Constitutional Law Archives – Page 3 of 23 – Southern California Law Review

Restraining the Second Amendment in the Era of the Individual Right: Adopting a Modified South African Gun Control Model

May 2024July 2024Lukas T. Huldi*

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court announced a novel historical test for judging the constitutionality of firearm laws. In combination with its earlier decisions in District of Columbia v. Heller and McDonald v. City of Chicago, the Court has created an onerous burden on federal and state legislatures attempting to regulate civilian firearm ownership. Given Heller’s individual right ruling, McDonald’s incorporation, and Bruen’s historical precedent requirement, it is clear that designing a restrictive firearm ownership system based on models that have proven successful in other Western countries is not possible, as most, if not all, of these would run afoul of these precedents. South Africa’s firearm licensing system, on the other hand, can provide a useful starting point for creating a framework that states can adopt. South Africa has significant private firearm ownership, its licensing system is not unduly restrictive, and it has proven successful in reducing gun violence. This Note therefore proposes adopting a version of South Africa’s firearm licensing system modified to survive judicial review in the United States. This Model Act likely represents close to the most restrictive licensing system that can pass judicial review following Bruen and might prove similarly effective in reducing gun violence in the United States.

There is almost no political question in the United States that is not resolved sooner or later into a judicial question.

—Alexis de Tocqueville¹

INTRODUCTION

The United States is in many ways an odd country, and there are few things more quintessentially American than the sheer quantity of firearms and relative frequency of mass shootings in this country. Presently, the United States has about 120 guns for every 100 citizens,² and a higher rate of gun violence than any other wealthy, developed country.³ The tragic reality is that the gun control debate in the United States is never untimely. In light of the level of gun violence and ready availability of firearms in the United States, one solution seems simple: restrict access to firearms. After all, there is evidence that this approach can be successful.⁴ However, since the Second Amendment⁵ has been interpreted to protect a broad, individual right to keep and bear arms,⁶ and any realistic prediction of the foreseeable future provides little reason to expect that the Second Amendment will be repealed, designing a perfect gun control statute from scratch is simply not an option. Moreover, our federal governmental structure further restricts our options. Promulgating a comprehensive, federal regulatory scheme that does not run afoul of the individual rights in, or the structural aspects of, the Constitution is infeasible.

Apart from the legal constraints on gun control, political, cultural, and economic roadblocks abound. Firearms are a prominent aspect of modern American culture,⁷ and many Americans enjoy firearm ownership for safe, legitimate purposes like self-defense, hunting, and sport shooting.⁸ Additionally, the United States firearms market is a $28 billion industry with significant lobbying strength.⁹ Suffice it to say, there are significant constraints within which any regulatory structure must fit. Fortunately, however, it is not necessary to start from scratch. Foreign practices that have proven effective can be tailored to our constitutional constraints to develop a model gun control act for the several states to adopt. In particular, this Note proposes a distinctive approach: start with South Africa’s Firearms Control Act of 2000¹⁰ and modify it to create an act that satisfies the U.S. Constitution and serves the policy goals of reducing access to firearms by those who would misuse them while keeping them available to responsible citizens. The purpose of this act is to provide a framework for the states to create a comprehensive firearm licensing system that can survive judicial review under current Second Amendment doctrine.¹¹ This Model Act serves as a starting point for responsible firearm regulation in the era of the individual right and does not purport to be the final word on the Second Amendment question.

South Africa’s gun control system may be a surprising basis for a new federal gun control law in the United States; its intentional homicide rate far surpasses ours.¹² However, South Africa has seen a steady decrease in gunshot-related deaths since it adopted the Firearms Control Act of 2000.¹³ The United States could see a reduction in its gunshot-related deaths by adopting a similar model. In any case, the large-scale empirical questions over the efficacy of various gun control systems are beyond the scope of this Note. The Note instead focuses on how we might adapt a comprehensive, firearms licensing scheme to our constitutional framework. South Africa’s model is an excellent starting point because it restricts access to especially dangerous firearms while providing individuals the opportunity to own firearms for self-defense, which the U.S. Supreme Court has said is the core right of the Second Amendment.¹⁴ The Firearms Control Act of 2000 also does not completely prohibit ownership of AR-15’s and other similar firearms. This is important because a law completely banning AR-15’s and similar rifles could be in danger of being declared unconstitutional and setting an even more cumbersome precedent.¹⁵ Additionally, other potential solutions devised to completely side-step the Supreme Court’s latest precedents are not only unlikely to succeed beyond perhaps the short term, but, if successful, could also create a worrying trend whereby state governments could close off its courts to citizens seeking to vindicate their constitutional rights. California, for instance, has created a one-way fee-shifting penalty that allows government defendants to recover costs from a plaintiff who loses on any claim in a case challenging a state or local firearm regulation, but never allows a plaintiff to recover attorneys’ fees from the government, even if the plaintiff wins on every claim.¹⁶ If held constitutional,¹⁷ this fee-shifting statute would chill future lawsuits by citizens seeking enforcement of their right to bear arms and would, at the very least, force them into a federal forum, unduly burdening the district courts.¹⁸ This has implications far beyond the gun control debate and could threaten other enumerated constitutional rights.¹⁹ Such jerry-rigging of procedural laws bearing on a constitutional right is bad policy that could encourage other states to similarly attempt to sabotage any constitutional right it wishes to infringe.²⁰ Rather than venturing down this destructive path, it is more effective to work within governing caselaw to achieve legitimate policy goals like gun safety and gun violence prevention.²¹ Even if many or all of the Supreme Court’s recent Second Amendment cases were incorrectly decided, they remain binding precedent.²² Thus, a detailed look at the Court’s recent Second Amendment precedents is necessary to develop a statutory scheme that will survive judicial review.

