Federal common law: it's actually everywhere!

|The Volokh Conspiracy |

I've recently been blogging about my new article, The Inherent-Powers Corollary: Judicial Non-Delegation and Federal Common Law, which I've posted to SSRN.

Here's a link to my initial post.

Here's a link to my second post, explaining how the non-delegation doctrine applies to delegations to the judiciary and why this makes sense.

Here's a link to my third post, where I discussed my basic thesis—that the non-delegation has an "Inherent-Powers Corollary", under which delegations are judged more charitably if they are into an area where the delegate already has inherent power. (The Inherent-Powers Corollary also has an "Interlinking Principle", under which all that's necessary is that the delegated power be interlinked with (not necessarily actually within) the delegate's inherent powers.)

Here's a link to my fourth post, where I started applying this principle to actual delegations; my first example was delegation to the courts to make procedural rules, which I concluded was constitutional under the Inherent-Powers Corollary, except for the unusual power of judge-made rules to invalidate statutes.

And here's a link to my fifth post, where I used the Inherent-Powers Corollary to reject the view, expressed by some, that the Erie doctrine is best understood as a non-delegation doctrine.

Today, I'll talk about other inherent judicial powers, and how they can validate broad delegations in various fields. The first field in which federal courts have common-lawmaking powers is particular federal "enclaves", or specialized subject-matter areas, like admiralty, foreign affairs, interstate disputes, etc. My view is that federal courts' common-lawmaking power in foreign affairs means that a broad delegation to define law-of-nations torts, as in the Alien Tort Statute, doesn't violate the non-delegation doctrine (though it might violate other provisions, like perhaps the Offenses Clause).

A second field where federal courts are thought to have certain common-lawmaking powers is the creation of defenses to federal statutes—and various other statute-limiting doctrines that operate through substantive canons of interpretation. That power can justify the delegated judicial power to create defenses to environmental statutes, as well as, potentially, the judicial power to create religious exemptions in RFRA.

A third field where federal courts are thought to have certain common-lawmaking powers is the remedial power; that's a potential ground for the validity of the Sentencing Guidelines, if they didn't have any intelligible principle (as the Court found they did in Mistretta).

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Uniquely Federal Interests

It's often asserted that federal common law can also be made in areas involving "uniquely federal interests." But there's substantial controversy over how unique the federal interest has to be. One narrow view would limit federal common-lawmaking to a small set of categories, including "interstate controversies, admiralty, proprietary transactions of the United States, and international relations." A somewhat broader view would allow federal common-lawmaking when "Congress has enacted law delegating lawmaking power to courts, or . . . it is necessary to replace state with federal law in order to preserve a provision of enacted law." An even broader view would allow federal common-lawmaking if the court can "point to a federal enactment, constitutional or statutory, that it interprets as authorizing the federal common law rule."

It's clear, then, that one's choice among these theories will affect one's conclusion as to what delegations are permissible. Just as with Erie, one has to come to such a view without the benefit of the non-delegation doctrine, since one's view of the proper scope of federal common law will affect the applicability of the non-delegation doctrine-that's the nature of the Inherent-Powers Corollary.

For purposes of this Article, I don't need to commit myself as to which theory of federal common law is correct. But I'll make the following three points: federal common law is permissible in certain subject-matter enclaves; for purposes of the Inherent-Powers Corollary, we have to focus only on statute-independent federal common-lawmaking powers, and ignore federal common-lawmaking powers that are derived from statutes; and jurisdictional grants shouldn't be considered sufficient to grant federal common-lawmaking power.

Uniquely Federal Interests: 1. Enclaves

First, even the narrowest of theories allows for a small category of federal common-lawmaking. As for interstate controversies or international relations, no state law is appropriate.

The same is true for interstate disputes and (in most cases) for admiralty. These are two areas where there's no explicit delegation, just constitutional provisions establishing judicial power and a statutory grant of exclusive federal jurisdiction. As I point out below, these two factors aren't enough to authorize federal common-lawmaking, but in these areas, the inapplicability of state law and the need for national uniformity combine to make federal common-lawmaking clearly appropriate.

