Originalism in the Lower Courts

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.

NEXT: The Briefing is Complete in Tandon v. Newsom

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  1. If I am reading this correctly, stare decisis has overridden the Constitution (per the 5th Circuit).

    While we may praise Judge Ho for this opinion, the fact remains or it appears to, that the Constitution is no longer the supreme law of the land.

    Am I misreading this decision or article?

    1. There are plenty of instances of stare decisis overriding the constitution. Modern commerce clause jurisprudence as a whole comes to mind.

    2. If I am reading this correctly, stare decisis has overridden the Constitution (per the 5th Circuit).

      Only if you assume that the original precedent was unconstitutional. But why would anyone assume that.

      The dissent reads like sour grapes to me. Judge Ho is saying “I didn’t like/agree with the original decision, so I am going to characterize it as ‘unconstitutional’ and use that as a reason to overturn the current state of things”.

      But the fact that it’s a precedent means it’s already been deemed to be constitutional — so really all I am seeing is some whiny “originalist” judges pouting because their ideology isn’t reigning supreme.

      This is judicial sophistry at it’s best and it isn’t surprising the Blackman is praising this bullshit.

      the point of honoring precedent is consistency. Things shouldn’t be constitutional for 10 years then all of a sudden they aren’t. And then with the right judges apponted we make it constitutional again. That’s banana republic bullshit.

      If you are going to overturn precedent that should be a heavy lift — otherwise “constitutional” doesn’t mean a damn thing.

      1. Well said!

      2. Judge Ho routinely writes like he was raised on a diet of sour grapes.

      3. Such great “constitutional” decisions as: Roe v. Wade, Wickard v. Filburn, Kelo v. New London, Dred Scott, etc. Nope, those were all ruled “constitutional” at one time, so better not ever consider re-addressing them.

        The reason Blackman is praising this “bullshit” is because it really isn’t bullshit. There have been some obviously stupid decisions by courts in the past that ONLY originalism addresses. So good on Judge Ho for his opinion. This is the kind of jurisprudence that is long overdue.

      4. “Only if you assume that the original precedent was unconstitutional. But why would anyone assume that.”

        Because a lot of these precedents actually are blatantly unconstitutional. I mean, to the point of directly contradicting constitutional language.

        For instance, the Supreme court’s jurisprudence on when you’re actually entitled to a trial by jury.

        The Sixth amendment says: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

        Supreme court precedent erased that “all”, and says, never mind, you can be denied a jury trial in “petty” criminal cases. Like, if the penalty is less than 6 months in prison, a period they pulled out of their collective ass, forget your 6th amendment right.

        But if you’re charged with a hundred counts of a “petty” offense, they’re still “petty”, and you could end up in prison for half a century without being entitled to a jury trial.

        Look, why should we pretend that’s a legitimate precedent? The Court just didn’t like what one of the Amendments said, and authorized violating it, and now you can go to jail for the rest of your life without a jury trial.

        1. Stare decisis is a doctrine of humility. The idea that what seems clear to you may not actually be clear to others, and that the current crop of Justices may not be endowed with unique insights and objectivity about the Constitution.

          You don’t appear to have enough humility to understand what that’s like.

          Re: 6th, incorporation is a vital element of the analysis you have completely left out.

  2. 1. Under current Supreme Court precedent, this delegation cannot stand.

    2. Yadda, yadda, yadda.

    3. This delegation cannot stand.

  3. The Fifth Circuit is a strongly Republican court, befitting its backwater nature, and these five still are outliers, whining in dissent.

    This is one of the circuit benches Democrats should expand and populate soon.

  4. “…non-originalist precedents…” Hilarious! I didn’t think originalism was capable of becoming more farcical.

  5. The idea that an administrative agency taking taking the advice of an outside advisory body somehow violates the non-delegation doctrine is just as absurd as the idea that a judge incorporating language from a brief into an opinion somehow violates Article III judicial independence by having a provate individual write the opinion.

    Far from being originalist, the concepts being brought here seem more like legal guerilla warfare, attempting to bring down the Federal Government by making it unworkable through slash-and-burn sabotage.

    At the time of the founding, as at all other times, government officials took advice from private individuals and professional bodies. To say that incorporate outside recommendations is simply absurd.