Part I begins with a breakdown of the Supreme Court’s recent Second Amendment jurisprudence from Heller through Bruen, analyzing the various doctrines articulated in these cases. Part I ends with a summary of the constitutional limitations that the model gun control statute must satisfy. Part II summarizes the salient points of South Africa’s Firearms Control Act of 2000. Part III provides the full text of the Model Firearms Control Act. Part IV argues that this Model Act is likely to be upheld by the Court.

I. CONSTITUTIONAL LIMITATIONS OF GUN CONTROL

Second Amendment jurisprudence has been rather scant from its ratification in 1791 until the Heller decision in 2008, when the Amendment took on its modern meaning.²³ Before the swell in revisionist legal scholarship that began in the 1960s, “[t]here was no more settled view in constitutional law than that the Second Amendment did not protect an individual right to own a gun.”²⁴ Yet, the Second Amendment is now interpreted to protect a broad, individual right to own a firearm for self-defense.²⁵ Because of this recent, dramatic shift in case law, an investigation into the Court’s modern Second Amendment jurisprudence is required to create a model gun control act that is likely to survive judicial review.

A. The Trilogy of Modern Second Amendment Jurisprudence

In a trilogy of cases—District of Columbia v. Heller,²⁶ McDonald v. City of Chicago,²⁷ and New York State Rifle & Pistol Association v. Bruen²⁸—the Supreme Court established a broad, individual right to keep and bear arms, irrespective of any militia service, effective against both the federal and state governments. This broad protection of firearm ownership is built on four main principles: (1) the individual right approach, (2) the pre-existing right doctrine, (3) the common use doctrine, and (4) incorporation. To shape a gun control scheme to fit within controlling Supreme Court precedent, these four doctrines flowing from this trilogy of cases must be mapped out and understood.

1. The Necessity of an Individual Right

Before the Court would have an opportunity to incorporate the Second Amendment to the states, it had to lay some precedential groundwork to convert the Second Amendment into a right that could be incorporated. To a large extent, finding an individual right to keep and bear arms for the purpose of self-defense without any militia service requirement was a prerequisite to incorporating the right. Prior to Heller, scholars and jurists had proposed three main approaches to interpreting the Second Amendment.²⁹ First, the “collective right” approach argued that the right to keep and bear arms protected the right of the states to arm and organize militias.³⁰ Second, the “limited individual right” or “sophisticated individual right” approach suggested that the right to keep and bear arms does protect an individual right, but only to the extent that individuals participate in a well-regulated militia.³¹ Third, the unmodified “individual right” approach embraced the idea that the Second Amendment protects an individual’s right to keep and bear arms irrespective of any participation in a well-regulated militia, essentially reading the prefatory clause out of the amendment.³²

Throughout pre-Heller Second Amendment case law and scholarship, the individual right approach was overwhelmingly disfavored.³³ From ratification until 2001, no federal appellate court had ever endorsed the individual right approach to the Second Amendment,³⁴ and the first case to adopt this approach, United States v. Emerson,³⁵ did so only in dictum.³⁶ Shortly following Emerson, then Attorney General John Ashcroft issued a memorandum to all United States Attorneys stating that the individual right approach reflects the correct understanding of the Second Amendment, reversing the Department of Justice’s longstanding policy regarding Second Amendment interpretation.³⁷ Had the Court endorsed the collective right approach in Heller, as it had 132 years earlier,³⁸ the right to bear arms would essentially be a right belonging to the states, making incorporation nonsensical as a state could not meaningfully infringe its own right.³⁹ Alternatively, had the Court endorsed the limited individual right in Heller, a subsequent decision incorporating that right would only prevent states from disarming individuals serving in its own militias, which would provide no protection to anyone outside the National Guard.⁴⁰ Thus, it was necessary for the Court to find an individual right to keep and bear arms in the Second Amendment, independent of any militia service, to meaningfully incorporate that amendment against the states.

2. The Pre-Existence Doctrine: Finding the Individual Right in Text and History

In finding a free-standing, individual right to bear arms in the Second Amendment, the Court relied on the notion of some constitutional rights having pre-existed the ratification of the clauses protecting them.⁴¹ According to the Court, the Second Amendment did not create a new right but constitutionalized a pre-existing right.⁴² This pre-existence argument relies on the proposition that the framers of the Second Amendment intended to codify a right to bear arms that already existed in English law⁴³ and simply wished to create a stronger protection for it. The Court purported to find a textual basis for this conclusion, stating that “[t]he very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’ ”⁴⁴

The Heller Court began its historical analysis by stating that “[t]he Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause.”⁴⁵ The prefatory clause states “[a] well regulated Militia, being necessary to the security of a free State . . . .” The operative clause states that “the right of the people to keep and bear arms shall not be infringed.”⁴⁶ The Court asserted that the prefatory clause announces only the amendment’s justification, and does not limit the scope of the operative clause.⁴⁷ After its explication, the Court concluded that the prefatory clause “fits perfectly” with an operative clause understood to grant an individual right to keep and bear arms because the pre-constitutional history showed that tyrants had eliminated militias not by banning them but by disarming them.⁴⁸

