Thursday, September 23, 2021

Beyond Comparative Constitutionalism: Abusive Legal Borrowing

Guest Blogger

For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

 Alvin Y.H. Cheung

The street finds its own uses for things.

- William Gibson, Burning Chrome

There is broad consensus that liberal democracy is in retreat, despite the spread and apparent triumph of liberal democratic institutions and ideas in the late 20th Century.  Professors Dixon and Landau turn this proposition on its head: they argue that autocrats are increasingly adopting ideas and institutions of liberal democratic origin and deploying them in anti-democratic ways.  Abusive Constitutional Borrowing provides a careful, systematic articulation of that argument, and offers some promising (if slightly tentative) suggestions on what to do about it.  The true value of the book, however, is far greater: the sceptical approach Landau and Dixon adopt towards constitutional borrowing can be fruitfully applied outside the realm of constitutions and constituionalism.

Although the entirety of Abusive Constitutional Borrowing merits careful reading, I shall focus on two aspects of the book that deserve particular mention.  First, the book persuasively lays out a framework for thinking about different types of abusive constitutional borrowing, centred on a “democratic minimum core.”  In the context of rule of law indices, Mila Versteeg and Tom Ginsburg’s study suggests that a major failing of such indices is that their conception of the rule of law overlaps with other factors, such as human rights and the absence of corruption.  A relatively parsimonious conception of democracy – a set of factors that are necessary (if perhaps not sufficient) for democracies to function – will be more robust, or at least more likely to attract consensus, than an everything-but-the-kitchen-sink account.

Second, Abusive Constitutional Borrowing advocates a more critical approach to the practice of comparative constitutional law, an approach Dixon and Landau refer to as “global legal realism.”  Abusive practices, they argue, take advantage of the formalist and acontextual approach that continues to dominate the transnational rule-of-law industry – an approach that Kim Lane Scheppele has called a “checklist” approach.  Any effective response to abusive constitutional borrowing will therefore have to be more sensitive to context – both in terms of how discrete norms are implemented, and how they function as part of a legal system.  Put more bluntly, practitioners of comparative constitutionalism must learn to think like autocrats.  This practice of adversarial thinking – referred to in information security as “red teaming” – is an accepted part of building computer infrastructure; Abusive Constitutional Borrowing suggests that it should also be adopted in developing constitutional infrastructure.

I now turn to consider the subtitle, “Legal Globalization and the Subversion of Liberal Democracy.”  The phenomena that Dixon and Landau highlight in their introductory chapter have led not only to a transnational constitutional order, but to a “transnational legal order” (p 1, emphasis mine).  As Dixon and Landau argue, that transnational legal order has inspired creative anti-democratic behaviour.  However, that creativity has not been confined to abusive constitutional borrowing.

Three examples may help illustrate the point.  First, the use of defamation litigation against government critics – a practice commonly associated with Singapore – has spread to other semi-autocracies; in recent years Poland and Brazil have the tactic against (among others) Professors Wojciech Sadurski and Conrado Hübner Mendes, respectively.  Second, most of the media and electoral reforms in Hungary that Scheppele documents in “The Rule of Law and the Frankenstate” did not involve changes to the constitution.  In particular, her account of the creation of a new media regulator with superficial similarities to media councils elsewhere in Europe demonstrates that wilfully perverse transplantation is not confined to constitutional norms or institutions.  Third, the mere fact that China’s Anti-Monopoly Law (“AML”) was modelled on European or American legislation offers no insight into how the AML regime actually operates.  As Angela Zhang has argued in Chinese Antitrust Exceptionalism, the PRC’s radically different institutional and bureaucratic context has resulted in a very different system – one that Beijing has used to further its own geopolitical objectives.

This type of abusive legal borrowing may well be even more pernicious than abusive constitutional borrowing (an argument I develop at greater length in my forthcoming article Legal Gaslighting).  First, the presence of constitutional change is likely to attract attention in a way that the alteration of (for instance) criteria for company registration might not.  Second, the purpose of constitutional amendments is harder to disguise than amendments to “ordinary” law.  Third, changes to “ordinary” law have the potential to affect many more interactions between citizens and the State; to return to the example of companies registration, the political capture of Hong Kong’s Companies Registry (prior to Beijing’s imposition of the “National Security Law” in 2020) had the practical effect of impeding opposition parties’ ability to open bank accounts or rent office premises.

The true value of Abusive Constitutional Borrowing does not lie merely in the light it sheds on abusive constitutional borrowing.  As the examples above suggest, sophisticated autocrats are increasingly supplementing, if not replacing, abusive constitutional borrowing with other forms of abusive legal borrowing.  Nonetheless, the latter relies on the same transnational blind spots of formalism and acontextualism that has empowered the former, and Abusive Constitutional Borrowing provides a vocabulary and analytical approach that can be applied to both.  As such, the book is an important contribution not only to comparative constitutional law, but to the nascent field of comparative public law.

Alvin Y.H. Cheung ( is a SSHRC Postdoctoral Fellow at McGill University Faculty of Law and a Non-Resident Affiliate of NYU’s US-Asia Law Institute.

What Are the Options on the Debt Limit?

David Super


     The media is starting to pay more attention to looming fiscal deadlines.  Much of the coverage, however, takes what the congressional leaders say at face value.  That is rarely a good plan.  This post seeks to untangle the options available to each side under congressional procedure. 

