising of their eyebrows. But I may not succeed, and this is a far more tentative and exploratory portion of my lecture. Second, the analogy between Christian theology and constitutional law will be highly imperfect. It will have limits. While both Christian and constitutional texts are venerable, and even venerated, Christian Scripture is meant to be prayed and believed. American Scripture, as the historian Pauline Maier once called the Declaration of Independence, is not meant to be prayed at all.[7] If it is meant to be believed, the beliefs are of a different order than the truths of Christianity. Yet with the decline of belief in the authority of Christian Scripture, secular scripture filled a void. For some, the Ten Commandments of the Bill of Rights may even substitute for the Ten Commandments of the Decalogue. A polity with no national church will find its civil religion somewhere.

Still, drawing on, yet disagreeing with, some observations by the Christian historian, Jaroslav Pelikan,[8] I want first to make the analogy. You may then apprise me of its infelicity. I am not the first to notice it. In 1959, Edward Corwin, one time McCormick Professor of Jurisprudence at Princeton, fired off this broadside: “The Reformation superseded an infallible Pope with an infallible Bible; the American Revolution replaced the sway of a king with that of a document.”[9] I hope to do a little bit better than that.

In both Christian theology and American constitutionalism, a communal tradition of belief and practice precedes a foundational, ancient, and, in some sense, inspired text. The community of Christians believed in Jesus Christ and practiced accordingly. We the People believed in and practiced certain arts of good government. In time, membership in the community was partly constituted by the text. The text was incorporated into the tradition. The Scriptures alone did not bring the Christian tradition into being; the tradition, in the Church, is the interpretive key to the Scriptures. The constitutional text did not bring the American people into being. We the People came before the Constitution, and we ordained and established it presupposing a tradition of excellence in government—a constitution in Aristotle’s sense, a polity or regime—that is the text’s interpretive key.

The text’s authoritative status is partly grounded on the assumption that the tradition of the text’s understanding may be applied by future practitioners to the considerably changed circumstances of later times, many of which the writers who originally wrote the document could not themselves envision. Enduring practices disclose the law and doctrine of the document and glue together the consecutive generations of the respective communities. The text itself elicits painstaking, highly elaborate, often byzantine interpretation and reinterpretation. But it does not specify how its meaning or law must be derived. A church council, or Roman Rota, or Sanhedrin, or Supreme Court, submits itself to this ancient authority to unravel the text’s meaning and law today.

These efforts result in doctrine which include techniques for coping with inner contradictions and change within a supposedly homogeneous body of learning. Indeed, it is to the development of doctrine, far more than to formal amendment, that the community looks for guidance as to change that nevertheless is supposed to preserve continuity.

We might ask several questions at this point. One is explanatory. How do we account for these similarities? Have constitutionalists consciously adopted the techniques that Christian expositors had used in previous centuries? Or have interpreters in these different spheres independently arrived at the same kinds of questions and techniques?

A second question might concern meaning. How is deriving meaning in this way possible? We say of some passage, a recondite parable in the Gospel of Matthew, or a difficult tract of St. Paul’s Letter to the Romans, or the Fourteenth Amendment’s Due Process Clause: “The people who wrote these words never imagined that they meant X, and the uninitiated reader today would be startled to learn that they mean X; and yet still, the passage means X.” But what does it mean to say that the text means X in those circumstances?

A third question is anthropological. What sort of human need does the drive to rely on tradition respond to? We need not do things in this fashion. Human beings could live their lives in a resolutely forward-looking, pragmatic way. Some constitutional theorists have even recommended that course.[10] But for some reason, Christians and citizens of the American constitutional republic have chosen another path: we live not (or not only) on the basis of what can be, but instead bonding ourselves to what has been. How do we make sense of this compulsive need to cherish the reconstructed past?

One of this trio only will be enough for today. Exegetical commonalities and the meaning of meaning, I will leave to the side. But I have something to say about people, and why they seem ineffably drawn to tradition.

One answer might be called the response from utility. Tradition serves our interests and needs because, through a process of the survival of the fittest, and in the sifting of “many minds,” and in the refining fires of the “test of time,” the best ideas and practices are the ones that win out or last. The value of tradition is that it cautions us to be epistemically humble about our present capacities. It punctures the pretensions of an overconfident rationalism to see here and now what is best for us.

A second answer concerns identity. We value Christian tradition and constitutional tradition because it is ours, because it is what constitutes us as individuals and communities. Tradition endows us with a stable sense of ourselves and this is necessary for us, psychologically and culturally. Without our traditions we are nobody, and we are nowhere. Our traditions give us existence, an existence we lose if we depart from them, at least too dramatically.

Here is a third answer that incorporates the other two while adding something of its own: the response from excellence. Traditions are the way human beings manifest an important part of what is excellent about us. This is, as far as I can make out, what those who find traditions self-evidently, magnetically compelling—in cuisine, architecture, sports, poetry, music, writing and the many uses of language, university life and learning, law, and, perhaps in part, Christianity—have in mind and are ineffably drawn toward. They are looking for a union with and a continuity of their own practices with something more than, or greater than, their individual lives, choices, and achievements. With something lasting and true.

In the Christian tradition, they are looking for the Logos. For the peace of God that surpasses all understanding. St. Paul tells us in the First Letter to the Corinthians: “that which I received from the Lord I passed on to you,” and he enjoins us in the Second Letter to Timothy to “guard the good deposit entrusted to you, guard it with the help of the Holy Spirit who lives in us.”[11] In the 5^th century, Pope Leo I put it this way: “A man who has not the most elementary understanding even of the creed itself can have learned nothing from the sacred texts of the New and Old Testaments . . . At least he should have listened carefully and accepted the common and undivided creed by which the whole body of the faithful confess.”[12] The Emperor Justinian, about a century later, said this: “This is the sound tradition that we preserve, which we have received from the holy fathers . . . This we would take as our companion during our life that we might be made citizens [of heaven].”[13] Or here, more than a millennium later, from Pope Paul VI’s Dogmatic Constitution, “Dei Verbum”: “Sacred tradition and Sacred Scripture form one sacred deposit of the word of God, committed to the Church. Holding fast to this deposit the entire holy people united with their shepherds remain always steadfast in the teaching of the Apostles, in the common life, in the breaking of the bread and in prayers, so that holding to, practicing, and professing the heritage of the faith, it becomes on the part of the bishops and faithful a single common effort.”[14]

What does tradition offer? Something to render a person’s own existence coherent and continuous with the lives of admired progenitors and hoped for progeny—to live, as Edmund Burke put it, in the presence of “canonised forefathers” and to walk amid “the gallery of portraits” of “illustrating ancestors,” but also, I would add, to take one’s own place in that mighty portico in the view of those that are to walk in it afterward.[15] True, traditions are useful to us and constitutive of our identity. But at their best, they are more than that. The notion of human excellence depends upon transcendent concepts of valuation that extend in the before- and after-time of a person’s own life.

Human beings value what they do on the generally tacit premise that human excellence existed before they were born and will exist long after they die. Without that assumption, they would think of achievement in human affairs very differently than they actually do, if they thought of it at all. For the “standards of achievement,” as Alasdair MacIntyre once put it, “within any craft . . . are justified historically,” and “what are actually produced as the best judgments or actions or objects so far are judged so because they stand in some determinate relationship” to the finally perfected work.[16]

I believe that this answer from human excellence also can explain what is now occurring in the invocation of tradition as a lingua franca in American constitutional law. Even as the very concept of constitutionalism is inherently preservative and custodial, connoting that which is legally essential and enduring, treatments of the meaning and legal content of the Constitution relentlessly slight the gravitational attractions of tradition. The notion of doing constitutional law well by doing what has been done before is not rejected; it is usually not thought of. But if one looks only at the changes and disruptions in our constitutional order, the result will be a failure to do justice to that order, which also tells a tale of tradition.

Note, again, an analogy that we might run backward to theology. Irenaeus and Origen in the second century AD appealed to the authority of the people as arbiters of Christian doctrine.[17] “We the People” as the foundation of the constitutional order finds its parallel in the theological notion of the sensus fidelium, which, as Cardinal Newman put it, testifies to the apostolic tradition, and affirms “the role of the laity as bearers of authentic Catholic tradition.”[18] Both domains have also generated a thick scholarly incrustation that has created a great escarpment between the realms of the academy and those of common practice. The result of this “academification” is the emergence of two normative systems: one contained in the tradition; the other found in the creeds—theological and constitutional—of the professors. But not of the Church, and not of the People.

IV. Tradition & Change

A final matter: what about change? What about bad traditions? A common criticism of traditionalism, in constitutional law and in general, is that, as Chief Justice Roberts recently put it, it traps what exists “in amber,” or that it is brittle and incapable of development.[19] We want growth, to be sure, but of the right kind. We want our children to grow strong and well. But cancers grow, too.

It is certainly true that not all traditions are worth preserving. Slavery might be described as an enduring practice in this country. Segregation of the races in railway cars and schools might as well. Some of these practices were expressly supported by the Court on the basis that they comported with the traditions of the people. We have come to see that these practices should be rejected. And we have rightly done so by formal amendment or other mechanism of change. Does this mean that our traditions must fail us?

I would not say so. What it shows is that we are fallible, and that we should therefore expect some fallibility in our traditions of constitutional law. And not the kind of fallibility that can be interpreted away through one more clever argument about what the text really means, or what a disembodied principle that has to this point been misunderstood actually demands. To see the fallibility of some of our traditions is not to repudiate all of them, and it is a mistake, or else a piece of cynicism, to take our worst moments as a kind of warped, house-of-mirrors reflection of our constitutional polity. Indeed, the capacity to see the fallibility in some of our traditions presupposes that we understand what they are. Especially if the people are to cast off or abandon a tradition, they will not know why they do so unless they first have understood it. Practice and cognition go together here, too.

Here, again, we might recur to a theological analogue. We will be hearing from distinguished guests today about Cardinal Newman’s 7 tests for, or as he later called them, notes on, distinguishing authentic developments of doctrine from corruptions, in his “Essay on the Development of Christian Doctrine.” In fact, Newman several times expressly analogizes between theology and jurisprudence.

In my estimation, Newman’s notes are valuable, but taken alone, they are more in the nature of rules of thumb, or what he later called “tokens,” than rules. Consider, for example, the second note: preservation of principle. Newman writes that because “doctrines expand variously according to the mind, individual or social, into which they are received . . . the life of doctrines may be said to consist in the law or principle which they embody.” Newman may be right about this. Probably he is.

But there is a difficulty that will confront anyone who tries to use Newman’s notes as rules for how tradition should, or should not, develop. The notes are conclusions about what to argue about rather than rules that could help resolve such arguments. Preservation of principle is a familiar concept in constitutional law, but constitutional lawyers will understand what asserting it can and cannot do. For any live constitutional dispute—affirmative action, sexual liberty, federalism, religious liberty, and so on—it is of only modest help to say that we should adopt an interpretation that is continuous with principles discernible in the text and the tradition. Most know that already. Most take it for granted. The dispute will be about which among the clashing principles extractable from the text and tradition best succeeds in maintaining such continuity.

Can we nevertheless mine Cardinal Newman’s work for some assistance? I believe so, if we look to some of his more political and legal or constitutional writing. He takes a view of development as to these questions that highlights the centrality of enduring political practice.

Before getting to the notes, Newman describes what he calls “political change,” of which he thinks “changes in the Constitution” a variety. In these, “often the intellectual process is detached from the practical, and posterior to it . . . [A] new theory is needed for the constitutional lawyer, in order to reconcile the existing political state of things with the just claims of” the state.[20] For Newman, the pressure for legal change comes from practice first, and only later is the ratiocinated theory devised to account for it.

Legal change Newman also describes as “historical change, . . . the gradual formation of opinion concerning persons, facts, and events . . . Some authoritative accounts die away; others gain a footing, and are ultimately received as truths. Courts of law, Parliamentary proceedings . . . are in this day the instruments of such development. Accordingly, the Poet makes Truth the daughter of Time.”[21] Again, we see Newman—here quoting Francis Bacon, the outstanding 16^th century English lawyer, judge, and scholar—discussing legal change as both motivating and motivated by custom and popular acceptance or ratification.

But Newman’s most acute observations on law appear in a series of eight letters, written under the pseudonym “Catholicus,” during the Crimean War, concerning English constitutionalism. These are collected under the title, “Who Is To Blame?”

Here is a bit from the third letter: “It is, then, no paradox to say that every State has in some sense a Constitution; that is, a set of traditions, depending, not on formal enactment, but on national acceptance, in one way or other restrictive of the ruler’s power; though in one country more scientifically developed than another, or more distinctly recognized, or more skilfully and fully adapted to their end.”[22]

Or this, from the seventh letter:

Newman’s conception of legal development depends upon his view that within the ambit of reason permitted by the natural law, the political and historical problems of constitutionalism lie within the space of what St. Thomas Aquinas called determinatio—the specification or disclosure of the political ends of justice, pursued through the enduring customs and practices of the people.[24] That is, through what in our constitutional law is tradition.

*                 *                 *

In the last of these letters, Newman draws a parallel between constitutions of healthy physical bodies and healthy polities. I take some small inspiration that his central metaphor is, to end where I began, about food: “as in our own persons, one by one, we consult for our particular constitution of mind and body, and avoid efforts and aims, modes of exercise and diet, which are unsuitable to it, so in like manner those who appreciate the British Constitution aright will show their satisfaction at what it does well, resignation as to what it cannot do, and prudence in steering clear of those problems which are difficult or dangerous in respect to it.”[25]

There are those who might say that for us, in America today, this is inapt and ill-suited. After all, we have a written document. We are exceptional in our constitutionalism, having made the world anew.

But Newman had the greater insight. Constitutions are meant to sustain. They are meant to endure. They are meant to assist human bodies and their bodies politic in becoming as excellent as they can be. It is in the very idea of tradition, whether of life or of law, that we learn how to be good.

* St. John Henry Newman Professor of Law and Co-Director, Center for Law and the Human Person at Columbus School of Law. This lecture was delivered as a Chair Lecture at a conference on “St. John Henry Newman, Tradition, and Law,” hosted by the Center for Law & the Human Person at The Catholic University of America, Columbus School of Law, on October 18, 2024. With gratitude to my friends, Professors Joel Alicea, Elizabeth Kirk, Michael Moreland, Mark Movsesian, Jeffrey Pojanowski, and Chad Squitieri, for penetrating criticisms and advice. Those portions with which they still may not agree, they nevertheless greatly improved.

[1] William Ernest Henley, Invictus, in Poems 83–84 (1920), https://www.poetryfoundation.org/poems/51642/invictus [https://perma.cc/6AF9-4L4L].

[2] Becky Cooper, Why Is Chartreuse So Hard to Find Right Now? Ask the Monks Who Make It, N.Y. Times (Apr. 14, 2023), https://www.nytimes.com/2023/04/14/dining/drinks/chartreuse-shortage.html [https://perma.cc/C9YT-9WF].