The Court supported its individual right approach through a sort of reverse incorporation argument limited to “analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment.”⁴⁹ Although many of the state constitutions had more individualistic wording,⁵⁰ the Court did not take this to conclude that the Second Amendment was materially different from its state analogues. To the contrary, the Court used the more individual rights-focused arms-bearing provisions of state constitutions—and state supreme court decisions interpreting those provisions—to read the Second Amendment as conferring a broad individual right.⁵¹ Pennsylvania’s Declaration of Rights of 1776 read “the people have a right to bear arms for the defence of themselves and the state . . . .”⁵² and Vermont’s 1777 Declaration of Rights contained a nearly identical provision.⁵³ The Court further supported its argument by describing roughly contemporaneous state analogues.

Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them—Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” Another three States—Mississippi, Connecticut, and Alabama—used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.” Finally, two States—Tennessee and Maine—used the “common defence” language of Massachusetts.⁵⁴

The Court noted that the decision of at least seven of these nine states to unequivocally protect an individual right to bear arms is strong evidence that the framers of the Second Amendment conceived of the right to bear arms as an individual right.⁵⁵

The Court next sought precedential support for its individual right interpretation.⁵⁶ The Court first cited Nunn v. State, an 1846 case in which the Georgia Supreme Court struck down a ban on carrying pistols openly, stating that the Second Amendment protects “the natural right of self-defense.”⁵⁷ The Heller Court noted that the Georgia Supreme Court “perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right.”⁵⁸ In further support of its position, the Court cited State v. Chandler, an 1850 case in which the Louisiana Supreme Court held that United States constitution guaranteed citizens the right to carry arms openly.⁵⁹ In response to the dissent’s reliance on Aymette v. State, an 1840 decision in which the Tennessee Supreme Court adopted a limited individual right approach for its own state constitutional right to bear arms,⁶⁰ the Court reasoned that more important than this decision was the Tennessee Supreme Court’s later decision in Andrews v. State.⁶¹ In Andrews, the Tennessee Supreme Court concluded that its state constitutional right to bear arms protected the right to bear arms for personal self-defense, overruling Aymette.⁶²

Turning to its own precedents, the Court asked whether any of its prior decisions foreclosed its ultimate conclusion in Heller. The Court began with its decision in United States v. Cruikshank,⁶³ in which the Court vacated a white mob’s convictions for depriving black militia men of their right to bear arms, holding that the Second Amendment “means no more than that it shall not be infringed by Congress.”⁶⁴ The Heller Court reasoned that there was no claim in Cruikshank that the defendants had violated the victims’ right to carry arms in a militia, and that the Cruikshank Court’s discussion made little sense if it was speaking of a collective rather than an individual right.⁶⁵ The Court rests this argument on the Cruikshank Court’s conclusion that “ ‘the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes’ to the States’ police power.”⁶⁶

The Heller Court next turned to United States v. Miller,⁶⁷ reasoning that it not only failed to foreclose the possibility of an individual right, but also “positively suggests” it.⁶⁸ Miller considered whether a law prohibiting the unregistered possession of a short-barreled shotgun ran afoul of the Second Amendment.⁶⁹ In concluding that it did not, the Miller Court announced its interpretation of the Second Amendment’s purpose.

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.⁷⁰

The Court reasoned that the Miller Court’s basis for concluding that the Second Amendment did not apply was not that the Second Amendment failed to protect non-military use, but that it did not protect the type of firearm at issue.⁷¹ Before announcing its “common use” doctrine, however, the Court acknowledged some limitations on the individual right to bear arms, such as the historical precedence for prohibiting the public carry of “dangerous and unusual weapons.”⁷²

3. Market Share as Constitutionality: The Common Use Doctrine

With the individual right in hand, the Heller Court turned to the law at issue, which totally banned handgun possession in the home and required any lawfully owned firearm to be disassembled and bound by a trigger lock.⁷³ In determining that the law was unconstitutional, the Court began by concluding that “the inherent right to self-defense has been central to the Second Amendment right.”⁷⁴ True enough, there is no serious doubt that the right to self-defense predates the constitution as part of the common law⁷⁵ and continues to exist in the United States today.⁷⁶ The right to bear arms to effectuate this defense of life and limb also existed in England prior to the ratification of the U.S. Constitution, at least by statute, as a “public allowance, under due restrictions, of the natural right of resistance and self-preservation . . . .”⁷⁷ Although the statutory right to bear arms for self-defense in England was considered less fundamental than the right to self-defense in general,⁷⁸ and was a concession by the Crown that presupposed an omnipotent legislature—a feature clearly absent from our constitutional scheme—the Court has insisted on the centrality of individual self-defense to the right to bear arms.⁷⁹

The purported centrality of self-defense to the Second Amendment, combined with the individual right approach, allowed the Court to announce a new, sweeping doctrine in Heller. The Court reasoned that “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to “keep” and use for protection of one’s home and family,’ would fail constitutional muster.”⁸⁰ It noted that few laws in our nation’s history have come close to the restriction the District of Columbia has imposed and several of those laws have been struck down.⁸¹ Because handguns have been overwhelmingly chosen by the American people as their preferred arm for self-defense, a complete prohibition of its use runs afoul of the individual right to bear arms for the very purpose of self-defense.⁸² This common use doctrine begs the question: If it is unconstitutional to outright ban firearms in common use for self-defense, how would the Court approach bans on classes of arms which are not in common use because they were banned before they could get into common use?⁸³ The Court did not address this question,⁸⁴ noting that it did not undertake an analysis of the full scope of the Second Amendment.⁸⁵ However, the Court stated that nothing in its opinion “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”⁸⁶ In fact, the Court noted that the measures it listed are presumptively lawful and that its list was inexhaustive.⁸⁷ This is an important concession by the Court because by noting that its list of presumptively lawful measures was inexhaustive, the Court indicated that it might be open to other presumptively lawful restrictions to the right to bear arms, so long as there is a historical precedent that is satisfactory in the Court’s view.

