Amy Coney Barrett

Amy Coney Barrett's "Suspension and Delegation"

As a professor, Judge Barrett expressed a skepticism of Executive Power that is uncommon among Republican nominees.

|The Volokh Conspiracy |

In considering the nomination of Judge Amy Coney Barrett to the Supreme Court, many have sought to determine how a Justice Barrett would approach existing Supreme Court precedent. Several of then-Professor Barrett's law review articles focused on stare decisis.

Comparatively little attention has been paid to her work on separation of powers. One paper in particular that has been somewhat overlooked is "Suspension and Delegation," published in the Cornell Law Review in 2014. In this paper then-Professor Barrett considered Congress's power to delegate to the President the authority to suspend the writ of habeas corpus. Barrett concluded that many such delegations have been unconstitutional, expressing a degree of skepticism of Presidential emergency powers that is unusual for a Republican judicial nominee—and in the context of national security no less! In the paper she writes:

Congress cannot pass any suspension statute until it concludes that an invasion or a rebellion exists and that the accompanying threat to public safety may require it. Only at that point may it capitalize upon the President's ability to react quickly by charging him to make the ultimate determination whether and when maintaining security requires the exercise of emergency power.

Although the paper focuses on the suspension of the writ of habeas corpus—a question explicitly addressed by constitutional text—it may have implications for other delegation questions. While I did not see anything in the article that suggests an embrace of the nondelegation doctrine more broadly, I think it suggests a Justice Barrett might be open to certain types of more targeted delegation-based arguments. For instance, if Congress must determine that an emergency exists that could justify the suspension of the writ of habeas corpus, might there also a problem when Congress delegates broad authority to the President to declare emergencies, waive statutory requirements, and take otherwise prohibited actions? Professor Barrett did not really address such questions in her article, but it nonetheless got me thinking.

I recommend the paper for those interested in the broader subject, or who would like an additional window into Judge Barrett's thought. Here's the abstract:

A suspension of the writ of habeas corpus empowers the president to indefinitely detain those suspected of endangering the public safety. In other words, it works a temporary suspension of civil liberties. Given the gravity of this power, the Suspension Clause narrowly limits the circumstances in which it may be exercised: The writ may be suspended only in cases of "rebellion or invasion" and when "the public safety may require it." Congress alone may suspend the writ; the executive cannot declare himself authorized to detain in violation of civil rights. Despite the traditional emphasis on the importance of exclusive legislative authority over suspension, the statutes that Congress has enacted are in tension with it. Each of the suspension statutes has delegated broad authority to the president, permitting him in almost every case to decide whether, when, where, and for how long to exercise emergency power. Indeed, if all of these prior statutes are constitutional, Congress could today enact a law authorizing the president to suspend the writ in Guantánamo Bay if he decides at some point in the (perhaps distant) future that the constitutional prerequisites are satisfied. Such a broad delegation undermines the structural benefits that allocating the suspension decision to Congress is designed to achieve. This Article explores whether such delegations are constitutionally permissible. It concludes that while the Suspension Clause does not prohibit Congress from giving the president some responsibility for the suspension decision, it does require Congress to decide the most significant constitutional predicates for itself: that an invasion or rebellion has occurred and that protecting the public safety may require the exercise of emergency power. Congress made this determination during the Civil War, but it violated the Suspension Clause in every other case by enacting a suspension statute before an invasion or rebellion actually occurred — and in some instances, before one was even on the horizon.

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  1. Which Amy Coney Barret is this? Based on her testimony, there are at least two Amy Coney Barretts. There is the Amy Coney Barrett “as academic” and then there is the Amy Coney Barrett “as judge.” Apparently, anything said or written by the former is not a reflection of the views and thoughts of the latter (opining and professing versus decision-making via the judicial process … or something like that). This gets pretty confusing though, since the views expressed by the former are incredibly important in sending the right signals to the right people so that your name appears on a list of potential judicial nominees.

