We finally circle back to the two big structural constitutional law cases from the last day of the term. First is Kennedy v. Braidwood Management, which upheld the appointment structure of the U.S. Preventative Services Task Force under the Affordable Care Act. Then is FCC v. Consumers' Research, which upheld the universal-service contribution scheme against a pair of non-delegation challenges. Our second-longest episode of the season.
We finally circle back to the two big structural constitutional law cases from the last day of the term. First is Kennedy v. Braidwood Management, which upheld the appointment structure of the U.S. Preventative Services Task Force under the Affordable Care Act. Then is FCC v. Consumers' Research, which upheld the universal-service contribution scheme against a pair of non-delegation challenges. Our second-longest episode of the season.
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. So, we are continuing our slog through the opinions that came out at the end of the term. I think we are nearing the end of the ones we think are worth talking about.
Will: I think so. So, if there are things you really want us to cover after this episode is over, get at least five other people to all write in and request the same episode and maybe we'll listen.
Dan: Is that like the cert standard for getting us to take up a case?
Will: Five listeners? Well, they don't get votes. I think the cert standard is-- [crosstalk] [laughs]
Dan: It's automatic.
Will: You and I have to agree to do it. [laughs]
Dan: Well, fair, but I mean, if 1,000 listeners wanted us to do a case, we would probably do it, right? Would you feel some compulsion in that situation?
Will: I feel some compulsion of five. If 1,000 listeners wanted to do us a case that we wanted us to do a case that we were not otherwise doing, there probably would be some very good reason. So, I [chuckles] just not sure what to make of that.
Dan: We would have made some bad choice in not covering that case.
Will: Yeah.
Dan: Okay. So, this one I'm hoping we can get through briskly. We have a lot less stuff at the beginning to go through not real shadow docket activity to catch up on, that helps. We've gotten some emails in the ever-overflowing email inbox, which continues to have metastasized in the last couple months for reasons I don't totally understand, but we do appreciate all the emails. I'm going to bring back one. I'm going to talk about one of them and unfortunately this is not a substantive one, but it's just a fun one. But we are getting a lot of great substantive comments that I'm not going to get into right now. This is one from listener, Gray Brooks. We had this issue come up in one of the shadow docket cases last time of the American Federation of Government Employees.
He says, “The right way to pronounce it is ‘aff-gee’.” Okay.
Will: Not "aff-gi."
Dan: Yeah, I'm going to assume that's true because somebody wrote in to say that it's true. And just like when somebody tells us what the snake charmer instrument is, I'm just going to accept that as true. But Gray says, “This gets to the point that the government office that has the acronym D-O-G-E is most correctly pronounced dog, eye or doggy.” [Will laughs] Gray says, “This gets to the point that the government office that has the acronym D-O-G-E is most correctly pronounced doggy. Saying it like the meme coin or the Duke of Venice is really regressive because it concedes the ground to a person and group of people who are literally avowedly pronouncing it that way as a joke and as part of a campaign to undermine people's acceptance of government.
You look at the pronunciation conventions of acronyms in the federal government, it's also quite aberrant. And this is the killer point. Gray says, “To prove this out, I would just note that if any government agency would appropriately be pronounced “doge,” it would be D.O.J.” That seems right.
Will: I do like that point.
Dan: Right.
Will: Can you imagine?
Dan: Unless you would say “dodge.”
Will: Dodge. I think it would be dodge.
Dan: You think it would be dodge.
Will: With dog. D-O-G is dog, not dohge.
Dan: Yeah. Trying to think if there's any good counter examples.
Will: And R-A-G is raj, not rage.
Dan: R-A-G? Isn't that rag?
Will: Sorry. R-A-J is Raj.
Dan: Okay.
Will: Not rage.
Dan: Yeah, maybe that's right. Yeah. Cog, dog, fog, log. Okay. Yeah. This is part of our pronunciation docket that started up with LabCorp, not LabCor. That was the only one I had. [laughs] Did you have any meaningful pieces of follow up or feedback you wanted to talk about? I think you had one news item.
Will: Yeah. Nothing from the email inbox right now, but there was a story in the main wire: Flotilla of disgruntled Maine kayakers take short trip to complain about Chief Justice John Roberts. So, as many people know, Chief Justice Roberts has a summer home in Maine on an island. And I guess that makes it a harder place to protest than the Justices homes in suburban Virginia and Maryland, which I'm sure is a big feature. But apparently some intrepid protesters and trespassers decided to go get in kayaks and try to harass the Chief to complain about tyranny, which is somehow his fault.
Dan: Yeah. I tend to think these forms of protest are not likely to be effective.
Will: Indeed, I think they're very bad.
Dan: Yeah. And I think that they're likely just to cause the Justices to be even more insulated and insular and to only spend their time with fellow traveler type people, not be out in the world.
Will: Yeah. No, I think, this is not true of the Chief, but people complain about some Justices that they tend to speak only to friendly audiences or only talk at federalist society events or ACS events and so on. And it wouldn't be surprising if one feature in that is just the likelihood of being able to go to the event and behave like a civilized person.
Dan: Yeah. And I think even the Chief, if it turned out that every time he tried to speak to a group of general audiences, he was getting shouted down, that would change what events he was willing to do.
Will: It could be.
Dan: Yeah. And I tend to think, as a more global theory, something that really holds our legal system together is the hope that Justices on both sides of the aisle, so to speak, see themselves as part of a larger legal community that transcends ideology. I mean, to the extent that we really just split up into two totally separate polarized worlds, then I think that in some ways eliminates a meaningful constraint, in the sense that as Justices think of themselves as just writing for an audience of people that are their partisan fellow travelers, I think that actually removes a meaningful constraint on partisanship.
Will: Yeah.
Dan: Put differently and more bluntly, some version of the Greenhouse effect is maybe a good thing. This is the criticism that some conservative justices were writing influenced by the New York Times editorial page and by columnists like Linda Greenhouse or reporters who were criticizing them from the left, and they were trying to, felt the need to make themselves acceptable at D.C. cocktail parties. I don't think this is necessarily true description, but maybe some version of that is actually not a bad thing.
Will: Well, I guess I think it's a little different. I mean, I don't know about Linda Greenhouse, but I think at a minimum, if you already had a social circle before you became a Justice or a famous person, it's bad if we force you to withdraw from that social circle and get an even more inclusive circle than you did. So, the Greenhouse effect criticism might be Justices who previously weren't hobnobbing with these hypothetical elites, liberal elites or whatever, are being corrupted by them. But at a minimum, we should want like, if the Justices used to have friends across the aisle and neighbors in other states and so on. We shouldn't want them to cease to be able to do that. Did you see there's been news recently about this executive branch, like elite social club, only for MAGA people in D.C.?
Dan: I did not.
Will: Apparently, it costs half a million dollars to join. I think it's sort of shooting for the Mar-a-Lago.
Dan: That's a lot of money.
Will: Yeah. I don't know where the money goes.
Dan: I have one guess.
Will: But one obvious sort of need for it is, if you remember, during the first Trump administration, it was increasingly hard for people who were in the Trump administration to go to restaurants without people protesting them for all of their evil misdeeds. And so, it wouldn't be surprising if there's ultimately a demand to create some private restaurants that only other MAGA people go to. And so, they would only protest the normies.
Dan: Yeah. That's interesting. I mean, there may reach a point when I wouldn't necessarily endorse the proposition that no matter what bad things someone does, they shouldn't be protested in public.
Will: Sure, I know you don't like to draw categorical lines the way I do. The one other thing I'd say is I actually think this is worse in some ways than protesting.
Dan: Is that a general truth about me? You're a rules guy and I'm a standards guy.
Will: I think so.
Dan: I wouldn't necessarily have thought that. I thought neither of us could be distilled.
Will: I guess it might be the case that on the podcast, I draw a line, a rule, and then you accuse me of not really meaning it, and then we have to fight out whether I really mean it or not. And then one view would be, I'm more of rules guy. Another view would be, I'm just too stubborn to admit that you're right. I was just going to say I think this is a little worse than protesting justices when they give a speech in that. I also think it's important that people can be off the clock or you can have a life.
And that's true for all sorts of jobs, that you should be able to sometimes have a life, and that's actually an important human thing and also important to then doing your job, like being a sort of more sane and humane person at your job. And again, maybe that's not a categorical rule. Again, if whatever, the worst example you want to speculate where somebody is taking away other people's humanity and private lives and so on, maybe they aren't entitled to private life, but I think it's just an important norm. We violate that norm at our civil and social peril.
Dan: Yeah. And I think there's also a further consideration, which is, how is this, to the extent that these protests are not just aimed at, or even primarily aimed at changing the views of the subject of the protest. I mean, if you actually think having these kayakers show up is likely to cause the Chief Justice to change his votes in important cases, I think you're dreaming. But presumably part of the reason to do it is to create a larger political statement. I tend to think some of these things are likely to backfire. Because it makes the protesters look unreasonable. I think that some version of that may have happened with the student protesters at Dean Chemerinsky’s house of Berkeley when he was inviting students over.
I guess I'm not sure that they are kind of trying to hijack that event for a political protest was likely to persuade people of the underlying correctness of the issue, but maybe I'm wrong about that.
Will: Yeah. No, I think that's a tough strategic calculus that I think many activist groups do not make correctly.
