The 2020 National Lawyers Convention has concluded. All sessions were live streamed to the public for free and are now available to watch anytime here on our website, YouTube, and other social media platforms. Videos have been converted into audio podcasts and uploaded to our FedSoc Events podcast, available on your podcast platform of choice.
The Federalist Society is pleased to announce that its annual National Lawyers Convention will be held virtually during the week of November 9-13, 2020. Distinguished guests and experts will deliver addresses, participate in debates, and contribute to panel discussions focusing on the theme of “The Rule of Law and the Current Crisis.”
These virtual events will be broadcast each weekday from Monday, November 9 to Friday, November 13, with Practice Group Breakout Sessions on Monday, Tuesday, Wednesday and Friday and a mixture of showcase panels, debates, and addresses on Thursday. The entire event will be live streamed to the public for free, but if you wish to participate in Q&A, you must register for each Zoom webinar separately. Registration is free (except for those wishing to register for CLE credit). You do not need to be a member or have an online account in order to register for any of the sessions or to obtain CLE.
As always, in keeping with the Federalist Society's long-standing tradition of balanced and spirited debate, we have invited speakers with a wide variety of perspectives to participate in each panel discussion. We aim to make thoughtful, diverse discussions of today's most pressing legal and policy issues accessible and engaging to all.
We hope you will make plans to join us in November. We are excited for this year's virtual Convention, we encourage you to tune in, and we invite you to learn more about the work we do at the Federalist Society.
All sessions will be available as live streams on our web site and other platforms for free. There is no need to register unless you wish to participate in Q&A.
Hon. Samuel A. Alito, Jr.
United States Supreme Court
Thursday, November 12
2020 NATIONAL LAWYERS CONVENTION SCHEDULE
MONDAY, NOVEMBER 9
Religious Liberties: Religious Liberty and the New Court
11:00 a.m. – 12:15 p.m.
Environmental Law & Property Rights: EPA Turns 50: A Debate on Environmental Progress and Regulatory Overreach
12:30 p.m. – 1:45 p.m.
Criminal Law: Prosecutorial Discretion, Partisanship, and the Rule of Law
2:00 p.m. – 3:30 p.m.
Administrative Law & Regulation: Regulatory Practice and Oversight in 2021 and Beyond
3:45 p.m. – 5:00 p.m.
TUESDAY, NOVEMBER 10
Free Speech & Election Law: Rule of Law, or Just Making it Up? First Amendment Tiered Scrutiny
11:00 a.m. – 12:15 p.m.
Professional Responsibility & Legal Education: Freedom of Association in the Legal Profession
12:30 p.m. – 1:45 p.m.
Corporations, Securities & Antitrust and Telecommunications & Electronic Media: Regulating Social Media
2:00 p.m. – 3:30 p.m.
Litigation: Are MDL Judges Too Powerful?
3:45 p.m. – 5:00 p.m.
WEDNESDAY, NOVEMBER 11
International & National Security Law: The Law, China, and the Possible New Cold War
11:00 a.m. – 12:15 p.m.
Labor & Employment Law: Agency Leaders on Labor Policy
12:30 p.m. – 1:45 p.m.
Intellectual Property: Intellectual Property Rights and the Rule of Law
2:00 p.m. – 3:30 p.m.
Civil Rights: Modern Quandaries of Law Enforcement
3:45 p.m. – 5:00 p.m.
THURSDAY, NOVEMBER 12
Showcase Discussion: A Discussion with Professors Robert George and Cornel West on Freedom of Speech, Freedom of Thought, the Black Lives Matter Movement, and the Cancel Culture
11:00 a.m. – 12:15 p.m.
Showcase Panel I: Law, Social Justice, Wokeness and the Protests: Where Do We Go From Here?
12:45 p.m. – 2:15 p.m.
Address by Secretary of Labor Eugene Scalia
2:45 p.m. – 3:45 p.m.
Showcase Panel II: The Presidency and the Rule of Law
4:15 p.m. – 5:45 p.m.
Address by Judge Janice Rogers Brown
6:00 p.m. – 7:00 p.m.
Address by Justice Samuel Alito
8:00 p.m. – 9:00 p.m.
FRIDAY, NOVEMBER 13
Special Session: The Future of the Second Amendment's Right to Keep and Bear Arms: From the Supreme Court to Social Unrest
11:00 a.m. – 12:15 p.m.
Financial Services & E-Commerce: Agency Leaders on Cryptocurrency, Blockchain, and the Evolution of a Central Bank Digital Currency
12:30 p.m. – 1:45 p.m.
Federalism & Separation of Powers: Emergency Powers and the Rule of Law
2:00 p.m. – 3:30 p.m.
- Hon. Samuel A. Alito, Jr., Associate Justice, United States Supreme Court
- Hon. Paul S. Atkins, Chief Executive Officer, Patomak Global Partners, LLC; Former Commissioner, United States Securities and Exchange Commission
- Prof. Stephanie Barclay, Associate Professor of Law, University of Notre Dame Law School
- Prof. Randy E. Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center
- Hon. Duane Benton, United States Court of Appeals, Eighth Circuit
- Prof. Ashutosh Bhagwat, Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality; Martin Luther King Jr. Professor of Law, University of California, Davis School of Law
- Ms. Susan Bodine, Assistant Administrator, Office of Enforcement and Compliance Assurance, United States Environmental Protection Agency
- Mrs. Jennifer C. Braceras, Director, Independent Woman's Law Center
- Prof. Gerard V. Bradley, Professor of Law, University of Notre Dame Law School
- Hon. Elizabeth "Lisa" Branch, United States Court of Appeals, Eleventh Circuit
- Mr. Brian P. Brooks, Acting Comptroller of the Currency, Office of the Comptroller of the Currency, United States Department of the Treasury
- Hon. Janice Rogers Brown, United States Court of Appeals, District of Columbia Circuit (ret.); Former Associate Judge, California Supreme Court
- Hon. Patrick J. Bumatay, United States Court of Appeals, Ninth Circuit
- Prof. Elizabeth Chamblee Burch, Fuller E. Callaway Chair of Law, University of Georgia School of Law
- Hon. Brendan Carr, Commissioner, Federal Communications Commission
- Hon. Ronald A. Cass, Dean Emeritus, Boston University School Law; President, Cass & Associates
- Prof. Jorge Contreras, Professor of Law, University of Utah School of Law
- Dr. John Eastman, Professor of Law, Dave E. Fowler Law School, Chapman University
- Mr. W. Neil Eggleston, Partner, Kirkland & Ellis, LLP, Former White House Counsel
- Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law; Peter and Kirsten Bedford Senior Fellow, Hoover Institution
- Mr. Harold Feld, Senior Vice President, Public Knowledge
- Prof. Brian T. Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt University Law School
- Mr. Scott Fulton, President, Environmental Law Institute; Former General Counsel, United States Environmental Protection Agency
- Prof. Robert P. George, McCormick Professor of Jurisprudence and Director, James Madison Program in American Ideals and Institutions, Princeton University
- Hon. Jack L. Goldsmith, Professor of Law, Harvard University; Former Assistant Attorney General, United States Department of Justice
- Hon. Britt C. Grant, United States Court of Appeals, Eleventh Circuit
- Amb. C. Boyden Gray, Founding Partner, Boyden Gray & Associates; Former White House Counsel; Former Ambassador to the European Union
- Hon. Thomas B. Griffith, United States Court of Appeals, District of Columbia Circuit (ret.)
- Mr. Gary G. Grindler, Retired Partner, King & Spalding; Former, Acting Deputy Attorney General, United States Department of Justice
- Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC
- Hon. Sharon Fast Gustafson, General Counsel, United States Equal Employment Opportunity Commission
- Amb. Richard Haass, President, Council of Foreign Relations; Former Director of Policy Planning, United States Department of State
- Hon. F. Henry “Hank” Habicht, Principal, Global Water 2020; Managing Director, United States Water Partnership; Managing Partner, SAIL Capital Partners
- Ms. Kathleen Ham, Senior Vice President, Government Affairs, T-Mobile
- Hon. Thomas M. Hardiman, United States Court of Appeals, Third Circuit
- Prof. Lisa Heinzerling, Justice William J. Brennan Jr., Professor of Law, Georgetown University Law Center
- Hon. James C. Ho, United States Court of Appeals, Fifth Circuit
- Mr. W. William Hodes, Owner and President, The William Hodes Law Firm
- Hon. Ryan T. Holte, United States Court of Federal Claims
- Mr. Larry H. James, Managing Partner, Crabbe Brown & James LLP
- Mr. Phil Johnson, Founder and Principal, Johnson-IP Strategy and Policy Consulting; Former Senior Vice President and Chief Intellectual Property Counsel, Johnson & Johnson
- Hon. Edith H. Jones, Chief Judge, United States Court of Appeals, Fifth Circuit
- Hon. Gregory G. Katsas, United States Court of Appeals, District of Columbia Circuit
- Hon. Sally Katzen, Professor of Practice and Distinguished Scholar in Resident; Co-Director, Legislative and Regulatory Process Clinic, New York University School of Law
- Prof. Randall Kennedy, Michael R. Klein Professor of Law, Harvard Law School
- Prof. Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director, International Programs, Maurice A. Deane School of Law, Hofstra University
- Prof. Genevieve Lakier, Assistant Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School
- Hon. Barbara Lagoa, United States Court of Appeals, Eleventh Circuit
- Hon. Kenneth K. Lee, United States Court of Appeals, Ninth Circuit
- Ms. Heather Mac Donald, Contributing Editor, City Journal, Manhattan Institute
- Mr. Andrew C. McCarthy, Contributing Editor, National Review; Senior Fellow, National Review Institute: Contributor, Fox News; Former Chief Assistant United States Attorney, Southern District of New York
- Mr. Robert McNamara, Senior Attorney, Institute for Justice
- Hon. Brent J. McIntosh, Undersecretary for International Affairs, United States Department of the Treasury
- Prof. John O. McGinnis, George C. Dix Professor of Constitutional Law, Northwestern Pritzker School of Law
- Hon. Michael B. Mukasey, Of Counsel, Debevoise & Plimpton; Former United States Attorney General; Former Chief Judge, United States District Court, Southern District of New York
- Hon. Ryan D. Nelson, United States Court of Appeals, Ninth Circuit
- Mr. John Ohlendorf, Associate, Cooper & Kirk, PLLC
- Hon. Theodore B. Olson, Partner, Gibson Dunn; Former United States Solicitor General
- Hon. Hester M. Peirce, Commissioner, United States Securities and Exchange Commission
- Hon. William H. Pryor Jr., United States Court of Appeals, Eleventh Circuit
- Hon. Neomi Rao, United States Court of Appeals, District of Columbia Circuit
- Hon. Mike Rogers, Board of Trustees, Center for the Study of the Presidency and Congress; Former United States Representative; Former Chairman, House Permanent Select Committee on Intelligence
- Hon. Peter B. Robb, General Counsel, United States National Labor Relations Board
- Prof. Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law Center
- Hon. Eugene Scalia, Secretary of Labor, United States Department of Labor
- Mr. Christopher A. Seeger, Partner, Seeger Weiss LLP
- Mr. Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
- Prof. Mark W. Smith, Senior Fellow in Law and Public Policy: Presidential Scholar, The King's College
- Hon. Cheryl Stanton, Administrator, Wage and Hour Division, United States Department of Labor
- Mr. Charles “Cully” Stimson, Senior Legal Fellow and Manager, National Security Law Program, The Heritage Foundation
- Hon. David R. Stras, United States Court of Appeals, Eighth Circuit
- Prof. Nadine Strossen, John Marshall Harlan II Professor of Law Emerita, New York Law School; Former President, American Civil Liberties Union
- Hon. Karyn A. Temple, Senior Executive Vice President and Global General Counsel, Motion Picture Association; Former Register of Copyrights, United States Copyright Office
- Hon. Amul R. Thapar, United States Court of Appeals, Sixth Circuit
- Hon. Lawrence Van Dyke, United States Court of Appeals, Ninth Circuit
- Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, University of California, Los Angeles School of Law
- Hon. Kenneth L. Wainstein, Partner, Davis Polk & Wardwell LLP; Former, United States Homeland Security Advisor; Former Assistant Attorney General, National Security, United States Department of Justice; Former United States Attorney, Washington D.C.
- Prof. Cornel R. West, Professor of Public Philosophy, Harvard University; Professor Emeritus, Princeton University
- Prof. Adam J. White, Assistant Professor of Law, Director, C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University; Resident Scholar, American Enterprise Institute
- Hon. Christine Wilson, Commissioner, Federal Trade Commission
- Ms. Lori Windham, Senior Counsel, The Becket Fund for Religious Liberty
- Ms. Elizabeth B. Wydra, President, Constitutional Accountability Center
- Prof. John C. Yoo, Emanuel S. Heller Professor of Law; Co-Faculty Director, Korea Law Center; Director, Public Law & Policy Program, University of California, Berkeley School of Law
2020 National Lawyers Convention
|Topics:||Constitution • Culture • First Amendment • Religious Liberty • Religious Liberties • Supreme Court|
On November 9, 2020, The Federalist Society's Religious Liberties Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The topic of the panel was "Religious Liberty and the New Court."
Religious liberty and religious free exercise in the modern era often involve the question of when religious exemptions are appropriate or required. A well-trodden debate asks whether the Free Exercise Clause provides relief only from laws that target religion, or whether it also requires courts to grant exemptions from generally applicable laws that happen to burden religion. But much less has been said about how courts should implement either of these two readings. First, how can courts tell if a law is truly general in application? If religious entities must be treated as well as secular analogues, what makes a secular entity "analogous"? Second, if the Free Exercise Clause requires something more than even-handed treatment of religious entities, what more is needed? What sort of test should be used to determine when to grant exemptions from a general law? The first question came up repeatedly in cases challenging the shutdown orders prompted by COVID-19, and is also at issue in Fulton v. City of Philadelphia, now pending before the U.S. Supreme Court. Depending on how the Court decides that case, it may address the second question as well. This panel explores both questions, and features opposing perspectives on religious exemptions as a matter of history, doctrine, and constitutional law.
- Prof. Stephanie Barclay, Associate Professor of Law, University of Notre Dame Law School
- Prof. Gerard V. Bradley, Professor of Law, University of Notre Dame Law School
- Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, University of California, Los Angeles School of Law
- Ms. Lori Windham, Senior Counsel, The Becket Fund for Religious Liberty
- Moderator: Hon. Neomi Rao, United States Court of Appeals, District of Columbia Circuit
- Introduction: Hon. Dean A. Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
Hon. Dean A. Reuter: —President, General Counsel, and Director of Practice Groups at The Federalist Society. And I’m so pleased to welcome you to our first ever all-virtual convention. Over the next five days, we’ll host over 20 panel discussions, debates, and addresses. As is typical of The Federalist Society, we’ll hear a variety of views on a seemingly endless array of topics. Some might say an intellectual feast.
I’m very pleased to welcome you this morning not only to the Convention but to our first panel discussion, sponsored by our Religious Liberties Practice Group and its chairman Bill Saunders. I’m honored also to introduce our first moderator, Judge Neomi Rao, who sits on the U.S. Court of Appeals for the D.C. Circuit.
Just one quick word about her confirmation process, and something I might call the typical Washington rush to judgement. In the days after her nomination was announced, I was driving to work and listening to news radio as various experts held forth about her jurisprudence, her qualifications, her background, her shortcomings—her perceived shortcomings, I should say—etc.
I was surprised that so many experts could know her work so well, so quickly, but they were firm in their analysis. They were so filled with insight and immersed in knowledge about their subject, the nominee, that they managed to mispronounce both her first and last name throughout their breathless reports. In reality, she has what seems like an impossibly long career before becoming judge.
She steeped in administrative law expertise, clerked for J. Harvie Wilkinson and Justice Clarence Thomas, also served in the White House Counsel’s office and the Senate Judiciary Committee. And she has experience in big law and academia as well. She’s perfectly suited to the court to which she was appointed in March 2019. I’m proud to know her and happy to welcome her today. Judge Rao.
Hon. Neomi Rao: Thank you, Dean, for that really kind introduction. It’s such a pleasure here to be moderating the first panel of The Federalist Society’s National Convention. This is certainly one of my favorite events of the year, and I’m glad The Federalist Society is going ahead with a virtual convention. I don’t think even Dean Reuter has quite figured out how to have virtual hallway conversations, so I guess for that, we’ll all have to wait until next year. But in any event, that means we have a week where we can focus on the substance of these panels, so let’s get started.
Today, this panel, we’re going to be discussing religious liberty and, in particular, the constitutional protections for religious free exercise. Just last week, the Supreme Court heard arguments in Fulton v. the City of Philadelphia, an important case about whether Philadelphia could exclude Catholic Social Services from its foster care system because the catholic charities would not endorse same-sex couples as foster parents.
The plaintiffs in the case have asked the Supreme Court to revisit its 1990 decision in Employment Division v. Smith, which held that the right of free exercise does not permit exemptions from valid and neutral laws of general applicability. Our panelists today will discuss the ongoing validity of Smith, both on historical vote and doctrinal grounds, as well as focus on the debate on the requirements of the Free Exercise Clause for religious practice in a pluralistic society.
We have a very distinguished and experienced panel of experts with us to discuss these issues. The speakers’ bios may all be found on The Federalist Society website, so I will just briefly introduce them in the order in which they will be speaking.
We’re going to be starting with Professor Gerard Bradley from Notre Dame Law School, followed by Professor Stephanie Barclay, also Notre Dame Law School. And then we’ll have Professor Eugene Volokh of UCLA Law School, and then, finally, Lori Windham, who is Senior Counsel of the Becket Fund and who last week argued the Fulton case before the Supreme Court.
The way we’re going to work things, we’re going to have five minutes of opening remarks from each of our panelists, and that will be followed by a moderated discussion and questions from our Zoom audience. So with that, Professor Bradley.
Prof. Gerard V. Bradley: Thank you, Judge Rao. In Fulton, the Supreme Court won’t overrule Smith. I say so not because having been her colleague for 18 years, I know more about Justice Barrett’s views of Smith than any of you do. In fact, I don’t. It’s that there are other pathways to holding in favor of Sharonell Fulton and Catholic Social Services so that a majority inclined to overturn Smith won’t have to do it in a case featuring the Catholic Church and its oppositions of same-sex marriage. The majority, if there is one, could wait for a case with less provocative optics.
Now, I hope I’m wrong. That is I hope that Smith is not overruled in Fulton or in any other case because Smith is rightly decided. Smith is right, even though it is one of Justice Scalia’s least convincing opinions. The arguments he made there weren’t cogent, and he didn’t make the arguments that were.
Oddly, those missing arguments were Scalia’s usual go-to’s in constitutional cases. One is originalism. Not a trace of it Oregon v. Smith. I would say that Smith is there for a welcomed break from the usual hash of Madison and Jefferson that the justices serve up in these cases, except that Smith was a case where it was needed—not hash, mind you. Scalia needed a critical account of free exercise as original public meaning. One which sidestepped the Court’s habit of imagining the past and remembering the future.
In other words, Scalia needed in Smith to make the argument he made seven years later in City of Boerne v. Flores, only longer. That faux historical essay would show dispositively that Smith expresses the original public meaning of free exercise, a reading confirmed by 170 years of Supreme Court precedent up to Sherbert.
I think if originalism means anything, it means that Smith is sound notwithstanding one’s regrets about the results it produces in some cases. Now, the other go-to for Scalia is of course judicial activism. One meaning of it is where courts invent constitutional rights as the justices did in Roe and Obergefell. Now, that’s not Smith.
The second meaning of judicial activism is that there is something distinctly legislative about a particular instance of judicial law making. In Smith, Scalia does not make this argument, though I think he gestures at it in a two or three points in the opinion, and he should’ve made more of it. This inchoate claim could be flushed out more powerfully now than it could’ve been in 1990 because the center of gravity, in free exercise, has shifted so much since then.
The Sherbert test was built to explode wooden conformity to arbitrary rules which disadvantaged religious minorities. I doubt that it performed that task well, and the collateral clause were enormous. The warrant for its main strategy to protect the religious fringe was to suppress the religious center. In any event, the language structure and content of the Sherbert test do not illumine the values at stake in the key pre-exercise cases today.
These key cases involve what are often called third-party dignitarian or dignitarian harms. Think of Jack Philips and many other cases like his. These cases are not about government efficiency or budgets compared to the religious wellbeing of, say, a Native American prisoner. Today’s key cases are about fairness to everyone foreseeably affected by a proposed exemption.
That fairness is the relevant government interest. Call it compelling or not, as you wish, the truth is it answers the questions about fairness are reason guided but are never logically required free choices. There are no algorithms that collect the relevant interests for the judge, values them, and thereafter computes the correct answer. The judge has to do all of that.
These free choices are not applications of rules. It is not like finding that facts fall under a certain pre-established norm. When a judge makes these choices for a whole political community, by making law, it defines that community in an important respect, at least, where one of the central factors in this calculus, this consideration, is religion.
Now, all of that sounds, to me, like a legislative and not a judicial task. Now, I’m pleased to hand off the discussion to another Notre Dame Law School colleague, a most accomplished young scholar and litigator, Stephanie Barclay.
Prof. Stephanie Barclay: Thank you, Professor Bradley. It’s a privilege to get to be here and to get to speak about this topic that is so important right now, and I’m grateful to The Federalist Society for inviting me to be alongside these great panelists. What I’m going to talk about today is why I think at some point the Supreme Court should overrule Smith, whether or not in Fulton or in a future case.
Professor Michael McConnell has argued that some the most influential founding era theory, religious liberty, flowed from the idea that religious duty trumps claims of civil society. This notion draws from a theory that was relied on in the very influential Memorial and Remonstrance and also the deep tradition of providing religious exemptions at our Founding period, including to Quakers from being drafted into the military.
So the argument is that religious exercise, this core protection, was understood to include the right to engage in religious conduct, even when that conduct incidentally conflicted with general legal requirements so long as those sorts of conflicts didn’t endanger public health or safety. So the arguments that have been made against this sort of view from a historical originalist perspective have been made by Professor Bradley and by Professor Hamburger.
Professor Hamburger has claimed that it would’ve been improbable, at the Founding generation, that they would’ve contemplated a judiciary with the power to graft exemptions. And Scalia cited to Hamburger’s work in his City of Boerne’s concurrence, where he later defended Smith. And Professor Bradley has some very thoughtful scholarship where he has disagreed with the idea that the judiciary was empowered to create exemptions from laws arguing that this was something that is a judicial creation, an aspect of the post-World-War-II takeover of our civil liberties.
One thing that I have challenged with this idea, in a recent Notre Dame Law Review article, is this conventional wisdom that a judicial practice of exempting conduct from statutes is either new or extraordinary. Just the opposite. It turns out that leading up to and during the Founding period, the process of judges creating exemptions from statutes was widely employed and was likely expected.
Exemptions have been noted by scholars, such as Professor Eskridge and Manning who have surveyed Founding era cases, and Professor Eskridge has noted that courts had “no problem announcing exceptions to old broadly phrased laws where application” contradicted other forms of fundamental law. Blackstone explained that courts would rely on equity principles to accept those circumstances from legislation and avoid results that infringe on a host of personal liberties when they swept too broadly.
And English common law, Theodore Plucknett, observed how regularly judges created equitable exemptions to the application of broad statutory language, and historians such as Professor Wood and Rakoff have emphasized how judges in the early republic had attitudes that were emphatically favorable towards a willingness to bend or except statutory language to avoid clashes with constitutional principles.
The mischief rule was one particular form of interpretation that focused on the problem the legislature was trying to solve when it crafted a law, and it looked at whether or not the government was actually advancing that interest when it applied the law. In early Antebellum court, such as People v. Philips and Commonwealth v. Cronin, courts are engaging in this sort of analysis when they are determining that exempting religious objectors would not actually undercut government interests in peace and safety.
Indeed, it’s plausible that this sort of mischief rule would have frequently justified lower court decisions, declining to apply laws to religious objectors. Note that this mischief analysis resembles modern strict scrutiny analysis in certain respects, particularly, with the aspect of the test that is looking at whether application of a law to a specific scenario would actually advance the government interests.
When you combine that sort of historical principle with also the principles that Professor McConnell and Laycock have written about, the early state constitutions protecting pre-exercise with certain qualifications generally focused on things like public health and safety, that suggests that only certain sorts of government interests were sufficient or would qualify to interfere with religious exercise.
So if you have a limited set of government interest, and then courts are regularly analyzing whether or not everyone is actually advancing those interests, that starts to look similar in some important respects to the type of analysis courts engage in under modern strict scrutiny under, say, a RFRA regime.
So one other thing that I want to talk about that’s relevant, I think, for the history, with respect to Fulton, is that in this case, we’re dealing with unique circumstance where the government has in effect expanded to control an activity that was previously within the realm of private religious parties. Two hundred years ago, the Catholic Church created adoption agencies and foster care programs to deal with a yellow fever endemic that was going on in Philadelphia. You might say that they invented foster care in Philadelphia.
And later, the government has taken increasing roles in this space, and I’m not saying that that’s necessarily a bad thing, but what it means now is that the government has said that Catholic Social Services can’t participate in foster care, unless they do so on the government’s terms, and now the government is forcing Catholic Social Services to choose between their religious beliefs or continuing this ministry.
So one question I have asked is, given that the baseline of a large welfare estate didn’t exist during the Founding, is there any historic evidence that can shed light on the original meaning of the Constitution with this type of conflict where government has expanded into a new faith? One that I would point to is the Founding era and historical example involving the Ursuline nuns.
Beginning in 1727, Catholic nuns in New Orleans operated a convent that included a school for poor children. When the United States completed the Louisiana Purchase, the convent fell within the boundaries of this newly acquired territory. As a result, it could have easily been assumed that this property now fell to the ownership and control of the United States government. And the nuns wrote a letter in 1804 seeking clarification about the future of their ministry, and the nuns stated, “It is not therefore our own cause, but that of the public which they plead. It is the cause of the orphan, of the helpless child of want.”
Jefferson responded and assured the nuns that the principles of the Constitution provided a sure guarantee that the property would be preserved to you in sacred and in violet, and that the covenant will be permitted to govern itself according to its own voluntary rules without interference from civil authority.
I think it’s interesting that Jefferson wasn’t just making this commitment benevolently. He wrote that the principles of the Constitution required preserving this religious ministry, and he didn’t think that preserving the ministry meant you get to continue your ministry only if you did it the government’s way. He noted that this ministry had a sure guarantee that they would operate according to their own rules without interference from the civil authority.
My friend Mark Storslee has written about, examples like this illustrate that the Establishment Clause doesn’t prohibit government ministries, even in the context of government funding or property. I recommend taking a look at his article coming out in Penn. And I agree, I think that these historical examples also show that there are certain spheres of liberty that the Founders understood religious groups and institutions would be able to operate within, free from government interference, notwithstanding government expansion, or at the very least, that within these spheres, religious ministries would receive thick constitutional protection.
One way to operationalize that understanding would be a rule that overrules Smith altogether and allowed for a default rule of heightened scrutiny in religious exemption conflicts. This background norm will be consistent with the idea that government should justify its ability to burden religious exercise when it’s expanding into spheres of liberty that the government had largely left uninhibited during the Founding period. And where government can point to use of its power, that actually advances an interest that was originally understood as being sufficient to limit religious exercise, such government regulation would likely satisfy strict scrutiny.
On the other hand, if the Court does not adopt some sort of rule that will protect ministries, even in the face of government expansion, the risk is that government could simply obliterate the promise of free exercise of religion that it emphasized recently in Bostock, simply through its reality of never-ending expansion. All the government would need to do is license or exert control over a new activity and then condition religious groups continued participation on their willingness to forfeit their religious beliefs and practices. Whatever the Free Exercise Clause meant, surely it could not have been that. Thank you, and I’ll turn the time over to Professor Volokh.
Prof. Eugene Volokh: Thanks very much for having me. I very much appreciate the opportunity to be on this panel. Is it possible for me to share my screen? All right. So I want to talk about some practical questions here. And perhaps one way of thinking about it, just imagine that Smith is reversed, and imagine we’re back in the old Sherbert/Yoder regime. What kinds of issues is the Court going to have deal with, at this point, that Smith helped it avoid?
Now, I don’t want to suggest that this is the most important question, that consequential expression is the most important part. One can certainly make great arguments that the Court should just focus on the original meaning. But that’s been amply handled by others both in the panel and elsewhere, so I just want to talk about concrete practicalities, and I want to start with assisted suicide.
Now, of course, there’s been a claim that there’s a constitutional right to assisted suicide. It was raised in Glucksberg in 1997, a companion case on equal protection grounds called Vacco v. Quill. And Glucksberg dismissed that as a substantive due process claim. It said there is no constitutional right to assisted suicide, which is to say constitutional right for doctors to be exempted from laws banning assisted suicide.
And the reason it gave wasn’t that there was some compelling interest in preserving life, even in situations where the person living the life wants to die and perhaps has understandable reasons to want to die. No, no, the Court avoided all that because, of course, there’s a high controversy, both moral and pragmatic, about that sort of claim. It simply said, “We need not weigh exactingly the relative strength of various interests. The interest in preserving life; on the other hand, the interest of autonomy in the others.” Because this is a matter that the law leaves to the democratic process that, in fact, as I understand it in a few states, democratic process has resulted in favor of some amount of assisted suicide. So that was a 1997 decision—as it happens, a topic that Justice Gorsuch wrote a book on when he was actually -- well, he published when he was a lawyer.
And I think it’s fair to say that the Glucksberg opinion is, at the very least, a plausible judgment, but I think probably a correct judgment, that this is the sort of thing that judges ought not be deciding. Judges ought not be the ones who decide whether there’s a compelling interest in preserving life, even when somebody is dying and wants to be helped die, that the judges ought not decide whether there’s a less restrictive alternative that’s still effective, like, for example, requiring some doctors, and perhaps a psychiatrist, to interview the patient first—something, I think, that’s going to be effective in weeding out claims where somebody’s being basically pressured to choose assisted suicide. Others might say otherwise. That kind of practical question, like the underlying moral question, should not be weighed by the justices.
And, of course, under Employment Division v. Smith, you’d get the same result. Of course, you’d need to, to even to get into the pre-exercise zone, raise somebody who feels they have a religious objection to balance assisted suicide. That’s not hard to do. There was actually a brief articulating that argument in Glucksberg itself. There is a Colorado case, in which somebody raised this argument, was rejected on Employment Division v. Smith grounds. Imagine a doctor who says, “I read the parable of the Good Samaritan as requiring me to help people who ask to die as well as people who want to live. But as that too is part of God’s plan.”
So imagine somebody like that under Smith. It’s very easy to see how the Court would resolve that question. The Court in Smith specifically rejected a ruling in which judges weigh the social importance of all laws against the centrality of all religious beliefs, much like in Glucksberg. So if you recast a substantive due process claim as a free exercise claim—honestly, sincerely, not just as making stuff up—there really is a religious objection there as there is to many people about the most important things in their lives that have religious views. You get the same result under Smith.
But what happens under Sherbert/Yoder? Or the Sherbert/Yoder rule, which is to say the rule of strict scrutiny of religious exemption requests. First question is whether there’s substantial burden on religious beliefs. But, again, in our hypothetical—which I think is a quite a plausible hypothetical—the doctor says, “You are making me violate my sense of my religious duty to my fellow man by stopping me from helping him in doing something that is obviously very important to him.” So there is substantial burden.
Now, you must determine if the ban is narrowly tailored to compelling government interest, which means you’re back in exactly the same territory that the Court avoided in Washington v. Glucksberg. So, to the extent that there is wisdom to the Court’s judgment that it’s bad to have to weigh in these kinds of cases the roads of strengths of various interests, that’s something that is lost if you return to the Sherbert/Yoder regime.
And, of course, assisted suicide is just one of many examples. One example that people have talked about for quite a while is imagine abortion rights, imagine the Court says, “We don’t see right to abortion in the Constitution. We return it to state-by-state judgment.” But somebody says, “I feel a religious obligation to get a doctor, let’s say, who is barred from performing abortions. In many states, the woman is not criminally punished, but the doctor would be.
If the doctor says, “I feel a religious obligation to try to help a patient who has perhaps prayed and gotten an answer that this is not the right time for her to be pregnant. I feel a religious obligation to help her. I too have prayed, and that is what I feel God tells me,” then in that case, they would be back to the same strict scrutiny analysis, that the Court, by hypothesis, might have rejected in rejecting Roe and in rejecting Casey if again that’s the way the Court ends up deciding things.
Now, of course, I don’t know which way the Court will go in abortion rights. But, again, the point is that under the Sherbert/Yoder regime, a judgment about whether something is protected under a substantive due process only affects that claim for secular people because after all, for religious people, if they really have a religious obligation to do something, then they’re back in under the Free Exercise Clause, even if they don’t get the claim under substantive due process.
And the same thing applies to a wide range of other context as well. Bans on prostitution. Bans on various kinds of discrimination, not just in cases like Fulton where that’s not completely clear that the discrimination is even banned by general and applicable law but in situations where the antidiscrimination rule is really quite explicit. Bans on payment of sub-minimum wages.
There was already a case on the Tony and Susan Alamo Foundation in the Sherbert/Yoder era. That case was dismissed on technical grounds, really, or having to do with a particular limitations of those religious claims, but it might be back under revival of Sherbert/Yoder. So that’s the downside.
Now, maybe, you might say, “Well, that’s what the Free Exercise Clause demands,” and, yes, that means that there may well be a constitutional right for assisted suicide, at least, for religious people. And there may be a constitutional right to abortion even entirely apart from the Roe and Casey situation, and then, maybe, a constitutional right to exemption from various kinds of economic regulations, but that would be the consequence. It would be sort of a revival – a revival of Sherbert/Yoder would be a revival of aggressive substantive due process protection in a vast range of areas, again, at least so long as the claim is religious.
Now, I want to finish up by briefly talking about a second twist that sometimes arises. Certainly, it has arisen in the briefing of the Fulton case having to do with laws having secular exemptions. So the short version of the argument is people say “Well, we’ll stick with Employment Division v. Smith for laws that are really generally applicable in this instance. They apply to everyone without any secular exemptions.”
Now, once the government makes a value judgment in favor of secular motivations, by carving out an exemption, then any claim for religious motivations must satisfy heightened scrutiny. And that’s a plausible argument, in part, because it was made by then Judge Alito on the Third Circuit. So, at least, one justice seems to believe in that and maybe others as well—or, at least, believed in it at the time they made those changes. So the argument would be “Look, if you have a really blanket law, then no exemption. But if there are secular exemptions, like in that case, for medical exemptions for a no-beards policy, there should be religious exemptions too.
I think the better view is the one the Court articulated in Lukumi Babalu, that all laws are selective to some extent, and legislatures are barred only from judgements that governmental interests they seek to advance are worthy of being pursued only against conduct with a religious motivation. So if the government really does target only religious conduct, or it’s clear that it’s attempting to go after religious conduct. Well, that’s unconstitutional, but not just because there are secular exemptions.
For instance, consider the Copyright Act. Operative Section 106, followed by 16 sections from 107, I believe, to 122 of exemptions, and that’s just the tip of the iceberg. Each one has many sub-exemptions. What about the duty to testify? Look at all the exemptions of the various kinds of privileges. What about breach of contract law? What about Title VII?
Now, of course, some of them actually had some religious exemptions like the clergy-penitent privilege. But those are pretty narrow. If indeed the presence of secular exemptions requires strict scrutiny for any religious exemption claim, then that’d have to be applied to all these laws and a vast range of others because very few laws totally lack all exemptions.
So those are the practical consequences of adopting either Sherbert/Yoder generally or as to secular exemptions. Maybe, they’re worthwhile. Maybe, they’re net positive, but that’s what I wanted to flag as the issue that the Court is going to have to face.
Hon. Neomi Rao: Thanks, Eugene. Now, we’ll hear from Lori Windham.
Lori Windham: Good morning and thank you so much for hosting this panel and for inviting me to join. I’m going to start by doing something which is pretty risky which is to disagree with two men I greatly respect, Professor Bradley and Professor Volokh. I think Smith has failed as a standard, and I think that an exemption standard is the better rule. I also want to speak from a practical litigator’s perspective here, observing what we have seen over the last few years developing in the courts.