     To begin with, we should be clear what major fiscal items are on Congress’s agenda.  At the moment, these number four.  First, with no appropriations bills enacted for the fiscal year beginning October 1, a continuing resolution (CR) will be needed to prevent a partial government shutdown.  Second, the Treasury has reported that it will exhaust available accounting tricks to stay within the statutory debt limit by late October; the debt limit therefore must be raised or suspended to prevent the United States Government from defaulting on its legal obligations.  Third, the bipartisan infrastructure bill passed by the Senate awaits action in the House.  Finally, Democrats have begun committee work in the House to advance a budget reconciliation bill to “Build Back Better” by making investments in human infrastructure and reducing carbon emissions.  Neither of these final two items have legal deadlines, although political windows of opportunity can close quickly in this town. 

     The Democratic leadership combined the first two items, putting a debt limit measure in the continuing resolution to keep the government funded following October 1.  Attaching debt limit increases to must-pass legislation such as a CR has been a relatively common approach by both parties in the past.  Although increasing the debt limit does not drive increases in the deficit – that is done by substantive tax and spending bills – it commonly gets misunderstood by the public and demagogued by some in the media.  In a new twist, some Republicans a few years ago started suggesting they would be happy to have the country breach the debt limit, presumably to grab headlines and demonstrate their independence from the financial elites that warn of the consequences of default.  Since the debt limit has become so intensely politicized, even Members that understand its importance have preferred not to vote for freestanding debt limit legislation. 

     House Republicans voted en masse against the CR/debt limit bill, leaving Democrats to pass it on their own.  They did. 

     More significantly, Senate Republican Leader Mitch McConnell (R-KY) has insisted that Democrats must pass any debt limit increase without any Republican votes.  Senator McConnell agrees that the debt limit should pass, but he insists no Republican votes will be available to do so.  He claims that this is the Democrats’ responsibility as the de facto majority party. 

     Senator McConnell’s insistence that majority party must provide all the votes to pass debt limit increases has no plausible basis in history.  Democrats have routinely cooperated in raising the debt limit when Republicans were in power.  This has been true even after deeply partisan upper-income or corporate tax cuts passed over their objections and swelled the deficit to make increases in the debt limit urgent.  Indeed, had Democrats adopted Senator McConnell’s policy, the nation might well have defaulted as some congressional Republicans (e.g., much of the Freedom Caucus) consistently refuse to vote for debt limit increases.  And with their commitment to preventing a default so clear, Democrats recognized that debt limit legislation gave them no bargaining leverage and have not sought to extract significant concessions in exchange for their votes on the debt limit.  By contrast, in 2011 Republican threats not to raise the debt limit – when they held the majority in the House – bludgeoned President Obama into agreeing to the deep budget cuts that culminated in sequestration. 

     Nor is the need for this increase in the debt limit solely attributable to Democrats.  Over the past four years, the deficit and the national debt have been increased substantially by Republican legislation (the 2017 tax cuts), by Democratic legislation (the American Rescue Plan Act), and by bipartisan legislation (last year’s several major coronavirus relief bills).

     Although Senator McConnell’s position has no serious historical support, senators are not bound by history.  And with the Democrats consistently opposed to threatening default, he has no reason to worry about similar tactics being used on him should he return to the majority after the mid-term elections.  So Democrats must decide what to do about Senator McConnell’s position. 

     Democrats have a few choices.  The simplest is to bring the legislation that passed the House to the floor of the Senate.  If Republicans do not filibuster, Democrats can pass it without a single Republican vote.  That would meet Senator McConnell’s stated requirement. 

     Senator Ted Cruz (R-TX), however, seems likely to filibuster such legislation.  Overcoming that filibuster and bringing the CR/debt limit bill to a vote would then require sixty votes.  Senator McConnell could allow ten of his senators to vote to invoke cloture (cutting off the filibuster) and then have all Republicans vote against final passage of the CR/debt limit bill.  This, too, would seem to meet Senator McConnell’s requirement that the legislation be passed entirely with Democratic votes.  The ten Republicans voting for cloture would not be voting to raise the debt limit; they would be voting to prevent a senator of their own party from preventing the Democrats from doing what Senator McConnell has said he wants them to do:  pass the CR/debt limit bill with their own votes. 

     If Republicans actively obstruct passage of the CR/debt limit legislation, Democrats will have to decide between moving a freestanding CR (which Senator McConnell has indicated Republicans would not obstruct) and allowing a partial government shutdown.  Because padlocked national parks are far more salient to the average voter than is anxiety in the financial markets, Democrats may feel that this is a more suitable place to draw a line in the sand to get Republicans to abandon their filibuster. 

     If Republicans succeed in blocking a debt limit increase or suspension as part of the CR – either by forcing a partial government shutdown or by coercing Democrats into moving a CR that does not address the debt limit – Democrats could, in theory, move a debt limit increase through “budget reconciliation” procedures, which bar filibusters.  This appears to be what Senator McConnell is trying to force them to do.  It is not nearly as simple as it sounds.

     The content of a reconciliation bill is dictated by the terms of the concurrent resolution on the budget for the fiscal year in question.  The Democrats passed – on a party lines vote – a budget resolution to allow the Build Back Better legislation to move through reconciliation procedures.  Because they were planning to move the debt limit increase on the CR, however, they put nothing in the budget resolution authorizing a reconciliation bill to raise the debt limit. 

