Posted by mmullin on Oct 16, 2023 in Per Curiam
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JOHN BATES, JOHNS MANVILLE, THE BOYSCOUTS OF AMERICA, AND JOHNSON & JOHNSON
Lawrence A. Friedman*
The convergence of two cases from half a century ago is allowing trial lawyer vultures to destroy our bankruptcy system in cases involving some of the most storied names in America.
The bankruptcy system feels like it is coming apart at the seams. There have been a litany of stories in recent years demonstrating how trial lawyers have turned the bankruptcy process upside down.[1] And I have written before in these pages about how mass tort trial lawyers were running a shake down inside the bankruptcy system, capturing leverage once companies enter bankruptcy.[2] But the recent events surrounding Johnson & Johnson’s second failed attempt at putting its LTL subsidiary into bankruptcy in response to a wave of a tort claims over talc products is showing that mass-tort trial lawyers have also figured out how to capitalize on the bankruptcy rules and statutes to convince courts to keep companies out of bankruptcy and keep the mass-tort gravy train running when the trial lawyers deem it more to their liking.
The ability of personal-injury trial lawyers to game the system coming and going—feasting on cases in bankruptcy while blocking cases like Johnson & Johnson/LTL from bankruptcy—is an existential problem for the system. Yet there is little evidence that bankruptcy judges, practitioners, or even most companies are taking the threat seriously enough. That needs to change, especially if we are going to allow bankruptcy courts to be used to solve societal issues. We can make the bankruptcy system more resilient to this threat, giving it a chance of serving its important role and not just being a captured province of the mass-tort empire. But it is time to wake up and get moving before trial lawyers entrench themselves and gain effective control over more billion-dollar gold mines.
I. Johnson & Johnson & LTL
Johnson & Johnson has been beset by a wave of lawsuits over talc products, with the drama featuring all the trappings one would expect of the most savage and high-stakes game of mass-tort litigation: trial lawyers piling lawsuits on top of lawsuits, the removal of talc products from the United States and global markets, a Johnson & Johnson lawsuit against doctors over studies that linked talc-based products to cancer, and nonstop media attention.[3]
Johnson & Johnson has been attempting to conclusively resolve these tort claims by spinning off their tort liabilities to a subsidiary (LTL), with the intent of putting it into bankruptcy.[4] The theory, known as the Texas two-step, involves creating a subsidiary, transferring the tort liabilities to that subsidiary, and then agreeing to fund the subsidiary with insurance proceeds and/or assets sufficient to pay tort claimants.[5] The goal, from Johnson & Johnson’s perspective, has been to try and reach an end to the talc war with the mass-tort trial lawyers and to do so with less money on the table than the mass-tort lawyers might otherwise necessitate with their fully operational shake and bake machinery.
The trial lawyers weren’t so pleased. But they also sensed an opportunity. If they could force dismissal of the LTL bankruptcy case, and bar the door to bankruptcy court at least for the time being, they could force Johnson & Johnson to a negotiating table on weaker terms.
And sure enough, mere hours after the United States Court of Appeals for the Third Circuit reversed the initial bankruptcy court ruling and dismissed LTL’s first bankruptcy as a bad faith filing, LTL renegotiated with the various groups of trial lawyers and filed a second bankruptcy case, in which Johnson & Johnson promised to pay some $9 billion, nearly 4 times what they offered in the first case.[6] Just like the mass tort-trial lawyers effectively gamed the system in the Boy Scouts of America bankruptcy to the tune of multiple billions in their favor—something that very well could be in the cards for the LTL case if it is allowed to proceed—we now see that the LTL bankruptcy has turned into a trial lawyer plaything, with the trial lawyers driving the ship and singing the tune at key procedural turns, all while their ledgers swell and almost every other player in the drama suffers.
In short, Johnson & Johnson/LTL, coming so soon after the Boy Scouts of America debacle, lays out in full display how trial lawyers have managed to exert influence over the bankruptcy process on the front end and the back end, ensuring that mass-tort bankruptcies are starting to look like trial lawyer playthings rather than a well-functioning part of our legal system.
II. The Road Here: Manville and Bates
It seems fair to ask how we got here in the first place, and why bankruptcy judges buy into any of this chicanery. And the answers lie in part in two cases from half a century ago.
The year was 1977. A young lawyer named John Bates sought to build a practice offering low-cost services to middle America. And he set about to do so by advertising various legal offerings, such as uncontested divorces, wills, and other (primarily process-based) mass-market consumer offerings.[7]
The State Bar of Arizona objected to this and sought to discipline young Mr. Bates for violating ethics rules that prohibited lawyers from advertising. Mr. Bates argued that the ban on attorney advertising violated his first amendment rights. The Bar argued that allowing attorney advertising would be “inherently misleading,” negatively affect the “administration of justice,” have “undesirable economic effects,” harm the quality of legal services, and be difficult to police.[8]
The State Bar of Arizona lost. The Supreme Court of the United States held that attorney speech was commercial speech protected under the first amendment. Further, the restriction on any attorney advertising had “served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable.”[9]
Enter Johns Manville, a maker of construction materials that contained asbestos, subjecting them to some 16,000 lawsuits. In 1982, facing a wave of lawsuits, Johns Manville filed bankruptcy. While Johns Manville’s operation was not per se insolvent, the company had a major problem: insurers had been denying coverage even as the company faced the current wave of lawsuits and those to be expected from future plaintiffs whose claims might ripen in the coming years. By filing bankruptcy, Johns Manville was able to draw those insurance policies into the bankruptcy estate and use them to help fund trusts to which future claimants would look for compensation, essentially forcing value from the insurance contracts and dealing with the problem of future claimants, thereby making confirmation of a final bankruptcy plan possible and allowing the company to move its operations past the wave of lawsuits it was facing.[10] Problem solved from Manville’s perspective.
Following in the footsteps of Johns Manville, corporations now use bankruptcy to tap insurance policies to fund trusts that serve as the source of payment for current and future tort victims. But the rules of bankruptcy were not designed to address mass torts. And if you add in a healthy dose of attorney advertising you reach the point where Manville and Bates collide.
Yet this straightforward collision of Bates and Manville on its own could not cause the chaos we are seeing in the current mass-tort cases. After all, for nearly 50 years we didn’t see the kinds of problems that exist today. Agent Orange litigation was in the 1970s. Asbestos was in the 1980’s. And these helped generate the silicone breast implant and tobacco cases in the 1990s without generating the kind of situation we see now.
III. The Quaintness of Mr. Bates: Mass Tort in The Digital Age
Fuel was needed to cause the explosion in claims which are now threatening our bankruptcy system. That fuel was technology.
Today we live in the digital age, and we’re headed quickly into the virtual world of artificial intelligence. And mass-tort lawyers are wasting no time in enlisting the most modern methods for generating claims and pushing the envelope on attorney advertising.
The attorney advertising of the Bates era seems so quaint in retrospect. I grew up in the 1970s. Seat belts were only recently required (1966). Headlight dimmer switches were found on the floorboard of cars. Only 50% of radio listeners tuned into FM stations, and touch-tone phones were just showing up in homes. Key punch machines were the backbone of billing systems and personal computers were still a decade away. Attorney advertising was seen only in the classified section of your local newspaper or by those who stayed up to watch the late show after Johnny Carson, and by 2 am every TV station had signed off until morning.
Mass-tort lawyers have moved far beyond this quaint world. They use lead-generation software that integrates consumers’ own information with public information to target consumers (search for anything relating to a mass tort case or topic and watch over the next few days how every search you perform, every Facebook thread you peruse, every article you look at, and every streaming service you listen to, is suddenly filled with targeted trial lawyer advertising directed specifically at you). And that is only the beginning. Once they trigger a click with one of these advertisements – you clicked because you were casually interested, perhaps – you then get the full onslaught of the seal-the-deal machinery. And if you enter the sign-up rabbit hole but then decide to head for the exit? Well, that is when the wave of “save the sale” software maneuvers come out—the same algorithms that kick in on consumer websites when you move away from a potential purchase now kick into gear to lock you in as a law firm’s client, signing over a massive portion of a potential legal claim as if it were equivalent to picking out a new set of jeans.[11]
IV. Corporate Bankruptcy’s Special Rules Make for Unique Mass-Tort Susceptibility
The success of the corporate bankruptcy process is driven in part by rules that were designed to make the reorganization process efficient. At its core the corporate reorganization process is all about restructuring the company in a manner that maximizes its value and then redistributes that value efficiently to creditors (employees, bondholders, and so on), thus staving off liquidation; the goal is a confirmed plan, with other considerations taking a backseat. To that end, bankruptcy courts rely on a concept that claims filed in a case are deemed allowed – subject to review later – and thus are eligible to vote for or against confirmation of a plan of reorganization. Typically, these claimants are unsecured creditors who have provided goods or services to the company but have not been paid. In larger cases an unsecured creditors committee is appointed to act as a voice for all unsecured creditors. These committees investigate the financial affairs of the debtor, pursue certain actions within the case, and play an important role in the reorganization of the debtor.
In the mass-tort cases, damages incurred by victims are the vast majority of unsecured claims. These unsecured claims become a numbers game. Unlike the typical corporate case where unsecured creditors are generally known and listed in the company’s books, in the mass-tort case they are usually unknown at the outset of the bankruptcy proceedings. The more of these claims a party controls, the more that party can influence the direction and outcome of the case. You don’t need a law degree to understand the free-for-all this creates. Control enough claims, control the case. And with no guard rails in place to determine the validity and amount of these claims, the process is especially ripe for gaming by the same people who have perfected digital claim generation and client sign-up tools for their other purposes.
The tactics the personal injury lawyers use to manipulate the bankruptcy process include sophisticated lead-generation algorithms that promise lottery-ticket sized payouts and then ensure that potential claimants stay locked into the process for as long as necessary. I reviewed a sampling of solicitations on the web for those wondering if they may have a claim against Johnson & Johnson for talc-related issues. Preliminary questions suggest that if you or a family member has been diagnosed with cancer you may have a claim.[12]
The strongest recent example of this operation in action inside a bankruptcy case is the Boy Scouts of America Bankruptcy, where mass-tort trial lawyers swamped the case and took control of much of the plan negotiation, to the benefit of themselves and to the detriment of the initial set of seemingly deserving victims.[13] When the Boy Scouts of America bankruptcy case was first filed, there were a few hundred tort cases pending. Boy Scouts of America estimated that there may be a total of some 2,000 claims which would be filed in the case. After ramping up their claims-generating machine, the mass-tort lawyers eventually filed some 80,000 claims in the bankruptcy. That ended up increasing the size of the overall pot for these lawyers to $2.4 Billion.
And the same maneuvers are rearing their heads in the Johnson & Johnson/LTL cases, with groups of lawyers teaming up with doctors to link various cancers to the use of talc, foment a swarm of cases in private litigation, and separately gin up a pool of some 16,000 claims in order to object to the bankruptcy petition.[14]
V. The Road Ahead: Stopping the Abuses and Helping Victims
Make no mistake, there is a real problem here. Corporate bankruptcy reorganization is about dividing the limited assets of a distressed company. It cannot be allowed to remain a trial lawyer toy.
One systematic way to respond to the problem here is legislation from Congress. Congress could pass legislation to try and force disclosure of how claims are generated and otherwise more aggressively regulate the full-scale sales operations that the mass tort trial lawyers use to run their gambit in and around these bankruptcy cases. But, as recent events in Congress have demonstrated, the path forward for any substantive, non-mandatory legislation, particularly judicial reform legislation, is questionable; passing the Bankruptcy Abuse Prevention and Consumer Protection Act in 2005 took nearly 10 years during a different time in terms of congressional cooperation and ability to forge bipartisan consensus around reforms to courts.
Another potential avenue for structural reform would be action through the Judicial Conference’s Committee on Rules of Practice and Procedure. The rules could be changed to require more up-front disclosure and heightened certification requirements for the lawyers (and others, as the case may be) who help file claims in the bankruptcy process on behalf of tort claimants. The Rules Enabling Act, 28 U.S.C. §§ 2071-2077, authorizes the Supreme Court of the United States to prescribe general rules of practice and procedure for the federal courts, including the bankruptcy courts. Related to this authority is the power that Bankruptcy Rule 9009 gives to the Judicial Conference to prescribe the official forms that, pursuant to the Rule, shall be used in federal bankruptcy proceedings without alteration (except as otherwise provided in the bankruptcy rules, in a particular Official Form, or in the national instructions for a particular Official Form).[15]
Changing the pertinent Bankruptcy Rules themselves to heighten oversight of the claim-generation process—for example, by requiring that third-party providers employed by mass-tort trial lawyers be retained subject to an order of the bankruptcy court (like any other professional employed in furtherance of the bankruptcy), with the estate as the locus for payment and therefore greater transparency—would be a two- to three-year process (likely as a complement to updates to the Official Forms, as discussed below).[16] The Advisory Committee on Bankruptcy would evaluate the proposal in the first instance, seek permission from the full Judicial Conference’s Committee on Rules of Practice and Procedure, better known as the Federal Rules Committee, to publish a draft of any contemplated amendment that the Advisory Committee thought worth pursuing, and then choose ultimately to transmit the amendment as contemplated to the full Federal Rules Committee (or not) based on comments from the bench, bar, and general public. The Federal Rules Committee would then independently review the findings of the Advisory Committee and, if satisfied, recommend changes to the Judicial Conference itself, which in turn would recommend the changes to the Supreme Court of the United States (or not), at which point the Supreme Court would consider the proposal and ultimately be the entity to promulgate any change to the pertinent rules.
There is also a complementary path that the Federal Rules Committee could follow while full-scale rule changes were in process: changing the Official Forms for the federal bankruptcy proceedings. This is how the Federal Rules Committee tackled some meaningful reform efforts when I was an ex officio member during my tenure as Director of the Executive Office for United States Trustees. In the aftermath of the high-profile National Mortgage Settlement, the Federal Rules Committee revamped the official proof-of-claim form for mortgage debts, changing how the official form addressed deficiencies and how claims that might change based on contractual language are treated in the filing process—for example, mortgage claim holders must now give notice in the bankruptcy case in advance of any change in the amount of the monthly claim amount.[17] Similarly, after the Supreme Court held that the Fair Debt Collection Practices Act did not apply to the filing of a proof of claim form in bankruptcy in Midland Funding, LLC v. Johnson,[18] the Federal Rules Committee revamped the official proof-of-claim form to require a prominently placed clear statement disclosing that the debt may be subject to legal defenses. In both these instances, the changes to the Official Forms added additional requirements, disclosures, and detail in the initial claim-filing process to serve an information-forcing function and add transparency and trust to the system where it might have been lacking before. This same approach could be deployed in a matter of months in response to the current mass-tort problems, with real systematic benefits.
Yet another expedient and meaningful option for addressing the real concerns here would be for bankruptcy judges to increase transparency through proactive appointment of claims examiners. Bankruptcy judges can do this right away. They have the power to appoint claims examiners pursuant to 11 U.S.C. § 1104. And this would not be a wholly novel approach. The use of examiners has grown dramatically since the United States Trustee Program sought the use of them in Enron, WorldCom, and Adelphia, and the appointment of examiners for particular matters within an ongoing bankruptcy proceeding (such as examiners to shed light on fees sought by all professionals in a case) is not uncommon. Examiners can serve many purposes, but the common theme is that they do not work to fully adjudicate questions in their topic area, but instead perform an investigative function and file detailed reports regarding the matters they were tasked with investigating. These reports serve many beneficial purposes. For example, they help consolidate key information, aiding with eventual discovery and other related reviews, including any involvement by other departments within agencies like the Department of Justice and the Securities and Exchange Commission. And, perhaps most importantly, the examiner reports, which can often be multi-volume affairs, pull back the curtain to shine light on what is actually happening in the bankruptcy proceedings or what precipitated the debtor’s insolvency.
