The Volokh Conspiracy

Think back to 2010. The Affordable Care Act was signed into law. Challenges were filed across the country. Each case presented a central question: could Congress mandate that people purchase health insurance? A vigorous debate formed. Some legal scholars, including my colleague Randy Barnett, argued that the federal mandate was beyond Congress's powers. It was unprecedented, they said. Other scholars argued that the mandate was squarely in Congress's powers, or alternatively, there was no mandate at all. Needless to say, the position that Barnett and others advanced was ridiculed at every step. His position was called crazy, stupid, frivolous, and worse. 

But then something changed. A federal district court judge in Florida agreed with Barnett's argument. He wrote a careful decision laying out both sides, and ultimately concluding that the mandate was beyond Congress's powers. Around the same time, prominent conservatives adopted the rallying cry that the federal government can't make you buy health insurance, or for that matter, broccoli. To use Jack Balkin's framing, an argument that was "off the wall" became "on the wall." How it happened is complex. I discuss the history at length in my 2012 book, fittingly titled Unprecedented. I won't rehash all of the developments here.

Today, I feel a sense of deja vu. Or maybe it's nostalgia. Debates over Section 3 bring me back to the heady days of 2010. I, along with my colleague Seth Barrett Tillman, contend that the President is not an "Officer of the United States" for purposes of Section 3. And, as could be expected, critics call our position crazy, stupid, frivolous, and worse. President Trump's counsel adopted our position. And wouldn't you know it, a trial judge in Denver accepted our position! Her opinion closely tracked how we've presented our argument for years. The judge wrote a careful decision laying out both sides, and she ultimately concluded that the better argument is that Trump is not covered by Section 3's "Officer of the United States"-language. Unsurprisingly, critics still call our position crazy, stupid, frivolous, or worse. Well, they don't mention us by name. Like with the Foreign Emoluments Clause cases, Seth and I get the Voldemort treatment—we shall not be named, unless our position is rejected.

There is, of course, a big difference between the arguments in the ACA litigation and the arguments in the Section 3 cases. The challenge to Obamacare was premised on a line-drawing exercise: the ACA went further than any statute went before. In many regards, the argument in that case was limited to the facts of that case. Before 2009, very few scholars even considered whether Congress could regulate inactivity. But here, the officer-issue predates January 6. It predates Trump. Tillman has been repeatedly writing on these issues since 2008. He persuaded me circa 2012. And collectively, we have written hundreds of pages in articles, briefs, and blog posts on the scope of the Constitution's "office"- and "officer"-language. (More than a few of our most extreme critics have written zero pages on this issue before January 6, and some have yet to publish anything on this issue.) Indeed, if we want to go back further, debates over the scope of the Constitution's "office"- and "officer"-language were first raised during the ratification of the Constitution. (If you don't get the reference, check out our writings on this topic.) Unlike the ACA issue, the office issue is no way tethered to Trump, January 6, and insurrection. The question is a purely legal one. Hence, either the President is an "officer of the United States" or he is not. 

Is the Blackman/Tillman "office" position still "off the wall" or is it "on the wall"? Is that position part of the mainstream, even if a minority position? Has the conservative legal movement found merit in this position? Will these forces once again align? I'll let others decide. What I would say is that efforts to ridicule our argument as "stupid" or "frivolous" won't work. There are valid arguments on both sides of the issue, and hyperbole is frequently a mask for weakness. The Colorado court's ruling establishes at least that much. And past predictions that no court, including the Supreme Court, would or will ever adopt our position, have not aged well.

From Daniel M. Gonen, Judging in Chambers: The Powers of a Single Justice of the Supreme Court, 76 U. Cin. L. Rev. 1159 (2008):

On a late-summer day in 1970, three men wearing business suits and carrying briefcases hiked six miles into the wilderness of central Washington State. As their appearance might have suggested, these were not ordinary hikers. The trio consisted of two civil-rights lawyers from Portland, Oregon, and their law clerk. They had set out into the woods that day to find Justice William O. Douglas and to apply to him for a temporary restraining order on behalf of their clients.

The Supreme Court had ended its term months earlier, and Justice Douglas was in Washington on a ten-day camping trip near his summer home in Goose Prairie, more than ten miles from the nearest telephone. With assistance from U.S. Forest Rangers, who had spotted Justice Douglas's campsite by plane, the lawyers were able to track down Justice Douglas and his party. They presented their case to the Justice in a fifteen-minute oral argument, and left a 1.5-inch [thick] petition for him to review.

Justice Douglas indicated a particular tree stump and told the lawyers that they would find his decision there the next day. Only one of the original three was physically able to make the hike back the next day, but sure enough, a single sheet of paper was waiting for him on the designated stump. In a one-paragraph opinion, Justice Douglas denied the application.

{This story is drawn from Phil Cogswell, Lawyers Hike 6 Miles in Woods to Find Justice Douglas, Oregonian, Sept. 1, 1970, at 6. Cynthia Rapp, one of the foremost experts on the in-chambers opinions of Supreme Court Justices, deserves credit for rescuing this story from historical obscurity. See Cynthia Rapp, Introduction to 1 A Collection of In Chambers Opinions by the Justices of the Supreme Court of the United States, at vii (Cynthia Rapp ed., 2004).}

Prof. Donald Tobin (Maryland) posted this to a discussion list I'm on, and kindly agreed to let me publish it.