     In order to move a debt limit increase through expedited reconciliation procedures, Democrats therefore would likely have to pass an amended version of the budget resolution that included instructions to raise the debt limit.  This they can do, but it would involve several steps, each of which offers Republicans considerable opportunities for obstruction and delay.  Senator McConnell, if he so chose, could expedite the process by declining to object to the Democrats’ moving a debt limit reconciliation bill without a reconciliation instruction authorizing them to do so.  He could still have all Republicans vote against that bill – fulfilling his stated requirement – but reduce uncertainty in the financial markets by allowing the debt limit to be raised more expeditiously. 

     If their current divisions are any indication, the Democrats might not have their Build Back Better reconciliation bill ready to pass before the need to raise the debt limit becomes critical.  This will not be fatal.  Section 310 of the Congressional Budget Act permits separate reconciliation bills to change spending, to change revenues, and to increase the debt limit.  The first two typically are combined – and will be in the Build Back Better reconciliation bill – but the Democrats could move a separate reconciliation bill containing only the debt limit increase.  Of course, doing so would require Democrats to vote on a stand-alone debt limit bill, something Members of both parties have long been loathe to do (and generally shielded from doing by the leaders of both parties). 

     If a miscalculation in this game of Fiscal Chicken exhausts the Treasury’s ability to operate within the existing debt limit, President Biden would have several options.  One would be to determine that section 4 of the Fourteenth Amendment makes the debt limit unenforceable when it states that “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”  President Obama considered and rejected this approach in 2011, but President Biden has already broken with his former boss in several important respects.  If President Biden did so, it is unclear who, if anyone, would have standing to challenge his actions.  The Supreme Court seems unlikely to intervene to cause an immediate default; after all, the Court has lately expressed reluctance to take cases “present[ing] complex and novel antecedent procedural questions”.

     A final note:  although the debt limit increase could move on its own, as part of the CR, or as part of reconciliation, the CR and reconciliation cannot be combined.  The Byrd Rule limits spending provisions in reconciliation bills to those that would change mandatory (commonly termed “entitlement”) spending.  The appropriations needed to keep the government operating that will be in the CR are overwhelmingly discretionary (non-entitlement) spending and hence impermissible on a reconciliation bill.  Congress cannot pass one big “budget bill” combining all these measures.


Wednesday, September 22, 2021

Domesticating Constitutionalism

Guest Blogger

For the Balkinization symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

Samuel Issacharoff

At first glance, the work of Ros Dixon and David Landau on constitutional borrowing appears to be centered on the role of constitutions and courts in securing or compromising democratic governance.  As such, it is an invaluable contribution to the growing literature on comparative constitutional law, one whose institutional sophistication and deft international scale rewards the reader with nuance and insight.  At another level, however, Abusive Constitutional Borrowing bears witness to the breaching of what Madison termed “parchment barriers,” the aspirational commands of constitutional law that translate imperfectly into the realities of power and politics. 

The contemporary inquiry into comparative constitutional law takes shape after the fall of the Soviet bloc and transformative events in South Africa, Colombia, the Pacific Rim, and the list goes on.  In each case, a heady if unstable mix emerged featuring a new constitutional order, suddenly assertive constitutional courts, uncertain political power based loosely on an electoral mandate, and a felt need to at least gesture in the direction of the prevailing world consensus of rights and tolerance.  Constitutionalism defined the boundaries of what Dixon and Landau call the “democratic minimum core,” as well as the contested terrain of social rights.  In the face of unsettled political power, courts acting with a constitutional mandate took on an outsized role in defining the new world order.  The democratic core could serve as the lower bound of permissible regulation of politics, while rights claims provided the contested upper bound. 

In the upswing period of constitutionalism, borrowing lent legitimacy to the assertion of exacting judicial review in countries bereft of any tradition of powerful courts.  In the heyday of this borrowing, courts around the world could learn from the basic structures doctrine of the Indian Supreme Court, from the wise preservation of political accountability by the Colombian Constitutional Court, from the sophisticated proportionality analysis of the South African Constitutional Court, and from the overall judicial stewardship over the transition from authoritarianism to democracy in countries around the world. 

Dixon and Landau chronicle the ebbing of the constitutional tide.  This is the moment in which, as they introduce the study, “increasingly dense” global constitutionalism coexists “with stagnation and backsliding in democratization …”  Although their focus is largely on the selective and acontextual use of doctrine in the service of illiberal aims, their book memorializes the fading of constitutionalism in the face of consolidated political power.  For all that comparative constitutionalists hail the 2010 decision of the Colombian Court denying President Uribe a chance at a third term in office, the intervening decade shows just what a momentary outlier that was.  The Colombian decision remains the only judicial intervention in Latin America denying an incumbent continued tenure, and has been followed by noteworthy decisions striking down any term limits on incumbents.  The “rhetorical triumph” of constitutionalism, their term, has repeatedly allowed a new form of anti-liberal electoral politics to claim the mantle not only of majority support but the authority of transnational fundamental principles of governance.

Read more »

Balkinization Symposium on Rosalind Dixon and David Landau, Abusive Constitutional Borrowing


This week at Balkinization we are hosting a symposium on Rosalind Dixon and David Landau's new book, Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy (Oxford University Press, 2021).

We have assembled a terrific group of commentators, including Alvin Cheung (McGill), Mark Graber (Maryland),  Sam Issacharoff (NYU), Kim Scheppele (Princeton), and Oren Tamir (Harvard).

At the conclusion, Ros and David will respond to the commentators.