And I want to highlight two things. The first is an unintended consequence of Smith, and the second is an experiment. So the unintended consequence is shown pretty clearly in the Fulton case. This is a case where Philadelphia has really struggled to identify a neutral generally applicable law that actually applied to Catholic Social Services. And it has used that to exclude the Catholic Church for foster care in Philadelphia because of its religious beliefs about marriage.
I cannot imagine that the Court that decided Smith thought that this was going to be the result. But the lower courts in Fulton have said, again and again, that they think these policies, six of them, are neutral and generally applicable and that Sharonell Fulton, a foster mom, and Catholic Social Services lose under Smith. I think what this shows us is that Smith has really put a heavy thumb on the scale in favor of government officials. I don’t think that the way that Smith has been applied in the courts below is really in keeping with the way the Supreme Court has envisioned it and treated it.
And I think the best analogue here is probably Lemon v. Kurtzman. You look at Lemon and you see in the lower courts that that case held a lot of sway for a long time. I think now they’re finally starting to back away from it a bit. But here you go, it’s a three-part test. We know how to do this. We’re going to apply it, and lower courts continue to do that even as the Supreme Court had steadily moved away from Lemon and its jurisprudence.
And I think we’ve seen something similar with Smith. If you look at the free exercise cases since Smith, the Supreme Court has consistently declined to apply Smith or to find that its standard was satisfied. And even though the Supreme Court has really, I would say, limited and restricted where Smith applies, we’ve seen in the lower courts, and Fulton here as exhibit A, that lower courts tend to say, “Oh, Smith is the rule. We have to apply Smith. We have to look at this analysis because it creates a familiar test.”
And so the appeal of Smith was you have this bright-line rule. You have this test. We know how to apply it, and this is what’s going to happen. And, unfortunately, what has happened in practice is that it has not been a bright-line rule. It has been a complex and confusing standard that the courts haven’t really known what to do with.
And so, as Professor Volokh alluded to, you have this confusion over, when is a law generally applicable? Is it enough to show that you have system of individualized exemptions like you had in Sherbert, or do you need to also show there’s some kind of discrimination and how that system is applied? Or is it enough to show that there are some secular exemptions to the law, or do you need to show that it’s really targeted at one particular religious belief or religious claimant? Is it enough to show that the law was crafted and created in response to religious exercise, like some of Philadelphia’s policies had been here, or do you need to show more than that? Do you actually need to go beyond that and show proof of animus?
And now we have a circuit split over exactly those issues, and that, to me, really sums up the unintended consequence of Smith. Instead of clarity, you have confusion. And what has happened is that a lot of courts—especially, if you look at the Lukumi decision and the really egregious discrimination there—have treated Smith as purely a discrimination standard. It’s not about whether a law is neutral and generally applicable. It’s about whether it is targeted at you. And I think the daylight between those two things is actually pretty significant.
And so the direction that these free exercise cases have gone—which I don’t think the Smith Court could’ve foreseen—is that it has created an incentive to look at the lawmakers hard of hards and whether they’re trying to target religious people. And so you have this rummaging through the legislative history and the rules that -- the justifications for the rules that are being applied instead of actually looking at the law on its face and making an objective determination about whether it fits within the Smith rubric. I don’t think that’s something the Court foresaw in Smith, and yet it has been how a lot of these cases have ended up turning out below.
And so what promised to be simple has proven to be complex, and I think that that is a key point here. As Professor Bradley acknowledged, Smith wasn’t premised on originalist evidence. There have been attempts since then to close that gap. But, really, Smith was premised on a prediction about what was going to happen with free exercise law, that it would be courting anarchy if you had these exemptions, and that was the central premise of Smith, which is what brings me to the experiment.
We’ve had 30 years now, since Smith, to run that experiment, and it turns out that Smith was wrong. Our states are the laboratories of democracy, and they’ve been running this experiment for us. About half the states have either Religious Freedom Restoration acts that impose an exemption standard rather than a Smith standard or they have interpreted their own state constitutions in a way that is more friendly toward religious exemptions, more protective of religious exercise than what you had in Smith.
And what we found is that if you look at some of the scholarly research on this—like what Professor Lund has done—that, actually, it’s a relatively small number of cases that have been decided, and the states have generally been pretty happy with their ability to legislate and regulate even under these symptoms, even under these circumstances. And we actually had a number of states come in the Fulton case and support our side, and say, “Yeah, get rid of Smith. We want a better standard. This standard has actually worked for us.”
And we’ve seen a similar dynamic at the federal level. Of course, the federal government came in and passed RFRA with an overwhelming bipartisan majority—if anyone can remember the days when we did such things—and it originally applied everywhere. And, of course, in Boerne, we all know the Supreme Court cut that back. But, since, it has applied to all federal law and applications of that law.
And, yet, tests and research on this, like that done by my colleague Luke Goodridge, who’s shown that still RFRA cases are a pretty small part of the federal case load, and the same is true for cases under RLUIPA, which applies at both the federal and state levels to land-use issues and to prisoner cases. And so what we have seen, over 30 years of history, is that this exemption model actually works very well and has proven to be a manageable system.
And I think that’s true for a couple of reasons. One is that you do have, in many cases, a burden standard, so it’s not just “I’m a religious person, and I have this policy preference.” It is “You are actually burdening me. You’re actually forcing me to do something that my religion forbids or prohibiting me from doing something that my religion requires.” And so I think that that really narrows the class of cases that you see. And when it comes to the compelling interest analysis, what we have seen is that courts have been able to apply that test very well and to figure out when it is that an exemption is really compelled.
And I think one final note on this. I said the word exemptions a lot. We are talking about exemptions. You can still have a policy. You can still have a rule. You can still have a law, and you can still apply it in the vast majority of circumstances. We’re talking about that much narrower class of circumstances where it really does restrict or prohibit someone’s religious exercise. And, in those cases, courts have been able to strike sensible balances and determine where that is warranted. And so my thesis here is that Smith is an experiment. We have now run that experiment for 30 years, and Smith has failed. And so I’m happy to turn it back over to Judge Rao and look forward to some more discussion.
Hon. Neomi Rao: All right. Thank you. Thanks to all of our panelists. For those of you who are watching, feel free to raise your hand if you’d like to ask a question, but, otherwise, I’m going to kick it off with a question to our panelists.
So Professor Barclay mentioned that there wasn’t really any original understanding of what religious exemptions might look like in a large welfare state, and, in the Becket Funds brief, they talked about the fact that Smith didn’t really contemplate a world in which we had a significant amount of government by regulation. And, certainly, in my previous experience working in the administration, I’ve learned it’s much easier to impose religious burdens through regulation than it is through legislation, and we live in a world which has an ever-expanding administrative state and much less lawmaking.
So I guess I’m wondering—and, maybe, this is, in particular, a question for Professors Bradley and Volokh, but I’d be interested in what all of you think. Does Smith have less purchase in a world in which so many of these rules are really regulatory rules as opposed to laws enacted by the legislature, and what can we take from that?
Prof. Gerard V. Bradley: Well, I’ll go first and give Eugene a little bit more time to think. Now, Judge Rao, I think I appreciate the force of your question. I’m not sure what it means quite to say that Smith doesn’t have as much purchase as it should or as one might wish it did. And I say that especially because Smith really stands for a very limited, or much more limited, judicial intervention in an emerging religious culture, in an administrative state, than a compelling state interest test does.
So what I mean to say is that Smith leaves wide open the capacity of legislatures, administrators, and others to confront conditions that the Founders couldn’t have contemplated. I agree with that. But I haven’t so much heard arguments today that persuade me that handing over, in a wholesale way, the problem of contending with a modern administrative state to judges, which judges have already saddled themselves with a set of value judgments having to do with what are called dignitarian harms and judges who, by and large—and all due respect to you, Judge Rao—have a poor, to very poor, understanding of what religion is.
My judgement is that, on the whole, it’s not a promising prospect to decide to transfer jurisdiction, or conflicts, if you want to call them conflicts, between religious conscience and the administrative state to one of the elected judges. And even many of the cogent are certainly reasonable arguments that both Stephanie Barkley and Lori Windham make about Smith, even if Smith is, in some respects, a failed experiment. It doesn’t follow that the alternative, or the only alternative, is Sherbert. In other words, there’s a non-sequitur there.
I teach Smith every semester, and its meaning at times deludes both me and my students, so I wouldn’t follow with, at least, some of what Lori and Stephanie say. It doesn’t seem to me that that changes the meaning of free exercise, nor does it follow that somehow if Smith does not work well, Sherbert is the alternative. There are many other alternatives.
Prof. Eugene Volokh: I’d like to yield my time, such as it is, just to get to more questions, but I think that Mr. Bradley’s analysis seems quite sensible.
Hon. Neomi Rao: Sure.
Prof. Stephanie Barclay: Professor Philip Hamburger filed a brief in Fulton and has written a law review article about this issue, and I think what he thinks is important, given that Justice Scalia was relying on Professor Hamburger and his City of Boerne concurrence. But what Professor Hamburger has said is that Smith rests on the political logic that religious Americans can protect themselves from oppression under equal laws by engaging in politics.
And this is a Notre Dame Law Review article he’s quoting from in his brief. And he says, “That this expectation that religious Americans can engage with their lawmakers does not reflect the current realities of American lawmaking,” and then he goes on to describe how, as you said, so many of these burdens on religion are coming from unelected bureaucrats, and this profusion of administrative policy creates a profound inequality.
So just to underscore the point that you were raising that whatever Smith’s merits, it seems a particularly poor fit for the reality at the administrative state now, and when it relied on the idea that exemptions would be provided legislatively through democratic engagement, that often doesn’t exist at that administrative level.
Hon. Neomi Rao: Lori, did you have any thoughts about that question?
Lori Windham: No. I’m happy to yield and to move onto the next question.
Hon. Neomi Rao: Sure. I’ll just remind the audience if you have a question, just raise your hand using the chat feature in Zoom. So I guess something that was implicated in some of these remarks is whether it’s possible to understand Smith in a more tightly constrained or narrow way, right, as really focusing to see whether a law is genuinely neutral and genuinely generally applicable.
I think Justice Alito suggested such an approach in his dissenting opinion from the denial of cert in the Stormans’ pharmacy case. He noted that a law that discriminates against religiously motivated conduct is not neutral. And he also argued that if a regulation appears neutral but in fact is—he used the word—gerrymandered, in a way that it discriminates against religiously motivated conduct, then that should receive strict scrutiny.
I guess I’m wondering what your thoughts are, if the Court were to, I guess, read Smith more narrowly, would that satisfy some of these concerns, and I guess would that be a faithful reading of Smith itself?
Prof. Eugene Volokh: So I think the answer is no, and I think, in some respects, it would be worse if the Court goes beyond what it said in Lukumi. So, in Lukumi, basically, you had a law that banned animal sacrifice, but all sorts of killing of animals was allowed for food, for hunting. It was generally allowed, and it looked like all it was going after—and there was evidence from both the legislative history and the practical effect of the law—all it was going after was religious conduct, religiously motivated animal sacrifice that I think is quite clearly this sort of gerrymandered attack on religious practice alone.
But let’s look at the case that Justice Alito wrote about this at the Third Circuit level—the one that I quoted the line from—that had to do with a no-beards policy, which I think applied to a lot of men who like to wear beards—I’m not one, but I’m told that many do—but had an exception for medically required beards. Because as I understand it, some men, mostly black, have a condition. I want to say it’s pseudofolliculitis barbae, which means that if you shave, you end up getting skin infections and ingrown hairs.
So there is an exemption for that, and the Court said, “Aha, because of that exemption, there also needs to be an exemption for people who have a religious application to wear beards.” Well, that certainly wasn’t a rule that was targeted at orthodox Jews, and Sikhs, and, say, Muslims—the groups that most commonly require beards, maybe, some eastern orthodox. I’m not sure.
But, in any event, that clearly wasn’t so. There wasn’t gerrymandering in the sense of deliberate target. Now, it’s true that a secular reason for action, medical concerns, was -- or, essentially, the reason was avoiding medical problems was treated more favorably than religious reasons and all sorts of other reasons. But, again, that’s true in a wide range of other laws.
So the problem is either that’s going to be a way of essentially saying, “Oh, we’re preserving Smith,” but not really—we’re not at all preserving Smith—or given that almost all laws have some sort of exemptions, even homicide law has exemptions, right, for self defense and a few other situations.
So then there’d have to be judges deciding “Well, this law is general enough, but this law isn’t general enough,” not just that it’s the question of whether it is targeted only at religion but whether it’s targeted mostly, partly, enough in religion, that will end up being this mushy standard that will allow judges to essentially trigger strict scrutiny as to laws that they don’t much care for and not do that just to laws that they like by using this very indefinite standard of whether there are enough exemptions.
So given the choice between that and Sherbert and Yoder, I would prefer Sherbert and Yoder because, at the very least, there would be a pretty clear strict scrutiny standard. But, again, if we do that, then there really would be calls for exemptions from all these laws. And here’s one extra twist: one defense of the Sherbert/Yoder regime, as well, the government can still win under strict scrutiny and often does win under strict scrutiny.
But if you really are attentive to the exemptions, then a common argument—and which, of course, is commonly raised when strict scrutiny claims are litigated here—is the law is underinclusive. Look at all these exemptions. The very fact of these secular exemptions shows that the law is not narrowly tailored because it’s underinclusive. It’s a very familiar argument from equal protection context, from speech restrictions cases, like Florida Star v. B.J.F, and the like.
So the consequence may be that we would have really aggressive strict scrutiny standard with a lot of teeth to it, and the result will be all of these exemptions, again, for religious objectors, not for their secular, conscientious objector analogues. And I think that the Court ought to resist that, and I think if confronted with some of these examples, like the assisted suicide context, and such, I think the justices probably would resist it.
Hon. Neomi Rao: Thank you. Does anyone else have any thoughts?
Lori Windham: Sure. I’m happy to jump in there. I think this is a great argument for something that looks more like a RFRA standard than a Smith standard, but I would say that I think what’s important here is when you’re looking at what these exemptions are, that you’re looking to “Is the government now getting in the business of making value judgments?” And this is the language that Smith uses.
When it’s talking about individual law as exemptions, it’s talking about whether a law is directed at religious exercise or whether there’s a system of individualized assessments. And I think those are two separate flaws that might lead you to strict scrutiny, but I think they both get to the same issue, which is the government has decided, “Okay, we don’t actually have to apply this law across the board. We’re going to apply it sometimes, and we’re not going to apply it other times, and we are in the business of making these value judgements about when the law is important enough to enforce, and when it isn’t, and when the government does that and decides that other things are more important than a fundamentally protected First Amendment right.”
And I think the right answer is to put the government to its proofs, and to say, “Okay. you did make a distinction here. Is that distinction justified?” I do agree that in Lukumi—in a case like that, where Hialeah’s laws were just completely a mess, and it was okay to have hunting, and fishing, and euthanasia, and all these other exemptions but not an exemption for a century of sacrifice—that there was no way they passed the compelling interests test.
But there are other cases where the government may have a very good reason for saying, “No, this is why we have to allow this exemption but not this one.” The question is can you put them to the test? And I think the right answer is to go ahead and do that and to make sure that when you do have a fundamental right at stake, that that is going to be protected.
And I do think the question in those kinds of exemption cases is: is it actually an exemption? We’ve heard criminal law and other hypotheticals. I think it’s a different question when somebody’s just missing an element of the offense as opposed to when you’re really saying, “Okay, we have an individualized exemption system set up for murders. If you want to commit a murder, come to us and we’ll tell you if you get an exemption or not.”
It’s a laughable construct, and yet that’s exactly the kind of exemption system that we see with regard in many cases to administrative law and other kinds of systems where the government really is making subjective determinations.
Prof. Eugene Volokh: Can I just chime in for just a moment—
Hon. Neomi Rao: Yeah. Okay. And then we’re going to move to audience.
Prof. Eugene Volokh: —because I think that’s such an excellent example. There is an individualized exemption system with regard to murder, and that’s the law of manslaughter, that some kinds of provocations downgrade murder to manslaughter. They don’t make it a non-crime, but they do dramatically affect both the level of punishment and the name, the label, that’s used for the crime. It makes a different crime—manslaughter.
Now, a few states have basically very hard and fast rules that certain kinds of provocations count and certain don’t. Although, those are the results of value judgement by judges, but some of them just generally ask, as a matter of law, whether something counts as a reasonable provocation and allows judges to come up with new categories.
So my question, then, would be, does it follow that the Free Exercise Clause requires judges to treat religious reasons for killing as positively as the favored secular reasons? So a classic example is somebody is entitled—not entitled to kill, obviously, but somebody’s entitled to a diminution from murder to manslaughter if the person is enraged by seeing their spouse having sex with another person. Does it follow that there needs to be equal treatment for somebody who’s enraged by seeing somebody blaspheme against God?
Another example is necessity. Now, in many states, perhaps in most states, necessity is not a defense to the charge of homicide, but it is a defense to various other charges, like you could -- there’s a necessity defense to trespass, that if somebody trespasses on my property, but there’s a reason, like, for example, they’re trying to rescue an animal that has wandered over onto my property.
Then, in that case, there’s case-by-case decision making. Does it follow that when somebody is trespassing on my property, because they believe there is some visitation say of the Virgin Mary on my property and they feel an obligation—assume they sincerely say they feel an obligation to go and make pilgrimage there—that they are entitled to the same treatment under this case-by-case decision making through the necessity defense.
I’m inclined to say that they shouldn’t deny their situation and that the law can quite reasonably say, “Judges will develop limited set of secular exemptions, essentially, under this general rule of provocation of necessity, and we need not treat religious reasons for violating the law, whether it’s against homicide or against trespassing.”
Hon. Neomi Rao: And I think Stephanie has a brief response to this question as well, and then we’ll go to the audience questions. Thanks.
Prof. Stephanie Barclay: Just one brief response to what you’re talking about, Eugene, this question of “How do we compare the different types of exemptions and should the religious one be treated the same as the secular one?” I think you’re highlighting why that type of analysis is ill-suited to a preliminary stat of just deciding whether a law is generally applicable or not.
Because, in order to really understand the answer to that question, we have to have criteria by which we’re measuring the similarity of those types of exemptions, which is what the government interest is, and, frankly, often, we’ll need some sort of an evidentiary showing of the extent to which a secular versus a religious exemption is undermining the government interest.
Strict scrutiny is suited quite well to that question where you force the government to identify its criteria, its government interest, and then the burden is on the government in an evidentiary way to demonstrate whether or not a religious exemption might undermine its interests more than a secular exemption.
But there’s nothing comparable to that in any sort of predictable evidentiary way at the preliminary general applicability stat. There’s nothing facially obvious from a statute that would answer that question, which is why I think that the problem Justice Scalia, I think, was understandably trying to avoid has just been made more confusing by trying to truncate that analysis into a space where we don’t actually have the tools to get at the right answers.
I think RFRA, on the other hand, which does provide a way of getting at those answers, avoids some of the concerns that Justice Scalia had about balancing the centrality of religion to the importance of the government interest. We don’t do that sort of balancing under RFRA. We just ask, “Has the religion, at least, been burdened, and then we ask if the government has identified an interest, that it’s actually advancing.”
Hon. Neomi Rao: Thanks. Okay. I’m going to move now to the audience questions. We have about 15 minutes left of the panel, so I’d appreciate if the speakers could keep their questions brief. So I’d like to recognize Michael Rosman. If you could just unmute yourself, and identify your affiliation, and ask your question. Thank you.
Michael Rosman: Michael Rosman. I’m with the Center for Individual Rights. I have a question for Eugene. Miss Windham, Eugene, pointed out that we’re living in a country that has many Sherbert Verner jurisdictions. I assume some of them prohibit assisted suicide, and some of them prohibit, say, late term abortions. Have there been any challenges of the kind you identified in your presentation? And if there haven’t been any such challenges, could you take a guess as to why not?
Prof. Eugene Volokh: Sure. So I’m very glad you asked this question. Because for a long time, I was pretty much the only academic who on one hand thought Employment Division v. Smith was largely right, but, on the other hand, thought that RFRAs, state-by-state RFRAs, and the federal one as to federal laws, were also a good idea.
So one thing that I like about religious exemption regimes that are done on a state-by-state level is that the courts don’t get the final say there. They get a say, which is actually quite sensible. If you look at this balancing of interests, that’s something the courts have historically done in developing the common law of tort, of property, even of crimes, but that’s always been subject to legislative modification.
So a legislature could, if it finds it doesn’t like a court’s decision as to carving out an exemption, it could say, “Well, we’re going to revise that. Not in that particular judgment, but going forward, we’re going to exempt this law from RFRA.”
So to turn to your question, that as to assisted suicide, such a claim was made. It was made in Colorado, which is a state that doesn’t have a state RFRA, and its state Constitution has not been interpreted to follow Sherbert and Yoder. So the claim was made and was rejected under Smith.
I do not know whether it’s been made under RFRAs in other states. I think part of the reason is that with a lot of these things, I think, these are creative arguments that a lot of lawyers don’t really raise. A typical lawyer in a state like Texas—let’s say, to give an example of a state that has a RFRA—may not really be thinking in those terms, and especially they’ve seen a decision called Sanderson from Colorado.
The one-line summary is “no, religious exemptions from assisted suicide laws may not really think about how the Texas RFRA might play out.” What I think often what happens is there something of a snowball effect, that you start out with relatively few claims under some rule because people don’t really know about it. It takes lawyers to know this. And then, as people learn about it and as religious rights litigation groups become more common—like Becket, which I very much admire, but also the various state levels—then you get more and more of these kinds of claims.
So, for example, for a while, one might’ve thought that there wouldn’t be much by way of religious exemption claims from antidiscrimination laws, especially, when they were roundly rejected with regard to employment discrimination in the 1970s. But then around the late 1990s, you began to see a lot of them as to housing discrimination laws and marital status discrimination, even though marital status discrimination bans had been around for some time then.
As to abortion, there’s no need for a religious exemption claim because Roe, as modified by Casey, is still the law of the land. I was raising a hypothetical example about what would happen if Roe and Casey were reversed on the grounds that the Constitution says nothing about abortion, would somebody then say, “Well, the Constitution does say religious exemptions” in assuming you’re back to the Sherbert/Yoder regime. And there I’m quite positive there would be these kinds of claims because that was an argument that was already made around the time that the original RFRA was enacted in early of 1990s, that it’s well known in the abortion-rights space, that this is a possible potential argument. It’s just there’s no occasion for raising it yet. So that would be my reaction.
Hon. Neomi Rao: Thank you. Okay. Next, we will go to James Odom (sp). If you could just unmute yourself, please. James Odom. Okay. How about Sean Ross, if you could unmute yourself?
Sean Kellhan (sp): Hi. This is Sean Kellhan. Yeah, so is there a way to bring back religious accommodations under the Free Exercise Clause without overruling any currently worse case, which might be a prospect Chief Justice Roberts would warm to. Something Professor Barkley mentioned. She used the term actually advance -- I use the term directly advance.
And so the nub of the question is, Yoder, doesn’t Yoder survive Smith through Lukumi for this reason. And when you look on Lukumi, we talk about it as a targeting case. When you look under the hood of Lukumi, as you’ve discussed, it really gets to the targeting conclusion through various means ends looks at the law and the statements, the legislative statements, in Lukumi were kind of ancillary.
So if you do that, and you look for accommodations that you can provide that do not interrupt a challenged law from directly meaning -- if taking away the accommodation does not directly advance the state interest, doesn’t that draw a line through? And then granting the accommodation in that case, doesn’t that draw a line from Yoder through Lukumi without overruling Smith?
Hon. Neomi Rao: Lori, do you want to take this one?
Prof. Stephanie Barclay: I can take this one if no one else wants.
Hon. Neomi Rao: Yeah. Sure.
Prof. Stephanie Barclay: Okay. I think that there are ways to interpret Smith that would really narrow its application. You mentioned an interesting one, if we expanded the notion of Lukumi as focusing on whether or not the government’s actually advancing its interest or not.
Another one that I think is interesting, which is relevant to the Fulton case, is that Smith itself relies on the idea that there are going to be laws that are incidentally burdening religious exercise. And, for a law to knowingly burden religious exercise, that’s not the same as targeting, or discriminating, or having animus against religious people. That’s just being on notice that you’re burdening religious exercise and doing it anyway, which the City of Philadelphia definitely is every year when they renew this contract now. They have an opportunity to accommodate religious exercise at the Catholic foster agency, and they choose not to.
And one reason that knowingly burdening religious exercise or knowingly excluding them from government programs is concerning, potentially, as it raises the same sorts of concerns that we have about things like standard licensing in the speech context. When the government has all of the discretion, this is a constitutionally suspect system because it could so easily be abused.
And this goes to a point Judge Rao made earlier, most of the religious exemption and conflicts aren’t coming up with a law that was passed 10 years ago, and the legislatures just weren’t thinking about religion, and now we have this burden coming up there. These conflicts are coming up in context, like this one in Philadelphia with government bureaucrats working on the government contracts.
But also in other administrative context, where the officials are on notice, and through the administrative process could easily, sometimes with the flick of a pen, accommodate religious exercise. And so it’s also plausible that you could imagine a world in which Smith, just by its own logic, doesn’t apply to those sorts of context, and that would be a way of not overruling Smith but cabining Smith to the reasoning that underlied its holding.
Prof. Eugene Volokh: Can I ask a very quick question as a follow up? So, in Smith itself, the state of Oregon was well aware by the time the case reached the Supreme Court, obviously, that the law, the ban on peyote, affected a certain American Indian religious groups.
Now, it may be that at the time that the legislature enacted it, they were unaware of that. Although perhaps they were aware of it. The use of peyote, I think, had been around for quite a while. And American drug laws don’t date back to, say, the Framing or the time that Oregon joined the union. But let’s assume they didn’t know it, but now they know. Now, they know, and, maybe, they’ve amended the law since then, so they’ve touched it since they’ve known this. So how would that affect things under your reasoning?
Prof. Stephanie Barclay: So let’s bracket, for a moment, that Smith itself had this system of individualized exemptions when we’re dealing with employment law, which I think made Smith a poor vehicle to try and distinguish from a case like Sherbert. Let’s bracket that for a moment and just look at the criminal law.
I think that it is a fair point to think about laws that have been passed legislatively. It is more difficult and cumbersome for those to be amended, and so the reasoning, as far as government needs to be able to pass legislative laws and move forward and do its work, has more weight there.
I don’t think it’s fully persuasive, but it certainly has more weight in that context than where through the administrative process, policies can be amended much more easily, especially, if we’re not even talking about a notice-and-comment regulation—something like a contract requires no burdensome process to add an amendment to.
So I just think the ease with which government officials can either accommodate—or the negative flipside of that coin is exclude religious groups from public society and from different programs—makes it more suspect if we’re giving those government officials a lot of discretion and the ability under the flimsiest of excuses to burden religious exercise.
Hon. Neomi Rao: Yeah. It is an interesting feature of the administrative process that it is easier to grant exemptions just as it is, as you said, easier to burden religious exercise. And the Supreme Court has upheld those exemptions, right? —the religious and moral exemption regulation that was upheld in the Little Sisters of the Poor just this past term, which was upheld by seven votes on the Supreme Court. So that could’ve been an option as well. Okay. next, we will go to a question from Christopher Mellie if you could unmute yourself and ask your question, please.
Christopher Mellie (sp): Yes. Thank you. I don’t know if Professor Bradley dropped off. I was going to ask him to expand on his comment that if the Court wanted to overrule Smith, it would want to wait for a less provocative case, but if he did in fact drop off -- I just wanted to expand at it. I know not everybody here would like the Court to overrule Smith, but could you envision a better vehicle in which the Court might have a stronger argument or tend to overrule Smith. Is there a current case percolating right now or something that you envision causing that? Thank you.
Hon. Neomi Rao: So, yes, Professor Bradley did drop off, so do any of the other panelists want to respond to that question? No?
Prof. Stephanie Barclay: Eugene, do you want to go?
Prof. Eugene Volokh: No. No, I don’t know what cases are in the pipeline, but I can certainly see that this case has all sorts of other -- among other things, arguments for why this particular law should be not so much struck down, but an exemption should be granted that don’t require overruling of Smith, and my guess is that the justices would rather go with that than with full on overruling.
Yeah. I think we got an email from Professor Bradley. He was having technicalities, and he couldn’t reconnect.
Hon. Neomi Rao: Yeah. Go ahead.
Prof. Stephanie Barclay: You could imagine that the Court might want to take up the Smith question in a vehicle where they’re not having to deal with some of the contracting issues. That might be one reason why. There are cases in the pipeline right now where secular exemptions or some of the targeting might be less part of the facts. And I think Becket has a petition, the Ricks case, for the Supreme Court as maybe -- directly queued up before it whether or not to overrule Smith. It doesn’t have as many easy-outs, sort of speak. But there are other options that might be on the Court’s radar. Whether or not they prefer those to this one, I can’t really speak to that.
Hon. Neomi Rao: And I think we have time for probably one more question. We’ll go to Maritza Bolano, if you could unmute yourself. I think you’re still muted. Yes, please go ahead with your question. Okay. We’ll go to Walter Webber, if you could unmute yourself. Okay. We will go to Nick Venable (sp), if you could please unmute yourself.
Nick Venable: Yes. Can you hear me?
Hon. Neomi Rao: Yes. Thank you.
Nick Venable: Great. I was just wondering, in the oral arguments for Fulton, it seemed like several of the justices were interested in recognizing a compelling state interest in eradicating discrimination against same-sex marriage. I’m wondering what -- would religious accommodation would be possible at all if they did that, for religious liberty, in that scenario?
Lori Windham: So I’m happy to speak to that. We’ve seen, now, three instances where the Court has recognized the sensitivities inherent in the marriage context. They noted that in Obergefell saying there were decent and honorable religious and philosophical beliefs on the other side.
We saw it again in Masterpiece where they acknowledged that if, say, a member of the clergy weren’t able to solemnize a same-sex marriage, that was a kind of religious exercise that gay persons could accept without diminishment to their own dignity and worth, and we saw the language in Bostock just last term about the free exercise being at the heart of our pluralistic society.
And so I think that that shows the Court has been very much aware of the need here to not extinguish a particular side of religious beliefs or not exclude those from the public square who have those beliefs. And I’d also point back to cases like Hurley. Hurley was a nondiscrimination ordinance public accommodations ordinance, and yet the Court recognized in that case that the existence of that did not overcome freedom of expression and association.
So I think that that shows that courts have been able to strike these balances and to look to how the test is applied to the person and to the particular religious exercise at issue in that case rather than just saying, “No, this is all the time and forever excluded.”
Prof. Eugene Volokh: So this is—
Prof. Stephanie Barclay: Just [CROSSTALK]—go ahead, Eugene, you go first. I’ll go after.
Prof. Eugene Volokh: Sorry. I just wanted to say this issue has come up in the free speech context in Hurley and in Dale, the Boy Scouts’ case which involved expressive association. And the Court basically fudged the strict scrutiny and analysis. I’d say it applied maybe more than strict scrutiny. But, basically, it said, “Look, we understand the state claims a compelling interest in preventing sexual orientation discrimination. It’s not enough to overcome the free speech rights here.” But note the importance of Hurley, of the free speech context in Hurley and Dale, is it narrowed the range in which there would be an exemption from antidiscrimination laws to basically expressive association or parade—organizing your own speech product.
Likewise, one possible argument, that I actually endorse, in front of the wedding service provider cases—although not in Masterpiece, which involved bakers, as to say photographers, and such, should be a right to freedom from compelled speech, and that there should be an exemption from generally applicable laws indeed there.
But, again, note the narrowness of that that’s limited to the free speech context. It seems to me, if you accept this kind of exemption in Fulton, I think that would apply to a wide range of public accommodations to be sure—it’s not exactly a public accommodation in Fulton, but it’s close enough, I think, in many ways—wide range of government contractors because I don’t think there is as easy a way of cabining that as there is when you’re talking about specific targeted individual rights like free speech.
You’re talking about a claim of exemption from generally applicable laws you could apply to a vast range, or in this case of antidiscrimination laws, and it becomes quite difficult for the courts then to say, “Well, foster parent placement agencies are on one side of the line versus, let’s say, providers of limos or of hotel space for weddings are on the other side.”
Hon. Neomi Rao: Yeah. We are a little over time, but, Stephanie, if you want 30 seconds, and then we’ll just wrap up.
Prof. Stephanie Barclay: Okay. The 30-second wrap-up is: first, in response to this concern, we often hear about religion not be cabined and speech being cabined. In an article that my friend Mark Ramsey and I wrote in the Boston College Law Review, we surveyed speech versus religious claims, and speech claims are actually a much higher percentage of the federal case load than religious exemption cases are. So I don’t think that that concern about cabining religion is empirically founded.
I guess number two is, I would say, even in the context of race, the very important context for the government might be operating at its zenith when it’s prohibiting race discrimination. In the speech context, sometimes, we have said that First Amendment rights overcome that interest in Virginia v. Black, in Skokie.
And so I think it’s important to remember that when the government has a compelling interest that doesn’t give it a trump card to run roughshod over First Amendment rights, we still have to look at, is the government’s application of that interest, in this particular case, being advanced in an even-handed way, are there less restrictive ways that the government could accomplish its interests? That’s certainly true with religious exercise of that other sort of interest, not touching on race as well.
Hon. Neomi Rao: Okay. Thank you. I want to thank all of our panelists. Professor Bradley joined us back by phone. Thank you all for your great comments and to our audience for their questions and for joining us. I just want to let everyone know that the next convention panel will start at 12:30, and it’s a discussion of the EPA Turns 50: A Debate on Environmental Progress and Regulatory Overreach. So if you could join me in thanking our panelists. Thank you.
Prof. Stephanie Barclay: Thank you, Judge Rao.
Hon. Neomi Rao: Yeah. Thank you.
Prof. Eugene Volokh: Thank you very much.
2020 National Lawyers Convention
|Topics:||Administrative Law & Regulation • Environmental & Energy Law • Separation of Powers • Federalism & Separation of Powers • Environmental Law & Property Rights|
On November 9, 2020, The Federalist Society's Environmental Law & Property Rights Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel was titled "EPA Turns 50: A Debate on Environmental Progress and Regulatory Overreach."
Since 1970, the United States has made significant progress in protecting the nation’s water, cleaning up our air and land, and safeguarding human health. Harmful air emissions have declined almost 80%, while the U.S. economy has grown by 275% over the same timeframe. Drinking water in America is safer and better than ever in most communities. And through EPA programs like Superfund, contaminated lands are being remediated. Though some challenges persist, the U.S. Environmental Protection Agency (EPA) is credited by many as being the primary driver of dramatic environmental progress in the United States over the last half-century. The current EPA Administrator, Andrew Wheeler, recently remarked: “ America is – and will remain— the gold standard for environmental protection.” Nevertheless, EPA has remained at the forefront of public controversy since it was created by executive order by President Nixon in 1970, and it is more true now than ever before. Environmental activists continue to press the agency to regulate further afield of EPA’s statutory mandates while regulated industries perceive systematic regulatory overreach. States, too, have raised concerns about EPA’s adherence to cooperative federalism principles. Some claim EPA has fallen behind on environmental enforcement, while others contend that enforcement declines reflect greater environmental compliance and progress. Marking EPA’s Golden Anniversary, this convention panel will reflect on EPA’s past and present, while also looking ahead to EPA’s future. What can we expect from the EPA over the next 50 years? What role should the agency continue to play in environmental protection and what should be its focus? Are reforms necessary to increase accountability and transparency at EPA? Is EPA ignoring the true costs and benefits of its regulations? Will EPA ever reach an enduring regulatory approach to topics like “Waters of the United States” and climate change? What steps should Congress take to ensure that EPA is right-sized with the resources needed to tackle the environmental challenges of the next 50 years? Should some of EPA’s powers and programs be returned to the States? Moderated by one of the newest judges on the Ninth Circuit, our panel of experts – with current and former EPA leaders from both sides of the aisle – will provide crucial insights into these and other questions.