4. Incorporation

The Supreme Court would of course go on to conclude in McDonald v. City of Chicago that the right to bear arms is “deeply rooted in this Nation’s history and tradition”⁸⁸ and incorporate the Second Amendment in full.⁸⁹ In so doing, it relied heavily on Heller’s individual right approach and common use doctrine, arguing that history and precedent pointed “unmistakably” to the conclusion that the Second Amendment is “deeply rooted” in our “history and tradition.”⁹⁰ Just as in Heller, the Court argued that the right to bear arms for self-defense was as fundamental as the broader right self-defense.⁹¹ In incorporating the individual right to the states, the Court had another perfect occasion to utilize the doctrine of reverse incorporation⁹² to adopt a standard of review based on how state supreme courts have analyzed their own constitutions’ arms-bearing provisions that the Court saw as analogous to the Second Amendment. Most states recognize an individual right to keep and bear arms but allow “reasonable regulations” restricting that right.⁹³ Despite the states’ far greater experience in drafting and reviewing gun laws, the Supreme Court left the decision over what standard applied to Second Amendment cases to another day, eventually settling on Bruen’s historical test.⁹⁴

The confluence of the individual right approach, the common use doctrine, and incorporation has opened many long-standing state firearms laws to constitutional scrutiny, even before Bruen was decided. California, for instance, has prohibited the purchase, sale, and manufacture of high-capacity magazines⁹⁵ since 2000,⁹⁶ and by popular initiative in 2016 expanded the prohibition to make possession of high-capacity magazines a felony offense, regardless of the date the magazine was acquired.⁹⁷ This new law gave rise to protracted but groundbreaking litigation. In Duncan v. Becerra,⁹⁸ the outright ban on possession of high-capacity magazines was ruled unconstitutional as a Fifth Amendment taking without just compensation and as violative of the Second Amendment because it imposed a substantial burden on the right to self-defense and the right to keep and bear arms.⁹⁹ The district court enjoined the statute, and its decision was affirmed on appeal by the Ninth Circuit,¹⁰⁰ but was later reversed on rehearing en banc.¹⁰¹ The Supreme Court then vacated the judgement and remanded the case to the Ninth Circuit for further consideration in light of its decision in Bruen.¹⁰² On remand from the Ninth Circuit, the District Court once again held California’s high-capacity magazine ban unconstitutional, but stayed its order enjoining enforcement while the California Attorney General appealed the decision.¹⁰³ It therefore remains to be seen how the latest Supreme Court precedent will affect this high-capacity magazine ban, but it suffices to say that the law in this area remains very much in flux.

5. The Third Act: Applying Heller to Public Carry Licensing

Building on the bedrock of the individual right principle, the common use doctrine, and the Second Amendment’s incorporation, the Court recently expanded the Amendment’s protections with its historical precedence doctrine. At issue in Bruen was a New York law that made it a crime to possess a firearm without a license.¹⁰⁴ New York’s provision for licenses to carry firearms outside the home for self-defense was particularly stringent. An applicant could not obtain that license without a showing of “proper cause.”¹⁰⁵ New York courts have defined “proper cause” as requiring an applicant to “demonstrate a special need for self-protection distinguishable from that of the general community”¹⁰⁶ such as evidence “of particular threats, attacks or other extraordinary danger to personal safety.” Living or working in a high-crime area was considered insufficient to demonstrate proper cause.¹⁰⁷

To evaluate the constitutionality of the New York law, the Bruen Court began by clarifying the test for Second Amendment challenges. The Court noted that the circuit courts had coalesced around a two-part test that combined a historical inquiry with means-end scrutiny, but it rejected this approach.¹⁰⁸ The Court instead leaned on its historical approach from Heller and specifically rejected any interest balancing test,¹⁰⁹ settling on the following standard:

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”¹¹⁰

In applying this test, the Court stated that it would consider whether historical precedent from before, during, and relatively shortly after the founding demonstrates a “comparable tradition of regulation.”¹¹¹ When comparing modern firearm laws and regulations to historical precedents, it is of course necessary to reason by analogy to determine whether the two are relatively similar.¹¹² Although the Bruen Court did not provide an exhaustive list of features that would render historical precedents relatively similar to modern laws, it provided two metrics: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.”¹¹³ Thus, for a historical precedent to support the constitutionality of a modern regulation, there must be (1) a comparable burden and (2) that burden must be comparably justified.¹¹⁴ For instance, there have long been prohibitions on carrying arms in sensitive places such as legislative assemblies, schools, and courthouses, so laws prohibiting carrying arms in such places, or even in newly defined sensitive places, are presumptively constitutional, so long as the sensitive place is analogous to those historically designated as such.¹¹⁵ New York’s licensing scheme, by contrast, could not be justified as analogous to these historical “sensitive places” laws because it generally banned citizens from carrying arms in any place “where people typically congregate,”¹¹⁶ meaning that entire cities would essentially be exempted from Second Amendment protection.¹¹⁷