[3] Jean Anthelme Brillat-Savarin, The Physiology of Taste 25 (1825).

[4] Learned Hand, The Nature of the Judicial Process by Benjamin N. Cardozo, 35 Harv. L. Rev. 479, 479 (1922) (reviewing the same).

[5] Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning, at xi (2009).

[6] Matthew B. Crawford, Shopclass as Soulcraft: An Inquiry Into the Value of Work 54 (2009).

[7] See Pauline Maier, American Scripture: Making the Declaration of Independence (1997).

[8] See Jaroslav Pelikan, The Vindication of Tradition (1984); Jaroslav Pelikan, Interpreting the Bible and the Constitution (2004).

[9] Edward Corwin, The ‘Higher Law’ Background of American Constitutional Law 1 (1955).

[10] See, e.g., Richard Posner, Law, Pragmatism, and Democracy (2003).

[11] 1 Corinthians 15:3; 2 Timothy 1:15.

[12] Letter from Pope Leo I to Flavian of Constantinople, Tome of Pope Leo I (449), https://www.newadvent.org/fathers/3604028.htm [https://perma.cc/9RSD-WM4U].

[13] Justinian, Edict on the True Faith, Volume 3 (551).

[14] Pope Paul VI, Dogmatic Constitution on Divine Revelation Dei Verbum, art. 10 (Nov. 18, 1965), https://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_const_19651118_dei-verbum_en.html [https://perma.cc/8JJH-ABNF].

[15] Edmund Burke, Reflections on the Revolution in France (1790).

[16] Alasdair MacIntyre, Three Rival Versions of Moral Inquiry: Encyclopaedia, Genealogy, and Tradition 64 (1988).

[17] Pelikan, supra note 8 at 25–26 (quoting Origen and Irenaeus).

[18] John Henry Newman, On Consulting the Faithful in Matters of Doctrine (1858).

[19] United States v. Rahimi, 144 S. Ct. 1889 (2024).

[20] Newman, supra note 18 at 34–36.

[21] Id. at 38. Newman quotes “Crabbe’s Tales,” a series of poems by the Reverend George Crabbe about late eighteenth and early nineteenth century provincial life in England.

[22]  Letter 3 from John Henry Newman to the Editor of the Catholic Standard, Constitutional Principles and Their Varieties, https://www.newmanreader.org/works/arguments/blame/letter3.html [https://perma.cc/MC4X-RNRP].

[23] Letter 7 from John Henry Newman to the Editor of the Catholic Standard,  English Jealousy of Law Courts, https://www.newmanreader.org/works/arguments/blame/letter7.html [https://perma.cc/V3BL-TYX6].

[24] For acute remarks along these lines, see Adrian Vermeule, The Chief Justice and the Catholic Bishops, The New Digest (June 25, 2024), https://thenewdigest.substack.com/p/the-chief-justice-and-the-catholic [https://perma.cc/5CR3-HYSD].

[25] Letter 8 from John Henry Newman to the Editor of the Catholic Standard, English Jealousy of Church and Army, https://www.newmanreader.org/works/arguments/blame/letter8.html [https://perma.cc/YG3C-V4C9].

The Presidential Immunity Decision – Robert Delahunty & John Yoo

Posted by JLPP on Oct 7, 2024 in Per Curiam

The Presidential Immunity Decision

Robert Delahunty & John Yoo *

In Trump v. United States,[1] the Supreme Court issued one of the most resounding defenses of executive power in its history.  It held that former Presidents enjoy absolute immunity from federal prosecution for actions within their core constitutional powers.  Writing for a 6-3 majority, Chief Justice John Roberts claimed the decision had little to do with the charges against Donald Trump for the January 6, 2021 Capitol attack and everything to do with the proper working of the executive branch.  Immunity may shield a future President who commits criminal acts, but it also provides a President with “the maximum ability to deal fearlessly and impartially with” the duties of his office.[2]

The opinion had barely issued when Trump’s critics greeted it as holding that the President was “above the law,” and that immunity posed a grave threat to “our democracy.”[3]  Yet although the decision was difficult, it followed the Court’s precedents both on official immunity and executive authority.

While the decision represented a signal victory for Trump in his fight with special counsel Jack Smith, it was rooted in “enduring principles” that transcend the political passions of the moment.  The Court, Roberts said, “cannot afford to fixate exclusively, or even primarily, on present exigencies,” but was required to consider the decision’s “profound consequences for the separation of powers and for the future of our Republic.”  By making it much less likely that outgoing Presidents will face criminal charges brought by their successors, the Court hopes to spare the Republic from the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge,” in George Washington’s words.[4]  The Court seeks to forestall recurring cycles of partisan revenge in which criminal justice becomes a weapon against political rivals.

Trump also reveals the Court’s role in settling political controversy.  In cases such as abortion (Dobbs)[5] and the Second Amendment (Bruen),[6] the Justices have adopted a broadly originalist approach that seeks to adopt the understandings of those who ratified the constitutional text.  But in the most important decision on executive power of the last half century, the Court rejected the strong originalist evidence against presidential immunity.  Instead, it sought to build consensus, and claim legitimacy, by relying on precedent and reaching broad inferences from the nature of executive power within the modern presidency.  While reflecting an effort to find common ground among Justices with widely different jurisprudential commitments, the reliance on precedent and inference alone lacks the stronger foundations that a deeper engagement with constitutional text and history would yield.

The Holding

Trump brought to the Court the Justice Department’s investigation of the January 6, 2021 attack on the Capitol.  In his indictment, special counsel Jack Smith did not allege that Donald Trump had direct involvement with the attack itself.  Instead, it focused on Trump’s efforts to encourage state legislators and election officials to question the validity of the November 2020 election, to have the Justice Department investigate the vote, and then to organize supporters to submit false electoral votes to Congress, where Vice President Mike Pence would count them for the Republican ticket.  DOJ charged Trump with committing fraud against the United States, obstructing a congressional proceeding, and suppressing the voting rights of everyone who cast ballots for President in the election.  The indictment involved a mix of official and non-official presidential conduct, from Trump’s directives to the Justice Department and discussions with the Vice President to his phone calls as a candidate for re-election.

Trump held that a President could not be prosecuted after he left office for official actions within his core constitutional powers.  Chief Justice Roberts’ reasoning ran contrary to the textual and historical evidence at hand, which Justice Sotomayor’s dissent briefly surveyed.  The constitutional text does not explicitly provide for executive (or judicial) immunity even as it specifically grants Members of Congress immunity in the Speech and Debate Clause.  In Federalist No. 69, Hamilton explained that the Constitution would subject abusive presidents to impeachment while in office and prosecution after they left.[7] Hamilton emphasized that impeachment was not a criminal proceeding, but only one to remove an executive officer guilty of “treason, bribery, and other high crimes and misdemeanors from office.” Unlike the practice in England, impeachment would not result in a prison sentence, fine, or any other punishment—those sanctions would be up to the criminal justice system.

The difference between impeachment and a criminal trial explains why the Constitution appointed the Senate the trier of impeachments, rather than the federal courts: Judges might have to try the president after his removal for the very crimes for which he was impeached. Hamilton wrote: “The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender.” Rather, “After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.”  If the judiciary were the trier both in the impeachment case and any later criminal case based on the same charges, then an impeachment conviction would essentially decide the second criminal trial in advance. “The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future office,” Hamilton wrote.  It is difficult, if not impossible, to find evidence from the founding period that overcomes Hamilton’s clear statements, which he made to defend the proposed Constitution during the fight over ratification.

Instead of following its usual originalist instincts, the Court instead appealed to structural separation of powers principles and its own precedents on official immunity.  Chief Justice Roberts borrowed heavily from the logic of the 1982 decision in Nixon v.  Fitzgerald,[8] which held the President absolutely immune from civil suits for official acts.  Roberts particularly emphasized Fitzgerald’s consideration of history and public policy.  The analysis started by distinguishing (as the Court has done for over half a century) between the two main sources of presidential authority: the Constitution itself, and Acts of Congress.

According to the Court, the Constitution vests certain “core” powers exclusively in the President, such as the powers to command the military, to pardon, to veto proposed legislation, to appoint and remove principal officers of the United States, or to recognize foreign governments. When Presidents exercise these core powers, the Court held, they must enjoy absolute immunity from criminal prosecution.

Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his ‘conclusive and preclusive’ constitutional authority.  It follows that an Act of Congress – either a specific one targeted at the President or a generally applicable one–may not criminalize the President’s actions within his exclusive constitutional power.  Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. [9]

When a President’s actions rest at least partly on congressional authorization, the Court followed the functionalist analysis employed by Nixon v. Fitzgerald.  Fitzgerald held that a former President enjoyed absolute immunity from civil suits seeking damages for his official acts.  Emphasizing the uniqueness of the presidency, the Court sought to ward off the harm that would be done to a President’s ability to perform his constitutional functions were he exposed to damages liability for official acts.  “We consider this immunity a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history,” the Fitzgerald Court wrote.[10] “Because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.”  Fitzgerald also emphasized the highly discretionary and sensitive nature of presidential decision-making.  On issues of the “most intense feelings,”[11] the Court observed, “there exists the greatest public interest in providing an official ‘the maximum ability to deal fearlessly and impartially with’ the duties of his office.”[12] The Court found this interest “compelling” because the President “must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system.”

Closely following Fitzgerald, Trump extended Fitzgerald from civil to criminal liability.  This is a logical move in that the criminal prosecution of a President for official conduct would raise the stakes even higher and would constrain the exercise of presidential discretion even further.  Chief Justice Roberts observed that “[p]otential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.”

The Court, however, did not extend absolute immunity to all official presidential actions: some official presidential actions exercised powers shared with Congress, and hence were non-exclusive or noncore.   When the exercise of noncore powers is at issue, immunity is only presumptively absolute.  Criminal law seeks to redress an injury to the public as a whole, not just a wrong to an individual.  Therefore the need for freedom and fearlessness in presidential decision-making must be balanced against the compelling interest in fair, effective law enforcement.  Hence in some cases, the President’s acts “within the outer perimeter of [the President’s] official responsibility” might not be shielded by an absolute immunity.  “At a minimum, the President must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”[13]  It will surely be very difficult for prosecutors to meet that standard.

The Court did not examine which types of immunity applied to the charges in the Trump indictment.  It did, however, rule on some of Trump’s conduct. The majority ruled that charges based on Trump’s meetings with Justice Department officials were absolutely immune.  They involved the core presidential function of prosecuting alleged federal crimes.  Trump’s threat to remove the Acting Attorney General also enjoyed absolute immunity because the President’s core power to remove executive officers “may not be regulated by Congress or reviewed by the courts.”  Trump’s effort to persuade Vice-President Pence to reject electoral ballots was deemed “official” and so “at least” presumptively immune.  It was accordingly “the Government’s burden to rebut the presumption of immunity” for acts in this category.   Finally, the indictment based some of its charges on interactions between Trump and state legislative and election officials, private persons, and the public at large.  Here, the Court sensibly handed off to the lower courts to make the fact-sensitive determinations that would be needed to determine whether the actions were official or private.

A final category covers Trump’s conduct in connection with the events of January 6^th itself, primarily his communications with the public through Tweets and a public address.  The Court indicated that a broad swathe of presidential communications with the public could be considered “official.”  On the other hand, when the President speaks in “an unofficial capacity – perhaps as a candidate for office or party leader,” his conduct would be personal or private.  Drawing lines here, the Court said, “must be fact specific and may prove to be challenging.”

Objections to the holding

Trump’s reliance on Fitzgerald undercuts the rhetoric that the President is “above the law.”[14]  Fitzgerald shows that the President already held immunity from civil lawsuits for official acts.  Fitzgerald also reminds us that if the President is absolutely immune from certain legal sanctions, so are prosecutors and judges.  Trump, like Fitzgerald, makes clear that the President enjoys no immunity for private, unofficial acts.   And while absolute immunity from civil liability does not entail immunity from criminal liability, the reasoning for absolute presidential immunity is strikingly similar in both cases.

Fitzgerald also does something to blunt (though it does not wholly answer) the complaint that the Court’s reasoning is neither textualist nor originalist.  Fitzgerald did not rely on any explicit textual provision, but rather on constitutional structure and functionalist considerations.  Fitzgerald had previously conceded that “a specific textual basis has not been considered a prerequisite to the recognition of immunity.” What sustains presidential immunity are, primarily, the constitutional nature of the Presidency, the need for its occupants to perform their duties effectively and exercise their responsibilities fairly, and the risk that legal liability will compromise their discretion.

The danger that a President will be constantly looking over his shoulder when making critical decisions is very real, perhaps more than ever in an age of extreme political antagonism and polarization.   Political thinkers beginning with Machiavelli have pointed out that executive power, by its very nature, has a problematic relationship with strict legality.  Can a local magistrate order a private house to be destroyed because it stands in the way of a fire that will spread to other buildings?  Can a retreating general order the destruction of a privately owned oil refinery on American soil to prevent it from falling into the hands of an enemy?  May the President order the military to furnish weaponry and intelligence information to a foreign government to enable it to shoot down civil aircraft suspected of engaging in drug trafficking?  Plainly, intentionally destroying private property would be illegal or even criminal in ordinary circumstances.  But the compelling “necessity” of destroying the house or refinery or civil aircraft for the sake of the greater public good should give the executive a defense to a civil or criminal suit.

Presidents must act in situations where the legality of their choices can reasonably be questioned.  Take President Obama’s September 2011 decision to order the launching of drones that targeted and killed Anwar al-Awlaki, an American citizen of Yemeni origin who was supporting al Qaeda. Al-Awlaki was killed by a Central Intelligence Agency drone in Yemen.  Reports differ, but at least three others (and perhaps as many as seven) were killed in the attack, among them Samir Khan, another American citizen.[15]  It is conceivable that after the end of President Obama’s term, he might have faced a criminal prosecution at the hands of a politically hostile successor over the killing of al-Awlaki or other American citizens.

Trump properly forbids such a prosecution.  As President, Obama was charged with the responsibility for directing the operations of the military and intelligence agencies, of protecting the United States from terrorist threats, and of safeguarding the national security.  He was also bound not to deprive American citizens of their constitutional right to life and liberty without due process of law.  He should have been free to resolve any tension between these constitutional obligations without fear of a potential criminal prosecution after his term.  If his decision had to be made under the shadow of future prosecution, it would have been appreciably harder, if not impossible, to have made it purely based on the public interest.

There is the obvious response that immunizing presidential decisions creates an unacceptable risk of abuse.  If we wish to hold Obama immune from prosecution in the al-Awlaki case, would we want to hold former President Nixon immune from the criminal activities authorized by his White House staff against his political opponents in the name of national security?   If the risk of presidential abuse is considered too great, however, the American Presidency would be a different institution from the one this nation has long had.  Trump is not the first, and he will not be the last, American President to be accused of criminal, albeit official, acts.  A Supreme Court decision holding the President potentially liable for crimes of an “official” nature would weaken the institutional presidency drastically.