- Ms. Susan Bodine, Assistant Administrator, Office of Enforcement and Compliance Assurance, United States Environmental Protection Agency
- Mr. Scott Fulton, President, Environmental Law Institute; Former General Counsel, United States
- Environmental Protection Agency
- Hon. F. Henry “Hank” Habicht, Principal, Global Water 2020; Managing Director, United States Water Partnership; Managing Partner, SAIL Capital Partners
- Prof. Lisa Heinzerling, Justice William J. Brennan Jr., Professor of Law, Georgetown University Law Center
- Moderator: Hon. Lawrence VanDyke, United States Court of Appeals, Ninth Circuit
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
Hon. Lawrence VanDyke: Good afternoon, or good morning depending upon what part of the country you’re in. I’m Lawrence VanDyke. I’m privileged to get to moderate today’s panel presented by the Environment and Property Rights Practice Group. Our panel this morning, or this afternoon, is the “EPA Turns 50: A Debate on Environmental Progress and Regulatory Overreach.” I’ve got a fantastic group of panelists that are going to talk to you and talk to each other. We’ll see if we can get some debates, since that’s in the name of our title here.
I’m going to talk a little bit about our four panelists. The first one to speak this morning is Susan Bodine. Susan is the Assistant Administrator at the EPA’s Office of Enforcement and Compliance Assurance. This is her second time that she’s been at the EPA. Before that she was the Assistant Administrator for the Office of Solid Waste and Emergency Response, which is now the Office of Land and Emergency Management. Prior to her current position, she served as the Chief Counsel for the Senate Committee on Environment and Public Works. She previously worked for the House Committee on Transportation and Infrastructure.
Susan’s going to talk to us today about the accomplishments of the EPA and its history and it’s change over time, which I think given the number that she’s been back and forth there, she’s well positioned to talk about. A fun fact about Susan is that she has basically done everything twice in her career. She was in private practice twice, she worked on the Hill twice, and she’s at the EPA twice. She asked us to give her double the time given that for this morning, but we said no. She’s still gotta stick with her time. Susan’s going to go first. Before she starts, I’m going to introduce the rest of the panelists.
Our second panelist this morning, or this afternoon, will be Lisa Heinzerling. Professor Heinzerling is a professor at Georgetown University Law Center, where she specializes in administrative and environmental law. She’s authored several books including Priceless: On Knowing the Price of Everything and the Value of Nothing, which is a critique of the cost benefit analysis in environmental policy. Lisa previously served as Senior Climate Policy Counselor to the Administrator of the EPA and Associate Administrator of EPA’s Office of Policy. She’s going to talk today primarily about climate change, but given that we just had an election, she’s going to talk about how she thinks the new administration could influence EPA’s policy. A fun fact about Lisa is that she loves heist movies, so she asked if she could steal Susan’s time. I told her no; she can’t steal Susan’s time. You see, hopefully, we’ll get a nice debate here going given all the tension we already have.
Our next presenter will be Scott Fulton. Scott is currently the president of the Environmental Law Institute. He’s the former General Counsel at the EPA. Mr. Fulton has served a number of other key leadership roles in both Republican and Democrat administrations including as the acting EPA Deputy Administrator, the head of the EPA’s Office of International Affairs, a judge on the Environmental Fuels Board, and head of the Agency’s Enforcement Program. He also served as Assistant Chief of the Environmental Enforcement Section at U.S. Department of Justice in the Environment and Natural Resources Division.
Scott’s going to talk about—today he’s going to talk about, during his time, the Macbeth Report: Cooperative Federalism and having a more robust federal role in environmental protection. Fun fact about Scott is that he a singer/songwriter and he’s made many albums. He told me that and I thought, “Oh, yeah. Sure.” I looked him up, and it’s actually true. He has. My clerks were forced to listen to me playing Scott’s songs for a while very loud. He’s best known for his acoustic folk compositions. Look up Scott Fulton and his music, but after this panel do that.
Then our last but not least speaker is Henry, who goes by Hank, Habicht. He’s currently the principal at Global Water 2020. His career in the environmental policy world has included leadership positions at the U.S. EPA as the COO. He’s held numerous board seats over the years, including serving as Managing Director of the U.S. Water Partnership, Chairman of the Board of Water Health International, Co-founder of the American Council on Renewal Energy, and a member of the board on the Global Water Challenge. He served as the Commissioner of the National Commission on Energy Policy, and he’s advised several cabinet secretaries.
He’s going to talk about separation of powers at DOJ, EPA, and on congressional issues. And a fun fact, which won’t be too surprising given as much water stuff as he’s worked on is, he’s helping to launch a platform that will help smaller communities fund their water infrastructure.
With that, we’re going to start with Susan. She’s going to speak—each of the panelists are going to speak for seven minutes. Then once they’re done, we’ll have a little bit of back and forth, hopefully get some debate or at least some dialogue. Then we’ll open this up for questions, which I’ll have more on later. Susan, why don’t you kick us off?
Susan Bodine: Thank you, Judge. America’s a much different place and a much cleaner place now than it was in 1970. That’s because of EPA. Our air is breathable. Our water’s drinkable. Waste is managed and cleaned up. As a country, we have accomplished this without stopping economic growth because Congress designed our environmental statutes to allow EPA to set national standards, and then to authorize EPA or authorized states to issue permits that ensure that those standards are met. This approach is market and technology neutral. Our statutes address protection of human health and the environment, not market design or social engineering. When EPA ignores its statutory limitations and its statutory responsibilities, American communities can suffer.
On September 7th of this year Politico reported that Lois Gibbs, who was the original Superfund community activist, said the following about the former EPA administrator, Gina McCarthy, and I quote, “All she cared about was climate. Everything else went to blank in a handbasket, whether it was water or environmental justice.” close quote. In the same article, Lois credited the Trump EPA with decisive action to advance Superfund cleanups that had been languishing and to hold responsible parties accountable.
That’s just one example of how in the past four years EPA has made it a priority to get results for American communities. To do that, we actually had to overcome an enormous backlog of unfinished business. For example, the Superfund process does create a stigma that suppresses property values and investment, but in four years, EPA will have partially or fully delisted at least 82 Superfund sites freeing communities from that stigma.
Four years ago, there was a backlog of 700 Clean Air Act state implementation plans waiting for EPA approval, stalling the environmental work to reduce air pollution, hurting communities. We’ve reduced that backlog to just SIP’s. We’ve nearly eliminated the backlog of EPA inaction on to date lists of impaired waters and acted on more than 7,000 TMDL’s, which are Total Maximum Data Loads, that are plans that are needed to restore polluted waters. In the past four years EPA has helped finance $40 billion in investments for water infrastructure, in large part because in 2017 we stood up the Water Infrastructure Finance and Innovation Act program, which is fantastic tool that Congress authorized in 2014, but had not been used previously.
Last week’s election did not indicate a mandate to radically change the direction of EPA. For example, after former Vice President Biden said during the debates that he wants to transition away from oil, the Pittsburg Gazette endorsed President Trump, the first Republican endorsement since 1972. After the current head of the California Air Resources Board, Mary Nichols, told Inside EPA that she thought a Biden administration should use California fuel policy as a template and Democrat members of Congress introduced legislation to, like California, ban all gasoline vehicles by 2035, the Renewable Fuels Association hit back, Iowa went for President Trump, and Senator Ernst won the election. You can be sure that environmental practitioners here in DC, as well as congressional staff on the oversight committees all kept copies of those remarks because, in terms of authority, only the Renewable Fuels Standard Program, which would become irrelevant, of course, if there’s a switch to no fuel cars, authorizes EPA to give a market share to a particular fuel.
I don’t think the courts are going to allow the next administration to exceed their statutory ability to regulate. I think we can all remember back in 2015 when the former EPA administrator, Gina McCarthy, appeared on the Bill Maher show on the Friday before the Supreme Court ruled on the mercury and air toxics case. She told the public it didn’t matter if the rule was legally valid. Because it was issued three years ago, investments had been made, most facilities were already in compliance, quote, “So we’re still going to get at the toxic pollution from those facilities.” close quote, even if the rule was illegal. A copy of an EPA blog repeating those remarks was in the filings seeking a stay of the Clean Power Plan and for the first time ever, the Supreme Court stayed a rule before the Circuit Court had acted.
EPA can stay within the law and still obtain greenhouse gas reduction. We just announced today, that greenhouse gas emissions from large stationary sources declined by nearly five percent from 2018 to 2019. Under the Affordable Clean Energy rule, by 2030 carbon emissions from the power sector will go down by 34 percent. Since 2017 air pollution in the U.S. has fallen by seven percent. I also don’t think there’s a mandate to weaponize enforcement, to create new laws, and force actions that are not required by regulation. EPA and state enforcement of actual regulatory requirement is critical to protect air, land, and water and to maintain our environmental progress. At the same time enforcement is not a numbers game. The goal is compliance with the law to protect public health and the environment, not a target number of actions or onsite inspections.
I have to say, here in 2020, we have a lot more tools to ensure compliance than ten or even four years ago. EPA can advance compliance while holding violators accountable. In 2018, we reversed the downward trend in new criminal cases that had begun in 2011. By September of this year, the Trump administration had collected more in civil and criminal penalties than in the first term of the last administration, and that’s without including the 2017 Volkswagen cases. In fact, we’re on track to collect more than double by the end of this year.
I hope that the next administration continues to focus on carrying out its statutory responsibilities to protect the land, air, and water where Americans live, work, and play and that that is the vision for EPA in the next 50 years. Now, I would like to turn it over to Professor Heinzerling.
Prof. Lisa Heinzerling: Thanks so much. The title of this panel suggests the possibility that EPA’s first 50 years have been a time of regulatory overreach. The implicit suggestion is that the agency has regularly gone past the limit of its legal authority and has provided too much environmental protection at too great a cost. I disagree with this premise. In fact, as I see it, EPA’s first 50 years have been more marred by the agency’s consistent tendency to underreach than by any tendency to overreach. The agency has underreached both in comparison to its broad statutory powers and in comparison to the scale of our environmental problem. Nowhere is EPA’s undershooting these marks more pronounced and dangerous than in the agency’s response posed by climate change.
Next month we’ll celebrate EPA’s 50th birthday. The Clean Air Act was passed in that same year. For most or all of these years, as the Supreme Court confirmed in Massachusetts v. EPA, EPA has had authority to regulate greenhouse gases as air pollutants under the statute. And as the Court held in Massachusetts v. EPA, EPA’s regulatory authority was so plain on the face of the statute that EPA had no power to claim that it had no power to regulate greenhouse gases.
Moreover, for all of EPA’s 50 years, we’ve had reason to believe, or to suspect, that greenhouse gases emitted through human activity will contribute to global warming. For well over half of those 50 years we’ve had strong scientific evidence and consensus that the process of global warming is underway and that its affects will be dire. One famous and important moment came all the way back in 1988. EPA was only a teenager then when the esteemed NASA scientist, James Hansen, testified in Congress that the greenhouse gas effect has been detected and is changing our climate now. Yet it was another quarter of a century before EPA formally found that greenhouse gases are endangering public health and welfare and before it committed to doing something about it.
Then over several years EPA managed to issue regulations for several categories of greenhouse gas emitting sources. Even in those years EPA did not act on the scale commensurate with the statutory powers and even in those years, EPA did not regulate on a scale commensurate with the environmental threat. Yet even that relatively modest beginning was undone by the current administration which unregulated as fast as humanly possible and went so far as to shun the very phrase “climate change” at some agencies.
The sitting administration has now completed some 125 environmental roll backs with about 40 still in the works. Many of these decisions specifically relate to climate change. Many have gotten into legal trouble. In fact, this administration has had a notably poor record of defending its administrative decisions in the courts. A recent tally reports that in environmental cases, the administration has, despite the leeway given to agencies on legal and factual judgements, lost 37 times and prevailed 17.
We’ve lately seen, in other words, an EPA that has overreached by underreaching. It is even now attempting to make underreaching official agency policy. Two examples; the White House is now reviewing a final EPA rule that would limit the scientific studies the agency may rely upon in making regulatory decisions and significant scientific determinations. Second, the White House is also reviewing a final EPA rule that would require the agency to conduct cost-benefit analyses for significant Clean Air Act rules and then presenting the results of those analyses to highlight the health and welfare benefits that pertain to the specific objective or the provision under which the rule is promulgated. Thus, perhaps, occluding the full range of salutary consequences that come from measures to control pollution.
Thus, with a new presidential transition almost upon us, we face the possibility of a presidential term in which EPA’s chief occupation maybe simply undoing the destructive work done by the outgoing administration. Even merely returning to where we were four years ago, let alone advancing to the level of regulatory ambition we need, could take years. And those are years we don’t have to lose given the short timeframe we have for effective action to guard against the most extreme effects of climate change.
The example of climate change shows the environmental peril we face when we task EPA with doing too much with too few resources and excoriated endlessly for doing what it so plainly is not doing, that is overreaching by overprotecting us from environmental threats.
I fear that in the coming years, in a new administration, we’ll see legal developments that will even more strongly encourage underreaching by this important agency. Even before the arrival of Justice Barrett, five justices on the Supreme Court had already signaled there were ready to begin enforcing the non-delegation principle, or the idea that Congress may not delegate its legislative powers to other entities. These justices signaled that they would revive the non-delegation doctrine where Congress delegates major regulatory choices to executive agencies. In the context of statutory interpretation, most of these justices have already joined decisions indicating that regulatory choices about climate change are major policy choices. Thus, perhaps signaling that they may regard them as major policy decisions subject to the new principles for non-delegation. In his decent in the recent non-delegation case of Gundy v. United States, Justice Gorsuch conspicuously omitted a major Clean Air Act decision, American Trucking Association v. Whitman, from his catalog of prior cases that would easily pass muster under his new test for non-delegation.
For me, then, the major worry isn’t that EPA will do too much when it comes to climate change or environmental problems generally. Doing too much isn’t generally what EPA has done. The worry instead is that it will do too little, or that the courts will force it into that position. I’ll now turn to Mr. Fulton for his remarks.
Scott Fulton: Thank you, Lisa. And good greetings, everyone. It’s really nice for me to be with my fellow panelists. All these folks are folks I’ve had a chance to work with along the way; great minds and thinkers. Just a brief introduction to the Environmental Law Institute for those of you who are unfamiliar with it. This is a 50-year-old organization, by design non-partisan and non-advocacy in nature, focused on building effective governance and rule of law in the environmental space. We’re, among other things, a membership organization with a broad private/public constituency. A couple of years ago we undertook a project on cooperative federalism in memory of a departed colleague, Angus Macbeth. Many of you know him. We did this with the support of the American College of Environmental Lawyers and in cooperation with the Environmental Council of States.
I thought I would use my opening time to talk a bit about the Macbeth project as it may help us in our thinking about options in the divided leadership scenario in Washington that we are anticipating. We began this project by bringing together a group of current and former state and federal environmental officials for a series of Chatham House Rules discussions about the federal/state relationship. A good number of these folks had worn both state and federal hats. This was followed by dialogues with a broader array of stakeholders and some rather extensive surveying. This all culminated in the Macbeth Report, right about two years old now, but in my view still one of the more thoughtful pieces on cooperative environmental federalism that has been rendered. You can find it for free on the ELI website.
The report naturally does a download on the discussion series and the surveying work, but also points in the direction of some possible reframing opportunities. As the report reflects, there was considerable support in the surveyed community, for giving states greater flexibility in running delegated environmental programs. Over 70 percent of those surveyed felt that the federal government should defer where states are in a position to do a better or as good a job. Over 50 percent of respondents felt that EPA intervention in delegated states should be limited to circumstances of clear failure or when a state has devoted inadequate resources to the endeavor. But even enthusiasts for greater state primacy consistently agreed that EPA must continue its leading role in developing national standards and conducting scientific research as states often lack the needed expertise and sometimes the breadth of interest to play these roles.
There was also a strong consensus around a relatively greater federal role in the context of interstate issues and unique federal interests. The report pointed to some places to look for options for adjustment or realignment. Let me just mention a few. First, it recommends rather strongly a return to first principles. If federal presence is premised on the Commerce Clause, let’s look at any additional reframing on this basis. For issues that are inherently interstate in nature, such as the federal interest is particularly robust, it should also, perhaps, be the place for a greater federal role. Conversely, where issues do not have interstate dimensions, perhaps state primacy should be strongest there.
This notion of a diminished federal presence relative to programs that are inherently intrastate in nature, it’s not a small reorientation, as EPA has remained substantially involved in some programs that, at this point in history, are primarily intrastate in character. Examples of these include the Leaking Underground Storage Tank program, waste management regulation under RCRA, or at least the treatment disposal and storage facility regulation, Safe Drinking Water Act implementation and, yes, even Superfund.
Some of this tendency to remain involved in intrastate matters is the function of the once-you-build-it, it-lives-forever phenomenon, but I think perhaps another reason EPA has remained invested in these programs is that they can provide a sense of connection with communities, which the agency has seen as helpful in terms of engendering public support. But the report suggests that federal primacy in the context of intrastate matters is very difficult to square with the principled approach to federalism just as it observes that with respect to interstate matters the imperative for federal involvement is more pronounced.
A key caveat on this interstate/intrastate divide is the lesson from the Flint, Michigan, Lead in Drinking Water Crisis. The issue there, provision of drinking water, can be seen as intrastate in nature. EPA attempted to be deferential, but ultimately was unable to defer in the face of state failure leading to a public health crisis. I think the teaching there is as long as residual federal authority exists, there will likely also be a need for a reserved, meaningful intervention capacity for dealing with such failures. Recognizing the importance of the interstate dimension in defining the federal role, the report recommends that a formal structure be created to give downwind, downstream states a more meaningful voice in regulatory decision making so that self-protective states can serve as a more important check on underperforming states perhaps decreasing the need for federal oversight.
The report also considered the role that evolving monitoring technology and environmental big data will play going forward both as a driver of environmental behaviors and also as part of the accountability system. So for example, the advent of sophisticated fence line monitoring systems would seem to allow for considerably more within the plant flexibility. The more operational flexibility for regulated entities, arguably the fewer friction points between levels of government. Similarly, enhancements in ambient environmental monitoring from space to ground level, promise to shine a much brighter light on problematic environmental conditions and on government failures. Might this allow for some redesign of the checks and balances that have defined cooperative federalism thus far? This gives you a bit of a flavor. There’s considerably more there in the report. Please give it a read. I’ll wrap up my remarks so that we can hear from Hank and move on to the discussion. With that I’m going to pass it on to Hank Habicht.
Hon. F. Henry “Hank” Habicht: Thank you very much, Scott. One of the best decisions I made as a wet-behind-the-ears appointee many years ago was to hire Scott into the Justice Department. That helped us a great deal as we started with this crazy Superfund program.
I’m honored to be on this panel. I had a chance to look at a recent FedSoc analysis of a Federalist Paper No. 1, on the importance of civil discourse, and this is an important time for that. So far, this panel has had some disagreements already, but it’s civil, and I hope to keep it that pattern up.
Just to give you a little context, I’m, I guess the grey beard here, so I’m going to give a little bit of historical context. I’ve been involved in the environmental debate since Ronald Regan was elected president and was involved in that transition. I had the honor to work for both William French Smith and Ed Meese at the Justice Department. I stole a line from Bill Smith that he used to describe the Attorney General, but I said, “Being an environmental appointee in a Republican administration was like being the captain of the javelin team who elected to receive.” One of my early responsibilities was to go to John Dingell and explain to him why one federal executive agency couldn’t go into federal court and sue another federal executive agency citing the Unitary Executive which is now a popular concept. That was a fun hearing.
Anyway, but it was a great experience. In fact, I realized that it’s been 27 years since I ended my tenure at EPA, ended my tenure and it seems much fresher than that. There’s two reasons for that. One is the EPA is populated, as Susan indicated, overall by very highly qualified, competent professionals and we’re dealing then and deal now with issues of important first impression for the country. Second, it’s fresh because some of the biggest issues we dealt with back then are the same issues that exist today. Back in 1990, even then there was a discussion about the imperative for EPA to figure out how to move beyond purely a role of command and control regulation and enforcement because of the complexity of the emerging environmental issues. Well, here we are today and we’re still working on that. What I want to do is just make a few broad observations of some of the threads that have been woven through the last 50 years and still exist today. Then talk about, throw out some ideas about a path forward and then open it up for discussion.
First observation, EPA is the story of an effort by democratic institutions and ultimately we the people, to figure out how to reconcile the risk that emerge from economic and technological growth with other important social values ranging from, obviously, present and future generations’ health, equal justice for all, and property rights — a challenge. Congress’ role had been mixed, but obviously critically important. I think EPA has been given a patchwork, of unconnected environmental laws over the years, multiple oversight committees and limited resources to implement those laws. That’s been a challenge, but in the early days, the gross categories of pollution and the major media were agreed to be significant priorities and EPA and the states, as Susan said, did a brilliant job of really reducing those risks.
I think the question now is, If the laws are not updated -- it’s very hard for Congress, and Congress, I’m sure one of the least like to do, probably to some of them it’s like gettin a root canal, is to actually go back and revisit some of these environmental laws and update them. Assuming the laws are not updated, we do run the risk of inertia taking over a bit at EPA, where a lot of resources are devoted to risks that used to be significant, but are not as significant as they used to be and maybe not have enough resources focused on emerging risks that are important. That’s something that we’ve all dealt with for 25-plus years.
A fourth observation is that science is the centerpiece of decisions to intervene in the marketplace with regard to this reconciliation of progress and protecting other important social values. Science has to be the centerpiece. I’ve always said scientists have to be involved early in the policy development process and defining the issues all the way through the policy development process through the decisions.
Science is not the final decision maker. The decision makers are the Article I and Article II branches of government that have to balance all these social needs and we’ve seen that debate in spades with regard to COVID, but it’s very important. Science is essential, but not the last word. I think Congress has been less than clear in the way they’ve written these laws. They’ve been results of legislative compromise. There’s often vague language. There’s often unrealistic deadlines. That’s something we just have to recognize.
What does this all mean going forward? I think, as I said, science is essential, but science has to be described and communicated in a way that’s accurate and candid because, as we know, with certain environmental risks, we have lots of data and important information. In other areas, we use complex models that have many default assumptions because we don’t have a lot of data. That doesn’t mean we don’t make decisions, but we have to be as candid as possible about how that works, about how that’s communicated.
We tried with the guidance in 1992 on risk characterization to achieve that goal. Two examples, one is lead. Lead was an example of an environmental contaminant where there was amazing agreement. There was a lot of epidemiological data, amazing agreement on the importance of lead as an environmental risk and we aggressively in EPA and society supported going after lead aggressively. I spent a lot of time on the lead and copper drinking water rule which has been in place for a while. It should be updated, but it in fact worked very well until there were people who didn’t implement it properly.
Another example from that time was electromagnetic fields. There was also a lot of interest in regulating electromagnetic fields for example, from this new device, the cell phone back then and was an important issue, but in that case, there was a very early emerging and unclear scientific data and not a legislative authorization to deal with it. Those are two examples of important issues that EPA needed to address, but had, for various reasons, to address in different ways. I think that’s an important part of how we go forward. Now, I think the bottom line is we don’t have the resources or the ability to rewrite all the environmental laws right now, but I do think we have an opportunity when we deal with really important emerging issues, to take fresh approaches with regard to how we deal with that.
Let me just say, the issues of the 21st century, there’s some very major issues. Let me mention two that I think are really important. First is the impact of development on resources which are primarily felt at the local level. As the judge said, my passion is water, so I focus a lot on the impact of development as well as climate change and other things on water resources which is quintessentially a local kind of issue.
There’s a great opportunity for the cooperative federalism Scott talked about. I’ve seen communities and states do amazing work in really mapping out sometimes for the next 100 years or the next 50 years in mapping out water resources and what they see as risks and how they need to deal with it and reconcile that with the economic development priorities they all have. That’s exciting and important. There is a critical role for EPA to play, not only through SRF and other water related programs, but also to design innovative ways to collaborate among all the levels of government.
A second major issue that Lisa talked about is climate change. I happily will not delve into the details of climate change other than to say it’s an issue that we have to address. It’s an issue where the EPA should not shoulder on its own or feel that it needs to shoulder on its own. At EPA, you can talk about legislative authority, but this is an issue that quintessentially Congress has to address. As I was thinking about that it’s not the role of science in all of this, the example of the physician came to mind. If a physician sees hard evidence that someone has stage four cancer, there’s no question that immediate and radical action needs to be taken in the case. If there are evidence of disturbing trends whether it’s with cardiovascular health or cancer, lifestyle changes are indicated. There’s a lot of things that need to be done and monitoring needs to occur, but not necessarily radical action.
I think with environmental issues, hopefully, EPA and the Congress and the democratically elected branches of government can begin to focus on strategies so that it’s not all or nothing, that we have to be able to use science, have dialogue and have all the levels of government really work together on figuring out, “Okay. This is an urgent problem that requires immediate action and let’s get together and get that done.” EPA’s very good at that. Or here’s something that is a significant risk that we need to address through incremental and forward progress, and monitor it and use our enormous abilities to map and track progress and focus on monitoring and then making changes and ramping up strategies as that’s indicated. Easier said than done, but I think EPA’s equipped to do it.
I think this public is a lot more sophisticated on these issues and these issues go fundamentally to how we grow going forward. So going forward, again, I would just say the importance is the focus on science. As I’ve discussed, like the good physician. I would say number two, really focus regionally, much more than we ever have before because the region, the clusters of communities in regional parts of the world and in watersheds and things like that are really going to be the theater in which so much action needs to be taken and where we need to do better.
Third, Congress just needs to step up, needs to step up and address these issues and not complain if they don’t update the laws and they don’t like what EPA does. They need to step up. I think by not taking action, EPA is variously viewed as either being weak or being a rogue fourth branch of government that’s bent on world domination. Obviously, neither is the case. The private and technology sectors finally need to be woven into this strategy, as we all know, because the economic and technological progress that required the formation EPA also has a seat of the solutions to the problems that we have. I’ll stop there. It’s a piece of cake. I really appreciate just being part of this, and I’ll send it back to our moderator, Judge VanDyke.
Hon. Lawrence VanDyke: Thank you, Hank. I really thank you to all of the panelists. What a great group of panelists here. We have so much experience in this area represented. What we’re going to do now is we’re going to go back to the panelists in the same order and, hopefully, as Hank said, it’s been a very civil group and that’s good, but we don’t want to be too civil. We have to have some disagreement. Hopefully, we’ve got a few things we disagree on. We’ll go back through in the order that we’ve already presented. I’ll add one thing that you can discuss. If you can’t find anything to disagree on, feel free to opine on something I care about now, in this role is, what is one specific thing that the courts have done right in this area and what’s one specific thing that the courts have done wrong? I guess if you find plenty to disagree with your colleagues, you don’t have to address that, but if you don’t find something then you have to address that. So Susan, why don’t you kick that off.
Susan Bodine: Thank you, Judge. The courts are right when they hold EPA or any federal agency to its statutory authority. You mentioned from my bio, I’ve worked for both house and senate. I spent nearly 14 years of my career working for Congress drafting legislation. It is, I think, tremendously important to stay within the authorizations because, as Hank pointed out, these are compromises. Every piece of legislation is a compromise and that compromise reflects the balance that has been discussed here today; balance of competing interests. It is important for courts to hold agencies accountable to stay within their authority. I’ll turn it over or turn it back to you, Judge.
Prof. Lisa Heinzerling: -- plain themselves, really making them speak in recent terms, having their reasons make sense and having the reasons they give be the real reasons. I think that that principle of administrative law is fundamental to environmental protection. I think it keeps agencies in line with the evidence in front of them. I think it gives the public a sense about why this agency is working. I think it actually also leads to much greater accountability on the part of the administrative agency. I think the thing the courts get right time and again, is making agencies explain themselves.
I’ll note, I will like this principle in the new administration as well, which will have to take time in order to undo any of the policies they disagree with. That will be a result of having to explain themselves. I actually embrace this principle across administrations. Can I just say a couple of things about the remarks on the panel?
Hon. Lawrence VanDyke: Absolutely. Absolutely.
Prof. Lisa Heinzerling: I actually agreed with a ton of what was said here. I saw one common theme among the other speakers that may not be obvious, but this is what I saw. There’s kind of the idea that in order to do its work, especially everybody agreed that EPA doesn’t have the resources it needs to do all the jobs it’s been assigned. One of the things I think EPA needs to be able to do and do reasonably and consistent with scientific evidence and so forth, is take things off its agenda as well as putting things on the agenda. I took that to be part of your point, Susan, with respect to climate versus other issues and Scott’s point with respect to local versus federal issues and Hank’s point as well about inertia in a way, not just keeping programs because we’ve always had them. I think this is critical. I thought this was when I was at EPA. The way you make room for the really important stuff is not to do some things. I thought that was a great theme in all of this.
The last thing I would simply say is that Hank rightly says that Congress needs to step up. I do agree. I also happen to think that Congress has stepped up time and again. We have very broad statutes, that give a great deal of authority to the agency. Those statutes are still in existence and I would say a common theme with those statutes is, Hank, exactly as you say, which is to pay attention to science, really rely on science as a backbone of the agency, and then to respond to that as new and emerging science indicates that there are threats where we did not see them before. To me, we need to both think what would be good action from Congress at this time on new problems, but also not minimize the extent to which Congress has already made a series of judgement in existing law that can be acted upon right now.
Hon. Lawrence VanDyke: Thank you, Lisa. So Scott, do you have any thoughts?
Scott Fulton: Maybe just a few. On the question of what the courts have gotten right and gotten wrong, I think, actually, I have a fair amount of faith in the judiciary. I think on the whole, more right decisions have been made than wrong decisions. But I will observe, as sort of a stark outlier in that, the Supreme Court’s work in Rapanos decision and the complete confusion that has pervaded around federal jurisdiction under the Clean Water Act and the years since, which has, of course, led to this progression of efforts to deal with that. The Obama administration’s WOTUS rule, which has now been superseded by the Navigable Waters Protection Rule. This is a messy area, and I think it’s been made more messy by the Court’s work on it, unfortunately. I would guess that they would agree with that. If they had another pass at this, they would try to be a little bit clearer about that.
I’ll just say, this maybe a contrarian point on this in terms of the Trump administration’s work, my disappointment with the Navajo Waters Protection rule centers around principally the question of federal leadership and pointing to the problems that we need to be trying to address or not pointing to the problems. We have a big issue in this country with the graded freshwater systems, part of what Hank is working on now. A lot of that degradation now associates not so much with industrial discharges but storm water runoff. A lot of that contribution is from agriculture. We don’t have the regulatory tools to really wrap our arms around that.
We also have this interesting political dynamic that is set up where half of the states in the union—this really needs to be understood—half the states in the union have defined their own jurisdictional reach as co-extensive with federal jurisdiction. If you narrow federal jurisdiction, half the states are not in a position to pick up the slack, so this notion that the states are going to be the backup on all this and that they’re going to be the answer dealing with our freshwater issues in this country is just not sound. My disappointment with that rule kind of connects with that point of departure, if you will.
I am not fatalistic about the role of the Congress in taking on some of the things that we’ve been talking about, although I do think, given the constellation of actors that we’re expecting, that environmental legislation will have to be centrist in nature in order to be able to be workable. There are some things that might be workable. Perhaps there’s something on the climate front, especially if we think about a carbon tax or a simple approach that relies heavily on the market to drive the desired behaviors. Maybe that particularly with some members of Congress who were more favorably disposed towards climate legislation, before they attached their wagon decisively to the White House, might be able to see these issues in a slightly different light. Maybe that’s a place.
RCRA -- I wonder about RCRA and the fact that we have a statute that hasn’t been updated in a long time that it is arguably at tension with circular economy notions and modern notions about sustainability. We need to be moving much more secondary material in the direction of reuse and recycling, and RCRA, just because of its dynamics, commits a large amount of material to a destruction fate. We’re not in the right place on that. It maybe that that a bipartisan solution could be derived in that space. Some other thoughts, but I’ll stop there.
Hon. Lawrence VanDyke: Thank you, Scott. And, Hank, we’re going to turn to you. Scott talked a lot about water which is an area that’s near and dear to your heart. Did he say anything that you disagree with? Do you regret hiring him all those years ago? Or anybody else, do you have any thoughts on what anybody else said?
Scott Fulton: No. I still like to bask in Scott’s reflective glow, so I don’t regret hiring him even though we don’t always necessarily agree. I had two categories of only maybe marginally connected thoughts. One thing that, as I was thinking about these remarks, bringing up an oldie but goodie which is the National Environmental Policy Act. I had thought for some time that even though the National Environmental Policy Act has been the subject of all kinds of crazy litigation regarding federal projects and things like that, that there are fundamental principles in the National Environmental Policy Act that are really valuable in terms of looking at how EPA functions and how we as a society deal with these environmental challenges because it’s fundamentally focused on the record, on disclosure of the facts, on really engaging stakeholders and the public in an effective way. A lot of this is in the EPA bailiwick as well, but there’s some principles there.
Here’s how I will connect it to Scott’s comments because certainly the Waters of the United States issue, whether Prairie Potables or the Waters of the United States was an issue way back when we were at both Justice and EPA, it’s a very tough set of issues. This is one of those issues in which I think the courts need to hold Congress’ feet to the fire, if you will, because when you get beyond Navigable Waters I think there are very important policy decisions and allocations of authority from the federal, state, and local levels that are really important here. I don’t have a specific critique of the current rule or the Obama rule other than to say that it shows how consequential that rule is and how much it not only affects economics, but it affects everybody’s perception of the role and the freedom, the ability of local jurisdictions to manage growth and manage their economic affairs going forward.
That is a kind of issue that the scientists and the members of Congress and the policy experts need to get together and figure out; a true bipartisan challenge. It is important because it comes back to this issue that I mentioned briefly earlier, which is I really see the region, whether you call it a watershed, so not just the community, but a region of the country, as being a critical theater for figuring out where we go from here. That’s especially true with water resources. I do think this endeavor that—and actually Brent Fewell, who many of you know, and I and some other experts are involved in this Water Finance Exchange. It's really designed to work with communities in regions and figure out what works and what’s keeping them from getting their water infrastructure funded.
As we do this, we see that at the regional level several activities—power, water, and broadband—are essential to the economic health and vitality of those regions. And so EPA as well as other agencies have a really critical role to play. I think it’ll be a good balancing act, but really an important one, for us to figure out how the federal government not only tells the regions what to do, but supports the regions as they try to answer these questions and make some decisions for themselves and not intervene unless there’s a compelling reason to intervene. Back to you.
Hon. Lawrence VanDyke: Thank you, Hank. Thank you again to all my panelists. For the audience, we’re now going to go to a question and answer period.
What we’re going to do is to open it up for questions. We’re going to ask you to -- first of all we’re only taking questions over the Zoom platform, and so the way to ask questions is through Zoom. The way you do that is I ask you to raise your hand using the “Raise Hand” function on Zoom which should be in your lower middle screen. That will let us know that you’ve got a question for either the whole panel or one of the panelists.
If you’re on telephone, I guess you can dial *9 and that will also allow you to ask a question, let us know that you want to ask a question. I’ll say when you do ask a question, please, if it’s to one of the panelists let us know which panelist you’re asking question to and, of course, we’ll let any of the panelists address it, but that panelist first. Then also ask that any questions be questions and not just some long discussion, but that they’ll have a question mark at the end of them, and, hopefully, not too terrible long. We’ll turn it over for questions from the audience. Go ahead and press the “Raise Hand” button, and I’ll call on you.
All right. We’ve got one here. Our first question is from Roscoe Stovall. Roscoe, I’m going to go ahead and open it up for you to ask a question. Make sure you unmute. If you’re mute when you start, you have to push the “Unmute” button so that we can hear you. Go ahead and unmute Roscoe. Looks like you’re still muted. There you go. Oh. Now you’re muted again.
Roscoe Stovall: It appears that I’m still muted.
Hon. Lawrence VanDyke: Nope. You’re unmuted now. Fire away.
Roscoe Stovall: Still muted.
Hon. Lawrence VanDyke: Nope. You’re good, Roscoe. We can hear you. We can hear you.
Roscoe Stovall: Mm.
Hon. Lawrence VanDyke: Roscoe, we can hear you now.
Roscoe Stovall: Let’s try this. Does this work?
Hon. Lawrence VanDyke: Yep. That’s workin’ great. Go ahead and ask your question.