The appointment of claims examiners in cases where large numbers of tort claims are swirling around the initiation or conclusion of a bankruptcy proceedings would shed light on who is driving the bankruptcy and who should have a say in the resolution of the proceedings. A claims examiner is the best way to sift through the mess that mass tort trial lawyers are making of cases in and around bankruptcy. And it could be a powerful way to figure out if mass tort lawyers are running a gambit to a keep a company out of bankruptcy for their own benefit. Put simply, the increased transparency that systematic use of claims examiners would drive is exactly what is needed to help tamp down and dissuade future abuses.
* * *
The problems creeping into corporate bankruptcy because of mass tort trial lawyers are serious. The damage to victims and other creditors is real. And it is crucial that the bankruptcy world respond in short order lest our beloved corner of the legal world succumb to the mass-tort trial lawyers and become a mere vassal state where the trial lawyers control things from start to finish and real victims get crushed in a mass-tort gold rush that imposes huge costs and takes massive value out of a system that is meant to divide the limited assets of a distressed company.
Courts, judges, and other public officials should act now to increase transparency, expose the forces behind the problems, and respond in an appropriate fashion. So far, as the Johnson & Johnson/LTL and Boy Scouts of America cases illustrate, there is little evidence that judges and practitioners are taking the threat seriously enough. That needs to change, especially if we are going to allow our bankruptcy courts to be used to solve societal issues. We can make the bankruptcy system more resilient to this threat, giving it a chance of serving its important role and not just being a captured province of the mass-tort empire. But it is time to wake up and get moving.
* Lawrence A. Friedman is the Managing Member of Friedman Partners LLC. He was the Director of the Executive Office for U.S. Trustees from 2002-2005 and prior to that served as a Chapter 7 bankruptcy trustee administering more than 10,000 bankruptcy cases.
[1] See, e.g., Philip Goldberg, How Mass Tort Litigation Is Gaming the Judicial System, Bloomberg Law (March 2, 2023), https://news.bloomberglaw.com/us-law-week/how-mass-tort-litigation-is-gaming-the-judicial-system; Lawrence A. Friedman, Reforming Corporate Bankruptcies to Stop the Mass Tort Shakedown, Bloomberg Law (April 25, 2022), https://news.bloomberglaw.com/bankruptcy-law/reforming-corporate-bankruptcies-to-stop-the-mass-tort-shakedown-16; The Editorial Board, Looting the Boy Scouts, Wall St. J. (March 2, 2021), https://www.wsj.com/articles/looting-the-boy-scouts-11614728612.
[2] Lawrence A. Friedman, Corporate Bankruptcy Gets A Shakedown From Mass Tort Trial Lawyers, Harv. J.L. & Pub. Pol’y: Per Curiam (Spring 2022, No. 7), https://journals.law.harvard.edu/jlpp/corporate-bankruptcy-gets-a-shakedown-from-mass-tort-trial-lawyers-lawrence-a-friedman/.
[3] See, e.g., Suryatapa Bhattacharya, Johnson & Johnson Sues Doctors Over Studies Linking Talc-Based Products and Cancer, Wall St. J. (July 13, 2023), https://www.wsj.com/articles/johnson-johnson-sues-doctors-over-studies-linking-talc-based-products-and-cancer-78ffd2a7; The Editorial Board, Why Lawyers Love Jackpot Talc Litigation, Wall St. J. (September 25, 2022), https://www.wsj.com/articles/why-lawyers-love-jackpot-talc-litigation-johnson-and-johnson-talcum-powder-lawsuits-tort-lawyers-11663965125; Talal Ansari, J&J to Stop Selling Talc-Based Baby Powder Globally Next Year, Wall St. J. (August 11, 2022), https://www.wsj.com/articles/j-j-to-stop-selling-talc-based-baby-powder-globally-next-year-11660258047; James R. Copland, Johnson & Johnson Takes A Powder, Wall St. J. (May 22, 2020), https://www.wsj.com/articles/johnson-johnson-takes-a-powder-11590167907.
[4] See, e.g., David Goldman, Johnson & Johnson is again trying to use bankruptcy to settle talc cases for $8.9 billion, CNN (April 4, 2023), https://www.cnn.com/2023/04/04/investing/johnson-and-johnson-talc-bankruptcy/index.html.
[5] Charlie Hu, Court Rejects Johnson & Johnson’s Use of the “Texas Two-Step” to Tackle Baby Powder Liability, U. Chi. Bus. L. Rev. (Online Edition 2023), https://businesslawreview.uchicago.edu/online-archive/court-rejects-johnson-johnsons-use-texas-two-step-tackle-baby-powder-liability.
[6] See, e.g., David Goldman, Johnson & Johnson is again trying to use bankruptcy to settle talc cases for $8.9 billion, CNN (April 4, 2023), https://www.cnn.com/2023/04/04/investing/johnson-and-johnson-talc-bankruptcy/index.html.
[7] Bates v. State Bar of Arizona, 433 U.S. 350, 350 (1977).
[8] See, e.g., id. at 372.
[9] Bates, id. at 376.
[10] See, e.g., David Skeel, Purdue Pharma’s Bankruptcy Heads to the Supreme Court, Wall St. J. (August 27, 2023), https://www.wsj.com/articles/purdue-pharmas-bankruptcy-heads-to-the-supreme-court-asbestos-sackler-trust-90d810a4.
[11] Judge Land of the U.S. District Court for the Middle District of Georgia was the first high-profile jurist to prominently call out these dynamics. In 2016, while administering an MDL over mesh medical devices, he found most claims stockpiled in his MDL “should never have been brought in the first place,” as they were “fueled” by television solicitations, filed “with so little pre-filing preparation,” and couldn’t “stand on their own merit.” See Philip Goldberg, How Mass Tort Litigation Is Gaming the Judicial System, Bloomberg Law (March 2, 2023), https://news.bloomberglaw.com/us-law-week/how-mass-tort-litigation-is-gaming-the-judicial-system.
[12] Of particular note is the consent the consumer is required to sign agreeing to be contacted including by email, telephone (including phone calls, text messages, autodialed/auto-selected or pre-recorded calls. See, e.g., Pintas & Mullins, P.R., Free ClaimReview, https://www.ovariansettlements.com/?utm_source=google&utm_medium=PPC&utm_campaign=14817830815&utm_content=SL2&PN=8007497444&gclid=CjwKCAjwrranBhAEEiwAzbhNtVXQW6F35El0btQUXbxrKncq1CeUJG-SNkcblX0gdn5ewHDb7jRZyxoCcAYQAvD_BwE.
[13] See, e.g., Lawrence A. Friedman, Reforming Corporate Bankruptcies to Stop the Mass Tort Shakedown, Bloomberg Law (April 25, 2022), https://news.bloomberglaw.com/bankruptcy-law/reforming-corporate-bankruptcies-to-stop-the-mass-tort-shakedown-16; The Editorial Board, Looting the Boy Scouts, Wall St. J. (March 2, 2021), https://www.wsj.com/articles/looting-the-boy-scouts-11614728612.
[14] See, e.g., Suryatapa Bhattacharya, Johnson & Johnson Sues Doctors Over Studies Linking Talc-Based Products and Cancer, Wall St. J. (July 13, 2023), https://www.wsj.com/articles/johnson-johnson-sues-doctors-over-studies-linking-talc-based-products-and-cancer-78ffd2a7; Evan Ochsner, J&J Uses Cajoling, $9 Billion Offer to Sell New Talc Bankruptcy, Bloomberg Law (April 27, 2023), https://news.bloomberglaw.com/bankruptcy-law/j-j-uses-attorney-cajoling-8-9b-to-sell-new-talc-bankruptcy (“J&J says the settlement now has the purported support of up to 80,000 claimants, including about 16,000 who are represented by a lawyer, Mikal Watts, whose role in the case grew in recent months.”).
[15] Permitted Changes to Official Bankruptcy Forms, United States Courts, https://www.uscourts.gov/rules-policies/about-rulemaking-process/permitted-changes-official-bankruptcy-forms [https://perma.cc/A5PS-UBUC].
[16] About the Rulemaking Process, United States Courts, https://www.uscourts.gov/rules-policies/about-rulemaking-process [https://perma.cc/N42G-94EJ].
[17] See, e.g., Bankruptcy Rule 3002.1, Notice Relating to Claims Secured by Security Interest in the Debtor’s Principal Residence, and 2011 Committee Notes on Rules.
[18] 137 S. Ct 1407 (2017).
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Posted by mmullin on Oct 4, 2023 in Per Curiam
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Interim Final Rules and the APA: Some Rule of Law Problems
Thomas E. Nielsen*
Introduction
Almost a century ago in Crowell v. Benson,[1] Chief Justice Charles Evans Hughes highlighted the benefits of delegating certain classes of issues to administrative agencies for “prompt, continuous, expert, and inexpensive” resolution,[2] but cautioned that unfettered agency discretion risked “establish[ing] a government of a bureaucratic character alien to our system.”[3] When Congress enacted the Administrative Procedure Act[4] (APA) in 1946, it offered a broad framework to negotiate this tension – between administrative power and the rule of law[5] – by balancing “a range of variables, including stability, constraints on executive power, accountability, and the need for expedition and energy, for vigorous government.”[6] In the following decades, as agencies and the lower courts gave content to the APA’s vague generalities, a hydraulic give-and-take emerged: agencies sought avenues for efficient, expertise-driven policymaking, and courts answered by erecting various limits on administrative power.[7]
One avenue of efficiency is the “interim final” rule (IFR). Used with increasing frequency since the 1980s,[8] IFRs are promulgated without notice and comment using the APA’s “good cause” exception.[9] Although the IFR is immediately binding,[10] the agency simultaneously invites public input on it.[11] The agency then issues a “final final” rule (FFR) that – at least theoretically – is edited to respond to the comments received.[12]
IFRs have long threatened the rule-of-law values undergirding the informal rulemaking process, a threat since intensified by the Supreme Court’s 2020 decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania,[13] which appeared to “write [the APA’s informal rulemaking procedures] out of the statute entirely.”[14] Little Sisters’ questionable reading of the APA, which made interim-final rulemaking markedly easier than it was before, nudges the administrative state towards the “government of a bureaucratic character” against which Chief Justice Hughes cautioned.[15] But just as the hydraulics of our legal system have responded to bold assertions of administrative power in the past, so too can they respond to Little Sisters and cabin the use of IFRs: by way of arbitrary-and-capricious review, and (in certain cases), by limiting agencies’ invocations of the APA’s good cause exception. Through these pathways, lower courts can rein in the unfettered administrative discretion Little Sisters appears to allow, restoring the APA’s balance between administrative power and the rule of law.
This Essay proceeds as follows. Part I offers a brief history of the use and judicial review of IFRs. Part II discusses the rule-of-law values undergirding various constraints on agency action, and argues that the IFR process represents a threat to these values – a threat the Court in Little Sisters disregarded. Part III offers two devices lower courts can use to cabin the IFR process while remaining faithful to the APA’s text.
I. A Brief History of IFRs
Since the 1980s, agencies have relied on the IFR process to promulgate a growing number of rules. This Part describes the rise of IFRs, the various approaches the circuit courts took in evaluating their validity prior to 2020, and the effect of Little Sisters on these approaches.
A. The Rise of IFRs
The familiar procedure of notice-and-comment rulemaking, set forth in § 553 of the APA, requires that agencies publish a general notice of a proposed rulemaking in the Federal Register, give “interested persons an opportunity to participate in the rule making” by submitting comments, and then, “[a]fter consideration of the relevant matter presented,” issue a final rule along with a “concise general statement of [its] basis and purpose.”[16] In the wake of the wholesale shift from formal adjudication to informal rulemaking in the 1960s, however,[17] courts grafted various additional requirements onto this relatively sparse text.[18] Such requirements, coupled with the development of so-called “hard look” review in the 1970s–80s,[19] transformed notice-and-comment rulemaking from a simple, streamlined procedure into a “cumbersome and costly” one.[20]
IFRs emerged as a way to circumvent this process while retaining some of its benefits. The APA contains several exceptions, including a “good cause” exception that permits agencies to forego notice and comment if the procedure would be “impracticable, unnecessary, or contrary to the public interest.”[21] By using this exception to promulgate a binding IFR, an agency is able to swiftly respond to a perceived problem or a statutory command to act, avoiding the burdens of adhering to § 553’s paper hearing requirements.[22] And by soliciting postpromulgation comments after issuing an IFR (which is legally unnecessary if the good cause exception applies), the agency can reap some of the benefits of public participation in rulemaking, gaining “valuable information . . . at low cost.”[23] As a result of such comments, the FFR is less likely to contain mistakes and may be better suited to “deal[ing] with unexpected and unique applications or exceptional situations” to which the comments adverted.[24]
In light of these advantages, agencies have embraced IFRs with increasing enthusiasm since the 1980s. The trend is especially pronounced with respect to so-called “major” rules – those with an economic impact of $100 million or more. In 2018, James Yates observed that agencies averaged seven major IFRs per year during President Clinton’s second term, which increased to eight during the George W. Bush Administration and ten during the Obama Administration.[25] But even outside the context of major rules, agencies are using the IFR process more frequently than they once did, [26] suggesting a widespread belief within the administrative state that agencies can “get their rules implemented . . . quickly and economically by foregoing prepromulgation notice and comment.”[27] Put simply, IFRs “have become part of the rulemaking routine.”[28]
B. IFRs in the Circuit Courts
The rise of IFRs has put the judiciary “in an awkward position.”[29] On one hand, the good cause exception is generally understood to be narrow, existing “principally to give agencies flexibility in dealing with emergencies and typographical errors, plus the occasional situation in which advance notice would be counterproductive.”[30] On the other hand, once an agency has promulgated an IFR, invited postpromulgation comments, and issued an FFR after considering those comments, it has arguably adhered to the letter of the APA’s informal rulemaking provisions.[31] Moreover, the APA’s judicial review provisions include a harmless error rule,[32] suggesting that categorically declaring all IFRs to be procedurally invalid without investigating the prejudice, if any, caused by the procedure would itself violate the APA.