Furthermore, there are safeguards against abusive, criminally-minded Presidents.  First and foremost, of course, is the threat of impeachment for having committed high crimes or misdemeanors.  Then there is the possibility of a congressional investigation and oversight.  Then there is journalism and public opinion.  A first term President’s desire to be re-elected, or a second term President’s wish to leave a legacy unmarred by crime, will also deter criminal conduct.

Biden’s reaction and Smith’s prosecution

President Biden had a sharply critical view of the Court’s work.  Calling Trump v. United States a “terrible disservice” to the country, he predicted that the decision “certainly means that there are virtually no limits on what a president can do.”[16] Without the courts to hear the prosecutions, he concluded, “the American people must decide whether Donald Trump’s assault on our democracy on Jan. 6th makes him unfit for public office in the highest office in the land. The American people must decide if Trump’s embrace of violence, to preserve his power, is acceptable.”

Biden only dimly understood the consequences of prosecuting Trump. Crossing the constitutional Rubicon of using the criminal justice system to attack a former president and the leading opposition candidate for the office not only wasted a year of the nation’s life, but it also forced the Supreme Court to intervene to shut down this misuse of federal prosecutorial power.  Trump reflects the Court’s rejection of lawfare, starting most immediately with special counsel Jack Smith.

Earlier last Term, the Court in Fischer v. United States eviscerated the main tool in the Biden Justice Department’s prosecution of the January 6 rioters: the 2002 Sarbanes-Oxley (SOX) law’s prohibition on tampering with documents needed for an official investigation.[17] Even though the January 6 rioters had nothing to do with this kind of evidence or proceeding, DOJ misread SOX to allow it to punish anyone who interfered with the congressional meeting to count the 2020 electoral votes. Once the Court held this law not to apply to January 6, the remaining charges against Trump for fraud and depriving Americans of their voting rights failed. The Court has already held that federal fraud involves only efforts to acquire money or property, not the pursuit of political interests. Regardless of how one views Trump’s conduct on January 6^th, it does not involve financial benefits. And Smith’s notion that Trump’s effort to change the electoral-vote count somehow deprived all Americans simultaneously of their voting rights is so overbroad that it invites yet another embarrassing defeat at the Supreme Court.

Add the Court’s immunity decision to these weaknesses, and you have a vote of no confidence in President Biden and the Justice Department. The Justices’ disdain for the special counsel was so open and notorious that Justice Clarence Thomas even called on judges to examine whether the special counsel’s appointment violated federal employment law and the Constitution.  A Florida federal district judge took Justice Thomas up on his challenge and subsequently found the special counsel to be unconstitutional. [18] Smith led an investigation that produced no new facts and charged Trump with such tenuous readings of federal criminal law that the Supreme Court quickly and easily doomed the case on legal grounds without a single fact yet presented to a jury.

The big picture

A larger consequence of the Trump case involves its impact on executive power under the Constitution. The Court majority saw as its grander purpose the protection of the office of the presidency from a Congress and a partisan successor who would use the law to undermine the institution. The Founders included a president in the Constitution not just to execute the laws (the ground on which the lower courts had held Trump had no immunity), but also to respond to emergencies, crises, and war. In contrast to Congress, the president’s powers are left undefined. Article II of the Constitution vests “the executive power” in him because the written law cannot foresee every future circumstance that might require action on behalf of the nation. Therefore, the Framers invested the president with “energy” and expected a single man, rather than a committee, to act with decision, swiftness, and sometimes even secrecy, to protect the national security and ensure domestic tranquility.[19]

As the Roberts Court recognized, binding down the president with Congress’s written laws would allow the legislature to intrude upon the proper scope of the executive’s authority. But it would do much worse: Prosecution could deprive presidents of the very essence of what it is to be an executive by depriving them of that energy and independence needed to take immediate action. That independence and energy does not just accrue to the president’s benefit. As the Court and theorists have long recognized, the separation of powers creates independent branches of government to protect liberty; by preventing any one branch from becoming all-powerful, each of the three can keep a constant watch of the others to prevent them from intruding on individual freedom.

Justice Sotomayor has received much attention for the closing line of her opinion: “With fear for our democracy, I dissent.” The Constitution, however, creates a republic, not a democracy. Part of our republican design is to prevent the operation of a simple democracy where 50.1 percent of the population can set all policy at once. Our founders created a president, Congress, and Supreme Court to prevent a democracy from quickly controlling the government and imposing its will on the nation. Instead, as Trump reminds us, the separation of powers protects individual liberty by creating a presidency that must have independence from Congress in order to act swiftly, decisively, and with energy against threats to the nation’s security and at times against the will of the other branches.

Trump also should end the partisan, misguided efforts to use the criminal-justice system to eliminate viable presidential candidates. It protects the very characteristics of the presidency that make it executive in nature, which will enhance the separation of powers and the national security. And it will force the other branches of government and, ultimately, the electorate to take up their responsibility to check abuses of executive power. Viewed from this broader perspective, Trump falls within the broader effort of the Roberts Court to protect executive prerogatives while calling on Congress and the people to perform their constitutional responsibilities as well. Unfortunately, it took more than a year, after the Department of Justice crossed the Rubicon of prosecuting a former president and leading opposition candidate, for Biden to finally understand that the American people—and not prosecutors—must judge Trump for his involvement in January 6.

* Robert Delahunty is a Washington Fellow of the Claremont Center for the American Way of Life. John Yoo is a distinguished visiting professor in the School of Civic Leadership at the University of Texas at Austin, a law professor at the University of California at Berkeley, and a nonresident senior fellow at the American Enterprise Institute. They are the authors of The Politically Incorrect Guide to the Supreme Court (2023).

[1] 144 S.Ct. 2312 (2024).

[2] Id. at 2329 (quoting Ferri v. Ackerman, 444 U.S. 193, 203 (1979)).

[3] Id. at 2371–72 (Sotomayor, J., dissenting).

[4] Id. at 2347 (quoting 35 Writings of George Washington 226-27 (J. Fitzpatrick ed. 1940)).

[5] Dobbs v. Jackson Women’s Health Organization, 142 S.Ct 2228 (2022).

[6] New York Rifle & Pistol Ass’n v. Bruen, 142 S.Ct 2111 (2022).

[7] The Federalist No. 69 (Hamilton).

[8] 457 U.S. 731 (1982).

[9] Trump, 144 S.Ct at 2328.

[10] Fitzgerald, 457 U.S. at 749.

[11] Id. at 752 (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)).

[12] Id. at 752 (quoting Ferri, 444 U.S. at 203).

[13] Trump, 144 S,Ct at 2331 (quoting Fitzgerald, 457 U.S. at 754).

[14] Id. at 2345 (quoting various portions of Justice Jackson’s and Justice Sotomayor’s dissents in Trump).

[15] Karen DeYoung & Peter Finn, U.S. acknowledges killing of four U.S. citizens in counterterrorism operations, The Washington Post (May 22, 2013, 9:20 PM), https://www.washingtonpost.com/world/national-security/us-acknowledges-killing-of-four-us-citizens-in-counterterrorism-operations/2013/05/22/7a21cf84-c31d-11e2-8c3b-0b5e9247e8ca_story.html

[16] President Biden, Remarks on the Supreme Court’s Immunity Ruling (Jul. 1, 2024, 7:45 PM).

[17] 144 S.Ct. 2176 (2024).

[18] United States v. Trump, No. 23-80101-CR-CANNON, 2024 WL 3404555 (S.D. Fla. Jul. 15, 2024).

[19] Trump, 144 S.Ct. at 2331 (quoting The Federalist No. 70. (Hamilton)).

Keeping the Faith: How Recent RLUIPA Decisions Are Reshaping Religious Freedom for Incarcerated Individuals – Nick Reaves

Posted by JLPP on Sep 24, 2024 in Per Curiam

Keeping the Faith: How Recent RLUIPA Decisions Are Reshaping Religious Freedom for Incarcerated Individuals

By Nick Reaves*

Introduction

The freedom to practice one’s faith while incarcerated is on the upswing. One could even argue that the Supreme Court’s current interpretation of the legal standard set forth in the Religious Land Use and Institutionalized Persons Act (RLUIPA) is more protective of incarcerated individuals’ religious freedom than free exercise law has been at any other time in our Nation’s history. Nevertheless, experience shows that litigants challenging restrictions on religious exercise in prison continue to struggle to obtain even straightforward religious accommodations, often losing in administrative hearings and in the lower courts. Why? This Essay argues that a combination of factors—including ignorance of the law, skepticism of certain faith practices, and sometimes religious hostility—have prevented the Supreme Court’s robust protection of religious exercise behind bars from trickling down to lower courts and prison officials. This Essay highlights two areas in which lower courts and prison officials have repeatedly ignored or misunderstood Supreme Court precedent. It then marshals support from RLUIPA’s text and from Supreme Court precedent (including Ramirez v. Collier and Loper Bright v. Raimondo) to explain how these lower courts have erred and why precedent requires that they better protect religious freedom for incarcerated individuals. Finally, this Essay points out that the failure to heed the Supreme Court’s guidance in this area most significantly impacts religious minorities who—for structural reasons—already bear much of the burden from the denial of religious accommodations.

This Essay will thus proceed in three parts: Part I will give a brief overview of relevant Supreme Court precedent, Part II will address two specific areas in which lower courts continue to ignore or misunderstand Supreme Court precedent, and Part III will explain why these errors are particularly harmful to religious minorities.

I. In a hard break from Cutter v. Wilkinson, the Supreme Court has twice confirmed that RLUIPA’s strict scrutiny standard has teeth.

Thanks largely to recent Supreme Court precedent, incarcerated individuals seeking to practice their faith have stronger legal protections today than at any point in our Nation’s history. As explained below, however, these strengthened legal protections do not always translate into greater practical protection due to, among other things, prison officials’ ignorance of the state of the law, resistance to change, and both skepticism and outright hostility toward some incarcerated individuals’ religious exercise.

When the Supreme Court upheld the constitutionality of RLUIPA as applied to religious prisoners’ free exercise rights in Cutter v. Wilkinson, the Court suggested that lower courts should apply RLUIPA’s strict scrutiny standard with “due deference to prison administrators’ experience and expertise.”[1] While extratextual dicta, this language spawned considerable confusion in the lower courts and created an acknowledged circuit split over how this “deference” interacts with strict scrutiny.[2] Following Cutter, scholars noted that “strict scrutiny and deference to the government are in a sense opposites,” and that the Supreme Court’s guidance therefore threatened “incoherence.”[3] Lower courts too were unsure how to reconcile these contradictory commands, and the circuits split over “whether they should offer deference to prison officials or if they should take a ‘harder look’ at the explanations offered.”[4] As the First Circuit explained in Spratt, “[t]he level of deference to be accorded to prison administrators under RLUIPA remains an open question.”[5] This uncertainty lasted (officially) until 2015 when the Supreme Court decided Holt v. Hobbs.[6]

In Holt, the Supreme Court held that Arkansas’ Department of Corrections must allow a Muslim inmate to grow a half-inch beard in accordance with his faith. The Supreme Court noted that the lower courts had “thought that they were bound to defer to the [government’s] assertion that allowing petitioner to grow such a beard would undermine its interest in suppressing contraband.”[7] This, Holt confirmed, was wrong: “RLUIPA, like RFRA, ‘makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress.’”[8] Accordingly, prison officials are required “not merely to explain why [they] denied the exemption but to prove that denying the exemption is the least restrictive means of furthering a compelling governmental interest.”[9] Holt explained that prison officials deserve “respect” as “experts in running prisons,” but made clear “that respect does not justify the abdication of the responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard.”[10] When articulating this legal standard, the Holt majority never once suggested that “deference” was appropriate and conspicuously omitted any citation to Cutter’s troublesome dicta.[11] Holt thus clarified RLUIPA’s “expansive protection for religious liberty.”[12]

If that wasn’t enough, the Supreme Court offered further guidance just a few years later. In 2022, it granted review in Ramirez v. Collier and held that Texas likely violated RLUIPA when it barred an incarcerated individual’s pastor from praying with him and laying hands on him while he was being executed.[13] Ramirez further clarified RLUIPA’s legal standard in two respects. First, Ramirez held that the same burden-shifting framework used in other strict scrutiny contexts also applies to claims brought under RLUIPA. This means that once an incarcerated individual demonstrates a “substantial burden” on his or her sincere religious exercise, “the burden flips” and the government must “demonstrate[] that imposition of the burden on that person” is the least restrictive means of furthering a compelling governmental interest.[14] The Court also rejected the government’s attempt to shift the burden back to the incarcerated individual to identify less restrictive alternatives, reiterating that this “gets things backward” because “once a plaintiff has made out his initial case under RLUIPA, it is the government that must show its policy is the least restrictive means of furthering a compelling governmental interest.”[15]

Second, Ramirez clarified that this is not, as some courts continued to believe (citing Cutter’s dicta), a watered-down version of strict scrutiny. Rather, the same demanding test courts were already applying in other contexts applies in prisons too. For example, the Court explained that “[u]nder RLUIPA, the government cannot discharge this burden [of satisfying strict scrutiny] by pointing to ‘broadly formulated interests.’ It must instead ‘demonstrate that the compelling interest test is satisfied through application of the challenged law to the particular claimant whose sincere exercise of religion is being substantially burdened.’”[16]

Ramirez thus further confirmed that RLUIPA means what it says: Once a substantial burden on a sincere religious exercise is shown, prison officials cannot rely on speculation or “mere say-so” to defeat the claim.[17] Instead, they must come forward with actual evidence to satisfy strict scrutiny. And, as both Holt and Ramirez emphasized, this burden is especially heavy when other prison systems already offer comparable accommodations.[18]

II. Many prison officials and lower courts have failed to protect the religious exercise of incarcerated individuals despite clear Supreme Court precedent.

Two years after Ramirez, there are signs that lower courts have started to get the message and are applying RLUIPA consistent with its text.[19] Nevertheless, because the Supreme Court’s “approach to RLUIPA has changed significantly,” some pre-Holt precedents “are continuing to cause confusion in the district courts.”[20] There are two primary areas in which lower courts continue to misunderstand the law.

A. Improperly narrowing the breadth of religious practices protected by RLUIPA.

Some prison officials and lower courts narrowly interpret RLUIPA’s protections to only cover religious practices that they deem sufficiently important, central, or necessary to one’s faith.