Roscoe Stovall: Okay. Great. I’ll take my headset off. Sorry about that. Sorry to delay everybody. Okay. Thanks, Dean VanDyke. Judge Habicht, I guess I would ask you this. You are actually last on the screen, and I think I’d really love to hear from you. Then I’d also like to hear from Ms. Bodine. I think the two of you would really—I’d like to hear both of you talk about what affect the Paris Accords will have should Vice President Biden actually be inaugurated and carry out his statement that he will sign, early on in his administration, the Paris Accords. What affect will that have and what do you see as follow on effects, potentially?
Hon. Lawrence VanDyke: Why don’t start. Hank, why don’t you—thank you, Roscoe, very much. Great question.
Roscoe Stovall: Thank you. Thank you so much.
Hon. Lawrence VanDyke: Why won’t we let you start, Hank, and then Susan, and then we’ll open it up to the other panelists if they’ve got any thoughts on that.
Hon. F. Henry “Hank” Habicht: I’ll be happy to lateral this to Susan pretty quickly but let me start by saying that I’ve cared a lot about climate change, about the debate. I’ve been particularly focused especially over the last I don't know maybe ten or twenty years on the solutions, on the technologies and the solutions that mitigate greenhouse gases and increasingly recently on the adaptation side of things. Obviously, we can’t get out of this by mitigation alone, as we all know, and adaptation is a key part of this. It implicates so many things which is why this is bigger than just the EPA issue.
As far as the Paris Accord goes, we were involved with Bush 41 and the signing of the framework convention, the original framework convention on climate change. This is an issue that fundamentally the U.S. needs to participate in in the international community on. The question is what kind of commitments are made, what kind of enforcement mechanisms exist, and that sort of thing.
I’m not an expert on the Paris Climate Accord. I do believe that the United States just has to be more of an active player, first of all because we have a lot of solutions that have global application and can have great economic impact. But also, just like with another issue I work on, which is water and sanitation in emerging markets, the U.S. has so much to bring to bear I think it’s a great way for us to build our stature and our friendships around the world, but I also think that what happens in other countries, you know, we can’t solve climate by ourselves. What happens in other countries is critical and we need to have some influence in that process. Not knowing the nuances of Paris, I’ll stop there and turn it over to Susan.
Susan Bodine: Thank you, Hank.
Hon. F. Henry “Hank” Habicht: All yours.
Susan Bodine: The Paris Accord was never submitted to the Senate as a treaty for ratification. As a legal matter, it was a statement of policy. It doesn’t have an enforcement mechanism, in fact. And so the next administration could rejoin the Paris Accord, again, as a policy statement. They can propose legislation to Congress. Again, that’s any administration’s prerogative, but it is not self-implementing. Again, it doesn’t even have the status of treaty.
I know that when the issue had been debated in Congress, I believe it was Janet McCabe testified saying when asked, “Wait a minute. What’s the purpose here? Why are we joining this, especially if we’re going to bear such—the cost of it might be borne in the United States?” Their response was that, “We need to send a message.” Then the question, of course, came back to Ms. McCabe was, “Well, aren’t there less expensive ways of sending a message?” Again, it’ll be hotly debated, I’m sure, once again. But again, it’s important to remember that it’s not even a treaty. Does rejoining the Paris Accord do anything more than send a message? I don’t believe so.
Hon. Lawrence VanDyke: Lisa, I’ve got to hope that you’ve got a view on this, so I’ll want to turn it over to Lisa and then we’ll see if Scott has some thoughts on it.
Prof. Lisa Heinzerling: Just interesting if one takes your view, Susan, then I’m interested in the Trump administration’s very deep desire to depart from something. If you think it’s simply a statement and it’s symbolic and so forth, I also wonder if it is symbolic, what is the message leaving that agreement sent to the world. Here I’d be with Hank about it, the importance of our joining these global partnerships on a global problem. I agree that this is fundamentally a global problem. I think that rejoining makes a great deal of difference with respect to our standing in the world, our ability to influence the process. I will say that when I was a climate advisor to Lisa Jackson, I was just so struck by the amount of expertise and experience EPA brought to bear on those international climate meetings. What a shame it is if the world’s deprived of EPA’s amazing expertise and experience.
Susan Bodine: So, as I said, it is a policy statement and the concern with the Paris Accords as drafted was that it was not fair to the United States and so, yes, climate change is a global issue, yes, it’s an issue that must be addressed, but that was not, in terms of treating the issue with respect to Americans and then across the world, that was not a policy statement that the administration embraced and, yes, withdrew from the Paris Accords.
Hon. Lawrence VanDyke: Anything else, Lisa? All righty, Scott?
Scott Fulton: I guess, I would agree with various parts of what the different factions have said. On one hand, it is certainly true that the Paris agreement would not have immediate domestic effect if the United States were to resign or is going to resign, as the president-elect has said he’s going to. It’s no accident that the assurances that are provided under the Paris agreement are described as contributions rather than commitments. They were by design intended not to be enforceable.
Despite its character, it’s important to remember that the Paris agreement would not have happened but for the U.S./China Accord on greenhouse gases. The Paris agreement represents the best statement that could be hammered out between the United States and China, which then served as the predicate for what could be asked of other countries. The United States’ absence from the Paris agreement is significant in terms of the pull and sense of imperative that is projected to other countries. I don’t think the fact that it’s not enforceable agreement does not, in my view, mean that it’s an unimportant agreement. I actually think it’s an extremely important agreement and the United States’ leadership and interests will be advanced by signing back up for that agreement.
Hon. Lawrence VanDyke: Well, thank you, Scott. Does anybody else have any follow up comments, or should we go to the next question? I see no hands. We’ll go to Mr. Freeman, Brian Freeman. We’re going to open it up for you to ask your question here. Again, remember to unmute, and I’ll try to help you with that if you don’t get it unmuted. Go ahead and ask your question, Brian. Let us know if it’s still one particular panelist or we can just have any of the panel.
Brian Freeman: - I’m sure. Can you hear—
Hon. Lawrence VanDyke: We can hear you.
Brian Freeman: Great. Thank you. Professor Heinzerling, I guess this question is mainly for you. I mean, a practitioner with private practice for 30-odd years, doing a lot of air work in particular. I didn’t necessarily read the panel’s presentation this morning—or the set up for the panel’s presentation as implying that there was EPA overreach for 50 years, systemically, etc. If that were the hypothesis, I wouldn’t agree with it. I have seen in practice instances where there seem to be clear instances of overreach and this is not unique to EPA. It’s an administrative phenomenon generally.
I would be interested in your thought on one specific instance concerning the Once In/Always In policy, so called, for instance air pollutants. That one seems to revolve off a specific parameter in the Clean Air Act where the use of the present tense implies that a source is a major source, or is not a major source, and couldn’t change from that on the hazardous air pollutant side as well as it could do on the new source review side for non-hazardous air pollutants without controversy. Again, just for the overreach issue, though, I’m just curious, would you see that as an instance of overreach? Again, not to condemn 50 years of progress certainly, but I’m just curious on your thoughts in that particular instance where it seems like a very discreet instance of overreach.
Prof. Lisa Heinzerling: Well, first of all on what I said about the premise, I do take it that the title of this panel, actually, was a debate, but it struck me that imbedded in that debate was a suggestions of the possibility of a pervasive overreach by the agency, and that’s the idea I was responding to even though I fully recognize that The Federalist Society framed this, and I think it has been, as a debate among us, about whether that fact was true.
As for the Once In and Always In policy under Section 112 of the Clean Air Act, you’ll have to remind me about the exact specifics of that, or I can say something generally, which is that it strikes me in the many cases environmental law does make changes from the regulatory baseline or default position difficult to do. I think there’s a good reason for that. It’s really hard to make any environmental progress at all given the resources arrayed against the agency, the paucity of the agency’s resources, and so forth. To the extent that the statutes make regression from a regulatory baseline difficult, I wouldn’t regard that as necessarily overreach.
Hon. Lawrence VanDyke: Thank you, Lisa. Now, does anybody else have any thoughts on the question?
Hon. F. Henry “Hank” Habicht: I—
Susan Bodine: May I speak more generally?
Hon. Lawrence VanDyke: Yeah. Why don’t we—Hank why don’t you go first, and then Susan.
Hon. F. Henry “Hank” Habicht: Okay. I’ll just be brief. It came to mind in the—first, I appreciate Brian’s question. In having been at both Justice and EPA, there are sometimes when laws are implemented that presumptions are built into rules and things like that to make enforcement less difficult. Sometimes those are overreaching and sometimes they’re entirely reasonable.
The comment I wanted to make, though, was talking about the Clean Air Act, the 1990 Clean Air Act amendments, which I was present for, but I can’t claim much credit for, was really an amazing—I just wanted to comment that it’s an amazing legislative accomplishment because I was also involved with immigration reform back in 1981. In both cases, there are party divides as much as there are regional divides. If you look at the range of clean air issues, they’re very regional issues. In some cases, a region might be liberal on one issue and conservative on another because of their demographics and economic base and all that, so it’s an amazing accomplishment to do a comprehensive law and all the compromises that occurred to have all those titles come together when there was not a logical constituency for any one of those provisions. That was a great accomplishment, but it did leave room for interpretation and some challenges in implementation. Susan’s the expert on that.
Susan Bodine: I wasn’t going to speak directly to Once In/Always In. Although, again, in my opening remarks I did say that I’m concerned about law being made through specific enforcement actions. But more broadly, the argument that I think I maybe heard Professor Heinzerling say, maybe not, that we need to let our laws, without amending them, we need to let them evolve to address new challenges. Again, I have to go back to what I said earlier about how each of these statutes, and Hank said the same thing, is a carefully crafted compromise. If you then amend that, you actually are doing a disservice to the democratic process. I’ve had this debate. When I was on the Hill, I had this debate with EPA staff. I remember once being briefed on a proposal and said, “You have no authority to do that.” And the response was, “But it’s the right thing to do.” Like, “Wait a minute. That’s not your lane.” And so I do think it’s important for agencies to stay in their lane and for democratic processes to work to change authority.
Prof. Lisa Heinzerling: May I just say, I agree. I agree. We just have different views about what the environmental statutes did and what the political resolutions were. I view them as broadly applicable statutes that support action in the face of newly emerging scientific evidence of environmental threats. Not to say I prefer them over a new legislation that’s a bespoke fit for the problem, but I do believe that those statutes still exert power, still are on the books. They reflect a compromise that a lot of the -- the Congress to pass a statute that gave the agency this kind of broad authority that endures over time. I see it as completely consistent with the democratic process and indeed, I view the idea that statutes somehow lapse after a period of time, we don’t actually -- the agency can’t exercise its authority after a period of time, I view that as not consistent with the democratic process.
Susan Bodine: I’ve not heard of anyone taking that position. Clearly the authorities don’t lapse. The appropriations lapse, but the authorities don’t lapse. Let me just quickly respond. If you go back to the discussion earlier, I think it was Scott talking about a definition of WOTUS of United States, that evolved over time without any changes in terms of its interpretation by the courts without changes in statute. If you go back to the original debate, it is fascinating. There’s an article, I think it was Lester Edleman, but an article of an interview in E&E News. I think it was June 29, 2017, where he talked about how the staff for Senator Muskie and the Republican staff director, how they punted. What does waters of the United States -- navigable waters means waters of the United States. Then later in the speech, I think it was, Leon Billings said that the courts took it far farther than they ever imagined. I don’t know if that’s democratic process or not, leaving something deliberately vague and then having it changed.
Hon. Lawrence VanDyke: Thank you, Susan. With that, I think we’re going to have to wrap it up. We are out of time. I first of all, apologize to the folks that have questions that are queued up, but we only have so much time. We thank you for the great panelists, the audience questions we got. Again, thank you. I think this was a wonderful panel with great panelists and audience participation.
Reminder for the next convention event which will be a discussion of Prosecutorial Discretion, Partisanship, and the Rule of Law. That will begin, I think, in about 15 minutes, at 2:00 P.M. Eastern Time. Thank you all, again. Thank you to my panelists and everybody have a wonderful day.
Hon. F. Henry “Hank” Habicht: Thank you.
2020 National Lawyers Convention
|Topics:||Criminal Law & Procedure • Politics|
On November 9, 2020, The Federalist Society's Criminal Law Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel covered "Prosecutorial Discretion, Partisanship, and the Rule of Law."
In recent years, politically controversial criminal investigations have occupied an enormous part of our national discussion. The Special Counsel investigation into Russian influence in the 2016 presidential election, the investigation into Hillary Clinton’s email practices, and other high-profile investigation have caused many elected officials and other commentators to raise concerns about the influence political partisanship and institutional hubris may be playing in prosecutorial decision-making and the potential effects on the rule of law. Leaders in both the major political parties have accused the other side of abrogating or undermining the rule of law for polar-opposite reasons in the same investigations and cases. This panel will assess this debate and attempt to shed light on the dynamics at play and examine what the rule of law at the federal level means today, including:
- the roles and responsibilities of political and career officials in federal law enforcement and the implications for inappropriate partisan influence;
- the legal and prudential limits of influence on the Department of Justice by the President and other actors in the Executive Branch;
- the lawful and appropriate scope of prosecutorial discretion;
- the role that the growth in the breadth and coverage of federal criminal statutes has played in the present circumstances; and
- the implications these actions are having on the confidence in and reputation of the Department of Justice and the rule of law.
- Mr. Gary G. Grindler, Retired Partner, King & Spalding; Former Acting Deputy Attorney General, United States Department of Justice
- Mr. Andrew C. McCarthy, Contributing Editor, National Review; Senior Fellow, National Review Institute: Contributor, Fox News; Former Chief Assistant United States Attorney, Southern District of New York
- Hon. Michael B. Mukasey, Of Counsel, Debevoise & Plimpton; Former United States Attorney General; Former Chief Judge, United States District Court, Southern District of New York
- Hon. Kenneth L. Wainstein, Partner, Davis Polk & Wardwell LLP; Former United States Homeland Security Advisor; Former Assistant Attorney General, National Security, United States Department of Justice; Former United States Attorney, Washington D.C.
- Moderator: Hon. John C. Richter, Partner King & Spalding LLP
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
Hon. John C. Richter: -- and the implications for inappropriate partisan influence; the legal and prudential limits of influence on the Department of Justice by the President and other actors in the Executive Branch as well as in Congress; the lawful and appropriate scope of prosecutorial discretion; and, finally, the role that growth in the breadth and coverage of federal criminal statutes may be playing in the present circumstances.
We are fortunate to have—and honored, frankly—to have four extraordinary panelists to cover this topic. They're all well known, I would assume, to this audience. Judge Michael Mukasey, former Attorney General of the United States; Gary Grindler, former Acting Deputy Attorney General of the United States; Ken Wainstein, former Assistant Attorney General in charge of the National Security Division and U.S. attorney; and Andrew McCarthy, former Chief Assistant United States Attorney in the Southern District of New York, as well as a noted writer and commentator. So I welcome each of them, and we look forward to a dialogue, today, on these hot topics and conversations.
To get started and to set the stage, if you don’t mind, Judge Mukasey, I'll turn to you in the first instance and ask you whether and to what degree you believe that these conversations about these politically sensitive criminal investigations and prosecutions in recent years raise concerns about partisanship and institutional hubris and whether these concerns and criticisms and observations are well founded.
Hon. Michael B. Mukasey: Well, I can't speak to, obviously, all of the criticisms that have been made and all the conversations that have been held. I can say that, certainly, it's appropriate to have the conversations. I'm more concerned, frankly, with institutional hubris, given what's gone on recently, than I am with the question of the limits of what a prosecutor can and should do with respect to investigating people who are perceived to be political adversaries of the administration that's then in control.
Obviously, the fact that somebody is an adversary of an administration does not confer immunity on that person. In addition, one has to be very careful, in conducting an investigation, not simply in the result, but rather in announcing the existence of the investigation at all. Generally, the Bureau and the Department do not disclose the existence of investigations until it's time to bring a charge or not.
I think that we've had problems with that in recent years largely, but not entirely, because of leaks. Sometimes it's impossible to proceed with an investigation without taking a step that finds its way into the press. But, generally, one should avoid that. If one avoids it, I don't see that anyone is limited in conducting investigations simply because the person being investigated is a political adversary. Ultimately, the political appointees bear political responsibility for the existence of the outcome of an investigation. And so far as -- I mean, I'm happy to talk about White House Justice Department context because we had some perception of impropriety before I took office. And we worked out procedures for controlling that when I was there and, as far as I know, they’ve held up pretty well since.
Hon. John C. Richter: Thank you, Judge. Andy McCarthy, you’ve written a book—a best seller, seemingly—entitled Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency. That's a rather provocative title. I hope that's part of the reason your book has sold and you chose it. What are your thoughts on this? Is the criticisms and concerns about politicization and decision making beyond just institutional hubris? What concerns do you have as an observer these days?
Andrew C. McCarthy: A large part of the reason I wrote the book is because I hate being wrong. And, for a long time, I maintained that a lot of the central allegation—particularly about abuse of the FISA process—was wrong.
You know, I had people who I had commonly worked with over the years on national security issues who were insistent that the basically political opposition research screed had been taken virtually in toto to the FISA court, and basically they slapped a caption on it and got FISA warrants. And I tried to patiently explain, as I observed the tinfoil hats on their heads, that that's not how the FBI works, and that what we'd ultimately find at the end of the rainbow was that they will have gone through the information that they took in -- because we take information from everyone, right? We take information from some of the worst people. It's necessary to do that in some of the investigations of the worst criminal conduct. And what I told them was what would end up happening is that you will have gotten five or six or seven facts that they needed, and the FBI would do what the FBI always does and go to school on it. And, by the time they got to the FISA court, it would be an FBI investigation, not political opposition research. And, of course, I turned out to be wrong about that. A lot of what was used in the FISA court was uncorroborated, multiple-hearsay, political-opposition research. And it bothered me to be that wrong about something I thought I knew pretty well.
And, here, I need to go back for a moment to the 1990s, where we had a very robust argument—it's so long ago and far away, now, that a lot of people have remembered it, but it was quite a thing at the time—and that was about the so-called wall which impeded the cooperation between the criminal investigation side of the FBI's house and the foreign counterintelligence side.
And there was a lot of concern back then that the foreign counterintelligence powers would be used, or could be abused, to basically steer criminal investigations under circumstances where there wasn’t adequate evidence to have a criminal investigation, and you would just basically pretextually use these powers until you finally came up with some criminal evidence, at which point you could then pounce.
There was a lot of concern back then that that could happen and, at the time, it was really only conjectural. We didn’t have any real evidence of its happening. And I maintained—and this is what I'm sort of annoyed at myself about—I maintained very vigorously that that just simply could never happen because there was so many rungs of approval at the FBI and the Justice Department that you would have to go through that, assuming that you had a rogue agent, it would be much easier to fabricate the fundaments of a criminal investigation and go the criminal route than try to fabricate a national security angle. And that turns out to have been wrong. I think I owe an apology to the people who I made that argument to in the 1990s, even though we sadly felt pretty vindicated about it after 9/11.
So the only thing I can conclude from all of this is that we're not effectively -- I don’t know if we don’t have the guardrails in place or if we have them but they're only nominally understood and they're not effectively applied, but I do think the FBI and the Justice Department had a lot of bad luck in the last four or five years because some of these investigations, the Clinton e‑mails investigation in particular, fell into their lap. It was unavoidable that they were enmeshed in the politics of the 2016 election.
But, as far as the second investigation is concerned, it seems to me that the safeguards that are supposed to be in place to make sure that abuses like that don’t happen failed. And the most important thing going forward is not to keep using them against each other or continue this cycle, it's to try to figure what went wrong and fix it.
Hon. John C. Richter: Gary Grindler, you've served in two different administrations, Democratic administrations, as a political appointee after many years as a career AUSA. How do you see politics and institutional hubris in the present Justice Department and the present atmosphere around it? And what do you see as the dividing line, I guess, between legitimate investigation and prosecution of politically sensitive matters and inappropriate partisan motives driving investigations or prosecutions?
Gary G. Grindler: Well, one of the most significant decisions that the Department of Justice makes, I think, is to initiate the investigation. And the comment made about keeping those investigations confidential is of great significance because it's very easy for someone who wants to embrace one political adversary versus the other can effectuate considerable damage by leaking information about an existing investigation. So I think one of the focuses that has to take place here is making the decision to initiate an investigation is critically important. It doesn’t have with it the requirements even of probable cause at the outset of the investigation. And you see that the public release has damage. The investigation of the Clinton e-mails that was announced, many people have criticized that by suggesting that that announcement was not appropriate and it had impact and it was easy to do.
So you have to think about that and the processes you need in place to try to go ahead and investigate those people that deserve to be investigated, regardless of their party, and protect it from public disclosure. The timing of that particular matter was significant, of course, because you were in the midst of a presidential election. But those are -- and on a smaller scale, we faced decisions about initiation of investigation during the political season where one candidate was trying to convince the FBI to initiate an investigation of the adversary—in one case, even to wear a wire and have a meeting with the other candidate—and those decisions had to be made. Once made, though, someone was going to leak it. And so the processes for that are very important.
Hon. John C. Richter: Ken, you served as the Assistant Attorney General in charge of the National Security Division. And, obviously, a number of these investigations have involved intelligence equities and use of the FISA process in addition to other criminal investigative techniques. From your perspective and that vantage point, how do you see the Department putting in, I guess, and to what degree do you believe that the political and institutional hubris risks play a part in decision making to open investigations particularly where there are intelligence equities in the mix?
Hon. Kenneth L. Wainstein: Yeah. I think, actually, you put your finger on an important characteristic of some of the matters that have come to the fore over the last four or five years, which is that there is an intelligence dimension to them. And that complicates things in a number of ways because you now have, in deciding what to disclose or not to disclose, what to act on, what not to act on -- which is always something that's heavily scrutinized either at the time or later on for the possibility of political influence. You then throw in the further consideration that you're dealing with very sensitive sources and methods that need to be protected in their own right.
Oftentimes, then, you will have the relevant institution, whether it's the intelligence community agency or the Justice Department, either refusing to use or refusing to disclose information that the American people might expect to hear in a criminal process because it's classified or it relates to sensitive sources and methods. So that's a different dimension that we've seen play out, especially in the Russia investigation.
And I think a different complication that arises from the fact that there are sort of intelligence dimensions to some of these cases is that we're all accustomed -- whether we're criminal lawyers or just laypeople, we sort of have an understanding of the predication that's used in the criminal process: probable cause; a preponderance of the evidence beyond a reasonable doubt. That's just something that we've internalized as a people. And we use different standards when it comes to using intelligence tools. And it'd sort of be a gross generalization to say lesser standards, but we use different standards.
I think Andy was sort of referencing that when he talked about FISA. It's a different process to get a FISA when it's under Surveillance Act order than it is to get a Title III wiretap. Judge Mukasey reviewed countless wiretap applications as a judge—I probably brought one to him myself—and it's intuitive to him as to what is required for that. It's different when it comes to FISA.
And so one of the challenges has been, as the FISA process has been publicly disclosed—the process that Andy has written about in the Russia investigation—people, I think, have been ill equipped to sort of judge whether there was sufficient predication. And I actually think the Department has done not a very good job of explaining what that predication is and what it should have been. So these are just things to keep in mind.
I think it was sort of a perfect storm, this Russia investigation, in the sense that it was obviously highly political, highly antagonistic on all sides. It then -- because of that antagonism, you then saw the institution acting as an institution. You talked about institutional hubris. There's the human reaction of institutions and their people. But then, in addition, you had what is sort of foreign territory for a lot of people, and I think there was somewhat of a lack of understanding. And so I'm glad -- Andy, I've not read your book yet; I'm going to. So I'm glad you teased this out because that would be a real service to the American people who are trying to make, you know, trying to really get a clear understanding of what did and didn’t happen once, hopefully, the political smoke clears.
Hon. Michael B. Mukasey: I'll also tell you that I reviewed countless FISA applications as well when I was AG, and there was no problem with most of them. I say "most" because one or two did get marked return to sender, and one or two did get marked return to sender by the court. It wasn’t a question of denial; it was a question of "what about this and what about that?" So it was an iterative process.
Andrew C. McCarthy: I guess I would also, though, go back to the point on predication. Here, I think, is what the difficulty is. And this is really more of a judgment thing than anything that you could capture in the most perfect regulation that you can write, which is we necessarily need to have predication at a low level so that we can act in circumstances—especially as Ken is talking about—in the intelligence sphere where we're dealing with national security threats to the United States. We can't wait until things ripen before we act. So it necessarily has to be a low level of predication. But that creates a much bigger danger that you could abuse these powers in the criminal context without what would be the normal predication that you would have in a criminal investigation.
And the other thing with criminal investigations all of us who pursued them know is that they're fairly finite in the sense that, at a certain point, you either have it or you don’t. And every case in a U.S. Attorney's office—or the Justice Department broadly, but certainly in the U.S. Attorney's office—is competing with every other case for resources. You don’t have time to string things out forever. You either pursue the case or you move on.
And the thing they were concerned about in the mid-'90s, which seems to have been the problem here, is that you would use not only the low-level predication, but the black box of everything being classified on the national security side to string out a criminal investigation under circumstances where it didn’t really merit being strung out. And the thing that’s supposed to prevent that from happening is, I think, adult supervision. I mean, we can write as many regulations as you'd like to write.
But unless you have people with good judgment who say, you know, "This is not the kind of thing that we do," you know, "We don’t take unverified information to the FISA court; we run it down before we go there," I just don’t -- I don’t know what's to be done about the problem of pretextual use of the national security powers in the absence of having -- I think the lessons learned here have to be that there has to be some kind of a presumption against using those powers in our political context, especially our electoral context. And there has to be higher guardrails or multiple levels of supervision where we stop that from happening at an early time and make sure that we're not using these powers in a way that affects politics. Because it's not good -- it's terrible for the politics, but it's also awful for the Justice Department and the FBI to be enmeshed in it.
Hon. John C. Richter: Let's deal with, I guess, the constitutional dimension and the sort of true legal dimension of all this. I think what I hear from the four of you—who sort of range across the political spectrum a bit, but are all, obviously, DOJ alum—is that you all believe that politics should not play -- and partisan politics should not play a role in decision making, and that good judgment is critical in terms of discerning what's a good investigation to begin and what's not as a theoretical matter.
Obviously, Article II of the Constitution vests all executive power in the president of the United States. And presumably that means that, ultimately, as a constitutional matter, all prosecutorial power emanates from the president and resides with the president.
Judge Mukasey, you talked a little bit about some of the limits that you observed when you came aboard as Attorney General. There's obviously a history stemming from the lessons post-Watergate. But let me just start: Is there a distinction between the legal limits of presidential influence on the Department of Justice and prudential limits on the power of the president? And, if so, where do we draw that line as a legal matter versus a prudential matter, and why?
Hon. Michael B. Mukasey: I don’t know that it's possible to draw a legal line. As you said, Article II puts the executive power in the hands of the president. And, when the attorney general exercises authority, he's exercising the president's authority, not his own. The only way to assure that the decisions that are made are made with reasonable safeguards in place is to assure that when, as, and if there's any attempt by a president to get into a particular case, that that goes to the people within the Department who are politically responsive and that they deal with the president on that basis. They will either pursue something or not pursue it depending on their inclination and their ability to withstand the pressure. In an extreme case, obviously, they can either resign or be fired.
Just to put a bit of a point on it, I did get one such request to show up at the White House to answer for something in a particular case. And I did, and we had a conversation. It was not with the president. It was with a member of the staff, and it was clear that that person was talking for the president. And I went back to the Department, and we proceeded as we had before. I didn’t get fired. So that, I think, is the way it's supposed to work.
Hon. John C. Richter: Gary Grindler, you served as the Principal Associate Deputy Attorney General. At least my memory is that, in many instances, the deputy attorney general, and particularly the principal associate—the so-called PADAG—serves at least under some of the prudential norms in the Department as the go-between, if you will, between the White House and the political powers at the White House and the Department. How has that worked and not worked in your observation over the years, and to what degree is that enough of a governor, if you will, on ensuring the right balance between political accountability to the American people and the exercise of prosecutorial discretion free from partisan influence?
Gary G. Grindler: Well, as you know, there is a memoranda that has addressed the communications between the White House and the Department of Justice. And, in my experience, it was pretty much adhered to. I mean, we would have discussions about public indictments and prosecutions in terms of what is public. But, in terms of investigations, we were pretty scrupulous to avoid discussions, with exceptions. And one of the big exceptions is national security issues: an espionage investigation that's going to have a direct impact on the relations with another nation, or even circumstances in which a prisoner exchange might be something that's important to consider, or an indictment that's going to come down that will have some profound impact on the financial markets.
There were exceptions where some disclosures were made of pending matters, but it was rare. And there seemed to be a respect for that. So I was, for the most part, satisfied with—at least in my experience—the adherence to getting involved with the White House when the case really implicated serious interests of the United States that the president should be involved with. But in the overwhelming majority of cases, we would not talk about them.
Hon. John C. Richter: Ken, in terms of from an NSD perspective, with an exception that essentially allows national security implications to potentially, I guess, sort of reduce the threshold for communications with the White House and the presidency, and given the recent investigations that seemed to arise in that context, should that, I guess, exception to the general rule be examined? And if so, what do you do about it given the importance of national security, but given the importance of, I guess normatively speaking, of keeping some distance between political actors and prosecutors who are exercising judgments in particular criminal investigations and cases?
Hon. Kenneth L. Wainstein: Yeah, look, it's a good question. And the traditional rule—the memo that has been sort of put in place that Gary referenced—it's primarily designed to prevent the White House from calling over—any White House—from calling over and saying, "Hey, I understand you're investigating Congressman Jones, a congressman of our party out in state X. Why don’t you just not pursue that investigation? We really think it's not good." Obviously, that's the kind of communication you don’t want, and that's usually in the criminal context.
Especially after 9/11, it became very clear that that kind of barrier to communications -- and its very structured, it goes through a particular -- whether it's the PADAG, it used to be the iconic David [inaudible 00:30:46] who was the person designated to sort of receive input about ongoing matters from the White House. There's a process that's to be followed. That just doesn’t work in the national security context. In post-9/11 we really saw why.
So Andy talked about the lowering of the wall after 9/11 that had separated—culturally in many ways, regulatorily, but also by practice—the intelligence assets of our government from the law enforcement assets of our government. And that was really crippling and helped to lead to 9/11 happening without us detecting it first because there were criminal agents from the FBI who couldn’t share what they knew about terrorists who are criminal suspects, you know, criminal targets. They couldn’t share information with the intelligence agents of the FBI who were investigating the same people as intelligence targets as opposed to criminal targets.
So that wall came down. There can now be sharing across -- within the FBI, but also between the intelligence community and law enforcement about these targets they’ve all in common, like spies. You know, spies are an intelligence threat, but they're also criminal suspects. Terrorists, foreign terrorists, the same thing. Foreign cyber bad actors, the same thing. And that needs to be coordinated at the interagency level, which is run out of the White House.
And the classic scenario is, if you have a hot threat investigation -- let's say we detected a cell here in the United States. The intelligence community might not want to take it down immediately because the longer you -- once you detect a cell, the longer you can monitor it, the more you’ve learned not only about those bad actors but the people that they're related to, right? So the longer you leave it out there, the more intelligence you get.
Law enforcement might be looking at it differently, thinking, "Hey, we need to take these guys down. We have a case that we can perfect. We can put them away for 20 years each." That’s a decision that has to be made at the interagency level. So that's communication with the White House—oftentimes in the White House, in the Situation Room—about possible criminal charges where the political folks in the White House are fully engaged and need to be fully engaged.
So I don’t -- to the extent that your question goes to, "Isn't this a predicament? Isn't this a dilemma that we're trying to prevent White House influence on what could become criminal cases?" And now we're seeing that happen in the national security context. So shouldn’t we have some sort of prohibition on that kind of communication in the national security context?
I just don’t think that's doable. I think it's just so critical that we have that coordination. And I think one of the greatest things that's happened since 9/11 is that coordination, is the ability for the general counsel of the CIA to call up the head of the National Security Division, John Demers, and say, "Hey, let's talk through how we're going to manage this matter. We've got our agents -- we've got folks looking at this terrorist cell; you've got FBI agents doing the same. How do we coordinate?" So I think, in short, it just isn't going to be feasible to do.
Andrew C. McCarthy: Can I just say I was glad about two things about what Ken just said.
First of all, the bit about no prohibition. I emphatically agree with that. I think my concerns are more along the lines of what can we do internally to raise questions at a high enough level and go slow when there are competing concerns, especially with the law enforcement concerns. But I'm not talking about any kind of a regulatory prohibition at all.
And the second thing: Ken mentioned culture, which is a great word to use in this context, because I can speak personally, not from the main justice angle of this, but from the criminal prosecution angle of it. I experienced culture shock in 1993 when we ended up having an internal debate in the Justice Department about whether to indict the Blind Sheikh or not. And it was the first time -- I mean, maybe it had come up in a sliver in other cases I had been involved in, but this was the first time I had ever had a case where the ethos of the Justice Department is, "We're entitled to everybody's evidence, and nothing is more important than our cases, and nobody is above the law." And we love to say all that stuff, and I think 99.9 percent of the time it's true, but you suddenly find that there actually are other considerations, and they are not only legitimate considerations, they're serious national security considerations that are more important than prosecutions in some contexts.
So when we had to have this debate about whether to bring charges or not, it wasn’t just a matter of whether we had enough evidence to charge. It turned out that we had to look at—especially on the State Department end and the intelligence end—what was the benefit versus the downside to the United States of bringing these charges under these circumstances, and what interests of ours—particularly security interests overseas—were going to be affected if we went ahead with the case?
And the only reason I raise this is I think -- and it seems to me that this is evident in a lot of, certainly, the coverage and the commentary about the investigations over the last few years. There is an ethos in the Justice Department that nothing is more important than our prosecutions. And again, most of the time that's true. But I don’t think that we're sensitive enough to, number one, how much these investigations compromise an administration's capacity to govern when they are corruption investigations that are aimed at the administration. And secondly, it simply is a fact that, even if you're not talking about executive corruption, there are a lot of interests that are at stake that we have to deal with that are more important, occasionally, than our prosecutions. And I just don’t think that we necessarily do a good job of communicating that.
Hon. John C. Richter: So let's talk about some remarks recently that Attorney General Barr made in September at Hillsdale College. In his remarks, he made really two points that I want to highlight here.
He first said that the most basic check on prosecutorial power is politics, and he said it's counterintuitive to say that as we spritely strive to maintain an apolitical system of criminal justice. But political accountability politics is what ultimately ensures our system does its work fairly and with proper recognition of the many interests and values at stake. And he spoke -- and then said, "The men and women who have the ultimate authority in the Justice Department are thus the ones on whom our elected officials have conferred that responsibility—by presidential appointment and senate confirmation. That blessing by the two political branches of government gives these officials democratic legitimacy that career officials simply do not possess."
One of the seeming themes of a lot of the commentary that I've read in recent years would suggest just the polar opposite—that it's the career officials that are the apolitical players and whose judgment should be relied upon in these highly sensitive political investigations, particularly if the Justice Department is looking at political actors and particularly looking at personnel in the White House. And yet Attorney General Barr certainly seems to be arguing that in fact it is the political appointees themselves of the Department that are, frankly, the truest expression, I guess, of the American electoral process and therefore the will of the American people. How do we square that circle, Judge Mukasey?
Hon. Michael B. Mukasey: Well, I think I come out entirely on the side of the Attorney General on this one. It is possible for career people, however well intentioned, to become married to their cases and to their positions in those cases. Regardless of whether that happens or not, I think that ultimately, as I said before, the authority that's wielded here is an executive authority. And the people who are politically responsive and will pay the price politically if power is wielded improvidently are the people who have to have ultimate authority. To say that we're going to delegate this to or prefer the word of career people simply because they are career people, I think, is a grave mistake.
Hon. John C. Richter: Gary Grindler, obviously two can tango here. Depending on where you sit politically, you may be very happy knowing that political appointees are making the decisions on a case. Then again, if you're on the -- if you believe you're on the opposite end of the political spectrum from those political -- appointed officials, you may fear the worst. In your experience, how, as a political appointee, do you manage for that? And what can the Department do—the political actors, the political appointees in the Department—do to try to avoid not only the substantive influence of politics, but the appearance of partisan motive in the situation in which they're being asked to make decisions in highly sensitive investigations that involve political players or political equities in some fashion?