Turing to New York’s proper-cause requirement, the Court stated that the plain text of the amendment protects ordinary citizens’ general right to carry handguns publicly for self-defense, emphasizing that confining the right to bear arms to the home would nullify half of the Second Amendment’s explicit protections—to not only “keep” but also “bear” arms.¹¹⁸ The central right of the Second Amendment has been held to be the right to bear arms for self-defense in case of confrontation, which often will take place outside the home.¹¹⁹ In assessing New York’s requirement that applicants for a license to carry a firearm in public show “proper cause”—as defined by the New York courts—the Court assessed a variety of sources that the respondents appealed to, dating from the 1200s to the early 1900s.¹²⁰ The Court explained that, “when it comes to interpreting the Constitution, not all history is created equal.”¹²¹ Therefore, even in light of the pre-existing right doctrine, historical evidence long-predating the enactment of the Second and Fourteenth Amendments will carry less weight than historical precedents closer in time to these enactments if legal conventions have changed in the intervening years.¹²² Thus, English practices traceable from the Middle Ages to the ratification of the Constitution will carry more weight than ancient practices that became obsolete before ratification.¹²³ Likewise, post-enactment history can be elucidating when “a regular course of practice” can settle the meaning of disputed terms and phrases.¹²⁴ However, when post-enactment precedents take effect long after ratification, they will be accorded less weight.¹²⁵ With the parameters of its historical inquiry set, the Court proceeded to determine that the historical record the respondents compiled failed to demonstrate a historical analogue for New York’s firearm licensing scheme.¹²⁶ That is, there was no historical tradition of limiting the public carry of firearms to citizens who could demonstrate a special need for self-defense, nor was there a historical tradition of broadly prohibiting the carry of commonly used firearms for self-defense.¹²⁷

A few key takeaways from the Court’s evaluation of this compendium of historical precedents will inform how a model gun control statute can be structured. First, the manner of public carry was historically subject to reasonable regulation—individuals could be restricted from carrying deadly weapons in a way that would be likely to terrorize others.¹²⁸ Second, states with surety laws¹²⁹ provided financial incentives for responsible arms carrying, rather than directly restricting public carry.¹³⁰ Third, states have historically been able to restrict or eliminate one kind of public carry—usually concealed carry—so long as they allowed the other type of carry—usually open carry.¹³¹ Fourth, the more widely enacted a type of statute is, the more likely the court is to uphold it. Thus, the relatively few historical examples prohibiting the carry of pistols—and in some cases all firearms—in towns, cities, and villages could not “overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry.”¹³² Finally, as Kavanaugh’s concurrence underscores, the Court’s opinion does not jeopardize the existing “shall-issue” licensing regimes employed in forty-three states, only the “may-issue” regimes employed by six states and the District of Columbia.¹³³ The difference between these two is that when an applicant meets the statutory criteria in a shall-issue regime, they must be issued a license. Under a “may-issue” regime, however, even if an applicant meets the statutory criteria, a licensing officer has the discretion to refuse to issue a license, based on the difficult to meet “special need” requirement.¹³⁴ Although the Court did not explicitly say that “shall-issue” regimes and “proper cause” requirements for licenses to carry firearms for self-defense are per se unconstitutional, it is difficult to see how either of these could be upheld.¹³⁵

B. Summary of Second Amendment Precedent

Before moving on to the model statute, a brief summary of the major limitations imposed by the foregoing trilogy of modern Second Amendment jurisprudence will prove helpful. First, the core right protected by the Second Amendment is an individual right to keep and bear arms for self-defense. Second, this right is effective against both the state and federal governments. Third, if the Second Amendment’s plain text—as interpreted by the Supreme Court—covers an individual’s conduct, it is presumptively protected, and the government must demonstrate that the law in question is analogous—though not necessarily identical—to a historical practice of firearms regulation. Fourth, when seeking a historical analogue to justify a modern regulation, not all history is created equal. Examples of post-ratification regulation that settle disputed terms and are relatively close in time to the adoption of the Bill of Rights can be particularly informative, as can evidence of English and Colonial practices that stayed in effect at least until ratification. Fifth, the more widespread a particular firearm regulation is, the more likely it is constitutional. Sixth, a legislature might well be able to ban or severely restrict either concealed carry or open, so long as they allow one of the two methods to remain legal. Finally, some types of firearm regulations are presumptively lawful—prohibitions on possession by felons and the mentally ill, laws against brandishing a firearm—while some are presumptively unlawful—shall-issue regimes, proper cause requirements.

As onerous as these requirements might appear to be, there is still a way for legislatures to assert meaningful control over the exercise of the Second Amendment, albeit with less free reign than they had previously been allowed. A systemic approach to gun ownership composed of rules that have historical analogues in the American legal tradition can be modeled on South Africa’s firearm licensing system. South Africa’s Firearms Control Act could provide a method to limit possession of high-capacity magazines while still allowing them to be owned for self-defense.