In Davis v. Wigen, for example, prison officials (affirmed by the district court) prohibited an incarcerated individual from entering a religious marriage—which the prison conceded was a sincere religious exercise.[21] The prison argued that denying this sincere request for a religious accommodation was not a “substantial burden” under RLUIPA because the prison neither “compelled [plaintiffs] to stop engaging in religious conduct that their faith prescribed” nor “put them to the choice of either engaging in conduct that their faith prohibits or paying a heavy price.”[22] In other words, because plaintiffs’ faith did not mandate they marry, RLUIPA did not protect their religious exercise. But, limiting RLUIPA to only a subset of sincere religious practices (and requiring courts to assess which are covered and which are not) “places enormous pressure on courts to weigh in on religious questions which no civil court should answer. And for minority faith groups with moral frameworks that do not mandate or forbid (but merely encourage or discourage) particular religious practices, such judicial inquiries are even more entangling.”[23] Davis, unfortunately, is not an outlier—several courts have held that RLUIPA’s protections are limited to religious practices that are “central,” “fundamental” or “necessary” to one’s faith despite RLUIPA’s plain text.[24] And, unfortunately, this error persists today.[25]

In fact, Arkansas in Holt v. Hobbs made a similar argument, claiming that they had not substantially burdened Mr. Holt’s religious exercise because—even though he was completely denied the ability to exercise his religion by growing a beard—the prison allowed him to “exercise his religion in other ways, such as by praying on a prayer rug, maintaining the diet required by his faith, and observing religious holidays.”[26] The Supreme Court rejected this line of reasoning—explaining that RLUIPA’s ‘“substantial burden’ inquiry asks whether the government has substantially burdened religious exercise (here, the growing of a ½-inch beard), not whether the RLUIPA claimant is able to engage in other forms of religious exercise.”[27]

The Supreme Court’s approach in Holt is consistent with the text of RLUIPA, which defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”[28] Were that not enough, Congress included a rule of construction in RLUIPA requiring that “[t]his Chapter shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Chapter and the Constitution.”[29] Accordingly, RLUIPA’s plain text protects all sincere religious exercise, not merely those compelled by or central to one’s faith.[30] Of course, the practice must be both “sincere,” and “religious.”[31] But if it is, courts are not permitted to weigh the subjective significance of the religious action for the incarcerated individual to determine if it is sufficiently “important” to merit RLUIPA’s protection.

Instead, when determining whether a burden is “substantial,” RLUIPA requires courts to assess whether the government-imposed burden on the protected religious exercise rises to the level of substantiality, or whether the government action merely imposes a de minimis cost on the religious exercise.[32] This understanding fits the text of RLUIPA (“substantial” modifies the word “burden,” not “religious exercise”), and assessing the magnitude of the burden allows courts to avoid the entangling questions that arise when courts attempt to compare various forms of religious exercise to determine their “significance” or “importance” to the incarcerated individual. Such questions, by their nature, entangle courts in religious doctrine. For example: how spiritually significant is it for an incarcerated individual to be allowed access to scented as opposed to unscented prayer oils? What about natural prayer oils versus synthetic prayer oils?[33] Secular courts are not equipped to make determinations about the significance of various forms of religious exercise to a particular individual or faith group.

B. Deferring to Prison Officials’ Bare Assertions Unsupported by Evidence.

Perhaps even less well understood than RLUIPA’s substantial burden requirement is how strict scrutiny applies in the prison context. As explained above, much of this confusion stems from the Supreme Court’s decision in Cutter, which seemed to suggest that courts could defer to prison officials’ assertions regarding whether denying a religious accommodation was the least restrictive means of advancing the government’s compelling interests instead of holding the government to the (normally very demanding) strict scrutiny standard. This, however, was a misreading of Cutter—which both Holt and Ramirez repudiated. Nevertheless, many prison officials and some lower courts continue to rely on Cutter for the proposition that prison officials should receive not only “respect” for their “expertise” in “running prisons” (as permitted by Holt),[34] but also legal deference in the strict scrutiny analysis. This, as Holt explained, is an “abdication of the responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard.”[35]

For example, in Chernetsky v. Nevada, the district court was asked to review a Muslim inmate’s request for natural prayer oils, which the Nevada Department of Corrections had denied. In applying RLUIPA, the court did not make any effort to scrutinize the state’s claimed interests—much less conduct the required “focused inquiry” under RLUIPA.[36] Rather, the court simply accepted, without question, the government’s unproven assertion that allowing natural prayer oils would pose “a unique security threat,” even though similar synthetic oils (like baby oil) were already allowed in the prison.[37] Similarly, the court did not analyze whether there were less restrictive means to achieve the government’s asserted interest—much less determine whether the state had submitted any evidence showing that it had considered and rejected the efficacy of less restrictive measures (like strictly limiting the quantity of prayer oil).[38] Thankfully, the Ninth Circuit reversed, explaining that “the State bears the burden of proof” on strict scrutiny and finding that Nevada “has failed to produce any evidence substantiating its claim that [the prison’s] ban on natural anointing oils is the least restrictive means of furthering its interests in prison security.”[39]

The Eleventh Circuit has also accepted—even post-Holt—the mere say-so of prison officials who denied a four-inch religious beard accommodation after asserting the existence of a merely “plausible” “risk” to penological interests and claiming this was sufficient “evidence” to satisfy RLUIPA’s strict scrutiny standard.[40] Instead of requiring prison officials to support their arguments with evidence (as typically required by strict scrutiny),[41] the majority in Smith v. Owens relied solely on the unsupported testimony of prison officials that a religious accommodation for an untrimmed beard would impose significant safety and security risks on Georgia’s prison system.[42] The court ruled against Smith even though the prison official’s testimony, among other deficiencies, failed to offer any “meaningful evidence to support [the state’s] factual assertion” that Georgia’s prisons were any different from the 37 other state prison systems offering the same accommodation, as Judge Martin explained in dissent.[43] “In other words, [the State] offered arguments—‘mere say-so’—but not evidence.”[44] This “approach is inconsistent with Holt.”[45]

Similarly, in Nunez v. Wolfe, a district court in Pennsylvania rejected a Muslim prisoner’s request to engage in congregate prayer and other religious practices, instead accepting as sufficient “evidence” satisfying strict scrutiny the barebones declaration of a prison official which contained generic assertions about prison security divorced from the facts of the case.[46] When questioned at oral argument about the evidence underlying some of these assertions, the attorney for the prison system conceded that the declaration lacked evidentiary support and was based in part on mere speculation—not on facts or evidence in the record.[47] After this Essay was written, the Third Circuit corrected this grievous error.[48] Relying largely on Holt and Ramirez, the court held that “the District Court did not put the [government] to its burden” under RLUIPA, explained that “RLUIPA demands that the government ‘prove with evidence that its rules are narrowly tailored to advance a compelling state interest with respect to the specific persons it seeks to regulate,’” and remanded the case for further proceedings consistent with its opinion.[49]

Instead of relying on conclusory allegations and unsupported assertions, courts must require prison officials to meet the same strict scrutiny standard applicable outside the prison context.[50] As explained above, this means prison officials must advance government interests that are compelling as applied to the individual and to support those government interests with actual evidence, not “mere say-so.” This also requires prison officials to show that any less restrictive alternatives—both those raised by the plaintiff and other “obvious” alternatives—would be insufficient for “the Government to achieve its goals.”[51] If the government fails to make either of these showings, it has failed to satisfy strict scrutiny.[52]

III. Religious minorities suffer the most from failure to properly interpret and apply RLUIPA.

Who is most likely to be impacted by this failure to follow existing law? Empirical data confirms that religious minorities bring a majority of RLUIPA claims and are thus disproportionately likely to be impacted when this law is misapplied.[53] This is true for likely a few reasons. First, “followers of minority faiths must explain and request accommodations for each aspect of their religious practice—from diet to dress—while followers of better-known religions are more easily understood and accommodated, if not already expressly provided for in institutional rules.”[54] Unlike the Christian prisoner who may be able attend a religious worship service on Sunday in the prison chapel, the only practicing Buddhist in a small Montana prison likely will not have ready access to any of the materials necessary for him to practice his faith, necessitating a request for a religious accommodation. Similarly, a Jewish or Muslim prisoner may require a dietary accommodation because the standard prison fare—typically acceptable to prisoners of majoritarian faiths—does not meet the requirements of their faith.[55] In short, many minority faith practices will, almost by definition, differ from the prison system’s normal operations and require an accommodation.

Second, minority faith practices may be more likely to impose added costs or slight administrative burdens on a prison system. As noted above, many prison systems have a built-in tolerance for majoritarian faith practices—many prison systems already employ a chaplain who is familiar with and can provide for these spiritual needs. But accommodating minority faith practices often involves added costs for the prison system—from providing dietary accommodations and religious literature to setting aside physical space for various religious practices.[56] Some prison officials remain reluctant to incur these costs, even though Congress has made clear that, absent a compelling government interest, prisons are required to “incur expenses in [their] own operations to avoid imposing a substantial burden on religious exercise” and must assess the cost of these accommodations on a case-by-case basis.[57]

Third, some minority faith practices may, unfortunately, be viewed with skepticism or even hostility by prison officials. “In the restrictive environment of prison, where nearly every action (and thus nearly every religious practice) must be pre-approved, prisoners with religious practices unfamiliar to administrators face an uphill battle.”[58] Often, education and training can help prison officials better understand minority faith practices, but sometimes either overt or covert religious hostility is also at play. Muslim prisoners, for example, “are more likely to have security interests invoked in defense of restrictions on their religious practice.”[59] And these “[n]on-particularized security-based rationales for restricting Islamic practices in prison may also reflect—or unintentionally encourage—a more pernicious view of Muslims generally as an inherent security threat.”[60] Some prison officials, for example, have defended bans on kufis simply because a kufi signals that a person is Muslim and this public acknowledgment of Muslim identity can make the wearer vulnerable to “harassment or a physical altercation” or open them up to targeting.[61] Such arguments suggest there is an implicit association of “Muslims” with “security problems” in the minds of many prison officials—and confirm the importance of courts examining prison security arguments carefully to ensure they meet the high standards of RLUIPA.

Conclusion

The right of incarcerated individuals to practice their faith has changed dramatically in the past decade. Replacing Cutter’s “deference,” Holt and Ramirez make clear that incarcerated individuals still retain the basic human right to engage in religious exercise while behind bars. Nevertheless, both in the Supreme Court and in lower courts, more work remains to be done. Some courts continue to misapply RLUIPA by narrowing the scope of religious practices protected by the statute or by giving uncritical deference to prison officials. While these practices are plainly inconsistent with RLUIPA’s text, it appears that further development in the lower courts (and potentially at the Supreme Court) will be necessary to make these statutory promises a reality for incarcerated individuals across the country.

* Nick Reaves is senior counsel at the Becket Fund for Religious Liberty and visiting clinical lecturer at Yale Law School. The views expressed here do not necessarily reflect the views of Becket and its clients or of Yale Law School. This article is adapted from written testimony given by Reaves to the United States Commission on Civil Rights and from legal briefs filed by Reaves. The author would like to thank Philip White for his assistance. Any errors remain his own.

[1] 544 U.S. 709, 710 (2005).

[2] Compare, e.g., Fegans v. Norris, 537 F.3d 897, 907 (8th Cir. 2008) (applying RLUIPA’s strict scrutiny standard with “due deference to prison administrators’ experience and expertise”), with Jova v. Smith, 582 F.3d 410, 416 (2d Cir. 2009) (holding that prisons must apply strict scrutiny to RLUIPA claims).

[3] David M. Shapiro, To Seek a Newer World: Prisoners’ Rights at the Frontier, 114 Mich. L. Rev. First Impressions 124, 126 (2016).

[4] Barrick Bollman, Deference and Prisoner Accommodations Post-Holt: Moving RLUIPA Toward “Strict in Theory, Strict in Fact,” 112 Nw. U. L. Rev. 839, 853 (2018).

[5] Spratt v. R.I. Dept. of Corr., 482 F.3d 33, 42 n.14 (1st Cir. 2007).

[6] 574 U.S. 352 (2015).

[7] Id. at 364.

[8] Id.

[9] Id. (emphasis added).

[10] Id. Confirming the important difference between respect and deference, this same dichotomy was used repeatedly by the Supreme Court in Loper Bright, rejecting Chevron deference and explaining instead that respect still requires Article III courts to exercise their independent judgment. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2258 (2024) (“‘Respect,’ though, was just that. The views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it.”).

[11] Shapiro, supra note 3, at 127 (“[T]he omission of Cutter must have been deliberate.”).

[12] Lozano v. Collier, 98 F.4th 614, 630 (5th Cir. 2024) (Oldham, J., concurring in judgment) (“Whereas Cutter had emphasized deference, Holt shifted to respect.”).

[13] 595 U.S. 411, 436–37 (2022).

[14] Ramirez, 595 U.S. at 424–25 (2022) (quoting 42 U.S.C. § 2000cc-1(a)) (cleaned up).

[15] Id. at 432 (emphasis added and cleaned up).

[16] Id. at 427.

[17] Holt, 574 U.S. at 369.

[18] Id. at 368–69 (“That so many other prisons allow inmates to grow beards while ensuring prison safety and security suggests that the Department could satisfy its security concerns through a means less restrictive than denying petitioner the exemption he seeks.”); Ramirez, 595 U.S. at 444 (“[P]erhaps even more relevant, the Federal Government and some States have recently allowed inmates’ religious advisors into the execution room.”).

[19] See, e.g., Lozano, 98 F.4th at 624 (holding prison officials to burden of proof under strict scrutiny); id. at 628 (Oldham, J., concurring in judgment) (explaining the evolution in Supreme Court precedent regarding RLUIPA); Fox v. Washington, 71 F.4th 533, 537–38 (6th Cir. 2023) (rejecting reliance on speculation to sustain burden of proof under strict scrutiny); Chernetsky, 2024 WL 1253783, at *2 (holding government to its burden of proof under strict scrutiny).

[20] Lozano, 98 F.4th at 629 (Oldham, J., concurring in judgment).

[21] Davis v. The Geo Grp., Inc., No. 3:16-cv-26, 2021 WL 4952571, at *11 (W.D. Pa. Oct. 25, 2021), aff’d in part, vacated in part, remanded sub nom. Davis v. Wigen, 82 F.4th 204 (3d Cir. 2023) (“Like Defendants, this Court does not doubt that Davis and Beckford sincerely wanted to marry, and sincerely viewed their marriage as an expression of their faith.”).

[22] Id.

[23] Brief of Amicus Curiae Muslim Public Affairs Council (MPAC) and Dr. Jacqueline C. Rivers at 325, Davis v. The Geo Grp., Inc., 82 F.4th 204.

[24] E.g., Washington v. Klem, 497 F.3d 272, 282 (3d Cir. 2007) (recognizing split of authority over interpretation of “substantial burden” and that the proper definition under RLUIPA is an “open question”); Petition for Writ of Certiorari at 11–19, Living Water Church of God v. Meridian Charter Twp., 553 U.S. 1093 (2008) (mem.) (No. 07-cv-1158), 2008 WL 681741 (describing circuit split over definition of substantial burden in RLUIPA).