Monday, September 20, 2021

Section Four of the Fourteenth Amendment (again)

Gerard N. Magliocca

A decade ago when the debt ceiling was in the news, there was discussion about whether Section Four of the Fourteenth Amendment could authorize the President to, in effect, ignore the ceiling and issue new debt on his own authority to avoid a default. (When obscure parts of the Fourteenth Amendment are under discussion, Mark Graber and I are on the case.) I said then that it was highly unlikely that we would find ourselves in a situation where the Section Four issue would be presented. When the issue came up again in 2013, I wrote the following post, which has aged well and might be helpful now. (For more on Section 4 and the Supreme Court's interpretation of that provision in Perry v. United States, see my article on The Gold Clause Cases.)


Now that we are past the fiscal cliff, we can return to what everybody really wants to discuss--the debt ceiling. When Congress and the President sparred over this issue in 2011, there was a lot of debate about whether the President could unilaterally act (to raise taxes, borrow money, or slash spending), if the ceiling was not raised. Less attention was paid (including by me) about the threshold issue--what constitutes a violation of Section 4 of the Fourteenth Amendment, which holds that: "The validity of the public debt of the United States . . . shall not be questioned."

Based on research that I wrote up in an article last year, my conclusion is that hitting the debt ceiling is not, by itself, a violation of Section 4. Why? Consider a hypothetical. Suppose we hit the ceiling and bond payments are suspended. A week later, the ceiling is lifted and Congress provides that the bond holders will be made whole for the missed payments. In that case, I would argue that the public debt has not been questioned in a substantial way and no constitutional violation has occurred.

Why do I add the qualification "in a substantial way?" Because in the years after Section 4 was ratified, Congress made changes to the value of the currency. (Paper money, gold and silver money, just a gold standard.) All of these reforms changed the value of our debts (sometimes to the detriment of the bond holder). Nobody thought, though, that this raised a Section 4 problem. From this, I glean that only a significant or substantial reduction in debt validity is a constitutional violation, not just any modification or reduction. 

Of course, it is possible that hitting the debt ceiling could, combined with other factors, present a different situation. If Congress made clear that the bond holders would not be made whole for any suspension, that would raise serious Section 4 questions. Or a suspension that dragged on for months might cross the line. But on Day One or Day 6, the President would not, in my view, be authorized to do anything because the Constitution would not be infringed.  

To Reform Social Media, Reform Informational Capitalism


I've posted my latest article, To Reform Social Media, Reform Informational Capitalism, on SSRN. Here is the abstract:

Calls for altering First Amendment protections to deal with problems caused by social media are often misdirected. The problem is not First Amendment doctrines that protect harmful or false speech. The problem is the health of the digital public sphere: in particular, whether the digital public sphere, as currently constituted, adequately protects the values of political democracy, cultural democracy, and the growth and spread of knowledge. Instead of tinkering with First Amendment doctrines at the margins, we should focus on the industrial organization of digital media and the current business models of social media companies.

Only a handful of social media companies currently dominate online discourse. In addition, the business models of social media companies give them incentives to act irresponsibly and amplify false and harmful content. The goals of social media regulation should therefore be twofold. The first goal should be to ensure a more diverse ecology of social media so that no single company’s construction or governance of the digital public sphere dominates. The second goal should be to give social media companies—or at least the largest and most powerful ones—incentives to become trusted and trustworthy organizations for facilitating, organizing, and curating public discourse. Competition law, consumer protection, and privacy reforms are needed to create a more diverse and pluralistic industry and to discourage business practices that undermine the digital public sphere.

Given these goals, the focus should not be on First Amendment doctrines of content regulation, but on digital business models. To the extent that First Amendment doctrine requires any changes, one should aim at relatively recent decisions concerning commercial speech, data privacy, and telecommunications law that might make it harder for Congress to regulate digital businesses.

Fishing, Not Catching, in the History of the Law

Guest Blogger

John Fabian Witt

Some readers may have noticed that my colleague Samuel Moyn and I have had a back and forth over the past couple weeks about his much-discussed new book on the past, present, and future of the laws of war.  I’m grateful that some have thought the exchange edifying, and I might have let the dialogue rest.  We’ve had interesting disagreements on the substance of the laws of war, which perhaps future scholars and students will consider valuable starting points.  But a different kind of disagreement – a disagreement over method in historical scholarship -- prompts me to write this short post. 

Here’s Moyn’s most astonishing passage: 

History is always moral and political. In a new book, the international lawyer Anne Orford rightly indicts historians for pretending otherwise—except that most don’t. I never have written history as anything but politics by other means, though Orford makes much of some rash (or strategic?) verbiage in one of my books to the effect that it restored the “true history” of human rights. In his review of “Humane,” Witt comparably says he has furnished the “real history” of the laws of war. But what does his own narrative of the sun never setting on the eternal dilemma of brutality versus humanity in war imply morally and politically? 

Just as Witt says, I am a melodramatic and moralizing writer….I can see the appeal of Witt’s moral stance. But I simply do not find it compelling, especially right now. As a response to an era of endless American war—however legally humane—that has set the world far back, I prefer melodrama. We are no longer dealing with John Yoo, whom we can now see as the advocate of a foregone American tradition of brute and brutal force. Rather, our moral duty is to confront the durable subsequent war of those who successfully pushed back against that tradition in our time, rescuing war from war crimes and placing it on legal footing through seeking (more) legal propriety in its conduct. And I would prefer to be “stunned” by seeing that result challenged and overcome.

