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.

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).

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.

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.

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.

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).

            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 j-pfander@law.northwestern.edu.

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

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

            Let me begin with words of thanks:  to Jack Balkin for making space for this discussion; to the co-authors with whom I worked in making headway with some of these ideas (Dan Birk, Emily Damrau, and Michael Downey); and to the reviewers (Professors Fred Smith, Diego Zambrano, Amanda Tyler, Robert Pushaw, Tara Grove, and Kevin Walsh) for making time as summer winds down to engage so thoughtfully with my book, Cases Without Controversies.  I was delighted by the emerging consensus that Article III “cases” differ in important ways from “controversies”; that the difference may turn to some degree on the ability of the federal courts to entertain as “cases” uncontested application for the registration of claims of right under federal law; and that this understanding may raise questions about the Court’s case-or-controversy regime, including its insistence on adversarial disputes and concrete injuries in cases such as TransUnion LLC v. Ramirez 141 S. Ct. 2190 (2021).  For interested readers, the book’s discount code, ALAUTHC4, will moderate the (unfortunately steep) asking price.

            Grateful for their generous reactions to the book, I propose to focus these remarks on the reviewers’ questions and comments.  Three themes emerged: (i) How as a matter of constitutional theory can we integrate the book’s account of no-injury uncontested adjudication into the Article III case-or-controversy requirement?  (ii) Assuming that federal courts can properly exercise jurisdiction over uncontested “cases,” as the book argues, how should the federal courts and Congress manage such litigation? (iii)  How was this worked shaped by our community of scholars?  I tackle the first question in this post, and items two and three in a forthcoming post.

I. Article III Cases and Constitutional Theory 

I was struck by the response to the book’s account of the historical prevalence of uncontested adjudication. That history, when coupled with the textual distinction between cases and controversies, puts pressure on the Court, which continues as Tyler noted to gesture to the past in restating its injury and adverse party rules.  In the actual past, after all, nineteenth-century jurists viewed an application for naturalization as a “case” within Article III -- an uncontested claim of right in the form prescribed by law -- even though such cases did not feature injuries or opposing parties.  How then, reviewers wondered, could the modern Court continue to insist on such injuries in cases like TransUnion and why was the book less assertive about urging the Court to admit the error of its ways?

            Much may depend on one’s theory of constitutional interpretation and how much weight to ascribe to what sorts of history in crafting constitutional doctrine. For some readers, including perhaps Pushaw and Walsh, the history itself may prove dispositive, combining as it does both a proposed reading of the text and a set of practices under that text that help to liquidate its meaning.  For Grove and Tyler, history may count in constitutional interpretation, even though original meanings may not always deserve controlling weight.  For Smith and Zambrano, and of course for all of us, history may serve alongside other substantive commitments in giving content to constitutional guarantees.

            My goal was to persuade readers with different approaches to constitutional discourse that Article III distinguishes between cases and controversies.  That’s why I proposed to take account both of the rise of uncontested litigation in the first one hundred years after the Constitution was ratified (litigation that continues in different forms today), and of the modern case-or-controversy rule, which began slowly in the Gilded Age but can now claim its own 100-year history on an otherwise divided Supreme Court.  How to make a place for uncontested litigation in a federal judicial system headed by a Court that repeatedly restates and applies the injury and adverse-party rules?  Scholars understand that no-injury litigation had proceeded on federal dockets, in the form of prerogative writ claims to enforce public norms and private informer or qui tam suits to collect bounties from wrongdoers.  The Court grudgingly accepted qui tam in Vermont Agency (2000) but did so without suggesting that history alone could dislodge its case-or-controversy rule.

            My suggestion was to emphasize a concept, the litigable interest, broad enough to contain both uncontested claims and contested disputes over issues of federal law.  And to suggest that the Court might administer the litigable interest concept differently in uncontested and contested situations (much the way its rules of standing vary by claim and claimant).  I came to this synthesis on recognizing that however much I might disagree with the Court’s case-or-controversy dispensation, a catalog of uncontested practices from the past might fail to persuade the Court to confess error.  Naturalization was shifted to an agency more than one hundred years ago and privateering disappeared after the War of 1812, ending much private uncontested prize litigation in admiralty.  Zambrano rightly asks how one should weigh such proceedings in the interpretive process, now that they no longer occupy federal dockets.

