Water and Federalism in Texas v. New Mexico – Frances Williamson

Posted by JLPP on Jul 30, 2024 in Per Curiam

Water and Federalism in Texas v. New Mexico

Frances Williamson*

Drought plagues the western United States.[1] California, Colorado, Arizona, New Mexico, and Texas, among others, rely heavily on the dwindling flow of two major rivers: the Colorado River and the Rio Grande River. These rivers provide millions with drinking water and support hundreds of thousands of acres of agriculture. As the water disappears, states, tribes, and communities are left wondering what the future holds in a dry climate.

Unsurprisingly, scarcity and apprehension generate conflict. Last year, the Supreme Court heard Arizona v. Navajo Nation, a case that set the Navajo tribe against western states and the federal government as it tried to gain guaranteed protection of tribal water.[2] The water at-issue flowed within the banks of the Colorado River, a body of water that is no stranger to dispute and litigation.[3] What made this case so interesting was not just its implications for the Colorado River Compact or its impact on tribal resources. The Colorado River spurred litigation that gave great insight into federal power as it relates to the ability of other governments to control, use, and preserve their natural resources.

And this past spring, another river made its way to the Supreme Court—the Rio Grande.

This note discusses the implications of the Court’s recent decision in Texas v. New Mexico and Colorado, a case that concerns a state-state agreement related to water apportionment and groundwater pumping along the Rio Grande. The Court’s recent decision undermines the historical function of the states to define and protect water rights, and it weakens the interstate compact as a tool for future state-to-state negotiation and innovation. The majority’s holding creates three obstacles: 1) it limits future cooperation of states when faced with federal intervention in water disputes, 2) it undermines the “cooperative federalism” in interstate water law, and 3) it restrains the ability of states to adapt to unique hydrogeological realities. Even for those uninterested in water law, the currents swirling underneath this opinion speak to the current, and future, balance of federal and state power in the management of this country’s natural resources.

I. History and previous litigation

This case concerns the Rio Grande Compact, an interstate agreement between Colorado, New Mexico, and Texas that apportions the Rio Grande’s waters among the states.^[4]

In 1906, the United States and Mexico entered into a treaty wherein the U.S. promised to keep available 60,000 acre-feet of water in the Rio Grande.^[5] To comply with this obligation, the Bureau of Reclamation constructed the Elephant Butte Reservoir in New Mexico, about 100 miles north of Texas’s eastern border. The federal government split the remaining reserved water between New Mexico and Texas and entered separate contracts with each state—the “Downstream Contracts.” For New Mexico, the Bureau agreed to supply the Elephant Butte Irrigation District with enough water for 88,000 irrigable acres. For Texas, the Bureau agreed to supply the El Paso County Water Improvement District with enough water for 67,000 irrigable acres.^[6]

The remainder of the Rio Grande’s water—water not captured and reserved by the Bureau of Reclamation’s Rio Grande Project—was apportioned by the states themselves. In 1938, the states entered into the Rio Grande River Compact.^[7] Essentially, the Compact determined how much water each state delivered to the next.^[8] Colorado must deliver a certain amount of water to New Mexico. New Mexico, in turn, must deliver water to the Elephant Butte Reservoir, which would feed the portion of the Rio Grande that flowed into Texas.^[9] The Compact also realized the role of the Bureau and USGS in monitoring water delivery, especially between the Elephant Butte Reservoir and Texas’s water district. Congress approved the Compact, and it became binding law.

But the situation soon became turbulent. Within twenty years of the Compact’s passage, drought began affecting the southwestern states. As a result, irrigators in New Mexico south of the Elephant Butte Reservoir began pumping groundwater, which decreased the amount of water that actually flowed across the New Mexico-Texas border.^[10]

Decades later, in 2013, Texas sued New Mexico in the Supreme Court of the United States for declaratory and injunctive relief (Texas v. New Mexico, or Texas I). Texas wanted to prevent New Mexico from interfering with the passage of water through the Rio Grande Project; New Mexico water users needed to stop groundwater pumping south of the Reservoir. In 2014, the U.S. sought to intervene in the suit.^[11]

The Supreme Court ruled in its favor, rejecting the recommendation of the Special Master that the U.S.’s claims be dismissed.^[12] But the majority opinion, authored by Justice Gorsuch, noted that simply because Congress plays a role in approving interstate compacts, it does not necessarily follow that the federal government  automatically receives “blanket authority to intervene in cases concerning the construction of those agreements.”^[13] The opinion set out four justifications for the U.S. to intervene: 1) the Rio Grande Compact was “inextricably intertwined” with the Downstream Contracts; 2) New Mexico conceded that the U.S. “plays an integral role in the Compact’s operation”; 3) New Mexico’s breach of the compact jeopardized the US’s delivery of water to Mexico; and 4) the U.S. sought substantially the same relief as Texas, a signatory state.[14]

Notably, the opinion stated that “This case does not present the question whether the United States could initiate litigation to force a State to perform its obligations under the Compact or expand the scope of an existing controversy between States.”[15] The Court explicitly reserved judgment on whether the U.S., on its own, could bring suit against a Compact state.

After the U.S. intervened, litigation continued for almost ten years. Until, finally, the states made a breakthrough—Texas and New Mexico negotiated a consent decree that complied with the Compact and settled the dispute between the states. Specifically, the decree updated the method used to calculate the amount of water New Mexico had to deliver downstream to the Texas border. This new method permitted New Mexico users to pump at slightly elevated rates[16] and modified the amount of water New Mexico had to store in the Elephant Butte Reservoir. Texas received sufficient water from the Reservoir, and New Mexico water users kept pumping.

But despite the states’ agreement, the U.S. objected, and claimed the consent decree would dispose of its Compact claims without its consent. The Special Master disagreed, and the U.S. filed an exception.

II. The current case

The U.S. claimed that New Mexico’s groundwater pumping violated the terms of the Compact—similar to the claim brought by Texas in the prior litigation (Texas I). Specifically, the U.S. argued New Mexico must comply with incredibly low groundwater pumping rates.[17] Although Texas had sought the same relief in Texas I, it no longer asserted that claim. Therefore, the Court faced the question it previously avoided: Can the federal government continue litigation and force a state to perform its Compact obligations, even when no other signatory state maintained those claims?[18]

The majority determined that it could. The federal government had “its own, uniquely federal claims under the Compact,” and the consent decree would dispose of those claims.^[19] Because the federal government had to deliver water to New Mexico and Texas under the Downstream Contracts, as well as Mexico under the 1906 treaty, the U.S. could intervene and styme the consent decree. Besides, the majority concluded, the Court had already given the U.S. permission to intervene in Texas I.[20]

Ironically, Justice Gorsuch, the author of Texas I, wrote a passionate dissent. He made several points that undermined the majority’s decision:

1. The consent decree is not inconsistent with the Compact or other congressional decree.^[21]
2. The government’s claims expands the scope of the original dispute between Texas and New Mexico.^[22]
3. This action undermines historical reliance on state water law and cooperative federalism.^[23]

Not only did the majority mischaracterize Texas I, but it also disregarded the deference historically accorded states to navigate water disputes between themselves. The U.S. did not have the power to “assert essentially any Compact-related claims” on its own. [24] The Court confused narrow permission to intervene with an ongoing license to intervene in Compact cases.[25]

At the end of his dissent, Gorsuch wrote three brief statements—two questions, and one warning. Each of these sentences, transcribed below, connect to three obstacles created by the majority’s decision: 1) it limits future cooperation of states when faced with federal intervention in water disputes, 2) it undermines the cooperative federalism in interstate water law, and 3) it restrains the ability of states to adapt to unique hydrogeological realities. In a broader context, these obstacles suggest a growing imbalance in state and federal power.

III. Ramifications

A. Limiting federal intervention

“But in light of the veto power the Court seemingly awards the government over the settlement of an original action, what State in its right mind wouldn’t object to the government’s intervention in future water rights cases?”^[26]

Rivers pay no heed to jurisdiction, some spanning as many as seven states in their journey from headwaters to delta.^[27] The way one state treats an interstate water source inherently affects the uses of its neighbors. For example, if farmers in Arkansas diverted all the water from the Mississippi River, riparian crops in Louisiana would not receive any of its beneficial flows. Interstate water requires interstate management.

Compacts became a way to mitigate the harms states impose through excessive pumping, irrigation, and various other forms of diversions. State delegates met and determined the proper allocation of river water among the relevant states. The states then signed the contract and submitted it for Congress’s approval.[28] Today, over 20 different compacts (in various iterations) exist.^[29] The terms of each compact differ greatly—some simply allocate volumes of water to individual states, and others set minimum guidelines for shared water management.^[30]

Even the judiciary recognized the superiority of compacts as a tool for state to resolve water disputes. The Supreme Court wrote that issues with interstate water management are “more likely to be wisely solved by co-operative study and by conference and mutual concession on the part of representatives of the States so vitally interested in it than by proceedings in any court however constituted.”^[31] The Court plays a role in enforcing Compact terms through original jurisdiction.[32] Since 2015, the Supreme Court has resolved disputes involving the Republican River Compact,^[33] the Yellowstone River Compact,^[34] and other attempts to equitably apportion aquifers and basins.^[35] Compacts remain an important tool for conflict resolution between states, and the Court plays a role in maintaining their efficacy.^[36]

The Court’s decision in Texas v. New Mexico risks undermining this reliable mechanism for resolving interstate water disputes by showing states the risk of federal intervention. States will hesitate, if not balk, when faced with federal interference in a compact dispute. Rather than acknowledge federal interests, western states may disregard them in an attempt to obscure the need for federal intervention.

Admittedly, it is important that the U.S. retain the right to intervene in compact disputes. The federal government holds reserved water rights for dozens of American Indian tribes, as well as endangered species living in interstate waters. And states are often accused of devaluing—or totally ignoring—these rights.^[37] If the federal government does not intervene on their behalf, those water rights may disappear.

But, as the dissent notes, even if the Court rejected the government’s individual claim, the U.S. had access to the lower federal courts.^[38] Rather than intervene in an original jurisdiction compact dispute, the federal government would bring a separate suit disputing the compact’s effect on federal reserved water rights. For example, in this case, the federal government could initiate action against New Mexico for impeding its ability to honor its 1906 treaty with Mexico. Similarly, the federal government can sue in lower federal court if a compact allocated too much water to a state and impeded the water rights of a federally-recognized tribe.^[39] The drastic result that the majority envisioned did not come from necessity; the federal government had other legal avenues to protect federal water rights.

Justice Gorsuch exposes this concern and identifies the existential threat Texas v. New Mexico creates for the future of interstate water compacts. The Court gives the federal government license to undo signatory state efforts to resolve water disputes, simply because the U.S. is interested in the disputed water.[40] Even if the federal government chooses not to exercise the full extent of this intervening power, states that would prefer negotiation to litigation may be hesitant to pursue such a path. Why expend resources settling out of court when the federal government will block you later?[41] States will resist attempts by the U.S. to intervene on behalf of reserved water rights. The government should celebrate negotiations between compact signatory states as efficient and effective means of water dispute resolution. Instead, the majority’s decision clouds negotiations with doubt.

B. Undermining cooperative federalism

“If, as happened here, even heavily caveated permission to intervene may end up federalizing an interstate dispute, what State (or Court) would ever want to risk letting the nose make it under the tent?”^[42]

The majority granted the federal government the power to intervene in a compact dispute between signatory states. Specifically, it let the government disturb a complex negotiation process, claw back the authority and autonomy of the states, and upset the delicate balance built by a compact. In this way, Texas v. New Mexico contradicts the practice of cooperative federalism in water law jurisprudence.

Cooperative federalism involves federal deference to state water law and federal adherence to state water compacts.[43] This concept dates back to 1902, when Congress passed the Reclamation Act. The Act authorized the Department of the Interior to construct irrigation infrastructure in areas designated by the Secretary of the Interior in the western states. But the grant of authority to a federal department did not diminish the role of the states in water management. The Act stated:

“Nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior . . . shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof.”^[44]

Congress ensured the Reclamation Act did not eviscerate state water law. The federal government was bound, in this context, by state law.

Cooperative federalism recognizes the role that states and the federal government play in water management. The majority’s decision undermines this historic balance and allows the federal government to demolish a state-state agreement. As Justice Gorsuch writes, the agreement between Texas and New Mexico disappeared because the federal government would not “accept a settlement providing it with everything it once sought, and now seeks to promote the use of an alternative 1938 baseline that no party seeks and New Mexico represents could cost it tens of thousands of jobs and a large segment of the State’s economy.”[45] The consent decree did not violate the Rio Grande Compact, nor did it practically impair the Bureau of Reclamation’s functions. In fact, the consent decree promised to end a ten-year dispute without further controversy. But the majority permitted the U.S. to transform a state-state negotiation into federal litigation. The decision undermined the autonomy of the states to make state-to-state water allocation decisions, and it threatened the framework of water law jurisprudence established at the turn of the century.

C. Restraining state adaptation

“In that way, too, I fear the majority’s shortsighted decision will only make it harder to secure the kind of cooperation between federal and state authorities reclamation law envisions and many river systems require.”^[46]

Finally, and potentially most concerning, the majority’s opinion threatens to restrain attempts by the state to adapt to drought conditions. In an amicus brief, a group of water law professors wrote that “the Consent Decree account[ed] for the most serious hydrological threat to the Basin since the groundwater revolution: aridification caused by climate change.”[47] The consent decree employed an “aridity adjustment” that required an annual adjustment to the measuring index.[48] Texas and New Mexico could account for increased rates of evaporation, and insufficient replenishment, in this manner.[49] The consent decree represented state innovation in the face of drought.

For example, the consent decree made the forward-thinking shift to integrate groundwater and surface water.[50] Not all western states treat surface water and groundwater as connected, and many states apply different laws of ownership to each.[51] But the integration of both systems allows lawmakers to account for the hydrological reality that groundwater and surface water are connected. Laws in integrated systems regulate water rights in ways that match the natural world. The consent decree, once again, exemplified state adaptation to changing ecological circumstances.

The consent decree helped the signatory states adapt to drought and decreased rainfall, and the Court allowed the federal government to stifle it. Will states feel the same incentive to experiment and innovate if they fear federal intervention? Does the lack of federal cooperation in Texas v. New Mexico discourage states hoping to bring their compacts into alignment with a changing western landscape? The Court’s decision chills the willingness of states to adjust interstate compacts in accord with an era of drought. The principles adopted in Texas v. New Mexico will impact how western states handle water-management challenges in the future, maybe for the worse.

*                       *                       *

This case speaks to more than groundwater pumping in New Mexico. It addresses the future of this nation’s natural resources management, and it potentially undermines the role of the states in that vital endeavor. States protect the water rights of their citizens, and interstate compacts became a successful avenue for dispute resolution. The Court’s recent decision destabilizes that historical function and weakens the interstate compact as a tool for state-to-state negotiation and innovation. The federal government’s new license to intervene may limit the cooperation of states when faced with federal intervention in water disputes. And the reasoning of the majority’s opinion undermines the historic “cooperative federalism” principle of interstate water law. Finally, the decision restrains the ability of the states to adapt to unique hydrogeological realities, as any state-led experimentation may be vetoed by the federal government. The balance of federal and state power shapes the future of water in the West. Texas v. New Mexico strains that balance.

* Law clerk to Judge Charles Eskridge, U.S. District Court for the Southern District of Texas, 2023–2024. Harvard Law School, J.D. 2023; Rice University, B.A. 2020. All errors are my own.

[1] The Department of the Interior has named the current period of water scarcity “the drought crisis.” U.S. Dep’t of the Interior, Addressing the Drought Crisis, https://www.doi.gov/priorities/addressing-the-drought-crisis [https://perma.cc/J8Y7-F96N].

[2] 599 U.S. 555 (2023).

[3] A 1922 compact—the Colorado River Compact—addresses the complicated allocation of water from the river among various western states and tribes.

[4] H. R. 4997, Public Act No. 96, May 31, 1939.

[5] Texas v. New Mexico, 602 U.S. ___, 2–3 (2024).

[6] Id. at 3.

[7] H. R. 4997, supra note 4.

[8] Id.

[9] Texas, 602 U.S. at 4.

[10] Id. at 4–5.

[11] Texas v. New Mexico, 583 U.S. 407 (2018).

[12] Id.

[13] Id. at 413.

[14] Id. at 413–15.

[15] Id. at 415.

[16] Groundwater pumping was rare in 1938, when the Compact was written. The consent decree allowed pumping to occur at the 1951-1978 rate—“the D2 period”—a period when groundwater pumping was more common.

[17] Specifically, the 1938 groundwater pumping rates—not the higher 1951-1978 rate identified in the consent decree.