    It’s a bit of a headscratcher for me. But then again, I consider myself to be me regardless of the context, thus requiring me account for my words and actions. I clearly would not make a good legal academic or a federal judge.

    1. It’s not confusing to me.

      As an academic a professor is able to consider thoughts in the abstract and on the basis of clean slate.

      A Judge must make decisions with regard to exising law and to the contrversy presented to her.

      As a professional in another field I have a duty to my clients that at
      times require me to use my knowledge and talent to support their desires, even in cases where I would prefer to spend their money on something else.

    2. I don’t think that she disavowed any of her academic writings during the hearings. I think, if I recall correctly, she stood by what she had written.

  2. If Lincoln sends soldiers to pistol whip judges as they sit on their benches, for handing out writs of habeas to Confederate spies, what was Congress going to do about it?

    1. Pistol whip lawyers?

      1. Soldiers pistol whip judges as they sat on the bench. Then they clasped them in irons, and dragged them down to federal prison.

  3. With the likely prospect of a Democratic Administration on the horizon we can see a whole lot of new-found skepticism among conservative judges as to executive power.

    1. Do you think it will do them any good? I am skeptical.

      1. Arthur, they will have a Supreme Court majority for at least 20 years. Remember: Republican Presidents select hard-right ideologues. Democratic Presidents (like Biden, or even Harris) select moderates.

        1. It’s funny not only that you profess to believe that, but that you think anyone else will believe that you believe that. But that’s the hallmark of statists, especially Progressives — they think they are supremely smart, wise, and benevolent, while everybody else is naive, gullible, ignorant, and downright dumb.

          1. Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf — I don’t think that. I think most Trump supporters are naive, gullible, and ignorant, but not necessarily dumb. Even smart people often pay too much attention to the folks around them, and don’t direct their attention where they ought to. Group-think and misdirected attention are parts of what lies behind your own complaint about “Progressives,” right? Progressives aren’t necessarily dumb either.

            On the other hand, a few Trump backers are smart, cynical, and in charge. Some folks—especially folks numbered among the naive, gullible, and ignorant—get a kick out of hanging out around others who are smart, cynical, and in charge.

            But what can you say about Trump himself? Likely, the most chaotic person who will show up in the historical record for centuries to come. People will look back and ask, “What must have been going on inside his head? Maybe like a box of burning wires?” And then they will wonder, “Why couldn’t even his inattentive supporters catch a whiff of that? What made it go on so long?” Not many of the answers to that question will be flattering to Trump supporters.

            1. And if we have a President Biden the answer to what’s going on in his head question is nothing, absolutely nothing

            2. Those are just personal insults. They show frustration in the traverse.

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  5. Might we see a renewed interest in the non-delegation doctrine with Barrett on the court? Gorsuch called for a revival in his dissent in Gundy v US basing his argument on the originalist claim that the Framers believed “that it would frustrate ‘the system of government ordained by the Constitution’ if Congress could merely announce vague aspirations and then assign others the responsibility of adopting legislation to realize its goals.”

    The Michigan Supreme Court recently cited Gorsuch’s dissent to rule against the governor’s COVID regulations.

    There seems to be a broad consensus (i.e. everyone except Bill Barr) that too much power has been ceded to the executive branch by the legislature, and that it’s time for congress (with perhaps the help of the courts) to take some of it back. I’d be willing to go along with that if I thought it would be administered in an even-handed manner.

    Chances of that happening? Not much. Expect to see a revival that lasts as long as the GOP is out of the white house.

  6. Very interesting law review article, appreciate the citation professor.
    Non – delegation, in the federal agency context, highlights a fundamentally different question, it seems to me; can courts continue to ignore the fact that federal agencies act independent of the Executive Branch? There is informed writing on the Administrative State – responsible to no one. Have any courts recognized the administrative bureaucracy (with lifetime employment) as the fourth branch of government not answerable to the president, congress, the courts or the people?

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