            Rather than offer a detailed account of constitutional interpretation or specify a set of constitutional particulars to guide future adjudication, the book proposed a form of constructive constitutionalism in an effort to start a conversation about the meaning of Article III and the place of uncontested litigation on federal court dockets.  If the ideas in the book take hold, then others may join the discussion.  Perhaps adverseness has a more important role to play in constitutional litigation; that’s where the adverse-party rule emerged, as progressives sought to ward off contrived challenges to federal law.  Perhaps injury and redressability concepts continue to have value as the Court declines the invitation to rule on some of the policy detritus of the Trump years, such as the attempt to exclude non-citizens from the census count or the attack on Obamacare.  The litigable interest concept could make room for uncontested litigation and, at the same time, preserve a role for continued application of some justiciability rules in contested matters.

            Smith and other reviewers understandably called for more particulars, more clarity on what the constitutional baseline should be and how much deference the Court owes to Congress.  My own view is that the Court owes a great deal of deference to Congress; that’s the lesson of the nineteenth-century response to statutes that conferred an uncontested adjudicative role on the federal judiciary.  No-injury litigation did not, contrary to the TransUnion Court, arrive in the 1970s; it has been a part of our history from the beginning.  What has changed is the Court’s willingness to second-guess legislative choices on constitutional grounds.  With greater deference to Congress, many of the details would become matters of policy for the legislative branch to resolve rather than nice questions of constitutional law for the Court to parse.  It’s jarring to see the Court in a single Term confirm the viability of suits for nominal damages on the basis of their common law pedigree (Uzuegbunam) and condemn no-injury consumer litigation under a federal statute. 

            Identifying a bottom line that ties up loose ends may prove challenging.  By further relaxing or abandoning its case-or-controversy rules, the Court might rely on equitable discretion to achieve many of its avoidance goals.  But that, of course, would involve the exercise of discretion and prudence, two words that Lexmark (2004) sought to banish from the judicial lexicon.  Getting that larger story right would have required (as Tyler observes) a book that was longer and less focused on bringing the interpretive problems posed by uncontested adjudication to the attention of scholars and jurists.

II. Conclusion

Using synthesis to combine the old world of uncontested claims of right and the new world of redressable injuries can help solve interpretive problems, or so at least the final chapter of the book suggests.  But synthesis only makes sense if both pieces of the doctrine being synthesized have a claim to legitimate application.  I share the reviewers’ doubts about the wisdom of the Court’s case-or-controversy dispensation; the book proceeds on the assumption that, at least for now, it has become too entrenched to dislodge.

James E. Pfander is Owen Coon Professor of Law, Northwestern University Pritzker School of Law. You can reach him by e-mail at j-pfander@law.northwestern.edu.

The OLC and Section 3

Gerard N. Magliocca

A few days ago, Juan Williams wrote an op-ed in The Hill arguing that Section 3 of the Fourteenth Amendment bars Donald Trump from being elected President in 2024. Williams went on to say that Attorney General Garland should issue a legal opinion reaching that conclusion. 

I doubt that the Attorney General is keen to wade into this matter now (either directly or by asking the OLC to do so). There is, however, precedent for such an opinion. In 1885, President Grover Cleveland sought an opinion from his Attorney General about whether an ex-Confederate that he considering for an ambassador position was ineligible under Section Three for such an appointment. The Attorney General then wrote a (rather questionable) opinion stating that the person was not ineligible. 

The Attorney General could therefore ask the OLC to examine the question of whether Donald Trump is ineligible to receive a presidential appointment to something that is clearly covered by Section 3. This is not the same as asking whether Trump is ineligible to be elected president. But I don't really see why the Attorney General can opine on that issue unless and until Trump actually runs or Congress passes some sort of enforcement legislation. When the issue of Trump's eligibility is litigated in 2023 or 2024, the AG can file an amicus brief and give the view of the United States. 

Still, perhaps there is some merit in getting an OLC opinion on the other aspects of what occurred on January 6th (whether it was an insurrection, what constitutes "engaging in insurrection," etc.)

The Once and Future Federal Judicial Power

Guest Blogger

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

Kevin Walsh

The publication of Professor James Pfander’s Cases without Controversies should mark the beginning of the end of the case-or-controversy requirement as a one-size-fits-all approach to the fittingness of exercising the federal judicial power. This requirement is the organizing genus for a variety of justiciability doctrines that define the scope of the federal judicial power. But there’s a problem with defining this genus by reference to a single “case-or controversy” conception. Because “cases” and “controversies” are two different categories of judicial proceeding, as Pfander shows, it is wrong to run them together into one “case-or-controversy” requirement. Yet that is precisely what justiciability doctrine has done for the past several decades.