Moyn says that he “never” writes history “as anything but politics by other means.” He rolls his eyes at my use of the phrase “real history” and chides himself for having once rashly (or strategically) adopted a similar phrase himself.  His work, he tells us, is a moralizing effort to live up to the moral duties that his politics produces.

Read more »

Friday, September 17, 2021

Constitution Day: Is September 17 the Right Choice?

Jason Mazzone

Vik Amar and I have this essay on the designation of September 17 as Constitution Day. We explain that the date is not the only possible choice--nor even the best.

Wednesday, September 15, 2021

Is the U.S. Constitution Up to the Task of Preserving American Democracy?


On September 9, I participated in a panel sponsored by the new Fair Elections and Free Speech Center at UC Irvine Law School discussing “Is the U.S. Constitution Up to the Task of Preserving American Democracy?” 

The speakers were Michele Goodwin (UCI), Michael Klarman (Harvard) and myself. Rick Hasen (UCI), the new Center's co-director, was the moderator.

Saturday, September 11, 2021

An Alternative Test for the Necessary and Proper Clause

Gerard N. Magliocca

The Administration's new vaccine mandate for private employers will surely be attacked in the courts. There will be a statutory challenge and a constitutional challenge. The constitutional challenge will be that the mandate runs afoul of the Chief Justice's controlling opinion in NFIB v. Sebelius, which reasoned that the individual health insurance mandate exceeded Congress's authority under the Commerce Clause and the Necessary and Proper Clause.

With this background in mind, I came across an interesting passage in John Marshall's biography of George Washington. (I'm interested in Life of Washington because it was a joint project between Marshall and Bushrod Washington, who served as Marshall's editor for the book series.) At one point, the Chief Justice writes about the 1791 congressional debate on creating the First Bank of the United States. Here is what he said (before he wrote McCulloch v. Maryland):

In asserting the authority of the legislature to pass the bill, gentlemen contended, that incidental as well as express powers must necessarily belong to every government: and that, when a power is delegated to effect particular objects, all the known and usual means of effecting them, must pass as incidental to it. To remove all doubt on this subject, the constitution of the United States had recognized the principle, by enabling congress to make all laws which may be necessary and proper for carrying into execution the powers vested in the government. They maintained the sound construction of this grant to be a recognition of an authority in the national legislature, to employ all the known and usual means for executing the powers vested in the government. Then they took a comprehensive view of those powers, and contended that a bank was a known and usual instrument by which several of them were exercised.

I do not know if Marshall was quoting members of Congress or characterizing the issue in his own way. Either way, though, I think that "known and usual means" is a more helpful test for analyzing incidental powers (especially in light of over two centuries of practice) than the more typical formulations. 

For example, the thrust of the Chief Justice 's opinion in Sebelius was that a mandate to buy health insurance was unusual--it was not a "known and usual means" for exercising the commerce power. The same could be said for a federal vaccination mandate on private employers, if you assume that OSHA even has that power under the relevant statute. And so on.

Friday, September 10, 2021

Some Not Very Focused Preliminary Thoughts About the Shadow Docket (But Leading Up to Some Fundamentals about Constitutional Law)

Mark Tushnet

The following thoughts were provoked by and during an interesting Roundtable chat convened by Neysun Mahboubi for something called the "Law and Governance" whatever (remember, I'm an "old" and that reaches the limit of what I can say about the event).

1. The shadow docket can't be eliminated. There's always going to be a need for some mechanism for immediate intervention by the Supreme Court to do something about an urgent problem (an impending execution, for example). And a great deal of what the justices have to do will have to be discretionary (to deal with claims that, while not frivolous, are quite unlikely to succeed, for example). I'm old enough to remember controversies associated with the as-et-unnamed shadow docket in connection with efforts to get the courts to "do something" about the Vietnam War, where "doing something" required really innovative doctrinal moves. So I doubt that there's a statutory "fix" to deal with what many see as today's problems with the shadow docket.

2. But something can be done by the Court itself. Here's a suggestion: When the Court divides sharply (5-4 or 6-3), the justices should grant review, expedite argument, and issue an order preserving the status quo. The first two steps are what the Court did in the capital case just granted.

3. But what status quo to preserve? The status quo ex ante the litigation, or the status quo post whatever action the lower court has taken (and which lower court -- the trial court or the appeals court)? In capital cases you want it to be ex ante the litigation (with an execution date set but not implemented until the conclusion of litigation). In the SB8 case critics want it to be, post the decision by the trial court to schedule a preliminary injunction but ante the decision by the court of appeals to order a stay of that hearing. (In most of the Vietnam cases people on my side of the political spectrum wanted it to be, post whatever favorable decision some rogue district judge issued.)

4. A thought (really tentative) about how to choose which status quo to preserve: Look at what contested legal questions you'd have to treat as serious but unsettled, and enter an order that "resolves" the fewest and/or least significant of them (where "resolves" means something like "expresses a tentative judgment that there's a decent chance that the beneficiary of the order will prevail on the merits"). That's not quite complete, because "likelihood of success on the merits" is only one consideration; the degree of irreparable harm pending final resolution of the case is another. (The Court's practice in capital cases suggests that the balance quite often, but not always, tips in favor of postponing the execution pending final decision.)

