D.C. Circuit Review – Reviewed: Chief Justice Roberts and Administrative Law

by Aaron Nielson — Sunday, Sept. 27, 2015@Aaron_L_Nielson

The D.C. Circuit issued no opinions this week. Instead, it got rid of one. In particular, the court vacated its (latest) judgment in the long-running Al Bahlul v. United States saga and set the case for (another round) of en banc consideration. The court’s vacatur order provides a good opportunity to discuss Chief Justice Roberts and the modern state of administrative law.

“Wait,” you say—“what does Al Bahlul have to do with administrative law, much less the Chief Justice?” Well, the D.C. Circuit instructed counsel to address two issues: “The standard of appellate review of Bahlul’s conviction for conspiracy to commit war crimes. See, e.g., Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct. 1932 (2015); CFTC v. Schor, 478 U.S. 833 (1986); and (2) Whether the Define and Punish Clause of Article I of the Constitution gives Congress power to define as an Offense against the Law of Nations—triable before a law-of-war military commission—a conspiracy to commit an Offense against the Law of Nations, to wit, a conspiracy to commit war crimes; and whether the exercise of such power transgresses Article III of the Constitution.” If you are interested in the second issue, consult the experts. If you are interested in the first issue, however, you should understand administrative law—including the direction the Chief Justice would like to take it.

Brace yourself for a quick ride.

The Chief Justice’s administrative law opinions suggest that he wants to reestablish boundaries between the three branches of government, or at least prevent further disintegration of the boundaries that still exist. With the rise of the administrative state, the lines between legislative, executive, and judicial powers have become fuzzy. Chief Justice Roberts worries about this.

For example, consider the Chief Justice’s opinion in Free Enterprise Fund. In Humphrey’s Executor, the Supreme Court allowed Congress to insulate government officials from presidential control by restricting the president’s ability to remove them. Since then, single “for cause” restrictions on removal (i.e., the president can only remove the person for “cause”) have been understood as constitutional. This has led to what has been called the headless “Fourth Branch of Government”—agencies who exercise federal power without direct presidential control. But in Free Enterprise Fund, the Court held unconstitutional double “for cause” restrictions on presidential removal (i.e., the president can remove an official only for cause, and that official can remove a third official only for cause; the president thus is two “for causes” away from that third official). In one sense, this distinction makes little practical difference. But what’s the long game? Even if the Chief Justice does not want to overrule Humphrey’s Executor, it sure seems like he wants to discredit it. (Neomi Rao, for instance, argues that Free Enterprise Fund’s logical conclusion does not bode well for Humphrey’s Executor.) And it is clear fromFree Enterprise Fund that the Chief Justice likes bright separation between the branches. Indeed, heopened the Court’s opinion this way: “Our Constitution divided the ‘powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.’ INS v. Chadha, 462 U. S. 919, 951 (1983).”

Consider also the Chief Justice’s dissent in City of Arlington, which concerned whether agencies should get deference in interpreting their own jurisdiction. In Chevron, the Court shifted a great deal of statutory interpretation from the judicial branch to the executive branch. That’s why Cass Sunstein calls Chevron a “counter-Marbury,” because sometimes it now is for agencies, not courts, to say what the law is. The Chief Justice, however, would like to limit the scope of Chevron; indeed, his dissent in City of Arlington was dismissed by the majority as an attack on “Chevron itself.” Tellingly, the Chief Justice’s dissent (joined by Justice Kennedy and Alito) included this lament:

One of the principal authors of the Constitution famously wrote that the ‘accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.’ The Federalist No. 47 (J. Madison). Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules. The accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.

And this:

The Framers did divide governmental power . . . for the purpose of safeguarding liberty. And yet . . . the citizen confronting thousands of pages of regulations— promulgated by an agency directed by Congress to regulate, say, ‘in the public interest’—can perhaps be excused for thinking that it is the agency really doing the legislating. And with hundreds of federal agencies poking into every nook and cranny of daily life, that citizen might also understandably question whether Presidential oversight—a critical part of the Constitutional plan—is always an effective safeguard against agency overreaching. It is against this background that we consider whether the authority of administrative agencies should be augmented even further, to include not only broad power to give definitive answers to questions left to them by Congress, but also the same power to decide when Congress has given them that power.

These statements, I suggest, capture the core of the Chief Justice’s philosophy, at least when it comes to administrative law.*

Next consider the Chief Justice’s opinion in Stern v. Marshall. In cases like Crowell v. Benson andSchor, the Court blessed some non-Article III adjudication of “private” rights, including agencyadjudication of private rights (what’s the difference between a public and a private right? Trust me, that question can’t be answered well in a blog post. Try this book instead.). The Chief Justice, however, does not want the judicial power to be exercised outside of Article III courts. Hence, inStern, the Chief Justice (like Justice Brennan before him), while leaving precedent in place, tried to prevent more issues from being resolved outside of federal court. Speaking generally, in Stern, the issue was whether bankruptcy courts could resolve common law counterclaims; the Court held that they cannot. As in Free Enterprise Fund and City of Arlington, the Chief Justice in Stern celebrated strict separation. In fact, he proclaimed that “[i]f such an exercise of judicial power may … be taken from the Article III Judiciary … then Article III would be transformed from the guardian of individual liberty and separation of powers we have long recognized into mere wishful thinking.”

All of this is why the Supreme Court’s decision last year in Wellness merits attention, especially because Wellness is one of the cases the D.C. Circuit ordered the Al Bahlul parties to brief. In Wellness, the Chief Justice’s efforts to draw clear lines failed, as the Court—over the Chief Justice’s dissent—reiterated Schor’s rejection of “formalistic and unbending rules.” Indeed, the Wellness Court treated the right to an Article III court as something that can be waived or consented away, at least most of the time. (Wellness, like Stern, also concerned bankruptcy courts.) The Court also said that such “consent” can be implicit. The Chief Justice disagreed—vehemently, going so far as to say that “[t]he Court today declines to resist encroachment by the Legislature. Instead it holds that a single federal judge, for reasons adequate to him, may assign away our hard-won constitutional birthright so long as two private parties agree. I hope I will be wrong about the consequences of this decision for the independence of the Judicial Branch.”

So what does all of this mean for Al Bahlul? I’m not sure. Justice Alito’s concurrence in Wellness states that if a party litigates in a non-Article III tribunal and doesn’t properly raise its objection before an Article III court, the objection is forfeited. That position seems consistent with the thrust of the Wellness majority’s analysis. If Bahlul forfeited his Article III challenge to the military commission, then—under Wellness and Schor—he may be out of luck, though in theory there may be an argument that criminal or military jurisdiction is different. Had Chief Justice Roberts’s views prevailed in Wellness, Bahlul would have a stronger position now. In other words, perhaps one day the Chief Justice will establish a strict line in this context (and in others across administrative law), but not yet. (Note, of course, one can favor sharper lines and still disagree with where the Chief Justice would draw those lines. But the point is that he is looking for lines.)

There you go—a “big picture” explanation of modern administrative law. Not a bad way to spend five minutes.

*Combine the three dissenting justices in City of Arlington, with Justice Thomas (who wonders whether Chevron is constitutional) and Justice Scalia (who recently took a shot at Chevron), and it appears that a sizable chunk of the Court is at least somewhat skeptical of Chevron. Interesting times.

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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