[18] Texas v. New Mexico, 602 U.S. ___, 6–8 (2024).

[19] Id. at 12, 16.

[20] Id. at 9–12.

[21] Texas, 602 U.S. at 19 (Gorsuch, J., dissenting) (“Few rules in water law are more settled than that federal reclamation projects must comply with any Compact, state water law, or consent decree term ‘not inconsistent with clear congressional directives respecting the project.’” (quoting California v. United States, 438 U. S. 645, 672 (1978))).

[22] Id. at 21. The U.S. did not previously request a return to the 1938 groundwater pumping baseline, so the consent decree satisfied the interests the U.S. asserted in the original case. Id. at 22, 24.

[23] Id. at 24–25.

[24] Id. at 24.

[25] Id.

[26] Id. at 25.

[27] Noah D. Hall, Interstate Water Compacts and Climate Change Adaptation, 5 Env’t & Energy L. & Pol’y J. 237, 255 (2010); see also Lynn A. Mandarano, Jeffrey P. Featherstone & Kurt Paulsen, Institutions for Interstate Water Resources Management, 44 J. of the Am. Water Resources Ass. 136, 136 (2008).

[28] The Compact Clause in the U.S. Constitution states that “No State shall, without the consent of Congress, . . . enter into any agreement or compact with another State, or with a foreign power.” U.S. Const. art. I, § 10, cl. 3.

[29] Hall, supra note 27, at 260–61.

[30] Id. at 255.

[31] New York v. New Jersey, 256 U.S. 296, 313 (1921); see id. at 257; see also, Amelia I.P. Frenkel, Interstate Water Rights: Take No Drop for Granted, 40 Harv. Env’tl L. Rev. 253, 260 (2016) (“[W]ater compacts have, in modern times, proven to be the favored method of division.”).

[32] The Constitution vests the Supreme Court with original jurisdiction to adjudicate interstate disputes over the meaning of compact terms. See Texas v. New Mexico, 602 U.S. ___, 11 (2024) (Gorsuch, J., dissenting).

[33] Kansas v. Nebraska, No. 126, Orig, 574 U.S. 445 (2015).

[34] Montana v. Wyoming, No. 137, Orig, 538 U.S. 142 (2018).

[35] See Brief of Water Law Professors as Amici Curiae Supporting Respondents, Texas v. New Mexico, 602 U.S. ___(2023) (No. 141).

[36] “The result of the Court’s approach, when it is successful in securing compliance with pre-existing apportionments, is to preserve, insofar as possible, states’ settled expectations with regard to the availability of water.” Frenkel, supra note 31, at 256.

[37] For example, Arizona v. Navajo Nation was a recent case highlighting state water interests in conflict with tribal water interests. 599 U.S. 555 (2023). Ultimately, the federal government was not forced to maintain responsibility for the Navajo’s water rights—a result desired by the states involved in the litigation.

[38] Here, a dismissal of the government’s claims without prejudice, as recommended by the Special Master, would allow the government “to pursue any valid independent claims it may have in the ordinary course in lower courts.” Texas v. New Mexico, 602 U.S. ___, 15 (2024) (Gorsuch, J., dissenting). And if the government prevailed, it may return to the Supreme Court for modification of the consent decree.

[39] For example, the litigation that culminated in Arizona v. Navajo Nation—litigation that implicated the Colorado River Compact—began in a federal district court and moved to the Ninth Circuit before receiving a grant of cert. 599 U.S. 555 (2023).

[40] Here, the consent decree did not “impose any new improper duty or obligation on the federal government or deny it the ability to pursue any valid claim it may have.” Texas, 602 U.S. at 13 (Gorsuch, J., dissenting). Instead, it merely required the Bureau of Reclamation measure distributed water with the metric it already used—the 1951–1978 numbers. Id.

[41] The dissent notes that, in this case, Texas and New Mexico spent “tens of millions of dollars in lawyers’ fees” over a period of ten years to craft the consent decree. Texas, 602 U.S. at 25 (Gorsuch, J., dissenting).

[42] Id.

[43] Id. at 10–11.

[44] 43 U.S.C. § 383.

[45] Texas, 602 U.S. at 25 (Gorsuch, J., dissenting).

[46] Id.

[47] Brief of Water Law Professors, supra note 35, at 12.

[48] Id.

[49] Id.

[50] Id.

[51] New Mexico, for example, applies a prior appropriation framework to both groundwater and surface water rights; the surface water and groundwater legal frameworks of the State are fully integrated. Stanford: Water in the West, “New Mexico,”  https://groundwater.stanford.edu/dashboard/region.html [https://perma.cc/E8EW-67RL] (last visited May 27, 2024). In Arizona, however, groundwater and surface water are governed by different legal frameworks—they are not integrated. While surface water is public property subject to prior appropriation laws, percolating groundwater is subject to the reasonable use doctrine. Stanford: Water in the West, “Arizona,” https://groundwater.stanford. edu/dashboard/region.html [https://perma.cc/E8EW-67RL] (last visited May 27, 2024).

If You’re Worried About Lina Khan, Then Support Specific Authority Bills – Joel Thayer

Posted by JLPP on Jul 25, 2024 in Per Curiam

If You’re Worried About Lina Khan, Then Support Specific Authority Bills

Joel Thayer*

The adverse impact large tech firms have on children’s mental health and free markets are undeniable.[1] In that vein, Congress has proffered several proposals to address those issues, such as the Kids Online Safety Act (KOSA)[2] and the Open Apps Market Act (OAMA)[3]. KOSA imposes a duty of care on social media companies to protect children from those platforms’ addictive, behavioral functions. OAMA would set guardrails on app store providers, like Apple and Google, from using their dominate position to degrade third-party apps’ functionality or kick them off their respective stores for anticompetitive reasons.

Although the bills have different policy objectives, they share a common enforcer—the Federal Trade Commission (FTC).[4] And while many FTC Chairmen have been restrained in their approach to using the FTC’s authority,[5] current Chair Lina Khan, a noted anti-tech hawk, has not. Khan’s FTC is in the avant garde on many legal theories regarding competition, antitrust, and consumer protection. Chair Khan has pressed ahead with regulatory gusto by challenging the orthodoxy of how the FTC pursues enforcement actions and the orthodoxy on whether it should conduct rulemakings.[6]

And therein lies the rub for some. There are those that argue bills, like OAMA or KOSA, endow the FTC with authority it doesn’t currently have.[7]

So, do bills like OAMA or KOSA actually expand the FTC’s authority? Or, by crafting specific remedies to specific legislative problems, would they instead constrain the FTC’s general authority? I explore these questions in this essay.

I. The FTC’s General Authority is Extremely Broad

The FTC Act allows the Commission to prohibit “unfair or deceptive acts or practices in or affecting commerce” and “unfair methods of competition in or affecting commerce.” [8]  From a purely textualist perspective, that’s quite an expansive remit.

Let’s start with the competition part.  The FTC, in a recent policy statement, found that Section 5 of the FTC Act “reaches beyond the Sherman and Clayton Acts to encompass various types of unfair conduct that tend to negatively affect competitive conditions.”[9]  The Sherman Act and the Clayton Act are, of course, the two statutes that underpin federal antitrust law.[10]

Candidly, Chair Khan’s view is a fair reading of Supreme Court precedent. In FTC v. Ind. Fed’n of Dentists, the Supreme Court held that “[t]he standard of ‘unfairness’ under the FTC Act is, by necessity, an elusive one, encompassing not only practices that violate the Sherman Act and the other antitrust laws.”[11] In FTC v. Sperry & Hutchinson Co, the Court doubled down when holding that “the Commission has broad powers to declare trade practices unfair.”[12] In FTC v. Brown Shoe, the Supreme Court outright said that the FTC “has broad powers to declare trade practices unfair[,] particularly . . . with regard to trade practices which conflict with the basic policies of the Sherman and Clayton Acts.”[13]

In other words, Section 5 authority empowers the Commission to make its own determinations of what an “unfair” practice is. Or as Chair Khan put it, “Section 5 grants the Commission extensive authority to shape doctrine and reach conduct not otherwise prohibited by the Sherman Act….”[14]

II. FTC’s General Rulemaking Authority is Far Broader Than Some May Assume

Unless specified in a supplemental statute (e.g., Children’s Online Privacy Protection Act (COPPA)), the Commission has decided to use Section 6(g) of the FTC Act for rules pertaining to unfair methods of competition (UMC).[15] Section 6(g) empowers the agency to issue rules “for the purpose of carrying out” the statute.[16] However, some argue that Section 6(g) rulemakings only relate to the Commission’s authority to “develop internal procedural rules related to its powers to investigate suspected violations of the law and to publish reports.”[17] Unfortunately, the D.C. Circuit contradicts that notion. In National Petroleum Refiners Association (NPRA) v. FTC, the D.C. Circuit has upheld the Commission using its 6(g) authority to promulgate UMC rules.[18]

In NPRA, the FTC decided to promulgate “Trade Regulations Rules” (TRR) under Section 6(g). A trade association representing petroleum refiners argued that the Commission had no such authority along the same lines as the ones expressed above.[19] However, the D.C. Circuit categorically disagreed and held that “Section 6(g) clearly states that the Commission ‘may’ make rules and regulations for the purpose of carrying out the provisions of Section 5 and it has been so applied.”[20] Its ruling was also consistent with the Supreme Court’s decision in U.S. v. Morton Salt Co. where it held that that the powers within Section 6 do not stand independent of its authority in Section 5.[21] Indeed, the Court explained that “nothing” prevents the Commission from using Section 6 “for any purpose within the duties of the Commission, including [those within] Section 5 . . . .”[22]

Congress has had every opportunity to clarify the FTC’s rulemaking authority after NPRA and hasn’t. Instead, Congress enacted the Magnuson Moss Warranty Federal Trade Commission Improvement Act (Mag-Moss) that neither vacated the FTC’s rulemaking authority nor did it even limit the FTC’s rulemaking authority.[23] Rather, Mag-Moss gave the FTC the authority to issue TRRs related to unfair or deceptive acts or practices under a strict formal rulemaking procedure.[24] The Commission, at this point, can still use its authority under Section 6(g) to promulgate rules concerning unfair methods of competition.[25]

The good news is that we may get some clarity from a group of cases in the Eastern District of Texas where plaintiffs are seeking to challenge the FTC’s rules which mostly ban non-competes.[26] On July 3, 2024, the E.D. Texas expressed significant doubt that the FTC had any substantive rulemaking authority under Section 6(g) when deciding on the parties’ motion for preliminary injunction.[27]  Confusingly, the court did “conclude[] the FTC has some authority to promulgate rules to preclude unfair methods of competition.”[28] However, it does not illustrate where such authority comes from if not Section 6(g).

The court further acknowledged (to only disregard) the clear textual evidence in Section 6(g) to promulgate UMC rules because “the location [of Section 6(g) within the FTC Act] of the alleged substantive rulemaking authority is suspect.” This is an odd statement because the Supreme Court in AT&T Corp. v. Iowa Utilities Bd. deemed the location of the authorized provision irrelevant to interpreting general-rulemaking authority statutes.[29] Faced with a similar issue of statutory construction concerning the Communications Act, the Court found that the Federal Communications Commission’s general grant of rulemaking authority in Section 201(b) allowed it to create rules under other statutes within that same Act to resolve pricing and interconnection disputes for state utility commissions. Justice Scalia wrote that this provision “means what it says: The FCC has rulemaking authority to carry out the ‘provisions of [the 1934] Act.’”[30] There’s no reason the same principle wouldn’t apply to interpreting the FTC Act given the precise language exists in Section 6(g).

Even so, we have yet to get a decision on the merits and the court allowed the rules to move forward, except as it pertains to the plaintiffs at issue. But, even if we get a decision, one wonders if the court will narrow the decision to say that these rules are outside the scope of Section 6(g) without fully deciding on the scope of the FTC’s authority of 6(g) in general. What’s more, either party is likely to appeal the decision, which means the Fifth Circuit will have to decide. Even if the Fifth Circuit disagrees with the FTC, we would likely have a circuit split ripe for Supreme Court review.

For those betting against the FTC, it would be wise not to count your chickens before they hatched. One concerning factor for those in that camp is that Plaintiffs’ argument in the E.D. Texas parallels the same rationale the Respondents presented in Morton Salt.[31] In that their argument requires courts to find or create a statutory chasm between the Commission’s duties in Section 6 and those in Section 5—a premise the Supreme Court categorically rejected. Given that their case relies on a court subscribing to their view, it is ironic that plaintiffs motion neither attempts to distinguish nor even mentions the existence of Morton Salt. At this juncture, we must assume that the FTC is more likely than not correct in its expansive view of its general authority under Section 6 given this and the D.C. Circuit’s opinion in NPRA.

But Section 6 is not its only general rulemaking authority. The FTC also has a trade regulation rulemaking authority under Mag-Moss, or Section 18 of the FTC Act.[32] Under Section 18, the Commission may develop “rules which define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce” within the meaning of Section 5(a)(1) of the Act.[33] The FTC used this authority to initiate rulemakings on online privacy even though Congress has yet to pass one general privacy law. But its rulemaking authority is certainly not limited to data privacy rules.[34] As FTC Commissioner Rebecca Slaughter wrote:

These changes show the FTC is turning the page on decades of self-imposed red-tape and returning to the participatory and dynamic process for issuing Section 18 rules that Congress envisioned . . . .  Section 18 rulemaking means that the Commission will have the ability to issue timely rules on issues ranging from data abuses to dark patterns to other unfair and deceptive practices widespread in our economy.[35]

Note the phrase “self-imposed” restrictions. Hence, these statutes in concert give the FTC an incredible amount of rulemaking avenues from which to choose. And Chair Khan is correct. No court has said the FTC doesn’t have substantive rulemaking authority. It’s all been self-imposed since the passage of Mag-Moss (and the FTC actually did a good number of rulemakings before then).

III. A Salient Remedy Against General Authority Is Specific Authority

One legislative tool that can cut against an agency using its general authority is to create a specific statute. As the Supreme Court succinctly put it in Morales v. Trans World Airlines, Inc.: “[I]t is a commonplace of statutory construction that the specific governs the general.”[36] In HCSC-Laundry v. U.S., the Court further explained that courts ought to read the specific statute governing the general “particularly when the two are interrelated and closely positioned, both in fact being parts of [the same statutory scheme].”[37] Better yet, the Ninth Circuit in Roseman v. United States determined that the specific statute controls over the general statute if the application of the general statute “conflicts” with the specific statute and the general statute temporally precedes it.[38]

To illustrate how specific statutes interplay with general statutes, look no further than the Supreme Court’s opinion in Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP written by the late-Justice Scalia.[39] In that case, the Court considered whether a complaint alleging breach of the Verizon’s duty under the 1996 Telecom Act to share its network with competitors states a claim under Section 2 of the Sherman Act.[40] Justice Scalia wrote that “a detailed regulatory scheme such as that created by the 1996 Act ordinarily raises the question whether the regulated entities are not shielded from antitrust scrutiny altogether by the doctrine of implied immunity.”[41] In other words, a specific antitrust statute may have the effect of trumping the general antitrust statute’s enforcement. What’s more, Justice Scalia goes on to say that when there exists a “detailed regulatory scheme, it would behoove even courts to observe it over the general authority. Doings so may “avoid the real possibility of judgments conflicting with the agency’s regulatory scheme . . . .”[42]

Even the FTC opts for specific authority over general authority when given the choice. For instance, the FTC uses its specific authority under COPPA, as opposed to its general Section 18 authority, to promulgate rules to protect kids from harmful online advertising. The FTC also used its specific authority under the Fairness to Contact Lens Consumers Act, as opposed to its general UMC Section 6(b) authority, to create its Content Lens Rule.[43] The rule ensures that prescribers provide a copy of their contact lens prescriptions at the end of a contact lens fitting so that the patient can compare prices for lenses from other prescribers.[44]

Given this, legislation, like KOSA or OAMA, would have the practical effect of narrowing the FTC’s general authority. Indeed, the recent Supreme Court decisions concerning the major questions doctrine in West Virginia v. E.P.A.[45]and the revocation of the Chevron Doctrine in Loper Bright v. Raimondo[46] may even give specific statutes more weight than general grants of authority. In other words, if Congress provides the Commission with a specific grant and the FTC opts for its general authority, courts will now require the FTC to make an even stronger textual showing that its actions do not conflict or exceed its specific grant.[47] Indeed, Justice Gorsuch signaled this when saying that the major questions doctrine requires Congress to “’speak clearly’ if it wishes to assign decisions ‘of vast economic and political significance’” to any agency.[48] With these precedents, both KOSA and OAMA would provide the FTC with specific statutes oriented towards particularized harms and nullify the threat of the Commission using its general grant of authority.