[25] See, e.g., Frederic v. City of Park Hills Bd. of Adjustment, No. 2022-ca-0867-MR, 2023 WL 8286391, at *7 (Ky. Ct. App. Dec. 1, 2023) (prohibiting construction of a religious grotto is not a substantial burden under RLUIPA because denying the ability to engage in this religious exercise “is not inherently inconsistent with [the Church’s] religious beliefs”); Church of Castle Rock v. Town of Castle Rock, No. 24 cv. 1340 (DDD), ECF No. 46 (July 19, 2024) (Town argues that restrictions on religious exercise don’t trigger RLUIPA protections because “the Church could find other ways to satisfy its religious compulsion to provide for the needy.”).

[26] Holt, 574 U.S. at 360.

[27] Id. at 361–62.

[28] 42 U.S.C. § 2000cc-5(7)(A) (emphasis added). The same definition holds for the Religious Freedom Restoration Act, which applies to federal prisons. See id. § 2000bb-2(4) (incorporating the definition in § 2000cc-5(7)(A)).

[29] Id.  § 2000cc-3(g). See, e.g., Greene v. Solano Cnty. Jail, 513 F.3d 982, 986 (9th Cir. 2008) (relying on this rule of construction to give RLUIPA a broad interpretation).

[30] Haight v. Thompson, 763 F.3d 554, 566 (6th Cir. 2014) (“RLUIPA protects a broad spectrum of sincerely held religious beliefs, including practices that non-adherents might consider unorthodox, unreasonable or not ‘central to’ a recognized belief system.” (quoting 42 U.S.C. § 2000cc-5(7)(A))); C.L. for Urb. Believers v. City of Chicago, 342 F.3d 752, 760 (7th Cir. 2003) (similar); Jones v. Carter, 915 F.3d 1147, 1150 (7th Cir. 2019) (rejecting “the practice of offsetting against the burden imposed by the rule . . . the strength of the religious command”); Van Wyhe v. Reisch, 581 F.3d 639, 656 (8th Cir. 2009) (“RLUIPA’s broad protection of ‘religious exercise’ extends even to religious practices that are not ‘compelled by, or central to’ a certain belief system.”).

[31] See United States v. Quaintance, 608 F.3d 717, 721 (10th Cir. 2010) (Gorsuch, J.) (rejecting RFRA claim as insincere and explaining sincerity analysis); United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996) (contrasting “religious beliefs,” which are protected by RLUIPA and RFRA, with “a philosophy or way of life,” which is not protected, and explaining how to distinguish the two); Nathan S. Chapman, Adjudicating Religious Sincerity, 92 Wash. L. Rev. 1185 (2017) (clarifying how courts should analyze religious sincerity).

[32] This analysis is highly context dependent—some burdens may be tolerated in the prison context (given the general restrictions imposed on incarcerated individuals) that would not be tolerated outside of the prison system, like limiting the times when prisoners may visit and pray in the chapel. Cf. Michael A. Helfand, Substantial Burdens as Civil Penalties, 108 Iowa L. Rev. 2189 (2023) (defending the view that courts should interpret the substantiality of burdens by examining the extent of government-imposed civil penalties for non-compliance).

[33] See generally Chernetsky v. Nevada, No. 306-cv-00252, 2021 WL 4096965, at *5 (D. Nev. Sept. 7, 2021), rev’d and remanded, No. 21-16540, 2024 WL 1253783 (9th Cir. Mar. 25, 2024).

[34] Holt, 574 U.S. at 364.

[35] Id.

[36] Holt, 574 U.S. at 363 (cleaned up).

[37] Chernetsky, 2021 WL 4096965, at *5.

[38] Id. (no least restrictive means analysis).

[39] Chernetsky, 2024 WL 1253783, at *2 (emphasis added).

[40] Smith v. Owens, 13 F.4th 1319, 1328–31 (11th Cir. 2021); id. at 1339 (Martin, J., dissenting) (“I fear the majority opinion renders the Supreme Court’s command in Holt meaningless, such that prisons in Alabama, Georgia, and Florida can now unjustifiably deny prisoners religious freedoms they would enjoy almost everywhere else in the country.”).

[41] “That is a demanding standard.” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 799 (2011). Strict scrutiny in the Free Exercise context “is not watered down; it really means what it says.” Tandon v. Newsom, 593 U.S. 61, 65 (2021) (per curiam) (quotations omitted).

[42] Smith, 13 F.4th at 1330–32.

[43] Id. at 1337 (Martin, J., dissenting) (emphasis added).

[44] Id.

[45] Id. at 1338.

[46] No. 3:15-cv-1573, 2022 WL 4866648, at *4 (M.D. Pa. Sept. 30, 2022).

[47] Transcript of Oral Argument at 36, Nunez v. Wolf, 2024 WL 3948020 (2023) (No. 22-3076) (“I would concede to the court there are no misconducts, you know, there are no particular investigations or things of that nature that would delve into the specific concerns of Mr. Nunez and the security risk that he poses.”).

[48] Nunez v. Wolf, No. 22-3076, 2024 WL 3948020, at *1 (3d Cir. Aug. 27, 2024).

[49] Id. at *4 (emphasis added and citation omitted).

[50] Holt, 574 U.S. at 365 (citing Hobby Lobby and United States v. Playboy Ent. Grp. for articulation of strict scrutiny standard).

[51] Id.

[52] E.g., Haight, 763 F.3d at 564 (“[I]n the absence of evidence demonstrating (as opposed to lawyer arguments speculating) that the prison considered and rejected alternatives more tailored to its security interest, the prison’s prohibition cannot withstand [the least-restrictive-means] aspect of strict scrutiny.”); Fox, 71 F.4th at 537–38 (“[S]peculation cannot carry the Department’s burden because RLUIPA requires a case-by-case inquiry.”); Lozano, 98 F.4th at 623 (“[T]he TDCJ Defendants have not carried their burden to establish that [Lozano’s housing conditions] are the least restrictive means of furthering a compelling government interest.” (emphasis added)); Chernetsky, 2024 WL 1253783, at *2 (“Because the State bears the burden of proof on the RLUIPA claim, Chernetsky can prevail ‘merely by pointing out that there is an absence of evidence to support the [State’s] case.’” (quoting Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007))).

[53] DOJ, Report on the Twentieth Anniversary of the Religious Land Use and Institutionalized Persons Act, 25–26 (Sept. 22, 2020), https://perma.cc/2MAV-796Z (“RLUIPA claims in institutional settings are most often raised by people who practice minority faiths.”); Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, 48 Seton Hall L. Rev. 353, 376 (2018) (finding that “[o]ver half of all prisoner decisions involved non-Christian religious minorities [and] [t]he most frequently appearing were Muslims, Jews, and Native Americans”).

[54] Brief of Amici Curiae Muslim Public Affairs Council (MPAC) and Dr. Jacqueline C. Rivers, supra note 24, at *12.

[55] E.g., Jones, 915 F.3d at 1150 (halal meat); United States v. Fla. Dep’t of Corr., 828 F.3d 1341 (11th Cir. 2016) (kosher).

[56] E.g., Fla. Dep’t of Corr., 828 F.3d at 1348 (citing cost containment as reason to deny kosher meals to inmates). See, e.g., Timothy Kowalczyk, Judicial Misreading of RLUIPA’s “Substantial Burden” and Extinguishment of Inmates’ Bodily Free Exercise, 2022 U. Chi. Legal F. 329, 329 (2022) (“Central to religious inmates’ dignity and self-constitution is the ability to adorn their bodies with religious articles while incarcerated.”); Gonzalez v. Morris, 824 F. App’x 72, 74 (2d Cir. 2020) (restricting a Santerían prisoner from wearing more than one strand of beads); see also Smith v. Allen, 502 F.3d 1255, 1277 (11th Cir. 2007) (denying an Odinist possession of a quartz crystal), overruled by Hoever v. Marks, 993 F.3d 1353 (11th Cir. 2021), and abrogated by Sossamon v. Texas, 563 U.S. 277 (2011).

[57] 42 U.S.C. § 2000cc-3(c); Holt, 574 U.S. at 368 (rejecting the “classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.” (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 435–36 (2006))); Shakur v. Schriro, 514 F.3d 878, 889 (9th Cir. 2008) (similar).

[58] Brief of Amicus Curiae Muslim Public Affairs Council at 28, Johnson v. Baker, 23 F.4th 1209 (9th Cir. 2022). Cf. Cutter, 544 U.S. at 712–16 (noting “three years” of Congressional hearings showing “‘frivolous or arbitrary’ barriers” to minority religious practice in prison).

[59] Brief of Amicus Curiae Muslim Public Affairs Council at 31, Johnson v. Baker, 23 F.4th 1209 (9th Cir. 2022).

[60] Id.

[61] Id. at 34; see Hogan v. Idaho State Bd. of Corr., No. 1:16-cv-00422-CWD, 2018 WL 2224045, at *7 (D. Idaho May 15, 2018); see also Knott v. McLaughlin, No. 5:17-CV-36-MTT-CHW, 2018 WL 8546111, at *3–4 (M.D. Ga. Dec. 7, 2018), report and recommendation adopted as modified, No. 5:17-CV-36 (MTT), 2019 WL 1379943 (M.D. Ga. Mar. 27, 2019) (reversing a policy banning congregational Islamic prayers originally enacted to prevent targeting by other prisoners).

Textualism, the Gun Control Act, and ATF’s Redefinition of “Firearm” – Stephen P. Halbrook

Posted by JLPP on Aug 27, 2024 in Per Curiam

Textualism, the Gun Control Act, and ATF’s Redefinition of “Firearm”

Stephen P. Halbrook*

The Supreme Court has granted the Attorney General’s petition for a writ of certiorari in a case concerning agency authority to adopt regulations that expand the definitions found in the Gun Control Act of 1968, 18 U.S.C. § 921 et seq. (“the GCA”).  In VanDerStok v. Garland, the Fifth Circuit decided that the regulations unlawfully expanded the reach of the GCA’s criminal provisions and exceeded the powers that Congress delegated to the Bureau of Alcohol, Tobacco, Firearms & Explosives (“the ATF”).[1] The Supreme Court will review the Fifth Circuit’s decision during its 2024 Term.

In VanDerStok, the Court is poised to expand on the statutory interpretation jurisprudence that characterized its 2023 Term. First, Loper Bright Enterprises v. Raimondo reasserted the power of the judiciary to interpret the law and abrogated the Chevron deference doctrine.[2] Second, in Garland v. Cargill, the Court undertook a meticulous analysis of the GCA’s definition of “machinegun” and held that the agency exceeded its powers by changing that definition.[3] These decisions represent a trend toward embracing the proper judicial role in statutory interpretation and away from outsourcing that role to administrative agencies.

The definition at issue in VanDerStok lies at the very heart of the GCA: what is a firearm?  Numerous crimes are predicated on whether something is a “firearm.” Under the auspices of the Department of Justice, the ATF enforces the GCA. In 2022, the ATF promulgated a Final Rule that expanded the list of items that are considered a “firearm.”[4]

The VanDerStok challenge presents two questions. [5]  First, may the statutory definition of “firearm” be expanded by regulation to include “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted” to fire a projectile?[6]  Second, may the longstanding regulatory definition of a firearm’s “frame or receiver” be expanded by a regulation to “include a partially complete, disassembled, or nonfunctional frame or receiver” that may be readily converted into a frame or receiver?[7]

In VanDerStok, the Fifth Circuit held that the Final Rule flouted the statutory text and exceeded the agency’s authority.[8]  It found the requirement of adherence to statutory text especially heightened because “the Final Rule purports to criminalize what was previously lawful conduct,” which only Congress can do.[9]

In an earlier phase of the case, the district court vacated the Final Rule, but the Supreme Court stayed that order pending further disposition by the Fifth Circuit and disposition of a petition for a writ of certiorari.[10]  The grant of the petition leaves the stay in place.  The case is set for oral argument on October 8, 2024.

“Textualism, in its purest form, begins and ends with what the text says and fairly implies.”[11]  Loper Bright states that “every statute’s meaning is fixed at the time of enactment.”[12]  This article asks whether the GCA text authorizes the Final Rule and answers that question in the negative.

I. A Textual Analysis of “Firearm” and the ATF’s Limited Regulatory Authority Precludes the Final Rule

A. The Plain Text Defines “Firearm”

Section 921(a) of the GCA states in relevant part: “The term ‘firearm’ means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon .  .  .  .”[13]  The terms “is designed” and “may readily be converted” modify “weapon,” not “frame or receiver.”

“When Congress takes the trouble to define the terms it uses, a court must respect its definitions as ‘virtually conclusive.’”[14] “When Congress includes particular language in one section of a statute and omits it from a neighbor, we normally understand that difference in language to convey a difference in meaning (expressio unius est exclusio alterius).”[15]

Until the Final Rule in 2022, except for the definition that the Court overturned in Cargill,[16] the regulations defined “firearm” and the various weapon types exactly as enacted in the GCA.[17]  And from 1968 until the Final Rule, the regulations defined “firearm frame or receiver” as the actual housing for the operating parts.[18]

B. The ATF’s New Definition of “Firearm” Expands Criminal Liability

Section 922 of the GCA provides that “[i]t shall be unlawful” to commit various acts involving “firearms.”  In punishing these crimes, § 924 refers to violations of “this chapter” or a “subsection,” or defines a crime.[19]  Neither of these sections makes violation of an administrative regulation a crime.  But the expanded definition of “firearm” in the Final Rule would expand criminal liability.

By contrast, a firearm involved in a willful violation of the GCA “or any rule or regulation promulgated thereunder” is subject to forfeiture.[20] A license to engage in the business of dealing in firearms may be granted if “the applicant has not willfully violated any of the provisions of this chapter or regulations issued thereunder,”[21] or may be revoked if the holder has “willfully violated any provision of this chapter or any rule or regulation prescribed by the Attorney General under this chapter . . . .”[22]

The GCA authorizes regulations in certain non-criminal contexts.  For instance, licensed importers and manufacturers “shall identify by means of a serial number engraved or cast on the receiver or frame of the weapon, in such manner as the Attorney General shall by regulations prescribe,” each firearm imported or manufactured.^[23]

Finally, “[t]he Attorney General may prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter . . . .”[24] This is quite unlike statutes that “‘expressly delegate[]’ to an agency the authority to give meaning to a particular statutory term.”[25]

Loper Bright acknowledged that the Supreme Court had “sent mixed signals on whether Chevron applies when a statute has criminal applications.”[26] No more. As noted by one of the cases it cites, “criminal laws are for courts, not for the Government, to construe,” and that “ATF’s old position [is] no more relevant than its current one—which is to say, not relevant at all.”[27]

C. A “Weapon Parts Kit” is Not a “Firearm”

The Final Rule purports to add to the statutory definition of firearm “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.”[28]  But the statute says an actual “weapon” is one that “is designed to or may readily be converted to expel a projectile.” [29]

The Final Rule includes no definition of “weapon parts kit.”  The commentary states that some kits “contain all of the components necessary to complete a functional weapon,” and others “include jigs, templates, and tools that allow the purchaser to complete the weapon . . . .”[30] But a statutory “firearm” is a far cry from raw material that requires fabrication to become a firearm—just as a spool of thread is a far cry from a dress.