II. SOUTH AFRICA’S GUN CONTROL SYSTEM

South Africa is fairly unique in its approach to firearms ownership in that a central focus of its firearm licensing system is to allow people the means to defend themselves.¹³⁶ Its licensing system is nevertheless comprehensive in spelling out the requirements for owning different categories of firearms and is fairly stringent in its requirements for firearm ownership in the first place—at least when compared with current law in the United States. Because the South African Model allows for a right to own a firearm for self-defense,¹³⁷ yet provides a comprehensive licensing scheme, it provides an ideal starting point for drafting a model statute for the United States.

The main feature of South Africa’s Firearms Control Act of 2000¹³⁸—which states could benefit from replicating—is a licensing system requiring citizens who wish to own a firearm to first obtain a competency certificate¹³⁹ and then obtain a license specific to each firearm that they wish to own.¹⁴⁰ The type of firearm a citizen can own will depend on the type of license that they receive, which, in turn, depends on their purpose for owning the firearm. For instance, a citizen cannot obtain a semi-automatic rifle for occasional hunting or sports shooting because such a weapon is not necessary for that purpose.¹⁴¹ This an important feature that could lawfully be replicated in the United States¹⁴² to strike a balance between the states’ interest in public safety and the private interest in self-defense. Take high-capacity magazines, for instance. Some states have tried to outright ban them,¹⁴³ but it is not clear that this is constitutional under Heller, McDonald, and Bruen.¹⁴⁴ South Africa’s Firearms Control Act could provide a method to limit possession of high-capacity magazines while still allowing them to be owned for self-defense uses.

Although South Africa’s system provides a good starting point for a model act, some areas will need modification to comport with U.S. constitutional standards. The main modifications are in the types of firearms that can be owned and the permit issuance requirements. Heller instructs that firearms in common use receive Second Amendment protection¹⁴⁵ and Bruen indicates that “may issue” regimes are very likely per se unconstitutional.¹⁴⁶ The primary modifications this Note proposes for its Model Act appear in Sections 2(b), 3, 5, and 6 in Part III below.

III. THE MODEL FIREARMS CONTROL ACT

The following is the full text of the Model Firearms Control Act that this Note proposes the states adopt. This act is intended to supplement existing state firearms regulations by creating an individual licensing requirement.

A. Chapter 1: Definitions, License Requirement, Eligibility Certificate

§ 1 Definitions
- (a) Designated Firearms Officer. A “Designated Firearms Officer” means a law enforcement official designated as such by state law.
- (b) Accredited Hunting Association. An “Accredited Hunting Association” means an association meeting the criteria designated by state law.
- (c) Accredited Sports Shooting Association. An “Accredited Sports Shooting Association” means an association meeting the criteria designated by state law.
§ 2 License Requirement
- (a) No person may possess a firearm without holding a license issued by the state for that firearm. A separate license is required for each firearm.
- (b) No person may receive a license to possess a firearm without first having been issued an eligibility certificate.
- (c) A Designated Firearms Officer may not issue an applicant a license to possess a firearm that is not legal to possess in the state within which the applicant resides.
- (d) Familial transfer. Ownership of a firearm cannot be transferred from one person to another unless the transferee has a license to possess that firearm, even if the transferor and transferee are family members.
- (e) Issuance. Upon meeting the criteria for any firearms license, the Designated Firearms Officer to whom the application has been delivered must issue the applicant the appropriate firearms license. Neither the Designated Firearms Officer, nor any other state or federal government employee or agent may prevent an applicant from delivering a valid application to the Designated Firearms Officer.
§ 3 Eligibility Certificate
- (a) Requirements. To receive an eligibility certificate, the applicant must:
  - (1) Complete an application delivered to a Designated Firearms Officer responsible for the area in which applicant resides;
  - (2) Provide a full set of the applicant’s fingerprints;
  - (3) Be eighteen years old or older;
  - (4) Be lawfully present in the United States;
  - (5) Not suffer from a mental illness that renders the applicant a danger to himself or others;
  - (6) Never have been convicted of a crime punishable by a year or more of imprisonment;
  - (7) Never have been convicted of a crime involving:
    - (A) Fraud in relation to—or supplying false information for the purpose of—obtaining an eligibility certificate, license, permit, or authorization to possess a firearm in terms of this Act or a previous law; or
    - (B) Domestic violence.
  - (8) Not be addicted to any substance that has an intoxicating effect; and
  - (9) Pass a firearms safety course as prescribed by state law.
- (b) Issuance. Upon the applicant’s completion of the above requirements, the Designated Firearms Officer to whom an application has been delivered must issue a qualified applicant an eligibility certificate within thirty days of delivery.
- (c) Denial pending investigation. If the Designated Firearms Officer has a well-founded doubt that an applicant has not met one or more of the eligibility requirements, the Designated Firearms Officer can deny an applicant an eligibility certificate for up to thirty days, during which time he or she may conduct a further investigation to determine whether the applicant has met the requirements to receive an eligibility certificate. After thirty days, the Designated Firearms Officer must either:
  - (1) Issue the eligibility certificate if the applicant meets the necessary criteria; or
  - (2) Provide the applicant with the reason for denying the certificate.
  If the Designated Firearms Officer has a well-founded doubt as to the mental stability of an applicant, the Designated Firearms Officer has the discretion to require an applicant to undergo a screening by a licensed psychologist or licensed psychiatrist before issuing an eligibility certificate contingent on the psychologist or psychiatrist’s determination that the applicant is of stable mental condition.