Let’s start with KOSA. KOSA would specify the types of harms the FTC can regulate and investigate with respect to protecting kids online and, thus, take its Section 5’s deceptive practices prong. Similar to what the Telecom Act did for the Sherman Act in Verizon, KOSA would narrow the FTC’s Section 5 remit with respect to protecting kids from social media platforms and define what harms the FTC could investigate via KOSA’s “duty of care” section that focused only on specific addictive functions. Without KOSA’s duty of care, the FTC has free rein to decide what harms to minors look like in the broadest sense (think back to the text of Section 5).

The same is true with OAMA, because it would limit its Section 5’s unfair competition authority by specifying what competitive harms the FTC can enforce against with respect to the app store market. Section 3 of OAMA articulates what competitive harms look like in the app-store market and would focus the FTC’s remit to looking for specific anticompetitive behaviors. OAMA would prevent Apple and Google from forcing developers into particular exclusive dealings with them, interfering with developers’ communications with their customers, using developers’ non-public data to get an unfair competitive over them, and using their search functions to bury apps. Any use of Section 5 to address competition in app stores in any other way would almost certainly conflict with the provisions of OAMA. Given the current caselaw outlined above, OAMA would preempt any attempt from the FTC to use its expansive Section 5 authority to circumvent it, which has the effect of narrowing it.

As of right now, the FTC seems to have plenty of authority to define competitive harms and deceptive practices any way it sees fit. Hence, to limit the FTC’s authority, Congress may want to look into measures, like KOSA and OAMA, to give the agency more direction in that regard.

* Joel Thayer is president of the Digital Progress Institute and an attorney in Washington, D.C. advising on legal and policy issues concerning antitrust, telecommunications, privacy, cybersecurity and intellectual property. His experience also includes working as a legal clerk for FCC Chairman Ajit Pai and FTC Commissioner Maureen Ohlhausen. Additionally, Joel served as a congressional staffer for the Hon. Lee Terry and Hon. Mary Bono.

[1] See, e.g., Social Media and Youth Mental Health: The U.S. Surgeon General’s Advisory, U.S. Dep’t of Health and Human Services (2023) https://www.hhs.gov/sites/default/files/sg-youth-mental-health-social-media-advisory.pdf [https://perma.cc/T5YX-VNXA].

[2] S. 1409, 118^th Congress (2023).

[3] S. 2710, 117^th Congress, (2021).

[4] See S. 1409 § 11, 118^th Congress (2023); see also, id. § 5

[5] See, e.g., Hon. Maureen K. Ohlhausen, Regulatory Humility in Practice, Remarks to the American Enterprise Institute (Apr. 1, 2015), https://www.ftc.gov/system/files/documents/public_statements/635811/150401aeihumilitypractice.pdf [https://perma.cc/853N-WA7F].

[6] E.g., Kevin Frazier, Return of the National Nanny or Restoration of the Cop on the Beat: The FTC’s Impending Proposed Rule on Commercial Surveillance, The Federalist Society (May 15, 2024) https://fedsoc.org/commentary/fedsoc-blog/return-of-the-national-nanny-or-restoration-of-the-cop-on-the-beat-the-ftc-s-impending-proposed-rule-on-commercial-surveillance [https://perma.cc/79EB-PJ7J]; see also Daniel A. Crane, Antitrust As an Instrument of Democracy, 72 Duke L.J. Online 21, 36 (2022).

[7]  Patrick Hedger (@pat_hedger), X (Jun. 22, 2024, 12:26 p.m.) https://twitter.com/pat_hedger/status/1804551456734806266 [https://perma.cc/8FZW-887T].

[8] 15 U.S.C. § 45 (emphasis added).

[9] Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act Commission, File No. P221202, Federal Trade Commission (Nov. 10, 2022), https://www.ftc.gov/system/files/ftc_gov/pdf/P221202Section5PolicyStatement.pdf [https://perma.cc/26SB-GZVA] (emphasis added).

[10] 15 U.S.C. § 1; 15 U.S.C. § 18; see also 51 CONG. REC. 12146 (1914) (statement of Sen. Hollis) (“The Sherman Act is adequate for the abolition of monopoly; it is, however, but imperfectly adequate for the regulation of competition. The present Congress is charged with the duty of supplying the defect in the law”).

[11] 476 U.S. 447, 455 (1986).

[12] 405 U.S. 233, 243 (1972).

[13] 384 U.S. 316, 230–21 (1966).

[14]  STATEMENT OF THE COMMISSION, On the Withdrawal of the Statement of Enforcement Principles  Regarding “Unfair Methods of Competition” Under Section 5 of the FTC Act, Federal Trade Commission (Jul. 9, 2021), www.ftc.gov/system/files/documents/public_statements/1591706/p210100commnstmtwithdrawalsec5enforcement.pdf [https://perma.cc/3ATM-P5GZ].

[15] Id.

[16] 15 U.S.C. § 46(g).

[17] U.S. Chamber of Commerce Comments to the FTC, Notice of Proposed Rulemaking, Federal Trade Commission; Non-Compete Clause Rule (88 Fed. Reg. 3,482-3,546, January 19, 2023), (Apr. 17, 2023), https://www.uschamber.com/assets/documents/FTC-Noncompete-Comment-Letter_FINAL_04.17.23.pdf [https://perma.cc/WG5Q-U6VE].

[18] 482 F.2d 672 (D.C. Cir. 1972).

[19] Id. at 677.

[20] Id. at 678.

[21] 388 U.S. 632 (1950).

[22] Id. at 650.

[23] Pub. L. 93-637, § 202 (codified at 15 U.S.C. § 57a).

[24] 15 U.S.C. § 57a(1)(A)–(B).

[25] Id. at (2) (“The preceding sentence shall not affect any authority of the Commission to prescribe rules (including interpretive rules), and general statements of policy, with respect to unfair methods of competition in or affecting commerce.”).

[26] Daniel Wiessner, U.S. Judge Pauses Chamber’s Legal Challenge to FTC Noncompete Ban, Reuters (May 3, 2024), https://www.reuters.com/legal/government/us-judge-pauses-chambers-legal-challenge-ftc-noncompete-ban-2024-05-03/ [https://perma.cc/N47Q-9VP4].

[27] Ryan LLC v. Federal Trade Commission, No. 3:24-cv-00986-E, Doc. 153, at 13–19 (N.D. Tex. 2024).

[28] Id. at 15.

[29] 525 U.S. 366 (1999).

[30] Id. at 379.

[31] Plaintiff’s Mot. for Stay of Effective Date and Preliminary Injunction, 17, Chamber of Commerce v. Federal Trade Commission, No. 6:24-cv-00148-JCB (E.D. Tex. 2024).

[32] 15 U.S.C. § 57a.

[33] Id.

[34] Proposed Rule, 87 FR 51273 (2022), Federal Trade Commission https://www.federalregister.gov/documents/2022/08/22/2022-17752/trade-regulation-rule-on-commercial-surveillance-and-data-security [https://perma.cc/U9PW-CKGJ].

[35] STATEMENT OF COMMISSIONER REBECCA KELLY SLAUGHTER, Regarding the Adoption of Revised Section 18 Rulemaking Procedures, Federal Trade Commission (Jul. 1, 2021), https://www.ftc.gov/system/files/documents/public_statements/1591522/joint_rules_of_practice_statement_final_7121_1131am.pdf [https://perma.cc/MXT2-UF4R].

[36] 504 U.S. 374, 385 (1992).

[37] 450 U.S. 1, 7 (1981).

[38] 364 F.2d 18 (9th Cir. 1966).

[39] 540 U.S. 398 (2003).

[40] Id.

[41] Id. at 407.

[42] Id.

[43]The Contact Lens Rule: A Guide for Prescribers and Sellers, Federal Trade Commission (last visited Jul. 3, 2024), https://www.ftc.gov/business-guidance/resources/contact-lens-rule-guide-prescribers-sellers [https://perma.cc/7CBX-UMNR].

[44] Id.

[45] 182 S. Ct. 2587 (2022).

[46] 144 S. Ct. 2244 (2024).

[47] It is important to note that the effect of Loper and West Virginia are far from unclear as it relates to the FTC’s enforcement action. However, courts have suggested that Chevron may apply when evaluating the FTC’s interpretation of its Section 5 authority. LabMD, Inc. v. FTC, 678 F. App’x 816, 820 (11th Cir. 2016) (“We recognize that the FTC’s interpretation of § [5](n) is entitled to Chevron deference, if it is reasonable.”); see also FTC v. IFC Credit Corp., 543 F. Supp. 2d 925 (N.D. Ill. 2008) (citing Chevron and deferring to the FTC’s interpretation under Section 5(n) that the term “consumer” includes businesses that purchase a good).

[48] Nat’l Fed’n of Indep. Bus v. Lab., Occupational Safety & Health Admin., 142 S. Ct. 661, 667 (2022) (Gorsuch, J., concurring) (quoting Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam).

Much Ado About Nothing: Rahimi Reinforces Bruen and Heller – Mark W. Smith

Posted by JLPP on Jul 22, 2024 in Per Curiam

Much Ado About Nothing: Rahimi  Reinforces Bruen  and Heller

Mark W. Smith*

On June 21, 2024, the Supreme Court issued its much-anticipated decision in United States v. Rahimi.[1] In that case, the Fifth Circuit had declared that a federal criminal statute, 18 U.S.C. § 922(g)(8), which prohibits persons subject to domestic violence restraining orders from possessing firearms, violated the Second Amendment. From the day that the Supreme Court granted certiorari, Rahimi was the talk of the town among advocates and opponents of the Second Amendment.[2]

Zackey Rahimi was a violent young man who had attacked his ex-girlfriend, shot up public places, fired at vehicles, and possessed firearms in violation of the state restraining order that his ex-girlfriend had obtained against him, which he did not contest. The Fifth Circuit held that under the historical methodology set forth just two years earlier in New York State Rifle & Pistol Ass’n v. Bruen,[3] there was no historical tradition of disarming individuals subject to such restraining orders. Would the Supreme Court, in this hard case, be forced to walk back or water down Bruen’s analytical framework?

Some had hoped that Rahimi would be the death knell for Bruen and called for the latter to be overruled.[4] But, as Mark Twain once said, responding from London to news printed in American newspapers, “the reports of my death are greatly exaggerated.”[5] As it turned out, predictions of Bruen’s impending demise were also greatly exaggerated. Far from watering down Bruen, all the Court’s writings in Rahimi—even the concurrences and the dissent—firmly cemented Bruen’s approach as providing the governing framework for deciding Second Amendment cases, even as the majority narrowly held that “[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”[6]

I. Rahimi Reiterated, and Relied on, The Bruen Framework

Bruen explicitly relied and elaborated on the method of constitutional analysis that District of Columbia v. Heller[7] employed in Second Amendment cases. It rejected the tiers of scrutiny and any other form of “interest-balancing” test that occasions judicial inquiry into whether the government has a sufficient reason for infringing that constitutional right. Instead, following Heller, Bruen clarified that the appropriate approach in a Second Amendment case centers on “constitutional text and history.”[8] Bruen began with the plain text of the Second Amendment and went on to consider when our historical tradition of firearm regulation might allow some limitation on the right protected by the plain text. Rahimi followed the approach outlined in Bruen.

II. The Plain Text of the Second Amendment Protects Mr. Rahimi’s Conduct

The Second Amendment declares that “the right of the people to keep and bear Arms, shall not be infringed.”[9] If the plain text of the Second Amendment “covers an individual’s conduct,” then that conduct is “presumptively protected” by the Constitution.[10] A regulation infringing on that conduct cannot stand absent a showing that it “is consistent with this Nation’s historical tradition of firearm regulation.”[11] The burden is on the government, not the individual, to show the existence, and then the fit, of that historical tradition.[12]

Mr. Rahimi’s conduct indisputably fell within the plain text of the Second Amendment’s protection of the right of “the people” to “keep” and “bear” “Arms,” and the Court disposed of this threshold issue quickly. Mr. Rahimi is part of “the people,” a term that “unambiguously refers to all members of the political community, not an unspecified subset.”[13] He possessed a rifle and a pistol, which are “Arms” as Heller understood that term. Echoing Heller and Bruen, the Court affirmed that the term “Arms” in the Second Amendment “extends prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence” at the Founding, noting in particular the error of applying the term “only to muskets and sabers.”[14] Because the Constitution is not “a law trapped in amber”[15] but “framed for ages to come,”[16] its enduring text applies to modern circumstances—even those that the Framers could not have foreseen. Just as the First Amendment protects speech on the internet,[17] and the Fourth Amendment protects against tracking devices placed on one’s car without a warrant,[18] the Second Amendment protects the right to keep and bear modern arms.

The federal statute under which Mr. Rahimi pleaded guilty, 18 U.S.C. § 922(g)(8), barred him from possessing (that is, “keeping”) the pistol and the rifle found by law enforcement when they searched his residence.

Thus, Mr. Rahimi’s conduct fell within the plain text of the Second Amendment and was of the kind that “the Constitution presumptively protects.”[19]

The Supreme Court in Rahimi faithfully described and applied the methodology that Bruen requires in a Second Amendment case, “following exactly the path” that Bruen had laid out.[20] The Rahimi opinion was joined by eight justices. Only Justice Thomas dissented, and he too believed that the Bruen framework governed.[21] He simply disagreed whether the historical analogues mustered by the Government were sufficiently similar to § 922(g)(8) to form a historical tradition that justified upholding that statute.[22]

III. The Court Finds that the Nation’s Historical Tradition of Firearm Regulation Supports Disarming Mr. Rahimi

The Court turned next, per Bruen’s command, to analyze whether the Government had shown that the restriction on Mr. Rahimi’s right to keep and bear arms is “consistent with the Nation’s historical tradition of firearm regulation.”[23] The Bruen Court had found no need to “provide an exhaustive survey” of all the factors along which such regulatory consistency with tradition was to be measured, but it found Heller and McDonald to require “at least” that the government show in the Nation’s historical tradition support for “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.”[24] In making the determination regarding consistency with tradition, the Court explained, any court “must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the Founding generation to modern cir­cumstances.”[25] Any doubt that regulatory operation (how) and purpose (why) were both “‘central’ considerations when engaging in an analogical inquiry”[26] was swept away by Rahimi’s re-exposition of Bruen’s methodological command:

Why and how the regulation burdens the right are cen­tral to this inquiry. For example, if laws at the Founding regulated firearm use to address particular prob­lems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations. Even when a law reg­ulates arms-bearing for a permissible reason, though, it may not be compatible with the right if it does so to an ex­tent beyond what was done at the founding. And when a challenged regulation does not precisely match its histori­cal precursors, “it still may be analogous enough to pass constitutional muster.”[27]

The Rahimi Court found that the Government had identified two kinds of historical laws sufficient to establish a tradition of disarming those found to present “a clear threat of physical violence to another.”[28] First, the Court cited surety laws, which were “[w]ell entrenched in the common law”—and therefore widespread—as a form of “preventive justice.”[29] These laws allowed a magistrate to require individuals suspected of future misbehavior to post a bond. The surety mechanism could be “invoked to prevent all forms of violence,” including “the misuse of firearms.”[30] An individual who failed to post the bond would be jailed, while one who posted the bond and violated its terms would forfeit it.[31]

The Court likewise found historical support in criminal “going armed” laws, often included within the laws governing affrays.[32] These prohibited “riding or going armed, with dangerous or unusual weapons, [to] terrify[] the good people of the land”[33] and were adopted in American law either by inclusion within the incorporation of the common law or by specific legislative enactment.[34]

The Court concluded that § 922(g)(8) “fits neatly within” the well-established tradition represented by surety and affray laws, and thus upheld the statute against Mr. Rahimi’s facial challenge.[35]

IV. Justice Thomas Dissents on a Narrow Point of Analogical Parity

Justice Thomas agreed with the majority on much of its opinion. He dissented only on the narrow, far-downstream portion of the majority’s decision that held the operation (i.e., the “how”) of the surety and affray laws to be sufficiently similar to that of § 922(g)(8) to take Mr. Rahimi’s conduct “outside the Second Amendment’s unqualified command.”[36] Justice Thomas found that while the affray laws regulated public conduct, § 922(g)(8) criminalized a prohibited person’s simple possession of a firearm within his home.[37] The cited surety laws, he believed, did not historically operate to disarm the individual but only averted the “threat of future interpersonal violence” by requiring the posting of a monetary bond that would be forfeited if the accused breached the peace.[38] Because the tradition represented by the surety and affray laws employed means narrower than § 922(g)(8), Justice Thomas dissented.