As for proprietary relations of the United States, there's a federal common law of contract to govern commercial transactions involving the federal government, a federal common law of tort to govern torts committed against the federal government or in areas of significant federal interest, and a federal common law of property to govern the scope of property rights granted by the federal government. I have my doubts as to this line of doctrine, but it dates back to the 1940s and is clearly well established.

Under the Inherent-Powers Corollary, this by itself is enough to justify standardless delegations of lawmaking power to the courts in these enclaves. This potentially includes the Alien Tort Statute's incorporation of law-of-nations torts. Determining what torts violate the law of nations is either part of courts' common-lawmaking powers as to international relations, or is interlinked with those powers. (Recall that in Curtiss-Wright the President could choose whether to ban arms sales to the Chaco, and in Loving he could decide whether a particular offense was death-eligible, even though the Court assumed in both cases that he would have no power to do this on his own.) There might be some independent constitutional bar to letting courts define law-of-nations torts-Kontorovich argues that the Offenses Clause makes Congress the exclusive lawmaker in this area-but if so, this is a separate, specific non-delegation principle, not the general non-delegation doctrine.

Uniquely Federal Interests: 2. The Need to Ignore Delegated Judicial Power

Second, it's necessary to distinguish the Inherent-Powers Corollary from some of the broader formulations of federal common-lawmaking power.

Some cases, like D'Oench, Duhme & Co. v. FDIC, have been interpreted broadly, to stand for the proposition that "a statute establishing a federal program can be understood to include an implied delegation to judges to supply necessary omissions." Note the word "delegation" in that quote: obviously, this isn't a statement of the federal courts' inherent common-lawmaking power, but rather a statement of the courts' delegated common-lawmaking power.

So if we get such a statute establishing a federal program, the Inherent-Powers Corollary doesn't allow us to use the courts' supposed "supply necessary omissions" power to validate the delegation-for the simple reason that the Inherent-Powers Corollary requires us to look to courts' inherent powers only. To do otherwise-to rely on the scope of courts' delegated powers to justify the terms of a delegation-would be circular.

We thus need to clearly separate courts' delegated and inherent-that is, their statute-dependent and statute-independent-powers. The Inherent-Powers Corollary considers the statute-independent powers of courts, and ignores the extra delegated powers that they get from statutes. Not just ignores: whether those powers really are delegated-whether courts really do have a power to develop statutory schemes, as the federal common law literature puts it-should be the result of the non-delegation inquiry. (This is true for delegations to the President as well. The President has inherent powers like the Commander-in-Chief power to organize the military, but also has all the delegated power represented by the Take Care Clause. But clearly we can't justify all delegations to the President on the theory that the President has a Take Care power to execute the statute: that would similarly be a confusion of statute-independent and statute-dependent powers.)

The Sherman Act provides a good illustration of this inherent-vs.-delegated distinction. Later, I'll discuss a different ground for the validity of the Sherman Act: that, by incorporating a well-defined pre-existing common law tort, it delegates to courts no more than the inherent statutory-interpretation power that they already have. But can I justify the Sherman Act the way I just justified the Alien Tort Statute-by placing it within an area involving "uniquely federal interests," where courts already have a federal common-lawmaking power? Clearly, I won't be able to justify antitrust delegation using the general argument that courts have an unlimited power to fill out any congressional delegated regime. But can I make a specific argument that antitrust implicates uniquely federal interests?

The Supreme Court's discussion in Texas Industries, Inc. v. Radcliff Materials, Inc. suggests that I can't: antitrust just isn't unique enough. In Texas Industries, a defendant in an antitrust lawsuit filed a third-party complaint against his alleged co-conspirators, seeking contribution from them if he was held liable. The Court noted that the antitrust statutes didn't expressly establish a right of contribution; nor could the Court find such a right in the legislative history. Because Congress didn't create such a right, "[i]f any right to contribution exists, its source must be federal common law." The Court had previously recognized a right to contribution in admiralty, but admiralty is one of the recognized areas of federal interest. By contrast:

[A] treble-damages action remains a private suit involving the rights and obligations of private parties. Admittedly, there is a federal interest in the sense that vindication of rights arising out of these congressional enactments supplements federal enforcement and fulfills the objects of the statutory scheme. Notwithstanding that nexus, contribution among antitrust wrongdoers does not involve the duties of the Federal Government, the distribution of powers in our federal system, or matters necessarily subject to federal control even in the absence of statutory authority. In short, contribution does not implicate "uniquely federal interests" of the kind that oblige courts to formulate federal common law.