As Professors Kristen E. Hickman and Mark Thomson explain, these competing considerations led the circuit courts to adopt an array of approaches to addressing the procedural validity of IFRs.[33] Certain courts “declined to give any effect to postpromulgation notice and comment” on the grounds that upholding IFRs would “provide a powerful disincentive for agencies to comply with § 553’s prepromulgation notice-and-comment requirements.”[34] Others “treated postpromulgation notice and comment as curing or mooting procedural defects” in all IFRs.[35] Still other courts developed an intermediate approach called the “open mind” standard, upholding the procedural validity of rules “subjected to postpromulgation notice and comment if, during the postpromulgation notice-and-comment period, the agency kept an ‘open mind’ with respect to the comments it received” as reflected in the FFR.[36] Finally, in a handful of cases involving the EPA, courts invalidated an IFR for being procedurally defective but remanded to the agency without vacatur, which in turn “effectively require[d] a second round of postpromulgation comment” limited to “those parties that petitioned the court for relief.”[37] This diverse collection of views led Hickman and Thomson to conclude, in 2016, that “courts have struggled to resolve” the issue of how to consistently evaluate IFRs under the APA framework.[38]
C. IFRs After Little Sisters
In Little Sisters, the Supreme Court finally brought some clarity to the IFR issue, rejecting the “open mind” standard and strongly implying that IFRs are always valid so long as the agency invites postpromulgation comments and issues an FFR, even if the agency lacks good cause to issue the IFR in the first place. Little Sisters arose from two IFRs promulgated pursuant to the Affordable Care Act (ACA).[39] The ACA requires that employers offer insurance that includes “preventative care and screenings,” but delegates authority to define this term to the Health Resources and Services Administration (HRSA), a subsidiary of the Department of Health and Human Services (HHS).[40] Soon after Congress enacted the ACA, HRSA determined that the preventative care plans had to include contraceptive coverage, but exempted “certain religious nonprofits” from the requirement.[41] Such nonprofits could “self-certify” their religious objections to the insurance provider, who would in turn “direct the insurer to exclude contraceptive coverage from the organization’s plan.”[42] But in 2017, the Trump Administration issued two IFRs – invoking the good cause exception – that did away with the self-certification process and simply allowed any employer with a religious or moral objection to decline to offer contraceptive coverage to its employees.[43] Simultaneously, HRSA invited public comments on the IFRs.[44]
Pennsylvania challenged the IFRs in the U.S. District Court for the Eastern District of Pennsylvania, which issued a nationwide preliminary injunction.[45] Among other concerns, the district court expressed serious doubt that HRSA had good cause to dispense with notice and comment.[46] The district court also rejected the idea that inviting postpromulgation comments itself cured the procedural defects in the IFRs, since “an agency may seek post-issuance commentary only if and only after having shown that it had good cause to avoid notice-and-comment rulemaking.”[47] The Trump Administration appealed, and while the appeal was pending before the Third Circuit, HRSA issued FFRs “virtually identical” to the IFRs.[48] The Third Circuit subsequently affirmed the District Court, applying the “open mind” standard to conclude that “[t]he notice and comment exercise surrounding the Final Rules does not reflect any real open-mindedness toward the position set forth in the IFRs.”[49]
The Supreme Court reversed, concluding that because HRSA had promulgated FFRs after providing notice and an opportunity for comment, there was no procedural error.[50] Writing for a majority of five, Justice Thomas “decline[d] to evaluate the final rules under the open-mindedness test,” which violated the “general proposition,” first set forth in Vermont Yankee Nuclear Power Corp. v. NRDC,[51] that “courts are not free to impose upon agencies specific procedural requirements that have no basis in the APA.”[52] Concluding that § 553 only requires “adequate notice” and “an opportunity to participate in the rule making” through comments, the Court explained that HRSA “complied with each of these statutory procedures”[53]: the IFRs themselves constituted notice, and were issued concurrently with an invitation to “interested parties . . . to submit comments.”[54] In a footnote, the Court further noted that “[b]ecause . . . the IFRs’ request for comment satisfies the APA’s rulemaking requirements,” there was no need to reach the argument that “the Departments lacked good cause to promulgate the . . . IFRs” in the first place.[55]
As several commentators noted, Little Sisters seemed to not only endorse the IFR process,[56] but also contemplate that agencies could issue IFRs irrespective of good cause, potentially gutting § 553’s requirements for the mine-run of substantive rules.[57] The Court thus followed the handful of circuit courts that had taken the most permissive view towards IFRs,[58] embracing the idea that postpromulgation opportunity for comment, coupled with an FFR, cures any procedural defects present in an IFR.
II. IFRs and the Rule of Law
The APA’s notice-and-comment process strikes a balance between administrative power, with all its advantages of flexibility and expertise, and rule-of-law values. This Part describes those values and the manner in which the APA’s notice-and-comment process embodies them. It then offers an account of how IFRs aggrandize agency discretion at the expense of the rule of law, disrupting the APA’s “compromise[]” between these “opposing . . . forces.”[59] Finally, this Part explains how Little Sisters, through an overly literalistic and non-contextual interpretation of the APA’s text, ignored the threat.
A. Rule-of-Law Values in the Administrative State
In the mid-twentieth century, legal philosopher Lon Fuller posited that law could not exist without a “fundamental framework within which the making of law takes place,” a framework understood and accepted by both the sovereign and the public.[60] Central to this jurisprudential theory was what Fuller termed the “internal morality of law itself,” the notion that “the authority to make law must be supported by moral attitudes that accord to it the competency it claims.”[61] In The Morality of Law, Fuller set forth eight principles that he argued infused a legal system with the requisite sense of morality: laws must be (1) generally applicable, (2) sufficiently publicized; (3) prospective in effect; (4) clearly understandable; (5) consistent with each other; (6) reasonable in what they ask of the populace; (7) relatively stable and unchanging; and (8) congruent, by their terms, with how they are enforced in practice.[62] To Fuller, a system that failed to adhere to some or all of these rules was incapable of “creat[ing] anything that can be called law, even bad law,” since “[l]aw by itself is powerless to bring . . . morality into existence.”[63]
As Professors Cass Sunstein and Adrian Vermeule have explained at length, the APA offers adaptable, expert-driven modes of policymaking that are nonetheless limited by Fullerian values.[64] This balance is especially visible in the APA’s “most significant” innovation[65]: notice-and-comment rulemaking. Section 553 of the APA and the judicial opinions explicating it set forth two basic requirements. First, the agency must provide the public with notice of a proposed rulemaking and an opportunity for comment.[66] Second, the agency must offer a reasoned justification for its final rule after “consider[ing]” the comments received,[67] or, in the alternative, explain why there is good cause to depart from § 553’s normal procedures.[68] The notice requirement embodies a “cluster” of Fullerian principles.[69] It provides that proposed rules are adequately publicized, such that “they may be subject to public criticism.”[70] It guards against retroactivity.[71] And it ensures, by inviting feedback from interested parties, that the proposed rule does not “command[] the impossible” and can be adequately followed, giving it the practical force of law.[72] Similarly, the reasoned explanation requirement promotes clarity, forcing agencies to square their ultimate choice with the evidence before them, as well as existing law.[73] Finally, § 553’s structure – of a standard procedure followed by limited, enumerated exceptions – itself establishes the general rule that agencies cannot dispense with notice-and-comment on an ad hoc basis, abiding Fuller’s concern that if the lawmaker “habitually disregards his own rules, he may find his system of law disintegrating.”[74]
B. Rule-of-Law Problems Posed by IFRs
1. Fullerian Failures of Clarity, Generality, and Publicity
The IFR process represents a risk to a panoply of rule-of-law values embedded in the notice-and-comment process. Most obviously, the process frustrates the values of clarity and generality. After Little Sisters, it also frustrates the value of publicity.
Start with clarity and generality. Even before the Court decided Little Sisters, agencies routinely justified IFRs through questionable invocations of the good cause exception: given the high costs of the notice-and-comment process and the fact that the good cause exception is enforced inconsistently[75] (and evaluated under varying standards of judicial review),[76] agencies have a strong incentive to invoke the exception to promulgate IFRs, notwithstanding the risk that a court might invalidate them later.[77] Citing this incentive, Hickman and Thomson conclude that “at least a significant percentage of agency regulations lacking prepromulgation notice and comment are not, in fact, exempt from those procedures under the APA.”[78]
IFRs promulgated pursuant to the good cause exception, then, have clarity and generality problems due to their impermissibly ad hoc character: because a reasoned justification is not possible, the agency is left to make an essentially arbitrary decision to depart from § 553’s typical procedures, which in turn is evaluated on an arbitrary basis by the courts. A pair of cases arising out of one of the Biden Administration’s COVID-19 vaccine rules illustrates these failures in practice. In September 2021, HHS announced that the conditions of participation in the federal Head Start Program would be amended to include a COVID-19 vaccination requirement.[79] At the end of November, HHS promulgated an IFR to this effect, invoking the “impracticable” and “public interest” prongs of the good cause exception.[80] The IFR was promptly challenged in multiple lawsuits. On January 1, 2022, the U.S. District Court for the Western District of Louisiana held that the IFR was procedurally invalid because HHS lacked good cause, observing that “[i]t took [HHS] almost three months . . . to prepare the [IFR],” and concluding that “the situation was not so urgent that notice and comment was not required.”[81] Evaluating the same fact pattern, the U.S. District Court for the Eastern District of Michigan reached the opposite result two months later, holding that the “82 days that it took to publish the IFR after it was first announced did not ‘constitute[] “delay” inconsistent with the Secretary’s finding of good cause.’” [82]
These courts’ division on the good cause issue reveals the clarity and generality issues inherent in the IFR process. As to clarity, HHS offered a host of factual reasons why good cause applied,[83] but did not attempt to connect them to the prongs of the exception (“impracticable” and “public interest”) it invoked.[84] As to generality, HHS’s inability to provide a reasoned explanation grounded in the APA contributed to the appearance that HHS had arbitrarily selected the IFR process over standard rulemaking – especially in light of HHS’s delay between announcing the IFR and promulgating it. And when the question reached the courts, they split without providing guidance beyond the fact-bound ruling that the eighty-two-day wait was (or was not) too long, perpetuating the cycle of incoherence and arbitrary decisionmaking, or what Fuller called a “fail[ure] to develop any significant rules at all.”[85]
The rule-of-law problems that arise when agencies opportunistically invoke the good cause exception to promulgate IFRs are intensified by Little Sisters. If, as Little Sisters suggested, notice and comment before the issuance of a binding pronouncement is optional, agencies can ignore the procedure at will, issuing IFRs that double as notice while inviting postpromulgation comments, and then issuing FFRs if the IFRs are challenged.[86] In this universe, agencies do not need to even attempt to show good cause to avoid notice and comment and can instead disregard § 553’s general order of operations whenever they want, rendering it a nullity.[87] Such disregard pushes the IFR process closer to a purely ad hoc mode of decisionmaking with no discernible standards than it was before Little Sisters, when agencies had an obligation to at least try and link an IFR to one of the APA’s “good cause” prongs.
Little Sisters brings with it a third Fullerian failure, too, threatening the publicity safeguarded by the notice-and-comment process. IFRs, like all substantive rules, are subject to the APA’s requirement of publication in the Federal Register thirty days before going into effect, which provides a modicum of notice to the public.[88] But prepromulgation comments foster additional dimensions of publicity, opening up the “internal procedures of deliberation and consultations” by which a binding rule is made and exposing the rule to scrutiny before it acts on the public.[89] In this way, post- and prepromulgation comments are not the same: once an agency has published a binding IFR, it is “less likely . . . [to] deviate from its position” in the FFR.[90] If the public feels that that an invitation for postpromulgation comments is a mere pro forma exercise, such an attitude could create a malaise whereupon “citizens [do] not take seriously the opportunity to offer comments” and perceive that the “resulting rules . . . [are] less the product of a representative process and more the product of bureaucratic fiat.”[91] The IFR process, in other words, risks making rules appear illegitimate due to a lack of genuine public input.
Unsurprisingly, courts cognizant of the Fullerian morality of the APA’s notice-and-comment process have repeatedly expressed an intuition (in contexts outside interim-final rulemaking) that agencies should not be empowered to ignore that process whenever it is convenient to do so. For instance, in Tennessee Gas Pipeline Co. v. FERC,[92] the D.C. Circuit rejected the argument that “the limited nature of [a] rule” could “justify a failure to follow notice and comment procedures.”[93] To rule otherwise, the court cautioned, would allow the APA’s exceptions to “soon swallow the notice and comment rule.”[94] In Northern Mariana Islands v. United States,[95] the U.S. District Court for the District of Columbia came to a similar conclusion, holding that a statutorily mandated eighteen-month implementation period did not constitute good cause to dispense with notice and comment. There, too, the court observed that accepting such an argument would “swallow the [notice-and-comment] rule, as every agency obligated to develop a new federal program in a finite amount of time could decide that it had good cause to dispense with public participation in rulemaking.”[96] Both Tennessee Gas and Northern Mariana Islands seemed to express a “mood”[97] that giving agencies broad discretion to dispense with prepromulgation comments would threaten the rule-of-law values implicit in § 553. But the IFR process as interpreted in Little Sisters appears to grant agencies precisely this sort of discretion.
2. Little Sisters’ Refusal to Recognize the Problem
Little Sisters could have responded to the rise of IFRs by recognizing the problems they posed under the APA’s framework. Instead, the Court engaged in a questionable reading of § 553’s text that failed to respect the rule-of-law principles underlying it. As Hickman explains, § 553’s description of the comment process, through repeated uses of the word “after,” assumes that comments follow notice but precede the issuance of a final, binding rule.[98] The good cause exception empowers agencies to entirely dispense with this requirement.[99] Thus, the concept of inviting “postpromulgation comments” on a binding rule is alien to the APA’s text: rather, the APA gives agencies the choice either (a) to seek comments before promulgating a binding rule, or (b) to forgo the procedure entirely after making a showing of good cause. So Little Sisters’ decision to treat postpromulgation comments on an IFR the same as prepromulgation comments on a typical rule,[100] despite being justified textually, finds no support in § 553 read contextually.[101]
From this, it follows that inviting postpromulgation comments on an IFR is never relevant to its procedural legality: if an agency has good cause, it can (but does not have to) invite postpromulgation comments, and if an agency lacks good cause, it must offer prepromulgation comments. Consequently, the Little Sisters Court’s footnote[102] observing that its decision mooted the good cause issue makes little sense: since postpromulgation comments should not count as an “opportunity to participate” under § 553’s general provisions, the only way the FFRs in Little Sisters could have been valid was if the agency had good cause to dispense with prepromulgation comments. The Court’s conclusion to the contrary ignores the “implicit procedural logic”[103] of § 553 in lieu of an overly wooden, literalistic interpretation. And because the Court ignored that logic, it also ignored certain values – clarity, generality, and publicity – that infuse the informal rulemaking process with Fullerian morality.[104] The result is an erosion of agencies’ broader legitimacy as lawmakers: as Hickman pointedly wrote after the Court announced Little Sisters, “[w]e likely will get more agency regulations faster” as a result of an increased use of IFRs, “but in the end, we may not like the cost.”[105]
III. Cabining the IFR
Little Sisters’ reliance on the APA’s text to reject court-crafted constraints on agency discretion recalls a chestnut of administrative law, Vermont Yankee, which offers lessons for those concerned about the threat IFRs pose to the rule of law. This Part briefly describes the analytical link between Vermont Yankee and Little Sisters. Then, drawing on how the law developed after Vermont Yankee, it provides two ways lower courts can draw on the APA to constrain the IFR process.