Dan: Yeah, but we're not activists. Maybe we don't understand the multidimensional chess in play. Are you like an originalist activist?
Will: I am not an activist. I do try to read a decent amount of the activist literature, going back to Alinsky's Rules for Radicals, and a lot of those things. Just because you-- [crosstalk].
Dan: Because you think you can deploy them-- as you really care about converting people. You are an evangelist. No, sorry. Which is the more serious one is proselytizing. I've forgotten this distinction from the Catholic Charities case.
Will: It was your distinction. [laughs]
Dan: No, it's not. It's the Catholic Church's distinction as reflected in the Supreme Court opinion.
Will: You were the one telling me about it.
Dan: It's not mine. I didn't make it up.
Will: [laughs] You were the one telling me about it.
Dan: Well, [chuckles] I mean, you read the opinion, too.
Will: Allegedly.
Dan: Whatever the more intense one is with respect to original law, originalism, that's you, right?
Will: I guess. I mean, look, I want people to believe things that are true, which I hope are the things that I believe are true, but I care more about just understanding things. So, I read this literature more just because I want to understand it. People have some reflexive view like, “Oh, that's politics. That's not intellectual. That's wrong.” Politics works sometimes, it doesn't work other times, and it has features. And so, it's a mistake for academics just write it off as like, that's not a thing worthy of study. But at the same time, then we also have intuitions about what works and what doesn't work and what backfires. It's more just like my general belief in rigor, that we should do all things, including complaining about kids today as rigorously as possible.
Dan: Has that led you to continue to feel justified in complaining about kids today?
Will: Sometimes, but not always, I guess-- [crosstalk]
Dan: Oh, so you're not willing to lay down a categorical rule.
Will: So, there is a political science literature that tries to study what parts of the civil rights protests successfully worked and what parts didn't and why did they work. And there was literature about the counter-productiveness of the riots in 64 compared to the success of the nonviolent protests. I think I understand that. And I think I understand the mechanism.
Dan: That research was condemned.
Will: Yeah. People got canceled.
Dan: As racist, right? It was subject of cancellation. There was a guy who was fired for highlighting it, as I recall.
Will: I believe David Shor was fired for highlighting Omar Wasow 's research on Twitter, which showed, I think, pretty persuasively that the riots were counterproductive. And that is one of the things that radicalized me in 2020.
Dan: Are you still radicalized?
Will: A little.
Dan: Okay.
Will: I'm still mad about it.
Dan: That guy getting fired or just the larger--?
Will: Both.
Dan: Social thing?
Will: Both.
Dan: Okay. So, I think that was our main set of detours, right?
Will: Okay. Yeah.
Dan: Did you have anything else?
Will: Let's talk about these tedious cases, Dan.
Dan: Okay. Yeah. I was going to say I think I've made a terrible mistake, which is I had suggested this episode. I said, why don't we do a structural con-law episode and we can talk about FCC v. Consumers’ Research and Kennedy v. Braidwood Management. And I knew a little bit about the cases, but had not sat down and worked my way through the lengthy opinions in each. They both involve pretty interesting structural constitutional law provisions that I do teach in 1L con-law. Kennedy v. Braidwood involves the Appointments Clause. That's an interesting one. And FCC v. Consumers’ Research involves the nondelegation doctrine. That's also pretty interesting. Unfortunately, having spent a few hours trying to work my way through these, I would say they are not the most thrilling instantiations of those interesting legal doctrines, constitutional provisions, especially Kennedy v. Braidwood.
It's sort of like a very tedious statutory interpretation case masquerading as a constitutional case. That's an overstatement but-- [crosstalk]
Will: Yeah, I mean, that is an overstatement, but I guess two things to note about both cases. And I think this is also relevant to meta commentary over the Supreme Court. These are both cases that at various points during litigation were described as incredibly important, war on the federal government, possible death of the administrative state.
Dan: Yeah.
Will: So, the cases are tedious only in part because of what happened. These are both cases where the Fifth Circuit held unconstitutional major federal government programs and the government had to go to the Supreme Court and get them reversed. Now, they did get them reversed in ways that end up being kind of [crosstalk] tedious. Yeah, well, I don't know. But in the end, you read the opinion, you're like, “Okay, this seems obvious. There's not a lot to see here.” But it's only obvious because common sense ultimately prevailed.
Dan: Yeah. I mean, in both cases, the court jumps through some statutory hoops to explain why the constitutional challenges don't prevail.
Will: Right. And in a world where people, especially in June and July, like to report the Supreme Court as being this ultraright MAGA court that's allowing all these terrible things to happen in the country, and that's why we have to kayak to the Chief Justice's house and tell him to save the Republic. I do think it's important to at least observe that the court is also doing some stuff that's not like that.
Dan: Yeah.
Will: And that could have gone the other way.
Dan: Yeah.
Will: Now, maybe I didn't have to make you read 170 pages.
Dan: I think I made you do this, right? Because I had pushed for this joint episode, and you actually, you had subtly tried to move me off of it. You had said, “Why don't we, maybe we'll do the diamond alternative energy case instead first.” And that was clearly the right call. And then even yesterday, when I was texting you about how tedious they were, you were like, “No, we don't have to do this if you don't want to.” But at that point, I had spent enough time that the sunk cost fallacy required me to keep pushing through. Judge Wilkinson always liked to say, I think it's a Robert Frost quote. “The only way out is through.” [Will laughs] And I think that is going to be true here.
Will: Well, I regret to say that's not true this podcast. And then I think a lot of people might have just taken another way out of this episode with this lead in.
Dan: One way out is just to delete the episode and unsubscribe in your podcast app, which I would prefer you not do, but that might be necessary some of the time. Okay, let's get through which one first? Okay. Why don't we get Braidwood out of the way because it's less interesting.
Will: Okay.
Dan: And then reward people who make it through that.
Will: Okay. All right. Kennedy v. Braidwood is about the Appointments Clause in Article II of the Constitution which imposes requirements for how officers of the United States are appointed. Principal officers have to be nominated by the President and confirmed by the Senate. Inferior officers can have their appointments vested by law in the President alone or courts or department heads.
Dan: And so, don't have to be Senate-confirmed.
Will: Exactly. But you do have to have a statute establish that process for them existing and everybody else. Most people in the executive branch are what we now just call employees. So, most people who work for the government were never appointed anything, and that's fine. But if you exercise a certain amount of authority, then you're an Officer with a capital O and you have to be Appointed with a capital A. And this case is partly about the legal status of the U.S. Preventative Services Task Force.
Dan: Law clerks are employees, right?
Will: I believe law clerks are employees. There are these cases in the 19th century, like ex parte Hennen, about clerks like the clerk of court, who I think in the 19th century anyway was an inferior officer and could do some stuff. And that may still be true in the circuits. Every once in a while, you read an unpublished opinion or something that's just signed by the clerk of the Fifth Circuit. So, I think he might have to be an inferior officer. It would probably be fine if law clerks were not employees because they'd be appointed by the courts.
Dan: Yeah. It doesn't really matter. I mean, obviously they're not principal officers. And that's a whole separate thing when we're talking about the judiciary.
Will: We received one piece of feedback that I thought actually is worth mentioning now, which is somebody requested that when we start talking about these cases, we just say at the beginning what the outcome was, because sometimes people get lost.
Dan: And maybe we should say, give you the full vote count up front, because we usually say that, but we back our way into it. So do it. Let's do it.
Will: Okay. So, this is a constitutional challenge to the composition of the U.S. Preventative Services Task Force. And the Supreme Court rules 6-3 that the task force is constitutional. And the opinion is by Justice Kavanaugh, joined by Roberts, Sotomayor, Kagan, Barrett and Jackson over a three-justice dissent Thomas, Alito, Gorsuch. So, 6-3, the federal government currently represented by or the name plaintiff is RFK, Secretary of Health and Human Services, 6-3, government wins.
Dan: RFK Jr. Let's not elevate him to full RFK status. Big difference, right?
Will: Yes.
Dan: Okay. And no separate opinions in this one? I mean, no concurrences, multiple dissents. Just we got principal opinion, principal dissent. That's it. That's all we got.
Will: 86 pages and 2 opinions.
Dan: Yeah. Can you think how much worse this would have been if people had felt the need to write concurrences?
Will: I enjoyed it, Dan.
Dan: Did you?
Will: No.
Dan: I thought you agreed it was tedious. Before we started recording, you agreed. Was that just for my ears?
Will: No, actually, I mean-- look, on the one hand, this opinion is tedious to read. On the other hand, I actually quite enjoyed its tedium.
Dan: [chuckles] Say more.
Will: Well, so I think we've had and maybe lightly criticized some Kavanaugh majority opinions on this podcast for their excessive breeziness.
Dan: I think I like those.
Will: Possibly including Diamond Energy last term. And I really appreciate that this one deals with a complicated topic with a bunch of different arguments more thoroughly. I mean, I think obviously the other ones are the more commonsense ones are much more readable and that's part of their goal. And you get the gist much more easily. But then you're often left with a bunch more technical questions about hotdog buns and how they intersect standing. And I like this one really works it through. And I think that's just part of the nature of the case, that maybe different opinions are appropriate in different cases. But I appreciated the thoroughness of this one.
