Originalism in the Lower Courts: Judge Ho's dissental in Texas v. Rettig

"As judges, we have sworn an oath to uphold the Constitution. So if we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear."

Today the Fifth Circuit denied rehearing en banc in Texas v. Rettig. In February, the three-judge panel (Barksdale, Haynes, and Willett) issued a substitute opinion in that case. This case presented a challenge to an ACA regulation. The panel turned away Texas's nondelegation doctrine challenge.

Judge Ho, and four of his colleague, dissented from the denial of rehearing en banc: Judges Jones, Smith, Elrod, and Duncan. Here, I'd like to praise the five judges who dissented. They embraced a central plank of originalism in the lower courts: the refusal to extend non-originalist precedents, unless that extension is justified by the original mening of the Constitution. I have written about this concept in my article, Originalism and Stare Decisis in the Lower Courts.

First, Judge Ho explains that the delegation in this case differs from past delegations:

But fidelity to the Constitution requires much more than this. Critical features of the delegation challenged here make it categorically different from—and unsupportable under—current precedent.

To begin with, this case involves a delegation of lawmaking power, not to another governmental entity, but to private bodies wholly unaccountable to the citizenry. In addition, the delegation was effectuated not by Congress, but at the whim of an agency—and without Congressional blessing of any kind. There is no precedent that permits this kind of "double delegation" from Congress to public bureaucrats to private parties—no case cited by the panel or the parties, and no case that I have independently uncovered.

Second, none of the Supreme Court's precedents have upheld such a delegation:

Not a single one of the precedents cited by the panel involves this toxic combination of constitutional abnormalities. Not one of them prevents us from enforcing the Constitution and the democratically accountable government for which it stands. 

Third, Judge Ho explains that lower courts have a clear choice when a case requires an extension of non-originalist precedent. Judge Ho favorably cites Judge Bumatay's powerful dissents (which I wrote about here).

As judges, we have sworn an oath to uphold the Constitution. So if we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear: "[O]ur duty [is] to apply the Constitution—not extend precedent." NLRB v. Int'l Ass'n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc)….

"As inferior court judges, we are bound by Supreme Court precedent. Yet[] . . . judges also have a 'duty to interpret the Constitution in light of its text, structure, and original understanding.'" Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (quoting NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring)). "While we must faithfully follow [Supreme Court] precedent . . . , '[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.'" Id. (quoting Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff'd in part, rev'd in part and remanded, 561 U.S. 477 (2010)). See also, e.g., Alvarez v. City of Brownsville, 904 F.3d 382, 401 (5th Cir. 2018) (en banc) (Ho, J., concurring) (noting that an important purpose of rehearing en banc is "to better align our precedents with the text and original understanding of the Constitution" "where the Supreme Court has not yet ruled").

I hope in the appropriate case, the other members of the Fifth Circuit--including the members of the three-judge panel--can sign onto Judge Ho's cogent analysis. For those wondering, Judge Oldham did not participate in the case. In time, if more judges follow suit, this change will trickle up to the Supreme Court.