A. Lessons from Vermont Yankee
Vermont Yankee purported to rely on the APA’s text to conclude that “reviewing courts are generally not free to impose [additional procedural rights not enumerated in the APA] if agencies have not chosen to grant them.”[106] But in reaching this conclusion, the Court arguably ignored other sections of the APA,[107] instead embracing the idea that “procedural mandates need some kind of [positive] legal foundation.”[108] Four decades later, Little Sisters relied heavily on Vermont Yankee to reject the “open-mindedness test” as the sort of common law-esque procedural requirement the Court had long renounced.[109] Little Sisters, too, is arguably inconsistent with the language of the APA,[110] but like Vermont Yankee, reflects a methodological commitment to “judicial restraint and . . . strict judicial adherence to [the APA’s] . . . text,” read in isolation.[111]
Despite appearances, however, Vermont Yankee did not actually leave “the formulation of procedures . . . [entirely] within the discretion of . . . agencies.”[112] Rather, as then-Professor Antonin Scalia observed, Vermont Yankee only barred courts from “supplementing” the APA’s procedures in a common-law fashion.[113] The opinion was noticeably silent on “expansive interpretation[s] of the language of the APA itself” that had the effect of imposing new procedures on agencies, and “its silence on this point seem[ed] to be an implicit approval” of such a practice.[114] Vermont Yankee also endorsed the substantive policing of a rule’s content through 5 U.S.C. § 706’s arbitrary-and-capricious review provision, a constraint the Court had been developing since 1971.[115]
In the years following Vermont Yankee, then, “judicial decisions reinterpreting the APA in a relatively permanent fashion” persisted, imposing new hurdles on agencies and raising the costs of the informal rulemaking process. Though not without their critics,[116] such decisions were a natural continuation of what the courts had been doing for decades: devising tools within the APA framework to ensure, as agencies asserted power in new ways, that the administrative state remained within the bounds of the law’s morality. Lower courts concerned about the rise of IFRs can take a lesson from Vermont Yankee, then, and use arbitrary-and-capricious review, as well as well as procedural constraints grounded in § 553’s text, to rein in the IFR process.
B. The Substantive Approach: Policing IFRs and FFRs Through Arbitrary-and-Capricious Review
The first – and best – option for lower courts is to expose IFRs and FFRs to a searching form of arbitrary-and-capricious review on the ground that they are overbroad and thus lack a rational connection to the purported issue the agency is trying to address. Call this the “substantive” approach. When evaluating an agency action under the arbitrary-and-capricious standard, courts must ask, among other things, whether the agency articulated a “rational connection between the facts found and the choice made.”[117] This requirement often implicates a question of fit – of whether the “scope” of a rule accords with “the problem the agenc[y] set[s] out to address.”[118] One of the virtues of inviting prepromulgation comments, of course, is that an agency can adjust the reach of a proposed rule after receiving submissions providing precise information about the problem at issue.[119] But IFRs, which are promulgated without public input, deprive the agency of the ability to make this sort of adjustment. FFRs, which are issued after the agency invites postpromulgation comments on an IFR, have a similar issue, since “regulatory inertia,” as well as “status quo bias, confirmation bias, and commitment bias” all make the agency less likely to significantly alter the IFR in the FFR.[120] So compared to a typical notice-and-comment rule, both IFRs and FFRs have a potential overbreadth problem.
Justice Kagan raised the overbreadth issue concurring in the judgment in Little Sisters. She observed that HRSA had justified the IFRs at issue, which did away with the previous self-certification requirement, as necessary to assuage certain groups’ “sincere religious objections” to the contraceptive mandate.[121] But the IFRs “exempted all employers with objections to the mandate, even if the [previous] accommodation met their religious needs.”[122] This, to Justice Kagan, meant that the rules “went beyond what the Departments’ justification supported – raising doubts about whether the solution lack[ed] a ‘rational connection’ to the problem.”[123]
Taking a cue from Justice Kagan, lower courts have since used the “fit” issue to strike down IFRs as arbitrary and capricious. Texas v. Becerra,[124] a case arising from the Biden Administration’s vaccine mandate for Medicare- and Medicaid-certified healthcare employers, is instructive. In November 2021, the Centers for Medicare and Medicaid Services issued an IFR announcing the mandate and simultaneously requested postpromulgation comments.[125] The IFR was soon challenged, including in the U.S. District Court for the Northern District of Texas. In issuing a preliminary injunction, the court concluded that the challengers were likely to succeed on their claim that the IFR failed arbitrariness review for three reasons relating to overbreadth.[126] First, HHS justified the IFR based on data “elicited from . . . long-term-care” facilities, but applied the rule to all facilities, including “psychiatric residential treatment facilities . . . and community-care oriented health centers.”[127] Second, the IFR “fail[ed] to consider the disruptions to staff shortages and healthcare resources especially in rural areas for its enforcement.”[128] Third, the IFR lacked the option of a “regular testing” requirement as an “alternative to vaccination,” and failed to exempt “employees and contractors . . . [who] telework and administrative employees who have little to no patient contact.”[129]
The Supreme Court, evaluating other district court opinions enjoining the same IFR in Missouri v. Biden,[130] ultimately concluded that the mandate was likely not arbitrary and capricious, citing the “challenges posed by the global pandemic.”[131] Nevertheless, the opinion from the Northern District of Texas hints at the sort of analysis that might successfully cabin the IFR process in situations less dire than a large-scale health crisis like COVID-19. This substantive approach has several advantages. First, it takes account of the APA’s harmless error rule,[132] reserving courts the discretion to uphold an IFR or FFR if the agency’s failure to adhere to § 553’s normal order of operations does not result in any prejudice. Second, it allows courts to address both IFRs and FFRs, avoiding the problem that under Little Sisters, any procedural issues surrounding the good cause exception are apparently mooted whenever an agency provides postpromulgation comment and issues an FFR. Third, it enables courts to impose the targeted remedy of remand without vacatur, which offers appealing flexibility when, for instance, an IFR makes large changes to a regulatory scheme and is challenged after regulated parties have already begun to adjust their conduct to adhere to it.[133]
In sum, the substantive approach would provide courts with a workable means of raising the costs of the IFR process, pushing agencies back towards the APA’s baseline of inviting prepromulgation comments and furthering the Fullerian values that baseline promotes.[134] It would also preserve the availability of IFRs in exceptional circumstances where, as Missouri suggests, a departure from the APA’s normal order of operations might be warranted in the name of efficiency and dispatch.[135]
C. The Procedural Approach: Policing IFRs Through the Good Cause Exception
A second – though less effective – means of policing the IFR process is to more stringently limit agencies’ use of the good cause exception to promulgate IFRs. Call this the “procedural” approach. Such an approach would impose de novo review on agency invocations of good cause[136] and demand a link between an agency’s reasons for using the IFR process and the prong of the good cause exception it seeks to invoke, allowing for the development of consistent standards.[137] Like the substantive approach, the procedural approach allows courts to take account of the APA’s harmless error rule[138] and provide the remedy of remand without vacatur where appropriate.[139] But unlike the substantive approach, the procedural approach only reaches IFRs, not FFRs promulgated following an opportunity for comment. Moreover, because the procedural approach targets the good cause exception writ large, it risks overly narrowing it (even outside the IFR context), frustrating agencies’ ability to respond to genuine emergencies.[140]
A case from the U.S. District Court for the District of Maryland, Association of Community Cancer Centers v. Azar,[141] illustrates how the procedural approach might work in practice. In November 2020, HHS issued an IFR that “require[d] reimbursements made for certain drugs covered by Medicare Part B to be based on the lowest price in a group of ‘most favored nations’ rather than the average U.S. sales price.”[142] HHS justified its invocation of good cause on the grounds that delay would be “contrary to the public interest,” asserting that “COVID-19 . . . has created an emergency in Medicare Part B drug pricing.”[143] The court rejected this rationale, observing that the “public interest” prong of good cause typically only applies where “it [is] necessary to issue rules of life-saving importance immediately, or where delaying implementation of a rule would jeopardize the very reason for implementing the rule.”[144] Here, the IFR merely aimed to “alleviate general financial instability.”[145] The court concluded that the IFR was likely procedurally invalid, warranting preliminary injunctive relief.[146]
The Community Cancer Centers court used the procedural approach to cabin the IFR process in two ways. First, it did not defer to HHS’s assertion of good cause.[147] Second, it rigorously analyzed the link between the purported ground for good cause and the content of the IFR.[148] As noted in Part II, inconsistent enforcement of the good cause exception incentivizes agencies to invoke it for tenuous reasons, giving IFRs and opinions evaluating them an ad hoc quality.[149] But de novo review, coupled with guidance from the courts rooted in the APA’s three categories and prior caselaw, addresses these concerns.[150] Consequently, even though the procedural approach does not work in all cases after Little Sisters and has its own risks, it could, where applicable, further the Fullerian values safeguarded by a principled use of the good cause exception.[151]
Conclusion
Despite their intuitive appeal, IFRs disrupt the compromise the APA strikes between administrative power and the rule of law. On one hand, the APA gives agencies broad discretion to craft policy using informal rulemaking. On the other, it cabins this discretion by creating a procedural order of operations agencies must follow, including the provision of notice (which ensures that rules are publicized, prospective, and reasonable) and the requirement of a reasoned explanation (which ensures that rules are clear). In this way, the APA and the judicial opinions giving it content are part of a project, dating back to Crowell, in which the courts and Congress both worked to balance the virtues of administrative power with the morality of administrative law so as to guard against the development of a lawless bureaucracy.[152]
The IFR process threatens this project, moving the needle towards administrative power and away from the rule of law. It incentivizes agencies to exploit the APA’s good cause exception to minimize rulemaking costs, leading to incoherent explanations and the appearance of ad hoc decisionmaking. And when interpreted expansively, it permits agencies to dispense with notice and comment without invoking good cause at all, clouding the rulemaking process and intensifying the appearance of ad hoc decisionmaking. In an era marked by a “fundamental assault on the legitimacy of the administrative state,” the risks posed by IFRs unshaped by public input and unconstrained by rule-of-law values play into critics’ worst fears – fears Little Sisters failed to acknowledge. The time is ripe, then, for courts to cabin the IFR process, reassert the APA’s settlement between administrative power and the rule of law, and redeem the “authority” of agencies to “make law[s]” that bind us all.[153]
* J.D. Candidate, Harvard Law School (2024). Thanks to Professors Cass Sunstein and Adrian Vermeule for class discussions that led to this Essay, and to Luiza Leão for our many conversations about the importance of the rule of law. All errors are mine.
[1] 285 U.S. 22 (1932).
[2] Id. at 46.
[3] Id. at 56. The normative implications of Chief Justice Hughes’ statement are outside the scope of this Essay, which takes his words at face value. For an interesting exploration of these implications, see Evan Bernick, The Regulatory State and Revolution: How (Fear of) Communism Has Shaped Administrative Law, Yale J. on Reg.: Notice & Comment (Aug. 11, 2019), https://www.yalejreg.com/nc/the-regulatory-state-and-revolution-how-fear-of-comm-unism-has-shaped-administra-tive-law-by-evan-bernick/.
[4] Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. §§ 551, 553–559, 701–706).
[5] This Essay, following Professor Jeremy Waldron, defines the “rule of law” as the idea that “people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner,” and that “citizens should respect and comply with legal norms, even when they disagree with them.” Jeremy Waldron, The Rule of Law, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., Summer 2020 ed.), https://plato.stanford.edu/entries/rule-of-law/. See also A.V. Dicey, Introduction to the Study of the Law of the Constitution 179–201, 324–401 (7th ed. 1908) (describing the tension between the rule of law and an overly bureaucratic administrative state).
[6] Cass R. Sunstein & Adrian Vermeule, Law & Leviathan: Redeeming the Administrative State 30 (2020).
[7] See Antonin Scalia, Vermont Yankee, the APA, and the D.C. Circuit, 1978 Sup. Ct. Rev. 345, 381 (describing how lower courts, and particularly the D.C. Circuit, attempted to craft restrictions on agencies that “restore[d] the balance which the Supreme Court’s consistent approval of ‘the contrivance of more expeditious administrative methods’ had upset”).
[8] See Michael Asimow, Interim-Final Rules: Making Haste Slowly, 51 Admin. L. Rev. 703, 712–15 (1999).
[9] See 5 U.S.C. § 553(b)(3)(B). See also Kyle Schneider, Note, Judicial Review of Good Cause Determinations Under the Administrative Procedure Act, 73 Stan. L. Rev. 237, 248 (2021).
[10] “Immediately” is a slight overstatement, as rules generally must be published thirty days before going into effect. See 5 U.S.C. § 553(d).
[11] See Asimow, supra note 8, at 711.
[12] In reality, many IFRs are never replaced by FFRs. See Dan Bosch, Interim Final Rules: Not So Interim, Am. Action Forum (Dec. 8, 2020), https://www.americanactionforum.org/res-earch/interim-final-rules-not-so-interim/.
[13] 143 S. Ct. 2367 (2020).
[14] Kristen E. Hickman, Did Little Sisters of the Poor Just Gut APA Rulemaking Procedures?, Yale J. on Reg: Notice & Comment (July 9, 2020), https://www.yalejreg.com/nc/did-little- sisters-of-the-poor-just-gut-apa-rulemaking-procedures/.
[15] Crowell v. Benson, 285 U.S. 22, 56 (1932).
[16] 5 U.S.C. § 553(b)–(c).
[17] See Ronald M. Levin, The Administrative Law Legacy of Kenneth Culp Davis, 42 San Diego L. Rev. 315, 324 (2005).
[18] See, e.g., Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 394 (D.C. Cir. 1973) (agencies must disclose material studies on which they relied); United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 252 (2d Cir. 1977) (agencies must give meaningful consideration to significant comments); Chocolate Mfrs. Ass’n of U.S. v. Block, 755 F.2d 1098, 1105 (4th Cir. 1985) (agencies must craft final rules that are a “logical outgrowth” of the proposed rule).
[19] See generally Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
[20] Asimow, supra note 8, at 708.
[21] 5 U.S.C. § 553(b)(3)(B). Each of these three prongs has a distinct statutory meaning. According to the APA’s legislative history, “‘[i]mpracticable’ means a situation in which the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rule-making proceedings. ‘Unnecessary’ means unnecessary so far as the public is concerned, as would be the case if a minor or merely technical amendment in which the public is not particularly interested were involved. Public interest supplements the terms ‘impracticable’ or ‘unnecessary’; it requires that public rule making procedures shall not prevent an agency from operating and that, on the other hand, lack of public interest in rule making warrants an agency to dispense with public procedure.” Administrative Procedure Act: Legislative History, 79th Cong., 1944–46, at 200 (1946) [hereinafter APA Legislative History].
[22] See Asimow, supra note 8, at 707.
[23] Id.
[24] Id. at 708.
[25] James Yates, Essay, Good Cause is Cause for Concern, 86 Geo. Wash. L. Rev. 1438, 1449 (2018). Major rules are subject to a sixty-day delay in implementation pursuant to the Congressional Review Act, see 5 U.S.C. §§ 801–808, as well as a cost-benefit analysis that must be submitted to the Office of Information and Regulatory Affairs, see Exec. Order No. 12,866, 3 C.F.R. 638 (1993). Given these additional procedural hurdles, it makes sense that agencies seeking to enact significant policy initiatives would want to minimize delays wherever possible.
[26] See Yates, supra note 25, at 1450.
[27] Kristen E. Hickman & Mark Thomson, Open Minds and Harmless Errors: Judicial Review of Postpromulgation Notice and Comment, 101 Cornell L. Rev. 261, 266 (2016).
[28] Asimow, supra note 8, at 712. Congress, too, has on occasion authorized the IFR process in agencies’ organic statutes. See id. at 712 n.40 (providing examples touching, inter alia, social security, mine safety, and environmental protection matters).
[29] Hickman & Thomson, supra note 27, at 263.
[30] Kristen E. Hickman, Coloring Outside the Lines: Examining Treasury’s (Lack Of) Compliance with Administrative Procedure Act Rulemaking Requirements, 82 Notre Dame L. Rev. 1727, 1782 (2007).