Dan: Yeah, I guess I'm probably a little bit more favorable on the breezier opinions that just dial into the overarching issue, get in and get out. I think that's an older way to do things. It's a Rehnquist style. And I think it has something. I just think that these opinions that have 20 footnotes in each of the opinions responding back and forth about these minor points, I think it's too much.
Will: Well, I think it depends on the audience and the doctrine. So, I actually think it might be that in areas like standing, where the court has a lot of standing cases is working it out as it goes along, it might be those breezier opinions are more appropriate because it's like you got to read these opinions as a whole and see they fit in together. And here, where you have a complicated regulatory scheme that the Supreme Court does not deal with very often, it just might be less. You might need the thoroughness. It might be more of a risk that a shorter version of this opinion would accidentally have messed up something about the statutory functioning of the Affordable Care Act that we don't care about and our listeners don't care about, [chuckles] but actually matters a lot to some lawyer somewhere.
Dan: Yeah, it could be although the more you write, the more of a chance there is that you say something accidentally that has some implication, right?
Will: It's tricky. I think short opinions can accidentally mess stuff up, and long opinions can accidentally [laughs] mess stuff up. It's mostly about the content.
Dan: Yeah. Okay.
Will: Okay. So, we got to try to deal with this at a high level rather than lose everybody, including ourselves, in the weeds.
Dan: I'm just going to say, I got lost in the weeds, in the statutory weeds. I understand the big picture. I can talk about the big picture, but there's this really complicated question about how Congress may or may not have changed over time, the allocation of who has authority to do stuff. And there's this reorganization plan. It's just a total mess.
Will: How do you understand the big picture?
Dan: They didn't think you were going to test me, right? I understand the big picture. Okay. So, question, are these folks, the task force members, principal or inferior officers? That's our question.
Will: Yep.
Dan: We're going to conclude that they're inferior. And we are going to conclude that for, I think, two big reasons. And one is, and there's some statutory conclusions baked into this, but they're both appointed by and removable by the Secretary of Health and Human Services, who all agree is a principal officer. And principal officer, as you noted, if someone is an inferior officer, it's totally fine for them to be appointed by the head of a department. I think everybody agrees, the Secretary is the head of a department that seems pretty straightforward. These folks are appointed by and removable by the Secretary which gives Secretary a lot of authority to control what they do. And they issue decisions, they issue recommendations, but the Secretary gets to review those before they go into effect.
And those two things mean they are inferior and not principal. How did I do as the kind of overarching big picture?
Will: I think that's good. So, that's one of the two big questions. And the other one about the reorganization plan is you mentioned. So, one big question is, are they sufficiently under the thumb of RFK Jr or whoever the secretary may be as to be inferior? And then the other big question, which got injected into the case in a slightly interesting way, and we can get to in a second, is, does the statute authorize their appointment in a sufficiently clear and appropriate way?
Dan: Yeah. Which is maybe it's like antecedent question, right?
Will: Yeah. Well, I don't know. I'm not sure which order, but yes. In both cases, I think there's a funny fact about how this whole organization arose that maybe why this case comes up and is hard at all, which is the task force has existed since 1984, but its role has been purely advisory until the Affordable Care Act in 2010. So, everybody agrees that until 2010, they were not officers and didn't have to comply with any of these rules. And then suddenly in 2010, they are given extra legal authority that turns them into officers. And so, it's not crazy to imagine that was done without sufficient care about whether or not they were the right people to have that job.
If you imagine courts have had law clerks for a long time, and we said they're probably not officers at all, and then Congress passes some statute saying that, “In certain cases, law clerk bench memos now have the force of law, something.”
Dan: [laughs]In here without making any other structural changes.
Will: Or if they passed a law that said, “If a tree falls on a Justice's house in the middle of the night and nobody can reach that Justice and they need to cast a midnight vote on an emergency application, the law clerk can cast the vote on the basis of their best understanding of the Justice would have done.”
Dan: Which might currently be the-- [crosstalk]
Will: Callback to the Justice Scalia story we got.
Dan: Right. That might actually be the state of play, right?
Will: Right. And maybe that would technically make the law clerk an officer. And then we'd have to ask, are they actually appointing them in a way that makes them inferior officers? Okay, so on the independence point, I think it's pretty straightforward to say, “Look, ultimately the Secretary of Health and Human Services can remove them if he doesn't like them, and he can overrule them if he doesn't like what they're doing.” And so, the two wrinkles the court has to deal with, one is, well, all he has is a veto. He can't make them do stuff. And so, is that a problem? If your boss has veto power over what you do, but not the opposite of veto, otev power?
Dan: Is that a word?
Will: That's just veto spelled backwards.
Dan: [laughs] Oh, okay. Wouldn't etov? You said otev.
Will: Otev.
Dan: Otev.
Will: Otev.
Dan: Yeah, yeah.
Will: If your boss doesn't have otev power to make you do stuff, is that enough? The court says, “Yes.”
Dan: Yeah. I don't really understand the distinction.
Will: Right.
Dan: We did hire a babysitter for our kids. We say, “Put them to bed at 8:30.” And then babysitter lets them stay up till midnight.
Will: Yeah.
Dan: Right. Like you fire the babysitter. Like, how is that-- [crosstalk]
Will: I mean, [chuckles] kids are still awake. [laughs]
Dan: Well, yeah, I mean, if I call home at 9:15 and the kids are still awake, I would say, “Put them to bed now.” And if the babysitter still failed to do so, I would fire them.
Will: Yes.
Dan: What does it mean to have the power to control what someone does? They're literally a puppet?
Will: Well, imagine a Justice with a law clerk. Maybe that's wrong because they're not an inferior officer. Justice with a law clerk. And obviously, the Justice can take whatever the law clerk writes and say, “No, we're not issuing that,” right. And they could fire the law clerk. But what if the system were such that the Justice wasn't allowed to issue anything that wasn't drafted by a law clerk? The Justice is like, “I want an opinion reversing.” And the law clerk's like, “Here you go. It's affirming.” And the person's like, “You're fired.” But now they still can't write the opinion affirming [crosstalk] what I said, until they hire a new law clerk. And then they might not be able to get one. Or a prosecutor. If you imagine a world where the AUSA could stop any rogue prosecution in his office. But what if they couldn't make people bring prosecutions? So, you got to hope that you can hire people who will bring them. But if you've got a really important prosecution to bring, it could be tough because nobody's bringing it and then you're firing-- [crosstalk]
Dan: The head prosecutor couldn't just do it himself, issue the indictment himself?
Will: Right. If we had that rule. I think that's the situation that we may be in with the task force, is that they can't just issue their own binding-- Like RFK Jr. can't just issue his own binding recommendations. He needs a task force. So, that's an issue. It's not enough of an issue to make them not inferior, in some sense, that's why they're officers rather than employees. There are things that only they can do, but they're inferior officers because they have the veto. The other tricky fact for the majority is that the statute, the Affordable Care Act, says that their recommendations “shall be independent and to the extent practicable, not subject to political pressure,” which you might read as an attempt to make them not just subject to a political appointee like the Secretary of Health and Human Services, right?
Dan: Yeah. But the court is going to say, “We're not going to read it that way.”
Will: [laughs] Why not?
Dan: Well, it would create some problems, right?
Will: Yeah, right. It would be bad and maybe unconstitutional to read it, to give them that kind of independence. It does say to the extent practicable. So, it's kind of built into it that you're not supposed to just go crazy with this. And there is case law where the Court in general says, “These kinds of independence things should be very strictly construed.” So, lots of agencies that are colloquially thought of as independent agencies turn out to be less independent than people think when you look at the statute. Because the statutes actually don't-- [crosstalk]
Dan: Like the SEC, right?
Will: Maybe. So, this came up. The SEC commissioners probably could be removed at will because nothing in the statute says otherwise. Though in a case called Free Enterprise Fund v. PCAOB, the Supreme Court pretended that they were protected by for cause removal because everybody thought so, even though the statute doesn't say so. [Dan laughs] I think this comes up in some of the fights about the Federal Reserve, too. I think the statute does not explicitly give the chair of the Federal Reserve any kind of tenure in office, qua Chair, as a member of the Board of Governors, Jerome Powell has a tenure in office. But we have all these questions about the unitary executive and the Fed, and it's not actually clear how much explicit statutory independence is created by the Fed statute. There's been some recent writing about this by Peter Conti-Brown and Lev Menand and other people who have slightly different views of the statute, but when you dig into it, it's actually kind of complicated.
Dan: Yeah.
Will: So, the Court says, “Applying our principles, these guys are just not that independent,” despite the statute saying they're independent.
Dan: Yeah. And the Court is relying on the canon of constitutional avoidance. Court says, “We should not read the statute in a way that makes the current method of appointment by the Secretary unconstitutional if we can reasonably read it otherwise.” And Justice Thomas endorses the larger principle, canon of avoidance as well in his dissent, which I guess, suggests that every single member of the Court endorses that canon somewhat robustly by joining one of the two opinions, right?
Will: Yes. Do you think Justice Thomas endorses it robustly in general or as applied to the unitary executive problem?