D. “The Frame or Receiver Thereof” Refers to an Actual Frame or Receiver

Section § 921(a)(3) refers to “the frame or receiver of any such weapon.”  Adopted in 1968 and remaining in place until 2022, a regulation defined frame or receiver as “that part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism . . . .”[31] Loper Bright teaches that since the Founding, “respect was thought especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time.”[32]  That observation applies to the 1968 regulation, not the Final Rule promulgated over half a century later.

The Final Rule provides: “The terms ‘frame’ and ‘receiver’ shall include a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.”[33]  It adds that ATF “may consider any associated templates, jigs, molds, equipment, tools, instructions, guides, or marketing materials” that are available.[34]  And it classifies a “billet or blank of a frame or receiver” sold with such items as a frame or receiver.[35]  But the statute says “frame or receiver,” not materials and information used to fabricate one.

II. The Statutory and Administrative  History  of “Firearm” and “Frame or Receiver” Undermine the Final Rule

A statutory provision must be read “in light of the history of the provision.”[36]  After analyzing the statutory text, a court may look at “the statutory history, which reinforces that textual analysis.”[37]  This part traces the statutory history of the meaning of “firearm” from the Federal Firearms Act of 1938 to the Gun Control Act of 1968, including its revision by Congress in the Firearm Owners’ Protection Act of 1986.

A. The Federal Firearms Act of 1938

The Federal Firearms Act of 1938 (“the FFA”) was the first federal law to regulate interstate and foreign commerce in firearms.[38]  It was preceded by the National Firearms Act of 1934 (“the NFA”), which taxed and required the registration of machine guns and other narrow classes of firearms.[39]  Because many of the terms of the GCA are lineal successors to those in the FFA, the statutory and administrative history of the FFA provides insights into the meaning of definitions in the GCA.

The FFA stated: “The term ‘firearm’ means any weapon, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosive . . . , or any part or parts of such weapon.”[40]  A “manufacturer” was “any person engaged in the manufacture or importation of firearms.”[41] A “dealer” was “any person engaged in the business of selling firearms,” or “of repairing such firearms or of manufacturing or fitting special barrels, stocks, trigger mechanisms, or breech mechanisms to firearms . . . .”[42]  A license was required for such businesses to transport, ship, or receive a firearm in interstate or foreign commerce.[43]

It was unlawful for a person who was convicted of a “crime of violence” to receive a firearm that had been transported in interstate or foreign commerce.[44]  It was also unlawful to transport or receive “any firearm from which the manufacturer’s serial number has been removed, obliterated, or altered . . . .”[45]  However, manufacturers were not required to place serial numbers on firearms.  (By contrast, the NFA required manufacturers and importers to identify restricted firearms like machine guns with a number.[46])

It was a crime to violate “this Act or any rules and regulations promulgated hereunder .  .  .  .”[47]  Further, the act provided that “[t]he Secretary of the Treasury may prescribe such rules and regulations as he deems necessary to carry out the provisions of this Act.”[48]

B. The Regulatory Interpretation of “Firearm” and “Parts”

The first FFA regulations, promulgated by the Internal Revenue Service (the “IRS”) in 1939, required manufacturers to record firearms disposed of, “including the serial numbers if such weapons are numbered . . . .”[49]  Dealers were required to record firearms they acquired or disposed of.[50]  Subsequent regulations required manufacturers and dealers to record “firearms in an unassembled condition,” but “not including parts of firearms.”[51]  A complete firearm did not lose its character as such by being unassembled.

In 1955, the IRS issued a revenue ruling holding that “a barrel[ed] action comprised of the barrel . . . ; front and rear stock bands; receiver with complete bolt, trigger action, magazine, etc., is a weapon, complete except for the stock, which is capable of expelling a projectile or projectiles by the action of an explosive.”[52]  These words foretold the regulatory definition of a “firearm frame or receiver” adopted in 1968.

Judicial decisions about the FFA largely arose out of criminal cases, only one of which concerned the “part or parts” definition.[53]  The defendant there had a conviction that prohibited him from shipping firearm parts.[54]  Some parts were “Browning automatic rifle magazines”; since “such weapons could not be fired automatically without the magazines, . . . they were within the broad reach of the Act as ‘parts’ of a weapon . . . .”[55]  There were also “firearm parts contained in 1,651 machine guns,” which were “serviceable parts, thus bringing them within the scope of the Act.”[56]  Only useable parts counted.

C. The Requirement of Firearm Serial Numbers Did Not Begin until 1958

From the Founding until 1958, no federal requirement existed that a firearm (other than an NFA firearm) be marked with a serial number.  In 1958, the IRS adopted a regulation requiring manufacturers and importers to “identify [firearms] by stamping . . . the name of the manufacturer or importer, and the serial number, caliber, and model of the firearm . . . . However, individual serial numbers and model designation shall not be required on any shotgun or .22 caliber rifle . . . .”[57]

The commentary to the Final Rule uses the politically charged term “ghost guns” 52 times.[58]  Policy arguments about “ghost guns” ignore that all firearms were originally “ghost guns” in that serial numbers were not required on any firearms until the mid-20^th century, and even then that requirement applied only to licensed manufacturers and importers.  To date, Congress has never required hobbyists and other non-licensees to serialize the firearms that they make.

D. In the Gun Control Act of 1968, Congress Removed “Parts” from Regulation and Rejected Violation of a Regulation as an Offense

In 1963, a bill was drafted to amend the FFA with the following definition: “The term ‘firearm’ means any weapon . . .  which will, or is designed to, expel a projectile or projectiles by the action of an explosive, the frame or receiver of any such weapon . . . .”[59]  The Department of the Treasury opined:

The present definition includes any “part” of a weapon within the term.  It has been found that it is impracticable, if not impossible, to treat all parts of a firearm as if they were a weapon capable of firing.  This is particularly true with respect to recordkeeping provisions since small parts are not easily identified by a serial number.  Accordingly, there are no objections to modifying the definition so that all parts, other than frames and receivers, are eliminated.[60]

In 1966, a bill added the phrase “which may be readily converted to” expel a projectile,[61] explaining that it would “include specifically any starter gun designed for use with blank ammunition which will or which may be readily converted to expel a projectile . . . .”[62]  Another bill inserted “any weapon (including a starter gun)” into the definition.[63]

By 1968, the definition of “firearm” was settled.  A U.S. Senate report explained: “Under the present definition of ‘firearm,’ any part or parts of such a weapon are included.  It has been found that it is impractical to have controls over each small part of a firearm.  Thus, the revised definition substitutes only the major parts of the firearm; that is, frame or receiver for the words ‘any part or parts.’”[64]

Bills that morphed into the Gun Control Act originally followed the FFA in making it a crime to violate an administrative regulation as well as the Act itself.  As reported out of committee in 1968, Senate Bill 917 punished violation of “any provision of this chapter or any rule or regulation promulgated thereunder,” and authorized the Secretary to “prescribe such rules and regulations as he deems reasonably necessary . . . .”^[65]

In debate, Senator Robert P. Griffin (R., Mich.) objected that “we should not delegate our legislative power . . . in the area of criminal law,” and that due process required that “we should spell out in the law what is a crime.”^[66]  Senator Howard Baker (R., Tenn.) rejected “plac[ing] in the hands of an executive branch administrative official the authority to fashion and shape a criminal offense to his own personal liking . . . .”^[67]  The bill was then amended to delete the provision making it an offense to violate “any rule or regulation promulgated thereunder.”[68]

The Omnibus Crime Control and Safe Streets Act of 1968 repealed the Federal Firearms Act and punished “[w]hoever violates any provision of this chapter,” with no reference to regulations.[69]  Before it became effective, that act was superseded by the Gun Control Act of 1968, which enacted the same penalty clause.^[70]

Under the GCA, all offenses were defined in terms of violations of “this chapter.”[71]  The term “firearm” had the same definition then as it has today.[72]  Congress declared its intent not “to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms,” or “to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes . . . .”[73]

E. The Regulatory Definition of “Frame or Receiver” Adopted in 1968 Reflected Common Usage of These Terms

In 1968, the Treasury Department adopted regulations under the GCA that included the following definition: “Firearm frame or receiver. That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.”[74]  Being “that part” that “provides housing” in the present tense excludes unfinished material that cannot provide such housing.

That definition reflected the common understanding of a “frame or receiver.” The Small Arms Lexicon published in 1968 defined “frame” as “the basic structure and principal component of a firearm.”^[75]  “Receiver” was defined as “the part of the gun that takes the charge from the magazine and holds it until it is seated in the breech.”[76]  It is “[s]pecifically, the metal part of a gun that houses the breech action and firing mechanism . . . .”^[77]  The Lexicon also defined each of the other parts mentioned in the regulation, such as defining “firing mechanism” as “those parts of a gun that cooperate to cause the propelling charge to fire.”^[78]

Under both the regulation and the Lexicon, a frame or receiver was the actual, serviceable housing of the firearm for the operating parts, to which the barrel and stock attached.

F. The Firearm Owner’s Protection Act of 1986 Reduced the ATF’s Regulatory Power and Left the Definitions Untouched

The Firearm Owners’ Protection Act of 1986 (the “FOPA”) reaffirmed the Second Amendment right to keep and bear arms and found it necessary “to correct existing firearms statutes and enforcement policies.”[79]  It provided that “[t]he Secretary may prescribe “only such rules and regulations as are necessary to carry out the provisions of this chapter” (chapter 44 of title 18), deleting his power to “prescribe such rules and regulations as he deems reasonably necessary . . . .”[80]

In enacting the FOPA, Congress did not disturb the definition of “firearm” or modify ATF’s definition of a frame or receiver adopted in 1968.[81]  A letter from the Department of the Treasury stated: “Existing law regulates the principal part of a firearm, i.e., the frame or receiver, and we believe this is adequate.”[82]

Further amendments to the GCA were enacted in 1993,[83] 1994,[84] and 2022[85] without touching the definition of “firearm” or questioning ATF’s long-standing definition of “frame or receiver.”  “[O]nce an agency’s statutory construction has been ‘fully brought to the attention of the public and the Congress,’ and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned.”[86]

Conclusion

The Federal Firearms Act of 1938 defined a firearm as a weapon that is designed to expel a projectile or as a part or parts thereof.  The Gun Control Act of 1968 added a weapon that may be readily converted to do so and changed “part or parts” to only a frame or receiver.  Nothing in the statutory text or statutory history suggests that “firearm” includes a “weapon parts kit” that requires fabrication, rather than mere assembly, to become a weapon, or that “frame or receiver” includes material requiring fabrication to provide housing for the internal parts.

It remains to be seen how the Court will resolve Garland v. VanDerStok, and it is hazardous to predict the outcome of any case.  But the Court’s recent focus on statutory textualism and rejection of the Chevron deference rule do not bode well for the Final Rule.

* Georgetown University, J.D.; Florida State University, Ph.D. in Philosophy.  Argued and won U.S. v. Thompson/Center Arms, 504 U.S. 505 (1992) (National Firearms Act) and other firearm cases in the Supreme Court.  Latest books include Firearms Law Deskbook and America’s Rifle: The Case for the AR-15.  Senior Fellow, The Independent Institute.  See https://stephenhalbrook.com/. Copyright © Stephen P. Halbrook 2024.

[2] 144 S. Ct. 2244, 2263 (2024).

[3] 602 U.S. 406 (2024).

[4] See 87 Fed. Reg. 24,652 (Apr. 26, 2022) (codified in relevant part at 27 C.F.R. § 478.11, 478.12(c)).

[5] See Petition for Writ of Certiorari, Garland v. VanDerStok, No. 23-852, 2024 WL 515619, at *1 (U.S. Feb. 2024).

[6] 27 C.F.R. § 478.11.

[7] 27 C.F.R. § 478.12(c).

[8] VanDerStok, 86 F.4th at 182.

[9] Id. at 195–96 & n.26.

[10] Garland v. VanDerStok, 144 S. Ct. 44 (2023).  Four Justices would have denied the application for stay.

[11] Antonin Scalia & Bryan A. Garner, Reading Law 16 (2012).

[12] Loper Bright, 144 S. Ct. at 2266 (internal citation omitted).

[13] 18 U.S.C. § 921(a)(3).

[14] Dep’t. of Agriculture Rural Dev. Rural Housing Service v. Kirtz, 601 U.S. 42, 59 (2024) (citation omitted).

[15] Bittner v. United States, 598 U.S. 85, 94 (2023).

[16] See Garland v. Cargill, 602 U.S. 406, 413, 415 (2024) (noting that the ATF’s “earlier regulations simply restated § 5845(b)’s statutory definition” and holding that the ATF “exceeded its statutory authority” by issuing a regulation that classified bump stocks as machineguns.).

[17] See Final Rule, 33 Fed. Reg. 18555, 18557–59 (Dec. 14, 1968).

[18] Id. at 18558.

[19] 18 U.S.C. § 924.

[20] Id. § 924(d)(1).

[21] Id. § 923(d)(1)(C).

[22] Id. § 923(e).

[23] Id. § 923(i).

[24] Id. § 926(a) (emphasis added).

[25] Loper Bright, 144 S. Ct. at 2263 (citation omitted).

[26] Id. at 2269.

[27] Abramski v. United States, 573 U.S. 169, 191 (2014).

[28] 27 C.F.R. § 478.11.

[29] 18 U.S.C. § 921(a)(3).

[30] 87 Fed. Reg., supra note 4, at 24662 & n.44.

[31] 33 Fed. Reg., supra note 17, at 18,558 (emphasis added).

[32] Loper Bright, 144 S. Ct. at 2258.

[33] 27 C.F.R. § 478.12(c).

[34] Id.

[35] Id. (examples 1­–3).

[36] Fischer v. United States, 144 S. Ct. 2176, 2186 (2024).

[37] Snyder v. United States, 144 S. Ct. 1947, 1955 (2024).

[38] Pub. L. No. 75-785, ch. 850, 52 Stat. 1250 (Jun. 30, 1938) (repealed 1968).

[39] Pub. L. No. 474, 48 Stat. 1236 (Jun. 26, 1934).

[40] 15 U.S.C. § 901(3); 52 Stat. at 1250.

[41] 15 U.S.C. § 901(4).

[42] Id. § 901(5).

[43] Id. § 902(a).

[44] Id. § 902(f).

[45] Id. § 902(i).

[46] 48 Stat. at 1329.

[47] 15 U.S.C. § 905.

[48] Id. § 907.

[49] 26 C.F.R. § 315.10(a)(1), I.R.S. Treasury Decision 4898, 1939-1 C.B. 364, 1939 WL 74413.

[50] Id. § 315.10(b).

[51] 26 C.F.R. § 315.10(a), Final Rule, 13 Fed. Reg. 4383, 4386 (1948) (manufacturers); 26 C.F.R. § 315.10(b), Final Rule, 14 Fed. Reg. 7389 (1949) (dealers).