[31] See Asimow, supra note 8, at 726 (outlining the contours of this argument). But see Hickman, supra note 14 (critiquing such an interpretation for ignoring the repeated use of the word “after” in § 553); infra section III.B (offering further criticisms).
[32] See 5 U.S.C. § 706; APA Legislative History, supra note 21, at 214 (“The requirement that account shall be taken ‘of the rule of prejudicial error’ means that a procedural omission which has been cured by affording the party the procedure to which he was originally entitled is not a reversible error.”).
[33] Hickman & Thomson, supra note 27, at 285.
[34] Id. at 286; see also id. n. 151 (collecting cases from the Fifth, Fourth, and Third Circuits).
[35] Id. at 291; see also id. n. 169 (collecting cases from the Tenth and Federal Circuits).
[36] Id. at 294; see also id. nn. 176–177 (collecting cases from the D.C., Third, and Federal Circuits). The “open mind” standard is “implicitly rooted” in the APA’s harmless error rule. Id. at 295.
[37] Hickman & Thomson, supra note 27, at 302. This remedy is legally controversial. Id. at 304. Even so, Professor Ronald Levin has argued that it has a basis in the traditional equitable discretion of the federal courts. See generally Ronald M. Levin, “Vacation” at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke L.J. 291 (2003).
[38] Hickman & Thomson, supra note 27, at 268.
[39] Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of the U.S. Code).
[40] Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2373 (2020).
[41] The Supreme Court, 2019 Term – Leading Cases, 134 Harv. L. Rev. 410, 560–61 (2020).
[42] Id. at 561.
[43] Id.
[44] Little Sisters, 140 S. Ct. at 2378.
[45] Pennsylvania v. Trump, 281 F. Supp. 3d 553, 585 (E.D. Pa. 2017).
[46] See id. at 572.
[47] Id. at 575 (emphasis added).
[48] Little Sisters, 140 S. Ct. at 2379.
[49] Pennsylvania v. President of the United States, 930 F.3d 543, 568–69 (3d Cir. 2019).
[50] Little Sisters, 140 S. Ct. at 2386.
[51] 435 U.S. 519 (1978).
[52] Id. at 2385.
[53] Id. at 2386.
[54] Id.
[55] Id. n.14.
[56] See, e.g., Katie Keith, Supreme Court Upholds Broad Exemptions to Contraceptive Mandate – For Now, Health Affairs (Jul. 9, 2020), https://www.healthaffairs.org/do/10.1377/fore-front.20200708.110645/.
[57] See, e.g., Hickman, supra note 14 (“[T]he Court has come pretty close to, if not writing APA § 553(b) and (c) out of the statute completely, then at least minimizing those provisions to the point of irrelevancy in most instances.”).
[58] See supra note 35 and accompanying text.
[59] Wong Yang Sung v. McGrath, 339 U.S. 33, 40 (1950).
[60] Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. L. Rev. 630, 639 (1958).
[61] Id. at 645.
[62] See Lon L. Fuller, The Morality of Law: Revised Edition 33–94 (1969).
[63] See Fuller, supra note 60, at 645.
[64] See generally Sunstein & Vermeule, supra note 6; Cass R. Sunstein & Adrian Vermeule, The Morality of Administrative Law, 131 Harv. L. Rev. 1924 (2018).
[65] Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 514 (1989).
[66] See 5 U.S.C. § 553(b)(1)–(3).
[67] Id. § 553(c).
[68] See id. § 553(b(3)(B) (requiring rules promulgated pursuant to the good cause exception to contain a “brief statement of reasons” why “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest”).
[69] Kevin M. Stack, An Administrative Jurisprudence: The Rule of Law in the Administrative State, 115 Colum. L. Rev. 1985, 1988 (2015).
[70] Fuller, supra note 62, at 51. See also David S. Rubenstein, Taking Care of the Rule of Law, 86 Geo. Wash. L. Rev. 168, 227–28 (2018).
[71] See Fuller, supra note 62, at 51–65 (discussing the dangers posed by retroactive laws). See also Sunstein & Vermeule, supra note 6, at 58–59 (discussing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988), which announced a presumption against retroactivity in rulemaking as a “background principle, apparently reflecting part of the morality of administrative law”).
[72] Fuller, supra note 62, at 79. See also United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 253 (2d Cir. 1977).
[73] See Stack, supra note 69, at 1988–89. The APA’s text itself suggests that only minimal explanation is necessary. See 5 U.S.C. § 553(c) (requiring final rules to be accompanied by a “concise general statement of their basis and purpose”). But arbitrariness review and the paper hearing rules associated with § 553 effectively require agencies to provide significantly more elaborate justifications for final rules. See Thomas O. McGarity, Some Thoughts on “Deossifying” the Rulemaking Process, 41 Duke L.J. 1385, 1397, 1419 (1992).
[74] Fuller, supra note 62, at 48.
[75] See Schneider, supra note 9, at 251–52.
[76] See id. at 252–57.
[77] See Hickman & Thomson, supra note 27, at 266. See also Kirsten E. Hickman, The Limitations of Law and Leviathan, Yale J. on Reg: Notice & Comment (April 22, 2021), https://www.yalejreg.com/nc/law-leviathan-redeeming-the-administrative-state-part-10/ (citing data suggesting a “highly aggressive agency conception of what constitutes good cause”).
[78] Hickman & Thomson, supra note 27, at 266.
[79] See Livingston Educ. Serv. Agency v. Becerra, 589 F. Supp. 3d 697, 704 (E.D. Mich. 2022).
[80] Id. at 704.
[81] Louisiana v. Becerra, 577 F. Supp. 3d 483, 500 (W.D. La. 2022).
[82] Livingston Educ. Serv., 589 F. Supp. 3d at 711 (quoting Biden v. Missouri, 142 S. Ct. 647, 654 (2022)).
[83] See Vaccine and Mask Requirements To Mitigate the Spread of COVID-19 in Head Start Programs, 86 Fed. Reg. 68052, 68058 (2021).
[84] See Louisiana, 577 F. Supp. 3d at 499.
[85] Fuller, supra note 62, at 47.
[86] See Hickman, supra note 14 (describing this reading of Little Sisters).
[87] See id.
[88] See 5 U.S.C. § 553(d); Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2386 (2020).
[89] Fuller, supra note 62, at 50.
[90] Hickman & Thomson, supra note 27, at 287.
[91] Id. at 287–88.
[92] 969 F.2d 1141 (D.C. Cir. 1992).
[93] Id. at 1145.
[94] Id.
[95] 686 F. Supp. 2d 7 (D.D.C. 2009).
[96] Id. at 16.
[97] Cf. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951).
[98] See Hickman, supra note 14. See also 5 U.S.C. § 553(c) (“After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making . . . . After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.”) (emphasis added).
[99] See 5 U.S.C. § 553(b)(3)(B).
[100] See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2386 (2020).
[101] Cf. West Virginia v. EPA, 142 S. Ct. 2587, 2607 (2022) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”).
[102] See Little Sisters, 140 S. Ct. at 2386 n.14.
[103] Sunstein & Vermeule, supra note 6, at 18.
[104] See supra notes 65–74 and accompanying text.
[105] Hickman, supra note 14. Interestingly, Hickman has also argued that “none of the Fullerian principles of administrative law morality are inconsistent with interim-final rulemaking, even where the agency lacks good cause,” instead critiquing IFRs for their effects on regulated parties, who “feel[] ignored, skeptical of the agency’s motives, and resentful of the rules in question.” See Hickman, supra 77. But these effects are symptomatic of a legal system that lacks the necessary Fullerian morality. See Fuller, supra note 62, at 33–38 (offering a parable describing various results of immoral lawmaking, including “resent[ment], id. at 35, “near revolution,” id. at 36, and “popular discontent,” id. at 37).
[106] Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 524 (1978).
[107] See Kenneth Culp Davis, Administrative Common Law and the Vermont Yankee Opinion, 1980 Utah L. Rev. 3, 12 (citing 5 U.S.C. § 559, which provides that the APA does not “limit or repeal additional requirements . . . otherwise recognized by law,” for the proposition that the APA imposes only minimum procedural requirements and permits reviewing courts to “add to [those] protections”).
[108] Sunstein & Vermeule, supra note 6, at 95.
[109] See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2386 (2020) (“We have repeatedly stated that the text of the APA provides the ‘maximum procedural requirements’ that an agency must follow in order to promulgate a rule.”) (quoting Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 102 (2015)).
[110] See supra notes 98–105 and accompanying text.
[111] Scalia, supra note 7, at 344.
[112] Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 524 (1978).
[113] Scalia, supra note 7, at 397.
[114] Id. at 394.
[115] Vt. Yankee, 435 U.S. at 535 n.14. See also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419–20 (1971) (imposing the obligation to develop a “full administrative record” in informal proceedings, id. at 420, so as to allow a court to evaluate whether an agency provided an “adequate explanation” for its action, id.).
[116] See, e.g., Am. Radio Relay League, Inc. v. F.C.C., 524 F.3d 227, 248 (D.C. Cir. 2008) (Kavanaugh, J., concurring in part, concurring in the judgment in part, and dissenting in part).
[117] Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co, 483 U.S. 29, 43 (1983).
[118] Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2398 (2020) (Kagan, J., concurring).
[119] See Jacob Gersen & Adrian Vermeule, Thin Rationality Review, 114 Mich. L. Rev. 1355, 1396 (2016).
[120] Hickman & Thomson, supra note 27, at 287.
[121] Little Sisters, 140 S. Ct. at 2398 (Kagan, J., concurring).
[122] Id. (emphasis added).
[123] Id. at 2399.
[124] 575 F. Supp. 3d 701 (N.D. Tex. 2021).
[125] See Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination, 81 Fed. Reg. 61555 (2021).
[126] See Texas, 575 F. Supp. 3d at 721.
[127] Id.
[128] Id.
[129] Id. at 723.
[130] 142 S. Ct. 647 (2022) (per curiam).
[131] Id. at 654. Cf. Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095 (2009) (explaining how the parameters for good cause are “dialed down in times of perceived crisis” and “dialed up again when the crisis has passed,” rendering the exception a “temporar[y] . . . legal grey hole”).
[132] See 5 U.S.C. § 706(2).
[133] See Levin, supra note 37, at 298–99. Given the number of “major” rules (as defined in Exec. Order No. 12,866) implemented via the IFR process, this is not a speculative possibility. See supra note 25 and accompanying text.
[134] See supra section II.B.2 (discussing these values). See also Hickman, supra note 14.
[135] See Missouri v. Biden, 142 S. Ct. 647, 651 (2022) (per curiam).
[136] See Schneider, supra note 9, at 269 (recommending this reform).
[137] See 5 U.S.C. § 553(b)(3)(B). Courts are inconsistent in conducting good cause analyses within the framework of these three prongs. For instance, in the two Head Start Program cases described in Part II, supra, neither court linked the prongs of the good cause exception invoked by HHS with the factual reasons it offered for dispensing with notice and comment. See Livingston Educ. Serv. Agency v. Becerra, 589 F. Supp. 3d 697, 711–12 (E.D. Mich. 2022); Louisiana v. Becerra, 577 F. Supp. 3d 483, 499–501 (W.D. La. 2022).
[138] See Schneider, supra note 9, at 248 (describing how courts frequently “find improper use of the [good cause] exception to be harmless error when comments are accepted after promulgation”).
[139] See, e.g., Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 98 (D.C. Cir. 2002).
[140] See Vermeule, supra note 131, at 1123 (noting that the drafters of the APA “expressly anticipated” that the good cause exception would “cover administrative action in emergencies”).
[141] 509 F. Supp. 3d 482 (D. Md. 2020).
[142] Id. at 488; see also Most Favored Nation (MFN) Model, 85 Fed. Reg. 76180 (2020).
[143] Ass’n of Cmty. Cancer Centers, 509 F. Supp. at 497.
[144] Id. at 496.
[145] Id. at 497.
[146] See id. at 501.
[147] See id. at 495 (“Courts review an agency’s finding of good cause de novo.”).
[148] See id. at 497–98.
[149] See supra section II.B.1.
[150] See Schneider, supra note 9, at 281–82 (arguing that while “[i]t may be impossible to precisely enumerate the factors relevant to evaluating the substance of future good cause assertions,” id. at 282, de novo review, along with the “careful testing of arguments against the record,” id. at 281, will deter agencies from “skip[ping] the APA’s procedural requirements merely because they can get away” with it, id. at 282).
[151] See supra section II.B.1 (discussing these values)
[152] See Sunstein & Vermeule, supra note 6, at 8–10; Crowell v. Benson, 285 U.S. 22, 56 (1932).
[153] Fuller, supra note 60, at 645.
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Posted by mmullin on Oct 2, 2023 in Per Curiam, Uncategorized
JLPP: Per Curiam is proud to present the Hon. Laurence H. Silberman Symposium: His Life and Legacy on October 2, 2023 – the one year anniversary of his passing. The essays in this symposium, authored by several of Judge Silberman’s former law clerks, honor the life and career of Judge Silberman. We hope readers of these essays can learn the valuable lessons that Judge Silberman imparted to his clerks.
The essays in this symposium can be accessed at the following links:
Remembering the Life and Legacy of Laurence H. Silberman – Justice Amy Coney Barrett
Common Ground with an Uncommonly Good Man: A Tribute to Judge Laurence H. Silberman – Rachel Barkow
Baloney, Fortuity, and Character – Paul Clement
Judge Laurence H. Silberman Symposium Essay – Viet Dinh
Judge Silberman, Party Presentation, and the Non-Court Court – Judge Eric D. Miller
Two Lessons From Judge Silberman – David E. Nahmias
Judge Silberman and International Law: A Unified Approach – John Yoo
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Posted by mmullin on Oct 2, 2023 in Per Curiam
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Judge Silberman and International Law: A Unified Approach
John Yoo*
Judge Laurence Silberman loved ideas. He loved them because he thought most of the good ones were his. The bad ideas must have been those of the other judge for whom I must have clerked. Or so we joked, the Judge and his clerk, over the years as we debated everything from racial preferences (where we had both started out in support but came to consider a mistake) to drug legalization to war powers.
While we came from different ends of the earth and went to school three decades apart, we often thought alike on issues. Our first love was foreign policy and history, but we took to the law to pay the bills. As a Harvard-trained lawyer, Judge Silberman loved the Socratic method, doctrine and legal process, and reasoning from the facts up to theory. He enjoyed watching his Yale-educated clerk spin theories first and hunt for cases to illustrate them. By the end of the year, he had taught me the virtues of the Socratic method. To modify President John F. Kennedy’s quip upon receiving a Yale honorary degree, I had the best of both worlds: a Yale degree and a Silberman education.
Judge Silberman particularly enjoyed pointing out places where I gave him insufficient credit for an idea. Upon reading my book, Point of Attack: Preventive War, International Law, and Global Welfare, he took all due credit for the central thesis: the U.N Charter system for restricting war had failed and that nations should replace it with a cost-benefit approach.[1] Worse yet, he had found some proof. In a book to which he contributed to commemorate the tenth anniversary of the September 11, 2001, terrorist attacks, Judge Silberman had observed: “A nation’s decision to go to war depends on a political cost-benefit calculation–a balancing test if you will.”[2] Worst of all, I had edited the book.