Dan: That's a good question. He cites it a bunch of times. So, let's go through. If the Secretary appoints the task force, it must be subject to his supervision to be constitutionally structured under the canon of constitutional avoidance. We would therefore have to interpret the statutes governing the task force to permit secretarial supervision if it is fairly possible to do so. In contrast, if Congress never gave the Secretary the appointment, power, makes no constitutional difference whether the task force answers to the Secretary or to the President alone. He talks about the meaning of convene that statutory term is relied upon by the majority to say that the Director does have the power to appoint.
Will: Yeah. So, this is getting us into question two.
Dan: Yeah. Okay.
Will: Maybe we should now reveal question two.
Dan: Yeah. Okay.
Will: I think the court actually-- this question, what you call the antecedent question. Justice Thomas agrees the antecedent question was not as much the focus of the parties. And so, the Court actually called for supplemental briefing on this question after argument. So, after the parties get there and argue about this inferior officer question, a really interesting argument by Hashim Mooppan, for the government and Jonathan Mitchell for the challengers. A real, I don't know, heavyweight formalist, textualist showdown in some ways. After that, the Court issued an order on April 24, the parties are directed to file supplemental letter briefs addressing the following question whether Congress has “by law” vested the Secretary of the Department of Health and Human Services with the authority to appoint members of the United States Preventative Services Task Force. US Constitution, Article II, Section 2, Clause 2.
The briefs should address this Court's decisions in United States v. Hartwell and United States v. Smith, 1868 and 1888. The briefs not to exceed 15 pages, blah, blah, blah. So, this question of like, “All right, does the statute actually give the appointment authority to the secretary in the first place is in some sense an important antecedent question that then appears in the case.”
Dan: And if not, then who would have it?
Will: Well, if not, then maybe they can't be appointed at all.
Dan: Or I guess if it's silent, you would say the President has to appoint them.
Will: Or the President and the Senate. I guess if they're officers-- [crosstalk]
Dan: That's what I mean. Yeah.
Will: Yeah. If they're officers and their authority to appoint them has not otherwise been vested, then maybe it falls to the President or maybe it's just like they're officers, but they can't exist until somebody has vested their appointment somewhere.
Dan: Yeah. I presume that if Congress just doesn't, creates an office and doesn't specify and is clearly an office, then you would just read it as saying it has to be the President with Senate confirmation, right?
Will: I guess, so.
Dan: So, it doesn't say, I mean, the vesting clause applies to this exception, right for inferior officers.
Will: Yeah. You might say that once it's an office, Congress just has to vest its appointment somewhere. I'm not sure.
Dan: Yeah.
Will: If Congress passed a statute turning law clerks into officers, like the hypo we talked about, automatically the President would suddenly get the power to appoint law clerks to the Justices?
Dan: Well, isn't that how Justice Thomas is reading this?
Will: Yeah, maybe.
Dan: He says, “I would affirm on the ground that Congress has not given the Secretary of HHS the power to appoint task force members. The members must therefore be appointed by the President with Senate confirmation.”
Will: Yeah. Okay. And here too, this just requires a long detour through a 1966 reorganization plan and various statutory provisions that happen after that. And all of these things happen again at a time when they were not officers yet because the Affordable Care Act had not come along and given them officer status. And the majority says, “Ultimately, there's a part of the statute that gives the Secretary. Let's see, what does the text say?
Dan: So, it gives the Director, this is an official underneath the Secretary, the power to convene the task force and says, that's step one of this sub issue. They say convene means power to appoint and then if the reorganization plan transfers the functions of the Director, including the appointment power to the Secretary. Because if the Director has the appointment power and not the Secretary, then that's a constitutional problem because Congress can't vest the appointment power in a subhead of department.
Will: Yep. Right. So, the power to convene is the power to appoint, and that power was moved to the Secretary from the Director. And that's good enough. I also wanted to flag. There is a nice blog post on the Divided Argument blog by our co-blogger Nick Bagley, By Law Vest that came out in April 2025, a few days after this order, making more or less exactly the same argument. I mean, I think it's also the argument the parties made. I don't want to say the court is reading our blog, but just wanted to give a shout out to Nick for pointing out the same way through this mess.
Dan: Yep.
Will: Yeah.
Dan: All right.
Will: There you have it. That wasn't so bad.
Dan: That's it, we're done?
Will: I don't know.
Dan: Well, I mean, one thing to note though, is Justice Thomas does want to go in the other order, right?
Will: Yes. Right. His first choice is to send it back to the Fifth Circuit for them to figure out this statutory question, right?
Dan: Yeah. Which they didn't address.
Will: Right. And that's where his constitutional avoidance discussion comes in. Because he suggests, “Look, if you just resolve this case on statutory grounds, then you avoid having to ever get into the constitutional question.” And it's interesting, because it gets at one of these two different ways to think about constitutional avoidance. So, one version, which I guess is the majority’s, is like, we're trying to save what the government is doing. [chuckles] And we're putting a thumb on the scale. We’ll read the statutes in ways that allow what is happening to happen and that will save everything. And the other version, which is Justice Thomas is like, “We're trying to avoid getting into the constitutional issue, and we can avoid getting into the constitutional issue if we just say that everything the government has done is illegal.” [chuckles] [crosstalk]
[laughter]
Dan: Yeah, yeah.
Will: Which is also a threat of the constitutional avoidance canon. I think Caleb Nelson has written about these as like avoiding unconstitutionality versus avoiding unconstitutional questions.
Dan: Which one do you like?
Will: I like avoiding unconstitutionality, the majority's version, I think.
Dan: That seems more plausible as a canon, right? That maybe if we're talking about a canon like a non-textual principle that informs how you would interpret a statute, it seems plausible to me that you would say, “Well, we should read this in such a way that on the assumption that Congress wasn't trying to do something unconstitutional,” but not necessarily that you should read the statute in such a way that assuming that Congress didn't want a court to even have to talk about the question.
Will: Right. Now, I guess you could see Justice Thomas is in a way doing the other one because he might say, “Well, look, maybe Congress wanted these people to be appointed by the President and the Senate. And thus to avoid all the problem that they might not be inferior.” Like on Justice Thomas reading of the statute, there is an inferiority problem or might be, and we could fix that by saying, “Well, Congress wanted them to always be confirmed by the Senate and it's just the executive branch that's been not compliant with the statute and now we need to make them comply with the statute.” But I think these orders of operations questions are very interesting.
Dan: Yeah. Okay. In your view, it sounds like you're receptive to what the majority did here?
Will: Yeah.
Dan: Do you think any part of it is more questionable than the other part? I mean, it seems like once you resolve all the statutory issues, I think the constitutional analysis is pretty straightforward. I mean, the principles that the court announces, removable, appointable, therefore sufficiently supervisable, plus Secretary doesn't have to approve the recommendations. When you combine all those things together, that does seem to me enough to say these folks are inferior.
Will: Yes, I think that's right. We don't have a ton of case law on who is inferior. So, it's until recently Morrison v. Olson, which most people thought was wrong, and a case called Edmond about Coast Guard appeal officers or something were kind of the two main precedents. And then a couple years ago, we got Arthrex about adjudication in the Patent Office, which was also very confusing. So, it's an important nice putting a bow on how to think about inferior officers to make it somewhat significant. But I agree the real work is being done on statutory grounds, and the court may be using some kind of canon, whether it's constitutional avoidance” or don't make trouble or try to read the statute in a functional way to get through the statutory things where you otherwise might have gotten hung up on some of the statutory requirements.
My one esoteric quibble is I do think a different-- a part of me thinks that a different principle of statutory interpretation ought to apply to the Affordable Care Act.
Dan: The Act as a whole.
Will: Yes.
Dan: Which is what?
Will: Okay, so I guess I'll explain it this way. My first choice is formalist textualism. But my second choice, if you're going to try to be more functionalist or more realist about statutory interpretation, then I think the fact the Affordable Care Act was enacted in a particularly bizarre and defective way, where the Senate passed a version of the bill that wasn't really supposed to be the final bill, but they had to sign off on it because they lost the votes to get the filibuster, means that we arguably should be less indulgent of drafting mistakes in the Affordable Care Act than we normally are because Congress deliberately chose to enact a statute that was not very well drafted because it was all they could do.
This came up in King v. Burwell, where the statute seemed to have a scrivener's error, where it forgot to provide funding to healthcare exchanges that were established by the state, only to the federal government. And there were these questions but would that make any sense and should we fix it and so on. And my view, which I think nobody even the challengers in that case ever thought was plausible but was normally we should correct scrivener's errors, but you shouldn't correct scrivener's errors in cases where Congress intentionally enacted defective statutes for political reasons.
Dan: I find it a little hard to draw a line there. I mean, there's all sorts of cases where there are bad statutes that Congress chooses to enact for political reasons. Procedurally, it's a little weird, but procedurally it was not unconstitutional. But it's not a legally relevant consideration to go and say, “Oh, Congress didn't deliberate enough or they didn't revise the bills enough.”
Will: Well, so this is why my first choice is formalism, precisely because I think that's a hard line drawing problem. And I just prefer to read the statutes as written. But there are lots of people who say, “Oh, I don't want to be formalist.” We got to assume that Congress knew what they were doing or assume that try to read the statute in a way that works, or assume that Congress is trying to do X. And so even if it says something, we should try to make it do something else.” And I'm just saying if I went down that road, then it actually seems to me that then you have to actually think about how the statute was enacted. And it might be that sometimes there are statutes that were enacted and weren't supposed to work.