[52] Rev. Rul. 55-175, 1955-1 C.B. 562, 1955 WL 10177.

[53] See United States v. Lauchli, 371 F.2d 303, 313 (7th Cir. 1966).

[54] See id. In 1961, the FFA had been amended to delete “crime of violence” and to insert “crime punishable for imprisonment for a term exceeding one year.”  Pub. L. No. 87-342, 75 Stat. 757 (1961).

[55] Lauchli, 371 F.2d at 313–14.

[56] Id. at 314.

[57] 26 C.F.R. § 177.50; Final Rule, 23 Fed. Reg. 343 (Jan. 18, 1958).

[58] 87 Fed. Reg. 24,652 (Apr. 26, 2022).

[59] Juvenile Delinquency: Hearings Before the Subcom. to Investigate Juvenile Delinquency, Sen. Jud. Com., 88^th Cong., 1^st Sess., 3412 (1963).

[60] Id. (emphasis added).

[61] S. Rep. No. 1866, at 24 (1966).

[62] Id. at 14.

[63] Id. at 43.

[64] S. Rep. No. 90-1097, at 110 (1968) (emphasis added).

[65] S. Rep. No. 1097, at 23–24 (1968).

[66] 114 Cong. Rec. 14792 (May 23, 1968).

[67] Id.

[68] Id. at 14793.

[69] Pub. L. No. 90-351, 82 Stat. 225, 233 (penalties), 234 (FFA repeal) (1968).

[70] Pub. L. No. 90-618, 82 Stat. 1213, 1226 (1968).

[71] Id. at 1223–24.

[72] Id. at 1214.

[73] Id. at 1213–14.

[74] Final Rule, 33 Fed. Reg. 18555, 18558 (Dec. 14, 1968).

[75] Chester Mueller & John Olson, Small Arms Lexicon 87 (1968).

[76] Id. at 168.

[77] Id.

[78] Id. at 82.

[79] Firearm Owners’ Protection Act, § 1(a), Pub. L. 99–308, 100 Stat. 449 (May 19, 1986).

[80] Id. § 106 (emphasis added).

[81] Final Rule, 33 Fed. Reg. 18555, 18558 (Dec. 14, 1968).

[82] 131 Cong. Rec. S9101-05, 1985 WL 714011, *125 (July 9, 1985) (letter inserted by Senator Hatch).

[83] Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993).

[84] Public Safety & Recreational Firearms Use Protection Act, Pub. L. No. 103-322, 108 Stat. 1796 (1994).

[85] Bipartisan Safer Communities Act, Pub. L. No. 117-159, 136 Stat. 1327 (2022).

[86] United States v. Rutherford, 442 U.S. 544, 554 n.10 (1979) (citation omitted).

Problems with Rulemaking by District Court Enforcement Action: the SEC’s Improper Cryptocurrency Regulation – Eric Wessan & Phil Pillari

Posted by JLPP on Aug 8, 2024 in Per Curiam

Problems with Rulemaking by District Court Enforcement Action: the SEC’s Improper Cryptocurrency Regulation

Eric Wessan and Phil Pillari*

Introduction

Cryptocurrencies have become a vibrant part of the global economy. Unsurprisingly, the United States is the global leader in developing and advancing cryptocurrency and blockchain technology. But as with any new technology, the rise and prominence of cryptocurrencies create both opportunities and challenges. Some of those challenges are regulatory in nature. As States, the federal government, and even many in the cryptocurrency industry agree, some regulations to ensure safety and protect consumers are necessary.

Yet an increasingly important question is: Who should be regulating? States or Congress could assign roles to various actors in our federalist system to ensure safe continued use of cryptocurrencies. Instead, the SEC has decided, without Congressional authorization, that regulating cryptocurrencies is its job—and has decided to take on that new role without following the Administrative Procedure Act.

Rather than going through notice-and-comment rulemaking, the SEC has taken a new approach—rulemaking by district court enforcement action. Through that process, the SEC seeks to set judicial precedent adopting its view so that it could create new law without facing the normal adversarial testing that would come through traditional notice-and-comment rulemaking. In so doing, the SEC has saddled many tech startups with prohibitively expensive lawsuits and then forced them to bite their tongues through neither-admit-nor-deny consent decrees that make it impossible for the target of the action to defend itself after the fact.

For example, in Securities and Exchange Commission v. SafeMoon LLC,[1] the SEC went after SafeMoon, a cryptocurrency token not connected with any business. The SEC never alleges that SafeMoon’s token was a stock by another name—it repeatedly uses the term “token,” and its only allegation for why the token satisfies Howey is that SafeMoon investors “shared equally in price increases[] or together suffered price decreases.”[2] Adopting that standard for defining an investment contract would give the SEC the right to regulate virtually any commodity that changes value.

This is not a one-off for the SEC. The SEC website lists the dozens of enforcement actions the agency has brought against cryptocurrency sellers without tying the cryptocurrency tokens to shares in a business.[3] Perhaps the SEC’s vigor in choosing to regulate cryptocurrencies without following the APA’s requirements makes sense: the SEC is acting far outside its assigned regulatory role. Any move toward rulemaking would draw scrutiny for the SEC’s attempted ultra vires expansion. And especially with the Supreme Court’s renewed skepticism of free-ranging federal agencies acting beyond their statutory authority,[4] the SEC may realize that such rulemaking would be short-lived—assuming it survived a pre-enforcement challenge at all.

The challenges that have risen along with cryptocurrencies’ surge in popularity are varied and complex. But almost every interested party—save the SEC itself—agrees that the SEC has no business treating cryptocurrencies as investment contracts under the Securities Act.[5]

Compounding its problems, the SEC’s conduct—rulemaking by district court enforcement action—flouts the APA. Even the SEC has long acknowledged that cryptocurrencies are not investment contracts subject to their oversight. But rather than explain why it changed its mind, the agency has ignored the basic requirements of reasoned decision-making for its arbitrary and capricious campaign of scorched earth litigation.[6]

The SEC’s actions do not adequately consider their consequences—potential preemption of State consumer protection laws leaving citizens without defense from predatory scammers. The SEC is not shy about claiming preemptive effect of its regulations—nor will those who States seek to pursue be shy in contending that States no longer have a proper role in a field occupied by the SEC.

The federal courts should stop the SEC’s egregious regulatory overreach and hold that garden variety cryptocurrencies are not investment contracts under the Securities Act of 1934. In Part I, we discuss the basics of cryptocurrencies. In Part II, we make two overarching arguments. The first (in Section II.A) is that the major questions doctrine and federalism canons require a clear statement because the SEC is entering a domain it has never regulated before and because the SEC is asserting authority over a large swath of the American economy. The second (in Section II.B) is that ordinary cryptocurrencies are not investment contracts under Howey. Not only are ordinary cryptocurrencies not contracts (much less investment contracts), but they do not satisfy any of the three prongs of the traditional Howey test. In Part III, we provide concluding remarks.

I. Background

A. A Primer on cryptocurrency

Cryptocurrencies started to become popular “in 2008, . . . with the deployment of Bitcoin and the blockchain ledger.”[7] “Cryptocurrency is any form of currency that only exists digitally.”[8] Cryptocurrencies usually do not have a “central issuing system or regulating authority.”[9] Instead, they rely on decentralized systems called “blockchains” that maintain records of the transactions and provide the code that underlies each cryptocurrency.[10]

“A blockchain is a digital database containing information (such as records of financial transactions) that can be simultaneously used and shared within a large decentralized, publicly accessible network.”[11] “A cryptocurrency coin [(or token)] is a coin built on its native blockchain.”[12] Coins can either be “fungible, meaning” the tokens are all identical and can be exchanged for each other, “or non-fungible, meaning each token is unique and carries a different value.”[13]

“Bitcoin was created to eliminate the need for a central monetary authority to monitor, verify and approve transactions”; it does this by using a network on which people can mine Bitcoin “using software to solve mathematical puzzles.”[14] Cryptocurrencies are popular with scammers and other criminals because they can be difficult to track.[15] And the recent FTX scandal should teach observers that the SEC oversight may not prevent certain fraudulent cryptocurrencies from defrauding less informed investors.

B. The Major Questions Doctrine

When an agency asserts newly found authority to regulate areas of broad “economic and political significance,” courts should “hesitate before concluding that Congress meant to confer such authority.”[16] The major questions doctrine requires Congress to “speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”[17] After all, “[e]xtraordinary grants of regulatory authority are rarely accomplished through modest words, vague terms, or subtle devices.”[18]

Major questions cases tend to have several characteristics in common. First, major questions cases involve agencies asserting authority over large swaths of the American population or economy.[19] Second, major questions cases tend to involve agencies trying to assert power in areas outside their expertise and that they had never previously regulated.[20] Third, major questions cases tend to involve an agency settling a national debate through its rulemaking authority.[21]

II. Cryptocurrencies are not investment contracts.

Courts should find that cryptocurrencies are not investment contracts subject to the SEC regulation under the Securities Act for two fundamental reasons. First, the SEC’s attempted arrogation of authority is a major question and violates the federalism canon. The SEC does not have clear congressional authorization to treat cryptocurrencies like investment contracts. Second, ordinary cryptocurrencies do not satisfy Howey’s test. Although there are some investment vehicles that satisfy Howey and are labeled cryptocurrencies, that is because those so-called cryptocurrencies are investment contracts by a different name. The label should not matter in determining whether a financial instrument is an investment contract under the Securities Act.

A. The Major Questions Doctrine and federalism canon foreclose the SEC’s ability to regulate cryptocurrencies.

1. The SEC regulating cryptocurrencies raises the major questions doctrine.

The SEC’s decision to regulate cryptocurrencies has all the hallmarks of a major questions case. First, the SEC is trying to regulate massive portions of the economy. The cryptocurrency industry is worth “more than a trillion dollars,” and “its daily trading volume is in the tens of billions of dollars.”[22] There are more than $450 billion in Bitcoin in circulation alone.[23] The industry has created “hundreds of thousands of new jobs,” and cryptocurrencies have the potential to take the economy to places it has never been before.[24] Second, the SEC has never asserted authority over cryptocurrencies. Even though cryptocurrencies have been around for much of two decades,[25] the SEC did not start taking enforcement actions against cryptocurrency exchanges until 2022.[26] Third, the SEC is trying to stop a debate that has raged in the law reviews for years over what Congress can or should do to regulate cryptocurrencies. But Congress has the responsibility to assert its authority to control the money supply in interstate commerce.[27] And Congress has never tasked the SEC with doing so through rulemaking by district court enforcement action.

Because this case is a quintessential major questions case, the SEC must demonstrate it has a clear congressional authorization to regulate cryptocurrencies.

2. The SEC’s attempted regulation implicates the federalism canon.

The SEC’s attempt to regulate cryptocurrencies “would upset the usual constitutional balance of federal and state powers,” so “federal courts [must] be certain of Congress’ intent before finding that federal law overrides this balance.”[28]

Consumer protection is uniquely the States’ domain. Garden variety fraud is a state law cause of action.[29] Meanwhile, States have enacted a bevy of laws that bar unfair or unconscionable trade practices.[30] But federal securities law preempts state consumer protection law in many instances.[31] Bad faith actors will almost assuredly argue that the SEC’s treatment of cryptocurrency scams precludes any state-level enforcement actions against them. So, the SEC’s foray into consumer protection threatens to tear down States’ delicately balanced statutory schemes and common law causes of action. And it risks not only upsetting any given State’s approach to regulation but also preempting those regulations.

Because the SEC is trying to intrude on an area of the law that is uniquely within the purview of the States, it must point to “unmistakably clear” language authorizing it to do so.[32] And it cannot.

3. No statute clearly authorizes the SEC to regulate the sale of cryptocurrencies.

No one contests that the SEC has general authority to prosecute people for engaging in securities fraud.[33] But general language is not enough to overcome a clear statement rule. For example, the Supreme Court in Atascadero refused to hold California waived its sovereign immunity, even though the California Constitution gave its citizens the general right to sue the State.[34] And the Court in Gregory refused to strike down Missouri’s age limits for judges, even though the law banning age discrimination applied to the States.[35]

What is more, clear statement rules like the major questions doctrine and the federalism canon prevent Congress from “hid[ing] elephants in mouseholes.”[36] Here, the Securities Act’s definition of a “security” is long and includes several dozen different types of investment vehicles.[37] The word “investment contract” is buried in the middle of that lengthy definition.^[38] To read the Securities Act and find that Congress allowed the SEC to regulate cryptocurrencies as investment contracts would be finding a mammoth in that mousehole. And the SEC recognizes that, which is why it has proceeded on this ad hoc basis of seriatim enforcement actions rather than through rulemaking that would exceed its authority.

B. Precedent forecloses the SEC’s position.

Applying longstanding precedent to the Securities Act shows that cryptocurrencies are not investment contracts. The Supreme Court has explained that investment contracts must be a contract “whereby [(1)] a person invests his money in [(2)] a common enterprise” (3) through which the investor would “expect profits solely from the efforts of the promoter or a third party.”^[39] A financial instrument meets Howey’s first prong only if the investor can make “a voluntary investment choice.”^[40] A financial instrument meets Howey’s second prong only if “the fortunes of the investor are interwoven with and dependent upon the efforts and success of those seeking the investment or of third parties.”^[41] And a financial instrument meets Howey’s third prong only if someone other than the investor has “managerial” control that could “affect the failure or success of the enterprise.”^[42]

If cryptocurrencies look like a strange fit for the Supreme Court’s definition of an investment contract, it is because they are. When the average person thinks of investing in an “enterprise” they think of investing in a business. That is why the Ninth Circuit held speculating in gold futures did not create an investment contract—investing in a product involves reliance on the price of the underlying product, not someone’s business acumen.^[43] So too with cryptocurrencies; the value of a cryptocurrency has nothing to do with the success of a business and everything to do with the price of the underlying token. Since the investor is not investing in a business, it would be weird to hold that speculating in cryptocurrencies creates an investment contract within the SEC’s jurisdiction.

1. Cryptocurrency trading does not involve contracts under Howey.

Howey’s test is often described as having three-prongs but there is also a fourth prong that the SEC’s approach violates—that is, that the financial instrument be a contract.[44] As one commentator has explained, “speculat[ing] on a global market” will not involve investment contracts “without any post-sale obligations undertaken by the seller.”[45] In other words, the “meeting of the minds” that forms the backbone of American contract law, never happens when someone speculates in cryptocurrencies.[46]

And that makes sense. Calling a stock a contract (and, by extension, an investment contract) is reasonable because there is a meeting of the minds. For example, an investor could pay Apple at an IPO in return for a share of stock representing a piece of the company’s ownership. That investor understands Apple has a duty to maximize its value to its investors. But that agreement does not exist for cryptocurrencies. There is no one to call at Bitcoin Headquarters who can allow you to buy shares of Bitcoin in exchange for Bitcoin, Inc. maximizing shareholder value. Treating a Bitcoin like a share of Apple stock is a category error. Without an underlying agreement between the purchaser and the seller there is no meeting of the minds—the fundamental requirement of a contract. That alone precludes calling cryptocurrencies investment contracts.

