Justice Kagan Rejects "Combination Theory" Claims For Separation of Powers Cases
"A meritless public non-delegation challenge plus a meritless private nondelegation challenge cannot equal a meritorious 'combination' claim."
In Employment Division v. Smith, Justice Scalia identified the concept of hybrid rights: a restriction that targets two constitutional rights would be reviewed with heightened scrutiny. For example, a ban on saying "Merry Christmas" would offend both the freedom of speech and the free exercise of religion. The hybrid rights doctrine was a useful way for Justice Scalia to distinguish the outcome in Smith with earlier free exercise clause cases that applied heightened scrutiny. Yet, this doctrine never quite caught on in the Free Exercise context.
Still, the hybrid rights doctrine always made sense to me as a logical matter. Sometimes the whole is greater than the sum of the parts. Even if individual features of some policy are barely constitutional, when those features are combined, the policy becomes unconstitutional. The Court employed this reasoning in Free Enterprise Fund, in which the two layers of insulation triggered a violation of the Appointments Clause.
In two recent separation of powers cases, the Fifth Circuit adopted this sort of combination logic.
In CFSAA v. CFPB, the Fifth Circuit found that several factors of the structure of the CFPB, when combined, violated the Appropriations Clause:
Taken together, the Bureau's express insulation from congressional budgetary review, single Director answerable to the President, and plenary regulatory authority combine to render the Bureau "an innovation with no foothold in history or tradition." Seila Law, 140 S. Ct. at 2202.
And more recently, in Consumers' Research v. FCC, the en banc Fifth Circuit found that the combination of factors concerning the universal fee violated the non-delegation doctrine
Seila Law and Free Enterprise Fund thus evince a general principle that, with respect to the separation of powers at least, two constitutional parts do not necessarily add up to a constitutional whole. Cf. Aristotle, Metaphysics, in 1 Works of Aristotle 569 (Mortimer J. Adler ed., W. D. Ross trans., 1990) (observing "the whole is" often "something besides the parts"). Rather, reviewing courts must consider a government program holistically, with an eye toward its compatibility with our constitutional history and structure. See Seila L., 591 U.S. at 222.
Yet, in both cases, the Supreme Court reversed.
Last term, in CFPB v. CFSAA, the Court found that the structure of the CFPB was not so unprecedented, and there was no violation of the Appropriations Clause. Justice Alito, in dissent, reaffirmed the combination logic:
By addressing the individual elements of the CFPB's setup one-by-one, the Government seeks to divert attention accountability to Congress. Elements that are safe or tolerable in isolation may be unsafe when combined. In the case of the CFPB, the combination is deadly. . . . In sum, the CFPB's unprecedented combination of funding features affords it the very kind of financial independence that the Appropriations Clause was designed to prevent.
This term, in FCC v. Consumers' Research, Justice Kagan expressly rejected combination logic, or what she calls the "combination theory":
The Fifth Circuit, as noted earlier, founded its combination theory—that a constitutional non-violation plus a constitutional non-violation may equal a constitutional violation—on this Court's decision in Free Enterprise Fund. . . . But the court's analogy and associated logic do not work. In Free Enterprise Fund, each of the two layers of for-cause protection limited the same thing—the President's power to remove executive officers. And when combined, each compounded the other's effect, so that the President was left with no real authority. Or otherwise said, the two layers of restrictions operated on a single axis with the one exacerbating (we thought exponentially) the other.
But that reasoning has no bearing here. A law violates the traditional (or call it, for comparison's sake, "public") nondelegation doctrine when it authorizes an agency to legislate. And a law—whether a statute or, as here, a regulation—violates the private nondelegation doctrine when it allows non-governmental entities to govern. Those doctrines do not operate on the same axis (save if it is defined impossibly broadly). So a measure implicating (but not violating) onedoes not compound a measure implicating (but not violating) the other, in a way that pushes the combination over a constitutional line. "Two wrong claims do not make one that is right." Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U. S. 438, 457 (2009). If a regulatory scheme authorizes neither executive legislation nor private governance, it does not somehow authorize an unlawful amalgam. Contra the Fifth Circuit, a meritless public non-delegation challenge plus a meritless private nondelegation challenge cannot equal a meritorious "combination" claim.
Justice Gorsuch's dissent does not address the combination theory.
I think Justice Kagan's opinion doesn't simply foreclose this particular challenge. It closes off an entire way of thinking about the separation of powers. This opinion is significant in ways that are not yet apparent. Consumers' Research might be one of Justice Kagan's most significant majority opinions of her tenure. And Chief Justice Roberts assigned it to her.
This is your friendly reminder that if President Trump elevated any of his Fifth Circuit nominees to the Supreme Court, we would have a very different Court.