Dan: Yeah, I mean, I guess maybe it just seems to me that when we say we make this assumption about Congress, we really are dealing with a very, very fictional Congress. And that's true in my view, regardless.
Will: Yeah, I think that's the response. Then there's the question of, “Well, why should we indulge that fiction even in cases where we—" If you imagine that fiction isn't going to be a case where it's not what the statute says and not true, then it's a more interesting substantive canon. Then it's more like the rule of lenity where we pretend that statutes were written in a way that solicitous of criminal defendants, even though it's not what they say and also not how Congress feels. As you know, that's a more complicated normative debate about why we do that.
Dan: All right, last two things. So first, are you okay with the use of the canon of avoidance here, though?
Will: I'm ultimately okay with it. I wanted to register my anti ACA canon, but I recognize that's a particularly weird view.
Dan: Yeah. And then second question. This is going to be relevant to the next case. Do you think it's fair to say that the dissenters here are more eager to decide a bigger question? I mean, yes, they would have remanded on the statutory issue, but sort of with a bigger constitutional issue in the background. Yeah, the majority is trying to get rid of this, get in and out without doing that much damage.
Will: I'm not sure how to think about that part for the reasons we talked about, but I definitely do think the dissenters are definitely more willing to disrupt the functioning of the administrative state.
Dan: Yeah. And arguably more eager to do so. Okay, I think we're through and out on that one. All right, so FCC v. Consumers’ Research. Okay, let's do our promised little overarching intro, what do we got?
Will: This is a nondelegation constitutional challenge to a fee or tax imposed on the telecommunications industry. And the Supreme Court rejects the challenge, upholds the fee/tax again by a 6-3 vote with Justice Kagan delivering the opinion to the court, joined by Chief Justice Roberts and Justices Sotomayor, Kavanaugh, Barrett and Jackson. This time we also have concurring opinions by Kavanaugh and by Jackson. And we again have the same three Justices in dissent, this time with Justice Gorsuch writing dissenting opinion, joined by Thomas and Alito.
Dan: This is why I asked that penultimate question or that ultimate question of you. Here I think it's fair to say that those three dissenters are eager to decide a broader constitutional question.
Will: Yeah. I mean the majority decides the same constitutional question. They just disagree about it.
Dan: I mean, I think that's fair. But the majority again here is going to do some statutory work to avoid unconstitutionality and to avoid then a more sweeping ruling, right?
Will: Yes.
Dan: I mean in both cases they are resolving the constitutional question, but they're doing so with some, by making some statutory, by reading the statute in a way that makes it an easier question.
Will: Right. They are saying the statute is constitutional in part because the statute doesn't mean what the dissenters think it means.
Dan: Yeah. It's not as bad, right?
Will: Yeah. Right. And this is a long-standing tradition in nondelegation challenges.
Dan: Yeah. And it is true in both cases. In both cases the dissent wants to read the statute in a way that arguably would create bigger problems, at least if you go all the way in the analysis.
Will: Yeah. Or you could say in both these cases the majority is bailing out the federal government by reading these statutes not at face value so as to save them from their unconstitutionality.
Dan: Yeah.
Will: Yeah. If you were mad about it, you might put it that way.
Dan: I'm not mad.
Will: No. But some of our listeners are.
Dan: I rarely get mad on the show. I get mad about other stuff. I'd say I can get mad a fair bit, but usually it's not at you and it's not really at the court. Maybe it's just because I have low expectations.
Will: You get disappointed, but not mad or not even disappointed?
Dan: [chuckles] I mean, sometimes I'm pleased. I'm like, “Oh, you guys did better than I expected.”
Will: Yeah. That's good. Should we talk about the statute?
Dan: Yeah. And just to preview this, there's really two nondelegation questions here, right?
Will: Yes.
Dan: One of which the Court is going to spend a ton more time on than the other.
Will: Yes.
Dan: Okay. First, the big one.
Will: So, the big question is the big question the first one?
Dan: I think so. Well, I mean, you tell me.
Will: No, it's fine.
Dan: Am I wrong about that?
Will: I don't know. They're both kind of small. [chuckles]
Dan: Well, I mean, one takes more pages, right.
Will: All right. So, there is this fee that the telecommunications industry has to pay that is set by a combination of the FCC, the Federal Communications Commission, and the Universal Service Administrative Company which administers the relevant fund. And so, the two basic questions are, “Did the statute delegate too much authority to the FCC by essentially letting the FCC impose its own taxes, which you might think is supposed to be Congress's job? And even if that's okay, does the staff of the FCC go too far in delegating government authority to essentially a private administrator or organization that isn't supposed to be accessing governmental authority?” So, one is called the traditional nondelegation doctrine, and one is sometimes called the private nondelegation doctrine, a related doctrine about delegating authority to private people.
Dan: And that is worse, presumably.
Will: Yes, although it's confusing. It's worse. Although in some ways ubiquitous. There are lots of things the government just lets private people do. And then that's okay if we don't think of it as delegating authority. We just think of it as letting them do stuff, even things that are backed by force of law.
Dan: What are you thinking of?
Will: Also, children, I think, are legally required to obey their parents. If your children run away, the law will compel them and bring them back. We don't say that they have unlawfully delegated to you [Dan chuckles] like sovereign authority over your children. We just say that's okay. It's the nature of things.
Dan: But isn't that because that's not an inherent, that's a reserve power that is prelegal, pre-sovereign.
Will: Maybe. But again, it's not just that you get to tell your kids what to do. If your kids ran away, police officers would find them and bring them back to your house, maybe. So, the state is actually boosting your authority and you could sue other people for interfering with your parental authority. Now, again, we feel like that's where the authority is supposed to be.
Dan: It's also not a federal constitutional problem because that emanates from state law, right? Mostly.
Will: Yes. Mostly. Although, I think in D.C., or I think there's a federal law that requires you to obey the instructions of a flight attendant on a federal airplane. And again, I don't think we think of them as having been delegated governmental authority to run airplanes. [Dan chuckles] It's a framing question that sometimes we think of the law that empowers private people or backs private people with state force as a delegation, and sometimes we don't.
Dan: Is it when they're setting written rules that seems to be when this comes up, when they're doing things that look like rulemaking or lawmaking?
Will: Yes, although even there it can get tricky. And maybe this case is going to exist. And there's currently a circuit split about one of these organizations. The Horse Racing Safety Integrity Organization is a private regulatory body that Congress has tried to fix. There's all this weird litigation about it. But you think that's an example of we just took some people in horse racing and told them to govern. That seems like a private delegation. But if you enact a statute that just says, “Here's a set of private guidelines and you have to comply with them.” Like if you enact a statute that says we're going to follow ABA accreditation for purposes of loans or whatever various federal rules, does that turn the ABA into a private non delegation problem? Or a statute that says, “As some courts do, that your filings have to obey the Blue Book,” [Dan chuckles] which is written by a consortium of four student law journals, is that a private nondelegation problem? Because now you've given authority over court filings to a random consortium of 2Ls? I think it's actually a deeply incoherent topic.
Dan: Do you teach this--? These have the feel of hard hypos you'd be asking students?
Will: No, I just do these hard hypos at con-law conferences.
Dan: I like it. Like the hotdog bun thing.
Will: Yeah, maybe I should. Anyway, then there's the real nondelegation doctrine or I don't know if any of these doctrines are real, which even when you've got a governmental agency, Congress is supposed to give them enough statutory specification that they can't just do whatever they want. They can't just enact a statute that says like, “There shall be an FCC, and they're in charge of the telecommunications industry, do what they say.”
Dan: The idea being that is a delegation in the sense that certain things have to be done by Congress, certain things are lawmaking and it becomes lawmaking?
Will: That is the idea. There is not a nondelegation clause the way there's an appointments clause in the previous case. There's just Article I which says “Legislative power or all legislative power herein granted is vested in Congress.” And Article II, which says “Executive power is vested in the President.” And I guess implicitly, the rest of the executive branch. And so, the argument is sometimes even though in form, there's a law that says, “Hey, do whatever you want FCC.” And the FCC is executing the law by doing whatever it wants. Sometimes it's in substance lawmaking, because the FCC is really making the rules, in some sense making the rules is lawmaking.
Dan: And there is a very serious debate about whether this exists, right?
Will: Yes.
Dan: One functionalist argument by your colleague Eric Posner and by Adrian Vermeule is basically just, this isn't a thing because anytime the executive is doing something, they're necessarily executing executive power, right?
Will: Oh, no. In their defense, that's a formalist argument. Like they're making the formalist argument. As long as Congress passes a law, if the law says, “Do whatever you want,” then the president is enforcing it. And ironically, it's all the originalists-- [crosstalk]
Dan: It's not an originalist argument though.
Will: It's the originalists with the nondelegation argument who are making a functionalist argument. Now it's a functionalist originalist argument. You can find people at the Founding saying, so I do teach this, in one of the early Congresses, there's this debate about the post office and the post roads. And when they establish post roads under the Constitution, is it enough to just say the post road shall go from Maine to Georgia and let the President figure out how to get there? Or as many members of Congress thought, do they actually have to specify a number of towns along the way so that they're the ones making the law, not the President? And in that discussion, you get all the tropes.