B. Chapter 2: Types of Licenses and Use of Firearms

§ 4 License to Possess a Firearm for Self-Defense
- (a) Firearms that may be possessed for self-defense. A person can receive a license to possess the following firearms for self-defense:
  - (1) A handgun that is not fully automatic; or
  - (2) A rifle or shotgun that is not semi-automatic or fully automatic.
- (b) Issuance. A license to possess such a firearm for self-defense must be issued to any natural person who
  - (1) Holds a valid eligibility certificate; and
  - (2) Applies for a license to possess a firearm for self-defense.
- (c) Limits. No person may possess more than two licenses under this section.
§ 5 License to Possess a Restricted Firearm for Self-Defense
- (a) Restricted firearms defined. The following are considered “restricted firearms” for the purpose of this section:
  - (1) A rifle or shotgun that accepts detachable magazines and is semi-automatic but not fully automatic.
- (b) Requirements to issue a license to possess a restricted firearm for self-defense. A license to possess a firearm for self-defense must be issued to any natural person who
  - (1) Holds a valid eligibility certificate;
  - (2) Applies for a license to possess a restricted firearm for self-defense; and
  - (3) Shows cause why the particular restricted firearm for which a license is sought serves a self-defense need that a non-restricted firearm cannot serve.
- (c) Basis for denial. The Designated Firearms Officer reviewing the application to possess a restricted firearm for self-defense must provide an objectively reasonable basis, based on clear and convincing evidence, to deny an application for lack of cause under section 5(b)(3).
§ 6 License to Carry a Concealed Firearm for Self-Defense
- (a) Concealed carry defined. “Concealed carry” means carrying a firearm on the person of the license holder in a way that is not visible to others.
- (b) Requirements to issue a license to carry a concealed firearm for self-defense. A license to possess a firearm for self-defense must be issued to any natural person who
  - (1) Is twenty-one years old or older;
  - (2) Holds a valid eligibility certificate; and
  - (3) Completes an application delivered to a Designated Firearms Officer responsible for the area in which the applicant resides.
- (c) Arms that may be possessed for concealed carry. A person who holds a license to carry a concealed firearm can carry any handgun that is concealable on the person, is not fully automatic, and that the person has a license to possess.
§ 7 License to Openly Carry a Firearm for Self-Defense¹⁴⁷Either this section or section 5 can be deleted at the determination of the state legislature, but one type of public carry—either open or concealed—must be permitted. See Bruen, 142 S. Ct. at 2150.
- (a) Openly carry defined. “Openly carry” means carrying a firearm on the person of the license holder that is not concealed.
- (b) Requirements to issue a license to openly carry a firearm for self-defense. A license to openly carry a firearm for self-defense must be issued to any natural person who
  - (1) Is twenty-one years old or older;
  - (2) Holds a valid eligibility certificate; and
  - (3) Completes an application delivered to a Designated Firearms Officer responsible for the area in which applicant resides.
- (c) Arms that may be possessed for open carry. A person who holds a license to openly carry a firearm can openly carry any handgun that is not fully automatic and that the person has a license to possess.
§ 8 License to Possess a Firearm for Occasional Hunting or Occasional Sports Shooting
- (a) Purpose. The purpose of this section is to provide responsible, law-abiding citizens access to ordinary firearms for such lawful activities as hunting, target practice, and sports shooting.¹⁴⁸
- (b) Persons eligible under this section. Any person who holds a valid eligibility certificate can receive a license to possess a firearm for occasional hunting or sports shooting.
- (c) Arms that may be possessed for occasional hunting or sports shooting. A person may receive a license to possess the following firearms for occasional hunting or occasional sports shooting:
  - (1) A rifle or shotgun that is not semi-automatic or fully automatic; and
  - (2) A handgun that is not fully automatic.
§ 9 License to Possess a Firearm for Dedicated Hunting or Dedicated Sports Shooting
- (a) Dedicated hunter defined. A “dedicated hunter” means a person who regularly participates in hunting activities and who is a member of an Accredited Hunting Association.
- (b) Dedicated sports shooter defined. A “dedicated sports shooter” means any person who regularly participates in sports shooting and who is a member of an Accredited Sports Shooting Association.
- (c) A person who is a dedicated hunter or a dedicated sports shooter can receive a license to possess the following firearms for dedicated hunting or dedicated sports shooting:
  - (1) A rifle or shotgun that is not fully automatic; and
  - (2) A handgun that is not fully automatic.
C. Chapter 3: Use and Transportation of Firearms
- § 10 Use of Firearms. A person may use a firearm for which the person holds a valid license where it is safe and lawful to do so.
- § 11 Transportation of Firearms. A person lawfully possessing a firearm can transport that firearm in any manner that is consistent with state law.
IV. CONSTITUTIONALITY
The Model Act that this Note proposes is designed to survive judicial review by United States courts, rather than to be considered constitutional in an abstract sense. The object of the application of Second Amendment jurisprudence here is “the prediction of the incidence of the public force through the instrumentality of the courts.”¹⁴⁹ As such, this Section argues that the confluence of Second Amendment doctrine and practical considerations will allow the Model Act to remain “lawful” in the realist sense.¹⁵⁰
A. “Longstanding Prohibitions”
The Heller Court enumerated in dictum certain restrictions on the right to bear arms that its common use doctrine did not place in jeopardy.
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.¹⁵¹
