The Volokh Conspiracy
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The Two Edges of Tradition: "Adverse Possession" and "Use It Or Lose It"
If the government exercises a power it lacks for a long time, it can keep exercising that power. But if a government does not exercise a power it has, it loses that power.
From an originalist perspective, NLRB v. Noel Canning was one of the worst separation of powers decisions in recent memory. The text of the Recess Appointments Clause clearly refers to "the recess of the Senate"--a single break between sessions. But Justice Breyer's majority opinion found that text "ambiguous," and then relied on historical practice--what we might now call "tradition"--to find that intrasession recess appointments were permissible. In short, many Presidents had made these types of appointments, and Congress had not meaningfully object to this practice, therefore the practice is constitutional.
Justice Scalia wrote a concurrence, which really read more like a dissent. He accused Justice Breyer of misreading the historical record, as intrasession recess appointments were the subject "of a long simmering interbranch conflict." But Scalia further criticized Breyer's methodology as akin to "adverse possession." That is, if the executive branch continuously exercises some power that it lacks, it can keep exercising that power.
As someone who teaches both Property and ConLaw, Scalia's argument about adverse possession has always resonated with me: if the government acts unlawfully for a long time, why should it be rewarded by being able to keep acting unlawfully? We tolerate squatter rights in the land use context, in part, to conclusively settle disputes and put property to the highest use. But the Constitution is not an abandoned lot or a fallow farm.
There is a flip-side to the "adverse possession" theory of the separation of powers. Justice Barrett articulated it in her Rahimi concurrence. She rejected a theory of originalism that "assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a 'use it or lose it' view of legislative authority." Such a theory assumes that if some government did not exercise a power, that is evidence that the government lacks such a power, and future courts can prevent the government from exercising that power. It could also be that the government simply exercised discretion, and chose not to use that power. Barrett limited her point here to founding-era legislatures, but I think that dynamic would extend to post-enactment tradition.
Let's use an easy, and familiar example. In the 1860s, some states regulated abortions. (There were tiresome debates about how to count those states, which I'll table for now). Dobbs found that the fact that some states regulated abortion is proof that abortion was not considered a fundamental right when the 14th Amendment was ratified. I think that argument is correct as far as it goes. But imagine a counterfactual. Let's say states did not regulate abortion at the time. Perhaps they did not have much evidence that there was a problem with abortion, or perhaps the legislature chose to focus on other items. Would that lack of regulation suggest that states in fact did not have the power to prohibit abortions? Is this some sort of use-it-or-lose-it power? Would the lack of regulation in fact suggestion that abortion was a fundamental right? Wouldn't the better answer simply look to whether "abortion" was considered "liberty," or discussed as a right, when the Fourteenth Amendment was ratified? Why work backwards from laws that were, or were not passed?
I realize Glucksberg asks for a tradition of regulation to define rights. That is not an originalist framework. But I think it is also not originalist to look to a tradition to non-regulation to define government power. So much turns on gleaning unstated intentions from unenacted legislation by long-dead legislators. How is any of this originalism?
I see the "adverse possession" and "use it or lose it" theories as two edges of traditionalism. If the government exercises a power it lacks for a long time, it can keep exercising that power. But if a government does not exercise a power it has, it loses that power.
I still need to chew this through. Again, Justice Barrett's short concurrence raised a lot of food for thought.