V. The Anti-Second-Amendment Spin on Rahimi Has Begun

Many antagonists of the Second Amendment have begun the spin cycle on Rahimi, casting the decision as a radical departure or an “important first step away” from Bruen[39] and calling it the Court’s “mad dash away from [Justice Thomas’s] extremist position on the Second Amendment.”[40] Governmental litigants defending draconian firearms regulations have already made submissions to the lower courts that Rahimi “bolsters all of the State’s arguments.”[41] That is not only outlandish but flatly false.

All members of the Rahimi Court—even those who would have decided Bruen differently—believed themselves to be faithfully applying Bruen.[42] It is therefore a threshold mistake to pit Rahimi against Bruen instead of focusing on the vast common ground between the majority and the dissent in Rahimi. All justices agreed on the absence of any dispute about Mr. Rahimi’s conduct falling well within the textual protection of the Second Amendment, the high historical provenance and pedigree of laws required to constitute a tradition, the tight logical nexus required between the historical laws and the identified tradition connecting them, and the irrelevance of interest balancing and so-called experts to the determination of whether a modern regulation transgresses the Second Amendment as a matter of law after Bruen.

As for the minor disagreement between the majority and the dissent on analogical parity, “reasonable minds can disagree,”[43] and very often do, on routine application of settled doctrine to different, challenging circumstances. This often occurs in the resolution of difficult constitutional applications when other rights are at stake, like the rights of free speech[44] and freedom of religion[45] in the First Amendment, the right against unreasonable searches or seizures in the Fourth Amendment,[46] or the rights to due process[47] and equal protection[48] in the Fourteenth Amendment. Indeed, considering the fractures that the Court often experiences when applying long-settled doctrine to new situations, it is the unanimous agreement on Bruen’s doctrinal framework that is Rahimi’s most defining and remarkable feature. Rahimi also sets a milestone in the life of the Second Amendment by moving its jurisprudence into the mundane. The landmark cases of Heller and Bruen established the doctrinal framework of the Second Amendment right and the way to analyze claims arising under it. Rahimi has now begun the work of applying that framework to new cases—a routine enterprise for the Court.[49]

Read in this contextual light, the narrow disagreement between the majority and Justice Thomas regarding the implications to be drawn from the affray and surety laws is merely an intramural divergence on the application of analogical reasoning to a fact-bound case, on which reasonable minds and judges can—and do—disagree. But such disagreement is neither of precedential import nor an invitation for courts or litigants to consider Bruen jettisoned or even rewritten. In this regard, Heller and Rahimi stand together: both are applications of the methodology that Bruen explained in detail.

VI. Rahimi’s Tight Analogical Reasoning Demonstrates the Court is Fully Committed to the Heller/Bruen Framework

Arguments that Rahimi’s reference to the “principles that underpin our regulatory tradition”[50] loosens Bruen’s requirement of a historical tradition are likewise misguided. Rahimi itself paid close attention to the operation and purpose of historical laws and did not extrapolate principles from them at a high level of generality. The Government invited the Court in Rahimi to find that Heller and Bruen established an extraordinarily broad principle or historical tradition, namely, that “[l]egislatures may disarm those who are not law-abiding, responsible citizens.”[51] The Court rightly, and summarily, rejected that attempt to find a historical tradition based on dicta in other cases rather than close historical analysis in the case before it. Chief Justice Roberts wrote for the majority:

Rahimi was, therefore, a routine application of established methodology—not the shifting of the doctrinal tide that opponents of Bruen had desired. The path of the Second Amendment is now as perceptibly ordinary as that of any other constitutional right: the epochal establishment of substantive doctrine having occurred in Heller and having been explicated in Bruen, the Court applies that doctrine to different laws and circumstances. But no reading of the cases applying doctrine should be held to be in tension with the cases establishing it—least of all when the Court applying doctrine in a case understands itself, as in Rahimi, as doing so with utmost fidelity to its precedential commitments.

VII. Takeaways for the Lower Courts

So, what does Rahimi mean for the lower courts? As it turns out, precious little other than an affirmation of what they already knew—or should have known—after Bruen. For any of the lower courts or judges thereof who wondered if Rahimi might chip away at Bruen, the unanimous doctrinal recommitment to text and historical tradition in Rahimi shows that Bruen is here to stay. Even the justices who dissented in Bruen showed by fully joining the majority opinion in Rahimi that they understand Bruen to be the law of the land. And while they may write separately, as they did in Rahimi, to express dissatisfaction with Bruen, such collateral grumblings about precedent give the lower courts no more ability to diverge from controlling precedent than if those reservations had never been expressed. Whatever justices of the Court may feel about certain precedents, and however they may express those feelings in concurrences, the lower courts are duty-bound to hew faithfully to the Court’s precedential decisions.

Rahimi also shows that well-established laws are not themselves sufficient to establish whatever historical tradition the government believes is to be gleaned from them. Rather, the tradition allegedly evinced by the identified historical laws is itself something that the government must satisfactorily show as a matter of law. Consider, for instance, the Government’s contention in Rahimi that the surety and affray laws demonstrated a tradition of restricting the right to keep and bear arms only to “responsible” citizens.[52] The Court unanimously rejected this contention, noting the absence of evidence not only on efforts to disarm “irresponsible” people but also on what responsibility even means in the context of a right to self-defense.[53] The Government could identify no guardrails on what amounted to a state-administered virtue test, which meant it proved far too much.

Rahimi, therefore, stresses a latent logical connection between history and tradition that had been implicit in Heller and Bruen: identifying a historical tradition requires both identifying a well-established body of historical laws and demonstrating the tight inferential fit between those laws and the tradition that they allegedly establish or prove.

This need to identify a well-defined historical tradition that closely follows the cited historical analogues demonstrates the unconstitutionality of various governmental efforts to restrict citizens’ right to keep and bear arms: default carriage bans in places of public accommodation,[54] long lists of gun-free zones or so-called sensitive places,[55] lifetime possession bans on those convicted of white-collar crimes,[56] and licensing schemes that condition one’s exercise of the right to bear arms on one’s ability to prove to government officials one’s loosely defined soundness of “moral character.”[57] While they may weave together a few laws here and a few cases there, governments so far have been unable to point to any established traditions from the Founding of restricting the right of armed self-defense in these ways. This threshold failure to identify any such body of laws from the Founding, let alone to extract from it a logically sound tradition, forecloses any governmental reliance on Rahimi, which concerned the analogical fit of a recognized and bona fide tradition. Stated differently, Rahimi has no effect on any case in which the government has not already carried the weighty burden of establishing a relevant historical tradition of firearms regulation—a burden it has decisively failed to carry in virtually every case currently being litigated.

Rahimi also relied on briefing and argument to decide the case, exemplifying for the lower courts the exercise of legal research and reasoning without the need for expert reports from historians.[58] Indeed, the Court explicitly doubled down on Bruen’s statement that the process of analogical reasoning—a form of “[d]iscerning and developing the law”—remains, as it has always been, “a commonplace task for any lawyer or judge.”[59] The Court showed by example that courts can—and ought to—resolve matters of law through competent consultation of such sources as “precedents, historical laws, commentaries on laws, law reviews, the Congressional Globe, and a handful of histories about legal topics.”[60]

Another takeaway from Rahimi, as Justice Kavanaugh noted in his concurrence, involves alleged historical analogues that the Government pressed below in Rahimi but abandoned before the Court. Justice Kavanaugh reasoned that the lower courts should not rely “on the history that the Constitution left behind.”[61] This means that historical laws built on racial, ethnic, religious, or other forms of bigotry that the American people have rejected through superseding constitutional developments must be rejected as inconsistent with our constitutional commitments. When the American people incorporated the Bill of Rights against the States in 1868 and thereby extended to the newly liberated African Americans the full promise of liberty, they freed the Second Amendment—and others—from the shackles of slavery and racial prejudice. It is a grievous historical—indeed, moral—error for governments to attempt to redline constitutional rights with those portions of our history that we have overcome and rightly left behind.

And, finally, some lower courts have already begun to recognize the narrowness of Rahimi’s holding and its limited direct applicability to pending Second Amendment litigation. For example, the Eighth Circuit’s recent decision in Worth v. Jacobson correctly applied Bruen’s framework and held unconstitutional a Minnesota statute restricting 18-to-20-year-olds’ right to bear arms.[62]  The court noted that Rahimi had little to say about the issue in Worth, which did not involve clear and adjudicated physical threats of the kind that Mr. Rahimi posed to others.[63]  Rather, the Eighth Circuit rightly recognized that Rahimi’s affirmation and application of Bruen’s framework all the more required it to closely follow that framework in analyzing the specific statute before it.[64]

VIII. The Dogs That Did Not Bark

Far from initiating a wholesale retreat from Bruen, the significance of Rahimi is perhaps best understood by what it did not do:

1. It did not announce any broad new principles. Instead, it applied Bruen faithfully, and its holdings were narrow in scope and limited in applicability. The Court held only that individuals who have been formally adjudicated by a court “to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”[65]
2. All nine justices believed it proper to apply Bruen’s methodology in this case, and none claimed that Rahmi should have been decided under tiers of scrutiny or interest balancing tests.
3. All nine justices rejected the Government’s overbroad assertion that all persons not governmentally deemed “responsible” may be disarmed.
4. So-called expert testimony is neither necessary nor helpful to deciding a case using Bruen’s historical methodology. The text and historical context of a law provide the best evidence of its meaning.
5. The Court did not address whether the Founding era (1791) or the time of the Fourteenth Amendment’s ratification (1868) is the relevant period for determining the meaning of the Second Amendment and the rest of the Bill of Rights (although it relied principally on authorities from the Founding and the early Republic).[66]
6. Historical laws that are racist or otherwise discriminatory against ethnic, political, or religious minorities cannot be relied on by the government to disarm the people or any subset thereof.
7. Even lawless individuals like Mr. Rahimi remain part of “the people” and possess Second Amendment rights on the plain-text level.
8. The Court announced no change to the methodology that it outlined in Bruen.

Conclusion

The Supreme Court’s decision in Rahimi, while substantively routine, is momentous in a different sense: it is a harbinger of the doctrinal steadiness and reinforcement that, until very recently, the courts have uniquely denied the Second Amendment. Rahimi, then, is pathbreaking because it is pedestrian—a sign that the Second Amendment, long the “constitutional orphan” of the Court’s jurisprudence,[67] has been welcomed at last into the constitutional family as an equal member.

* Mark W. Smith is a Visiting Fellow in Pharmaceutical Public Policy and Law in the Department of Pharmacology, Oxford University and a Distinguished Scholar and Senior Fellow of Law and Public Policy, Ave Maria School of Law. He hosts the Four Boxes Diner YouTube Channel (youtube.com/TheFourBoxesDiner), which addresses Second Amendment scholarship, history and issues, and whose educational videos have been viewed over 35 million times. His scholarship has been cited by federal courts and by attorneys before the United States Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen and in United States v. Rahimi. He is a graduate of the NYU School of Law.

[1] 144 S. Ct. 1889 (2024).

[2] See, e.g., Madiba Dennie, Originalism Is Going to Get Women Killed, The Atlantic, Feb. 9, 2023.

[3] 597 U.S. 1 (2022).

[4] See, e.g., Brief of Global Action on Gun Violence, et al., as Amicus Curiae, United States v. Rahimi, No. 22-915 (U.S. Aug. 21, 2023); Brief of Professor Mary Anne Franks as Amicus Curiae, United States v. Rahimi, No. 22-915 (U.S. Aug. 21, 2023).

[5] Several versions of Twain’s quip are examined in Quote Origin: Reports of My Death Are Greatly Exaggerated, The Quote Investigator, Jun. 7, 2024, quoteinvestigator.com/2024/06/07/report-death [perma.cc/62NK-VGBV].

[6] Rahimi, 144 S. Ct. at 1903.

[7] 554 U.S. 570 (2008).

[8] Bruen, 597 U.S. at 22.

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

[10] Bruen, 597 U.S. at 17.

[11] Id.

[12] See id. at 33–34 (“[T]he burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. Only if respondents carry that burden can they show that the pre-existing right codified in the Second Amendment, and made applicable to the States through the Fourteenth, does not protect petitioners’ proposed course of conduct.”).

[13] Heller, 554 U.S. at 578.

[14] Rahimi, 144 S. Ct. at 1897–98.

[15] Id. at 1897.

[16] Cohens v. Virginia, 19 U.S. 264, 387 (1821).

[17] Reno v. Am. C.L. Union, 521 U.S. 844 (1997).

[18] United States v. Jones, 565 U.S. 400 (2012).

[19] Bruen, 597 U.S. at 17.

[20] Rahimi, 144 S. Ct. at 1910 (Gorsuch, J., concurring).

[21] Id. at 1930 (Thomas, J., dissenting).

[22] Id. at 1941–43.

[23] Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 597 U.S. at 24).

[24] Bruen, 597 U.S. at 29.

[25] Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 597 U.S. at 28 n.7, 29).

[26] Bruen, 597 U.S. at 29.

[27] Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 597 U.S. at 30).

[28] Id. at 1901.

[29] Id. at 1899–1900.

[30] Id. at 1900.

[31] Id.

[32] Id. at 1901.

[33] Id. (quoting 4 W. Blackstone, Commentaries on the Laws of England 149 (10th ed. 1787)).

[34] Rahimi, 144 S. Ct. at 1901.

[35] Id.

[36] Bruen, 597 U.S. at 24 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 (1961)).

[37] Rahimi, 144 S. Ct. at 1942–43 (Thomas, J., dissenting).

[38] Id. at 1938–42.

[39] Dana Bazelon, The Supreme Court Hasn’t Actually Fixed the Mess Clarence Thomas Created on Guns, Slate, Jun. 26, 2024, slate.com/news-and-politics/2024/06/supreme-court-scotus-thomas-barrett-gun-control-rahimi.html [perma.cc/EKC4-2X5K].

[40] Mark Joseph Stern, The Supreme Court Walks Back Clarence Thomas’ Guns Extremism, Slate, Jun. 21, 2024, slate.com/news-and-politics/2024/06/supreme-court-clarence-thomas-guns-extremism-rahimi-bruen.html [perma.cc/YB6R-ZHMX].

[41] Letter from the Deputy Attorney General of the State of New Jersey, Cheeseman v. Platkin, No. 22-cv-04360 (D.N.J. filed Jun. 30, 2022), ECF No. 79.

[42] Rahimi, 144 S. Ct. at 1910 (Gorsuch, J., concurring) (“The Court reinforces the focus on text, history, and tradition, following exactly the path we described in Bruen.”); id. at 1926 (Jackson, J., concurring) (“Bruen is now binding law. Today’s decision fairly applies that precedent, so I join the opinion in full.”). Indeed, academic commentators who firmly reject originalism have written to fault the Court for rallying behind Bruen and originalism in Rahimi. See, e.g., Erwin Chemerinsky, Once Again, Originalism’s Hollow Core Is Revealed, The Atlantic, Jun. 25, 2024, theatlantic.com/ideas/archive/2024/06/failure-originalism-supreme-court/678783/ [perma.cc/9YLR-UL8A].

[43] Rahimi, 144 S. Ct. at 1909 (Gorsuch, J., concurring).

[44] See, e.g., 303 Creative v. Elenis, 600 U.S. 570 (2023) (holding, 6–3, that portions of the Colorado Anti-Discrimination Act requiring a website designer to create websites expressing messages with which she disagrees violate the First Amendment).

[45] See, e.g., Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022) (holding, 6–3, that a public school violates the Free Exercise Clause and the Free Speech Clause of the First Amendment when it suspends an employee for privately initiating prayer that others are free to join or forego without consequence).

[46] See, e.g., Carpenter v. United States, 585 U.S. 296 (2018) (holding, 5–4, that a government violates the Fourth Amendment when it warrantlessly obtains a person’s cell-phone location history from third-party data repositories to trace the person’s movements).

[47] See, e.g., Kahler v. Kansas, 589 U.S. 271 (2020) (holding, 6–3, that the Due Process Clause of the Fourteenth Amendment does not require a state to adopt an insanity test to determine whether the defendant could discern that the crime charged was a moral wrong).

[48] See, e.g., Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College, 600 U.S. 181 (2023) (holding,   6–3, that the Equal Protection Clause requires all public universities—as Title VI of the Civil Rights Act requires all private universities accepting federal funds—to administer an admissions program that does not stereotype or penalize an applicant on the basis of race).

[49] See, e.g., Rahimi, 144 S. Ct. at 1903–04 (Sotomayor, J., joined by Kagan, J., concurring) (“Today, the Court applies its decision in Bruen for the first time.”).

[50] Rahimi, 144 S. Ct. at 1898.

[51] Brief for the United States at 7, United States v. Rahimi, No. 22-915 (Aug. 14, 2023).