Somebody says, “Well, if we're allowed to do this, why can't we just pass a statute that says the President shall do whatever he thinks is good for the country, then we can all go home?” and so on. [chuckles]
Dan: Yeah. And then even within that framework, the historical framework, there's a big debate on one side, Julian Mortenson and Nick Bagley, who you mentioned a few minutes ago, on the other side, Ilan Wurman has an article directly responding to theirs. And then other folks as well are in that debate.
Will: Nick Parrillo and Aditya Bamzai, there's a bunch of great stuff in here. I'll say the controversial Dan Epps thing. I think the nondelegation doctrine is hard. As I read the materials, it's not obvious that the nondelegation doctrine is bunk. It's not purely made up. It's not a thing there's no evidence of. But there's also not a bunch of evidence of a robust nondelegation doctrine that clearly required something that we're not doing anymore. There is people sometimes making this argument.
Dan: Do you have to turn in your originalist card by saying that?
Will: I don’t-- well, we'll find out. I'm not turning it in if they come and take it from me... So, I actually think that the current doctrine which says there is a limit, Congress can't just say, do whatever you want, but the limit is very generous and almost every statute complies with it. I actually think that might be the originalist rule. That might basically be exactly what was happening at the Founding. People were not willing to say-- [crosstalk]
Dan: Okay. This is the rare instance where your originalism doesn't require radically rethinking everything.
Will: Most of the time, my originalism doesn't require radically rethinking anything. It's just that I'm just going to talk about those parts.
Dan: Okay. All right. Well, that's good to hear that we don't have to completely upend everything. Yeah. And this is said often there really are only two cases upholding a nondelegation challenge.
Will: Yes. It is often said that the nondelegation doctrine had one good year because those two cases were decided in the same calendar year, I think.
Dan: Credit to Cass Sunstein for that one.
Will: Yeah. Now there were cases where the nondelegation challenges prevailed, I think in the States, there's quite an argument also by Cass Sunstein that actually the nondelegation doctrine regularly influences how we interpret statutes because statutes have to be read in a narrower way than they would be in a world without the nondelegation doctrine. So, I don't know if the one good year quip quite works, but that has been said.
Dan: Yeah, that makes sense.
Will: And this was Justice Scalia's view too, by the way. So, Justice Scalia wrote a couple of major nondelegation cases on the court, dissent in Mistretta and a majority opinion in American Trucking and had a famous article about the nondelegation doctrine in Regulation magazine. Which he used to write for a lot called “A Note on the Benzene Case.”
Dan: You don't subscribe to that magazine, right?
Will: Regulation magazine?
Dan: Yeah.
Will: You're outing me on the show.
Dan: Do you?
Will: I used to. Well, I didn’t subscribe, but in college I went and read all the back issues.
Dan: All the back issues?
Will: Yeah. I wrote a paper about the Cato Institute and the role of libertarian think tanks.
Dan: And shouldn't it be called Deregulation Magazine?
Will: [chuckles] Well, the topic is regulation.
Dan: The topic could be Deregulation.
Will: It could be it's like VICE. I guess VICE is probably a pro VICE magazine, I don't know.
Dan: That's like the ABA’s standards that were passed a few years ago require law schools to have some instruction on things including racism. It seems like maybe you should instruct them on non-racism or antiracism.
Will: The topic is-- [laughs] But it's true. We call it anti-discrimination law rather than discrimination.
Dan: [laughs] Certainly, not pro discrimination law.
Will: They don't say, I teach discrimination. Anyway, Justice Scalia was something like there is a nondelegation doctrine but in practice there's not a judicially administrable standard for what goes too far. And so, courts should largely stay out of it. I think in the note of the Benzene case, he had the funny suggestion that the court should strike down one and exactly one delegation, just one that was really excessive. They should find one, strike it down and leave it there. Because that would kind of scare Congress and make sure they were taking it seriously. But then you could stop.
Dan: So, just sort of sword of Damocles.
Will: Yeah.
Dan: Don't actually drop it.
Will: Like Lopez and Morrison, the court struck down two things as going too far out of the Commerce Clause that single handedly changed the conversation. We no longer say there's no such thing as enumerated powers and then in fact the court upholds everything.
Dan: Do you think that changed Congress's lawmaking or just changed the conversation?
Will: I think you probably see more jurisdictional hooks and other things like that than you would in a world where those cases haven't been decided. I mean in Lopez itself.
Dan: Although, those things are usually pretty stupid, right?
Will: Well, you asked whether it changed Congress's lawmaking, not whether it was non-stupid.
Dan: Post Lopez, there's a statute that says you can't have a gun that has traveled interstate commerce in a school zone.
Will: Yeah. And travel in interstate commerce means at some point the gun was somewhere else. I've seen some of these prosecutions where literally the evidence is like, “Well this gun was made in Connecticut, we're now in California. Ergo at some point the gun dropped in interstate commerce to get here.”
Dan: That's pretty stupid, right?
Will: I know. I guess.
Dan: Maybe you like it just because it paying homage to Commerce Clause.
Will: I don't think complying with the Constitution is stupid. I guess that's my view.
Dan: Right. But it just like to the extent it makes me think that to the extent that the thing the Constitution requires is come up with this totally bogus element, maybe that's not what the Constitution must have been meant to require.
Will: So, I do not believe the current jurisdictional hooks actually satisfy the Constitution or Supreme Court precedent. I don't think it's actually enough to prove that the gun once moved. We don't even know if it moved commercially or noncommercially to prove that the gun once moved. And I don't think the Supreme Court has ever said that's enough. I'm also not convinced that the way we currently prove and litigate those jurisdictional elements is sufficient. I'm not sure we always indict them and prove them in the way that we might have to. So, I'm not sure exactly where the stupidity comes from.
Dan: Okay, so before we dig in, should we just quickly talk about the mootness question?
Will: Oh, yeah. The mootness question might be the most important part of the case.
Dan: Yeah. And it's entirely dealt with in footnotes.
Will: Yes.
Dan: So, at the very end of the kind of facts/procedural history section, there is a footnote. The sentence to which there's a footnote is we granted certiorari and now reverse the decision below, footnote. And the footnote notes that when the court granted cert, it asked the parties to address whether the case is moot. Parties agree it's not moot, and we do, too.
Will: Yes.
Dan: And it does so, relying on this doctrine, capable of repetition, yet evading review.
Will: Yes.
Dan: Which I think is basically, it is a rule that lets the court resolve moot cases for pragmatic reasons. I mean, it basically says, “Yeah, this dispute actually is moot, doesn't matter, but we think it might come up again later. And these things always happen really quickly, and we need to be able to decide the issue. So, let's just say it's not moot.” Right?
Will: It certainly has that flavor. It certainly has the flavor of being a law declaration rather than dispute resolution exception.
Dan: Does it have another flavor? I mean, that's like. I think I just summarized what it is. I mean, this comes up in Roe v. Wade. Because Jane Roe is no longer pregnant when the case happens, but she could get pregnant again.
Will: Right. And it comes up in election cases. The other main place that comes up, people will challenge some election rule that applies. Like you're a candidate in 2024, you challenge some rule, then on appeal, the election has happened. And so, we're like, “Well, does this really matter anymore?” But you're like, “Well, I'm going to be a candidate again in 2026, so now I want to litigate it again.” So, Tyler Lindley, a professor at BYU, one of my former students, and I think one of the best Junior fed courts people in the academy has a great paper called “The Constitutional Model of Mootness” where he tries to evaluate what parts of the mootness doctrine actually are defensible on formalist constitutional grounds. And he thinks that the capable of repetition prong, you get rid of the evading review prong. The evading review prong seems to just be like, we want to decide this.
Dan: Yeah.
Will: But the capable repetition prong in many cases actually is just a way to try to capture the fact that we think that there really is a strong plausibility of future harm.
Dan: To this plaintiff rather than just in general?
Will: Right. Because importantly, the capable repetition review doctrine requires you to show not just that it's going to happen to other people in evade review, but that it will happen to you again.
Dan: Pregnancy can come to the same woman twice, right?
Will: Right. But I think if you are not capable of having children again in the future, so it is not capable of repetition as to you, then the exception no longer applies, which, if it were purely a pragmatic doctrine, would not work.
Dan: It's like something that turns a retrospective challenge into a prospective challenge.
Will: Yes. And the election context may be the easier way to see it. It's like if you want to challenge the rules in the election, it's two years off, we might normally say, “Well, that's not ripe, why don't you wait?” But if you're like, “Well, look, I tried to challenge this one, but then the time ran out and it's never going to work. So let me challenge it early.” Because for instance, there are all these challenges about age things. People under the age of 21 can't have guns and stuff. And those cases regularly get mooted out because you bring the challenge when you're 18 and then by the time it's up, you're 21.
And they can't get the capable of repetition yet, evading review prong, even though the issue comes up all the time and evades review because they are never going to be under 21 again. And so, parts of the doctrine are doing something a little different.
Dan: Yeah.
Will: But that brings us to the court. So, the issue is this fee is reassessed every three months, basically. And so the fee has already been paid and thus it is moot. It's even shorter than a pregnancy, much shorter than an election cycle. And so, the case is arguably moot. And the court says that it would be moot except that it qualifies as capable of repetition, yet evading review because it happens in three-month cycles. So that's too short to expect to really get judicial review, but they're going to make the same kind of payments again, and thus you can make them.