Judge Silberman naturally demanded that Oxford University Press add his name as a co-author to Point of Attack. I told him that I had lost the e-mail address for my editor there. In my defense, I had proposed a legal regime for starting war–jus ad bellum–using cost-benefit regulation as a model in 2004.[3] Strangely, Judge Silberman remained unpersuaded that my earlier law journal article must have unconsciously influenced his own thinking. Worse yet, he could not believe that he would have gotten such an idea from abstract theory, rather than his prized approach of slowly examining and comparing the facts, in this case of wars rather than legal disputes. But our teasing also confirmed that we agreed so strongly on foreign affairs that it became difficult to identify who gave whom the idea.
In this piece, I would like to suggest why a cost-benefit approach to the use of force would have appealed to Judge Silberman, to the point that he might indeed have come up with it first (although only I can accept our joint Nobel Prize now). I think that his thought on international law springs from the same source as his deep experience in administrative law. I will then use this opportunity to honor Judge Silberman by extending the approach to interesting questions of public law today.
I. Judge Silberman
Judge Silberman will go down in history as one of the most influential American judges never to serve on the Supreme Court. When judges, lawyers, and students read the work of the Roberts Court today, they will see Silberman’s profound intellectual influence at work. As a prominent lawyer in the Nixon administration, who rose to become Solicitor of Labor and then Deputy Attorney General in his 30s, he became one of those leading legal thinkers who–along with Antonin Scalia and Robert Bork at the American Enterprise Institute during the wilderness of the Carter years–helped develop a common conservative position on abortion. Silberman, who was pro-choice, believed that Roe v. Wade[4] had concocted a constitutional right out of thin air and that the courts should return the question to the states, where Americans could resolve the question through the democratic political process. Their idea that the Constitution could operate on neutral principles that did not take sides on most moral questions, such as abortion, eventually prevailed this year in Dobbs v. Jackson Women’s Whole Health.[5]
Though he never wrote an opinion on Roe,[6] Silberman helped developed a position of judicial restraint that all could share regardless of their view on the policy of abortion. His belief that judges held a limited competence and should exercise their power to strike down democratically-enacted laws sparingly drove much of his thinking. At times this led him to half-hearted support for originalism. “Judges and scholars who advocate original meaning are merely saying that the Constitution did not authorize judges to act as a continuing constitutional convention making new policy choices not made by the Framers,” he wrote in a 1990 law journal article.[7] At other times, his commitment to judicial restraint led him to be one of the most forceful proponents of judicial deference to agency interpretation of vague statutes and the regulations made thereby, even if better readings of the law or superior regulations offered themselves.[8]
Nevertheless, Silberman’s most noteworthy opinions came when he departed from judicial restraint. In an opinion whose reasoning rose to influence the Supreme Court, Silberman faced the question whether the Second Amendment right “to keep and bear arms” protected an individual right to own a handgun.[9] In a case that eventually became District of Columbia v. Heller,[10] Judge Silberman wrote for the majority in response to a challenge of a Washington, D.C. law that effectively banned all private firearm possession.[11] Despite the Amendment’s preface that “A well regulated Militia, being necessary to the security of a free State,”[12] he rejected the argument that the Second Amendment guaranteed only the authority of the states to maintain a militia.[13] Instead, Silberman concluded that the Bill of Rights implemented a pre-existing natural right of self-defense.[14] “The Amendment acknowledges ‘the right … to keep and bear Arms,’ a right that pre-existed the Constitution like ‘the freedom of speech’” Judge Silberman wrote,[15] for the majority in Parker. “Because the right to arms existed prior to the formation of the new government . . . the Second Amendment only guarantees that the right ‘shall not be infringed.’”[16] In Heller, a 5-4 majority of the Supreme Court, Justice Scalia writing, adopted exactly this logic: the right to bear arms pre-existed the Second Amendment.[17] Following the same reasoning, the Court applied the Second Amendment to the states two years later in McDonald v. City of Chicago,[18] and then made clear last summer, with Justice Thomas writing, that this right included the liberty to carry firearms outside the home.[19] Maybe the Court would have reached these three results even if Silberman had never proposed the idea that the Second Amendment rested upon a natural individual right to possess and use weapons. But that intellectual innovation provided the reasoning upon which conservative judges found a constitutional right not broadly granted in the constitutional text itself.
Another case where Silberman’s influence on constitutional law shone most clearly came from the opinion of which he was most proud. In In re Sealed Case,[20] which on appeal became Morrison v. Olson,[21] Silberman found that Congress’s creation of an independent prosecutor violated the separation of powers.[22] According to Silberman, the law ran afoul of the Constitution because it transferred part of the President’s authority to “Take Care that the laws be faithfully executed”[23] to an official whom the President could not fire and thus could not control.[24] In a tour de force of textual reading and historical research, informed by his long experience as a governmental official, Silberman concluded: “For no federal government function is it more vital to the protection of individual liberty that ultimately the buck stop with an accountable official—the President—than in the prosecution of criminal laws.”[25] Although Silberman forever remained shocked that a 7-1 majority of the Supreme Court upheld the independent counsel,[26] he took solace that the sole dissenter was his great friend and fellow Nixon DOJ alum, Justice Scalia. He could also take satisfaction that the law’s flaws became so widely recognized—once a Democratic President, Bill Clinton, suffered under it—that both Republicans and Democrats agreed to allow the special counsel experiment to expire in 1999.[27]
But most important of all, the force of his reasoning in the independent counsel case survived and now inspires the Roberts Court. The Roberts Court has embarked on a series of decisions attacking the independence of the agencies, culminating in Seila Law v. CFPB.[28] In Seila Law, the Court struck down the for-cause removal protection for the director of the Consumer Finance Protection Bureau.[29] The Court declared that past decisions upholding the New Deal independent agencies would remain limited to their facts.[30] Presidents and Congresses can no longer experiment with the design of government, but instead must follow the Framers’ rigorous tripartite framework: Congress enacts the laws, the President enforces them, and the courts adjudicate disputes that arise under them.[31] The Roberts Court’s ongoing battle with the New Deal state can trace its intellectual origins to Silberman’s demand that the executive maintain sole control over the enforcement of federal law.
But I think Silberman’s true interest fell upon a different field, where he came to play another important role unknown to many in the law. After leaving the Nixon Justice Department, Silberman served as ambassador to Yugoslavia under President Ford. He had already come into contact with national security issues in the Justice Department, where he famously had to review FBI Director J. Edgar Hoover’s secret files and oversaw the warrantless national security searches that were the normal practice for the executive branch until passage of the Foreign Intelligence Surveillance Act of 1978. In fact, Silberman testified against FISA on the grounds that it created a faux-judicial warrant proceeding that conflicted with the purpose of foreign intelligence searches to protect the nation’s security rather than prosecute criminal suspects.[32] Judge Silberman’s concerns would prove prescient in foreseeing the creation of the “wall” between law enforcement and intelligence collection that the 9/11 Commission would correctly identify as one of the defects that allowed the 9/11 plotters to succeed.[33] As a Judge on the FISA Court of Appeals, Silberman would later uphold the Patriot Act’s legislative fix to remove the “wall” and allow greater information sharing between law enforcement and intelligence agencies.[34]
Silberman’s tour as Deputy Attorney General and as Ambassador began his life-long fascination with foreign affairs. Upon his return from Yugoslavia, Silberman wrote a well-known article that argued that the Foreign Service had become too independent from presidential control, so independent in fact that it competed for the loyalty of Secretaries of State. [35]
He served as the lead foreign policy advisor for President Ronald Reagan’s 1980 campaign, became a special presidential envoy to the Middle East (along with Donald Rumsfeld), and, in one of his most important public services, co-headed the commission with ex-Senator Chuck Robb that investigated whether the Bush administration had deliberately manipulated the intelligence that led to the Iraq War of 2003. His commission report dispelled the myth that Bush had lied about the grounds for the war and recommended a sweeping structural reform of the intelligence community.[36] For his service in leading the committee, as well as his other career accomplishments, Silberman received the Presidential Medal of Freedom in 2008.[37]
II. International Law
It was for his work on the commission on Iraq Weapons of Mass Destruction that I asked Judge Silberman to contribute a chapter to Confronting Terror. In his indomitable fashion, he made clear that the Bush administration had not gone to war on a pretext–instead, it had relied on faulty intelligence that Saddam Hussein was secretly developing nuclear, chemical, and biological weapons. He reported that “it is a grotesquely false charge that President Bush ‘lied us into war’ by exaggerating our intelligence on Saddam Hussein’s WMD.”[38] Instead, the commission unanimously agreed, “the intelligence community had badly erred in its formal National Intelligence Estimate (NIE) of 2002.[39] It concluded, to a 90 percent certainty, that Saddam Hussein possessed WMD.”[40] The commission also unanimously agreed that “the administration never, in any way, pressured the intelligence community to reach that conclusion.”[41] As Silberman put it, the intelligence community was “dead wrong.”[42]
Silberman devoted much of his work in the commission report and his 2011 essay for Confronting Terror to reforming the intelligence community to reduce the chances of error. But he conceded that such probabilities could not be reduced to zero. He believed that probabilities–not certainties–abounded in foreign policy, even in questions of war. He rejected the popular dichotomy between wars of choice and wars of necessity as “rather simplistic and misleading.”[43] He argued that wars that seem like those of necessity, such as World War II, could really be ones of choice–or vice versa. In explaining his view, he wrote:
Often, when we look in hindsight, a so-called war of choice was inevitable, and therefore can be described as necessary. Or, to put it another way, the choice is often not whether a country goes to war, but when. A nation’s decision to go to war depends on a political cost-benefit calculation—a balancing test, if you will. When thinking defensively, a nation must weigh the imminence or likelihood of a threat against the importance of the interest to be protected and how vital it is.[44]
In economic terms, choosing to go to war depends on whether the expected cost of war is outweighed by the expected benefit of the war. The expected benefit equals the probability of winning times the magnitude of victory, just as the value of a lottery ticket is the probability of winning the jackpot times the size of the jackpot. The expected costs of war, which Silberman did not address, include the likely loss in soldiers and resources from fighting the war. This bears obvious similarities to the Learned Hand formula for negligence in torts in deciding whether the expected harm outweighs the costs in preventing the tort.[45]
My 2004 work argued that international law implicitly recognized this cost-benefit approach.[46] Article 51 of the United Nations Charter forbids the use of force except in self-defense or when authorized by the Security Council.[47] But customary international law recognizes that a nation can resort to force in anticipatory self-defense–before an attack is launched–if the enemy attack is “imminent.”[48] It made no sense, however, to limit imminence to a temporal concept. I argued that instead imminence meant a probability approaching 100 percent, which would be achieved only by an actual cross-border attack. Such probability, however, should also be measured against the magnitude of destruction of the attack. It seemed to me that if a nuclear attack was in process, the defending nation could take measure involving force earlier in time than it could if dealing with a small incursion onto its territory due to the differences in the magnitude of destruction. President John F. Kennedy’s successful blockade of Cuba to prevent the Soviet deployment of nuclear medium-range ballistic missiles illustrated this calculation at work.
While Silberman did not develop his insight further, I had. It seemed to me that the international law system had adopted a criminal law approach; indeed, the rule clearly mirrored the reasonableness test for the domestic use of force by police.[49] Criminal law had adopted a clear rule because it sought to drive violence to zero and to allow exceptions in discrete cases, such as imminent threats to the lives of others. But I argued that war in international affairs is better suited to a standard that judged the reasonableness of a conflict based on the totality of the circumstances. Only a reasonableness standard could accommodate the cost-benefit approach which Judge Silberman and I both believed nations actually employed.
In addition, I thought the criminal law approach should give way to a regulatory system. Rather than attempt to drive the use of force to zero, the international system clearly saw some forms of the use of force as beneficial. In addition to the Cuban Missile Crisis, the world seemed better off from Israel’s 1981 attack on Iraq’s nuclear program, the U.S. attack on Libya in 1986, the Gulf War of 1991, and cases of humanitarian intervention in Rwanda and Kosovo. Yet these examples violated the strict prohibition on the use of force except in self-defense. Instead, they seemed built on an analysis where the expected benefit of war outweighed its expected costs. Rather than zero, international law should promote a certain level of armed conflict in the world that would allow the use of force to put an end to even greater threats to global welfare. Although Judge Silberman did not put his insight into these terms, he argued that France and England should have invaded Nazi Germany when Hitler took the Rhineland in 1936.[50] Hitler almost certainly would have fallen from power. Silberman made a similar argument about invading western Germany when Hitler invaded Poland three years later. These are examples of a regulatory uses of force that would have violated the pure rule of self-defense, but would have achieved a far greater good.
III. A Unified Approach
It may be puzzling to see a federal judge committed to the proper interpretation and enforcement of federal law so readily disposing of international law. One explanation might be that Judge Silberman and lawyers of his generation had learned to be skeptical of international law. As a positivist, Silberman would have doubted international rules developed in a world without a supranational government to make or enforce legislation. International law’s elevation of custom, the lack of democratic lawmaking mechanisms, and the sparse nature of treaty-based law would have made little sense to him.
But I think that such an approach to international law flowed somewhat naturally from Judge Silberman’s early roots in the law. Before he moved to the Justice Department in the Nixon years, he had come to Washington, D.C. from Hawaii–where he had enjoyed his first years of law practice–as a labor lawyer.[51] He eventually rose in the field to become the Solicitor of the Labor Department under Secretary George Shultz, who also knew a thing or two about foreign policy.[52] Labor law in the 1930s–50s sat at the cutting edge of public law when Silberman went to law school, much as environmental law moved to the forefront in the 1970s and 1980s, and high-technology law has today.
I could see labor law as involving similar features to the question of war. Labor and management cooperate to produce a good or service; the profits from the sale benefit them both. But labor and management can fight over the distribution of this surplus between them. If they disagree, labor could call a strike or other form of work stoppage that reduces profits or even brings production to a total halt. Similarly, management could fire workers or close the plant, which would destroy labor’s gains too. Labor law produced rules that limited the steps that labor and management could undertake in a dispute, but the procedures could take so long that resolution and enforcement of a settlement might come well after labor-management conflict could impose high costs on both parties.
I am not certain if Silberman thought of labor-management relations in this way. When he brought up the joys of labor law, I confess that my mind began to wander. But looking back upon it, his thinking about a cost-benefit approach to international conflict mirrors the way that labor and management would think about their relations in the workplace. A union, for example, might consider whether the expected benefits of a strike (the gains from winning times the probability that a strike would succeed) outweighed its costs (the losses to out-of-work labor). Management would similarly consider the magnitude of winning times success, versus the costs of a shutdown. Unlike international armed conflict, labor and management would interact under a rule of law developed through democratic means and enforced by courts and the executive branch. But the time and resources required to prevail in court might mean that in its early stages the parties would struggle as if they were nation-states in a world without a supranational government.
I think that if Judge Silberman had applied this line of analysis to armed conflict, he would have ended up with a similar framework to the one I proposed in Point of Attack–though neither of us ever thought of connecting armed conflict and labor law. In international affairs, nations have disputes over territory, population, and resources. They could cooperate to resolve those disputes in a way that avoids war. To see why this is so, we can use a rational actor bargaining model in which each side has the expected cost-benefit analysis above on whether to go to war. The main variable will be the probability of prevailing in a conflict, in which one party’s odds of winning will be the reverse of the other parties. If an attacker has a 75 percent chance of winning a conflict, for example, the defender must have a 25 percent chance of prevailing–the total must always be 100 percent. The main determinant of that probability will be the factors that go into winning a war, such as military capability, military and political leadership, and national will, among others.