5. The problem with that suggestion, for folks on my side of the political spectrum, is that it might not produce a different result in the SB8 case. To vacate the court of appeals' order the Court would have "resolve" (in the sense I've specified) a pretty tricky question about whether Ex parte Young might end up being extended to cover the bounty-hunters. (I'm more or less satisfied that it should be, but there's no doubt that it's unsettled.) Not vacating the order wouldn't require "resolving" any unsettled questions. The difficulty then comes with the "irreparable harm" question, and I'm afraid that dealing with it is simply going to reproduce the political controversy the actual order generated. (Briefly, people on my side will say that there's enormous and irreparable harm to women in Texas who want to obtain post-heartbeat, pre-viability abortions; people on the other side will say that for each such woman there's a fetus who is [as they see it] going to be executed -- and there's the harm to the sovereign interests of the people of Texas as represented [imperfectly] in the legislature and the Governor's office.) 

Or, put another way, I doubt that here as elsewhere there's a politically neutral way to deal with both the substance of constitutional law (no news here) and its procedural implementation (no news here to people who understood what Felix Frankfurter was after in creating the field of federal jurisdiction, but maybe news to those who have internalized the watered-down version offered in the Hart & Wechsler tradition -- but that's another and even more complex story).

Tuesday, September 07, 2021

The Supreme Court's Texas abortion decision is a threat to constitutional rights (all of them)

Andrew Koppelman

 Abortion opponents are jubilant about the Supreme Court’s recent refusal to block a Texas law banning abortion after six weeks.  The law was carefully crafted to evade judicial review by empowering private parties, not the state, to enforce it.  The law accomplished what its proponents hoped.  As soon as it went into effect, most abortions in Texas stopped.  But the full reach of the law hasn’t been understood.  This decision endangers all constitutional rights, not just abortion. 

When legislatures try to violate constitutional rights, courts routinely issue injunctions forbidding officials from enforcing those laws.  If, say, a state made it a crime to praise Antonin Scalia, a court would quickly block it as a flagrant violation of First Amendment free speech.  But the Texas law cleverly privatizes enforcement.  It allows any private citizen to sue anyone who “aids or abets” an abortion after six weeks.  If a plaintiff prevails, they win at least $10,000 per abortion plus legal costs.  Defendants who win must still pay for their own lawyers.  Plaintiffs can sue anywhere in the state, even hundreds of miles away from the defendant’s home or business. 

The scheme was devised by former Texas Solicitor General Jonathan Mitchell, who helped write the statute.  In a 2018 Virginia Law Review article, he wrote that “a defendant has no entitlement to attorneys’ fees when he asserts his constitutional rights defensively in a private enforcement action, and the need to foot one’s own legal bills may induce statutory compliance even for those who expect to prevail on their constitutional objections.”[1]  Read that sentence carefully.  It says that the threat of expensive litigation could bully people into surrendering their constitutional rights – any of them.

I explain in a new piece at The Hill, here.

[1] The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 1002 (2018).  

Friday, September 03, 2021

The Problem with the Shadow Docket

Gerard N. Magliocca

My view is that the main problem with the "shadow docket" is that the Supreme Court is deciding consequential matters without full briefing and argument. This is a departure from past practice and, I must say, is little more than the current Justices being lazy. Let me give some examples.

In the Steel Seizure Cases, President Truman issued his executive order in April 1952. A month later, the Supreme Court heard oral argument in the case. In the Pentagon Papers case, the Nixon Administration sought a prior restraint against publication in June 1971. Two weeks later, the Supreme Court issued its decision after full argument and briefing. I could go on describing cases where the Court scheduled a special summer session or granted expedited certiorari to decide a dispute properly.

Today, I don't think that the Court would handle these cases in the same way. I think that there would just be a ruling on an emergency request for or against a stay without argument or briefing. Why is that? Part of the issue is that the unwritten "summer vacation" clause in Article III is swaying the Court not to hold oral arguments in July, August, or September. Another factor is that individual Justices no longer hold in-chambers arguments on emergency matters. This would be better than having no argument or full briefing at all and was standard practice for a long time, subject to review by the full Court.

The symbol inside the Supreme Court building is the sure-footed tortoise. Not the lazy hare.

Thursday, September 02, 2021

Michael Perry and human rights

Andrew Koppelman

I've just posted on SSRN my contribution to a forthcoming festschrift issue, in the Emory Law Review, on the work of the distinguished legal theorist Michael Perry.  Here is the abstract:

Michael Perry’s lifelong project has been to give a philosophical account of human rights.  His claims rest at many points on controversial and undefended value choices.  They hang together in that all are attractive, and they do not contradict one another.  They forcefully state a political ideal.  But the claims of entailment are unpersuasive.  What he offers is less a philosophical account than a set of articles of faith.


Private Enforcement Mechanisms and You

Priscilla Smith

Three points about the Texas mess and one suggestion. 

First, of course we know that the Texas law SB8 is an attack on abortion jurisprudence.  But the Court already has the Dobbs case to mess with/eliminate the right to abortion. (Dobbs is the case being briefed in the Supreme Court now concerning a Mississippi law banning abortions after 15 weeks of pregnancy.). So why use this dubious procedural morass to stop abortion?  What they have here is an even quieter way than was anticipated to ban abortion without explicitly overruling Roe and getting the people all worked up.  Do they think people will just get acclimated to abortion being illegal/unavailable if we start with Texas?  They might be right about that?  Or will women storm the Court and demand change?

Second, everyone who cares more about other constitutional rights should remember that this also paves the way for states to evade doctrine, i.e., Ex Parte Young, that has ensured that individuals can vindicate their constitutionally guaranteed rights in federal court.  Any constitutionally guaranteed right. 