[52] Id. at 10–27.

[53] Rahimi, 144 S. Ct. at 1903.

[54] See, e.g., Christian v. James, No. 22-2987 (2nd Cir. filed Nov. 23, 2022).

[55] See, e.g., Koons v. Att’y Gen. of N.J., No. 23-1900 (3rd Cir. filed May 17, 2023).

[56] See, e.g., Range v. Garland, No. 21-2835 (3rd Cir. filed Sept. 30, 2021). After the Third Circuit, sitting en banc, held that 18 U.S.C. § 922(g)(1) violated the Second Amendment as applied to Mr. Range, 69 F.4th 96 (3rd Cir. 2023), the Solicitor General sought certiorari from the Supreme Court. On the last day of October Term 2024, the Court summarily granted certiorari, vacated the Third Circuit’s judgment, and remanded the case for further consideration in light of its decision in Rahimi. 2024 WL 3259661. It is a routine procedural practice for the Court to so remand cases that present questions even remotely related to those it has decided in a term. See generally Aaron-Andrew P. Bruhl, The Supreme Court’s Controversial GVRs—and an Alternative, 107 Mich. L. Rev 711 (2009).

[57] See, e.g., Antonyuk v. James, No. 22-2908 (2nd Cir. filed Nov. 8, 2022). Like Range, the Court summarily granted certiorari, vacated the judgment below, and remanded Antonyuk for further consideration in light of Rahimi. 2024 WL 3259671; see also supra, note 55.

[58] None of the Court’s contemporary Second Amendment cases—Heller, McDonald v. Chicago, 561 U.S. 742 (2010), Caetano v. Massachusetts, 577 U.S. 411 (2016), Bruen and Rahimi—relied on expert testimony about the Second Amendment or its related history. Indeed, the Court almost never takes notice of expert declarations or testimony on the text or history of a constitutional provision, choosing instead to rely on briefing, argument, and its own research.

[59] Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 597 U.S. at 28).

[60] Stephen Halbrook, Second Amendment Roundup: Rahimi Preserves Bruen, Reason, Jun. 26, 2024.

[61] Rahimi, 144 S. Ct. at 1915 (Kavanaugh, J., concurring).

[62] No. 23-2248, 2024 WL 3419668 (8th Cir. July 16, 2024).

^[63] Id. at *10–11.

[64] Id. at *9.

[65] Rahimi, 144 S. Ct. at 1903.

[66] The author believes—and has written—that the Supreme Court ultimately should and will find in the right case that the Founding period is the only relevant one for assessing the existence of a historical tradition of firearms regulations for the purpose of understanding the meaning of the Second Amendment. See Mark W. Smith, Attention Originalists: The Second Amendment was adopted in 1791, not 1868, 2023 Harv. J.L. & Pub. Pol’y Per Curiam 31 (2023).

[67] Silvester v. Becerra, 583 U.S. 1139, 1149 (Thomas, J., dissenting from denial of certiorari).

What We Did and Did Not Argue in United States v. Trump – Seth Barrett Tillman & Josh Blackman

Posted by JLPP on Jul 16, 2024 in Per Curiam

What We Did and Did Not Argue in United States v. Trump

Seth Barrett Tillman*

Josh Blackman**

Editor’s Note: This essay had already been submitted to the Harvard Journal of Law & Public Policy before United States v. Trump was decided by the United States District Court for the Southern District of Florida on July 15, 2024. The authors have decided to publish this essay without regard to the District Court’s decision, and they will address that decision in future writings.

On June 21, 2024, Judge Aileen Cannon of the United States District Court for the Southern District of Florida heard oral argument in United States v. Trump. This prosecution was brought by Special Counsel Jack Smith with regard to former President Trump’s possession of certain documents at Mar-A-Lago. Blackman presented oral argument that day based on an amicus brief we had filed, with the Landmark Legal Foundation, in March.

Our goal here is to explain the lines of argument we put forward in our amicus brief, our motion, and at the hearing on Friday, June 21, 2024.[1] We will address three questions. First, does United States v. Nixon require the District Court to dismiss the former President’s motion to dismiss the indictment? Second, does the Special Counsel hold a continuous “Officer of the United States” position? And third, has Congress appropriated money to pay the Special Counsel and his staff and contractors?

I. Does Nixon Require the District Court to Dismiss Former President’s Motion to Dismiss the Indictment?

There are two primary legal questions raised by Trump’s motion to dismiss the indictment. First, is the Special Counsel’s office or position constitutional?[2] And second, was Smith lawfully appointed to hold that position?

Not surprisingly, the Special Counsel answered both questions in the affirmative. The Special Counsel’s position squarely relied upon United States v. Nixon (1974).[3] In Nixon, Special Prosecutor Jaworski sought to enforce a subpoena against President Nixon, and the Supreme Court, with certain limitations, upheld the lawfulness of the subpoena. Even if not expressly stated, the Court’s opinion implied, to some extent, that the position of special prosecutor was constitutional. In the Trump litigation in the Southern District of Florida, Special Counsel Smith analogized the position he (purportedly) holds to that held by Special Prosecutor Jaworski. To put it simply, Special Counsel Smith argued that Nixon was on-point, controlling, and remains good law—until overruled by the Supreme Court.

Trump’s counsel made three arguments in response. First, that Nixon was undermined by subsequent developments in the Supreme Court’s Appointments Clause jurisprudence. Second, that the lawfulness of the special prosecutor’s position was not argued by the parties in Nixon. And third, that the Nixon Court’s implicit determination (such as it was) that the special prosecutor’s position was lawful was, at best, dicta, and so not controlling. These arguments were also advanced by an amicus brief filed by Attorneys General Meese and Mukasey, Professors Calabresi and Lawson, and Citizens United.

During oral argument, we made a different argument. We assumed for the sake of argument that the parties in Nixon had raised the issue: that is, whether the special prosecutor’s position was lawful. We further assumed that the Court’s decision squarely addressed that issue. We even assumed that in addressing that issue, the decision on this point was the Court’s holding, and not dicta. Even with all of these assumptions in place, Nixon is not controlling in United States v. Trump. Why? A prior decision is only controlling, as opposed to persuasive, where the facts are the same. And here, the facts are not the same.[4]

We put forward three reasons in support of our position. First, the Nixon Court repeatedly described the circumstances giving rise to the conflict as unique.[5] The Court described the special prosecutor as having “unique authority and tenure.[6] And finally, the Court plainly stated that the case was decided based on “the unique facts of this case.”[7] When the Court tells the parties, the legal community, and the country that the facts are “unique” and when it does so multiple times, the implication is that other cases are, in fact, dissimilar and that the holding should not be extended to different facts at a subsequent date. Nixon was the proverbial ticket good for one ride—or perhaps, one president. Bush v. Gore could be characterized in a similar fashion.[8]

Second, the Nixon Court supported its decision by expressly relying on several statutory provisions, and on regulations put into effect in 1973 by Acting Attorney General Robert Bork.[9] Although the former statutory provisions remain in effect, the latter regulations were superseded by the Ethics in Government Act (1978), which created independent counsels. The 1978 act, because it was not re-authorized by Congress, expired in 1999. Subsequently, new regulations were put into effect in 1999 by Attorney General Reno. The Nixon-Court-era regulations for special prosecutors and the modern, now-in-force Reno regulations for special counsels are not the same. For that reason alone, Nixon is not and cannot be controlling: Nixon relied upon federal regulations which are no longer in effect.[10]

Third, the Nixon Court explained why the 1973 Bork regulations were significant. The Court noted:

The Attorney General will not countermand or interfere with the Special Prosecutor’s decisions or actions. The Special Prosecutor will determine whether and to what extent he will inform or consult with the Attorney General about the conduct of his duties and responsibilities. In accordance with assurances given by the President to the Attorney General that the President will not exercise his Constitutional powers to effect the discharge of the Special Prosecutor or to limit the independence that he is hereby given, the Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part and without the President’s first consulting the Majority and the Minority Leaders and Chairmen and ranking Minority Members of the Judiciary Committees of the Senate and House of Representatives and ascertaining that their consensus is in accord with his proposed action.[11]

Under the 1973 Bork regulations, the special prosecutor enjoyed unique and a since unmatched level of independence. The special prosecutor was beyond the ordinary removal power of the President, who, in the ordinary course, can remove high ranking Executive Branch officers of the United States at pleasure. Under the Bork regulations, the special prosecutor could not be removed even for “good cause;” rather, he could only be removed for “extraordinary improprieties.” Again, this level of independence is well beyond what appears in the Reno regulations.[12] Finally, the 1973 Bork regulations permitted removal of a special prosecutor only after the President had consulted and sought consensus from eight high ranking members of Congress. Not only do modern special counsels enjoy no such protections against removal, any effort in this manner to insulate special counsels against presidential removal would seem to be plainly forbidden by more recent developments in Supreme Court case law.[13] To put it simply, the Nixon decision, to the extent it validated the office of special prosecutor as lawful, did so based on a regulatory framework that is no longer in force and which could not be put into effect today by statute due to Bowsher v. Synar. Nixon was predicated on a unique and an unmatched level of independence vested in special prosecutors. By contrast, today’s special counsel, including Jack Smith, enjoy no such independence against removal. Thus, Nixon is not controlling.

In making the argument above, we only conclude that Nixon is not controlling; it does remain persuasive—as do other more recent Supreme Court Appointments Clause decisions.

II. Does the Special Counsel hold a continuous “Officer of the United States” position?

In United States v. Hartwell (1867), a clerk in the Treasury Department was charged with embezzlement.[14] The relevant federal statute applied to an “officer” who was “charged with the safe-keeping of the public money.”[15] The defendant argued that because he was not an “officer,” the indictment was defective. The Supreme Court disagreed and found that he was an “officer.” Justice Swayne, writing for the majority, offered the following definition of an office: “An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.”[16] To be sure, in Hartwell, the Court’s definition of “officer” involved only statutory construction. Hartwell’s four-factor test would again play a role in United States v. Germaine (1879)—another statutory construction case construing “officer.”[17] Finally, in 1890, the Court would apply the Germaine-Hartwell four-factor framework in Aufformordt v. Hedden, where the Court construed the meaning of “officer” as used in the Constitution’s Appointments Clause.[18]

The Court returned to this issue in Buckley v. Valeo (1976), two years after Nixon.[19] Buckley did not entirely abandon the Germaine-Hartwell four-factor test, but the Court took a different approach to the “officer” issue. The Buckley Court distinguished “employees” of the United States from “officers of the United States.” The former “are lesser functionaries subordinate to officers of the United States.”[20] By contrast, in regard to Article II “officers of the United States,” the Court explained: “We think . . . any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.”[21] Must, not may. And more recently, in Lucia v. SEC (2018), the Court adopted Buckley’s “significant authority” test,[22] and further held that in order for a position to be an “officer of the United States that . . . individual must occupy a ‘continuing’ position established by law.”[23] Again, must, not may.[24] The position held by Special Counsel Smith does not meet this standard.

What makes a position “continuous”? In Morrison v. Olson (1988), Chief Justice Rehnquist identified three factors:

Finally, appellant’s office is limited in tenure. There is concededly no time limit on the appointment of a particular counsel. Nonetheless, the office of independent counsel is “temporary” in the sense that an independent counsel is [1] appointed essentially to accomplish a single task, and [2] when that task is over the office is terminated, either by the counsel herself or by action of the Special Division. Unlike other prosecutors, [3] appellant has no ongoing responsibilities that extend beyond the accomplishment of the mission that she was appointed for and authorized by the Special Division to undertake.[25]

Smith does not hold a “continuing position.”[26] First, Attorney General Garland’s order appointing Smith listed a finite set of circumstances to investigate. Indeed, if Smith wanted to conduct an investigation beyond the items enumerated in the order, he would need to seek further authorization from the Attorney General.

Second, once Smith completes his investigation and prosecution of those finite set of circumstances, his position ceases to exist. By contrast, a continuing position is a position which exists independent of the current holder, and even exists if the position is vacant. As we explain in our brief, the position of Independent Counsel under the former Ethics in Government Act (1978) met this standard due to the statutory regime that created a permanent umbrella structure. That continuing position expressly provided for a successor if the current holder had been removed, died, or resigned. By contrast, Smith’s position is entirely tied to his person, and his continuing in that position. Smith’s position or “office” is entirely tied to Smith. If Smith were removed, died, or resigned, then the position he holds would cease to exist.

Third, Smith has no ongoing responsibilities after the finite set of circumstances in the appointing order are resolved. Were President Biden to issue a complete pardon to Donald Trump and his co-defendants tomorrow, Smith would have nothing to do.

At oral argument, Jack Smith’s counsel was pressed on the issue of continuity. He stated:

We think Jack Smith’s counsel has erred here by conflating a continuous position and episodic duties. In Morrison, Chief Justice Rehnquist expressly distinguished these categories. Above, we quoted a Rehnquist passage concerning the need for a position to be continuous. In the immediately preceding paragraph, Rehnquist offered a different analysis to explain why the duties must be regular, rather than episodic. In other words, as under the Germaine-Hartwell framework, the duration or continuity of an office as opposed to the regularity of the duties of the office are distinct factors or categories. As Rehnquist stated:

Second, appellant is empowered by the Act to perform only certain, limited duties. An independent counsel’s role is restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. Admittedly, the Act delegates to appellant “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice,” § 594(a), but this grant of authority does not include any authority to formulate policy for the Government or the Executive Branch, nor does it give appellant any administrative duties outside of those necessary to operate her office. The Act specifically provides that, in policy matters, appellant is to comply to the extent possible with the policies of the Department. § 594(f).[28]

To be an “officer of the United States,” the position held must have a continuous duration and regular duties. For example, Germaine and Hartwell used words like “intermittent” and “occasional” to refer to the nature of the position’s “duties.”[29] Where the duties are episodic as opposed to regular, constant, and ongoing, that would indicate that the position is not an “officer” position, and is instead an employee, contractor, or agent. In Lucia, the Court held that the position (as opposed to its duties) must be “continuing.”[30] Again, the Hartwell-Germaine test was a four-factor test, the position’s duration or continuity was one factor, and the position’s duties were a different, separate factor. The fact that the duties can be described as ongoing, as opposed to episodic, does not mean that the position itself is continuous, and will continue from its current holder to future successors.

Jack Smith’s position is not a continuing one. It fails the tests mandated by Buckley, Morrison, and Lucia.  Smith does not hold an “officer of the United States” position. And as such, he cannot prosecute Trump—or anyone else for that matter.

III. Has Congress appropriated money to pay the Special Counsel and his staff and contractors?

According to the Special Counsel, Congress has appropriated monies to pay the Special Counsel and his staff. The Special Counsel relies upon a note to 28 U.S.C. § 591. The note states: “A permanent indefinite appropriation is established within the Department of Justice to pay all necessary expenses of investigations and prosecutions by independent counsel appointed pursuant to the provisions of 28 U.S.C. [§] 591 et seq. or other law.”

The Special Counsel’s reliance on this funding mechanism is problematic for several reasons. First, the note is not a numbered section of the United States Code. (The precise status of a “statutory note” is a complicated matter.) The Special Counsel argues that the note is part of the United States Code even if not a numbered provision. Second, Section 591 was part of the regime under the Ethics in Government Act (1978). Congress failed to reauthorize that act, and, as such, Section 591 expired. The Special Counsel argues that that the funding provision in the note survives Congress’s failure to reauthorize the statute with which it was codified. But it is not entirely clear how a “note” to Section 591 survives after Section 591 is no longer in effect. And third, the note is a funding mechanism for “independent counsels”—a position established by the prior independent counsel regime. The text of the note does not expressly reach today’s “special counsels,” which is how the Reno-era regulations refer to the position at issue in United States v. Trump. For the reasons we explain below, the positions of “independent counsel” and “special counsel” are not analogous.

The traditional purpose of Independent Counsels (under the 1978 act) and Special Prosecutors (as in Nixon) was to prevent a particular conflict of interest: where the DOJ would investigate itself, the President, as well as the President’s family and close confidants. There would be a conflict in such cases because the DOJ is ultimately responsible to the President. In other words, prosecutors outside the usual chain of responsibility, and who enjoyed unusual independence, were needed so that DOJ could avoid internal conflicts—the conflicts that arise where the prosecutor investigates itself and/or those to whom the prosecutor is responsible. For example, Attorney General Garland’s decision to appoint a special counsel to investigate President Biden’s document case, as well as Hunter Biden’s criminal case, fits into this paradigm. Special Counsel Jack Smith explained this approach in his opposition brief:

Smith’s brief also relied on United States v. Stone (2019).[32] Stone relied upon the same GAO report discussed above, and the Stone court explained: “The [Ethics in Government Act] authorized the Attorney General to refer criminal matters involving certain high-level government officials, including the President, to a three-judge court, which would be responsible for the appointment of an independent investigating attorney.”[33]

Special Counsel Smith has not been asked to investigate the DOJ, the President, the President’s family or his close confidants. Special Counsel Smith indicted Trump after he was out of office for more than a year. At that time, he was not President—he was a former President. In other words, he was a private citizen. Indeed, not only was he charged after he was no longer President, but the charges in the Florida indictment relate exclusively to conduct that took place after he was President. As Smith explained in his own brief, the scope of “independent counsel” in Section 591’s note does not permit the Attorney General to fund any prosecution at his discretion via independent counsels, but only those “independent counsels” where the DOJ would face an internal conflict associated with the DOJ investigating a “high ranking government official.”