Note the sentence I've italicized, referring explicitly to the courts' statute-independent powers. The Court went on to discuss the courts' statute-dependent power in antitrust: Congress has "vested jurisdiction in the federal courts and empowered them to create governing rules of law" in the area of substantive antitrust. "It does not necessarily follow, however, that Congress intended to give courts as wide discretion in formulating remedies to enforce the provisions of the Sherman Act or the kind of relief sought through contribution." And, consulting the legislative history of the remedial sections of the Sherman Act, the Court concluded that no such congressional intent appeared.

So there's neither an inherent, statute-independent power to create an antitrust right of contribution (i.e., it can't be justified by an enclave), nor a delegated, statute-dependent power (i.e., it can't be justified by statutory interpretation). Whether the statute-dependent power to create antitrust rules is truly valid is something I'll discuss in a later section. But for purposes of this section-where we check whether the statute is valid under the Inherent-Powers Corollary because it falls within a "uniquely federal interests" enclave-we focus single-minded on the statute-independent power, and find it lacking.

Uniquely Federal Interests: 3. Jurisdictional Grants

Likewise, a statutory grant of jurisdiction is insufficient to create an area of "uniquely federal interests." The best-known case of common-lawmaking power through jurisdictional grant involves § 301 of the Taft-Hartley Act, where the Supreme Court took a grant of jurisdiction to enforce collective bargaining agreements as a license to make a federal common law of CBA enforceability. But we can't just bypass the non-delegation question by assuming that courts can constitutionally assert common-lawmaking power in such cases, because this would be confusing delegated power with inherent power.

The better view is that stated in Texas Industries: "The vesting of jurisdiction in the federal courts does not in and of itself give rise to authority to formulate federal common law." Whether a jurisdictional statute (or any other statute) confers federal common-lawmaking power is a matter of statutory interpretation, taking into account the overall structure of the statute. Thus, in the Taft-Hartley Act, perhaps the enforceability of collective bargaining agreements should be governed by federal common law because we interpret "violation of contracts" in light of the overall Act to require a national standard. On the other hand, the range of inventiveness in developing law-of-nations torts under the Alien Tort Statute might be more limited, again because of a statute-specific inquiry; of course federal law will apply to such torts because state law seems clearly inappropriate given the subject matter, but whether a particular tort is recognized at all depends on Congress's intent. In any event, the mere fact of a jurisdictional grant shouldn't count for much.

Whether, and to what extent, a statute granting jurisdiction authorizes federal common law thus merges into the statutory interpretation inquiry; whether this satisfies non-delegation depends on what methods of statutory interpretation are within the powers of courts.

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Defenses and Similar Statute-Narrowing Doctrines

Though federal courts don't have the power to create common-law crimes, they have long exercised powers to create defenses (for instance, self-defense) and similar rules (for instance, the rule of lenity). This power extends beyond criminal law: while retroactive criminal laws are unconstitutional, retroactive civil laws are merely disfavored, and this disfavor is expressed through a judicially created presumption against retroactivity. Likewise with statutes of limitations that apply when a statute hasn't specified one.

These powers have their critics. As to statutes of limitations, why does a court need to imply one if the statute doesn't provide for one? Is it so unthinkable that a statute would lack a limitations period? As to defenses, the Supreme Court has stated in dictum that courts' power to recognize a non-statutory necessity defense is questionable. But Judge Easterbrook is on solid ground suggesting that creating such defenses is legitimate because they're so firmly established in history that they create a baseline against which Congress legislates.

If this is so, courts' implication of traditional defenses and similar exceptions to laws reduces to a matter of statutory interpretation, which I discuss below: courts creating defenses are merely reading the statute in its proper context, which includes the entire structure of the law as it existed at the time of the statute's enactment. This justifies the delegation to courts of the power to develop defenses to violations of § 3008 of RCRA and § 113 of the Clean Air Act.

Similarly, we can interpret an evidentiary privilege as a defense of a sort (to the general rule that everyone has to testify); and in light of the long history of evidentiary privileges, it's sensible to read the Federal Rules of Evidence (even without Rule 501) to implicitly incorporate those privileges. Federal Rule of Evidence 501 can thus likewise be justified on the basis that the implication of privileges is something that courts could have done anyway. (And recall that I've also justified it on the basis that it's a procedural rule.)