The New York eviction moratorium decision and the problems of the shadow docket

Mark Tushnet

Maybe the Court’s decision in the New York eviction moratorium case was right. But the legal problem it presented was way more complicated than the two sentences the Court devoted to its substantive analysis. Here are those sentences:  “If a tenant self-certifies financial hardship, Part A of CEEFPA generally precludes a landlord from contesting that certification and denies the landlord a hearing. This scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.” What follows is my analysis of the analytic difficulties bound up with those sentences. (A caution: I’m on vacation and haven’t done research specific to this problem – I’m drawing on my general knowledge of constitutional law. And at some points I will make assertions in which my confidence level varies from “quite sure” to “pretty sure” to “reasonably sure.” That means, though, that some of the assertions might be mistaken.)

Koppelman vs. Berman and Krishnamurthi

Andrew Koppelman

In Bostock was Bogus: Textualism, Pluralism, and Title VII, forthcoming in the Notre Dame Law Review and available on SSRN, Mitchell Berman and Guha Krishnamurthi argue that Bostock v. Clayton County rested on a defective understanding of causation.  They claim that an employer who discriminates against LGBT people is not motivated by the employee’s sex, as the Court held, but rather by the employee’s sexual orientation. 

I disagree, and have just posted a response.  (I have been arguing for decades that LGBT discrimination is properly understood as an illegal form of sex discrimination.)  They are both distinguished scholars, but they mistakenly take the linguistic happenstance of a separate term for gender-atypical behavior – here, “homosexuality” – to subtract those whom the term describes from the statute’s protection.  Parallel conjunctions of discriminations do not balance out.  If they did, the statute could be nullified in all of its applications by allowing employers to discriminate against those, male or female, black or white, who seek jobs inconsistent with the traditional social role of their race or sex.

Beyond Default

Guest Blogger

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

Tara Leigh Grove

Early on in Civil Procedure, students learn an important lesson. If someone files suit against you, do not ignore it!  Why not? The federal court can enter a default judgment against you. That’s the law’s way of saying, “You lose because you refused to play the game.”

But wait: Article III gives federal courts jurisdiction over cases and controversies. So don’t lawsuits have to involve opposing parties, who file briefs and make arguments to the court?  Justice Scalia certainly seemed to think so. He argued in United States v. Windsor that “Article III requires not just a plaintiff (or appellant) who has standing to complain but an opposing party who denies the validity of the complaint.”[1] Yet default judgments suggest that our legal system does not always require two parties who battle out a matter in court. Indeed (as I have observed in past work), if “argument adversity” were a constitutional requirement—and default judgments were not permissible—defendants could defeat any federal lawsuit simply by refusing to show up.[2]

In Cases Without Controversies: Uncontested Adjudication in Article III Courts (2021), Jim Pfander shows us that such “uncontested” cases are not an oddity at all—and extend far beyond default judgments to a string of other contexts. With his characteristic attention to historical detail, and knack for bringing to life seemingly arcane procedural practices, Pfander teaches us that federal courts have long adjudicated cases where there is no “opposing party” in court: Naturalization cases, some bankruptcy and admiralty cases, applications for search warrants, and others, often lack a clear opponent.

Pfander’s historical account provides a helpful reminder about the constitutional text. Although we often talk about Article III as conferring jurisdiction over “cases and controversies,” the text does not actually say that. Article III simply provides a list of “cases” that federal courts can hear, followed by a list of “controversies.” So the text of Article III does suggest that federal courts could hear cases that do not qualify as controversies.

Pfander not only calls attention to this often-overlooked feature of our procedural practice but also seeks to provide a framework for understanding it. Not all uncontested cases look alike. Pfander helpfully divides uncontested proceedings into two camps (e.g., p. 48). One camp (what Pfander calls “ancillary proceedings”) “occur in [the] shadow of adverse-party disputation”—that is, there is at least a theoretical opponent, even if (as in default cases) that person does not show up in court. The other camp (“original petitions”) encompasses matters such as naturalization proceedings, where it’s harder to envision an opponent at all. Federal courts have jurisdiction over such uncontested original petitions, Pfander asserts, only when the matter raises a federal question.