Gary G. Grindler: Well, I don’t know that I would have worded it the way the Attorney General worded it. But I believe in the notion that the leadership of the Department, even in the context of making decisions in criminal matters, should be -- the ultimate decision making for sensitive matters should be with the politically appointed leadership. But I also -- and then, for the reason already stated—that career prosecutors are not immune from having viewpoints on things, getting highly invested in a case or attracted by the potential notoriety of the case—that could make them approach it more aggressively than is appropriate.
But I think it's political leadership. And I think it is a process that, at the Department, that has worked, that you need to seek the input from the career line attorneys who have devoted their time and attention to the case, but to their supervisors, their career supervisors, and up the line, because you want to show and demonstrate that you can frame all of the factual and legal merits issues when you come to a decision.
But at the end of the day—I think it was referred to as adult leadership—someone's got to make a decision on these sensitive cases, and some of the issues are incredibly complex and difficult. But I think that the process by which those decisions are teed up -- those cases are teed up for decision is the way you get credibility, hopefully, with the career people and with the public.
Hon. John C. Richter: Ken, let me pose what I think is kind of a hard question. Surveys that I read about career DOJ personnel suggest that the majority of DOJ personnel who make political contributions tend to do so to one political party over the other. Obviously, such political activity is protected, and the right of these individuals to have political views is protected like any other American. To what degree does that kind of freewill behavior by career personnel -‑ to what degree is that a factor that may be rightly considered by a supervisor in staffing politically sensitive investigations or cases? To what degree should that be ignored? How do we address that as we think about politics and the Department of Justice?
Hon. Kenneth L. Wainstein: Well, look, that's a good question. So you get a -- sort of the fundamental issue here is you've got people who have decided political views, and they are career people whose job it is to exercise prosecutorial discretion completely regardless of politics. And I think there is a sense in this country -- and I think one of the unfortunate effects of the last couple of years has been a sense on the part of many that people cannot actually put their politics aside and do their job apolitically.
Now, those of us -- many of us on this call are longtime AUSAs who grew up in a culture which didn’t consider politics. And, especially in the big-city offices, it's just -- if you start talking -- if you start acting and speaking in too partisan a way, it actually is sort of atonal. It doesn’t work in the U.S. Attorney's office because people who are career folks pride themselves on not being political because they know how devastating it can be to the reputation of the Justice Department, the reputation of the office and the individual if you are seen as driven by things other than the facts and law that relate to that particular case.
And I often say -- now I was the U.S. Attorney in the DC office. And that's probably the least political office in the country because it has the DA side. It does a lot of street crimes, and there's no political dimension to those cases. But, you know, we had 330 prosecutors. I literally think I—and I was there for whatever, 12 years—I might know the political affiliation of about three of my friends. It just wasn’t an issue that we discussed. I mean, we talked politics, but we didn’t talk about our personal loyalties. And so that culture still exists in DOJ, and people still, I think, are proud to believe in it. And I think, actually, it's one of the underpinnings of morale in DOJ that prosecutors and all staff sort of feel like they're doing things that are God -- it's God's work. It's based on justice and not based on the whim of one person or one person's political predilections.
That being said, to your question, you can't ignore the fact that somebody might have political leanings and make sure -- for a couple of reasons. One, you have to make sure that person is not going to allow his or her decision making to be influenced. And there are some people that, try as they might, they cannot put their politics aside.
But even more importantly, it's the perception. And sort of foundational to the Department's ability to have credibility and be effective is the public perception that it's doing things based on the facts and law, and it's equal and blind in the way it dispenses justice. And if there's a perception that one U.S. Attorney hires only Democrats or hires only Republicans, or declines cases against Democrats, goes after cases that involve Republicans, that's going to catch up to them.
And I think that a number of the questions that have been asked over the last 20 years since I've been really tracking all these political issues, from campaign finance through the Hillary e-mails through the more recent ones -- the unfortunate thing is the belief on the part of some that prosecutors really cannot put their politics aside. I might be Pollyannish, but I actually believe that they can and that they largely do, actually.
And so I would hate to see any kind of litmus test be applied to the hiring or staffing practices at the Department of Justice. We want people who are passionate about politics one way or the other. We just want to make sure they don’t let that -- because that shows that they care, right? It shows that they care about our country, they care about the future of our country, they're therefore going to care about the mission of the Department. That's fine. We just need to make sure that we are conducting very careful supervision and that the leadership—both career leadership and, even more importantly, the political leadership—are very attuned to the perception of politicization. And I'm worried that that perception has become ingrained and is being used sort of as a weapon in both directions. And I really worry about the future of the Department given that state of the play.
Hon. John C. Richter: Andy, you’ve been covering—through your regular appearances on The John Batchelor show—and have been discussing a lot of the decision making by prosecutors in a number of the highly sensitive investigations that have generated such national discussion and debate. To what do degree could some of the criticisms of the decisions and the decision making in terms of the perception of bias been avoided based on your observations of the way some of these investigations were staffed and managed?
Andrew C. McCarthy: Well, my experience, not surprisingly, is the same as Ken's, which is that, in the vast, vast majority of our cases, what we do is a professional, clinical exercise, you know. We figure out what the law is; we see what facts we can prove; and that's the job. And having been a conservative lawyer in Manhattan where, you know, virtually all my friends -- many, many of my friends in the office were liberal Democrats. As Ken just said, politics might be an issue when you're sitting around having a couple of beers after work on a Friday, but it doesn’t have any bearing on the job day to day. And I had no problem, in 20 years as a prosecutor, working with people who had very different political views than I did because that stuff got checked at the door, and you do your job in the courtroom.
But I think, you know, politics is part of a bag of stuff that occasionally has a bearing because of the nature of particular cases. And it's not the only thing. I mean, a lot of times we have to do -- because the appearance of impropriety is our standard for maintaining the integrity of the system, there's a lot of things that come up that can give you a conflict. It's not just your political attitudes. And we have to go through that in every single case where there could be a perception problem. So it just seems to me that the rule of reason should apply—that no one wants to say your constitutionally protected ability or right to participate actively and vigorously in politics should at all be tamped down on, but you don’t belong in a big political investigation, then.
I mean, if you have a situation where, you know, there's a fraught political nature to the investigation -- I can talk about this personally. Every now and then, because I'm out publicly doing, you know, the gas bag important work that I do, my name gets bandied about when somebody needs a special counsel, or it at least comes up in public discussion that there should be a special counsel. And it's come up on Democratic investigations; it's come up in Republican investigations.
And I always say the same thing, which is, first of all, I'm fortunate enough to be able to make a living without having to work, so what do I want to get involved in that for? But, more to the point, the public does not want a prosecutor in one of these fraught investigations who has been out in the peanut gallery telling everybody what they think of the case and what they, you know, where it's going, even if you're trying to do that—and I do try to do this—in as fair minded a way that you can do it and try to be neutral about it. You don’t want a prosecutor who's been involved in that process. That's just -- to me, that's just common sense.
So I think that, you know, your political attitudes ought to be part of the baggage that you bring to any case that, if it turns out to be a case where that's relevant, you even need to factor that in. And if you can't -- if you don’t perceive the need to recuse yourself, then somebody has to be in a position to disqualify you. But I don’t think there should ever be a bright-line rule that, just because what we're talking about is constitutionally protected activity, that means we have to put it in a black box and we can't consider the prosecutor's attitudes about that, because we have a higher obligation to the integrity of the judicial process and to make sure that the public perception of these investigations—which are the most wrought investigations that we're -- that we -- are among the most wrought investigations that we have to deal with—we have to make sure that that is on the up and up and that the public perceives it as on the up and up.
Hon. John C. Richter: Judge Mukasey, you headed up the official corruption unit back in your day at the line level. And, obviously, as Attorney General, you oversaw a lot of politically sensitive investigations that were briefed up to you. To what degree, then, do career prosecutors and officials who have a public record of a partisan leaning differ, and should they be treated differently in any way in terms of staffing and decision making as compared to the political appointees in such sensitive investigations?
Hon. Michael B. Mukasey: Well, obviously, I think it depends on the profile of the particular prosecutor. Although I should tell you that the corruption cases that I handled principally—apart from one congressional prosecution—involved principally dishonest law enforcement agents. That was official corruption in those days. It's gone -- obviously, it's matured to a certain degree, since.
So far as assigning people, it -- again, I think the tone comes from the top. And if the norm, as Ken described it and as Andy described it, is that you check that stuff at the door, then you should have no hesitation about assigning just about anybody. But obviously, people who have a high profile politically who come to a prosecutor's office simply can't participate in politically sensitive cases, particularly those that engage the activities that they’ve been involved in. That's just common sense.
Also, we've been talking about guardrails and principles and regulations as if they were self-enforcing; they're not. You can draft the most exquisite regulation, and it won't enforce itself. You can speak of something as a guardrail. A guardrail—it's a nice image, but it's a passive control that does enforce itself. What we're talking about here are not guardrails because there are no processes that are going to enforce themselves. Ultimately, it's going to take people with good judgment who subscribe to the kinds of norms that Ken and Andy have been talking about. And if they're not there, then all the regulations and guardrails in the world aren’t going to do you any good.
Hon. John C. Richter: Attorney General Barr also argued in his Hillsdale remarks -- made the point that individual prosecutors can become "headhunters, consumed with taking down their target." How does the Department manage for the perception that that could be the case? And when is a zealous advocate on behalf of the Department in a criminal investigation or, frankly, in looking at things from a counterintelligence standpoint, cross over from simply a good-faith desire to ensure that people are held accountable for unlawful behavior and a sort of inexhaustible investigation of an individual in search of a crime?
I'll turn to you, Andy. I think you’ve obviously, in some of your writings and commentaries, have spoken a bit on this.
Andrew C. McCarthy: I think this goes back to what we've been discussing. And, to me, it's more of a matter of common sense. If you have somebody who's handling a prosecution, who's appropriately handling a prosecution—meaning you don’t have any reason to doubt or suspect that there's any political taint, there's no conflict of interest—then I think you -- if I'm understanding your question correctly, I think you just, you know, you do your job zealously, and you do it measured by whatever the demands of the investigation are.
Hon. John C. Richter: Ken, you made the point a moment ago that you thought -- you expressed great concern that there's perception in the United States today that the Department has not been exercising its authority free from political bias, and you're concerned about that institutionally for the Department and, frankly, per the rule of law in the United States. How do you address that given that both the, I guess, the partisans on each side of the political equation these days accuse the other side in engaging in basically the kind of -- the mirror opposite of behavior. To what degree, if we move into a -- if there's a new attorney general, should -- how does that new attorney general right that in a way that doesn’t just simply come across as saying, "Well, we won; so, therefore, now we get to exercise our authority consistent with the way we like," and ratify, essentially, only one side of the partisan perceptions?
Hon. Kenneth L. Wainstein: Yeah. But that's a good question. And just to go back to my earlier comments, they were that I was concerned -- am concerned that the perception that DOJ is politicized is and can be very damaging to the future of the Department and its effectiveness and its credibility. I'm not buying into the idea that it is politicized under any type of administration. I actually think the culture is very strong.
Are there places along the way where there -- questions should be asked and maybe there were missteps? Sure. But I think, largely—as we all, I think, have agreed—99.99 percent of what we do -- what the Department does is done apolitically. But it is a very damaging perception. And the next administration—and every administration—needs to be very sensitive to that because that's sort of the first order of business is to protect the reputation of the Department.
And to give Judge Mukasey some credit, he had to deal with a perception that was -- that had been created, fairly or unfairly, of politicization of certain aspects of the Department before he came in. And one of the things that I most admired about how he handled his entry into the Department was he made very clear -- regardless of what did or didn’t happen before, or whether it really was politicized or not, he went to great pains, at least as I saw it, to make it clear that he was about just doing the J-O-B, working with the career people. He was going to be politically responsive to the president, but he was going to make sure that everything was done, sort of, according to regular order. And that message got sent very quickly. And part of that was just character; part of that was understanding the Department. So the next person who comes in will have to do the same thing. And it's very important.
But look, I guess I'm just sort of an eternally optimistic person, but I look at the Department and I see -- look, the career folks in the Department get it that they -- most of them get it that there's a political rank. And the political rank has the authority—in fact the responsibility, the duty—to supervise them. And so, if the career people, you know -- I decide I think this is the charge that should be brought in this case, and the political person pushes back and says, "No, I see it differently," at the end of the day, the political person, you know, the higher-ranking supervisor, gets to make the call. The attorney general gets to make the call. And so long as that call is made on sound political reasoning, then so be it. That's the way it works.
And, to go back to your earlier question, I think it is important to mention that, you know, some people have talked about how prosecutors get tunnel vision. They sort of get focused on their target. Which means that they tend to see only the incriminating information and maybe not pay as much attention to the exculpatory information in an investigation. No question that happens. That’s called human nature, right? You get set as a prosecutor. We're all Type A people on building a case. And the basic human instinct is to look at the information that helps you build the case more closely than the information doesn’t help you build the case.
That's why we have gobs of training in the Department to make sure that we turn over exculpatory information under Brady, why we're constantly harping on the supervisors in their role at second guessing -- not second guessing, but supervising the prosecutorial decisions of their line people. Because we all fall victim to that. And so that's why we need supervision, and that's why I don't really worry when I hear about a decision maybe at the higher levels of the Department countermanding a judgment at the lower levels so long as it's clear there was a rational basis for it. That's allowable.
What is really damaging the Department, though, is when a decision is made at the top levels—at the political levels—it overturns or takes issue with a career -- a decision of career folks, and the explanation is not made as to why that was. Because that, then, undercuts the belief within the Department that at the end of the day we're operating on facts and law and not on politics. And that get back to the perception. And so messaging, not only externally but within the Department, is so critical to maintaining morale and to maintaining the belief by everybody that we're about the facts and the law and not about politics.
Hon. John C. Richter: Gary Grindler --
Hon. Michael B. Mukasey: Let's go back for a second --
Hon. John C. Richter: Yeah, go ahead, Judge.
Hon. Michael B. Mukasey: Let's go back for a second to the headhunter problem and some of what Ken was talking about. One way that we guard against that in the Southern District of New York—and I don’t know whether this is done elsewhere—is to be very careful about not taking people right out of law school as prosecutors and to be very careful of the people that we took right off clerkships because, if somebody has grown up for her or his entire life being told how smart they are, and graduating magna-cum-this and summa-cum-that, and never having to say "please" and "thank you," and never having made mistakes, those people can be dangerous when they become prosecutors. And I think a little bit of maturity, a little bit of kicking around in the outside world is useful.
Hon. John C. Richter: I second that.
Gary Grindler, welcome back. I think we got you back on. I wanted to -- as we look to -- dare I say, it would appear at this point, based on reporting, that Joe Biden has prevailed in the election. That's obviously subject to some continuing debate. But, assuming we're going to have, sometime in January, a new attorney general, and given the fact that the partisans certainly perceive certain investigations as having been politically motivated for mirror opposite reasons, how should the next attorney general address that, recognizing that merely affirming his own, I guess, political party's world view would have the effect of perpetuating this perception problem that Ken Wainstein mentioned earlier, I think, before you had some connection problems?
Gary G. Grindler: Well, I think we go back to the fundamentals that we've been talking about this afternoon. You need to take care with existing investigations and with new investigations—the kind of care that everyone has been talking about here—and make careful decisions. Explain to the career people why you're making the decisions, and adhere to the principle that you are only going to prosecute someone if you have admissible evidence that will have the likelihood of establishing a conviction.
I do want to add something else with respect to what I think I heard the tail end of, and that's the career people. I think we need to also think about the investigators, the people of the FBI and the Marshals Service, the DEA, the Secret Service, etc. Those investigators have a lot of power themselves. And we get back to the kinds of adult supervision you need in connection with initiating an investigation or deciding to go forward with it or deciding neither to prosecute or to decline. So this training and this preparation for the kinds of decisions that have to be made needs to be extended to the investigators. They're very important here because they get invested in these cases, too. And if the case is going to be declined, they need to understand why it's being declined.
Hon. John C. Richter: I'm going to open --
Andrew C. McCarthy: John, may I just make --
Hon. John C. Richter: Yes, sir.
Andrew C. McCarthy: May I just make one point?
Hon. John C. Richter: Go ahead.
Andrew C. McCarthy: I think one of the things that is hovering over all this that is worth noting is that the main checks on executive abuse are political, not legal. And a big part of the problem that we're dealing with here is Congress doesn’t really do its job any more as well as it should in terms of oversight. And, as a result, it's kind of coopted the Department into doing not just the kind of criminal investigations that we would always do in a corruption context, but also, more broadly speaking, abuse-of-power investigations.
And I think it's come up in a number of -- it certainly came up in the Nixon impeachment; it came up in the Trump impeachment, for sure. A lot of what's in the nature of abuse of power is not violations of the criminal code. And, ordinarily, we investigate to see if there's a Title 18 or some other penal offense. If there's not—we can't prove it, we don’t have probable cause at whatever stage and then we don’t have enough to make a case—we're done, you know. We dismiss the case and we move on to the next thing.
I think the Department's gotten a lot of pressure from Congress to get enmeshed in politics because Congress does not do the kind of oversight that it needs to do. And as a result, we're getting -- the Justice Department is getting pulled into a lot of investigations where, in ordinary criminal-law contexts, it wouldn’t proceed with those investigations. And I don’t know exactly what you do about that. But some of this stuff -- I think Attorney General Barr has said from the beginning of this current go-around in the job that the way to get politics out of the Department and the Department out of politics is, if we get brought into something, we look. If there's a criminal violation, you know, you pursue it in good faith. If there's not, then we're done. And there's got to be some better way to investigate abuse of power.
Hon. John C. Richter: So I'm going to open the panel up to questions from the audience. I have a number that have shown up here and see someone identifying themselves as Christopher Green with their hand raised.
If you're taking -- if you want to ask a question, obviously, you need to use the Raise Hand button in the lower middle screen. And then, when I call on you, you'll need to dial star-nine to ask your question.
So, Mr. Green, if you're on, what's your question for the panel?
Christopher Green: So, I'm not on the phone, but I think you can hear me.
Hon. John C. Richter: Yes, we can.
Christopher Green: Okay. It seems to me that prosecutors' offices have a pretty good fit --. Okay. I seem to have been muted. So it seems like prosecutors are a lot like out-of-control administrative agencies. And I wonder what all of you think about the idea of applying something like Overton Park or State Farm or just, you know, the requirement that prosecutors explain themselves—it might not be to a court, but to somebody—something like that kind of review, applying that to prosecutorial discretion in general?
Hon. John C. Richter: Well, Mr. Green, when you ask the question about explaining yourself, give me a for-instance that you're thinking of that maybe the panel can address more directly.
Christopher Green: So it seems like you always have a question. You're pursuing these goals, but at what cost? So at what point do these investigations become just absurd, going after people for technical violations that aren’t -- couldn't possibly be worthwhile? And that seems similar to the question, "Do you want I-40 to go through Overton Park?" in 1971. And they ultimately decided, "No, the Memphis Zoo is important enough; we're going to make I-40 go around," and they just had to explain themselves. But prosecutors don’t generally have to explain themselves. They can just decide to prosecute or decide not to prosecute. And they seem erratic in ways that the EPA and the other administrative agencies often seem erratic. So I'm just wondering if one of the measures -- one of the ways that we use to control administrative agencies might be useful as applied to prosecutors, too. So I hope that helps.
Hon. John C. Richter: Okay. Fair enough. [Inaudible - no sound 01:16:18] a volunteer from the panel want to take this?
Andrew C. McCarthy: I'll just say, I think what prosecutors do is different because we're protecting the presumption of innocence. So you can't really explain yourself very often without getting into what became the big problem in the Hillary Clinton case, which is going public with evidence against people who are presumed to be innocent. And, as far as checking what the Justice Department does, that's what the internal rungs of supervision and congressional oversight are for.
Gary G. Grindler: And then, internally, in most U.S. Attorney's offices, there's an ongoing review process—or there should be—during the investigation so that the prosecutor has to check in on a regular basis to give status updates and to talk about the facts and how things are being developed. And then you get back to the need for adult leadership. If it's a case that isn't a crime, then it needs to be stopped immediately. But I agree. And there are strong policy reasons for not walking out and announcing an investigation and talking about it—"This is why we decline"—because then you're implicating people that aren’t being charged, and that needs to be kept confidential.
Hon. Kenneth L. Wainstein: If I could just add here, John, that's a really good question. I think one way of answering it is to say that prosecutors do have to explain by having to secure a grand jury indictment, you know, from a grand jury. That's explaining that they have sufficient evidence to meet the necessary standard: probable cause and the belief that they’ll be able to secure conviction at trial.
But your question goes to the very valid point of, okay, what about explaining which cases you decide to bring and which cases you don’t decide to bring. I think we've just identified some structural obstacles to doing that in the criminal process because the Department doesn’t and shouldn’t say anything about anybody who is investigated and against whom a case was not brought. And so that makes it hard to then compare the facts of that case against the case -- or person against whom a case was brought. So it's just structurally sort of difficult.
But that goes back to some of the oversight mechanisms that I think John was alluding to. I mean, you have congressional oversight; you have the inspector general. And, as you know, the inspector general at DOJ in particular is very strong and very, you know -- they don’t balk at looking at any decision the Department makes no matter what level. You’ve got the Office of Professional Responsibility that reviews what lawyers do within the Justice Department. So there's a good bit of supervision looking at all aspects of practice, but in particular looking at whether politics intrudes in the decision making.
Hon. John C. Richter: Next question. I'd like to ask Kelly Shackelford, who's raised their hand here, to pose their question to the panel.
Kelly Shackelford: Thank you. My question is, I thought one of the worst perception-of-justice issues over the past few years was sending 25 to 30 heavily armed officers to arrest Roger Stone, who's 80 and lives alone with his elderly wife. Who makes that kind of a decision, and are there any consequences for that kind of abuse? And contacting CNN ahead of time to have them film it—that seemed way over the top, and I was just curious.
Hon. John C. Richter: Well, who wants to take that one on?
Let me ask the question a little bit less pejoratively and case-specifically. In terms of how a warrant gets served and executed—and, obviously, we've seen, historically, situations of criticism of perp walks and other types of behaviors that put the accused, I guess, in a difficult spot—how do we weigh that against, obviously, the need for law enforcement safety in the execution of a search warrant? Who makes those decisions? And to what degree is the question posed and the assumption fair, which is that, in a white-collar case with an individual who has no known prior criminal history, to what degree does -- can the means used be, I guess, too much and undermine, actually, the perception that the person is being treated fairly in the way in which the execution of the warrant is being done?
Andrew C. McCarthy: I would just say, in my experience, the FBI is—and whatever agency it is your dealing with; here, it was the FBI, but it's sometimes other agencies—they're obviously very significantly involved, I would say, in my experience, more significantly involved than the U.S. attorney is in assessing the risk of whatever operation you're talking about, whether it's serving a search warrant, I guess, is what we're -- or an arrest warrant.
And my inclination, for what it's worth, was always to defer to the Agency because they're the ones who are -- number one, they're better at assessing these risks than the lawyers are, generally speaking. And also, you know, they're the ones who have to go out and do the operation. Again, mistakes are going to be made because they're always made. And I am always a little bit hesitant to comment on investigations. I always felt, in my own investigations, that I generally knew something that the public didn’t know and that I couldn’t say, and that, if I was able to reveal that, people would have understood it a little better.
It's true that sometimes there are things that are done that are over the top. But a lot of times, when there's a show of force, it's done actually to prevent bad things from happening and accidents from happening, rather than to maximize the embarrassment or the danger.
Hon. John C. Richter: Let me call on Carla Westjohn, who had a question. Ms. Westjohn, I think you may be muted.
All right. I'll move on to Mark Lamb. Mr. Lamb, are you able to pose your question?
Mark Lamb: I am. Can you all hear me?
Hon. John C. Richter: We can. Yes, sir.
Mark Lamb: So my question was specifically about the application of switching prosecutors' protection from absolute to a qualified immunity. And a lot of the conversation is going around the internal protections that are listed within DOJ and the Office of the Inspector General's for misconduct, but there have been instances of prosecutorial misconduct that I think would -- and we grant qualified immunity to police officers who have to make sort of life-and-death, by-the-second decisions. What would be the argument against qualified immunity for prosecutors who make a deliberate and intentional act of misconduct?
Hon. John C. Richter: All right. Well, who wants to volunteer for the question of prosecutorial immunity?
I'll start for one second, and just say this: I think that, when it comes to intentional misconduct which would fall within the question of potential relaxation -- first of all, very high bar—right—to prove that a prosecutor was not -- was acting in complete bad faith. And, frankly, those are the cases that are the most egregious. They are probably the most infrequent. I think—in my experience, at least—far more often are the cases where the prosecutor did not act in complete bad faith, but may have been very misguided.
And there certainly have been some noted investigations of prosecutorial decision making. I can think of one during my tenure in the Department in which a federal prosecutor was ultimately indicted for decisions that he made in conjunction with a terrorism investigation. He was acquitted at trial, notably. Obviously, the consequence of reducing immunity means it's usually a boon for malpractice insurers. And it certainly means a greater level of potential collateral actions against prosecutors. And, obviously, as a policy matter, what you would have is presumably greater risk and slightly more risk-adverse behavior amongst prosecutors. At least that's my observations on it as a technical matter -- or as a general matter, rather than as a pure legal matter. But I think it would take, obviously, an act of Congress to change that standard as it presently exists.
Hon. Michael B. Mukasey: I think, also -- it's Michael Mukasey. I think also that fear of either a civil judgment or a criminal prosecution is not the principal deterrent to prosecutorial misbehavior, loss of professional stature and loss of a professional license is. And there's no immunity from that. So I think that that usually operates as it should.
Hon. John C. Richter: Okay. We've got time for one more question, and then we're going to close. Mr. Gilmore, James Gilmore. If you could pose your question quickly, please.
James Gilmore: Sure. Can I be heard? I think I can.
Hon. John C. Richter: Yes, sir.
James Gilmore: Yeah, I'm Jim Gilmore. I'm an ambassador over here in Vienna, Austria. So I'm a lot later than you are right now. But I was also a defense lawyer, a prosecutor, and an attorney general. And I thought I might point out there are checks and balances on this system.
First of all, my experience is the judges are watching you all the time to make sure that you're not guilty of misconduct or impropriety. And second, the press is always looking to see if there's some abuse of authority because they love to break that stuff, so they'll be looking for you. And then third, and most importantly, is the Bar and the ethics because you're still an officer of the court. And, if you are guilty of misconduct, there's nothing scarier than the Bar coming and looking over it.
I'm not sure about whether 1983 would apply as a check and balance on impropriety, abuse of discretion. And I just don’t know whether that would apply in a case like this—which I guess is my question, as to whether that's a fourth check and balance.
Hon. John C. Richter: I think it is, theoretically. But again, in my experience, when asked by clients to ‑- about what can be done about -- to vindicate what they perceive as the injustices of the investigation itself, either with a declined investigation or acquittal, the bars to pursuing the prosecutors individually are extraordinarily high. I think Judge Mukasey is right, though. These are all high achievers. They don’t like to lose, and there does tend to be professional consequences for losing.
I regret that we don’t have more time. We're at the bottom of the hour. And I want to thank each of our panelists here. I want to thank the audience for their attention. And a reminder that the next convention event, which is a discussion of "Regulatory Practice and Oversight in 2021 and Beyond," will begin at 3:45 p.m.
Thank you very much for your attention today. Have a great week.
2020 National Lawyers Convention
|Topics:||Administrative Law & Regulation • Separation of Powers • Federalism & Separation of Powers|
On November 9, 2020, The Federalist Society's Administration Law & Regulation Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The topic of the panel was "Regulatory Practice and Oversight in 2021 and Beyond."
While we think of “The Administrative State” as the relatively permanent apparatus of government, it has no lawful powers beyond those vested in officials the voters have chosen. “[T]he Constitution presumes that lesser executive officers will assist the President in discharging his duties.” (Seila Law) Those duties are, for the most part, implementing, administering, and enforcing the provisions of the laws Congress has enacted. What, then, are the implications of the 2020 elections for regulatory policy?
From the earliest days of his Administration, President Trump made it a priority to cut back on the regulations he believed were impeding American economic success. Among other things, he instructed agencies to drop two regulations for each one added, and to comply with all procedural requirements in issuing guidance, and the Department of Justice announced it would not defend “subregulatory guidance.” In response to the arrival and spread of the contagious and deadly novel coronavirus, additional regulatory streamlining accelerated the approval of vaccines and other medical technologies, and of federally funded or permitted projects. Where do these initiatives stand? What will a second term/new administration bring? What will the 117th Congress do? Will it give early attention to administrative rules under the Congressional Review Act?
Recent Supreme Court decisions on delegation (Gundy), on deference (Kisor), and on presidential authority (Seila Law) mean that Congressional oversight, and the President’s management, of the administrative state will play out on an evolving landscape of administrative law.
This panel will discuss the likely consequences of the post-election prevailing winds.
- Hon. Ronald A. Cass, Dean Emeritus, Boston University School Law; President, Cass & Associates
- Hon. Sally Katzen, Professor of Practice and Distinguished Scholar in Resident; Co-Director, Legislative and Regulatory Process Clinic, New York University School of Law
- Prof. Adam J. White, Assistant Professor of Law, Director, C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University; Resident Scholar, American Enterprise Institute
- Moderator: Hon. Ryan D. Nelson, United States Court of Appeals, Ninth Circuit
Dean Reuter: Hello. Welcome, or welcome back as the case may be. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups here at The Federalist Society. I am not Judge Ryan Nelson of the Ninth Circuit, but we're having some technical difficulties, trouble getting him linked into our Zoom call. So I am going to, at least at the outset, act as the moderator for this, our final panel of the day.
I'm very pleased to welcome our three panelists. We're going to be talking about "Administrative Law & Regulation: Regulatory Practice and Oversight in 2021 and Beyond." And I'm very happy to welcome three guests who, in this audience, probably don't need much introduction, so I am going to be very brief. We're going to get opening remarks from each of about five to eight minutes.
And we're going to hear first from Ron Cass. Ron is Dean Emeritus at Boston University School of Law. He's also President of Cass & Associates.
He'll be followed by Adam White. Adam is the Assistant Professor of Law and the Director of the C. Boyden Gray Center for the Study of Administrative Law at the Antonin Scalia Law School, George Mason University, right here in the Washington area. And he's a resident scholar of the American Enterprise Institute.
Finally, our good friend, Sally Katzen will speak third. She's a Professor of Practice and Distinguished Scholar in Residence, and Co-Director of the Legislative and Regulatory Process Clinic at the New York University School of Law.
With that, Ron Cass, the floor is yours.
Hon. Ronald A. Cass: Well, thank you. I'm going to start with a story that's obviously true. It involves talking animals, the sure sign of a true story. This story may only make sense to those of you who are old enough to remember telegrams. So a pig walks into a telegraph office and says he'd like to send a telegram. The fellow behind the counter says, "That'll be $10 for 10 words." So the pig, at that point, says, "I'd like to say, 'Oink, oink, oink. Oink, oink. Oink, oink, oink.'" The fellow who was working the telegraph office says, "That's only eight. You can have two more oinks, if you'd like to add them," at which point the pig says, "Then it wouldn't make any sense at all."
Obviously, there are settings where you have to know who you're talking to and what that person thinks like. When we talk about what might happen in 2021, beyond, in a new administration, whether the administration turns out to be a Biden administration or a Trump administration at the end of the day, I think there are a few things that are pretty clear.
One is that while the sort of orders that come from the President, sort of executive orders about regulation, can make a difference, and some of the orders that came down in President Trump's last four years obviously did make a difference, what makes a lot more difference in how the Executive Branch operates and how the regulatory structures operate is who is in the offices, who is making the decisions, and what the policy instincts are of the administration.
So if you look at the FCC's regulation of the internet under the Obama administration, the Trump administration, or you look at the EPA and the regulation of power generation, or the Labor Department's attitude toward overtime pay rules, or Homeland Security's approach to immigration, obviously, you have enormous differences in the substance of policies, in the details of policies, that are made by the people in charge and the priorities of the administration.
In addition to the people in the Executive Branch making a huge difference, who is in Congress also makes a difference. You have oversight of the regulatory and the executive agencies. The oversight that you get depends not just on the structures in Congress but on who's in charge, who the people are, who actually has control of the oversight levers, whether those are people who are essentially sympathetic to what the administration is doing or people who are opposed to that. At the same time, the judiciary and the rules for judicial review matter. There, the people obviously can make a difference in some cases. But people make a lot less difference there than the precedents do.
You have an enormous level of unanimity in the way that courts decide cases on judicial review. If you look at circuits like the D.C. Circuit, which are reported by academics to be circuits that only make decisions on the basis of the politics or the personal inclinations of the judges, the D.C. Circuit is unanimous something like 98 percent of the time. And yes, while there are some important cases where there is disagreement, there's some important cases where there's divergence among the judges, as there is in the Supreme Court among the justices. The precedents have a lot more to do than the personal inclinations of the judges with the decisions you get.
Over the last couple of terms, we've had decisions in some important cases from the Supreme Court in the Kisor case, in the Department of Commerce case, the census case, in the Homeland Security case dealing with the repeal of DACA. You have decisions from the Court that not only have purchase in the individual decision, but then also open doors to different ways of making decisions over the coming years.
So the Kisor case, which refuses to overturn the Auer decision, overturn the decision that gives special deference to agencies’ readings of their own rules, while it refuses to overturn the decision, Kisor essentially rewrites Auer. It does bring in some of the decisions of the Supreme Court that made some exceptions to Auer. But very largely, it rewrites it, and rewrites it in ways that also suggest potential changes to Chevron because it shows you that the Court is looking at exactly what it was that Congress gave to the agency to do exactly what the boundaries are of discretionary authority.
In the Department of Commerce case, which dealt with the addition of a question to the census on citizenship, the Court goes through the case and has a fairly generous way of looking at judicial review of agency decisions that are discretionary decisions, and then at the end of the case says that we're going to look at whether this decision was a pretext, which means that you have to look at the motivations of the decision maker, something that courts have been quite resistant to, going back to the Morgan cases of the late 1930's and earlier 1940's.
In the case that deals with Homeland Security, you also have a change in how the Court is looking at these cases that really does open up possibilities for the courts to be much more intrusive in their review of the executive decision. So I think that while the first eight oinks are fairly clear, what the last two will be and whether they'll be added over the coming years depends a lot more in the executive arena on who's there and, in the judicial arena, on how the courts interpret the recent decision.
Now with that, let me turn it over to Adam White.
Prof. Adam J. White: Thanks, Ron. Let me begin by saying a few words about administrative law, and then I'll finish with some broader themes on the administrative state. On administrative law, we're obviously in a very interesting period of flux. And I think to understand where we're going in the years ahead, we need to think clearly about where we've been.
For about four decades, the animating force and energy in administrative law was largely conservative, exemplified by Justice Scalia, Chief Justice Rehnquist, and the reforms that they made to administrative law, beginning with cases like Vermont Yankee and then heading through into Chevron and Justice Scalia's long-time defense of Chevron. They were reacting to a few errors that they saw preceding them, judicial micromanagement of federal agencies in the Nixon and Ford and then Regan administration, not enough room for presidential-led policymaking in administration under these practically open-ended statutes. In that sense, not enough room for elections to have consequences.
So their reforms, which we inherited -- Ron didn't inherit them. He was present for the creation, but I inherited them. Those reforms were aimed at specific evils that Scalia and others saw in the law -- or not evils, but excess. And it was the same excess that the conservative legal movement, in general, was pushing against, in terms of judicial micromanagement of policymaking through legislatures, and so on. It was part and parcel of the basic movement of judicial restraint, and Chevron exemplified it.
In Chevron, the Court tried to strike a new balance between political accountability and expertise and the rule of law. And by striking a balance, of course, it meant that we weren't getting perfect versions of any of those three things. And so there were drawbacks, and they became evident over time. Scalia's famous defense of Chevron in his Duke Law Journal article conceded all of this, the challenge that Chevron would pose to the rule of law if Chevron were applied correctly, as he saw it, the danger of just chaotic flip-flops from one administration to the next.