Third, delegating enforcement of a law that infringes constitutional rights to private enforcers is not just an attempt to insulate a patently unconstitutional law from federal judicial review prior to enforcement, as many have pointed out.  It’s an attempt to insulate a patently unconstitutional law from federal judicial review period.  

This brings me to my suggestion for today.  

Draft and enact a statute – maybe in CT but no, especially in DC -- that prohibits the expression of anti-choice views and anti-choice advocacy and delegates enforcement of that law to “any person.”  Statutory damages for violation of the statutory would be – let’s go big -- $100,000.  Anyone could then sue Americans United for Life and individuals (politicians) advocating for the overthrow of Roe.   

Or here’s another one. Prohibit entry to the bar to a group of people (you pick) and also prohibit anyone from aiding or abetting a member of that group who is trying to become a member of the Bar.  (See, e.g., Law Schools, Professors, the LSAT people, me – I’m a clinical professor). The law could even be applied retrospectively to members of this group who are members of the Bar.  Delegate enforcement of the law to another specific group of people).  Statutory damages for violation of the law again 100,000.  A form of reparations.

Let’s see how quickly things would change. I suspect the Court would rush to prevent such laws from taking effect. It would decide we need to have a mechanism for enforcement of federal constitutional rights in federal court and states can’t void this mechanism by playing these sorts of games.  Either our interpretation of the 11th amendment must change or the Ex Parte Young doctrine – already a ‘fiction’ after all – must be broadened.  Would they limit these mechanisms to the fancy First Amendment, cuz it’s the most important – it was first, foundation of democracy, etc., etc.  You be the Judge.

Facebook Announces Formation of Supreme Court Oversight Board

Guest Blogger

John Jay

Washington, D.C. and Menlo Park, CA-- Today Facebook and the United States Supreme Court announced a joint venture, the creation of a Supreme Court Oversight Board that will perform tasks that the Supreme Court is no longer able to perform: hearing cases on the merits after full oral argument and briefing, and rendering reasoned opinions explaining its conclusions to the public. 

To this end, the new Supreme Court Oversight Board (SCOBUS) will contract with a group of former judges to do what Supreme Court Justices used to do. The U.S. Supreme Court will continue to tweet out its decisions at or around midnight, and leave it to the new Oversight Board to explain their legal meaning to others and take all responsibility for decisions that people don't like.

"We're extremely grateful to Facebook for suggesting this possibility to us," Justice Samuel Alito explained. "With 60 to 80 cases a year and only four clerks per Justice, we can't possibly carefully consider every case brought before us, much less justify our conclusions. Frankly, we're swamped. Many of us are busy writing best-selling books and doing book tours, which consumes a lot of our time."

"We think that this is a win-win for the Supreme Court," added Mark Zuckerberg, Facebook's founder. "We know what it's like to be a secretive, all-powerful body, accountable to nobody, that holds the fate of countless people in its hands."

John Jay was the first Chief Justice of the United States. You cannot reach him by e-mail, as he died in 1829.

Thursday, August 26, 2021

Cases Without Controversies: An Author Responds (With Gratitude) (II)

Guest Blogger

For the Balkinization Symposium on  James E. Pfander, Cases Without Controversies: Uncontested Adjudication in Article III Courts (Oxford University Press, 2021).

James E. Pfander 

            In my last post, I responded to comments on the problem of how best to read Article III in light of the evidence that uncontested adjudication has had a place on federal dockets throughout the nation’s history.  While I would welcome broad re-thinking of the Court’s justiciability jurisprudence, the book also suggests ways in which the Court might integrate uncontested adjudication into the rules that now govern access to federal court.

            In this post, I respond to the reviewers’ questions about how to manage uncontested adjudication, once federal courts come to recognize that it may deserve a more thoughtful reception than it often receives under the current case-or-controversy dispensation.  I close with a few remarks on the importance of scholarly community as we work to understand the Court and the Constitution it elaborates.

I. Managing Uncontested Adjudication

As befits a group with serious procedure chops, reviewers raised questions about how to manage uncontested adjudication. The book’s chapter eleven wrestled with that question, explaining that a host of uncontested matters continue to appear on federal dockets and suggesting a set of best practices that courts called upon to conduct uncontested adjudication might consider.  Thus, the book suggests that courts take up uncontested chores only when their work satisfies the Article III finality requirement and only when Congress has so directed.  Courts should also be wary of the potential impact on non-parties, just as European courts have moderated reliance on non-contentious jurisdiction to protect due process rights. Finally, courts should develop procedures that allow them to secure a stronger factual record on which to base decisions, perhaps taking a page from the practice of some inquisitorial courts.  All of these suggestions remain, in some sense, tentative and situation-specific; my goal again was to defend the legitimacy of the enterprise from constitutional attack and to start a discussion of how federal courts might proceed in a world where uncontested matters have a place on federal dockets.  As Walsh observes, “judges need a theoretically sound, historically rooted, and doctrinally grounded conception of the power they exercise to administer legal justice” in the many, seemingly mundane uncontested matters that come before them.