If the parties act rationally, counterintuitively they should never go to war. If nations have full information, they will know their own and their opponent’s chances of prevailing. Rather than suffer the deadweight losses from war, they should instead reach a settlement that simply divides the resource or territory along the lines of their probability of winning a conflict. If the attacker and defender each had a 50 percent chance of winning a war, they should rationally divide the contested territory or resource in half in a peaceful agreement. They would both gain while avoiding the unrecoverable losses of war. Or to use our labor setting, if a union and management are evenly matched in their likelihood of prevailing in a strike, they should just divide their share of the profits 50-50 and avoid the loss of profits from a shutdown. I think that Silberman’s train of thought on resolving labor-management disputes thus would have led him to think of armed conflict as a form of resolving international disputes.
One last aspect of this comparison that I would have liked to discuss with Judge Silberman, because I know it would have fascinated him, would be the differences produced by the different context of international affairs. One factor that makes bargaining in labor-management relations possible is complete information and enforcement of legal rules and any settlements by government. Government could enhance bargaining by collecting and disseminating information to both labor and management about the other’s goals and resources, and by promising to enforce any ultimate contract.
International relations, however, proceeds in a state of anarchy. The lack of government makes it more difficult for nations to gain perfect information on the chances of their opponent to prevail in a conflict. As Judge Silberman found in his work on the Iraq WMD commission, nations go to great troubles to conceal or misrepresent their actual military capabilities.[53] Nations have a strong incentive to bluff so as to win a better settlement than they would receive in an environment with complete information. Further, no supranational government exists to enforce any bargain reached by the parties. Once the settlement alters the balance of power, the incentive to renege will be strong – which may well inhibit an agreement in the first place. A defender, for example, that agrees to give up 75 percent of a disputed territory cannot rely on a treaty alone to prevent the attacker from improving its military capabilities and then attacking again. The defender needs a government to ensure that the nation that is better off from an agreement continues to keep its word rather than take advantage of the benefits gained to re-open the dispute.
I think Judge Silberman would have liked the solution to this problem of bargaining in international affairs. In order for a nation to overcome the lack of government to enforce agreements, it must show it can be trusted to keep its word. International relations theorists suggest that engaging in credible commitments signal a nation as trustworthy. In the ancient world, credible commitments might have included hostages or arranged marriages between ruling families. Today, they might involve permanent bases or stationing of troops, economic integration, or domestic political arrangements. Repeat these credible commitments and build a record of compliance with treaties, and a nation eventually develops a reputation for trustworthiness.
Judge Silberman would have enjoyed this outcome because he placed a premium in all things on the concept of honor. He published an article, “On Honor,” in this Journal in 2009 to urge younger lawyers to revive the ideal in their own government service.[54] He claimed that “the concept of honor appears to have atrophied throughout our society,” perhaps because criminal law had come to replace personal morality.[55] “It has almost gotten to the point where people think if their behavior is legal, it cannot be blameworthy.” He then described the ways in which government officials could act dishonorably: leaking to the press disagreement with administration policy, rather than either resigning publicly or soldiering on.[56] He finds “blatantly dishonorable” books by government servants that reveal confidences while the administration is still in office.[57] He placed in an even worse category those who attempt to treat with a foreign government to undermine U.S. policy, which in Silberman’s view betrayed loyalty to one’s country.
Just as individuals could have honor, nations might have honor, too. And that honor would be of great practical use in foreign affairs not for rhetorical purposes, but to enhance a nation’s ability to make international agreements. A nation with a reputation for scrupulously fulfilling its promises will find it easier to persuade other nations of its trustworthiness. If it breaks its word, but only for the highest reasons of state, other nations may actually be reassured as well. But nations that gain a reputation for breaking its word, like China’s reneging on the agreements made with the United Kingdom on the handover of Hong Kong, will find themselves increasingly isolated and without allies. Judge Silberman, who thought of honor as the most important character trait of all, would have loved to explore its value among nations, too.
Conclusion
Judge Silberman had a profound effect in disparate areas: labor law, the separation of powers, and foreign policy and national security. I have sought here to identify a common theme that unified his thought in these three areas. In international affairs, Judge Silberman believed that nations acted only in their self-interest. In separation of powers and administrative law, he argued in favor of deference to executive authority over law enforcement and the agencies. In labor law, I think he was interested in the struggle between unions and management over division of the profits.
What all three have in common is the bargaining that occurs between rational actors in areas with weak institutions. International politics, as Kenneth Waltz famously observed, takes place in a world characterized by anarchy. No supranational government exists that can effectively enforce international law and the decisions of international institutions. Much of the separation of powers also operates in areas where courts either are reluctant or cannot tread. Courts, for example, have had difficulty reviewing presidential decisions to under-enforce the law in order achieve policy outcomes denied by Congress. By the time courts can intervene in strikes or lockouts, unions and management may have destroyed much value for themselves and the economy. In each of these contexts, rational actors would have to balance expected costs against benefits, which requires calculation of the probabilities of future events and yet also an understanding of the psychological as well as tangible values held by the actors.
While guided by such ideas, what perhaps made Judge Silberman stand out was his practical application of them in the real world. He was not only a practicing labor lawyer, but he became the U.S. government’s top labor lawyer because he could advise cabinet secretaries on the negotiation of labor disputes. He was not only a top Justice Department official who navigated the nation through the aftermath of Watergate, but he became a federal judge who issued one of the most important opinions on the enforcement of the law. He was not just a lawyer, but also a steady foreign policy advisor who was one of that great generation who helped end the Cold War without firing a shot. In all phases of his remarkable career, he brought to bear a sharp mind, a faith in the Socratic method, and a feistiness in the pursuit of truth that inspired the many who encountered him.
* John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution. He served as a law clerk to Judge Silberman from 1992–1993. The author thanks Justin Folk and Maguire Radosevic for their thorough and timely research assistance.
[1] John Yoo, Point of Attack: Preventive War, International Law, and Global Welfare (2014).
[2] Laurence H. Silberman, Reforming the Intelligence Community, Confronting Terror: 9/11 and the Future of American National Security 77, 83–84 (Dean Reuter & John Yoo eds., 2011).
[3] John Yoo, Using Force, 71 U. Chi. L. Rev. 729, 787 (2004).
[4] 410 U.S. 113 (1973).
[5] 142 S. Ct. 2228 (2022).
[6] 410 U.S. 113 (1973).
[7] Laurence H. Silberman, Chevron—The Intersection of Law and Policy, 58 Geo. Wash. L. Rev. 821, 822 (1990).
[8] Id.
[9] Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), aff’d sub nom. District of Columbia v. Heller, 554 U.S. 570 (2008).
[10] 554 U.S. 570 (2008).
[11] Parker, 478 F.3d at 373.
[12] U.S. Const. amend. II.
[13] Parker, 478 F.3d at 386–88.
[14] Id. at 390.
[15] Id.at 382.
[16] Id.
[17] Heller, 554 U.S. at 592.
[18] McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010).
[19] New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
[20] In re Sealed Case, 838 F.2d 476 (D.C. Cir. 1988).
[21] Morrison v. Olson, 487 U.S. 654 (1988).
[22] In re Sealed Case, 838 F.2d at 478.
[23] U.S. Const. art. II, § 3.
[24] Id. at 504.
[25] In re Sealed Case, 838 F.2d at 489.
[26] Morrison, 487 U.S. 654 (1988).
[27] Jack Maskell, Cong. Research Serv., 98-19 A, Independent Counsels Appointed Under the Ethics in Government Act of 1978, Costs and Results of Investigations 3 (2006).
[28] Seila L. LLC v. Consumer Fin. Prot. Bureau,140 S. Ct. 2183 (2020).
[29] Id. at 2187.
[30] Id.
[31] Id. at 2212.
[32] Foreign Intelligence Electronic Surveillance: Hearings on H.R. 5794, H.R. 9745, H.R. 7308, and H.R. 5632 Before the Subcomm. on Legislation. of the H. Permanent Select Comm. on Intelligence, 95th Cong. 224 (1978) (statement of Hon. Laurence Silberman).
[33] National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, 78–80 (2004)
[34] See, e.g., In re Sealed Case, 310 F.3d 717, 719–20 (D.C. Cir. 2002).
[35] Laurence H. Silberman, Toward Presidential Control of the State Department, Foreign Affairs, Mar. 1, 1979 [https://perma.cc/R6E5-VDPZ]
[36] Laurence H. Silberman & Charles S. Robb, Report of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction (2005) [https://perma.cc/7JDC-GV48].
[37] Sam Roberts, Laurence Silberman, Conservative Touchstone on the Bench, Dies at 86, N.Y. Times (Oct. 5, 2022), https://www.nytimes.com/2022/10/05/us/laurence-silberman-dead.html [https://perma.cc/863G-ZPTH].
[38] Silberman & Robb, supra note 36, at 78.
[39] Id. at 78–79.
[40] Id.
[41] Id. at 79.
[42] Id.
[43] Id. at 83.
[44] Id. at 83–84.
[45] See United States v Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
[46] Yoo, supra note 3.
[47] U.N. Charter art. 51.
[48] Yoo, supra note 3, at 738–41.
[49] See Tennessee v. Garner, 471 U.S. 1, 7 (1985).
[50] Silberman & Robb, supra note 36, at 83.
[51] Interview by Paul D. Clement with Laurence H. Silberman, Senior Judge, U.S. Court of Appeals for the D.C. Circuit, in New York, Ny., at 22:28 (May 17, 2017) [Transcript available here: https://www.law.nyu.edu/sites/default/files/Silberman%20Transcript%20Final%20508.pdf, at 22:28].
[52] Id. at 27:24.
[53] Id. at 79–80.
[54] Laurence H. Silberman, On Honor, 32 Harv. J. L. & Pub. Pol’y 503 (2009).
[55] Id. at 503.
[56] Id. at 505.
[57] Id. at 506.
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Posted by mmullin on Oct 2, 2023 in Per Curiam
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Two Lessons From Judge Silberman
David E. Nahmias*
Judge Silberman was for a year my boss and for decades thereafter my mentor and friend. Like so many of his former law clerks, I rarely made a significant decision in my professional or personal life without consulting him. He taught me many lessons, but two have been most important.
First, Judge Silberman was a model of intellectual honesty. He had strong opinions on many topics (many, many topics!), but he was always interested in having those opinions challenged and tested. He loved a vigorous debate, and when he saw weaknesses in his opinions, he was willing to change his mind. I think this is one reason that Judge Silberman had so many friends with strong (and often differing) opinions of their own. I have tried to follow this model in my life and my legal career, especially during my 13 years as a Justice on the Supreme Court of Georgia.
Second, and not unrelated, Judge Silberman was comfortable making hard decisions. He may never have told me this explicitly, but through his many stories about his experiences and the experiences of other public figures (good and bad) with whom he had worked, I learned that I should always make decisions in which I truly believed—decisions that I could explain to my mother without cringing and credibly defend when they were reported in the news media, as almost inevitably occurs with major decisions in public life. Learning to approach decision-making in this way was so important to my success, and my happiness, during my three decades of public service.
I have tried to pass on these lessons to the next generation of lawyers and public servants. There could be no better tribute to this great man, great judge, and great American than for others to emulate him in these respects.
* Former Chief Justice, Supreme Court of Georgia. Currently a partner at Jones Day in Atlanta, Georgia.
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Posted by mmullin on Oct 2, 2023 in Per Curiam
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Judge Silberman, Party Presentation, and the Non-Court Court
Eric D. Miller*
Judge Laurence H. Silberman leaves an extraordinary legacy of public service and contributions to American law, marked most notably by his commitment to the idea of judicial restraint: that the proper role of a judge is limited and that a judge should respect the limitations of that role and not assume powers vested in Congress or the Executive Branch.[1] Judge Silberman summed up his commitment when he said that a judge, in every case, should begin by asking, “What is my role in this case as a judge?”[2]
Judicial restraint takes many forms, and an important but underappreciated one is the idea that the judicial role is limited to resolving legal contentions asserted by the parties in cases and controversies, an idea that the Supreme Court has referred to as the “principle of party presentation.”[3] Courts sometimes justify that principle in terms of notice and prejudice: When a court considers an issue that a party did not properly raise, it threatens unfairness to the opposing party by depriving it of a chance to respond.[4] That concern is genuine, but it can be mitigated by measures such as allowing an opportunity for supplemental briefing. The principle’s more fundamental justification rests on the nature of our adversarial system. As the Supreme Court has put it, we “rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”[5] When courts instead take it upon themselves to shape the litigation by developing arguments for the parties, they depart from their role as neutral arbiters, and they make it easier to indulge considerations that should have no place in the judicial process. (If a court assumes the role of an advocate and attempts to make arguments for the parties, will it do so for both parties equally, or will it focus on helping the party for whose position it has the greatest sympathy?)
Important as it is, the principle of party presentation is a more subtle form of judicial restraint than, say, adherence to the text of statutes or the original public meaning of the Constitution. Those forms of restraint—which Judge Silberman fully embraced—tend to be obvious in the sense that anyone reading a judicial opinion can easily tell whether the judge is practicing them. By contrast, adherence to the principle of party presentation can be more difficult to assess because judges do not always make clear whether the issues addressed in their opinions were developed by the parties or are instead issues they developed themselves.[6]
For Judge Silberman, however, commitment to the principle of party presentation was anything but subtle. In a forceful dissenting opinion, he argued that the D.C. Circuit should decide a case by applying a statute that might not even have existed; he was willing to ignore the statute’s possible nonexistence because no party had raised the issue.