And so the Chevron balance always had its critics, first from the left and now, more recently, from the right, especially on the issue of the rule of law. And that's where we are today. Obviously, Justice Thomas, Justice Gorsuch, and Professor Philip Hamburger and others have pointed out that modern administrative law, though largely created by conservative reformers, opens real questions about whether we have a real rule of law in administration and the administrative state.
And so we've seen reforms pushed from conservatives and libertarians on Chevron, on Auer deference, on the nondelegation doctrine, which, of course, Scalia was wary of because he thought it could be standardless judicial lawmaking. But those who wanted to see a more energetic, assertive judiciary on these issues are calling for a stronger judicial hand on these matters.
That's where most of our attention has been paid the last few years, is the reforms that Justice Thomas and Gorsuch most have called attention to, and they're important. But I think it's also important to pay attention to the other conservative reform effort that's kind of happening in plain sight, and I don't think it gets as much attention, in large part because it's being led by Chief Justice Roberts.
In some of his opinions, he's been the Court's most full-throated critic of the administrative state. Just go read his dissent in City of Arlington, one of the Chevron cases. But more often than not, he's been in the majority in some cases, some which Ron mentioned, which have had a significant impact on the shape of administrative law going forward. He didn't write the majority in Kisor, but he was clearly at the heart of it, along with Justice Kagan, in trying to recalibrate judicial deference. Not get rid of it, but give more weight to some factors, like expertise and steadiness of interpretation over time rather than others.
We saw Chief Justice Roberts write the single biggest limit on Chevron that we've seen in a generation. And that was in his King v. Burwell case. And then we've seen him at the forefront of cases on, as Ron pointed out, the DACA rollback case and the Commerce census case, the Homeland Security DACA rollback case, where Chief Justice Roberts has led the Court in saying that the agency might be free to change its mind on issues, but trying to push the agency to be steadier and more transparent and more explanatory in the way that it makes those changes.
I'm actually much more amenable to those reforms in the law than I think Ron is. For me, I look at them and I see the Court almost operating with a gravitational pull towards what the framers did sometimes refer to as steady administration. We need energy in the executive, not for its own sake, but for the sake of steady administration. And the old consensus of Chevron and other deference allowing for much more agency back and forth over time or flip-flops, there's some value in that, but you can have too much of a good thing. And I think Chief Justice Roberts has pointed out that administrative law, or administration, seems less and less lawlike as we have these wild swings in policy from one administration to the next.
And so the question is, how can administrative law smooth that out? We've seen some of that in the Trump administration, and now as we move into the Biden administration, it will be interesting to see how the DACA case, the census case, Kisor, and reforms to Chevron, how that might affect the Biden administration's attempt to quickly or significantly change policy.
Just a quick word on the administrative state, and then I'll close. Administrative law is part of this issue of the administrative state, but it's only one part of it. And I think we need to pan back from time to time to the bigger picture about how our government actually is administered and how it administers laws.
I think it's a little unfortunate that the Trump administration began on this point with Steve Bannon's famous, or infamous, line about deconstructing the administrative state. Of course, there are policies that the Obama administration left behind that needed to be deconstructed individually. I was in favor of many of those deconstructions. But overall, as far as the administrative state goes, the challenge is really reconstruction. It's one of how do you build institutions that actually embody the values that better comport with the Constitution, and have those institutions, and not just scatter-shot judicial opinions, actually preserve the values that ought to be preserved.
There's been some interesting writing outside of the law on this, which I'd encourage people to read. Tyler Cowen, the economist at George Mason, wrote a fascinating article a few months ago about what he called state capacity libertarianism, sort of a strong state that can comport better with libertarian principles. There's a new book out by the journalists John Micklethwait and Adrian Wooldridge of Bloomberg and The Economist, a book called The Wake-Up Call, calling for a conservative but more expert administrative state. I think it's worth reading those things, even if we don't agree with them.
I think we ought to, at all times, be thinking about how to build institutions that can better take on the constitutional task of governance. And we need to remember at all times, Hamilton's line, so important he said it twice in Federalist 68 and 76, that the true test of a government is its tendency and aptitude to produce a good administration. That's the test of government, as Hamilton saw it. And I think we ought to focus more and more on that test.
And so what are the issues that that thinking presents? There's a few that I think conservatives and libertarians, especially, need to think through in the years ahead. What's the role of expertise in administration and how do you best balance it with political accountability? What's the role of civil service in administration? How do you ensure to have an expert civil service, but one that is kept -- where that expertise is kept within its proper role? What's the role of Congress's power of the purse in administration? This is a place where there needs to be much more scholarship. It's a total blind spot or lacuna in administrative law, Congress's power of the purse. But of course, in many ways, it's the most important part of all, most important part of the issue.
In all these things, again, I think the key question going forward is not deconstruction but reconstruction; not how to tear down policies or doctrines that we don't like, but what we want to build in its place.
And so on that note, let me turn it over to Sally Katzen.
Hon. Sally Katzen: Thank you, Adam. I am delighted to be here and to join my good friends on this panel to talk about a subject we all love and have spent a lot of time thinking about, administrative law and regulatory practice. We probably all need to get a life instead of spending time on this subject.
I do agree with Ron, that people is policy. And I sure hope that Adam is right, that the Chief Justice values will promote steadiness on the Court. But we have our differences that will surely emerge in the question and answer part of this panel. For now, I want to spend my few minutes and opening comments sketching out what I expect in 2021 and the next few years in this field. And I've organized my thoughts, as Ron did, along with three branches, Congress, the administration, and the Courts.
Congress. I believe there will be likely little activity or accomplishments in our field on Capitol Hill. Not only are there far more pressing issues, from the pandemic, the economy, race relations, climate change, senate confirmation of Biden's senior administration officials, just to name a few, but in addition, with Republicans controlling the Senate, the Democrats controlling the House, there will be little, if any, new authorizing legislation. There'll be no reg reform legislation. And there'll be no use of the Congressional Review Act to set aside any Trump regulations.
There will likely be more oversight of the agencies by the Senate, which can now move from inquiries about Benghazi or Hunter Biden. And there'll probably be less oversight in the House, although Democrats are not so solicitous of their leaders in the White House as Republicans usually are.
Now, with respect to the administration, I think we can expect an immediate uptick in regulatory activity. There's several buckets. Biden will immediately rescind the Trump regulatory executive orders, especially the two-for-one and regulatory budget experiments, and the creation of Schedule F that would strip civil service protections for many career civil servants. I think that's a given.
Agencies will likely reverse the Trump regulations that rolled back the Obama regulations, especially those relating to climate change, healthcare, and worker protections, updating the Obama version where appropriate. Agencies will also likely expedite new regulations in those areas of particular and compelling concern to this administration, such as race relations, the pandemic, and criminal and environmental justice.
I believe they will end the suspension of enforcement of the rules on the books. That is, rules have the force and effect of law, and this administration has gone to great lengths to end reporting and inspections, waived penalties, etc., for noncompliance with those rules that I suspect will change.
And lastly, I think there'll be a serious reexamination of the rulemaking process, starting with Executive Order 12866 and focusing on everything from increasing access of marginalized communities in the rulemaking process to such technical issues as giving weight to non-quantifiable benefits and distributional equities.
I'm uncertain about two other issues, whether the Biden administration would follow Trump's lead in asking the courts to hold in abeyance or suspend rules that have become effective but not yet taken effect because of judicial intervention, and whether they will use the interim final rules, which got an unexpected boost by Justice Thomas in the Little Sisters case, to put in place their regulatory preferences before notice and comment.
Now, with the Supreme Court, I think we will see changes in administrative law coming from the Court. Some sooner rather than later, because it will take some time, at least a couple of years, for most of the Biden administration rulemakings to reach the High Court. But over the last decade, I'm going to look back further, or so, there's been increased skepticism, if not hostility to the administrative state by the Supreme Court justices. And the recent addition of three new justices will, in my mind, likely accelerate that trend.
I don't know how it will manifest itself, whether it will take the form of greater receptiveness for the nondelegation doctrine that was discussed, fewer protections for civil servants who staff the administrative state. We saw hints in Freytag, PCAOB, and Lucia, further restricting access to the courts itself by continuing to tighten the standards for standing, finality, exhaustion, rightness. We've seen cases in all these areas that have limited judicial review, whether there be greater scrutiny of the justifications for administrative actions, as Ron indicated in the Department of Commerce case, imposing additional limits on deference to an agency's reading of its own authorizing statute or its own regulations.
I don't see anything seismic. Most of the recent trends in these areas have been modest, dare I say, timid steps. But I suspect that the march goes on, and on, and on. So I will stop. And I thank you very much.
Hon. Ryan D. Nelson: Well, I want to thank all the panelists for their opening remarks. I guess before we jump into questions, I'd ask if Professor Cass or Professor White would like to respond or should we just jump into questions?
Hon. Ronald A. Cass: Well, I'm happy to just add a couple of thoughts here. First, I have to say with respect to Adam's comment that too much of a good thing is something we want to avoid. I'd be happy to have too much of a good thing.
And on the comment that we have to find a place for expertise, I think expertise has often been something that has been leaned on to cover an unwillingness to engage with the fact that a lot of decisions that are made by experts -- different experts will make very different ways. I think that a lot of the discretion that has devolved onto administrators is discretion that we articulate being there because of their expertise. But while there is expertise in a lot of things, that doesn't dominate a lot of what the administrative state does.
But Sally, I think that, certainly, there are changes at the Supreme Court level. I see the changes at the Supreme Court level, though, very largely being in two camps. One is the camp that says we ought to divide sharply what is given to each branch. We ought to let Congress make the big decisions, write the laws, and then give to the agencies discretion to implement them and be clear about what discretion's being given.
I see in the Supreme Court, often, an instinct to say -- and I think this is true with different justices. I think it was true in Kisor with the opinion written by Justice Kagan. I think it's true in a lot of other decisions that have a more conservative tilt that the justices are saying we ought to let agencies exercise their discretion. That's what Chevron was saying. We ought to let agencies exercise their discretion.
But the courts want to put the boundaries around that. The courts want to interpret the law and say how far that discretion goes. And I think that the division in Brand X was a division between two different versions of how you express those limits, how you put borders around the exercise of discretion but let the administrators exercise the discretion they have.
Prof. Adam J. White: Can I nudge Sally on one of the points that she made? Sally, you said in describing what might come next in the Biden administration, recission of the executive orders on regulatory budgeting, and so on, I kind of wonder why that's necessarily the case? Maybe that's just politics, but those orders were very interesting experiment in rethinking how to do White House oversight of cost-benefit analysis.
If anything, I think it would be nice if the new administration were to sit down and try to analyze what was the impact of those orders; maybe it was terrible, maybe it was great, probably somewhere in the middle. But hopefully things like that, and this administration’s move on transparency in terms of guidance documents, whatever, I just hope that from the new Justice Department to the new OIRA, to the new everything, I hope the Biden administration, the agencies will stop and try to analyze what just happened before they just -- if they just tear it all down because Trump's agencies did it, I mean that's -- I just think that's not a very smart way to do regulation.
Hon. Sally Katzen: Well, I agree with you that the operating principle should not be tear it down because my predecessor did it. That was the guiding principle for the Trump administration, which if it had an O next to it, it was gone, and systematically reversing as much as they could whatever Obama had done.
No, I think that there are some things, take for example, I'll give you one. When I talked about lack of enforcement of existing regs, there were a number of areas in which there was a relaxation in the healthcare area to enable telehealth processes during this pandemic. It had been against the rules to use telehealth. That was relaxed. That has been good.
I am not saying that just because Trump did it, it will be gone. But the two-for-one in the regulatory budget I think has been studied a lot. And Adam, all of these studies have shown that you got zero new regulations from the two-for-one in the regulatory budget in the areas of health, in the areas of environment, in the areas of protection of employees, in the areas of civil rights. I think we have a lot of data, and I think getting rid of those two executive orders is the product of study rather than knee-jerk.
With respect to the creation, which is the other one I mentioned, of Schedule F, which deprives civil servants, thousands, potentially tens of thousands of civil servants of the protections they have had is a step far too far for almost anyone to want to take. And if you want people to implement anything, you need to have people who have something more of job security than the Secretary of Defense, who found out by Twitter that he's no longer the Secretary of Defense. So I think the ones I'm referring to are established by experience.
Speaking of civil servants -- and Ron, I hear what you're saying about expertise. It is not a blank check. It is not something which you can invoke to defend against any and all things. It does need to be cabined. I agree completely with that.
But if you think that the Congress, today or in the last half-century, would be able to provide the specificity -- you can say you want clear air, but should the level necessary requisite to protect public health be at 7.0, 7.5, 8.0? There isn't a person in the Congress that has a background in those fields. We have a handful of doctors, we have a lot of businessmen and women, and we have a lot of lawyers and a lot of economists, maybe. But we don't have plasma physicists, and we don't have any of the scientific expertise in the Congress to make those decisions.
So I think there is a place for expertise. And yes, you can disagree as to whether it's 7.0, 7.5, or 8.0. But the beauty for me of the administrative process is that the agency has to spell out why it picked the number it did based on which studies, why it ignored other studies, what the comments were, and how they treated them. And therefore, the expertise is not uncabined or unrestrained. And it needs to be explained. And if it is, we can still disagree. We're disagreeing right now, apparently, on the outcome of the election. But at least we have some common data that we can work with. And I think that's the role of expertise in the administrative state.
Hon. Ryan D. Nelson: Okay. Well, let me open it up with a question. Professor Cass and Professor Katzen, you both mentioned that people tend to drive the policies. This transition is unusual, it seems. In potential President Biden's camp, he has a transition team, but they don't exactly know what they're dealing with. They don't have -- they don't know who's going to control the Senate, at this stage.
And Professor Katzen, having been on the transition team for President Obama and Vice President Biden, I'd be interested in any thoughts you could share on are they are setting up -- do you think they're setting up two slates for if they win the two Georgia seats or if they lose one of those seats, so they know whether they have to -- what they're dealing with in Congress to get their cabinet picks through? Or are they, at this point, just taking the assumption that they're going to have to clear anything through a Republican Senate and proceeding on that route as they choose those initial picks?
Hon. Sally Katzen: Well, I think that's a very good question, and I do not have an answer. I'm not in the transition and therefore can't speak for what they are thinking or what they would be doing. But I can speak to where President-elect Biden is coming from, and that's working with other people. And I do not see him coming up with two different slates, depending on whether they have the majority or not of the Senate.
I see him thinking who is the best person for this job, who will bring to it the expertise, the experience, the gravitas, the sensibility, and the skills necessary to navigate in Washington, and that will be his choice. He will then, obviously, have to sell some rather than others.
But he has run this campaign, and I thought his speech Saturday night was very powerful in saying there's one America. And I think based on that, there'll be one slate of his cabinet that he will put together that will reflect the diversity of opinion in this country, that will reflect the different views that people hold. I don't think he will shut his ears to any group or constituency. I think he's a listener, and he's very good at it, I think.
Hon. Ryan D. Nelson: Professor Cass, did you want to weigh in?
Hon. Ronald A. Cass: Yeah, I wanted to disagree with one thing that Sally had said and agree with another. Neither one of those will surprise Sally.
First, the side comment that the Trump administration just rejected anything that President Obama's administration done, I think that is not correct. And I think it is much less correct with respect to what happened the last four years than what's being teed up on the other side right now. Certainly, there were reasons to be concerned about the immigration initiatives that seemed not to have gone through Congress the way a lot of people thought they should.
There were reasons to be concerned about initiatives in the EPA's domain that seemed to have enormous impacts on the nation, probably not within what was contemplated by those writing the underlying laws. Certainly, the EPA, when it looked at some of the fruits of its actions at other times said, "Well, we're going to have to rewrite the law to get where we want to go because we think this simply pushes things too far in that direction." So I would disagree with that characterization.
I think that your comment about the good thing about the current process, the current administrative process, is both that there's a lot of expertise on technical things in the agencies and that the courts forced agencies to justify what they've done. I agree that there is a lot of expertise in the agencies, although frequently, the agencies claim a scope of authority that goes beyond real expertise. It goes into personal judgments and political judgments, and there's a scope for that, as well. There's a scope for that when Congress says, "You have discretion over things. We're going to let you make up your mind. We're going to let different administrations come up with different solutions."
Right now, I think some of the recent decisions from the Supreme Court give courts more options for picking and choosing when and how they want to conduct their oversight of what the agencies are doing. And I would like to see more clarity from the courts, more narrowing of the judicial discretion on that side, as well as more clarity on what the scope is of administrative discretion.
Hon. Ryan D. Nelson: Okay, one more question. Professor Katzen also mentioned the Congressional Review Act and I think aptly noted that it's unlikely to be used, given that it looks like the Senate will be in Republican hands, or at least evenly divided and might make it difficult.
Interestingly, though, President Trump -- the Congressional Review Act's been used 17 times in its history since it's been adopted; 16 of those 17 times, it was used in the Trump administration to disapprove a rule. And when those rules are disapproved, the agency can no longer act on any rule that is substantially related to a disapproved rule without subsequent congressional action, which also seems unlikely.
Are there rules that were disapproved at the beginning of the Trump administration through the Congressional Review Act that will put subject matter restrictions on any of the agencies for a Biden administration to act upon, if you're aware of any? Or are we going to see some litigation on the definition of substantially related?
Hon. Sally Katzen: Are you asking me? Having been one of the people who worked on CRA as the point person for President Clinton, at the time, the substantially similar has never been defined, or at least not defined authoritatively. Does it mean virtually the same with modest changes that would hardly be noticed by a passerby, or does it mean in the same ballpark?
If it's closer to the latter, there are a few things that were disapproved early in the Trump administration that they may attempt to think about. For example, I'm thinking of the Social Security Administration rule that would refer those who have disability because of mental health issues and cannot work because they are having mental issues, sending those names to the people who clear for permission to have guns registered in their names. That was a hot ticket item at the time. I don't think they're going to try to relitigate that one, with or without further clarification.
On the other hand, I think the first one that was passed was talking about, in effect, bribes to foreign countries. And that was something that took almost everyone, including Republicans and the Hill, some surprise. So of the 16, they're all different grades.
In a way, I think it's almost too ancient to consider. There are really pressing problems now. And I suspect the agencies want to focus not on the past but on going forward with the economy, with the pandemic, with climate change, with race relations, with criminal justice, generally, that will take their attention, and not try to revisit, and some might say rectify, others might say just do over things that had happened in the past.
Hon. Ryan D. Nelson: Professor Cass, I don't know if you had anything, or Professor White, if you had anything to add to that.
Prof. Adam J. White: You can go ahead. Go head, Ron.
Hon. Ronald A. Cass: I think Sally correctly says that most of these things are not likely to be brought back up. And if they are, they're likely to be in a substantially different form. I think that people will -- in any new administration comes in and looks at things with different people and different priorities, and that almost inevitably will give a different shape to things. I think it is unlikely that we’ll see a lot of litigation over what substantially similar means.
Prof. Adam J. White: I was just going to note the irony. Nobody really knows what substantially similar means. I remember four years ago when the CRA was being used writing an essay with Sam Batkins trying to figure out what this means, and we just finally gave up on it. We really couldn't find the meaning, either.
Agencies are now going to be grappling with that sort of totally open-ended restriction on the agency's own freedom of movement, which is probably how a lot of the public feels when they face open-ended delegations of power to agencies to regulate them. And so I just note the delicious irony of this. But I think it's sort of telling that Congress decided -- rather than actually tuning up actual delegations of power to agencies, they sort of used the delegation to beat a delegation. And now we're all going to have to sit around in limbo and try to figure out what it means.
I think it's inevitable. At some point, an agency's going to touch on a subject matter that was struck down in a previous CRA rulemaking, and we're all going to have to sit around and figure out what the statute means. I guess it's a nice way to deter individual rulemakings that go overboard, but it hardly seems a way to run a country.
Hon. Ryan D. Nelson: All right. Well, we'll turn it over to some audience questions. And with that, we will go ahead and look at -- see if there's any questions from the audience. If not, I can throw out another while we're waiting.
Sally talked a little bit about what President-elect Biden, his priorities may be on day one. Other than the two executive orders that were mentioned, Professor Katzen -- and maybe it would be good to have Professor White and Professor Cass weigh in as well. Are there other policies or other executive orders that President-elect Biden may look to adopt in his first 10 days in the White House?
Hon. Sally Katzen: Thank you very much for that question. I think there are many, or at least several. I was focusing on those having to do with the administrative state. When I was choosing my examples, a third I did not -- there are two other areas. There's an executive order on enforcement and an executive order on guidance, both of which I believe would warrant careful scrutiny. I'm not saying throw them out in their entirety, but I'm not saying embrace them. There were a whole group of those.
But that bundle goes to process issues, and that's what I was addressing. I believe that you will see some executive orders in substantive areas. And he will resurrect, if you will, some of the general principles, whether it be for contractors, or for enforcement of immigration, or for in the climate area generally, in healthcare. A number of steps were taken by President Trump to limit or undermine, or whatever verb you choose to use, Obamacare. I think a lot of those will be reversed. Those were done by executive order, and I think you'll see changes there. So while I was addressing the process side, I think there's also the substantive side that they will pay a lot of attention to.
There's been a lot of pent up enthusiasm or dread, depending on what we're talking about. I don't have the answers, and I'm not sure anyone does. There's 70-some days before the Oath of Office is administered. And I know that during the transition that I worked on, the Obama-Biden transition, we got a lot jammed into those several months before turning it over with the enormous help and cooperation of the outgoing administration.
George W. Bush had said, in words of one syllable, "I want this to be the best transition ever. You open those doors. You welcome the people." And meetings with Josh Bolten and others where they said, "You tell us what you want. You tell us what you need. You will get it," and he was true to his word. It was absolutely beyond impressive how George W. Bush handled that transition.
So we had a lot of help. We were able to talk to civil servants and Bush appointees who -- I was doing, among other things, OMB. We were all over the budget, which has to go up within a very short period of time after the taking of the Oath of Office. And they gave us not only the bottom line but also all of the backup material—here's how we got to these numbers—so we could understand every single line item. They were magnificent and we got a lot done. Will that happen this time? I leave that for you all to decide.
Prof. Adam J. White: Sally, I liked your approach to the process orders. I think we're going to call it distrust but verify. But I think that’s a step in the right direction.
One thing I did like that the Trump administration did, which would be interesting to see the Biden administration repeat, because I think they will, is the Trump administration's use of substantive executive orders announcing certain policies that they wanted their agencies on issues of financial regulation, labor regulation, energy and the environment, just charting out general principles they want the agencies to pursue to the maximum extent allowed by statute.
I think that's really great, and I've written about this for the Notre Dame Law Review. I think it's really great to see a President announce his policies, put his name on the line so that accountability for those policies can go all the way up and not stop at just an EPA administrator, or the CFPB director, whoever. But it really shows that the President has put his capital into this. I think that's important to signal to the public where the policy's coming from, and I think it's important to signal down to the people administering, not just the Cabinet Secretaries but the whole agency, that this is a core priority. And I really hope that President-elect Biden repeats that, and I hope it becomes institutionalized.
Hon. Ronald A. Cass: Well, the other thing that does, Adam, and I agree with you on that, is it also gives people more information about what's going to be happening with the laws. It gives more lead time for people to adjust and more clarity about how laws will be administered and interpreted. And on the same plane, I think paying attention to the nature of guidance documents that come out of the agencies, how they're prepared, which ones are done just by issuing a document without going through a rulemaking, what the nature of the rulemakings will be, how those are -- I think all of that is very important going forward.
I should say, Sally, that when you said these are things that need careful scrutiny, I never have heard anyone take the other side of that and say they need careless scrutiny. But when we get to that debate, I want to make sure I jump in with you.
Hon. Ryan D. Nelson: Okay we'll move -- we've got a couple of hands raised. Just to remind everyone, you won't be able to ask questions directly. You have to raise your hand and get called on. We had somebody who was on, but I'll move on to Jeffrey Wood, if you want to go ahead and ask your question. You'll have to unmute yourself.
Jeffrey Wood: Okay. Can you hear me now?
Hon. Sally Katzen: Yes.
Jeffrey Wood: Great. Thanks very much. Intrigued by some of Professor Katzen's remarks, particularly about the Schedule F regulations. I'm not sure exactly what the perceived harm associated with it is. I suppose I could speculate that if it's viewed as a mechanism for removing federal employees who -- for malign political reasons and motives. I can understand that might be a perceived harm. If it's conversely viewed as a mechanism for efficiency and making the federal workforce more responsive, more similar to the private sector, I would think that would be a good thing.
In part, I'm intrigued because if I were, say theoretically, a federal employee myself, otherwise protected by civil service protections, and imagine that I might be a, let’s say, a supporter of President Trump—I know that's unlikely on a Federalists call—but I wonder if it might actually work to the disadvantage of the Biden administration to remove such a provision, depending upon the exact perceived evil or purpose of it.
Hon. Sally Katzen: I appreciate your question. And let me try to answer it in a couple of different ways. First of all, it's directed at anyone having any policy input. It's not the clerks; it's the people who have contributed to policy discussions.
And we saw during -- when the landing teams—I could not believe they called them landing teams—of the Trump transition, as though they were entering a foreign country with armed forces waiting on water's edge. But when the landing teams got to a number of different departments and agencies, they wanted names. "I want the name of every single person who worked on climate change at the Department of Energy. I want the name of every single person who worked on healthcare at HHS." Many of those were civil servants who were doing their job, their job being to serve the administration that is in authority at the time.
Now, I was at OMB during the Clinton administration. And I saw first-hand that until 11:59 on January 20th, every single person was working their hearts out and doing the best they could to satisfy the office of the President. And at 12:01, they were working their hearts out and could do everything they could to serve the office of the President. And in those two minutes, the person who occupied the office of the President changed. It changed from Bill Clinton to George Bush. And they fulfilled their commitment. That's what you want in a civil service. You don't want the days of Andrew Jackson. You don't want where there's wholesale elimination.
Now, you raised a very legitimate concern that I would never dismiss, and that is, is there sufficient efficiency in the civil service? Is there a way of disciplining or firing people who are not doing their job, not in terms of their political outlook, but in terms of their showing up on time, producing work within expected due dates, etc.? And that is something which does produce some bad apples. But the system -- and we're talking about millions of people in the civil service who are good apples, and they are doing what they've been asked to do and told to do.
And for them to be held up by fear of retribution -- and I will tell you, having lots of friends in the administration -- I'm not going to call it deep state, but they are in the agencies. They have been in the agencies, in some instances, for 5 years, 15 years, 25 years, 35 years. They're scared. They reacted to that executive order more forcefully, more angrily, but more terrified than anything that has happened in the last four years. So they perceive it as a terrible, terrible threat. And I don't think anyone in the private sector or in the public sector works well with the threat of a guillotine hanging over their neck.
And so there may well be a loss of efficiency, and I hear you on that. And I struggled with that in my own time in government. But if you do a cost-benefit analysis, and I struggled with a lot of that, as well, the benefits of civil service protection so far, in my mind, outweigh the costs. And I'd go with it in a nanosecond.
Hon. Ronald A. Cass: I have a somewhat different perspective on this. And I speak as someone whose father was a civil servant for 30 years, despite occupying the position that throughout government is a politically appointed position.
I know that civil servants -- that there are plenty of civil servants who are dedicated to whatever people they are serving, whoever it is in office at the time, and there are plenty of civil servants who also work tirelessly and efficiently. But I don't want to overstate. And I don't think we do anyone any good overselling the reaction people have based on rumor and press reports.
And I also think that in many agencies -- agencies differ. In some agencies, you have a real diversity of people within the civil service. In other agencies, you have people who got to the agency because of a deep-seated belief about what they wanted the mission of the agency to be. Maybe it was the mission at the time, but certainly, it was a mission those people embraced. And if somebody came in with a different view, with a different policy set of preferences and priorities, there was not uniformity in how people would respond to that and how many civil servants would embrace that.
Certainly, when you look at the arguments that rise to the surface in the census case, you see a real divide between people who are in agencies long-term and have their own policy preferences and people who come in with a change in administration and want to implement new policy preferences. It's not always something that happens without any sand in or grinding of the gears.
So I'm sympathetic to the notion that some changes need to be made and that more opportunities to get responses to whoever in office is running the policy position, who is exercising the delegated discretion, to get them to be able to accomplish what they see as the mission for the agency while they're there.
Hon. Ryan D. Nelson: All right, we'll move on to the next question. And now we will move on to Randolph J. Go ahead. And remember to unmute your mic and they will let you speak.
Randolph May: Thank you, Judge. This is Randy May. My middle initial is J., Randolph J. Thanks very much, and hello all of my friends there. So I want to -- the video's not on, is it? Because I would have gotten dressed up, but I don't think it's on.
I want to go back to the nondelegation doctrine for just a second. And I've been an advocate for some type of revivification of the nondelegation doctrine, if that's the word, or breathing new life into it.
So my question is this. Of course, we now have the intelligible principle standard that was enunciated in 1928. And I understand it hasn’t -- the two cases in 1935 were the last ones where the nondelegation doctrine, as it's properly understood, has been invoked. And I know what Justice Gorsuch said in Gundy, familiar with all of that. But I've always thought -- I think he basically said it ought to be jettisoned.
But here's my question to -- I guess it's maybe more to Ron and Adam, but Sally can chime in. I want you guys to help me out. If you wanted to breathe more life into it, I've always thought there would be a way to just reformulate the intelligible principle standard and have intelligible principle plus that would say, perhaps, something like the statute must have an intelligible principle that may be measured by reasonably objective criteria that relate to a legitimate legislative purpose, or something that would add.
So to help me out. Can you envision something that's just a little more than what was said in J.W. Hampton that would be workable, or is it like Scalia thought, just not workable to do anything else?
Hon. Ronald A. Cass: Well, Randy, I'm happy to take a first crack at this. First of all, there's a picture of you on my screen wearing a coat and tie, so you look terrific.
Randolph May: Gosh, I was afraid you were going to say something else, so thanks for that.
Hon. Ronald A. Cass: As to the intelligible principle assessment, when Chief Justice Taft wrote that opinion, he took a different tack from the other Chief Justice who wrote a notable opinion on the delegation doctrine, and that's John Marshall. John Marshall thought all the important decisions should be made by Congress, and then things that were less important, you could let somebody else make. And part of what Chief Justice Taft said is that there are decisions simply too important to be left to anyone but the Chief Executive, or people working for him. So it was a completely different way of looking at things.
The intelligible principle doctrine, I think, is just the wrong doctrine. I think the question is of whether you have an intelligible principle, but what the actual decision is that's being left to somebody in the Executive Branch or in the courts. If it's something that -- back in the first or second Congress, I think it was, they passed the Residence Act, which set up the District of Columbia. And the tough political decision was exactly where the capital of the nation would be. It was a hotly contested issue. It was one that divided people around the country.
Congress made that call. They said pretty much exactly where it was going to be, and then they left in the very fine details of buying, or getting, or having states cede the land to a commission. They left to the commission setting up all of the government buildings. And they didn't give any prints for how many buildings, of what type, or where they'd be. I think that's the sort of thing you don't need any sort of intelligible principle. It's just not important enough to be worried about the commission exercising that authority.
I think John Marshall had it right when he said it's the nature of the authority you're giving out rather than the detail with which you assign it to people that we ought to be looking at. And I think it's hard to get a really clear judicial test for that. That's why Justice Scalia was an opponent of a vigorous nondelegation doctrine. It's the one thing he and I argued about for decades without coming to agreement on. I'm not going to tell you who capitulated on most of the other things. But I do think that we would be better off trying to find a better way of cabining delegations than the intelligible principle.
Prof. Adam J. White: I could just say a word. The last big nondelegation opinions obviously were in the Gundy case. And they came out right within a couple of weeks, if I remember correctly, of the political gerrymandering case where the Supreme Court said there's just no standard here that's capable -- a judicially enforceable standard capable of dividing unconstitutionally political gerrymanders from constitutionally political gerrymanders.
And when that happened, I wrote a short note on one of the law blogs saying conservative reformers of the nondelegation doctrine ought to focus more on the gerrymandering opinions than the Gundy opinions to really see the challenge of constructing a judicially manageable nondelegation standard. And so I'm hopeful that we'll find a new standard. And these recent opinions, Gundy and Justice Kavanaugh's opinion in Paul, they're the opinions that have launched a thousand law review articles. But we'll see.
Ron, I wonder if maybe, ultimately, the energy be channeled into sort of auxiliary precautions, so to speak. Maybe we just do need judges to use canons of construction to narrow fields of discretion in order to avoid the constitutional problem. Maybe we need courts to do more work of what James Madison called liquidation. Over time, help fix the meaning of a statute in one place so that then the political energy isn't channeled into a new administration flip-flopping from one to the next—which, by the way, exacerbates all the civil services issues that we're talking about—but channels the power into the legislative process.
Maybe Sally's going to say, "What legislative process? It's all broken. Congress doesn't do anything." And that's true. I think that's as much a symptom of the delegation issue as a cause. I think that it's because the agencies can more or less venture whatever gambit they want to. But you don't see as much political pressure on Congress to really compromise. They know that the pressure release valve is the agency process anyway. And so I would like to see more effort focused on the major questions doctrine and on this issue of liquidation.
Hon. Sally Katzen: The only thing I would throw in to this discussion is the -- for those of you who want to read about it, is Nick Bagley and Mortenson's article where they look back at the very first several Congresses to see if there was any delegation and what kind of delegations exist. And Ron talked about one. Patents is another area. Tariffs and trades is another area where they found an enormous amount of delegation by the Founding Fathers, which casts in doubt some of the theses upon which those who want to change the nondelegation doctrine have pursued.
I actually like Adam's suggestion about where energy should be spent, so I don't want to detract from that. Thank you, Adam.
Prof. Adam J. White: I feel so bad because I was going to kind of dump on what you just said.
Hon. Sally Katzen: No, don't do that.
Prof. Adam J. White: After they read Bagley and Mortenson, be sure to read the new article that's out by Philip Hamburger. He has the latest piece on what he calls the issue of divestment. And it really is a direct response to Bagley and Mortenson. Our cup runneth over on things to read on nondelegation.
Hon. Sally Katzen: I was going to say we could spend a lot of time doing a lot of reading. And if the pandemic continues, we may do just that.
Hon. Ronald A. Cass: I think Ilan Wurman has another piece responding to that as well. There are several more pieces coming out from other people. I would say, Adam, I agree that looking at particular canons of construction is helpful. We just have to make sure it's with two n's and not three.
Hon. Ryan D. Nelson: All right. I think we've got time for one more question. And I'll go ahead and take the prerogative. Regarding the Appointments Clause last term, the Supreme Court weighed in and said that the CFPB had to go through advice and consent. They've taken another case with the Federal Financial Housing Authority, and then they just granted certiorari in yet another case addressing the Appointments Clause. Why has the Appointments Clause become such a hot topic? And is this something that is temporary for the Supreme Court to get some guidance, or is this a longer-term structural concern that is being addressed?
Hon. Ronald A. Cass: Well, if no one else wants to address it, I think that there are two things that drive this. First of all, there's been a lot more concern across the board with structural issues that have to do with the delegation of large amounts of authority to administrative entities. And that's why there's a lot of writing about nondelegation. That's why there's a lot of writing about the degree of deference given under Chevron or under other doctrines.
But also, there have been more statutes that have been passed that really do cabin any sort of oversight, whether it's executive or legislative. Now, if you have an agency -- I think that Sally may have mentioned the power of the purse. But certainly, if you have an agency that's insulated against congressional oversight in terms of regulating its budget, you have an agency that's insulated against executive oversight in terms of how it adopts policy, the more you pull back the agency from the usual controls, the more concerns over doctrines that they cabin agencies, authority, and regulate agencies use of their discretion have become important and become talked about.
Hon. Ryan D. Nelson: Okay. Well, thank you all. And I think we're kind of hitting at the end here, so we'll go ahead. And I really want to just thank the panelists for a robust discussion, and kind of a bit of a crossroads for administrative law and probably for many areas, generally. And thank the audience for joining us today.