In so arguing, Pfander sheds light on a seeming anomaly in federal courts jurisprudence: the so-called domestic relations and probate exceptions (that is, the federal courts’ refusal to adjudicate matters such as divorce or child custody). As Pfander acknowledges (p. 209), “the tendency of federal judges to shy away from [such] work signals to some a subtle form of gender bias.”[3] But Pfander’s analysis provides a more charitable explanation (p. 10): “Matters of domestic relations and probate arise under state law, often in connection with uncontested applications for constitutive rulings, such as the appointment of an estate administrator, or the adoption of a child. Without a controversy between properly aligned adversaries, federal courts have no power to adjudicate such state law matters.”

Cases Without Controversies contains rich and important insights that will inform students and scholars of federal jurisdiction for many decades to come. I cannot—and won’t attempt—in this short blog post to articulate the immense value of the history that Pfander uncovers. I will simply note that Pfander’s argument shows how (contrary to Justice Scalia’s assertion) Article III does not require “an opposing party who denies the validity of the complaint.” It may be enough, it turns out, to simply have a plaintiff with a (federal) claim that could be redressed by the court. 

Tara Leigh Grove is the Charles E. Tweedy, Jr., Endowed Chairholder of Law and Director of the Program in Constitutional Studies at the University of Alabama School of Law. You can reach her by email at tgrove@law.ua.edu.

Unearthing The Historical Meaning Of Article III “Cases”: The Value Of Nonpartisan Originalism

Guest Blogger

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

Robert Pushaw

A "Review" of Justice Breyer's "Manuscript"

Mark Graber

Dear Harvard University Press:

As a long-time reviewer for Harvard University Press, I am sure you are not interested in my evaluation that in present form The Authority of the Court and the Peril of Politics is not suited for publication in any university press.  To begin with the obvious, Justice Stephen Breyer’s essay is far too short and under footnoted.  Not only is the manuscript only 100 pages on a generous count, but the book is the size of my hand (and Graber men have small hands).  The word count on each page is, I suspect, between a quarter or a third, if that, of what one would expect in a Harvard University Press book.  The acknowledgements suggest the text was never sent out for review.  Budgets are tight, but given the size, I suspect the press could have found a reviewer willing to take on the task for a paperback or two, or even a Harvard University Press catalogue autographed by former Harvard Law Dean Elena Kagan.  Nor is the text burdened with many footnotes (about 25), even when footnotes are called for.  On a good day, I might have persuaded one of the secondary journals at Maryland Law to take on the manuscript of this size and scholarly weight, but certainly not a major university press.

Big things often come in small packages, but this is a case of what you see (if microscopically) is what you get.  Consider the author’s query on p. 16, “Where then lies the power of the Supreme Court.”  One would hardly know from what follows and certainly not from the lack of the footnotes that there is an extensive literature on this subject.  The general conclusion most scholars have reached is that courts have power because crucial governing elites want courts to have power.  Courts articulate the values of the governing regime, they bring those values into the hinterlands, and they resolve political hot potatoes when many governing officials would rather avoid responsibility for making controversial policies.  I might cite such scholars as Ran Hirschl, Howard Gillman, Leslie Goldstein, Terri Peretti, and Tom Ginsburg for that proposition, or important variations on that theme.  There is hardly a one to one correspondence between what justices do and what any other governing official does, just as there is hardly a one to one correspondence to what one government institution does and what another governing institution does.  Still, courts are political institutions subject to the perils of politics as much as other political institutions, even as courts have distinctly legal means for dealing with the perils of politics.  The rule of law matters, but just as science alone does not explain the output of the Environmental Protection Agency, so law alone hardly explains the output of the federal judiciary.  A generation of scholars has demonstrated the political foundations of judicial review, that members of the executive and legislative branches play crucial roles in establishing judicial power because they believe a strong judiciary will promote regime goals far more partisan than the neutral rule of law.  Justice Breyer neither explains why this literature is wrong nor bothers to inform the reader that this literature exists.

Justice Breyer shortly thereafter seemingly begins to explore whether “the Court had actually played a major role in ending segregation” (25).  This, as political scientists and historians are taught in graduate school, is a major controversy with Gerald Rosenberg’s The Hollow Hope laying down a challenge that has never been fully answered to demonstrate powerful political effects from the judicial decision in Brown v. Board of Education (1954).  Breyer as is his wont, engages with none of this literature.  Instead, without citing any evidence he states, the court “played an essential role in ending legal segregation,” that the Court [with other political actors] . . . won a majority victory for constitutional law, for equality, and above all for justice itself,” and that the decision “helped to promote respect for the Court and increased its authority.” (26)   Breyer concludes “I cannot prove this assertion.  But I fervently believe it.” (26) "Credo absurdum," Latin scholars might observe.  If this is the standard of publication for Harvard University Press, please expect a manuscript from me demonstrating that the New York Giants will win the Super Bowl (needs a fast turnaround), that the Sicilian Dragon is playable in top chess tournaments, and that Mahler 2 is the most sublime symphony ever written, none of which I can prove, but all of which I fervently believe.