The case was Independent Insurance Agents of America v. Clarke,[7] and the statute was section 92 of the National Bank Act, first enacted in 1916, which authorized any national bank “located and doing business in any place the population of which does not exceed five thousand inhabitants” to sell insurance under rules to be prescribed by the Comptroller of the Currency.[8] The Comptroller interpreted the statute to permit any bank having a branch in such a place to sell insurance to customers nationwide. A trade association of insurance agents challenged that interpretation, arguing that section 92 allows banks to sell insurance only to local customers.[9]
Rather than address that challenge, however, the D.C. Circuit took up a different question: whether section 92 even existed. The insurance agents had expressly declined to question the statute’s existence, likely based on their assessment that a decision on that ground would make Supreme Court review more likely and that their best chance of prevailing was to seek a narrower victory in the D.C. Circuit. Nevertheless, considering the issue sua sponte, the court concluded that section 92 was no longer in effect because, in reenacting the National Bank Act in 1918, Congress had (apparently inadvertently) omitted the provision.[10]
Judge Silberman dissented. He recognized that it “might be thought counter-intuitive” to decide a case on the basis of a statute that might not exist.[11] But he argued that a court “owe[s] no abstract duty to Congress (or the President) to enforce or not to enforce laws; all of our power derives from our constitutional duty to decide cases and controversies.”[12] And because “the ‘case or controversy’ as it was brought to the district court or on appeal” did not include the question of section 92’s continuing validity, “[i]t is quite fair to say that we have added it to the case; we have created a controversy that did not exist.”[13] In doing so, he argued, the court had exceeded the proper role of a court. Quoting a D.C. Circuit opinion by then-Judge Scalia, he explained that “[t]he premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.”[14]
Judge Silberman acknowledged that, once the D.C. Circuit invited briefing on the issue, the insurance agents—“no doubt at that point realizing that their chances for success were dependent upon indulging the court—did so and partially switched their position, urging us to decide whether section 92 exists.”[15] They did so, he observed, by arguing that the statute’s existence was a jurisdictional issue. While rejecting that argument, he noted his agreement with their “implicit premise: that unless we determine the validity question to be jurisdictional, we should not decide it.”[16]
The reference to jurisdiction was significant because jurisdictional questions are a well-established exception to the principle of party presentation. A court always has an obligation to consider its subject-matter jurisdiction, even when the parties have not challenged it.[17] That is itself an important rule of judicial restraint because jurisdictional limitations are constraints on a court’s adjudicatory power imposed by the Constitution and Congress, and even the parties’ agreement cannot expand that power.[18] Judge Silberman took jurisdictional limitations seriously: He had a standing offer to buy lunch for any law clerk who identified a jurisdictional defect the parties had not raised.[19]
In this case, however, the issue was not jurisdictional, so it was subject to waiver by the parties.[20] In a dissent from the denial of rehearing en banc, Judge Silberman elaborated on his view: “Almost any case brought rests on certain uncontested legal assumptions that may be thought to be logical antecedents to the issues in dispute. A court is not free, however, to examine itself any of those legal assumptions (if non-jurisdictional) just by asserting that they are ‘essential to the determination.’ That would mean that a lawsuit is framed by a court’s notion of the logical way to think about a legal problem, and not by the parties’ controversy.”[21]
The Supreme Court did not agree with Judge Silberman. It granted certiorari and reversed the D.C. Circuit on the merits of the section 92 issue, holding that the statute was still in effect.[22] But it said that the D.C. Circuit had not erred in reaching the question: “We need not decide whether the Court of Appeals had, as it concluded, a ‘duty’ to address the status of section 92 (which would imply error in declining to do so), for the court’s decision to consider the issue was certainly no abuse of its discretion.”[23]
Although Judge Silberman’s position did not prevail in Independent Insurance Agents, he could claim partial vindication nearly 30 years later when the Supreme Court decided United States v. Sineneng-Smith.[24] That case involved 8 U.S.C. § 1324, which makes it a federal felony to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States” unlawfully. Following a jury trial, Sineneng-Smith was convicted of violating section 1324. She appealed to the Ninth Circuit, arguing that her conduct did not constitute “encouragement” or “inducement” and, in the alternative, that the statute violated the First Amendment as applied to her conduct.[25] The Ninth Circuit appointed amici to make a different argument—that the statute was facially overbroad or void for vagueness—and it then invalidated the statute as overbroad.[26]
The Supreme Court vacated the judgment. It did not reach the merits of the Ninth Circuit’s overbreadth holding. Instead, it held that the Ninth Circuit had abused its discretion by “drastically” departing from the principle of party presentation.[27] In a stinging rebuke, the Supreme Court referred disparagingly to the Ninth Circuit’s “takeover of the appeal” and its “radical transformation of this case,” and it remanded “for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties.”[28]
Although the Court did not cite Judge Silberman, its articulation of the principle of party presentation echoed much of his reasoning from 30 years before. It tied the principle to “our adversarial system of adjudication.”[29] And it recognized the relationship between that principle and the limited role of courts: “[C]ourts are essentially passive instruments of government” that “do not, or should not, sally forth each day looking for wrongs to right” but instead “normally decide only questions presented by the parties” to cases that have been brought before them.[30]
Why, then, is Sineneng-Smith only a partial vindication of Judge Silberman? Because despite what the Court said in that case, what the Court does, at least some of the time, continues to reflect a lack of respect for the principle of party presentation. It is not necessary to look far to find examples. One is the disposition of Sineneng-Smith itself. Although the government’s brief in the Supreme Court mentioned that “[i]n reaching out to address” overbreadth, the Ninth Circuit had “deviated from . . . the normal course of party-driven litigation,” it did not elaborate on that objection, let alone advance it as a basis for reversal.[31] So, in invoking the principle of party presentation, the Supreme Court was itself departing from that principle.
Another example is the Supreme Court’s practice of inviting supplemental briefing on issues the parties have not addressed or, alternatively, appointing amici to brief and argue those issues—a practice that is so routine that the opinion in Sineneng-Smith contained a lengthy addendum listing examples. The Court asserted that none of the examples “bear any resemblance to the redirection ordered by the Ninth Circuit panel.”[32] Perhaps that is true, or perhaps the Court doth protest too much; the length of the list is enough to make one suspect that the Court has been less than scrupulous in its adherence to the principles it articulated. And even when the Court has not itself departed from the principle of party presentation, it has sometimes been willing to countenance violations of that principle by lower courts.[33]
Of course, the Supreme Court hears a limited number of cases each year, and it understandably wishes to use those cases to clarify important issues in American law. Performing that law-clarification function would be more challenging if the Court were constrained to consider only the issues presented by the parties in the particular cases in which it happens to have granted certiorari. Judge Silberman recognized that concern in Independent Insurance Agents, writing that “[t]he Supreme Court, I gather, weighs docket management factors that the lower federal courts do not encounter. If the Court wants us to adopt a more relaxed stance than I think appropriate, this case may well offer a suitable vehicle to so instruct us.”[34]
As we have seen, the Supreme Court in Independent Insurance Agents did not acknowledge the role of those docket-management considerations in its decision. But neither did it provide the instruction that Judge Silberman hoped for. Instead, as he wrote a few years later, the Supreme Court “ducked the question of whether,” as the D.C. Circuit believed, it “was obliged to reach the anterior question” of the existence of section 92, “stating only that the court’s decision to do so was not an abuse of discretion. That meant that federal courts were free, without standards to follow, to decide such an issue or not depending on whether it pleased the judges to do so.”[35] In an effort to explain the Court’s behavior, Judge Silberman said, “I suspect . . . that the justices did not wish to restrict their own ability to reach out to issues not presented in cases brought to the Court, nor did they wish to justify that practice by openly acknowledging the Supreme Court as not subject to normal judicial constraints.”[36]
The Supreme Court’s approach led Judge Silberman—drawing on an analogy to the banking-law concept of “non-bank banks”[37]—to suggest that the Supreme Court should be regarded as a “non-court court,”[38] that is, one that “sees itself primarily as a tribunal for issue determination rather than resolution of cases and controversies.”[39] Lest anyone miss the point, he made clear that he did not mean “non-court court” as a compliment. Observing that “the lower federal courts are even more influenced by the manner in which the Supreme Court decides cases than by the particular substantive results,” he lamented that Independent Insurance Agents—which he described as “a particularly egregious example of the Supreme Court’s cutting of traditional judicial corners”—had “had a broad impact” by making “[j]udges, even disciplined judges, . . . more willing than they were prior to that case, if convinced by a legal theory, to seek to fit the controversy before them to that theory, rather than vice versa.”[40]
Being less bold than Judge Silberman, I will leave it to others to assess whether his view of the Supreme Court was justified. But I think—or at least I hope—that his view of the lower federal courts was overly pessimistic. Even if the Supreme Court does not always adhere to the principles it articulated in Sineneng-Smith, it is a sign of progress that the Court is willing to tell lower courts to adhere to them. And regardless of what the Supreme Court does, it remains the duty of lower federal courts to apply those principles faithfully.[41] In performing that duty, courts would be well served to draw inspiration from the example of restraint that Judge Silberman provided.
* Judge, United States Court of Appeals for the Ninth Circuit. Law clerk to the Honorable Laurence H. Silberman, 1999–2000. I thank Lauren Bilow and Teal Luthy Miller for helpful comments on an earlier draft.
[1] Judge Silberman defined “judicial activism”—the opposite of restraint—as “policymaking in the guise of interpreting and applying law.” Judge Laurence H. Silberman, Will Lawyering Strangle Democratic Capitalism?: A Retrospective, 21 Harv. J.L. & Pub. Pol’y 607, 618 (1998).
[2] See Justice Clarence Thomas, Judging, 45 U. Kan. L. Rev. 1, 1–2 (1996) (attributing the phrase to “one of my former colleagues on the United States Court of Appeals for the District of Columbia Circuit”).
[3] United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). I have adopted that phrase because it clearly describes the concept, but as far as I am aware, Judge Silberman himself never used it.
[4] See, e.g., United States v. Yates, 16 F.4th 256, 271 (9th Cir. 2021) (noting “the potential for prejudice to parties who might otherwise find themselves losing a case on the basis of an argument to which they had no chance to respond”).
[5] Greenlaw v. United States, 554 U.S. 237, 243 (2008). The principle of party presentation is closely related to waiver and forfeiture, doctrines that prohibit parties from making arguments on appeal that they did not properly make in a lower court. See United States v. Olano, 507 U.S. 725, 733 (1993) (“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’” (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))). Many courts use the term “waiver” imprecisely to refer to both waiver and forfeiture. See, e.g., In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (“[A]n issue will generally be deemed waived on appeal if the argument was not raised sufficiently for the trial court to rule on it.” (internal quotation marks and citation omitted)).
[6] For a less charitable description of the difficulty, see Silberman, supra note 1, at 619 (“As a part-time law professor, I tell my classes that the reason it takes so long to teach law students how to recognize the holding of a case is because judges seldom tell the truth.”).
[7] 955 F.2d 731 (D.C. Cir. 1992), rev’d, United States Nat’l Bank of Or. v. Independent Ins. Agents of Am., Inc., 508 U.S. 439 (1993).
[8] Act of Sept. 7, 1916, ch. 461, 39 Stat. 752, 753 (codified at 12 U.S.C. § 92).
[9] Independent Ins. Agents of Am., 955 F.2d at 732.
[10] Id. at 734–37.
[11] Id. at 741 (Silberman, J., dissenting).
[12] Id. at 742.
[13] Id.
[14] Id. (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)).
[15] Id. at 741.
[16] Id. at 741–42.
[17] See, e.g., Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977) (noting that “we are obliged to inquire sua sponte whenever a doubt arises as to the existence of federal jurisdiction”).
[18] See Ochoa v. Garland, 71 F.4th 717, 721 (9th Cir. 2023) (“[O]ur jurisdiction is limited to that conferred upon us by Congress consistent with Article III, and the parties cannot enlarge it by their agreement.”).
[19] See Paul Clement, Opinion, America Loses a Judicial Giant, Wall St. J. (Oct. 2, 2022), https://www.wsj.com/articles/america-loses-a-judicial-giant-laurence-silberman-restraint-dc-circuit-constitution-judge-legacy-scalia-clerks-second-amendment-11664750990 [https://perma.cc/LW66-J3E4]; Viet D. Dinh, Letter to the Editor, Blame Congress, Blame the Supreme Court, Wash. Post, Aug. 14, 1998, at A24.
[20] Independent Ins. Agents of Am., 955 F.2d at 741 n.1 (Silberman, J., dissenting) (“Although the repeal of a statute moots controversies over the law’s validity, . . . here the parties agree that section 92 is valid, and they have a continuing controversy over the Comptroller’s authority to permit national banks to sell insurance nationwide. And the case obviously arises under federal law for purposes of 28 U.S.C. § 1331, because, inter alia, the parties have stated a cause of action under the Administrative Procedure Act, 5 U.S.C. §§ 701–06.”).
[21] Independent Ins. Agents of Am. v. Clarke, 965 F.2d 1077, 1079 (D.C. Cir. 1992) (Silberman, J., dissenting from the denial of rehearing en banc) (citation omitted).
[22] United States Nat’l Bank of Or., 508 U.S. at 462–63.
[23] Id. at 448.
[24] 140 S. Ct. 1575 (2020).
[25] Id. at 1578.
[26] Id.; see United States v. Sineneng-Smith, 910 F.3d 461, 485 (9th Cir. 2018), vacated, 140 S. Ct. 1575 (2020).
[27] Sineneng-Smith, 140 S. Ct. at 1578.
[28] Id. at 1581–82. On remand, the panel rejected the as-applied challenge. United States v. Sineneng-Smith, 982 F.3d 766, 776 (9th Cir. 2020). But the Ninth Circuit was not done with section 1324. In a later case where the overbreadth challenge was properly presented, the court held that the statute was facially overbroad; the Supreme Court again granted certiorari, this time reversing on the merits. United States v. Hansen, 25 F.4th 1103 (9th Cir. 2022), rev’d, 143 S. Ct. 1932 (2023).
[29] Sineneng-Smith, 140 S. Ct. at 1579.
[30] Id. (alteration in original) (quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in the denial of rehearing en banc)).
[31] Brief for Petitioner at 37, United States v. Sineneng-Smith, 140 S. Ct. 1575 (No. 19-67).
[32] 140 S. Ct. at 1579 n.4.
[33] Consider, for example, Dickerson v. United States, 530 U.S. 428 (2000), which involved the constitutionality of 18 U.S.C. § 3501, a statute purporting to overrule Miranda v. Arizona, 384 U.S. 436 (1966), in federal cases. That statute had been largely ignored since its enactment in 1968, and the Department of Justice had a policy of not invoking it, but the Fourth Circuit took it up sua sponte and applied it to reject Dickerson’s challenge under Miranda to the introduction of certain statements in his federal prosecution for bank robbery. 166 F.3d 667 (4th Cir. 1999), rev’d, 530 U.S. 428 (2000). In his petition for a writ of certiorari, Dickerson challenged the propriety of the Fourth Circuit’s decision to consider section 3501 sua sponte, but the Supreme Court declined to grant certiorari on that question and instead ruled on only the merits of the constitutional issue, thus implicitly validating the Fourth Circuit’s decision to ignore the government’s waiver. 528 U.S. 1045 (1999); Petition for Writ of Certiorari at i, Dickerson v. United States, 530 U.S. 428 (No. 99-5525).
A personal observation on Dickerson: In deciding to consider section 3501 sua sponte, the Fourth Circuit had relied on my student comment from the University of Chicago Law Review. 166 F.3d at 683 (citing Eric D. Miller, Comment, Should Courts Consider 18 U.S.C. § 3501 Sua Sponte?, 65 U. Chi. L. Rev. 1029 (1998) (answering the question in the affirmative)). As should be apparent, I now think the argument advanced in that comment was seriously mistaken. I used the comment as my writing sample when I applied to serve as one of Judge Silberman’s law clerks; that he hired me anyway may be regarded as a testament to his magnanimity.
[34] Independent Ins. Agents of Am., 955 F.2d at 742 n.3 (Silberman, J., dissenting).
[35] United States v. Moore, 110 F.3d 99, 102 (D.C. Cir. 1997) (Silberman, J., dissenting from the denial of rehearing en banc).
[36] Id.
[37] Bd. of Governors of the Fed. Rsrv. Sys. v. Dimension Fin. Corp., 474 U.S. 361, 363 (1986) (defining “nonbank banks” as “institutions that offer services similar to those of banks but which until recently were not under [Federal Reserve] Board regulation because they conducted their business so as to place themselves arguably outside the narrow [statutory] definition of ‘bank’”).
[38] Moore, 110 F.3d at 102 (Silberman, J., dissenting from the denial of rehearing en banc).
[39] United States v. Simpson, 430 F.3d 1177, 1195 (D.C. Cir. 2005) (Silberman, J., concurring).
[40] Moore, 110 F.3d at 102 (Silberman, J., dissenting from the denial of rehearing en banc).
[41] See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls.”); accord Tenet v. Doe, 544 U.S. 1, 10–11 (2005); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).
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