Dan: Yeah. Mootness is something that happens during the course of a lawsuit. Standing is something that's assessed on the front end of a lawsuit. So, there's not a standing issue. This doctrine has some feel of a standing problem because it creates these situations where the court is powerless to provide any relief that matters.
Will: Yes. This is part of the underlying. There's a way in which mootness is just saying you used to have standing, but you don't anymore. And then what's weird about mootness doctrine is we are more indulgent in mootness than we are in standing. Like, if you just came in and said, “At some point in the future, this is going to happen to me, therefore I want to sue,” we would often say, “Well, that's not certain enough to give you a standing.” But if it happens in the mootness context, you're like, “Well, this happened to me in the past. Then they stopped doing it. But I'm worried they're going to start again.” We might say it's not moot. And thus, that's the kind of paradox of where it is.
Dan: Yeah. And so again, this is another situation where everybody seems to be on board, like the constitutional avoidance thing.
Will: Although, we haven't gotten to the controversial part yet.
Dan: Okay, yeah, sorry. Do the controversial part.
Will: So, several courts of appeals had said, and this is like the dominant rule, that you can't use the capable repetition yet evading review exception if you didn't even try to get preliminary relief. Because you could say, “Look, this happened to me right away. I want a preliminary injunction.” And then the grant or denial of a preliminary injunction is immediately appealable, as half the cases in the Supreme Court now are. And so many courts had said, if you don't seek a preliminary injunction, you can't complain that it evaded review because there was a route to review and you didn't take it.
Dan: Right.
Will: It's not actually-- [crosstalk]
Dan: It seems not crazy.
Will: Not at all crazy. It's not evading review if review was there [chuckles] and you just didn't want it. [laughs]
Dan: Yeah. And you could get it next time. If you just now you should go ahead and file the-- [crosstalk]
Will: Yeah. And I think that again, there's a D.C. cert case, Newdow v. Roberts. There are some other cases that say that. I'm not sure there are any circuits that go the other way that actually disagree with that?
Dan: Well, I mean, the Fifth Circuit in this case.
Will: Right. But otherwise, I'm not sure-- Anyway, but the Supreme Court-- [crosstalk]
Dan: Adopts the short side of a split on which it had asked for briefing an argument.
Will: Yeah.
Dan: In a footnote.
Will: In a footnote.
Dan: That everybody agrees with.
Will: I put this case in the Hart & Wechsler's standing supplement because it's actually potentially a big deal. And is it even right?
Dan: Is it right that you shouldn't have to seek preliminary review?
Will: Yeah. Is it right that this case is capable of repetition and evading review if you could have had review and didn't get it?
Dan: Yeah. No, I mean, that's fair.
Will: So, the court says, “Our decisions have never ended at such a requirement. And for good reason: The capable repetition rule applies because of the nature of some controversies not because of the parties’ litigating decisions.” Well, okay. The capable repetition review. Yes. Rule. Yes. But they didn't quote the second half of the rule, [laughs] the evading review rule, which you'd think would depend on litigating decisions.
Dan: Yeah.
Will: I think the best defense of this is preliminary injunctions aren't really the same as merits rulings, as Sam Bray has argued. And as the court held in Lackey v. Stinnie earlier this term, where they held that you don't get attorney's fees for winning a preliminary injunction, and thus the fact that the issue can get review by preliminary injunction doesn't really mean it gets review. It would be embarrassing for them to say that because 95% of the time, the court treats preliminary injunction cases the same as the merits. When Sam Bray says that preliminary injunction cases are not supposed to be the same as the merits, he's saying that as a critique of what the court currently does. Mahmoud v. Taylor was a preliminary injunction, and everybody just treated it as if it had resolved the merits. But I think that would be the best actual defense of this position. But that's not what the majority says.
Dan: Okay. Did this surprise you that they were so breezy on this one?
Will: Well, no.
Dan: On this question, not on the whole thing.
Will: No. I mean, when the court has an interesting case it wants to decide and there's a jurisdictional thing in the way that is sometimes when they have the incentives to be at their breeziest. Yeah, I disapprove, but I'm not surprised.
Dan: Yeah. Okay.
Will: Okay.
Dan: So, the actual issue.
Will: All right, the actual issue is the FCC or the private entity unconstitutionally exercising legislative power. The answer is no, it's fine.
Dan: No, both are fine.
Will: Yeah.
Dan: And the overarching principle, Congress needs to provide an intelligible principle to guide the agency can't just say do whatever you want. And here through fairly lengthy statutory analysis about which there's disagreement between the majority and the dissent, the court is going to say there is enough guidance here.
Will: Yes.
Dan: Congress is given these different things you have to take into consideration that provides a limit.
Will: Yes.
Dan: And that answers the general nondelegation question.
Will: Yes. Now there is a wrinkle to the general nondelegation question, which is, “Should a stricter rule apply to taxes?” Whenever we think about the nondelegation authority generally, aren't taxes something that really Congress is supposed to do and where it's not asking too much to say, “Could Congress instead of fighting over these tax cuts and stuff, just enact an intelligible principle, like the IRS shall raise as much revenue as necessary to fund the government, but not too much.”
Dan: Yeah. And I was thinking about this. And I was wondering, to the extent that there is such a rule there, and we'll see in a second, would that best be thought of as a nondelegation principle or something else?
Will: I think it would be a subset of the nondelegation principle. I mean, it would be saying, just as a statute that says to the executive, do whatever you want is a functional allocation of legislative power to the executive, a statute that says the executive a tax is hereby raised, its quantity is X, where X is whatever, the President says. It's functionally not a tax statute. Even though it's like formally is a tax statute.
Dan: It is a delegation of the taxing power.
Will: That would be the argument.
Dan: Yeah.
Will: But the court does not accept that argument.
Dan: Yeah. And without having dug into the precedent, Justice Kagan's opinion very persuasively argues that precedent had ruled that argument out.
Will: Yes. And I think she's right about that. There's this precedent, Skinner, that's from the 80s.
Dan: And then there's a much older case, J.W. Hampton.
Will: Yes. So, there's this case, Skinner v. Mid-America Pipeline from 1989 that quite flatly states this rule that there's no special non-delegation doctrine for taxes in a unanimous opinion by Justice O'Connor. And at the risk of turning this into a joke, when I was clerking, I was going to write an article about why this case was wrong, largely based on just the fact that the opinion was like a unanimous opinion from 1989 saying delegation of taxes is totally fine, just must be wrong. I didn't even know why it was wrong, but it was just like it triggered your radar in the way that sometimes a unanimous opinion that says there's nothing to see here makes you think like, “Wow, there really must have been something to see there.”
Dan: You need a studio like Michelangelo's studio, where you have a bunch of disciples who are producing these articles, you're never going to have time to write.
Will: I'm hoping one day ChatGPT can do it. So far, my early experiments with that have not gone well.
Dan: Yeah, I think we need ChatGPT17.
Will: But my hope is that rather than being one of these law professors put out of business by large language models, I will figure out how to run a team of large language models to write my articles. But I think the doctrine might actually be right. Nick Parrillo has a nondelegation article about the direct taxes imposed at the founding, which really did delegate a huge amount of discretion to the administrators to figure out how to assess the tax and on what the exemptions would be that people in the literature fight about. But that was enough to persuade me that there isn't a special. The doctrine's not applied more strictly to taxes at the founding than other things, whatever the doctrine is. So, I guess it's fine. Seems weird to me, but I guess it's fine.
Dan: Okay, now, so that no special rule. So, we're back in the land of regular intelligible principle rules. And to find that there is one, the court reads the statute in a way that in some ways, I guess, limits the agency's discretion.
Will: Yes. I mean, they read these general principles in the statute about how much money you have to raise and so on to impose some guidelines for the FCC authority.
Dan: Yeah. And the dissent wants to read that much more broadly. In that way, it seemed to me like the dissent is kind of reaching. The dissent really wants to be able to establish this stronger version of nondelegation in a way that I thought was not particularly admirable.
Will: Well, it's admirable if you want to restore separation of powers.
Dan: Right. But it seems like in general, I think some amount of judicial restraint only reaching the big issues when you absolutely have to, don't stretch.
Will: So, look, I'm with you in the majority, but I want to be a little more clear about of what's going on here. These are statutes that don't really contain an intelligible principle. But because that would be bad, the court reads the statute randomly, finds some parts that could be read to impose an intelligible principle, that announces that they impose an intelligible principle to save the statute and this is highly traditional. The court did this in Gundy. The court does this as a dozen nondelegation doctrine cases where it does this, where it's like you might read the statute and think the agency can do whatever it wants, but actually they have to comply with the purpose of the statute and not do anything unreasonable and maybe do a little dance and they're all happy.
Dan: Yeah, I mean, it does that. It's often not adopting super implausible statutory readings. I remember thinking maybe Gundy was more improbable than this one. But it seemed like Justice Kagan had some good arguments for how to read the statute in the overall statutory structure.
Will: Fair enough. Justice Kagan is very good. They're also just not super constraining principles, and they don't pretend to be. So, we are not saying that there are enforceable limits on what the FCC can do that the FCC might conceivably do X, and now it will be stopped from doing X by the courts reading the statute. These principles are often at a much higher level of generality than that. So, there are like we hope, they're informing agency discretion, but they're not creating the prospect of meaningful judicial review.