The variety of uncontested proceedings complicates the answer to Zambrano’s good questions about preclusion and joinder.  Naturalization decrees immediately affected only the rights of the new citizen.  But others were affected by the new citizen’s expanded rights to vote and to own real property, and by the citizenship also conferred on children.  Were the interests of other voters concrete enough to deserve representation in naturalization litigation, or better addressed by Congress? What about the interests of future claimants to a parcel of land, who might wish to secure title to property by denying the effectiveness of the naturalized citizenship of the record owner?  Obviously, those interests would be extremely hard to identify, just as the varying interests in a foreign vessel claimed as prize in America were difficult to identify and bring before the court.  Nineteenth-century jurists solved these problems by treating at least some uncontested matters as in rem proceedings; they did not require personal service upon and notice to all potentially interested parties.  That treatment, in turn, created the sort of due process and fairness concerns that have led the Court to question in rem process when interested parties can be readily identified and other more effective forms of notice are available. Due process can be situation-specific.  But I can say that where nineteenth-century courts did not require notice, they were willing to accord preclusive effect to their decrees.  Thus, both naturalization and prize decrees enjoyed a measure of preclusive effect, even as to those who did not appear in the proceeding.

Perhaps that can help answer Tyler’s intriguing question about an uncontested declaratory judgment proceeding.  Today, of course, the relevant statute provides that federal courts can issue declaratory judgments only in “cases” of actual controversy; the statute contemplates a contested or contentious proceeding.  Could one imagine an uncontested declaratory judgment?  Yes, and here again, the naturalization decree provides a serviceable example.  Many constitutive decrees, such as naturalization, change the rights of a litigant through judicial say-so, that is, through the application of law to fact and entry of a judicial order upholding the claim of right.  But when the decree immediately affects more than one party, such as a custody or adoption decree, we expect the affected parties to appear before the court, even where they agree about the proposed disposition.  If the declaratory judgment were to affect more than the rights of the petitioner, then we would expect the courts to demand the representation and appearance of other parties.  A court might issue such a declaratory judgment upon agreement of the parties, just as it might enter a consent decree.  But (as we learned long ago) courts should refrain from permitting a feigned or nominally agreed upon disposition to change the rights of those not before the court. 

In suggesting a few best practices, I do not urge Congress to rely more broadly on uncontested forms of adjudication.  In answer to Zambrano’s sensible request for a better account of the normative pros and cons of uncontested adjudication, I would say that agencies can now handle much of the uncontested work that once found its way to federal dockets and can do so more cheaply than federal courts.  Congress, like the executive, has come to value the federal judiciary’s role as the independent exponent of constitutional values and interpreter of federal statutes and will hesitate before burdening those important roles with work that other tribunals might handle just as well.  Still, Congress does from time to time assign uncontested work to the federal judiciary, often work adjacent to the dispute-resolution role.  Thus, PACER fee waiver claims, victim rights’ petitions, and applications for federal financial support of habeas litigation (the form of uncontested litigation at issue in Ayestas v. Davis) all sensibly go to federal judges as a matter of convenience.  FISA warrant applications go to federal judges because Congress wanted an independent judicial assessment of such foreign intelligence surveillance.  I would leave the normative balance to Congress, confident that the judiciary’s concerns will gain a hearing in the legislative process.

II. Working in a Community of Scholars

As Pushaw’s comments make clear, no scholar works in isolation and I owe him and the other reviewers for their thoughtful engagement with the book’s ideas and many contributions to our understanding of the words of Article III.  Pushaw and I go back to the early years of our careers when Akhil Amar put us in touch to discuss works in progress. Amar emphasized the Marshall-Story distinction between cases and controversies as the basis for limits on Congress’s jurisdiction-stripping authority; I found the distinction helpful in exploring the scope of the Court’s original jurisdiction and state suability (Pfander, 82 Cal. L. Rev. 555 (1994)); Pushaw questioned the Court’s blending of the terms in a so-called case-or-controversy requirement to govern issues of justiciability.  See Pushaw, 69 Notre Dame L. Rev. 447 (1994).  Pushaw’s comments in this mini-symposium and the work of the scholars he credited in turn (Berger, Fletcher, Jaffe, Lee, Meltzer, Winter) remind me of the debt I owe to those who have explored this terrain before me.

Pushaw and I agree that cases differ from controversies.  As for controversies, the federal courts were expected to act as neutral umpires in resolving disputes between parties aligned as Article III specifies.  (As Tyler observes, I sometimes describe controversies as based on state law, as they often are today.  But it’s really the absence of any federal law and the presence of proper party alignment that brings jurisdiction over controversies into play, jurisdiction that would have often implicated general common law back in a pre-Erie world.)  In cases, federal courts can certainly play this dispute-resolution role.  But they can also do something more.  Pushaw highlights their distinctive role in the exposition of federal law.  69 Notre Dame L. Rev. at 449, 464, 496.  My account emphasizes federal judicial power to issue constitutive decrees in response to a claim of right in controversy-free proceedings under controlling federal law.  That’s why I said in the book that I meant to take Pushaw’s suggested distinction between cases and controversies in a new direction. Of course, we might both be right. 

III. Conclusion

In the end, I am gratified that Pushaw has embraced my suggestion that we can understand Article III cases to include both contentious disputes over federal law and uncontested applications to secure constitutive decrees.  My gratitude extends to others (very much including Smith, Zambrano, Tyler, Grove, and Walsh) whose work has taught me so much and whose comments here have sharpened my thinking about how to make sense of the words in Article III.  I feel fortunate indeed to have found my way to a community of scholars with whom I can work on problems of federal judicial power that seem as pressing now as they were when Marshall and Story defined the case (but not the controversy) as a claim of right, implicating a federal subject, in the form prescribed by law.

James E. Pfander is Owen L. Coon Professor of Law, Northwestern University Pritzker School of Law. You can reach him by e-mail at


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