D.C. Circuit Review – Reviewed: The Baron Montesquieu

by Aaron Nielson — Sunday, Apr. 10, 2016@Aaron_L_Nielson

Here is an interesting fact: the D.C. Circuit has invoked Charles-Louis de Secondat, baron de La Brède et de Montesquieu—better known as Charles de Montesquieu, the Baron Montesquieu, “ the celebrated Montesquieu,” or just Montesquieu—on at least nine separate occasions. Included in this list are some notable cases: Nixon v. Sirica, Buckley v. Valeo, and In re Sealed Case (rev’d sub nom. Morrison v. Olson, 487 U.S. 654 (1988)). At first blush, it is odd to see that many cites to a mid-18th century Parisian. On reflection, however, these citations should not be all that surprising.

More than any other circuit court, the D.C. Circuit is confronted with separation-of-powers cases, and Montesquieu’s musings on that subject have long played an important role in the political philosophy of the United States. As Neomi Rao has demonstrated, Montesquieu was cited in the Supreme Court as early as 1810. And both the majority opinion and dissent in Myers v. United States cite Montesquieu.

My thoughts turned to Montesquieu this week when reading an unexpected order. Next week, a panel of the D.C. Circuit will hear oral argument in a case that, among other things, challenges the constitutional structure of the Consumer Financial Protection Bureau. In advance of that argument, the panel issued this order:

PER CURIAM ORDER filed, on the courts own motion, that the parties be prepared to address at oral argument on April 12, 2016, the following questions: (1) What independent agencies now or historically have been headed by a single person? For this purpose, consider an independent agency as an agency whose head is not removable at will but is removable only for cause; and (2) If an independent agency headed by a single person violates Article II as interpreted in Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010), what would the appropriate remedy be? Would the appropriate remedy be to sever the tenure and for-cause provisions of this statute, see 12 U.S.C. 5491(c)? Cf. Free Enterprise Fund, 561 U.S. at 508-10. Or is there a more appropriate remedy? And how would the remedy affect the legality of the Director’s action in this case? Before Judges: Henderson, Kavanaugh and Randolph.

This order sent me racing to google to find the briefs. It turns out that lead counsel for challengers is none other than Ted Olson, who knows a thing or two about the separation of powers. Olson’s brief does not quote Montesquieu, but it does say this: “The CFPA places sweeping legislative, executive, and judicial power all ‘in the same hands’ of a single person who is entirely unaccountable to the democratic process—what James Madison called ‘the very definition of tyranny.’ The Federalist No. 47.” And who does Madison cite for that proposition? Montesquieu, of course:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to everyone, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu.

In Federalist 47, Madison explained what he believed Montesquieu meant by the axiom that “there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.” According to Madison, Montesquieu did not mean there could be no commingling of powers, but rather that “where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted.” Thus, the U.S. Constitution was acceptable because “[t]he magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it.”

Montesquieu, at least as read by Madison, thus was not an absolutist. Some mixing is okay—the “several departments of power” need not be “kept absolutely separate and distinct.” But Madison also stressed that “the fundamental principle under consideration” can be “violated by too great a mixture.”

I’m not an expert on the CFPB and have no idea what the panel will end up deciding, but I have a hunch that no matter what the panel decides, the D.C. Circuit will cite Montesquieu at least one more time before the end of this summer. (For admin law scholars, it is worth noting that the challengers’ reply brief cites Rachel Barkow.)

Even apart from this order, the D.C. Circuit’s theme this week was the separation of powers:

United States v. Fokker Services: In 2010, Fokker Services approached the government and disclosed “that it had potentially violated federal sanctions and export control laws.” Fokker thereafter cooperated with a government investigation and took remedial steps to correct the violations. The government then negotiated a deferred prosecution agreement (DPA) with Fokker, and the parties filed a joint motion to suspend the time limitations under the Speedy Trial Act. The district court, however, denied the motion because the judge believed the DPA was too lenient and that individual company officers should also have been charged. Judge Srinivasan, joined by Judges Silberman and Sentelle, vacated this order and issued a writ of mandamus to the district court to grant the motion. The panel explained that as a matter of constitutional principle, courts do not have the authority to second-guess charging decisions that lie within the Executive Branch’s prosecutorial discretion: “It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences.” (This is an important case that merits a close read. Also, for what it is worth, the opinion cites In re Aiken County, authored by Judge Kavanaugh, which cites Montesquieu.)