Dan: Yeah. It's not saying that a fee of $3 is okay, if a fee of $3.50 is not okay.
Will: Or even a fee of $300 is not okay.
Dan: Yeah. It does seem to say a fee of $5 trillion might not be okay. Maybe sort of suggests in dealing with some hypos, like maybe that statute that said an agency can impose a $5 trillion tax, it's not okay.
Will: Right. And maybe a $0 tax would not be okay.
Dan: Yeah.
Will: Right.
Dan: Because here the agency was instructed to set an amount that was sufficient to accomplish this goal of providing universal access to certain telecommunications services.
Will: Right. Okay, so then that brings us to the other question, which is whether the role of the administrator, which recall, is a private, not for profit corporation, as Justice Kagan says in a parenthetical. Whether that independently flouts a constitutional command, the private nondelegation doctrine.
Dan: No.
Will: No. Because ultimately the administrator doesn't have independent power.
Dan: Yeah. Which seemed, again, this is a shorter analysis. This is like three and a half pages, but it seemed plausible to me. Seemed basically right.
Will: Although. So, it's saying they do a bunch of work and a bunch of math, but ultimately the FCC makes the ultimate call.
Dan: Yeah. They're just like helpers.
Will: Yeah. Isn't that sort of like the inferior officer test?
Dan: Yeah, it does seem to overlap a lot with that question.
Will: But here they're not officers at all. So, are we saying that if you delegate to an inferior officer, it's okay even if they're not actually an inferior officer?
Dan: Yeah, I mean, the question, the rule for officer/nonofficer is what has the power to bind the government and exercises significant power?
Will: Something like that.
Dan: Yeah.
Will: I think binding the government is not actually part of the test but--
Dan: I mean, they've talked about that, haven't they?
Will: I think whether you combine the government is a factor in whether you exercise significant power. But the ultimate test is significant power.
Dan: Yeah, fair. But it seems like maybe that is an important factor.
Will: And then there is this gestalt question though, of like. But you put these things together, right? You have a delegation stretch in the tax context with this private administrator. And doesn't that add up to something? And you get at page 36, my favorite holding from the court, “Contra the Fifth Circuit, a meritless public nondelegation challenge plus a meritless private nondelegation challenge cannot equal a meritorious ‘combination claim.’”
Dan: Which seems quite right to me.
Will: Okay. I mean, I guess so. Given that it's all a functional doctrine anyway. It doesn't seem like if you said in reverse that should we evaluate these functional nondelegation claims by slicing and dicing each aspect of them separately, or should we look at the big picture and just ask whether the big picture violates whatever the principle is? I would think the test should be the big picture.
Dan: Yeah. I mean, they're two slightly different doctrines though, right?
Will: They are. But I take it they're bind.
Dan: Right. It just seems like we've given the agency enough of guidance, okay. And then in the course of doing that, they're getting help from private organization, but not in a way that creates a problem.
Will: Yeah.
Dan: I mean, I think I could see there being if you had some statute that had multiple layers of unintelligible principles.
Will: Yeah.
Dan: Maybe-- But here, where there are two somewhat different issues, it just doesn't work for me.
Will: Although the ultimate issue is, did Congress enact this tax as the Constitution requires or not?
Dan: Yeah.
Will: And so, the more non-Congress stuff you have in there doing the work, you might think the more it's at least possible that this was not a tax enacted by Congress as the Constitution requires.
Dan: Yeah.
Will: But I mean, still, I'm satisfied.
Dan: Yeah. Okay. We're running short on time, but maybe we should briefly talk about Justice Kavanaugh and just a little bit about the dissent. He has one of these opinions that he writes sometimes which is sort of like lays out his bigger picture views on an interesting question. And so, he has, I think, a couple of interesting points he's digging into. So, first he gives his view of the intelligible principle doctrine and then he says, “I think there's a bigger problem if we're talking about delegations to independent agencies.”
Will: Right. I mean, I think this is a very important concurrence. So, part of what he says is that we shouldn't enforce the nondelegation doctrine too strictly if it will lead to the executive losing because executive power is good. So, frequently in a nondelegation challenge, we're just ultimately talking about executive power which Justice Kavanaugh supports. And so, he's only concerned really about delegations to independent agencies because they are outside of executive branch control too. But his first choice as we know is to get rid of independent agencies. And if we do, then we won't have anything to delegate to them.
Dan: Yeah. And to the extent that the court is really dialing back on the power of administrative agencies in Chevron and using the major questions doctrine, that is solving some of these things we might be worried about.
Will: Yeah, exactly. I in fact read him to some extent. So, he had written an opinion in I think the denial of rehearing in an earlier case whether that was was Gundy or something else saying he was open to joining to revive the nondelegation doctrine. And now he says more clearly, “I don't need that anymore. I overruled Chevron. I got the major questions doctrine that pretty much does the work that revoking the nondelegation doctrine would have done. If we get rid of independent agencies as the third thing, then I'm good. I don't really need the nondelegation doctrine anymore.”
Dan: So, basically you end up with a world where a fair amount of things delegated to the President but to the President, not to some random bureaucrat.
Will: Right. He also says along the way, by the way, that the major questions doctrine does not apply to national security or foreign policy.
Dan: Yeah.
Will: Because the nondelegation doctrine wouldn't apply there under Curtiss-Wright. That's a place where the President's supposed to have a lot of power. And so, we shouldn't put the major questions doctrine there either.
Dan: So, just let in those areas very strong presumption of executive power.
Will: Yeah. That's a controversial move that's also highly consequential for the non-delegation and major questions challenged to the Trump tariffs that's pending in the en banc federal circuit. I think being argued soon. If you were the challengers in that case, I think whether a tariff is a foreign policy question or not? But I think if you were the government, in that case, you're excited about Kavanaugh's concurrence because you could say, “Aha, major question doesn't apply to tariffs.” So that's a big deal. And it's an interesting. I mean, on the one hand it's a pro-executive power opinion, so it reads. But it's also in some sense good for the liberal’s opinion in that it's announcing that the nondelegation doctrine just lost.
Dan: Yeah. It's good with respect to this doctrine, not good with respect to the overarching project, which is in some ways limiting the power of the administrative state in other tools.
Will: Yeah.
Dan: Or at least putting more of it under political control.
Will: Yeah.
Dan: Okay. A very short concurrence by Justice Jackson saying she's skeptical that the private nondelegation doctrine is a thing--
Will: Citing Sasha Volokh-- [crosstalk]
Dan: The recent article in Notre Dame Law Review.
Will: Yeah. “The Myth of the Federal Private Nondelegation Doctrine.”
Dan: Yeah. What would it look like if that weren't a thing? Would it be the same test would apply to both private and public delegations? It couldn't be the case that you could delegate anything to a private organization, but you'd still have an intelligible principle test for agencies. That doesn't seem right.
Will: Yeah. So, in the Volokh article, he goes through a bunch of different doctrines that do some of the work based on who was the recipient and will the application of the power be unjust. There are several different doctrines that will sometimes apply to these things. So, it's not that they're saying that, “Yeah, as long as you delegate to a private person, you can do whatever you want,” but that there's no sort of per se rule against delegating power to private people.
Dan: Yeah. Okay. I think the discussion of the dissent has already been a little bit implicit in what we've been talking about. But before our time expires, do you have anything you want to say about it?
Will: No. Justice Gorsuch must be so bummed. He must have thought in Gundy that-- [crosstalk].
Dan: Finally going to get my majority.
Will: But it doesn't look like it's going to happen.
Dan: Nope.
Will: There's a commentary, I think, on Gundy in the Yale JREG blog by Adrian Vermeule called “Never Jam Today,” [laughs] which basically had this take on the non-delegation doctrine. It was jam yesterday and jam tomorrow, but never jam today. We're just never going to actually get there. And, yeah, Never Jam Today.
Dan: It's like. You ever heard this thing people say about Brazil?
Will: No.
Dan: Brazil is the country of the future and always will be. [Will laughs] I take no position on that. Brazil seems like a cool place, but I've not had a chance to visit.
Will: Me too. Maybe we'll do a live show there one day.
Dan: [laughs] You'd consider that one if we get invited. It's hard to get you out of the city of Chicago. You like your routine. You're like a routine guy.
Will: I have a pretty strict cap on work travel, in part because of all the obligations I have here. That is true.
Dan: You would do a Brazil live show, though, right?
Will: I mean, it'd be hard to turn down a Brazil live show.
Dan: Okay, well, I think that's it. So, please rate and review the podcast and distribute it to anyone who might be interested who hasn't yet heard about us. Every week or so we hear from somebody who had no idea that we existed. And so, there still is a not infinite but considerable potential audience out there who has not discovered us. Check out our website for transcripts of the episode dividedargument.com, blog.dividedargument.com for commentary from the larger, extended universe of Divided Argument commentators. store.dividedargument.com for merchandise. Send us an email that we are unlikely to respond to, but we'll read pod@dividedargument.com or leave us a voicemail. 314-649-3790.
Will: And thanks to the Constitutional Law institute for sponsoring all of our endeavors.
Dan: If there's a long delay between this and our next episode, it will be because I am too traumatized from trying to muddle my way through these statutory questions in these cases.
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