Given that Trump was not a “high ranking,” “high-level,” or any type of government official at the time he was indicted, and that the alleged conduct also took place after he was out of office, the DOJ faces no internal conflict. In these circumstances, the funding mechanism in Section 591’s note cannot be used to pay Smith, his employees, and his contractors. And if this argument is correct, all work by the Special Counsel’s office must cease—except, perhaps, that associated with making filings for reconsideration and appeal. We take no position here as to whether Smith’s continued work, particularly if Judge Cannon should rule against him, would trigger criminal or civil liability under the Anti-Deficiency Act, federal or state RICO, or other state offenses. Moreover, if Judge Cannon rules that Smith is not in fact a duly-appointed officer under federal law, should he be sued in state court, then any attempt to invoke the federal officer removal statute would be frustrated by Judge Cannon’s extant ruling. Indeed, such a removal action may automatically be referred to Judge Cannon’s courtroom as a related matter.

When pressed on this point, the Special Counsel stated that if the District Court should determine that the funding mechanism in Section 591’s note is not available to fund Jack Smith and his office, the DOJ is sure that other statutes provide a lawful means to fund the Special Counsel. However, counsel for the Special Counsel made reference to no specific federal statute that could lawfully fund Jack Smith and his office. To us, this sort of abstract “defense,” absent specificity, seemed highly irregular.[34]

Conclusion

United States v. Trump poses more than a few threshold legal questions. We do not suggest that all the answers to those questions line up neatly in former President Trump’s favor. But we do say that those lines of argument supporting a dismissal of the indictment are substantially more than frivolous; indeed, we believe that several of those arguments have considerable merit. These issues are of the variety regularly seen by federal courts—they are the sort of issues and arguments that reasonable minds may disagree. And unless we are mistaken, that is also, now, the position of the Special Counsel.[35]

* Seth Barrett Tillman is an associate professor in the Maynooth University School of Law and Criminology, Ireland / Scoil an Dlí ages na Coireolaíochta Ollscoil Mhá Nuad.

** Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston, and the author of An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. We thank the editors and reviewers at HJLPP: Per Curiam. All errors remain ours.

[1] Brief of Professor Seth Barrett Tillman and Landmark Legal Foundation as Amici Curiae in Support of Defendant Trump’s Motion to Dismiss the Indictment, United States v. Trump, Case No. 9:23-cr-80101-AMC-BER (S.D. Fla. Mar. 21, 2024), ECF No. 410, 2024 WL 1214430, https://ssrn.com/abstract=4755563, https://tinyurl.com/3kju33w4; Motion for Leave of Professor Seth Barrett Tillman and Landmark Legal Foundation to Participate in Oral Argument as Amici Curiae in Support of Defendant Trump’s Motion to Dismiss the Indictment [ECF No. 326], United States v. Trump, Case No. 9:23-cr-80101-AMC-BER (S.D. Fla. May 30, 2024), ECF No. 590, 2024 WL 2833495 https://ssrn.com/abstract=4837841, https://tinyurl.com/3kju33w4; Trs. of Oral Arguments (June 21, 2024), ECF No. 635, 647–50, https://tinyurl.com/3kju33w4. The motion was decided. See United States v. Trump, Case No. 9:23-cr-80101-AMC, 2024 WL 3404555 (S.D. Fla. July 15, 2024), ECF No. 672, https://tinyurl.com/hk4z7e76.

[2] See U.S. Const. art. II, § 2.

[3] 418 U.S. 683 (1974).

[4] See United States v. Johnson, 921 F.3d 991, 1001 (11th Cir. 2019) (William Pryor, J.) (en banc) (“Although Johnson argues that Terry is inconsistent with the original meaning of the Fourth Amendment and that we should apply it narrowly to ‘limit[] the damage,’ we must apply Supreme Court precedent neither narrowly nor liberally—only faithfully.”); Jefferson County v. Acker, 210 F.3d 1317, 1320 (11th Cir. 2000) (“There is, however, a difference between following a precedent and extending a precedent.”).

[5] See 418 U.S. at 691 (“unique”), 697 (“uniqueness of the setting”).

[6] Id. at 694.

[7] Id. at 697 (emphasis added).

[8] 531 U.S. 98, 109 (2000) (“Our consideration is limited to the present circumstances . . . .”).

[9] See Nixon, 481 U.S. at 694–95, 694 n.8 (citing 38 Fed. Reg. 30738–39, as amended by 38 Fed. Reg. 32805).

[10] See Id. at 695 (characterizing the 1973 Bork regulations as having “the force of law”); cf. Allapattah Services, Inc. v. Exxon Corp., 362 F.3d 739, 765 (11th Cir. 2004) (suggesting that a Supreme Court holding is no longer controlling “where specific statutory language that had previously been interpreted by the Court is amended . . . .”).

[11] Nixon, 418 U.S. at 694 n.8 (quoting the underlying regulation).

[12] See 28 C.F.R. 600.7(d) (1999) (permitting a special counsel’s removal for “good cause”).

[13] See, e.g., Bowsher v. Synar, 478 U.S. 714 (1986).

[14] 73 U.S. 385, 387 (1867).

[15] Id at 390.

[16] Id. at 393.

[17] 99 U.S. 508 (1879).

[18] 137 U.S. 310 (1890).

[19] 424 U.S. 1, 126 (1976); see supra note 3 (citing United States v. Nixon).

[20] Id. at 126 n.162

[21] Id. at 126 (emphases added).

[22] 585 U.S. 237, 245 (2018).

[23] Id. at 245 (emphasis added).

[24] See also Id. at 269 (Sotomayor, J., dissenting) (characterizing Buckley’s “significant authority” test and the Lucia majority’s continuing position test as “two prerequisites to officer status” (emphasis added)).

[25] Morrison v. Olson, 487 U.S. 654, 672 (1988).

[26] Lucia, 585 U.S. at 245 (quotation marks omitted).

[27] Tr. of Oral Argument, 155:13–20 (June 21, 2024).

[28] Morrison, 487 U.S. at 671–72 (emphasis added).

[29] United States v. Germaine, 99 U.S. 508, 512 (1879); United States v. Hartwell, 73 U.S. 385, 393 (1867); see also In re Grand Jury Investigation, 315 F. Supp. 3d 602, 644 (D.D.C. 2018) (explaining that the special counsel’s work or duties are “not occasional, intermittent, or episodic” because the duties remain “ongoing and regular until complete”).

[30] Lucia, 585 U.S. at 237.

[31] Smith Brief at 20 (Mar. 7, 2024), ECF No. 374 (citing GAO, Special Counsel and Permanent Indefinite Appropriation, B-302582, 2004 WL 2213560, at *4 (Comp. Gen. Sept. 30, 2004)) (underscore added).

[32] 394 F. Supp. 3d 1 (D.D.C. 2019).

[33] Id. at 17 (emphasis added); see also Tr. of Oral Argument, 60 (June 21, 2024) (Pearce on behalf of the Special Counsel: “It is inherent in the effort to, on the one hand, ensure that—whether we call it an independent counsel or a Special Counsel—has adequate independence when a situation presents itself that requires the avoidance of conflict or somebody who can operate outside of the typical Justice Department, sort of, operations because it’s investigating the Justice Department itself or it’s investigating some sort of high-ranking or high-level political official.” (emphasis added)).

[34] Tr. of Oral Argument, 44 (June 21, 2024) (Pearce on behalf of Special Counsel: “[T]o the extent that the Court is seriously entertaining the notion that there is a constitutional or funding problem, I actually think it would behoove the Court and the parties to have some additional briefing.”).

[35] Tr. of Oral Argument, 46:7–8 (June 24, 2024) (“To be candid with the Court, we find [Tillman’s position] to be not a frivolous [one], but a . . . .”).

The Judicial Appointment Process – Michael A. Fragoso

Posted by JLPP on Jul 15, 2024 in Per Curiam

The Judicial Appointment Process

By Michael A. Fragoso*

“What do you call a judicial nominee who only got 51 votes?”

“Your Honor.”

The judicial appointment process ranks among the most contentious and consequential functions of the federal government. Given the federal courts’ exclusive constitutional role in resolving cases and controversies—including those involving controversial constitutional questions—judicial appointments command considerable attention from the White House, the Senate, and the media. This essay presents a comprehensive summary of that process based on the author’s time working on judicial nominations in the Office of the Senate Republican Leader, the committee on the Judiciary of the United States Senate, and the Office of Legal Policy at the U.S. Department of Justice.

In some ways this essay provides an update to Rachel Brand’s 2010 article, “A Practical Look at Federal Judicial Selection,”[1] which laid out a succinct and practical view of the judicial-selection process from the perspective of the Bush administration. Much has changed in the decade since. The exercise of the “nuclear option” to abolish the 60-vote cloture threshold for judicial nominees and the dilution of the blue-slip process for circuit nominees make it easier today to confirm some nominees over the objections of their home-state Senators. As a result of such watershed changes, some of Ms. Brand’s contentions, such as that “the likeliest way to become a judicial nominee is to be recommended to the President by a Senator,”[2] may no longer be true. While a Senator’s recommendation certainly does not hurt a nominee, the contemporary appointments process relies far less on the interests or opinions of individual Senators than it did two decades ago because individual Senators simply have fewer tools at their disposal to defeat non-preferred nominees when only a simple majority is needed to confirm them. This decline in the power over appointments today that individual Senators once wielded has accordingly eroded their relative bargaining power.

As the institutional power dynamics within the Senate have shifted over time, two major modern obstacles to confirmation have emerged: senatorial defections from within the President’s party and the scarcity of time available on the Senate Floor. What matters most in this “post-nuclear age” of judicial appointments, then, is the ability of a presidential administration and Senate leadership to act in tandem to shepherd nominees through a labyrinthine nomination and confirmation process, steering clear of the landmines of intra-party opposition while still allowing adequate Floor time for their consideration. The purpose of this essay is to explain the intricacies of that process.

I.               Constitutional Background

Two constitutional institutions exercise discretionary authority over judicial appointments: the President and the Senate. Article II of the Constitution prescribes the relevant process, vesting in the President the power to appoint judges with the “Advice and Consent of the Senate.”[3] This has in time come to establish three constitutionally distinct and discretionary actions that constitute the modern judicial appointment process: nomination, confirmation, and appointment.[4] The President submits the nomination of candidates to the Senate, which then acts on that nomination either by confirming it or withholding its consent. A successful nomination returns to the President for appointment.

Because nomination, confirmation, and appointment are each discretionary steps of the process, the relevant actors have considerable power over their actions, including over their choice to undertake them in the first place. For example, the extent to which the Senate defers to and cooperates with the President depends considerably on current political relationships. In recent decades, the Senate has tended to work in conjunction with the President in the appointment process when the Senate and the President are of the same party. When there is divided government, on the other hand, the President is likelier to encounter a skeptical Senate that is less willing to exercise its confirmation power to further the President’s judicial-appointment goals.[5] Even during united government, Senate rules, customs, and political considerations can result in the Senate’s taking an active role contrary to presidential interests.[6] But since the abolition of the filibuster for nominations and the accompanying majority rule, the Senate’s efforts to assert itself in a period of unified government must stem from the President’s own party. In practice, therefore, such efforts ultimately become matters of caucus or conference management for the Senate Majority Leader.

II.             The Nomination Process

The nomination process begins when the White House receives word of a judicial vacancy. When a federal judge[7] decides to retire or elect senior status,[8] he sends a letter to his Chief Judge, the Administrative Office of the U.S. Courts (AO), and the President, informing them of his decision. The letter can either inform the addressees of an impending move from active status on a certain date or “upon confirmation and appointment of a successor.” [9] Judges today tend to choose transition “upon confirmation.” At any time before the event that triggers the vacancy—either the dawn of the specified date or the appointment of a successor—a judge can elect to rescind his decision to retire or transition to senior status.[10]

When the White House receives the retirement letter, it begins to identify possible replacements. Typically, a White House already has identified a field of candidates for vacancies it suspects are likely, so it rarely starts painting on a blank canvas. Few vacancies come as surprises: judges are eligible for senior status when they satisfy “the rule of 80,” i.e., when their age over 65, plus their years of service, equals 80.[11] Every White House tends to begin its administration knowing which judges fit that bill, and plans accordingly. It is also not uncommon for there to be conversations between the White House and eligible judges, either directly or through intermediaries.[12]

Primary responsibility for selecting possible candidates falls to the White House Counsel’s Office (WHCO), where the day-to-day work of judicial appointments is usually entrusted to a Deputy or Senior Associate Counsel. Depending on the administration, the Counsel’s Office may also work with the Department of Justice’s Office of Legal Policy (OLP) in identifying candidates.

Initial internal candidates can come from anywhere, but they typically come from a roster of lawyers known to those involved in the selection process. Outside organizations of lawyers may also help identify names, but the efficacy of such advocacy depends considerably on the internal dynamics of WHCO, which ultimately retains control over the process.

As the White House considers and evaluates candidates, it will communicate with the home-state Senators for the judicial vacancy. In the case of district judges, these Senators have functional veto power via the blue-slip process, so their input is critical. In the case of circuits, most recent Judiciary Committee chairmen have viewed consultation as important but not dispositive because the President is generally afforded more authority over circuit appointments on account of their multistate significance. Consequently, WHCO will still discuss possible candidates with home-state Senators but is likely to focus on internally approved candidates for circuit appointments.

There is no fixed rule for how Senators identify names for vacancies. Some Senators set up commissions to evaluate nominees, while others do not. Some commissions recommend ratios of candidates based on political formulas (e.g., two Democrats to one Republican) while others try to find seemingly apolitical candidates like sitting magistrate judges. Some Senators simply know whom they want and negotiate directly with the White House. Regardless of how candidates originating in the Senate are found, WHCO will prefer to receive two or three names to hedge against any preferred nominee failing to clear a background investigation or other prerequisite of appointment. In reality, no administration likes being forced to pick from a field of one if it can be at all avoided.

As candidates are identified, they are invited to the White House for interviews. Some administrations require these to be in person while others do not. The extent to which the Department of Justice participates in these interviews also varies across administrations, with the trend being that the Department—and OLP—are more involved in Republican administrations and less involved in Democratic ones. The interviews are typically substantive, with different administrations focusing on different kinds of questions. The interview also includes a private discussion with clearance counsel[13] about potentially disqualifying personal information for use in pre-selection vetting.

Once the candidates have been interviewed, WHCO will decide on a subset of candidates to put through full vetting. WHCO initiates that process by instructing OLP and the FBI to investigate the candidate. It will often—but not always—give Senators advance notice of the decision to commence investigation of a candidate lest the Senators find out unceremoniously through their own channels as OLP is making phone calls and the FBI is investigating in the field. Because the process is resource-intensive—for both OLP and the FBI—it is rare, albeit not unheard of, to put multiple candidates through background investigation simultaneously for one vacancy.

At this point, OLP will assign the candidate a “vetter,” who assists the candidate in assembling his Senate Judiciary Questionnaire (SJQ), which typically forms the basis of the OLP vet. The vetter proceeds to evaluate the candidate based on the SJQ’s contents, the candidate’s public record, and phone calls to the candidate’s associates. The vetter then produces a memo on the candidate, which is sent to the White House, often upon the approval of the Attorney General.[14]

While the OLP vet is underway, the FBI performs a background investigation (BI) on the candidate. The timing of a BI varies considerably based on resource availability and relative priority but usually takes at least a month. OLP checks the BI for completeness, red flags, and confirmation of biographical information, upon which it informs WHCO that the BI is complete. Issues that can come up in BIs can be minor (unpaid taxes, disputes with neighbors) or severe (lying to authorities, hostile work environments). They may be anachronistic concerns (racially restrictive covenants on real property), or their importance may depend on the inclinations of the Chairman of the Judiciary Committee (youthful drug experimentation). Importantly, the vet and the BI proceed independently of each other so that two sets of eyes are looking for material concerns at the same time.