I want to remind everyone that the next convention event and discussion of "Rule of Law or Just Making It Up? First Amendment Tiered Scrutiny" will begin at 11:00 a.m. tomorrow morning. And with that, we'll go ahead and let everyone have a good evening. Thanks again.
Hon. Sally Katzen: Thank you.
2020 National Lawyers Convention
|Topics:||Constitution • First Amendment • Free Speech & Election Law|
On November 10, 2020, The Federalist Society's Free Speech & Election Law Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel explored "Rule of Law, or Just Making it Up? First Amendment Tiered Scrutiny."
Different levels of Scrutiny are a staple of First Amendment Jurisprudence. Strict scrutiny for viewpoint-based restrictions, intermediate scrutiny for restrictions on commercial speech, and, over the years, amorphously defined other types of “heightened” scrutiny for restrictions on association, campaign-related speech, public vs. private figure defamation, and purportedly incidental speech restrictions. In recent years, however, various judges and justices have called for revisiting ahistorical or a-textual approaches constitutional analysis, in both the First Amendment and other contexts. And many scholars have long questioned whether tiered scrutiny is just a smoke-screen for ad hoc balancing, allowing judges to impose their own preferred outcomes in any given case.
This panel will explore both the theory and practice of tiered scrutiny in First Amendment analysis. Is there a textual or historical basis for creating such differential levels of scrutiny? Is a more historical or absolutist approach more faithful to the constitutional text? Is it even possible to avoid creating such judicial doctrines at the margins where the application of First Amendment principles to moderns circumstances can be challenging at best? As for the practical application of tiered scrutiny, how does one distinguish between important or compelling interests versus valid but otherwise ordinary interests? How does one determine a less restrictive means of accomplishing a governmental goal, and how much loss of efficiency is too much to ask to preserve some additional amount of speech? Are courts even remotely capable of providing consistent answers to such questions across a range of cases, or is it inevitable that the answer to any such questions will be entirely a function of the judge’s policy preferences?
If our judicial system is meant to be based on the rule of law rather than the rule of judges, does tiered scrutiny advance or hinder that ideal? Does the “rule of law” allow any degree of judicial discretion or judgment and, if so, is there any textual basis for deciding how much judgment is allowed and how much effectively eliminates any “rule” at all.
- Prof. Ashutosh Bhagwat, Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality; Martin Luther King Jr. Professor of Law, University of California, Davis School of Law
- Prof. Genevieve Lakier, Assistant Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School
- Prof. Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law Center
- Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, University of California, Los Angeles School of Law
- Moderator: Hon. David R. Stras, United States Court of Appeals, Eighth Circuit
- Introduction: Hon. Dean A. Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society
Dean Reuter: Good morning and welcome to this, the second day of The Federalist Society National Lawyers Convention. I’m Dean Reuter, Vice President, General Counsel and Director of Practice Groups at The Federalist Society. In store for you later today, we have a panel discussion on judicial association, with whom and under what condition judges can join or affiliate with what sorts of people or organizations and why knowing the details is important to practicing lawyers.
We’ll also learn more about the latest developments in regulating social media. We’ll close today with an examination of a special form of litigation, multidistrict litigation, which sometimes involves millions of people dispersed throughout the country and billions of dollars all under the control of a single judge. But first, our free speech panel moderated by Judge Davis Stras.
I’ve asked all the convention moderators to be very brief in their introductions, so I will do the same with Judge Stras. He’s been on the Eighth Circuit Court of Appeals since January 2019, before which he was a Minnesota Supreme Court justice for eight years, before which he was a professor at the University of Minnesota Law School, before which he clerked for Supreme Court Justice Clarence Thomas, during all of which he’s been a good friend. Judge David Stras.
Hon. David R. Stras: Thank you, Dean, and thanks to everyone online who’s participating in the panel -- or online that are viewing the panel. We have a wonderful group of scholars today to talk about the tiers of scrutiny in free speech. I will, as Dean alluded to, briefly give the bio of each of our individual panelists in the order in which they will talk just so you know who’s with us today and why you want to listen to them.
Our first speaker will be Genevieve Lakier, who’s an Assistant Professor of Law and a Teaching Scholar at the University of Chicago Law School. She is both a lawyer and an anthropologist having earned a PhD in anthropology. Her current research focuses on, among other things, the cultural history of the First Amendment.
Our second speaker will be Nick Rosenkranz, who’s a Professor of Law at Georgetown University Law Center where he teaches con law and federal jurisdictions. He’s a graduate of Yale Law School and a former clerk to Justice Kennedy. His research focuses primarily on constitutional interpretation and judicial review.
Our third speaker will be Ash Bhagwat, who is a professor at the University of California Davis School of Law. He’s a graduate of the University of Chicago Law School and a former clerk also to Justice Kennedy. He is a constitutional law scholar with an emphasis, which helps our panel today, on First Amendment law.
And our final speaker will be Eugene Volokh, who’s a distinguished professor of law at the UCLA School of Law. He’s a graduate of UCLA and a former law clerk to Justice O’Connor. He’s a member of the American Law Institute, a First Amendment scholar, and the founder and co-author of the popular blog, The Volokh Conspiracy.
So without further ado, I will turn it over to Genevieve, who is our first speaker of the day.
Prof. Genevieve Lakier: All right. Well, thank you so much for having me. I’m thrilled to be on this panel. You know, the tiers of scrutiny are part of the bread and butter of constitutional law. They’re doctrinal frameworks that courts use every day when deciding constitutional cases, but they typically don’t get their own spotlight. We don’t think about them sort of in and of themselves. So thanks to Professor Volokh for organizing the panel. This is going to be really fun.
So the tiers of scrutiny are a modern invention. The idea that to determine whether a government action is constitutional, courts, or really anyone else for that matter, must look at the strength of the government’s interest as well as the means it chooses to promote that interest -- this idea would have been wholly foreign to 18th century thinkers. And certainly when we look at the 18th century discussion of a First Amendment and the various state constitutional guarantees of free expression, the assumption throughout these conversations about these guarantees was that the rights they provided, they were absolute.
So it was widely assumed, for example, that what the First Amendment meant was that the government could impose no prior restraint on speech, no matter how good its justifications. And many thinkers, including perhaps most famously Alexander Hamilton, argued that no liability could be imposed on libelous speech that was true and could be shown to have been published with good motives, even if, or especially if, the result was to cast the government into a highly negative light. So these are views of the First Amendment that did not require or imagine the necessity of imposing anything like the tiers of scrutiny we know today.
Now, while there may have been less absolutist discourses about some of the other federal constitutional rights — the history of which I know less about — there is no question that the tiers of scrutiny the courts employ today, and employ not only in First Amendment cases but in many areas of constitutional law, these emerged only in the 1930s and 1940s around the time of the New Deal constitutional revolution. And for that reason, those who embrace an originalist conception of constitutional meaning might want to reject the tiers of scrutiny as illegitimate exercises of judicial power. One might think, as Justice Douglas sometimes argued, that the tiers of scrutiny unnecessarily dilute the strength of the First Amendment’s command by allowing courts to balance away our freedoms of speech and press and association.
But that would be a mistake, I think. And to understand why, it is necessary to understand why the New Deal Court essentially invented the tiers of scrutiny when it did. And it was not to limit the strength of First Amendment protection. Instead, it was a consequence of the Court’s embrace of a much more robust, much more counter majoritarian, and much more constraining view of the First Amendment and the parallel state constitutional guarantees of free expression than courts had held previously.
So the reason why the First Amendment protection could be construed in absolutist terms in the 18th and 19th centuries was because those protections were so limited. The government could be absolutely precluded from imposing prior restraints on speech because it had wide power to restrict speech after the fact, and also because, I think, given the much more rural and less urbanized social conditions of the 18th and 19th centuries, the government had much less reason to engage in extensive licensing of public speech that municipalities all across the country engage in today where they are constantly prior restraining speech in practice.
And the First Amendment could similarly be interpreted to absolutely protect true defamatory speech that was published with good motives because that construal of the law of libel in practice took off the table protection for true speech that undermined national security or that posed serious harm to government interest. That was considered speech that was published with bad motives. And in general, jurors were able to rest on a relatively simple, doctrinally undeveloped but absolutist view of freedom of speech and press because the restrictions of those rights were understood to impose on the government were so weak -- they were so limited that no one really had to wrestle with the difficult question of how to reconcile the constitutional commitment to these freedoms with other important and perhaps constitutionally protected values like national security or public order or equality.
In practice, those other values always trump freedom of speech, if not in theory. So it was only when Justice Holmes first announced a view of the First Amendment as imposing very significant constraints on the government that view of the First Amendment that prevented the government from being able to punish not only harmless speech, as had previously been the case, but also even harmful or offensive speech. It was only at this point that the tiers of scrutiny emerged in Holmes’ insistency that exhortations and opinions, sort of political speech, core political speech, could be subject to criminal punishment because of its message only when it posed a clear and present danger of serious harm.
And in this context, it becomes obvious that the idea of a non-absolutist First Amendment — which is essentially what Holmes was proposing — it emerged as a means of justifying the much more stringent protection of speech that Holmes and Brandeis wanted courts to read into it. It reflected the recognition that a robust theory of freedom of speech will inevitably create conflict, in some cases very serious conflict, with other very serious state and constitutional interests and that a mechanism had to be found to reconcile those conflicts if this new, robust counter majoritarian regime of free speech protection was to prove sustainable. And this is the role that the tiers of scrutiny would continue to play more or less in First Amendment jurisprudence throughout the rest of the 20th century and that they continue to play today.
At least in theory, the tiers of scrutiny provide robust protection for expressive and associational autonomy without preventing the government from ever being able to regulate the harmful, disruptive, dirty, ugly, whatever it may be, effects of speech. By requiring there to be a connection between the ends the government announces for its actions and the means it adopts to achieve them, the tiers of scrutiny also, in theory at least, allow courts to smoke out hidden but invidious government purposes, although I’m not sure always terribly effectively.
And finally, but very importantly, by forcing courts to engage in the context sensitive analysis of the effects of government action in the particular circumstances in which it acts, to ask not only as 19th century courts did — Is this the kind of action that the government may undertake? Does this fall into the category of permitted or prohibited government actions? — but to ask in these circumstances, does the government have a sufficiently compelling justification to engage in this action, given the consequences and the effects on the speakers it’s going to be regulating?
The tiers of scrutiny allow courts to embed into their constitutional analysis consideration of the differing economic, social, and political circumstances of different kinds of speakers to recognize that the same kinds of governmental actions may have more or less harmful effects on the expressive freedom or the democratic values that the First Amendment protects. So they produce, I think, on the whole a more realist, more sociologically sensitive view of freedom of speech than would otherwise be true. And this is certainly how Holmes viewed the clear and present danger standard.
These are all very important virtues of the tiers of scrutiny, virtues that would be lost were we to embrace a more absolutist model of the First Amendment. And in general, it is for me almost impossible to imagine an absolutist view of the First Amendment that was also not much narrower in its scope and much weaker in its force. This is because courts are going to be unwilling to allow speech interest to trump all other interests.
Now, again, to go back to the sort of question about originalism, a much weaker First Amendment would be more in keeping with original understandings of the meaning of freedom of speech and press. But in a world in which we understand the tremendous power that the government has to muzzle speech by the threat of ex post sanctions, it is not an attractive vision or one I think we and the courts are likely to return to any time soon. None of this is to say that the tiers of scrutiny in the form they currently take are perfect.
I don’t want to take up too much time so I’m not going to say much about this, although I hope we talk more about this in the conversation. But in their current form, the form of means and balancing, the tier of scrutiny the courts employ in their content-neutral cases — so for example, in their incidental regulations of speech cases or the time, place, and manner cases — they’re much too deferential, I think, to government interests. And an argument could be made conversely that strict scrutiny in its current form is just too strict.
But these are details. The point is that the tiers of scrutiny provide an important mechanism by which courts reconcile on the one hand strong protection for freedom of speech and press with other values, and therefore preserve judicial commitment to a strong and counter majoritarian First Amendment. Were we to reject the tiers, it’s not at all obvious what other mechanism would be available to perform that important and I think even, perhaps, foundational task.
Okay. So that’s all I’ll say for now. I hand it over to Professor Rosenkranz.
Prof. Nicholas Quinn Rosenkranz: Thank you. So I’m delighted to be with you all, if only virtually. And thank you, Genevieve, for getting that status quo on the table. I think my role here is to be a bit skeptical of tiers of scrutiny and to at least sketch an alternative approach, or at least hint at one.
For many in this audience the reasons for skepticism are obvious, and Genevieve actually hinted at several of them. First, obviously, they’re entirely atextual, so there’s no hint of them in the text of the Constitution. And that’s obviously true of many or most lines of doctrine, but at least many lines of doctrine plausibly actualize the constitutional text. Tiers of scrutiny seem to be a particularly poor fit for the absolute sounding language of the First Amendment.
Second, the tiers of scrutiny are essentially elaborate balancing tests. And the nature of this balance, particularly the assessment of the importance of the government interest, seems paradigmatically legislative. And while it’s true that there are, for better or worse, many such balancing tests in constitutional law, again, this seems a poor fit for the absolutist sounding text.
Third, the tiers of scrutiny don’t seem to resolve some of the hardest doctrinal puzzles. Strains of doctrine like overbreadth and maybe the O’Brien test and things pose some riddles that are kind of orthogonal to tiers of scrutiny. They don’t necessarily solve a lot of -- there are at least several problems that they don’t seem to solve.
And fourth, it is perhaps tempting to say that they’re simply essential for structuring this judicial inquiry, impossible to craft doctrine without them. But as Genevieve says, they are a relatively recent invention. So I think that alone should make us a bit skeptical of the sort of concern that we couldn’t possibly survive without them.
So with the balance of my time, I just want to begin to sketch what a First Amendment world might look like if the doctrine were reoriented toward constitutional text. I want to suggest first that the results aren’t as radical as they might appear; second, that it actually solves some doctrinal riddles that tiers of scrutiny don’t; and third, I want to suggest some surprising doctrinal harmonies that emerge when we take the text seriously, both within the First Amendment and more broadly throughout the Constitution.
So just a general point first. We’re in the habit of saying, “This statute violates the Constitution.” I insist that that’s not quite right. That’s a sort of pathetic fallacy along the lines of, “This gun committed murder.” Statutes don’t violate the Constitution; government actors do.
The Constitution forbids government actors from doing certain things. And so I claim that before we get to the how question — how was the Constitution allegedly violated? — we have to answer the logically prior who question, so who allegedly violated it? And I claim that just asking these questions and taking the answer seriously will properly structure First Amendment judicial reviews.
So I begin with what is really a pretty obvious point. Take for example the Sedition Act. So in 1798, Congress makes it a crime to write, print, utter, or publish any false, scandalous, malicious writing, writings against the government of the United States, etc. My simple point here is, okay, so we’re accustomed to say that the Sedition Act -- that there’s a First Amendment violation here.
My simple point here is, who has violated the Constitution in this case? I insist the answer must be Congress. This is the sort of insight that is considered radical in the academy but utterly commonsensical out in the world. They’re shocked that you can get tenure for an insight like this. The language says, “Congress shall make no law.” I claim, therefore, that the amendment is about Congress, so Congress shall make no law. I claim the answer to the who question has to be Congress in the First Amendment context, and that the when question follows.
So when was the Constitution violated? If the answer to the who question is Congress, the answer to the when question has to be when Congress made the law. So in this case, the Sedition Act, Congress made on July 14, 1798, that is the day of the constitutional violation.
But consider what follows if you take that seriously. That implies that the facts of the violation can’t quite matter. A challenge has to be facial in the sense that it has to be about the face of the statute for the simple reason that any enforcement facts happen after the violation of the Constitution is already complete, after Congress has already done the bad thing.
So if you were prosecuted pursuant to the Sedition Act, what exactly you said would matter to the prosecution trying to prove its case. It wouldn’t matter at all to your constitutional defense. Your constitutional defense would just require putting the text of the statue next to the text of the First Amendment. And Thomas Jefferson understands this, which is why his Kentucky Resolution declares this act of Congress to be, quote, “all together void and of no force,” and why he later pardons everyone convicted under the Sedition Act, regardless of what they had written.
So even though some of the speech perhaps could have been punished under some other law, it can’t be punished under this law. And that’s the important thing. It orients our attention toward the law rather than toward the speech. It’s a bit confusing to talk about protected and unprotected speech. We should really talk about problematic and nonproblematic laws. So that’s the Sedition Act.
Consider, for example, the O’Brien test and the question of laws which are, on their face, neutral as to speech but which might sweep up some speech-related conduct. It’s a bit of a puzzle for the tiers of scrutiny, but once you take the who and the when seriously, this becomes an easy case. Because the violation of the Constitution is the enacting of the statute, the doctrinal test has to be one that a congressman could conceivably apply ex ante in looking at the text of the statute.
And a statute that is speech neutral has to be constitutional or else every statute would fail because every action could be taken with a speech purpose in theory. And that answers our O’Brien question and actually shows us the relationship between a case like O’Brien and a case like Employment Division v. Smith. So just as a religion-neutral law is okay under the free exercise clause, perhaps a speech-neutral law is permissible under the free speech clause.
I have tons more to say, but I’m required to stop there. Sorry. I’m going to turn it over now to Ash Bhagwat.
Prof. Ashutosh Bhagwat: Thank you very much. I am going to speak briefly about a couple of aspects of the tiers of scrutiny that I think suggest that the modern absolutism is less true than it’s portrayed. The Supreme Court today, it seems to me — especially Justice Thomas in a case like NIFLA — seems to be on a campaign, sort of half the tiers of scrutiny approach. Content-neutral laws get intermediate scrutiny. Content-based laws get strict scrutiny. Spread it across the terrain of First Amendment law.
And for two separate reasons, I think that is very unlikely to be successful. One is it doesn’t really work. There are still quarters of First Amendment law, important quarters, where tiers of scrutiny really don’t make a whole lot of sense. And the most obvious example is situations where free speech law intersects with tort law, most famously libel in New York Times v. Sullivan but also the IIED tort in Snyder v. Phelps — this is the Westboro Baptist Church case — and the privacy cases from the ‘70s and ‘80s.
In all of those cases, the difficulty becomes what the Court actually focuses on is not the strength of the governmental interest at all. It focuses purely on whether or not the speech is on a matter of public concern or newsworthy. And that suggests something important, which is there’s situations when we are not willing to balance away First Amendment rights, frankly, in contexts such as privacy where the claim, the government interest in protecting victims, is actually quite strong.
So the idea that we’re going to be able to resolve all difficult issues by balancing the interest in speech with the government interest strikes me as being problematic. And I think other things that the Court has been trying to not focus on, such as how important is the speech from the point of view of maintaining democratic self-governance, are going to become important because it seems to me, for example, in a privacy case that that’s a very important factor.
The second problem and more fundamental problem I had with tiers of scrutiny — and it really reflects something that Nick said earlier, but I want to focus on it — is that the tiers of scrutiny approach requires the government to decide -- sorry, it requires the courts to decide how important a governmental interest is. Is it compelling? Is it substantial or important? Is it legitimate?
I don’t think the courts have any mechanism for making these judgements, and I don’t think they ever have. The idea really stems from Korematsu in 1944 where the Court upheld the Japanese internment, at least in part because of the very strong American interest in winning the war. That should immediately give pause because Korematsu is, of course, a terrible decision. And afterwards, you look especially at the First Amendment area, and the Court does not tend to really have -- it’s never really articulated to my mind any good theory for how to assess whether or not a government interest is compelling. And I’m not sure how they could because it strikes me as being a quintessentially legislative judgement.
So typically, the way the Court -- to give a sort of prime example, the Court has regularly, over the years, said that the government has a compelling interest in protecting children from being exposed to sexually explicit materials. It then almost always goes ahead and strikes down the law on narrow tailoring grounds. But that, frankly, strikes me as being problematic for reasons that I think Professor Volokh is going to talk about.
But I start with the question, well, why? Why is that a compelling interest? There’s no empirical evidence that children are harmed by exposure to sexually explicit materials. Frankly, if anything, there’s more empirical evidence that children are harmed by exposure to violent materials. Yet, in Brown v. Entertainment Merchants Association, the Court did not accept that as a sufficient interest to justify upholding the law.
And the answer seems to be some sort of historical understanding, but that’s very odd because the word “compelling interest” suggests some sort of an objective understanding. So my basic contention is that the tiers of scrutiny approach is not going to work in the area of strict scrutiny. I think in the area of intermediate scrutiny, where effectively we’re doing freeform balancing, it does work, though, perhaps, as Genevieve said, it’s too deferential to the government. But I don’t see a long term approach where strict scrutiny becomes a plausible form of analysis simply because the decision of what is a strong enough governmental interest to be able to overturn what we recognize as a fundamental right is not something that I think the courts are ever going to be able to come up with a coherent theory on.
And so I think we are left with how else do we decide when the government should be able to overturn a fundamental right. And I think that’s a question we haven’t really started to answer. The reality is if you look at the actual strict scrutiny cases in the area of the First Amendment during the modern era, there are only two cases in which a fairly unequivocal majority of the Court has found that the law survives strict scrutiny. One is Holder v. Humanitarian Law Project. That is upholding the Material Support to Foreign Terrorists Act. The Court deferred to the government on the existence of a compelling interest. That’s not real strict scrutiny. That’s national security, and that’s different.
The other case, the Williams-Yulee case, involves a bar on candidates for judicial office personally requesting campaign donations. That is perhaps the most bizarre strict scrutiny case ever because the Court never -- as the dissent correctly points out, the Court struggled to even identify what exactly the compelling interest was. So I think my own view is that, if we think that content-based laws should sometimes survive scrutiny, the compelling interest test is never going to give us a good way of determining when that should be so. And I think we need to come up with other ways of figuring that out.
I have thoughts in that regard, but I’m going to stop here and leave that for the Q&A session. I’m going to pass it on to Eugene Volokh.
Prof. Eugene Volokh: Thank you very much. So I agree with much that everybody has said, almost everything that everybody has said. I agree that some kind of escape hatch for the government is necessary, especially once you start striking down content-neutral speech restrictions that it’s hard to imagine an absolute rule that says you can’t have volume restrictions in residential neighborhoods at night, let’s say. If you’re going to have parades on city streets, well, people use city streets usually for other things. You’re going to need to have some kind of content-neutral speech restrictions. Something needs to be done.
At the same time, I entirely agree with Professor Bhagwat that what has been done is -- actually, I’m sorry. Maybe we should, if I might suggest, use first names. I think we all know each other. If not, we’ll know each other afterwards. I certainly know all of you. So I entirely agree with Ash that this is -- the existing scheme doesn’t really work very well. And let’s look at little bit at why. But before we figure out why it doesn’t work, well, we need to figure out what it means.
So heightened scrutiny, strict scrutiny, intermediate scrutiny, how does the Court define that? Well, it says that content-based speech restrictions must be narrowly tailored to serve a compelling interest. Content-neutral restrictions, so long as they leave open ample alternative channels, must be narrowly tailored to serve a significant governmental interest. And the inclusion or omission of governmental doesn’t greatly matter. It just varies from case to case.
So it sounds like the real difference is in the magnitude of the interest. It turns out not to be so. And in fact, there are very few cases where the Court has even suggested that’s something -- that what’s doing the work is sometimes just significant, but not compelling. There’s no doubt that strict scrutiny is very demanding. There’s no doubt that intermediate scrutiny is quite forgiving. But the language of the test doesn’t really tell us much.
How about restrictions on commercial speech, non-misleading commercial speech? I oversimplify here, but basically that. Well, the Court has said that those restrictions must directly advance a substantial government interest that could not be served as well by a more limited restriction. And in various cases, the Court has suggested that that’s just an elaboration on intermediate scrutiny. It’s pretty similar to content-neutral restrictions, although it turns out that, at least in recent years, this test has been extremely demanding. Not quite as demanding as strict scrutiny but close to it, even though earlier the Court had said, well, in many ways it’s pretty similar to intermediate scrutiny for content-neutral restrictions. And, indeed, it’s not like there’s any daylight between substantial and significant.
What about restrictions on disclosure -- excuse me, restrictions on mandates that one discloses certain campaign spending? Those, the Court has said, are subject to exacting scrutiny. They must bear a substantial relation to a sufficiently important governmental interest.
Well, all right. That sounds like it’s less demanding than intermediate scrutiny for content-neutral restrictions because, note, important and significant sound pretty similar, but substantial relation seems less demanding than narrowly tailored. Yet, many people say — and I think this in some measure reflects the way the Court has approached this — that it’s actually in between intermediate and strict scrutiny. But where, exactly, we don’t know.
So the language of those tests is, I think, singularly unhelpful, kind of in the way the Lemon test back in the day was unhelpful. Now, of course, some cases can elaborate on that. Well, what do they say? What does narrowly tailored mean, for example? Well, it means the restriction must substantially advance the interest. So sometimes the Court says, “You know, it’s really very speculative that this law would even advance the interest, so it means it sacrifices speech for no really good reason.”
It must not be overinclusive. So at the very least, that means that you can’t draw a law that just covers less speech but still serves the interest just as well. So an example that the Court has given, for example, in McCullen v. Coakley, which struck down 36-foot buffer zones around abortion clinics, it said, look, if you want to restrict, let’s say, trespassing or blocking entrances, you can do that through a law that’s focused on that. But the speech outside those entrances doesn’t advance the interest. The law as a whole advances it because, in the process of creating the bubble zone, it also prevents trespassing and blocking. But it could be written to cover less activity and not include this kind of speech.
A related thing is the restriction must be the least restrictive means, so there can’t be any alternative that does the job as well. So a classic example of that was a case called Sable Communications where the Court struck down a total ban on dial-a-porn. Remember that when people thought that the way people would get pornography is through the telephone? I guess in a sense they still do under certain definitions of telephone. In any event, there were restrictions in dial-a-porn -- there was a ban on dial-a-porn aimed at shielding children.
The Court said — and as Ash points out, maybe it was right; maybe it was wrong — but the Court said that it served a compelling government interest. But through less restrictive means, you could have credit card screening, or you could have subscriber level blocking through which parents could shield their children from this kind of dialogue.
So the first three are closely related because, in a sense, you could fold both one and two into three. Anything that doesn’t substantially advance the interest isn’t the least restrictive means, likewise with overinclusiveness. So sometimes, this is articulated as got to be necessary to serve a compelling interest. And it must not be underinclusive. So that says that if a law fails to restrict certain kinds of speech that affects the interest pretty much as much, that’s a sign that there’s impermissible content discrimination. That’s a sign the government itself might not be viewing the interest as compelling.
Classic example, Erznoznik v. City of Jacksonville in 1975, there is a ban on the display of nudity on drive-in theater screens that are visible from the street. And the Court said there isn’t really a substantial enough interest in shielding people from offensive material. The law is overinclusive with regard to the interest in shielding children from sexually explicit material because it doesn’t cover just sexual explicit nudity.
What about traffic? There you are driving along, and there’s this giant naked person moving in vivid color on the screen. Wasn’t that something that might distract people? Ah, the Court says, but this is underinclusive. What about car chases? What about explosions? What about various other things?
It’s an interesting question whether the law should be struck down on those grounds. After all, you might say better a lesser restriction than a greater one. In fact, maybe the underinclusiveness made the law more narrowly tailored because it didn’t affect as much. Also, you might say — hard to prove this — but maybe nudity is more distracting than a car chase. In any event, that’s a very important element.
Now, what’s the real difference between intermediate scrutiny of content-neutral restrictions and strict scrutiny of content-based restrictions? It turns out that elements three and four are replaced for intermediate scrutiny with a reasonable fit requirement. Formally, the distinction between the tests is in the substantiality of the interest. Both tests are articulated as being about narrow tailoring. But the narrow tailoring for content-neutral restrictions is actually defined differently than for content-based restrictions. At the very least, I think poor judicial craftsmanship, although, it sort of evolved this way over the years, the end result is pretty confusing for litigators and for courts.
So let me suggest that there are some key questions that remain besides the ones that Ash identified, or in addition to them. One is how demanding is the underinclusiveness inquiry? So you mentioned two cases, Holder v. Humanitarian Law Project and Williams-Yulee v. Florida Bar. And they upheld speech restrictions under strict scrutiny by essentially ignoring the underinclusiveness inquiry as a practical matter, whereas some cases like Erznoznik -- and there are several others I could point to that are really all about underinclusiveness. So it looks like whether a law’s going to be struck down or not isn’t entirely defined, but it’s often defined by whether courts apply a version of strict scrutiny which underinclusiveness has a lot of teeth versus one in which it’s a lot more gummy.
Second set of questions has to do with question whether there’s some categorical prohibitions, whether there are some situations in which the Court essentially would say, “It doesn’t matter how necessary the law is to compelling government interest. It’s just impermissible.” You might say necessary and proper is a loose analogy. But you might say, well, some laws may be necessary even in a strict, super strict non-McCullen sense of necessary, that striking down the law would interfere with the serving of the compelling government interest. But it’s just not proper. It’s just not permissible.
So for example, there’s some situations, for instance, in Holder v. Humanitarian Law Project, where the Court seems to suggest that if a restriction is too substantial, it’s forbidden even when necessary to serve a compelling interest. It’s not that it’s overinclusive. It’s not that it covers speech that fails to serve the interest. It just covers speech in a way that too much interferes with democracy.
So Holder said it’s okay to impose a content-based restriction on speech essentially to foreign terrorist organizations, speech that’s coordinated with foreign terrorist organizations, because that’s necessary to help prevent terrorism. But what about an op-ed in The New York Times saying, “This organization that we call terrorists are actually freedom fighters. We should all support them.”? That may help that organization, which may be genuinely terrorist, much, much more than some coordinated communication. But the Court suggested in Holder, well, that would not be permissible.
What about viewpoint-based restrictions? There are two cases in recent years where the Court said, essentially, that viewpoint-based restrictions are categorically unconstitutional. It doesn’t matter if they pass strict scrutiny. That’s a perfectly plausible test, and I like that kind of approach, setting up just the rule, say viewpoint-based, unconstitutional. There’s some vagueness as to what’s viewpoint-based, but you can imagine that without then going into this quite underdetermined analysis. But the Court has in the past, I think, evaluated some viewpoint-based restrictions under strict scrutiny, although it struck them down. And those cases didn’t have real occasion to grapple with each.
What about restrictions that aim to achieve effects by preventing people from being persuaded? Which is to say, let’s take a commercial speech restriction. Let’s say that the law would ban advertising of gasoline burning cars because that would encourage people to buy those cars, which would increase consumption of gasoline, increase greenhouse gases, let’s say. Would that be constitutional?
Recent cases, recent commercial speech cases — and some old ones, too, unlike some that were kind of in between — seem to say that’s just not permissible. It doesn’t matter how practically effective a means that is of achieving the government interest. It’s just an impermissible form of tailoring.
Again, I think that’s a good kind of rule, and there are some other cases which we can talk about during Q&A that support that. But it’s not something that’s at all visible on the text of the test. And another question that arises — and it arose in Holder, the foreign terrorist organization case and in Brown, which Ash mentioned, Brown v. Entertainment Merchants, which is the violent video game case — is how much should judges defer to government empirical judgements? And those cases reached quite different results, answers to that question. And again, that’s not something that’s clearly visible on the surface of the scrutiny tests but ends up being really important.
So to summarize, I think there needs to be some means of figuring out when restrictions are constitutional. I’d prefer trying to use a more categorical approach like the Court historically has set as to libel, incitement, and such. But I don’t know if that would work, for instance, for intermediate scrutiny or for other kinds of things, let us say, for content-neutral restrictions.
But if we are going to stick with this, I think that it would be better to go back over it if the Court is willing to do that, which the Court so rarely does, and ask what is really going on there because the current formulations of the tests don’t really explain what’s really going on. They are poor guidance for lower courts. They are poor guidance for litigators, and they’re poor guidance for the regulated government officials, let us say, the government officials whose government action, as Nick points out, the First Amendment is trying to restrain.
So with that, I turn things back over to Judge Stras, who’ll start a conversation.
Hon. David R. Stras: Thank you very much. Thanks to everybody. This is fascinating. I’ll sort of end where Eugene -- or start where Eugene ended, which is to say that he’s absolutely right when he says this is a really tough area of law for judges to navigate. I mean, the fact of the matter is there’s so many -- even beyond the tiers of scrutiny, there’s so many subcategories of issues within those cases that, suffice it to say, I learned a little bit about how everything fits together. So I thank each of you for your remarks. They were excellent.
Before we turn it over to audience questions, I want to give folks on the panel a chance to respond to each other. And Genevieve, I know you had a couple of comments you wanted to make, and I’ll give each of you a chance to either ask a question of someone else or give a couple of remarks in response to your co-panelists. So Genevieve, you first.
Prof. Genevieve Lakier: Okay. Great. Thank you. So, yeah. These questions, I think, are primarily for Ash and Eugene, but, Nick, feel free to chime in, too, because just listening to the comments made me think that there are actually two different questions on the table here, and I don’t want to mix them up. They’re both very useful and interesting questions.
One is, is the current application of the tiers of scrutiny faulty in some way? Eugene suggested it’s very nonobvious what these tests mean. And I know this because when I teach free speech -- I’m teaching the First Amendment speech clause right now. Whenever I go over the O’Brien test and the intermediate scrutiny test, there has to be like a debriefing for the students so that they actually know what these mean because it’s absolutely -- Eugene’s right. It’s not obvious from the text. So there is a good question about transparency and also what is going on there.
So my view about why there is this poor fit between what the words on the page say and how courts apply them is that the tiers of scrutiny emerged -- have a sort of deep history in First Amendment law but have been distorted, transformed, reshaped, by a much more recent addition to the jurisprudence, which is the distinction between content-based and content-neutral speech regulation, which is overpowering everything. So tiers of scrutiny tests for what the Court thinks are content-neutral regulations have become more deferential over time and less restrictive of the government. And tiers of scrutiny tests like in the commercial speech cases that are dealing with content-based regulations have been more like strict scrutiny.
So there’s a way in which we might be seeing the transformation, the evolution of the tiers of scrutiny. But in the early and mid-20th century, I think the Court was very sensitive to the problem that the government might overregulate or might significantly limit the expressive opportunities of groups, even when it had a content-neutral purpose. Even when it wasn’t trying to actually go after speech because of a specific part of its content, the effect might nevertheless be very pernicious on these expressive activities of certain groups. Or just in the context in which it applied, it might be bad.
So it was relatively rigorous when it applied a content-neutral, intermediate standard of scrutiny. And in recent decades, I think the Court has turned away from that. Really, I think what the Court thinks it’s doing in most of these cases is looking at the legitimacy of the government’s purposes. And I think that’s a mistake because I think that we really should -- it’s very easy and cheap to regulate speech. The government internalizes all the costs of speech, but it doesn’t internalize the tremendous social benefits.
So I think that there is a -- I agree with Eugene that there’s all kinds of problems with the current tests in part that are evident by but maybe not caused by the non-transparency of the language. But that seems to me just qualitatively different kind of question from do we need the tiers of scrutiny at all? The fact that right now they’re not operating in the same way they did maybe 50 years ago and therefore they’re quite difficult for courts to apply and they’re achieving that maybe we may not like in every instance, that’s a reformist project.
We might say, well, we’re just getting it wrong. We should bite the bullet and say it’s strict scrutiny in commercial speech cases. We should think again about how we deal with content-neutral cases. But that’s all within the realm of the tiers of scrutiny, unless there’s some reason to think that this is a sort of inevitable feature of the approach.
And then the second question that we’ve been talking about is, are there reasonable alternatives? And Ash, actually, you suggested two, I thought, which was really interesting. I mean, we could have a -- the primary distinction could be high-value/low-value speech. Because in all the cases that you were talking about in which we don’t really apply the tiers of scrutiny, those are all cases involving low-value speech, really, in which courts feel free to apply different kinds of rules. But for those who are worried about judges making it up, I don’t think we should feel great about jurisprudence organized around high-value/low-value speech because what you see in low-value speech cases is just really free judicial balancing.
I mean, think about the libel cases. The Court’s just doing a first order -- it’s just balancing privacy interests and reputational interests against government interests. And it’s creating this complex typology of public officials and public figures and limited public figures and private figures and then speech that doesn’t touch on matters of public concern. It’s just freely balancing, but the only reason it feels empowered to freely balance is because we’re in low-value speech land.