2. Normal cryptocurrencies fail under Howey, even assuming they involve a contract.

The preliminary problems take cryptocurrencies outside of Howey’s reach. But even if they did not, cryptocurrencies do not satisfy Howey.

First, there is no investment under Howey. “[T]here are many reasons one would buy Bitcoin or Ethereum not as an investment; the common one being to transact anonymously.”[47] If the person buying the cryptocurrency does so to use it as currency, they are not investing. By way of analogy, although someone might buy Euros because they hope they will increase in value, another person might buy Euros to buy goods on a trip to Europe. That is not investing in Euros. So too here. The person buying cryptocurrency is not investing their money because the goal is to use the cryptocurrency to make purchases, not wait for it to increase in value.

Second, there is not necessarily a common enterprise when someone buys cryptocurrency. A cryptocurrency buyer’s fortunes are not interwoven with an entity seeking an investment—nobody is seeking an investment. Bitcoin is a currency that is designed to serve as a store of value and a way to make purchases. In that way Bitcoin is like other currencies, from the Swiss Franc to the British Pound Sterling. Just as those currencies are not businesses seeking an investment, many cryptocurrencies are not businesses seeking an investment, either.

That makes sense given the reasons cryptocurrencies’ value fluctuates. With most investments, the success of the business determines the value of a given security—the value will increase during the good times and decrease during the bad times.[48] But a cryptocurrency is not a business, so it does not increase or decrease in value based on whether the business is doing well or poorly. Instead, the value of a given cryptocurrency is simply whatever the next person in line is willing to pay for it. Put differently, someone investing in a business is betting on the company doing well. Someone “investing” in a cryptocurrency is betting on the willingness of other people to bet on the success of the cryptocurrency. As a result, the fortunes of the investor are not interwoven with or dependent upon the fortunes of the person seeking the investment.

The SEC has argued that “the promoter[]” of the cryptocurrency can serve as the person seeking the investment for Howey’s second prong,[49] but that proves too much. For context, celebrities and social media influencers will promote a cryptocurrency the same way they might endorse a pair of headphones. But if that were sufficient to meet Howey’s second prong, then any investment advisor who recommends a specific investment would be enough, too.

Congress did not want to turn a financial instrument into an investment contract simply because someone recommended that the investor buy it. What is more, it is unclear how the influencer’s success is interwoven with the investor’s success. The influencer would (ostensibly) either receive a flat fee or a commission for the endorsement deal, while the investor’s profit would fluctuate with the value of the cryptocurrency. Because the influencer’s profits do not change with the investor’s, their success is not interwoven with the investor’s success under Howey.

Indeed, the case the SEC mainly relies on shows why that argument must fail. In Securities and Exchange Commission v. International Loan Network, Inc., a group of people was found to have illegally sold unregistered securities.[50] But the unregistered security there was shares in a business, and the promoters of that business were the owners of that business. Rather than being a third-party influencer, the people seeking the investment were the ones who stood to profit off the investment.

Third, the profits do not come solely through the acts of a third party. There is no business, so for many cryptocurrencies no one exercises managerial control over the cryptocurrency.[51] In those cases, the token’s seller and buyer set the price, even if those cryptocurrencies have a management structure. After all, buying a cryptocurrency is often a bet that other people will be willing to buy that currency later. And a cryptocurrency purchaser can influence whether people are willing to buy his tokens later by changing the price at which he is willing to sell the token. But those pricing decisions are made by the cryptocurrency owners, not a business management team.

C. Cases finding cryptocurrencies to be investment contracts are unpersuasive.

The District of Connecticut found that the cryptocurrency Paycoin was an investment contract, but that is because Paycoin was a stock.[52] The token represented shares in the defendant company.[53] And no one disputes that a stock is an investment contract under Howey. That is also why the Southern District of New York’s reasoning in Terraform Labs and Kik Interactive is unhelpful—in both cases, a company was selling stocks by a different name.[54] A company cannot avoid the SEC regulation through clever attempts at labeling.

That distinction sounds technical, but it matters. The tokens at issue in those cases were all investments in a company. The fluctuations in the tokens’ values were really fluctuations in the companies’ values. That differs from the ordinary cryptocurrency. In those circumstances, the SEC is not trying to regulate the purchase and sale of traditional stocks or shares in a company. Rather, the SEC is trying to regulate cryptocurrencies generally, not tokens connected to the value of the company that issued the cryptocurrencies.

To be clear, the SEC is not powerless when someone uses the words “cryptocurrency” or “blockchain” to try to launder what would otherwise be an investment contract into a cryptocurrency. Howey “is to be applied in light of ‘the substance—the economic realities of the transaction—rather than the names that may have been employed by the parties.’”[55] So, the SEC’s authority does not extend to all “cryptocurrencies”—it only applies to tokens that also meet the traditional definition of investment contracts.

Indeed, the nuance in this discussion highlights why the SEC’s position is such a gross overreach. Like the Covid pandemic, the challenges of cryptocurrencies require “a delicate exercise of” regulatory power.[56] But “rather than a delicately handled scalpel, the [the SEC’s position] is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in” the financial instruments it is trying to regulate.[57]

Conclusion

The SEC’s decision to engage in a scorched earth campaign of rulemaking by district court enforcement action on cryptocurrencies is a decision without a basis in law. And the repercussions are most likely to be felt by States—States that do not appreciate intrusions on their sovereign police powers. Even worse, many of those effects are likely both unforeseen by the SEC and quite foreseeable—had the SEC chosen the more appropriate path of explaining itself through rulemaking. Beyond the effect on States, the SEC’s unexplained arrogation of authority risks stepping far beyond the bounds that Congress authorized. And so, the SEC should tread carefully. An aggressive regime of enforcement may spur the Courts to assess the SEC’s actions under the many tools at their disposal to curtail instances of federal overreach.

* Eric Wessan is the Solicitor General of Iowa. He received his Bachelor’s Degree and J.D. from the University of Chicago. Phil Pillari is a J.D. candidate at Northwestern University, and he received his Bachelor’s Degree from Ramapo College of New Jersey. The views expressed in this article are those of the authors alone and not those of any employer or government agency.

[1] 1:23-cv-08138 (E.D.N.Y.).

[2] Compl. ¶ 43, SEC v. SafeMoon LLC, 1:23-cv-08138 (E.D.N.Y. Nov. 1, 2023).

[3] SEC, Crypto Assets and Cyber Enforcement Actions, https://perma.cc/5SGL-TF3Y; see also In re Wines, SEC No. 3-21682 (2023) (involving cryptocurrency token that was functionally equivalent to fiat currency); SEC v. DeSalvo, 2:23-cv-08092 (D.N.J.).

[4] See, e.g., Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244, 2262 (2024) (holding that courts must “exercise independent judgment on questions of law”).

[5] See, e.g., CFTC, The CFTC’s Role in Monitoring Virtual Currencies (last accessed on July 25, 2024), available at https://www.cftc.gov/digitalassets/index.htm; Jacob Bogage, House votes to make CFTC main crypto regulator, a win for the industry, Washington Post (May 22, 2024); Eleanor Terrett, Coinbase sues SEC, FDIC for information relating to crypto regulation, FoxBusiness (June 27, 2024).

[6] Cf. Grayscale Investments, LLC v. SEC, 82 F.4th 1239, 1249 (D.C. Cir. 2023) (finding arbitrary and capricious differential treatment of similar cryptocurrency products).

[7] Paul Andersen, Note and Comment, Will the FTX Collapse Finally Force U.S. Policymakers to Wake Up?: Regulatory Solutions for Cryptocurrency Tokens Not Classified As Securities Under the Supreme Court’s Howey Analysis, 18 J. Bus. & Tech. L. 251, 257 (2023).

[8] Id. (quotation marks omitted).

[9] Id. (footnotes omitted).

[10] Id. at 257–58 (footnote omitted).

[11] Id. at 258 (quotation marks omitted).

[12] Id.

[13] Id. (footnotes omitted).

[14] Brett Hemenway Falk & Sarah Hammer, A Comprehensive Approach to Crypto Regulation, 25 U. Pa. J. Bus. L. 415, 419 (2023).

[15] See Chelsea Pieroni, La Crypto Nostra: How Organized Crime Thrives in the Era of Cryptocurrency, 20 N.C.J.L. & Tech. Online 111, 133–34 (2018).

[16] West Virginia v. EPA, 597 U.S. 697, 721 (2022) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000)) (quotation marks omitted).

[17] Ala. Ass’n of Realtors v. Dep’t Health & Hum. Servs., 594 U.S. 758, 764 (2021) (per curiam) (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)) (quotation marks omitted).

[18] West Virginia, 597 U.S. at 723 (quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)) (cleaned up).

[19] See, e.g., Nat’l Fed. Indep. Bus. v. OSHA, 595 U.S. 109, 117 (2022) (per curiam) (applying the doctrine to OSHA’s vaccine mandate because it covered over 84 million people); West Virginia, 597 U.S. at 723–24 (EPA’s attempt to regulate carbon emissions was subject to major questions scrutiny because the agency tried to assert authority over almost the entire economy); Ala. Realtors, 594 U.S. at 764 (invoking the major questions doctrine when evaluating the CDC’s eviction moratorium because it covered “[a]t least 80% of the country, including between 6 and 17 million tenants at risk of eviction”).

[20] See, e.g., Louisiana v. Biden, 55 F.4th 1017, 1029–30 (5th Cir. 2022) (holding unconstitutional the federal government’s vaccine mandate for government contractors because the Procurement Act had never been used to regulate public health issues); NFIB, 595 U.S. at 117 (a workplace safety agency trying to regulate public health for the first time); Ala. Realtors, 594 U.S. at 764 (the CDC, a public health agency, regulating landlord-tenant relationships).

[21] See, e.g., Texas v. Nuclear Reg. Comm’n, 78 F.4th 827, 844 (5th Cir. 2023) (applying the doctrine to rules governing nuclear waste disposal—a “hotly politically contested” issue “for over half a century”); Biden v. Nebraska, 600 U.S. 477, 504 (2023) (hundreds of billions of dollars in student debt forgiveness that was near constant Congressional debate); West Virginia, 597 U.S. at 701 (regulation of carbon emissions that would resolve “how much coal-based” pollution the government would tolerate “over the coming decades”).

[22] Compl. ¶ 29, Lejilex v. SEC, 4:24-cv-00168 (N.D. Tex. Feb 21, 2024).

[23] Id.

[24] Id. ¶ 30.

[25] Andersen, supra note 7, at 257.

[26] See Compl. ¶ 47, Lejilex, supra, note 22; see also Util. Air Regul. Grp. v. EPA., 573 U.S. 302, 324 (2014) (noting that courts should be skeptical “[w]hen an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy’” (quoting Brown & Williamson, 529 U.S. at 159)).

[27] See U.S. Const. art. I, § 8, cls. 3, 5.

[28] Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243 (1985)) (quotation marks omitted).

[29] See, e.g., Bowden v. Med. Ctr., Inc., 845 S.E.2d 555, 563 n.10 (Ga. 2020); Koury v. Ready, 911 So. 2d 441, 445 (Miss. 2005); Beeck v. Aquaslide ‘N’ Dive Corp., 350 N.W.2d 149, 155 (Iowa 1984).

[30] See, e.g., Iowa Code § 537.5108; Mo. Rev. Stat. § 407.020.1; N.J. Stat. Ann. § 56:8-2.

[31] See 15 U.S.C. § 77r.

[32] Gregory, 501 U.S. at 460 (quoting Atascadero, 473 U.S. at 242).

[33] See 15 U.S.C. § 78u.

[34] 473 U.S. at 241.

[35] 501 U.S. at 466–47.

[36] Whitman, 531 U.S. at 468.

[37] 15 U.S.C. § 77b.

[38] See id.

[39] SEC v. W.J. Howey Co., 328 U.S. 293, 298–99 (1946).

[40] Matassarin v. Lynch, 174 F.3d 549, 561 (5th Cir. 1999).

[41] SEC v. Koscot Interplanetary, Inc., 497 F.2d 473, 478 (5th Cir. 1974) (quoting SEC v. Glenn W. Turner Enterprises, Inc., 474 F.2d 476, 482 n.7 (9th Cir. 1973)).

[42] SEC v. Arcturus Corp., 928 F.3d 400, 409–10 (5th Cir. 2019) (quoting Williamson v. Tucker, 645 F.2d 404, 418 (5th Cir. 1981)).

[43] See SEC v. Belmont Reid & Co., 794 F.2d 1388, 1391 (9th Cir. 1986).

[44] See, e.g., Howey, 328 U.S. at 298–99.

[45] Matt Donovan, Note, Ripple Effect: The SEC’s Major Questions Doctrine Problem, 91 Fordham L. Rev. 2309, 2319 (2023).

[46] See, e.g., Peak v. Adams, 799 N.W.2d 535, 544 (Iowa 2011); Chisholm v. Ultima Nashua Indus. Corp., 834 A.2d 221, 225 (N.H. 2003); Milner v. Milner, 360 S.W.3d 519 (Tex. App. 2010), aff’d, 361 S.W.3d 615 (Tex. 2012); see also id. at 2340 (noting that the average secondary buyer—that is, someone who buys cryptocurrency off an exchange—“has no legal relationship” with whoever invented that coin).

[47] Justin Henning, Note, The Howey Test: Are Crypto-Assets Investment Contracts?, 27 U. Miami Bus. L. Rev. 51, 65 (2018).

[48] See generally, e.g., Dura Pharms., Inc. v. Broudo, 544 U.S. 336 (2005).

[49] See Jerry W. Markham, Securities and Exchange Commission vs. Kim Kardashian, Cryptocurrencies and the “Major Questions Doctrine”, 14 Wm. & Mary Bus. L. Rev. 515, 540 (2023) (quoting SEC guidance).

[50] 968 F.2d 1304, 1305 (D.C. Cir. 1992).

[51] See Arcturus, 928 F.3d at 409–10.

[52] See Audet v. Fraser, 605 F. Supp. 3d 372, 394 (D. Conn. 2022).

[53] Id. at 381.

[54] SEC v. Terraform Labs Pte. Ltd., 2023 WL 4858299, at *13 (S.D.N.Y. July 31, 2023); SEC v. Kik Interactive Inc., 492 F. Supp. 3d 169, 177–78 (S.D.N.Y. 2020).

[55] Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Daniel, 439 U.S. 551, 558 (1979) (quoting United Hous. Found., Inc. v. Forman, 421 U.S. 837, 851–52 (1975)).

[56] BST Holdings, LLC v. OSHA, 17 F.4th 604, 612 (5th Cir. 2021) (quoting Pub. Citizen Health Rsch. Grp. v. Auchter, 702 F.2d 1150, 1155 (D.C. Cir. 1983)) (cleaned up).

[57] Id.