Once WHCO has studied the vet memo and the BI report, it can decide whether to recommend to the President that the candidate be nominated. Because formal nominations can only be received by the Senate when it is in session, WHCO almost always announces an “intent to nominate” by issuing a press release that names the nominee and provides his biographical information. Once the Senate is in session, the White House Executive Clerk will transmit the official nomination to the Senate, identifying the nominee, his home State, and noting (“vice”) whom he will be replacing.[15] The nomination will then be referred to the Judiciary Committee.

III.           The Confirmation Process

The judicial confirmation process goes through the Senate Judiciary Committee, which proceeds in accordance with established precedents and customs. Of note, the confirmation process does not necessarily start with the formal nomination but with the Committee’s receipt of a set of necessary documents.

Once a nominee is announced, OLP transmits to the Committee majority and minority the nominee’s SJQ and voluminous attachments. The SJQ is a negotiated document that asks questions about the nominee’s professional background and requires the nominee to provide articles, presentations, public statements, notable litigated cases, reversals (if a sitting judge), affiliations, and the like. It consists of a public portion, which includes professional information and a net worth statement, and a confidential portion involving personal background issues like criminal history and financial details. The public portion is supposed to be available to the public, while the confidential portion is protected by committee confidentiality and is only available to Committee staff. In the case of Supreme Court nominations, a different SJQ is negotiated between the majority and the minority at the outset of each Supreme Court vacancy.[16]

OLP also arranges a time to provide the Committee with BI reports. The review of BIs is strictly controlled by WHCO and restricted to Senators and very select staff for the majority and minority. Those staff members discuss issues raised in the BI with the nominee and decide whether to clear the nominee’s background for a hearing. If the Committee refuses to clear a nominee based on issues in the BI, the nominee can opt to have a “closed hearing” to discuss the issues or waive confidentiality on the issues to allow discussion in an open session.

OLP also gives the Committee access to nominees’ financial disclosure forms, prepared in conjunction with the AO, within around a week of the confirmation hearing. These financial disclosures are public information and can receive some press.

The timeline of a confirmation hearing follows the “28-day rule.” Under Committee practice, a nominee’s hearing is “ripe” 28 days after his SJQ has been received by the Committee. Note that it is not 28 days after nomination, so it is not unheard of to receive a formal nomination only a day or two before the hearing. Although the so-called 28-day rule is generally observed it is only a customary practice and not a rule per se; it can be excused under such exigent circumstances as a Supreme Court vacancy.[17]

Hearings are noticed under Committee rules one week before they occur. Only the fact of the hearing needs to be noticed; the identities of witnesses are not announced until the final slate is settled, which can take up to, and including, the day before the hearing. In order to be listed for a hearing, therefore, a nominee must have (1) his paperwork in for at least 28 days, (2) a clear BI, and (3) two positive blue slips if being nominated to a district judgeship.

All judicial nominees to district and circuit courts resident in States receive blue slips. These are blue-colored forms that are distributed by the Chairman to home-state Senators asking for their views on the nominee. Home-state Senators can choose to return the slips recommending a hearing, to return them recommending a hearing but declining to commit to support of the nominee, to return them opposing a hearing, or refuse to return them at all. A home-state Senator’s negative blue slip or the failure to return one prevents a district-court nominee from having a hearing. Whether a negative or unreturned blue-slip prevents a circuit-court nominee from having a hearing is a question for the judgment of the Chairman.

The decision on when to hold hearings and which nominees to list for hearings is entirely committed to the discretion of the Chairman. In recent years, the practice has been to have six slots available in a hearing. This could be one circuit-court nominee on the first panel and up to five lower-court or executive-branch nominees on the second panel,[18] or just six lower-court or executive branch nominees on one panel.[19] Since 2017, when the Committee has considered two circuit-court nominees, the second panel usually drops a slot, leaving two circuit-court nominees on the first panel and three lower-court or executive-branch nominees on the second panel.[20] The Committee has occasionally considered more than six nominees, but only with the consent of the minority.[21]

Hearings are traditionally held at least two weeks apart. While the Chairman could hold them more frequently in his discretion, this has not been done recently without the consent of the minority. Hearings are also almost always held while the Senate is in session, although that is not required by rule.[22]

Around the time of a hearing, the American Bar Association’s (ABA) Standing Committee on the Federal Judiciary issues ratings for nominees. The ABA’s process has changed over the years, for decades having held a privileged position of rating nominees before the President nominated them. During the Bush Administration, they were cut out of this process due to perceived political bias. The ABA was restored to its privileged position by the Obama administration, only to get cut out yet again by the Trump administration. It has remained an outsider since. When a nominee is announced, OLP transmits the SJQ and bar waivers to the ABA so they can investigate the nominee’s standing in all jurisdictions in which he is admitted. The ABA Standing Committee then finds the nominee “Well Qualified,” “Qualified,” or “Not Qualified.” If the nominee is “Not Qualified,” a written report accompanies the decision.[23]

The confirmation hearings themselves take place before the Judiciary Committee. The Chairman or his designee presides over them, and they have one or two panels. Current practice is for circuit nominees and district nominees to appear on separate panels, and no more than six nominees will appear at one hearing absent consent of the minority.[24] How nominees are prepared for their hearings depends on the administration: in some cases, preparation is kept within WHCO, while in others it is managed by OLP. Nominees are often introduced at their hearings by their home-state Senators.

Supreme Court hearings are very different; they span the course of a whole week. In recent decades, the Committee has convened on a Monday to give all members a chance to make opening statements and to hear from the nominee and his or her introducers. The Committee then convenes on Tuesday for long periods of questioning by each Committee member, followed by shorter periods of questioning by each member on Wednesday, after which the Committee meets in closed session to be briefed on the nominee’s BI. On Thursday, the Committee hears from the ABA in person—usually the evaluator and the Chairman of the Standing Committee—as well as panels of outside witnesses chosen by the majority and the minority to make the case for and against the nominee.

After the hearing, members have a fixed amount of time in which to submit written questions for the record (QFRs) to the nominee. For mine-run confirmations the QFR deadline for members is a week, while for Supreme Court nominations the expected turnaround time is considerably shorter. Nominees then answer these questions with the assistance of OLP and return them to the Committee so that the nomination can be considered in executive session—that is a meeting of the Judiciary Committee to transact business, also known as a “markup.”

The Chairman, absent consent, needs to notice any meeting of the committee in executive session three days in advance.[25] Markups are usually held on Thursday mornings, so if nominees get their QFRs in on the Monday after they receive them, they can then be listed on the markup notice Monday evening. Under Committee rules, any member may ask for a nomination to be “held over” for a week so the Committee can consider it further.[26] This happens for almost all nominees as a matter of course, so the first markup for a nominee exists simply to “burn the hold.” Following that first markup, the Chairman will typically announce the next markup to take place a week later, at which session the nominees will be voted out.

There are three noteworthy procedural wrinkles in the vote to report out a nominee. The first involves proxy votes. Senate Rule XXVI requires a concurrence of a majority of the members who are present to report out a nominee and establishes some restrictions on proxy voting even when allowed.[27] Because the Judiciary Committee allows proxy voting, the Senate Parliamentarian has interpreted this to mean in practice that only negative proxy votes count. This means that reporting out a nominee successfully requires there to be more votes in favor physically present in the committee meeting room than the combination of negative votes cast in person and by proxy. Therefore, in a closely divided Senate, party-line votes require each member of the majority to be present, and the majority always needs to ensure that it has enough present affirmative votes to vote out the nominee successfully.[28] Given the competing demands on Senators’ time—constituent meetings, interviews, competing hearings, votes—and the tradition of full debate in the Committee,[29] maintaining full attendance by the majority can be difficult. A common practice by the minority is to speak at length about nominees—knowing that they can stagger their attendance because their proxy votes in the negative count—thereby forcing the majority to wait to vote in the hopes that competing obligations will force a member of the majority to forego its quorum.

The second procedural wrinkle involves the so-called “cleansing clause” of the Senate Rules. Under the Standing Rules of the Senate, a vote by a committee majority present and voting serves to ratify all previous actions taken by that committee and forecloses any points of order against the measure or matter on the Floor.[30] Thus, in the case of a particularly controversial nomination, the majority will want to ensure the applicability of the cleansing clause to protect the nomination on the Floor and therefore have an actual majority present and voting out the nomination.[31]

The third wrinkle is the so-called “two-hour rule.” Under the Senate Rules, no Committee—other than the Committees on the Budget and Appropriations—can meet later than two-hours after the Senate opens or after two o’clock, absent consent.[32] Because markups usually begin at ten o’clock and the Senate often convenes at ten o’clock, this means that a markup can be stopped at noon by the minority.[33]

Once the markup has successfully reported out the nominee, the Committee transmits the nomination papers to the Senate Floor, where the nominations are placed on the Senate Executive Calendar for consideration by the full Senate. There, the majority and the minority consult their members to see if any Senators object to setting a time to vote to confirm the nomination.[34] On the Republican side, this entails running a “hotline” whereby each Senator’s office is asked whether it consents to setting a timing agreement for the nominee. The Democratic process is less uniform but still results in the Democratic Leader being able to convey whether the Democratic Caucus will agree to a deal or whether he or one of his Members will hold it. In contemporary practice, there is almost always at least one such “hold” on a nomination. While deals can occasionally be struck to reach a timing agreement on nominees supported by the minority, those are increasingly few and far between. It rather falls to the Majority Leader to find time in the Senate schedule during which to file cloture on the nominations and end debate on them.

The Majority Leader files cloture on a nominee, signaling a potential end to debate.[35] The cloture petition—signed by 16 Senators—lays over for an intervening day after which cloture can be invoked. Following the rule change in 2013, cloture is invoked by a simple majority for judicial nominees. Following the invocation of cloture, there is either a thirty-hour (for circuits) or a two-hour (for districts) period of post-cloture time that needs to run before a final confirmation vote can take place.[36] If the nomination receives the assent of a majority of those Senators present and voting, it is confirmed. The Senate clerk then transmits the confirmed nomination back to the White House.

IV.           The Appointment Process

Perhaps the least commonly understood component of the judicial appointment process is the actual appointment by the President. Once a nominee has been confirmed by the Senate, the last remaining action is appointment, whereby the President signs the confirmed nominee’s commission, delivers it to the nominee, and thereby completes the constitutional process.

Appointments do not necessarily happen immediately. Various factors can cause nominees’ appointments to be delayed after confirmation. For example, the seat might not yet be vacant.[37] Or the nominee might have legal work to wind down in his practice before assuming the bench. Or the nominee might need to move to the area in which he expects to establish chambers. Regardless, this is all coordinated between WHCO and OLP, with the Executive Clerk also checking to ensure that the appointment is properly made.[38]

Once all these issues are cleared up and the nominee is appointed, he is ready to take the oaths of office (there are two: one constitutional, the other statutory) and assume the duties of a federal judge. Until, one day, he sends a letter to his Chief Judge, the AO, and the President informing them of his imminent retirement and thereby sets off the process that once was set off on him.

* Michael A. Fragoso is Chief Counsel to the Senate Republican Leader, Mitch McConnell (R-Ky.), having previously served as Chief Counsel for Nominations and Constitutional Law for the Committee on the Judiciary of the United States Senate and as Deputy Assistant Attorney General in the Office of Legal Policy of the U.S. Department of Justice.

[1] Rachel Brand, A Practical Look at Federal Judicial Selection, The Advocate (Winter 2010), https://www.wilmerhale.com/-/media/c0cacbde8df34952959403f3df1abbfe.pdf.

[2] Id. at 83.

[3] U.S. Const. art. II, § 2, cl. 2.

[4] Memorandum from Daniel L. Koffsky, Acting Deputy Assistant Att’y General, Office of Legal Counsel, U.S. Dep’t of Justice, Appointment of a Senate-Confirmed Nominee, Oct. 12, 1999 (“The Constitution thus calls for three steps before a presi­dential appointment is complete: first, the President’s submission of a nomination to the Senate; second, the Senate’s advice and consent; third, the President’s appointment of the officer, evidenced by the signing of the commission. All three of these steps are discretionary.”).

[5] See Amita Kelly, McConnell: Blocking Supreme Court Nomination ‘About A Principle, Not A Person’, NPR, Mar. 16, 2016, https://www.npr.org/2016/03/16/470664561/mcconnell-blocking-supreme-court-nomination-about-a-principle-not-a-person; see also Mitch McConnell, The Long Game 259–268 (2019).

[6] See Neil A. Lewis, Washington Talk; Democrats Readying for Judicial Fight, N.Y. Times, May 1, 2001, https://www.nytimes.com/2001/05/01/us/washington-talk-democrats-readying-for-judicial-fight.html (“‘What we’re trying to do is set the stage and make sure that both the White House and the Senate Republicans know that we expect to have significant input in the process,’ Senator Charles E. Schumer, New York’s senior Democrat, said in an interview. ‘We’re simply not going to roll over.’”).

[7] The principles here largely apply to all federal judicial appointments. I will use “judge” when speaking generally and specify any material process differences that apply to Supreme Court appointments.

[8] See 28 U.S.C. § 371; see also Frederic Block, Senior Status: An Active Senior Judge Corrects Some Common Misunderstandings, 92 Cornell L. Rev. 533 (2007). Senior status is often described as a “semi-retirement” in which judges are relieved of the responsibilities of active status on their court. It’s frequently a misnomer to call this “retirement” because the vast majority of senior-status judges continue to hear cases, frequently with full dockets. They can, however, elect to reduce their caseloads—with a concomitant reduction in support staff like law clerks. In the case of district judges, senior status often allows them to focus on types of cases that they find interesting (e.g., hearing more civil cases or avoiding administrative appeals). The practical effects on circuit judges are more significant because senior status removes them from the en banc court absent unusual circumstances (like having participated in the panel decision being appealed), and it typically prevents them presiding over panels and thereby assigning cases among panel members. It should be noted, though, that increasingly the election of senior status does not necessarily preclude participation in the en banc process, even if it typically does prevent the judge from sitting en banc on the merits. See, e.g., Kennedy v. Bremerton School Dist., 4 F.4th 910, 930 (O’Scannlain, J., statement regarding denial of rehearing en banc).

[9] See, e.g., Letter from Ilana Diamond Rovner to Joseph R. Biden, Jr., Jan. 12, 2024, https://www.scribd.com/document/699170977/01122024rovner-Letter (“I write to inform you that, having attained the age and service requirements in 28 U.S.C. § 371(b)(1), I intend to leave active service and assume senior status upon the confirmation and appointment of my successor.”).

[10] See, e.g., Amanda Robert, 4th Circuit judge rescinds plan to take senior status, ABA Journal, Nov. 29, 2021, https://www.abajournal.com/news/article/4th-circuit-judge-rescinds-plan-to-take-senior-status; Jenna Greene, “Bewilderment” from Latino leaders after federal judge rescinds senior status, Reuters, Aug. 15, 2022, https://www.reuters.com/legal/government/bewilderment-latino-leaders-after-federal-judge-rescinds-senior-status-2022-08-15/.

[11] 28 U.S.C. § 371(c).

[12] See Michael A. Fragoso, The Judge’s Role in Choosing a Successor, Address at the Federalist Society’s National Lawyers Convention, Nov. 12, 2022, https://www.youtube.com/watch?v=h2SGAEmiVM0. Of course, such conversations carry potential political risks. See Statement of Senator Marsha Blackburn on the Nomination of Kevin Ritz, Mar. 20, 2024, https://www.blackburn.senate.gov/2024/3/blackburn-statement-on-the-nomination-of-kevin-ritz-to-the-sixth-circuit (“Senator Hagerty and I were assured that there was no backroom deal in advance of the search, but the White House mysteriously abandoned their superficial deliberations with my office and today announced their nomination of Mr. Ritz to serve on the Sixth Circuit.”).

[13] The WHCO and the Presidential Personnel Office typically rely on specialized counsel to vet candidates for office for their suitability.

[14] Depending on the administration, these memos can take different forms. They may be deliberative, aimed at providing decisionmakers with frank advice about whether this candidate is a good fit for the position. Or, they may be defensive, flagging for decisionmakers the candidate’s likely political liabilities so that the administration is prepared to counter attacks once the nomination is public. WHCO indicates to OLP which form(s) it expects the memo to take.

[15] An example of what the nomination form says: “To the Senate of the United States. I nominate Steven J. Menashi, of New York, to be United States Circuit Judge for the Second Circuit, vice Dennis G. Jacobs, retired.”