The broader point is that Justice Breyer in a book entitled The Authority of the Court and the Peril of Politics performs the remarkable feat of never citing a member of the Law and Courts Section of the American Political Science Association, many of whom have devoted their lives to researching the authority of the federal judiciary and the role of the Supreme Court in American Politics.  No doubt actually sitting on the Supreme Court gives a person a vantage point those of us who actually have to perform research to get published lack.  Still, given that almost every sentence of the text has been subject to scholarly investigation, it would be nice if Harvard University Press as opposed to, say Regent, actually demanded some evidence of engagement with the literature.  Political scientists appreciate citations.

In fairness to Justice Breyer, I note that he has a day job that may take up a good deal of his time, even though that day job comes with more research assistance than any academic could ever dream of.  The main lesson to take from the problems with The Authority of the Court is that one cannot successfully perform the function of Supreme Court Justice and publish a major university press book that scholars ought to take seriously.  Still, the book does demonstrate a good deal of native talent.  If submitted as part of an application, I believe any major graduate program in political science would be happy to take Justice Breyer on as a student.  The University of Texas comes to mind, as does Princeton.  Julie Novkov runs an underappreciated program in SUNY, Albany.  Justice Amy Coney Barrett, who I fear has a book of similar quality forthcoming, might consider joining Justice Breyer.  Still, The Authority of the Court is likely to be converted into a successful dissertation and major university press book only if Breyer is willing to put in the time necessary to do the research.  The solution is simple.  Harvard should withdraw the book from publication, insist that Justice Breyer if he wishes to continue publishing university press books, as I believe a person of his intelligence and talent should, enter a leading graduate program, study with a distinguished political scientist and forego all other employment that distracts from this worthy endeavor.

Pfander on “Cases” and “Controversies” and the Proper Role of the Federal Courts: Uncovering Important Lost History

Guest Blogger

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

Amanda L. Tyler

Jim Pfander’s extraordinary new book, Cases Without Controversies, comes at an auspicious time in the development of modern Federal Courts jurisprudence.  After all, just this past Supreme Court Term, a majority of five Justices, behind the pen of Justice Brett Kavanaugh, reinforced the notion that modern standing doctrine looks to history and tradition for its contours. Specifically, as Kavanaugh wrote in TransUnion LLC v. Ramirez [hyperlink: https://www.supremecourt.gov/opinions/20pdf/20-297_4g25.pdf],

“history and tradition offer a meaningful guide to the types of cases that Article III empowers federal courts to consider.” And with respect to the concrete-harm requirement in particular, this Court’s opinion in Spokeo v. Robins indicated that courts should assess whether the alleged injury to the plaintiff has a “close relationship” to a harm “traditionally” recognized as providing a basis for a lawsuit in American courts.

More generally, Kavanaugh wrote, “under Article III, a federal court may resolve only ‘a real controversy with real impact on real persons.’” Note that these passages say two distinct things. First, to qualify for standing, a litigant must present a harm analogous to one that “traditionally” has qualified as sufficient to open the federal courthouse doors. Second, that harm must be presented in a posture that involves a “real controversy,” or, as Pfander phrases it, embody “the adversarial ideal.”

Pfander’s book upends the latter assumption and counsels a dramatic reconsideration of the former, particularly as it was applied in TransUnion. For that reason alone, it should be required reading for anyone who teaches, writes about, and/or engages with the Article III standing doctrine (say, for example, federal judges). As his meticulous historical march through the early days of federal court practice highlights, the traditional inquiry with respect to federal laws, just like the Fair Credit Reporting Act at issue in TransUnion, is actually quite simple. It asked only whether Congress created a right under federal law to which the party in question lays claim and whether Congress expressed a desire for the courts play a role in recognizing that right. Thus, citing numerous examples, including the 1790 naturalization statute that vested jurisdiction in the federal courts to entertain petitions for citizenship on an ex parte basis, Pfander explains that from the beginning, federal courts understood Article III’s concept of “Cases” to encompass “uncontested petitions to secure a right under federal law.”