District of Columbia v. Department of Labor: CityCenterDC (CCDC) is an upscale development comprised of high-end stores, restaurants, living areas, and office space (including offices for “the large private law firm of Covington & Burling”). The District of Columbia owns the property on which CCDC is built. In 2011 the Department of Labor ruled that the Davis-Bacon Act—designed to ensure that wages for government construction projects would be paid at prevailing rates—applied to the construction of CCDC because, in the agency’s opinion, certain development agreements counted as “contracts for construction” under the statute and the CCDC is a public work. Judge Kavanaugh, joined by Judge Williams (Chief Judge Garland did not participate), rejected the agency’s arguments. The DOL argued that its interpretation of “contract . . . for construction” was due Chevron deference, but the panel concluded that the agency’s interpretation “contravenes the text, structure, and purpose of the Act” because the District of Columbia was not even a party to the contracts at issue. “It bears emphasis, moreover, that in the 80 years since its enactment, the Davis-Bacon Act has never been applied to a construction project such as CityCenterDC that is privately funded, privately owned, and privately operated.” Thus, if the agency wanted such authority, “the proper approach under our system of separation of power is for Congress to amend the statute, not for the Executive Branch and the courts to rewrite the statute beyond what the statute’s terms can reasonably bear.” Indeed, “the U.S. Department of Labor may ask Congress to update the statute to cover this new situation. See U.S. CONST. art. II, § 3, cl. 2 (Recommendations Clause).” The court also rejected DOL’s characterization of CCDC as a public work: “The concept of a public work may well be elastic. But it cannot reasonably be stretched to cover a Louis Vuitton.”

United States v. Scurry: Here the court confronted several issues surrounding cell phone wiretaps. Judge Rogers, joined by Judges Pillard and Williams rejected several of defendant Scurry’s arguments. But the trio reversed the denial of a motion to suppress, finding that a wire-tap order is facially insufficient when it fails to name the DOJ official who approved the application. It seems the orders at issue had asterisk marks instead of the name of the DOJ official. Since the Omnibus Crime Control and Safe Streets Act requires the identity of the DOJ official who approves the application be listed on the order, and precedent limits the inquiry to the four corners of the order, Scurry argued that the omission rendered the order facially invalid. The government countered that the law shouldn’t be read so strictly. The panel not only rejected the United States’ argument, it found that suppression is required for a facially insufficient order. Further, and interesting from a separation-of-powers perspective, the panel counseled that the Criminal Resource Manual used by DOJ should be revised to prevent further errors of this type.

Gordon v. Lynch: Gordon used to be involved in the business of selling cigarettes across state lines. He was previously granted a preliminary injunction against certain sales tax enforcement provisions of the Prevent All Cigarette Trafficking Act. However, the district court denied his motion for a permanent injunction because it found his case to be moot since he had said that “he had no intention to re-enter that business,” and the agency in charge of the Act also said it had no intention to enforce the provisions against him. He argued on appeal that a permanent injunction wouldn’t be moot because it would eliminate the possibility of “criminal and civil penalties for his past violations” and it “would shield him from collateral consequences in the form of civil actions by states in which he sold untaxed cigarettes.” Judge Williams, joined by Judge Brown (Chief Judge Garland again did not participate), affirmed the determination of mootness, in large part because government counsel said during oral argument that the United States wouldn’t seek to hold Gordon liable for past violations and because a permanent injunction in D.C. would not stop other jurisdictions from pursuing him.

Nurriddin v. Bolden: Nurriddin brought various claims of retaliation and discrimination against his employer, NASA. The district court granted summary judgment to NASA on all the claims. In a per curiam opinion, Judges Brown and Randolph affirmed. For instance, the panel affirmed summary judgment on Nurriddin’s Title VII claims because “there is no basis whatsoever for a reasonable jury to infer either discrimination or retaliation” from the evidence in the record. Judge Wilkins dissented with regard to one aspect of the Court’s Title VII conclusion, contending that a jury could have sided with Nurriddin.

What’s the takeaway this week? Perhaps it’s time for all of us to brush up on our Montesquieu.*

* John Locke, Alexis de Tocqueville, and Edmund Burke, for what it is worth, have been at least cited three times each. It appears that the D.C. Circuit has never cited Thomas Hobbes, though Thomas Paine has been cited at least twice. Benjamin Franklin has been cited a handful of times (by my count five). Plato has been cited a few times, as has Socrates, though they sometimes are cited together, as here: “I fear that Judge Bazelon is turning from Socrates, and his concern with the limits of knowledge, to Plato, and his quest for the ideal. Judges, however, must deal with the workaday world. In judicial review of administrative regulation courts have a dual role, of supervision of administrative agencies, and of responsible partnership in the public interest. They cannot fairly demand the perfect at the expense of the achievable.” Charles Dickens—not much of a philosopher, I suppose, but a keen observer of the human condition—has been cited at least 7 times (usually Bleak House).

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. 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. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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