[16] For example, Supreme Court candidates need to provide citations for all “opinions, dispositive orders, and orders affecting injunctive relief” that they have authored as well as citations to all panel opinions in which they participated. Compare Amy Coney Barrett questionnaire following nomination to the U.S. Court of Appeals for the Seventh Circuit, https://www.judiciary.senate.gov/imo/media/doc/Barrett%20SJQ(PUBLIC).pdf, with Amy Coney Barrett questionnaire following nomination to the Supreme Court of the United States Question 13, https://www.judiciary.senate.gov/imo/media/doc/Amy%20Coney%20Barrett%20Senate%20Questionnaire%20(Public)%20(002).pdf.

[17] For example, then-Judge Amy Coney Barrett returned her SJQ to the Committee on September 26, 2020, and her hearing was noticed for October 12, 2020—16 days later.

[18] See, e.g., Hrg. of the Senate Judiciary Comm., Oct. 4, 2017 (on the nominations of Stephanos Bibas, Liles Clifton Burke, Michael Joseph Juneau, A. Marvin Quattlebaum, Jr., Tilman Eugene Self III, and John C. Demers); Hrg. of the Senate Judiciary Comm., May 26, 2021 (on the nominations of Tiffany P. Cunningham, Margaret Irene Strickland, David H. Chipman, Ur Mendoza Jaddou, Anne Milgram, and Kenneth Allen Polite, Jr.).

[19] See, e.g., Hrg. of the Senate Judiciary Comm., June 24, 2020 (on the nominations of David W. Dugan, Hala Y. Jarbou, Iain D. Johnston, Stephen P. McGlynn, Franklin Ulyses Valderrama, and Roderick C. Young); Hrg. of the Senate Judiciary Comm., Nov. 30, 2022 (on the nominations of Jonathan James Canada Grey, Julia E. Kobick, Rita F. Lin, Raymond Ernesto Reyes, Jr., James Edward Simmons, Jr., and Amy Lefkowitz Solomon).

[20] See, e.g., Hrg. of the Senate Judiciary Comm., Sept. 6, 2017 (on the nominations of Amy Coney Barrett, Joan Louise Larsen, Eric S. Dreiband, William L. Campbell, Jr., and Thomas Lee Robinson Parker); Hrg. of the Senate Judiciary Comm., Apr. 28, 2021 (on the nominations of Ketanji Brown Jackson, Candace Jackson-Akiwumi, Julien Xavier Neals, Zahid N. Quraishi, and Regina M. Rodriguez); but see Hrg. of the Senate Judiciary Comm., Sept. 7, 2022 (on the nominations of Cindy K. Chung, Tamika R. Montgomery-Reeves, Kelley Brisbon Hodge, John Frank Murphy, Mia Roberts Perez, and Kai N. Scott) (noticed without consent of the minority); Hrg. of the Senate Judiciary Comm., Sept. 21, 2022 (on the nominations of Maria Araújo Kahn, Julie Rikelman, Margaret R. Guzman, Araceli Martínez-Olguín, Jamar K. Walker, and Jamal N. Whitehead) (same).

[21] See, e.g., Hrg. of the Senate Judiciary Comm., Aug. 1, 2018 (on the nominations of Richard J. Sullivan, Diane Gujarati, Eric Ross Komitee, John L. Sinatra, Jr., Rachel P. Kovner, Lewis J. Liman, and Mary Kay Vyskocil); Hrg. of the Senate Judiciary Comm., June 8, 2022 (on the nominations of Carlton W. Reeves, Laura E. Mate, Claire McCusker Murray, Luis Felipe Restrepo, Claria Horn Boom, John Gleeson, and Candice C. Wong).

[22] During divided government, hearings tend to stop in the summer of election year. Referred to as the Thurmond Rule by then-Chairman Leahy when he applied it in 2008 and then the Thurmond-Leahy Rule by then-Chairman Grassley in 2016, it likely doesn’t hold with unified government.

[23] See American Bar Association Standing Committee on the Federal Judiciary, What It Is and How It Works, https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/fjc-backgrounder.pdf.

[24] The standard configurations are one circuit and up to five districts, two circuits and up to three districts, or up to six districts.

[25] See Senate Judiciary Comm. R. I.1.

[26] See Senate Judiciary Comm. R. I.3.

[27] See Senate R. XXVI.7(a)(3) (“The vote of any committee to report a measure or matter shall require the concurrence of a majority of the members of the committee who are present. No vote of any member of any committee to report a measure or matter may be cast by proxy if rules adopted by such committee forbid the casting of votes for that purpose by proxy; however, proxies may not be voted when the absent committee member has not been informed of the matter on which he is being recorded and has not affirmatively requested that he be so recorded.”).

[28] See Tiana Headley, Senate Returns Two District Court Nominations to Judiciary Panel, Bloomberg Law (Nov. 14, 2023), https://news.bloomberglaw.com/us-law-week/senate-returns-two-district-court-nominations-to-judiciary-panel.

[29] Under Committee Rules, debate cannot end absent a vote by the majority of the Committee—including one vote from the minority—which theoretically allows for an indefinite filibuster by a unified minority. See Senate Judiciary Comm. R. IV (“The Chair shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with eleven votes in the affirmative, one of which must be cast by the minority.”).

[30] See Senate R. XXVI.7(a)(3) (“Action by any committee in reporting any measure or matter in accordance with the requirements of this subparagraph shall constitute the ratification by the committee of all action theretofore taken by the committee with respect to that measure or matter, including votes taken upon the measure or matter or any amendment thereto, and no point of order shall lie with respect to that measure or matter on the ground that such previous action with respect thereto by such committee was not taken in compliance with such requirements.”).

[31] During the Barrett confirmation a point of order was raised against the nomination because a quorum was not present under Committee Rules to report out her nomination. Democrats boycotted the markup and Committee Rules—R. III.1—require at least two members of the minority to transact business. The Presiding Officer ruled that the point of order did not lie under the “cleansing clause” because a majority of the Committee had been present and voting affirmatively to report her nomination. An appeal of this ruling was tabled. See Vote No. 220, 116th Cong., 2d Session (On the Motion to Table the Appealing of the Ruling of the Chair).

[32] See Senate R. XXVI.5(a) (“Notwithstanding any other provision of the rules, when the Senate is in session, no committee of the Senate or any subcommittee thereof may meet, without special leave, after the conclusion of the first two hours after the meeting of the Senate commenced and in no case after two o’clock postmeridian unless consent therefor has been obtained from the majority leader and the minority leader (or in the event of the absence of either of such leaders, from his designee). The prohibition contained in the preceding sentence shall not apply to the Committee on Appropriations or the Committee on the Budget.”)

[33] See Exec. Bus. Mtg. of the Senate Judiciary Comm., Jan. 31, 2017 (using the two-hour rule to end the markup on the nomination of Jefferson B. Sessions to be Attorney General); Exec. Bus. Mtg. of the Senate Judiciary Comm., Nov. 30, 2023 (using the two-hour rule to end the markup on the authorization of subpoenas against Harlan Crow and Leonard Leo); see also Democrats Unsuccessfully Try to Authorize Subpoena in Latest Attempt to Discredit Supreme Court, Senate Judiciary Committee Republicans, Nov. 30, 2023, https://www.judiciary.senate.gov/press/rep/releases/democrats-unsuccessfully-try-to-authorize-subpoena-in-latest-attempt-to-discredit-supreme-court (explaining procedural defects in the subpoena, including the violation of the two-hour rule).

[34] A hotline is a request sent out to all Senators seeking unanimous consent for consideration of a provision.

[35] In order to do this the Senate needs to be in Executive Session—opposed to Legislative Session—but consent to move to proceed to Executive Session is provided as a matter of course. Forcing a vote to go into Executive Session is a tactic that is reserved for unusual circumstances when the minority wants to make a particular point by drawing out the process. See, e.g., Vote No. 217 (116th Cong., 2d Session) (on the Motion to Proceed to Executive Session to Consider the Nomination of Amy Coney Barrett to be an Associate Justice of the Supreme Court of the United States)

[36] The time for both was 30 hours until a ruling of the Chair in 2019 during the confirmation of Judge Roy Altman (S.D. Fla.) reduced the post-cloture time required for district judges two hours. See Vote No. 61 (116th Cong., 1^st Session) (on the Decision of the Chair). A contemporaneous ruling made the same change for subcabinet appointments. See Vote No. 59 (116th Cong., 1^st Session) (on the Decision of the Chair).

[37] This has not stopped President Biden, who appointed Justice Ketanji Brown Jackson prior to Justice Stephen Breyer’s retirement, on the advice of the Office of Legal Counsel. See Memorandum from Christopher H. Schroeder, Assistant Att’y General, Office of Legal Counsel, U.S. Dep’t of Justice, Authority of the President to Prospectively Appoint a Supreme Court Justice, Apr. 6, 2022. The constitutional problems presented by that decision are beyond the scope of this Essay. See generally Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

[38] For example, a nominee confirmed to a seat that has been eliminated by statute as a “temporary” judgeship, cannot be appointed. While this has not happened in recent memory, it is one of the issues for which the Executive Clerk stands on guard.

Federal Judicial Selection After the 2024 Election – Robert Luther III

Posted by JLPP on Jul 15, 2024 in Per Curiam

Federal Judicial Selection After the 2024 Election

ROBERT LUTHER III*

As Associate Counsel to the President of the United States during the Trump administration, I had the unique opportunity to be at the forefront of the judicial selection process. Based on that experience, I would like to share some thoughts on what I call “judicial fortitude.” This is an important and under-covered quality that is necessary in effective judges. Since President Trump’s impact on the federal judiciary, a relentless assault on the courts has proceeded with the goal of eroding the public’s confidence in their legitimacy. Delegitimization is the end game—and this game is dangerous. But those of us involved in judicial selection during the Trump Administration knew these attacks would come, so we emphasized the quality of judicial fortitude in our nominees. And the results speak for themselves.

So, how do you know if a candidate has what it takes? Everyone around you is going to tell you that their candidate “has what it takes.” For starters, we looked closely at candidates’ records. And I don’t just mean legal work—their entire body of work. When did you stand for principles and pay the price? When someone asked for help, to what lengths did you go to promote the principles we share? Unfortunately, candidates told us they lost clients or even their jobs for representing certain clients or advancing positions in litigation that offended the beltway elite.

We coupled our full-body record review with an even more rigorous judicial interview that was impossible for candidates to fake their way through. Our Circuit interview was modeled after the Justice Scalia clerkship interview. For about an hour, a very hot bench of around ten White House and DOJ lawyers would ask substantive questions about originalism, textualism, and the separation of powers—(of course, we never asked about specific issues, pending cases, or how they would rule in a case). Some people who went through both the Justice Scalia clerkship interview and our interview said ours was more rigorous. I’m sure Justice Scalia would disagree. We insisted on in-person interviews. We wanted to see if a candidate could handle the pressure, look us in the eye, and convince us. Why did that matter so much? Because we were looking for leaders; judges who would not be intimidated by the press, their colleagues, or even some Stanford Law students. We were looking for candidates with fortitude.

But fortitude isn’t only important in judicial nominees. It’s also an important quality in the team of lawyers who pick them. The press will seek to undermine you. Senators will disagree with you. Your friends will pressure you.  I want to take this opportunity today, for the first time, to lay out my blueprint for judicial selection in 2024, so that whoever ends up in the role I occupied under President Trump may build on our successes.

*                       *                       *

As we look ahead to 2024, we need to keep judicial fortitude front of mind. Hopefully, 2024 will look a lot like 2016. A Republican president will follow a Democrat president. Republicans will control the Senate. And judicial nominations will be a priority.

The biggest obstacle any Administration faces when filling judicial vacancies is not the opposition party—it’s time. There is a natural inclination to think that filling judicial vacancies is a “reactive” process because a vacancy is required first; but that’s the wrong way to conceptualize this landscape. It’s more accurate to envision an hour glass slowly draining. When the sand runs out, the window of opportunity closes forever.

• Goal. The goal is self-evident: fill every vacancy with a solid originalist and textualist candidate that time and politics will permit and who will interpret text consistent with its original public meaning.

• Points about the Core Selection Team. First—and this is important—make clear the person in charge will not become a judge. The person leading the charge in the administration needs to be focused on other people’s judicial ambitions—not their own. To do the job well, you often need to push back on the Senators and their staffs. If the person in charge is concerned with their own judicial prospects, that creates a tension—or a conflict of interest. For that reason, the President or the White House Counsel needs to make clear to the person in charge that they will not be nominated for a judgeship. The job itself is its own reward. Second, once you’ve made clear to the person in charge that they will not be a judge, make sure that person keeps the selection team small. There is an inverse relationship between how many people are involved in judicial selection and how good the judges that the team picks will actually be.

• Call Any New Senators ASAP. Senior White House leadership should call any new Senators to discuss how they will handle judicial nominations. New Senators—especially those who are not lawyers—may not know a lot about this process. For District Court vacancies, our process involved asking Senators of both parties to send three names. We interviewed each of them and chose the best candidate to fill the seat. On a handful of occasions, the White House may even suggest certain candidates for Senators to consider. For Circuit vacancies, the White House selected the nominees and Senators are expected to go along with that candidate absent some extreme objection. Opening a line of communication at this early stage is a great way to ensure a successful relationship moving forward.

• Prepare for a Supreme Court vacancy and dual track the replacement with lower court nominations. Recent experience teaches us that every new administration should be ready for a Supreme Court vacancy. It happened within the first two years of the last three presidencies: Obama, Trump, and Biden. But don’t let that slow down your lower court selection process. If an opening on the Supreme Court materializes, you’ll need two different teams to work simultaneously.

• Be Aggressive. White House Counsel’s Office nominations staff should approach the job as if they are litigating “advice and consent.” When you speak to Senators or their staff, you are speaking with the office of the Presidency—the most powerful office in the world—behind you. Start your negotiation from this position of strength. Once a Circuit vacancy is announced or the Senators recommend a district court candidate, be aggressive about scheduling interviews, making preliminary selections, and promptly entering prospective nominees into the FBI background process. Time is running out, and every day counts.

• Talking to the Press. In the past, nobody was permitted to speak to the press on the record about nominations. Occasionally, we worked with a few fair-minded journalists on background by supplying them the list of candidates who would be nominated 24 hours in advance to help them write a story. White House nominations staff authorized to speak on background did so only about this limited information. If the White House Counsel wishes to continue or amend this policy, they should do so directly and make clear who on the nominations staff is authorized to speak to the press and on what topics.

• Press Releases. After the White House selects a nominee, it issues a Press Release. The judicial nominations Press Releases matter a great deal. They follow a specific format, and that’s no accident. These biographies are important to the nominees and the nominations project because the administration must make clear it is only nominating the best candidates. One must be conscious of the political optics of these Press Releases as they are often the only information the media will read about a nominee until the days before their hearing.

• The Politics Behind Nominating as Many Candidates as Possible. The public narrative around judges is a politically powerful tool. The purpose of nominating as many candidates as possible isn’t simply to fill the seats, but to keep judicial nominations in the news and to make the political case to the American people that judges are important and that the Senate needs to promptly send candidates to the White House and aggressively confirm judges on the Senate floor. There is also safety in numbers. If there are a bunch of pending nominees, it’s harder for opposition groups to focus on specific individuals.

Last but not least:

• Never Compromise on Circuit Nominees. These are the President’s picks, and blue slips no longer exist for the Circuits. If you compromise, you will weaken the negotiating posture for the White House in the future. If the White House yields to one Senator, it will lose all of its leverage. It’s better to leave the seat open and move on to other vacancies than to nominate someone who is not the preferred candidate of the White House.

I want to close with some thoughts on the next White House Counsel. It’s one of those jobs where most people who want it aren’t smart enough to do it, and most people who can do it are smart enough not to want it. I was fortunate in the last administration to see up close someone who was willing to do the job and did it particularly well, to the great benefit of the courts and the country.

My time working with Don McGahn left me with the firm conviction that the White House Counsel has the hardest legal job in the federal government.  It represents the institution of the Presidency—the faces in the history books—the ghosts in the room. It’s the hardest job because it requires so many skills that can only be learned through experience, and the margin for error is basically zero on the biggest stage in the world.

At its core, an effective White House Counsel must possess a deep moral conviction to do what’s right under pressure, exceptional judgment, and a laser-like focus on what’s important in the long run. That’s the thing about politics—there are so few opportunities to make an impact that endures. But judges are the closest thing to permanency in politics. We are reminded of their impact every day. A small group of people can make a huge impact on this country by shaping the courts—but only if the right people are handling judicial selection in the White House Counsel’s Office.

* Distinguished Professor of Law, Antonin Scalia Law School at George Mason University; Founder, Constitutional Solutions PLLC. From 2017–18, Mr. Luther served as Associate Counsel to the President of the United States, where his principal responsibility was co-managing the White House’s judicial selection process.