    Nothing originalist about it.

  6. Originalism . . . still less popular than Kim Kardashian, less persuasive than Kim Kardashian, less important than Kim Kardashian, a few months older than Kim Kardashian, and roughly as likely as Kim Kardashian to have long-term practical influence in American jurisprudence.

    1. The age thing isn’t great for this line, but I think you can save it. If you want some notes, I’d recommend switching the order up a little. Maybe something like,

      Originalism is a few months older than Kim Kardashian, but it remains less popular and less persuasive, with about as much chance to make a lasting impact on American jurisprudence.

      1. Yeah Kirkland doesn’t learn – he’s a broken toy that spins in circles.

        1. All that really matters in this context is kicking conservatism to the curb in the culture war, and that is going quite well — has been for at least a half-century, seems destined to continue for another half-century.

          Carry on, clingers . . . so far and so long as your betters permit, that is.

  7. This case is somewhat akin to Dr. Bonham’s Case, 8 Co. Rep. 107 (1610), where the King delegated prerogative powers to the College of Physicians to license physicians and to imprison physicians for malpractice. The King granted the College a charter, which was confirmed by Acts of Parliament. C.J. Coke held the charter and the Acts void. “[F]or when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.” Under its charter, he found, the College had the power to imprison licensed physicians for malpractice, but not the power to imprison unlicensed persons acting as physicians. The latter power was not expressly delegated to the College.

  8. This sort of thing pisses me off.

    If these judges want to write commentaries on how Supreme Court decisions should not be extended, they need to quit their jobs and move to academia. As INFERIOR COURT judges (the term used in the Constitution these “originalists” purport to worship), they are bound by what the Supreme Court says. Not just in the specific cases- they are bound by the legal rules the Supreme Court announces. Yes, there is room to say they don’t apply in situations where they honestly don’t apply, but a rule that says “I will not apply Supreme Court authority to any case where I think it conflicts with the original meaning unless I receive a specific Supreme Court opinion ordering me to” is insubordination, pure and simple. It’s a violation of the oath.

    1. But Judge Ho is smarter than everyone else, so he is not bound by any protocols or rules.

      1. Judge Ho is just another disaffected culture war casualty, albeit one with a taxpayer-funded podium from which to whine.

    2. I’m curious how Judge Ho compares to more liberal circuit judges in the proportion of his decisions which have been overruled or affirmed, or dissents adopted or rejected, by the Supreme Court.

      If he gets repudiated by the Supremes more than other circuit judges, maybe we could blame his “insubordinate” attitude.

      1. Being overruled on appeal is not the same as just declaring a superior court is out of order.

        1. I’m suggesting that if he’s insubordinate, you’d actually find evidence of insubordination.

          Is he to other judges what the 9th Circuit used to be to other circuits?

          1. I think the argument is that Judge Ho’s argument in this case, and similar arguments made by other judges in other cases, are insubordinate. Not necessarily that Judge Ho himself is often insubordinate.

            1. I’d think judges, so long as they follow the orders of the higher courts, at least owe the public an explanation if they think those orders are misguided.

              I don’t think there ought to be an emperor’s-clothes type conspiracy by judges to praise the beauty of the Supreme Court’s newly-tailored purple robes.

  9. Judge Ho: Zero education in history. Extravagant claims to understand original meanings in 18th century context. And arrogant about it. In short, a typical right-wing, “originalist.”

    1. Stephen Lathrop: zero education in law. And yet routinely opines on the meaning of the first amendment, the workings of defamation law, copyright, etc.

      1. As you have reason to know, Nieporent, I routinely defer to experts on questions about what the law is. I have yet to find even one would-be originalist lawyer willing to defer to historical experts on questions about what original meaning was. It never seems to happen. That makes originalism look like a doctrine for over-confident fools—or cynical opportunists, take your pick, or mix and match.

        1. As you have reason to know, Nieporent, I routinely defer to experts on questions about what the law is.

          There must be some language in which this statement is true, but it’s not English. You routinely make incorrect statements about the law and then when called on them say that it isn’t how you understand it based on your years as a publisher and a photographer and that if you must grudgingly accept that you’re wrong then these must be new innovations by judges somehow negatively influenced by Section 230 (even when they have nothing to do with the Internet).

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