What about RFRA? One might try to justify it as an effort by judges to create a necessity-like defense to every federal statute-on the theory that we don't lightly presume Congress to have wanted to force people to violate their religious beliefs as the price of complying with a statute. On the other hand, there doesn't seem to be a history of religious-liberty-themed defenses to generally applicable statutes, comparable to the history of general criminal defenses, that has become part of the statutory baseline.

Whether one can justify RFRA along these lines depends on how broadly one reads the legitimate scope of federal courts' powers. Federal courts have created many substantive canons, inspired but not mandated by constitutional considerations-like the canon of constitutional avoidance, the canon against retroactivity, the clear-statement rule for abrogating state sovereign immunity, or the cost-benefit canon-which aren't closely tied to congressional intent.

If you agree with the enterprise of creating substantive canons, then federal courts could similarly have crafted a non-constitutional clear-statement rule against interpreting a statute to burden someone's religious exercise (though they didn't), and that clear-statement rule would function like RFRA. RFRA would thus be constitutional even without an intelligible principle, as a delegation into the inherent judicial power to create constitutionally inspired-though not constitutionally mandated-interpretive canons. (Religious exemptions would, post-Smith, count as constitutionally inspired but not mandated, just like non-retroactivity or not abrogating state sovereign immunity.) Certainly modern practice supports such a power, and Bill Eskridge plausibly argues that this practice has deep roots in English and early American law. This would be an inherent power of courts, and thus falls within the Inherent-Powers Corollary.

(But isn't the power to develop substantive canons and clear statement rules to narrow a statute statute-dependent and thus not inherent? But it is independent of congressional statutes and thus of congressional delegations. Even if Congress had only created federal courts and never passed any more statutes, federal courts could use canons to interpret state statutes, treaties, and the Constitution. I'll come back to this point in the next two subsections, to deal with doubts as to whether the judicial powers to imply remedies and to interpret terms-powers that are usually exercised in the context of statutes-really are statute-independent.)

On the other hand, if you oppose substantive canons that put a thumb on the scale of some value that's neither part of congressional intent nor constitutionally required, then this method would be a non-starter for justifying RFRA. (I give alternate grounds for RFRA's validity below.)

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Schoenbrod argues that Congress may validly grant courts a power to determine remedies for statutory violations without violating the non-delegation doctrine: a court's remedial power is narrow, since it only comes into play once a statutory violation has been found. (The detail required in the intelligible principle, after all, varies with the importance of the delegation.)

This is possible, but to save statutes that have no intelligible principle relevant to remedies, one needs a broader theory. Here, perhaps we can use the Inherent-Powers Corollary, on the theory that federal courts already have a broad remedial power. For instance, they have some power to imply private remedies for statutory violations, though this power has shrunk dramatically, and the recent trend is mostly to inquire whether Congress intended to create such a remedy. As with defenses, much of this thus boils down to statutory interpretation.

We can't say that judges have an inherent, free-standing power to set criminal sentences, since-in light of the non-existence of federal common-law crimes-their ability to set criminal sentences stems from a statute. This might pose a problem for the Inherent-Powers Corollary. However, as with creating defenses, this power is independent of congressional statutes and thus of congressional delegations: the power to craft remedies also applies to the Constitution. For constitutional violations, federal courts have a power to imply remedies-for instance, the Bivens monetary remedy or the Fourth Amendment exclusionary rule-in the absence of congressional intent. So the Inherent-Powers Corollary can work with the judicial power to craft remedies.

In any event, Oldham is surely right that "none think that a sentencing judge's discretion arises from an unconstitutional delegation of lawmaking power." So, whether or not the power to determine the reasonableness of sentences is an inherent power of federal courts, if we can take that power as given (and as long as we don't think it's an exclusive power of courts), then it likewise doesn't violate the non-delegation doctrine for Congress to delegate a discretion-limiting power to the federal courts. This suggests an alternate ground for Mistretta v. United States-even though the Court found an intelligible principle to save the statute, the Sentencing Guidelines would have been consistent with the non-delegation doctrine even if they were completely standardless.