I am writing practice exam questions for my students in election law. I asked Chat GPT to write a campaign commercial for a fictional character, Ray Sunshine, that didn't expressly advocate for his election. It made me chuckle, so I thought I would share it.

[* * *]

[Opening scene: A bright, sunny morning in a bustling town. The camera pans over a picturesque landscape filled with smiling people going about their daily lives. A cheerful, uplifting music track begins.]

Narrator (Voiceover): "In a world that often feels divided and uncertain, we all yearn for a ray of hope."

[Cut to Ray Sunshine, a charismatic and warm-hearted individual, standing amidst a diverse group of people, shaking hands and exchanging warm greetings. He's wearing casual attire, exuding approachability.]

Narrator (Voiceover): "Meet Ray Sunshine, a person who brings warmth, positivity, and kindness wherever he goes."

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Florida enacted a law that prohibits restaurants and bars from showing "adult live performances" to children. A restaurant in Orlando named Hamburger Mary's challenged the law on First Amendment grounds. The District Court agreed, and enjoined the state from enforcing the law against Hamburger Mary's, and any other entity. In other words, the court granted relief to non-parties. This was a universal injunction. (See Howard Wasserman's post from July.) The Eleventh Circuit denied a stay pending appeal. Florida sought partial relief from the Supreme Court. Specifically, the state asked the Supreme Court to limit the relief to Hamburger Mary's.

The Supreme Court denied Florida's application. Justices Thomas, Alito, and Gorsuch would have granted the application, though they did not provide any reasoning. Justice Kavanaugh wrote a three-page concurrence, which Justice Barrett joined, with the exception of a footnote--more on that footnote later.

There is some good, some bad, and some ugly.

At the outset, I will provide some praise of the concurrence. (I always try to give credit where it's due). Justice Kavanaugh acknowledges that in the abstract, Florida's request has merit:

No federal statute expressly grants district courts the power to enter injunctions prohibiting government enforcement against non-parties in the circumstances presented in this case. The question of whether a district court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against non-parties to the litigation is an important question that could warrant our review in the future. [FN1]

Justice Kavanaugh is exactly right here. Lost in the debates about nationwide injunctions and "set aside" under the APA is the more fundamental question teed up by Jonathan Mitchell's canonical article: what aspect of the judicial power allows judges to grant relief to non-parties? And don't say equity. This is an issue on which most judges would rather not address. The Florida district did not certify a class of all similarly-situated businesses. Rather, it purported to grant relief to non-parties based on the overbreadth doctrine. (The overbreadth doctrine is already on a death watch.) Jonathan Mitchell has proven that courts cannot "strike" down statutes, as if they had a writ of erasure. Whole Woman's Health v. Jackson is proof of the genius's work. So what gives courts the power to grant relief to non-parties? Justice Kavanaugh and Barrett tell us the answer is open. And this issue could warrant review in the future. Amen! This issue is far more important than arcane debates about nationwide injunctions against the federal government.

Next, we get to Footnote 1, which Justice Barrett did not join. It is long, so I'll break it up into three sections.

First, Justice Kavanaugh takes a side in the longstanding debate over APA Section 706 and "set aside." Specifically, he concurs with Mila Sohoni, and in the process, disagrees with Sam Bray. Justice Barrett, a former colleague of Bray, disagrees with Kavanaugh on this point.

¹ Importantly, that issue is distinct from the issue of a court's setting aside a federal agency's rule under the Administrative Procedure Act. The APA expressly authorizes a court to "hold unlawful and set aside agency action" that violates the Act. 5 U. S. C. §706(2); see M. Sohoni, The Power To Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1173 (2020)("The term 'set aside' means invalidation—and an invalid rule may not be applied to anyone" (footnote omitted)).

Second, Justice Kavanaugh, an alum of the D.C. Circuit which sets aside ten rules before brunch, maintains that the APA does give courts something like a writ of erasure:

As a leading article explained: "Judicial review of agency action presents a different situation because the Administrative Procedure Act instructs a reviewing court to 'hold unlawful and set aside' agency rules and orders that it deems unlawful or unconstitutional." J. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 1012 (2018). Therefore, "[u]nlike judicial review of statutes, in which courts enter judgments and decrees only against litigants, the APA . . . go[es] further by empowering the judiciary to act directly against the challenged agency action. This statutory power to 'set aside' agency action is more than a mere non-enforcement remedy. . . . In these situations, the courts do hold the power to 'strike down' an agency's work, and the disapproved agency action is treated as though it had never happened." Id., at 1012–1013 (footnote omitted).

If Sam Bray is right, and the APA merely granted courts the sort of power they already had at common law, then the APA does not give courts the writ of erasure for agency actions. I don't know that Mitchell has addressed Bray's scholarship. Kavanaugh and Barrett are now clearly on both sides of this debate.

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