The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.