And the turn to that alternative triggers all the concerns I talked about at the beginning about how if we move away from the tiers of scrutiny, we’re going to, in some ways, have a narrower First Amendment. There’s going to be more pressure to find more categories of speech that are low value. And therefore, the First Amendment applies with full force in a narrower bunch of cases.
And then, of course, we could have just a simple distinction between content-based and content-neutral regulations of speech, which I think is actually where the Court is heading. But that worries me tremendously because I think the government can do a tremendous amount of damage when it’s regulating speech in a content-neutral fashion. And I wouldn’t want to just say content-neutral regulations trigger no First Amendment scrutiny.
At the same time, I think there are all kinds of content-based regulations that can be justified for when they serve important privacy interests. I’m thinking about, say, for example, the professional speech cases, which are often -- involve content-based restrictions on what professional doctors and lawyers can say. Those seem to me very important. And so a much more absolutist approach which says government may never engage in content-based regulation speech, but it may always engage in content-neutral regulation speech -- Judge Stras, it’d be much easier for you to apply. But I think it would be both overly restrictive of the government in some cases and underly restrictive in others.
Hon. David R. Stras: Responses?
Prof. Ashutosh Bhagwat: Sure, let me take a shot. Genevieve, I don’t think you and I disagree all that much, surprisingly. When I think of tiers of scrutiny in the First Amendment area, I think of it is intimately tied to the content-based/content-neutral distinction simply because it has been for 50 years. Mosley v. Chicago Police Department is early 1970s. That’s a half a century now.
So when I talked about tiers of scrutiny, I was also just associating that with content-based/content-neutral. And I completely agree with you. I think that is not an adequate tool around which to organize First Amendment law because, as I was saying, there are many areas where content discrimination makes perfect sense; for example, in the area of professional speech, as you said, where it’s utterly insane to say we can’t punish doctors for malpractice because that’s a content-based restriction on speech. Or let’s be better lawyers. That’s just funny. That doesn’t make any sense. And yet, that seems to be where Justice Thomas was heading in the NIFLA case, which is crazy.
And we’re not going to go there. We’re not going to overturn 200 years of common law because the Supreme Court has adopted an abstract idea that doesn’t really fit. I am just suggesting — and I know you disagree with me on this — that the tiers of scrutiny approach doesn’t really tell us when content-based discrimination is or is not a good idea. And I think there, you may agree with me.
And for example, I think there are several Supreme Court cases which say that laws which prefer political speech to commercial speech are unconstitutional. The Reed v. Town of Gilbert case and the Discovery Network case, I think that’s crazy. I think that if we actually think about why we have a First Amendment, it’s not that I would not protect commercial speech — I probably would — but the idea that political speech and commercial speech are equally important to the social values underlying the First Amendment simply makes no sense to me. I think that was the point I was trying to make. So I’ll leave it there.
Hon. David R. Stras: Other responses? Go ahead.
Prof. Eugene Volokh: Judge, could I chime in before Nick just because my question is in large measure for Nick, and then he could respond?
Hon. David R. Stras: Sure. No problem. Absolutely.
Prof. Eugene Volokh: So first let me say one thing that I like in the First Amendment area is the relatively categorical tests. So for example, the libel law rules. One can question whether they’re sound, but they do set up guidelines that I think lower courts routinely enforce. There are thousands of such cases every year, probably, at the various levels of American courts.
So they routinely enforce them. They have a pretty decent sense, usually, of how they apply. There are sometimes questions about who’s a public figure and who’s not, but usually there emerges a good deal of case law in the jurisdiction on the subject, for example. So there’re certainly flaws with it, but I like that approach a lot better than having libel law cases turn each one on how you apply strict scrutiny, let’s say, or intermediate scrutiny, for that matter. So I think that there are real pluses to that kind of approach.
But then the question, as Nick points out, is what do you apply that to? You imagine a categorical approach that’s applied entirely on the face of the statute. So I’m not sure Nick would say that, but he might say the original meaning of the freedom of the press seemed to exclude libel even in state constitutions. Maybe the federal constitution was only meant as to Congress, but state constitutions talked about liberty of the press as well. Everybody understood that some sort of libel litigation is permissible. So maybe we’d have categorical rules as to that, but only on the face of the statute.
So what I want to ask Nick about, though, is what happens with regard to many statutes which are on their face speech neutral but can punish speech because of the persuasive or offensive or other such power of the speech? So one classic example were the World War I Era Espionage Act and cases where the -- Schenk and Debs, really, and Frohwerk, and some others as well, where the law on its face essentially said that it’s a crime to interfere with recruiting for the military.
And it had lots of permissible applications. If you chained yourself to the draft office, you’d be committing that crime. If you bombed the draft office, you’d be committing the crime. But also, if you said things that encouraged people not to show up for the draft, not to register for the draft, not to go fight, you’d also be committing the crime under the text of the statute.
So you might say, therefore, that it’s just constitutional because the law on its face doesn’t even mention speech. I think some such laws sometimes do mention it in passing as one of the things that’s restrictive. But you could certainly image a version of the law that doesn’t mention speech at all.
Or let’s say, for example, somebody is prosecuted for engaging in racist speech in a place where it might lead to violence. No, that doesn’t fit. Brandenburg does not solicit. It just might lead to violence. He’s prosecuted for disturbing the peace. And disturbing the peace statutes often are written in speech-neutral ways. They can certainly be written in speech-neutral ways.
They focus on effect. They may focus on intent, but they don’t focus on the means. They equally apply to disturbing the peace by throwing the rocks, disturbing the peace through fighting words, disturbing the peace through political advocacy and the like. Cohen v. California involved not the general prohibition on vulgarities or specifically prohibition on vulgarities; it involved a breach of the peace law. So there are lots of such laws out there.
Holder v. Humanitarian Project is actually another example, and it’s the case that most clearly talked about this and said that a law that is facially speech neutral is still treated as a speech restriction if it’s being applied to speech because of its content. I think that’s a wise approach, whether the consequence of that is to apply strict scrutiny or not, or perhaps to use some more categorial approach is a separate matter.
But it sounded to me like under Nick’s proposal, any such law would be constitutional. So the government could, for example, by banning conduct that leads to race discrimination also punish speech that supports race discrimination, pro-race discrimination speech. Would that be sound?
Prof. Nicholas Quinn Rosenkranz: Thanks, Eugene. I have the luxury as a textualist academic of saying that if the results of the theory are bad, I don’t care. So Eugene, you can name lots of examples that will perhaps make me uncomfortable with their results, but I’m just not in that business. I’m trying to come up with the best reading of the Constitution. And if the results are unsatisfying, we should amend it. But if that’s what the text requires, it requires. I’m allowed to take that position as an academic espousing a theory; not so easy as a judge, obviously.
That said, though, I’m not sure that all the results are so crazy. So as you point out, viewpoint based is basically categorical as is. The Court says that it’s categorical. Content based is virtually categorical, right? There are very few cases that seem to come out the other way. And I think we could say the judicial candidate solicitation case just comes out wrong.
And Holder v. Humanitarian Law Project, as you point out, is maybe better analyzed as a speech-neutral law. And you’re right. It would be in the sort of Schenk/Debs kind of category. And it comes out the way it comes out, as do Schenk and Debs. They actually uphold the statutes.
And so, yeah, I think the key distinction that the Court should talk about more that we’re sort of dancing around is really speech neutral/non-speech neutral rather than content neutral/non-content neutral. You were worried, Eugene, about noise levels and things. But the noise level statute is really speech neutral, as long as the sort of car engine also can’t be that loud. Then it’s not a prohibition that is on its face about speech at all. So you’re still allowed to have rules like that.
And Ash, you say, “But surely we’re not going to overturn 200 years of common law?” But I say the exact point here is that that’s common law. That’s not actually legislative. It’s not actually Congress forbidding these things -- and that the First Amendment is expressly about what Congress can do, what legislatures can do. So maybe some of these results are crazy, but maybe actually not as crazy as they seem and actually surprisingly consistent with some of the doctrine.
Hon. David R. Stras: All right. Thanks, Nick. Now, I’m going to take the moderator’s prerogative here, and even though I get to ask questions all day to litigants, I never get to ask the question that I’m about to ask which is, in the First Amendment context — and this is for anyone who wants to answer it — are we really doing law here?
And here’s the reason why I say that. So as Nick said, there is a disconnect between the tiers of scrutiny and the way the Court has interpreted the First Amendment. And then it seems to me — and many of you have brought this up — there’s two valuating steps in the First Amendment. One is what category are you in? Which tier are you in?
So for example, commercial speech is put in what we think is intermediate scrutiny category because it’s less valuable speech. So that’s sort of the valuating decision number one. How do we value the speech, and how do we view it?
And then number two — and I think Ash brought this up — which is when you get to compelling interest and you get to rational base, etc. -- there’s not a lot in rational basis in First Amendment, but when you get to that point, you’re making a valuating judgement about whether the interest that the government is trying to protect is really important enough to justify the restriction. And so are we really doing law? Is there some principled common law or textual basis for this? Or are we really, as judges and as courts, just making a series of value laden decisions along these steps? And I know that’s a very loaded question, but I throw it out to you.
Prof. Nicholas Quinn Rosenkranz: Judge, I’ll just say of course I agree, and I think that’s an indictment of this rubric. And I’ll just suggest compare with the Fourth Amendment. So the First Amendment, I point out, restricts legislative action. The Fourth Amendment doesn’t. It restricts executive action, and it expressly invites judges to balance, in just that way, unreasonable searches and seizures.
So is a search at 3:00 p.m. more reasonable than a search at 3:00 a.m.? A judge gets to say yes. Is the government interest in searching for a single marijuana joint as great as the government interest in searching for nuclear bomb? Clearly not, but that’s just the sort of costs and benefits of whether a search is reasonable or unreasonable. The Fourth Amendment text invites you to do that balancing. And the First Amendment clearly doesn’t. The text of it is distinctly in contrast to that Fourth Amendment invitation of balance.
Hon. David R. Stras: Others? Genevieve, I think you were anxious to give a response, too.
Prof. Genevieve Lakier: Well, I did think it was interesting the opposition between value judgements and law. I think law inevitably involves value judgements.
Hon. David R. Stras: It does.
Prof. Genevieve Lakier: I presume that the question was why is it up to the judges to engage in these value judgement rather than the legislatures or the constitutional drafters. And I think you’re absolutely right that the modern First Amendment doctrine requires judges to be making value judgements all the time. And we could get away from that, but I think that means going back to the 18th and 19th century model, which is a majoritarian First Amendment rather than a counter-majoritarian First Amendment.
But that doesn’t just -- by the way, that doesn’t get out of the problem of value judging because what we see when we look at the 18th and 19th century experience is juries making those judgements in lieu of judges because, under the common law practices in speech cases, libel cases, blasphemy cases, what have you, it’s the jury that gets to decide whether the speech is actually causing harm to the order or not. And so we’re just moving it to a different agent. And also, by the way, we’re getting much less speech protected doctrine.
So I think we could have a much more coherent and consistent First Amendment doctrine. But as I said in my remarks, it would be a much, much, much, much, much, much, much weaker First Amendment. And so are we willing to go back to what Holmes and Brandeis rejected?
Hon. David R. Stras: Anyone else? All right. If not, we will move on to questions from the audience, so please raise your hand if you have questions. And a warning ahead of time, please unmute your line if I call on you. I’m going to go ahead and call on Adam Griffin for the first question. And the one thing I will say is keep your questions short. We only have about 12 minutes left, so please keep your questions as short as possible. Go ahead.
Adam Griffin: Thank you, Judge Stras, and thank you to the panelists for a great panel. My question is really for Professor Rosenkranz, but anybody can also answer. So I was wondering if Professor Rosenkranz -- if you’re saying that there could be no as-applied First Amendment violations, that everything would have to be facial, and that the executive cannot violate the First Amendment? So if the executive executes the law in a way that Congress could not facially legislate, that would not violate the First Amendment in your view? Thank you all again.
Prof. Nicholas Quinn Rosenkranz: Thanks. Those are great questions. Yes, it does imply that there’s no such thing as an as-applied -- that there should be no such thing as an as-applied challenge under the First Amendment. And that’s really what follows from O’Brien, which is suggesting a balancing test for speech-neutral laws and a place in this tiers of scrutiny rubric.
But the truth is the statute always wins. The statute always wins under that kind of analysis. And it sort of always should for the same reason that religion-neutral laws survive in Employment Division v. Smith.
So yes, it does suggest that. And does it suggest that there’d be no challenges to executive action under the First Amendment? Yeah. It sure does suggest that, too. It says Congress shall make no law, so it doesn’t forbid what the Executive Branch does. And that may sound radical and alarming. But I want to suggest that it’s not as radical as it may seem.
Just as an example, we actually do put up with -- the President doesn’t have that much freestanding power to restrict speech. But to the extent he has freestanding power in, for example, the military context as Commander in Chief, we actually do put up with all kinds of speech restrictions that the President imposes on the troops, for example. And you ask in the final part of your question in quite a pointed way, what if the executive were to enforce it in a way that the legislature couldn’t have legislated it?
And there might well be a problem with that, but the problem wouldn’t be a First Amendment problem. It would be a Take Care Clause problem. So if the Congress passes a speech-neutral law and the executive, for example, enforces it only against people who criticize his policies or something, that sure might be a constitutional violation. But it would be a violation of the Take Care Clause, not a violation of the First Amendment.
Hon. David R. Stras: All right. Unless anyone else wants to respond, we’ll move on to our next question, which is Maritza Bolano. And again, remember to please unmute your mic. Go ahead. Maritza? All right, we’ll have to move on.
Our next question comes -- and I hope I can get this name right, Franciszek Longchamps. And again, please remember to unmute your mic. And do you have a question for the panelists?
Franciszek Longchamps: Thank you very much. Thank you for the conference. I attend this from Poland where I teach in Krakow for freedom of speech and freedom of religion. And we use also American examples. There is a case mentioned today that is Reed v. Town of Gilbert. And I have problems with explaining this case to my students where you have 9-0 case that seems to be a very difficult because it seems obvious to the Supreme Court the result.
Even we have concurrence here, a very strong concurrence here. But reading an understanding of the statute of the Town of Gilbert in Arizona is completely different by the district court, the federal district court, and the Ninth Circuit, then obviously for Supreme Court as content based and not content neutral. We basically imagine that Supreme Court is rather more political than lower courts. But in this situation, it seems that more political in thinking about the local policy and signpost regulations is the court of appeals. Do you share this opinion?
Prof. Ashutosh Bhagwat: I’m happy to take a shot at that. As I think you know, I find the Reed case incomprehensible. I think it’s important to recognize that the case, I think, was fairly poorly litigated by the counsel for the city. The lower court conclusion that the law was content neutral was not really convincing at all. It was stretching doctrine in all sorts of ways. There are reasons why they could have gone in that direction, but it did not make a whole lot of sense.
The Supreme Court’s conclusion that the law was content based, I think, was correct. My problem is with the conclusion that then therefore it is inevitably unconstitutional, which kind of reiterates what I’m saying. If the city lawyers had forthrightly argued, as I think they should have, that the reason we’re preferring political speech over nonpolitical speech is because it’s more important to democracy, it would have been interesting to see what the Court would have said in response to that. But they never made that argument.
Prof. Eugene Volokh: So if I could just chime in because I think this is something I do disagree with Ash on, in part. I think that this is part of a, let’s say 1948 to 2018, so basically 70-year pattern of the Court declining to say that political speech is super protected above other kinds of speech. So I say 1948 because there’s a case called Winters v. New York in 1948 which involved a ban on certain -- I think they were like detective stories that depicted tawdry things in life, depicted sex and violence and all about crime, a lot about sex crimes.
And under state law, that was illegal. And the government’s defense is we’re not talking about political advocacy. We’re just talking about nasty entertainment. And the Court said entertainment is just as protected, in part because it’s very hard to draw the line between entertainment and political speech because we all know of entertainment that sends a political message.
So since then, while the Court has often said that political speech is on the highest rung of First Amendment protection, those are some wide rungs. The Court has made clear that other kinds of speech — not all, not false statements of fact, perhaps, not commercial speech — but scientific speech, religious speech — by the way, Reed involved religious speech — social commentary, artistic speech and the like are also fully protected.
And the rationale was that once you let the government draw the line, even if it says, “Oh, we’re making political speech super protected,” that will justify its making other kinds of speech less protected. And one of the strongest protections for various kinds of speech in the First Amendment context is the sense of required equal treatment, equal treatment of viewpoints especially strongly, but even equal treatment of subject matters, at least within this category of fully protected speech.
So maybe that’s a mistake when it comes to sign ordinances. Maybe you might say as to signs there’s just such a danger that if we allow it all there’s going to be all this clutter -- there’s going to be all this interference, clutter, all this interference with traffic. That’s bad, and you need to have -- at least allow the Court to distinguish political speech from, in this case, just describing events such as religious gatherings. But that’s something that the Court for a long time has been quite reluctant to do, and I think with good reason.
Prof. Genevieve Lakier: Can I chime in and give my --
Hon. David R. Stras: Anyone else? Sure.
Prof. Genevieve Lakier: Can I give my best account of why it was 9-0 in Reed? Because I think that the concurrence by Justice Kagan is the best account of what’s going on, and I don’t really like the majority opinion. Okay.
So I think the way to understand Reed is that there’s a fight going on about what counts as content neutral, what counts as content-based speech regulations. Is it going to be a facial test where any time there’s a content category on the face of the statute we’re going to treat it as content based and apply strict scrutiny? Or is it going to be, as the Supreme Court and lower courts had held in many cases for many years up until that point, that we’re going to look at whether the government is -- the purposes that the government is regulating the speech? Do the purposes have something to do with preventing -- with concerns about the harmful effect of the message, or are they completely irrelevant to that? And so that’s going to determine the tier of scrutiny.
What Justice Kagan says in her concurring opinion in Reed is that, “Look, we may think that this is a content-neutral regulation of speech.” There’s a big caveat here. But at least on its face, this looks like a content-neutral regulation of speech because, for all the reasons Eugene just mentioned, there’s lots of reasons to regulate signs that have nothing to do with the dislike of the content.
But even if we apply the relatively deferential intermediate scrutiny that we apply to content regulations of speech, the Town of Gilbert has really no justifications for the way its singling out religious messages or church messages by imposing really onerous restrictions on when they can put up signs and when they can put down signs that don’t apply to other kinds of speech. And that raises all kinds of concerns that actually what’s going on here is some kind of religious discrimination. And I will just say I think it’s interesting that this didn’t appear more in the opinion by the Supreme Court, but if you look at the history of the enactment of the ordinance, it looks very suspicious.
Originally, it just applied to churches. And then I think the Town of Gilbert recognizes that this is problematic, and so it broadens it and obscures what it’s doing. But I think there’s a lot of antireligious animus against this church behind the ordinance. So Kagan says, “Even if we treat this as content-neutral, this is still terrible,” because, as I noted earlier, there’s lots of reasons to think even when the government is regulating in a content-neutral fashion, its effects might be bad, or it might actually be using content neutrality as a pretext and be trying to target particular speakers.
And so on that basis, I think the holding in Reed is absolutely correct. A municipality should not be able to use content-neutral sign laws to hound particular churches and to prevent them from publicizing their messages. But the majority goes further than that, and it says because this sign law makes a subject matter distinction between religious and nonreligious speech, strict scrutiny automatically applies.
And although I agree completely that the viewpoint distinctions have for many decades now been treated as basically categorically forbidden except in particular categories like profession speech and other categories, but when we’re talking about public speech, viewpoint discrimination is very problematic. Subject matter distinctions had never had that same disfavored status. So the difficulty -- why Reed is a difficult case is the majority opinion seems to equate a law that makes subject matter distinctions to laws that make viewpoint distinctions when there is actually no necessity to do so to reach the correct holding in the case. I’ll stop there.
Hon. David R. Stras: All right. Well, that’s going to have to be our last question because we’re butting up against -- in fact, it just turned 11:15. But I would really like to thank the panelists and all of you for joining us today.
Just a reminder here that the next convention event, which is a discussion on “Freedom of Association in the Legal Profession,” will begin in 15 minutes, 12:30 Eastern Time. And again, thank you very much for joining us, and I hope you enjoy the rest of the convention. Thanks.
2020 National Lawyers Convention
|Topics:||Constitution • First Amendment • Professional Responsibility & Legal Education|
On November 10, 2020, The Federalist Society's Professional Responsibility & Legal Education Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel covered "Freedom of Association in the Legal Profession."
The Code of Judicial Conduct for federal judges and the Code of Judicial Conduct template for state judges, as modified by the States, both recognize the propriety of judges engaging in extrajudicial activities that are consistent with their role as judges, and counsel judges to avoid impropriety and the appearance of impropriety in those activities. The federal and state templates differ, at least in part, because federal and state judges are selected in different ways. Put simply, we do not want our judges to hide in an ivory tower, but we also want them to behave as judges when providing the benefit of their experience. And, while we want judges to interact with the bar and the public, lawyers must be aware on the limitations on such judicial contacts. As a result, the notion of maintaining public confidence in the judiciary will be evaluated and enforced in different ways in each arena.
In January 2020, a draft advisory opinion from the Judicial Conference’s Committee on Codes of Conduct suggesting that federal judges ought not to be members of the Federalist Society or the American Constitution Society, but may be members of the American Bar Association, became public. That draft advisory opinion was based less on the actual activities of those organizations than on a belief that the public participation of judges in those organizations would further contribute to a public perception that judges are not non-partisan actors. The draft opinion was withdrawn, but its effects have lingered as lawyers, judges, law clerks, and law students have had to tiptoe around its implications.
This panel will consider some fundamental questions that swirl around the extrajudicial activities of judges, including those raised by the now withdrawn draft advisory opinion. For example, what are the core values that support the federal and state rules, and how do they differ? To the extent that we focus on public confidence in the judiciary, how should we evaluate it? Is public confidence in the judiciary capable of empirical evaluation or a matter of a priori judgment? Whose judgment matters: That of an average person? A reasonable person? A reasonable lawyer? A regulator applying one of those artificial constructs? What rules apply to a judge’s membership, holding office in, or participation in an organization, or writing and speaking?
- Hon. Thomas B. Griffith, United States Court of Appeals, District of Columbia Circuit (ret.)
- Mr. W. William Hodes, Owner and President, The William Hodes Law Firm
- Hon. William H. Pryor Jr., United States Court of Appeals, Eleventh Circuit
- Moderator: Hon. Gregory G. Katsas, United States Court of Appeals, District of Columbia Circuit
Hon. Gregory Katsas: Good afternoon, everyone. Thank you for joining us. I’m Greg Katsas. Our topic for this panel is the extent to which judges can or should participate in activities of legal organizations such as The Federalist Society. This question came to a head in January when the Committee on Codes of Conduct of the Judicial Conference circulated within the judiciary a draft advisory opinion concluding that the Code of Conduct prohibits federal judges from being members of The Federalist Society.
As a long-time member of the Society, I became deeply concerned with the proposal, as did many other judges. Hundreds of judges wrote or joined letters opposing the proposed advisory opinion. Bill Pryor, Amul Thapar, Andy Oldham, and I drafted and organized one such letter. It was signed by over 200 judges. Many other judges submitted their own individual letters.
The questions addressed by the draft opinion turn on three canons of the Code of Conduct for Federal Judges. Canon 4 generally permits judges to engage in law-related activities. And one of its subsections more specifically states that judges may become members or leaders of organizations devoted to law, the legal system, or the administration of justice.
On the other hand, Canon 5 prohibits judges from becoming involved in the activities of political organizations, and Canon 1 requires judges to preserve the integrity and independence of the judiciary. The draft opinion addressed how these rules might apply to three prominent organizations, The Federalist Society, the American Constitution Society, and the American Bar Association. It implicates at least four different kinds of involvement: membership, leadership, financial support, and participating in the organization’s programs and activities.
In past advisory opinions, the Committee had advised that judges could join the ABA and the ACS as members, that judges could not assume leadership positions in the ACS, and that judges could make financial contributions to The Federalist Society. The proposed opinion would have changed course, at least in part. It opined that judges could not join The Federalist Society or the ACS as members, that judges could join the ABA as members, and that judges still could participate in the programs of all of these groups.
In July, the Committee withdrew its proposed opinion. The Committee reverted to its past guidance, and it urged judges to be vigilant in making individual judgements about what activities to engage in.
We have a very distinguished panel to address all of these issues implicated by the draft, now withdrawn, opinion. Professor William Hodes is an Emeritus Professor at the Indiana University School of Law where he taught for more than two decades. His academic interests include administrative law, civil procedure, constitutional law, federal courts, and especially professional responsibility. He’s a co-author of a leading treatise on professional responsibility, The Law of Lawyering, which was first published in 1985. He was the co-reporter for the ABA Model Code of Judicial Conduct, which was adopted in 2007. Professor Hodes graduated from Harvard College and Rutgers Law School. Twenty-seven years after graduating from law school, he clerked on the Supreme Court for Justice Ruth Bader Ginsburg.
Judge Tom Griffith served on the Court of Appeals for the D.C. Circuit from 2005 until September 2020. Judge Griffith graduated from Brigham Young University and the University of Virginia School of Law. He served as Legal Counsel to the United States Senate from 1995 to 1999 and as General Counsel of BYU from 2000 to 2005. As a judge, he taught courses at Brigham Young, Stanford, and Harvard Law Schools on subjects including presidential power, judicial process, and the role of Article III judges. Particularly relevant for this panel, Judge Griffith served as the D.C. Circuit’s representative on the Code of Conduct Committee until his retirement from the bench.
Judge Bill Pryor is the Chief Judge of the Court of Appeals for the Eleventh Circuit. He graduated first in his class at Tulane where he served as Editor in Chief of the Tulane Law Review. He then served as a law clerk for Judge John Minor Wisdom of the Court of Appeals for the Fifth Circuit. He was Attorney General of Alabama from 1997 to 2004. From 2013 to 2018, he served on the U.S. Sentencing Commission and was its Acting Chairman from 2017 to 2018. He’s a member of the American Law Institute and an Adviser for the Restatement Third of Conflicts of Laws. He’s co-author of a leading treatise on judicial precedent. He’s published in leading law reviews, and he’s a visiting professor at the University of Alabama School of Law. And as I mentioned, he was involved with me and two others in drafting a letter opposing the draft advisory opinion.
Without further ado, I will turn the floor over to Professor Hodes.
Prof. William Hodes: Thank you very much, Judge. I’m going to provide somewhat of a backdrop to the further discussion about the opinion that was mentioned. The title of our panel is “Freedom of Association in the Legal Profession,” but you’ve already heard enough to know that our focus is really on judges, the freedom of association of judges. For example, I’m the only person on your screen who’s not a judge.
The freedom of association of judges, in turn, is really shorthand for regulating or regulation of the extrajudicial activities of judges in their private and semiprivate, off-duty activities. And like so much in the law, this regulation is really a balancing act. On the one hand, it really is necessary to maintain the independence and impartiality of judges by removing them from direct participation in the hurly-burly of everyday politics, of everyday social strife of various kinds.
But on the other hand, it’s important not only to avoid having judges completely isolated from the communities in which they work and live. That would be the essence of mystifying the law to make judges even more removed from the way they are sometimes perceived. And therefore, we not only don’t want to remove them completely from our communities, but it’s actually an important value that’s reflected in these codes to encourage judges to contribute to social discourse. But the caveat is always in ways that is doesn’t interfere with their judicial duties, which are, of course, their main event, one of the key being, of course, to avoid having judges involved in so many extrajudicial activities that they generate frequent and frequently successful motions to disqualify.
Now, I should also add that this subject is important, I think, for the presumably large number of viewers and listeners who are lawyers rather than judges. And the reason for that is just as it is obvious that the restrictions, the very well known, well accepted restrictions on judges receiving ex parte communications instantly creates in lawyers a duty not to engage in those kinds of communications.
All of the rules that we’re talking about here about restrictions on what judges can and cannot do in their extrajudicial activities create an obligation in lawyers to be aware of these and know how they’re interpreted so that lawyers won’t draw judges into inappropriate contact or dicey situations; for example, inviting judges to be the headline speaker at some kind of charitable fundraising event, inviting judges to be character witnesses, which is not allowed, and so on. The lawyers need to be aware of those as well.
Now, as backdrop to the specific that you’ve heard is going to be discussed, I’ll note that just as almost all lawyers are subject to some version of the rules of lawyer ethics that are derived from the ABA Model Rules of Professional Responsibility, almost all state judges are governed, regulated by some version of the ABA Model Code of Judicial Conduct which was last fully revised in 2007, as Judge Katsas mentioned. And almost all federal judges are regulated by the Code of Conduct for United States Judges, which was not developed by the American Bar Association but was developed by the Judicial Conference of the United States.
Now, the two judicial codes share most of their stated goals, most of their stated assumptions, and a lot but definitely not all of their language. The chief distinction between the two — and I think this may be important when you get into that detailed opinion later — the chief distinction between the two, aside from the fact that the federal code, for obvious reasons, has no regulations about judges campaigning for judicial office.
And so the main difference is that when the code of the CJC, as it’s called, was revised, there was a deliberate move to mirror or mimic the lawyer codes in providing black-letter enforceable rules followed by comments, whereas the federal code maintains the stance of the old state code, which is it doesn’t have black-letter text as such. It has a series of canonical propositions, and they are typically stated almost exclusively in should, a judge should or a judge should not, whereas the ABA’s model code — the CJC for state judges — almost always in virtually every instance uses shall or shall not and, of course, has consequences for enforcement, for interpretation, and so on.
Now, all of the codes, the lawyer codes and the two judicial codes, are all intended in the first instance for self-regulation, that lawyers and judges will talk to each other, will talk to themselves, and be guided by what is in there. But in addition, there are regulatory agencies that will enforce these when necessary. And in addition, there is a robust market for advisory opinions in all of those settings. They have more or less, as the case may be, bindingness or persuasive effect. They provide more or less, in some instances, of a safe harbor if an opinion says it’s permissible to do X or Y. Lawyers or judges can rely on that to greater or lesser extent.
Now, I’m going to close and turn over to the specifics by flagging what I see are the two main land mines that arise in applying or interpreting or writing opinions about the two, these -- now focusing on the two judicial codes. First, I should say that it is really hard to fault the stated goals or the stated core assumptions underlying either the federal or the state judicial code with respect to judicial activities, at least as a general proposition.
As I’ve already indicated, I think, the key to both is creating public confidence in what are referred to in the state code as the three Is — typically in the federal code, two of the Is — which is independence, integrity, and impartiality. And this, in turn, it is postulated, soon stated, creates -- if these are maintained, if the public maintains its confidence in the judiciary, this will create respect for and confidence in the rule of law generally.
And that is why these provisions often form the backdrop for disqualification of judges. After all, what losing litigant, or his friends or his family in the community, could possibly have respect for a ruling from a judge who is a member of the board of trustees of the hospital or whoever it was who had just bested him in litigation?
So those are all -- the necessity for these rules is clear, but there are these land mines, as I said. The first is how do we determine what it is, how the public will react? What does the public think about this or that activity? Are the rules drafters, the opinion writers, the regulators just projecting their own views about what is acceptable and what’s not acceptable and simply ascribing to that, “Well, if the public knew that, they would never have confidence in the legal system.” That’s a possibility.
That cannot be an acceptable way to run a railroad. But neither can simply taking a poll of the public and say, well, what is it that most concerns you about judges, because I think -- and the same is true with lawyers. We might not find that the profession would be willing to countenance what it is that the public wants in that sense.
Now, the test under the CJC, the state code, is usually stated as whether the three Is, quote, “might reasonably be questioned.” Now, that sounds like an objective standard. But who gets to set the reasonableness standard? By sharp contrast, the comparable test — and this is one of the main differences in language — the comparable test in the federal code is whether this or that would create in reasonable minds with knowledge of all of the relevant circumstances that a reasonable inquiry would disclose a perception of the judge’s ability to carry out judicial responsibilities with integrity and impartiality, and competence would be impaired. That is a huge difference, and I think you’ll see that reflected.
The second one, just very quickly, is that both judicial codes permit more or less engagement with various organizations or extrajudicial activities, depending upon whether they are classified as purely political, chiefly in the electoral sense, at least in the CJC, or whether they are law related or not, including law related or non-law related charities, for example. The defining language was changed in the 2007 revision of the state code to these organizations or organizations that are concerned with the law, whereas in the federal code, it remains as it was in the state code, and that is that it deals with organizations who are concerned with improvements in the law. And to me, that is a huge difference, very, very loaded concepts.
So I’ll conclude and just say that although, as I’ve said, there have to be, there must be rules in this area of putting some restrictions on judges, whether they’re elected or appointed, on their activities, the broad and necessarily somewhat vague ways in which they are stated and the resulting difficulties in interpretation and application create, unfortunately, opportunities for controversy, strife, and sometimes mischief.
And that, of course, is my segue to the panel’s discussion of the exposure draft that was mentioned. And on that, as we said, Judge Tom Griffith is the lead-off here.
Hon. Thomas Griffith: Thank you, Bill. And thanks for that very helpful background. I hope I’m not giving short shrift to your brilliant presentation to sum it up by saying it’s absolutely imperative -- and this is obvious, but it needs to be said. It’s absolutely imperative that the public have confidence in the impartiality of the judiciary. It just has to happen.
Now, in some bad form, I’m going to quote myself as I begin this because I tried to make this point to the Senate Judiciary Committee in support of Justice Barrett’s confirmation hearings. I thought this is an audience that needs to be reminded of this. And so here’s what I said.
“A recent survey found that over two-thirds of the American people believe that Supreme Court justices base their decisions primarily on the law and not on politics. In light of that, there is something deeply disturbing about much of the debate surrounding judicial nominations in our nation. Many political leaders and pundits assume that a judge will cast her vote based on partisan preference. Such explanations, typically made for short-term political gain, do much harm. They undermine public confidence in an independent judiciary, which is a cornerstone of the rule of law. The rule of law is a fragile possibility that should be more carefully safeguarded by our leaders.”
Now, there weren’t many senators there that day. It was day four. I get it. But I felt that needed to be said. And now in even more poor form, I’m going to quote myself again in the final opinion I wrote serving as Judge Katsas’s colleague on the D.C. Circuit. And this was in the Flynn case. I wrote a concurring opinion. I’m just going to read one paragraph from it. Obviously, there was lots of attention paid to General Flynn’s circumstances, lots of commentary. And here’s what I was hoping was a contribution to the discussion.
“In cases that attract public attention, it’s common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle. The party affiliation of the President who appoints a judge becomes an explanation for the judge’s real reason for the disposition, and the legal reasoning employed is seen as a cover for the exercise of raw political power. No doubt, there will be some who will describe the court’s decision today in such terms, but they would be mistaken. There are two central issues in this case, both far removed from the partisan skirmishes of the day. The resolution of those questions involves nothing more and nothing less than the application of neutral principles about which reasonable jurists on the court disagree.”
Okay, enough of quoting myself. I think the dispute over Advisory Opinion 117 of the Committee on Codes of Conduct is the result of two large forces at play in our nation’s political life that require constant evaluation and reevaluation of the proper scope of extrajudicial activities. I’m not a political scientist, but here’s my take on what’s changed. Why is it necessary to constantly reevaluate judge’s activities, in light of the principles that Bill Hodes explained so well to us?
First of all, the expanding role of government regulation into every nook and cranny of American life has the effect of politicizing areas of activity never before thought to be partisan. So the first force at play, I believe, is the expanding role of politics because of the expanding role of government.
Second, the judiciary has too frequently stepped outside its constitutional lane and played the role of policy maker. If judges are going to make political and not legal decisions, it’s only natural, it’s to be expected that they will face the type of scrutiny the electorate demands of its representatives. As Justice Breyer puts it, judges will then be seen as, quote, “the political junior varsity,” end of quote. We saw that troubling type of scrutiny in Justice Barrett’s confirmation hearings, which at times seemed like a referendum on the wisdom of the Affordable Care Act and not its constitutionality. Maybe in question and answer I’ll come back to another point that I think is particularly important for those of us in The Federalist Society.
Now, about proposed Advisory Opinion 117, I was in the room where it happened. And I want to tell you from my perspective, it was not an effort by partisans to thwart the work of The Federalist S