Although somewhat reassuring at the time the Heller decision was handed down, Bruen and McDonald have not given this assertion clear majority support. First, in McDonald, only Chief Justice Roberts and Justices Scalia and Kennedy joined Justice Alito’s endorsement of this list of presumptively lawful restrictions.¹⁵² Next, in Bruen, this passage was omitted entirely from the majority opinion, appearing only in Justice Kavanaugh’s concurrence.¹⁵³ Perhaps, then, this ipse dixit of “longstanding prohibitions” will not carry any special favor with the Court in the future and sections 3(a)(1–7) of the Model Act will have to be justified under Bruen’s historical test.
1. Prohibition on Firearm Possession by Felons
When applying Bruen’s historical test to section 3(a)(7) of the Model Act—which denies eligibility certificates to felons—the first question is whether the Second Amendment’s plain text covers an individual’s conduct.¹⁵⁴ To conclude that the Second Amendment does not cover this conduct requires reliance more on dicta from Heller, McDonald, and Bruen, as well as the majority’s focus on the rights of law-abiding citizens in these cases,¹⁵⁵ rather than a formally applied Bruen analysis. In United States v. Minter, for instance, a district court was faced with a challenge to the constitutionality of a federal law that makes possession of firearms and ammunition by convicted felons illegal.¹⁵⁶ The district court reasoned that “the Supreme Court in Bruen ha[d] already signaled the answer to this question,” and concluded that “the Bruen Court’s decision did not undermine Heller’s statement,” emphasizing that the Second Amendment protects the “right of law-abiding, responsible citizens to use arms for self-defense.”¹⁵⁷ Several other district courts have considered the constitutionality of a felon-in-possession laws post-Bruen, many of which have concluded that the Second Amendment’s plain text does not cover this conduct.¹⁵⁸ However, this reliance on dicta might not be enough to avoid the historical inquiry that Bruen demands.¹⁵⁹
If the Second Amendment’s plain text is interpreted to include convicted felons in its reference to “the people,”¹⁶⁰ Bruen’s historical test would require the government to determine whether section 3(a)(7) is “consistent with this Nation’s historical tradition of firearm regulation.”¹⁶¹ Because the earliest felon-disarmament laws date from the twilight of the nineteenth century and the early part of the twentieth century,¹⁶² an earlier historical analogue must be identified. One possible analogue is some American Colonies’ practice of attainder, which was utilized to disarm “disaffected” or “delinquent” individuals.¹⁶³ Although a bill of attainder would surely constitute a due process violation today, the colonial practice of attainder is still sufficiently analogical to felon-in-possession laws because it is an example of state legislatures disarming individuals considered dangerous.¹⁶⁴ Additionally, a colonial New York law prohibited convicted felons from owning property or chattels, implicitly prohibiting them from owning firearms.¹⁶⁵ Finally, a few historical examples of proposals made during the ratification process show that the founders did not intend to confer the right to bear arms on convicted felons.¹⁶⁶ Proposals from Anti-Federalists in Pennsylvania,¹⁶⁷ Samuel Adams in Massachusetts,¹⁶⁸ and delegates from New Hampshire¹⁶⁹ all show that the framers thought of the Second Amendment as recognizing the right of law-abiding citizens to bear arms. One of these proposals, for instance, provided that “no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals.”¹⁷⁰ Although these were only proposals, they are still helpful because they illustrate how Americans at the time understood the government’s authority to limit firearm possession. These proposals’ rejection does not necessarily show that early Americans objected to such limitations on the right to bear arms and could simply be a result of a lack of Federalist support.
Although the historical precedents identified here are not overly persuasive, they have thus far been sufficient for many federal courts that have heard challenges to the federal felon-in-possession law and entertained the question of whether it is consistent with this Nation’s historical tradition of firearm regulation.¹⁷¹ Taking a realist view, this could simply be because the judiciary is staffed by those “who know too much to sacrifice good sense to a syllogism”¹⁷² and are unwilling to invalidate a law that is so sensible on its face. Even the Supreme Court, staffed as it is today, might not invalidate such laws. Assuming Justice Kavanaugh’s concurring opinion in Bruen to be an honest representation of how he (and Chief Justice Roberts, who joined his concurrence) will vote in the future, the Heller Court’s enumeration of presumptively lawful regulations will not be stripped of all persuasive effect.¹⁷³ After all, it is hard to imagine that Justices Sotomayor, Kagan, or Jackson would not endorse the “longstanding prohibitions” passage from Heller. Thus, we can expect laws that prohibit felons from possessing firearms—and section 3(a)(6) of the Model Act—will not be invalidated by the Supreme Court, even if on practical rather than doctrinal considerations.
2. Prohibiting Firearm Possession for Certain Non-Felonies
Possibly more challenging, however, is section 3(a)(7), which denies eligibility certificates to individuals convicted of fraud for the purpose of obtaining a firearm; unlawful use or handling of a firearm; or domestic violence. After deciding Bruen, the Supreme Court vacated and remanded for further consideration a circuit court decision rejecting a challenge to a Massachusetts law similar to section 3(a)(7) of the Model Act.¹⁷⁴ The law in question prohibited the plaintiff from receiving a license to carry a firearm in public because he had been convicted of attempting to carry a pistol without a license and of possession of an unregistered firearm in the District of Columbia.¹⁷⁵ Although these convictions were misdemeanors, Massachusetts law denied public carry licenses to “persons who had, ‘in any state or federal jurisdiction, been convicted’ of ‘a violation of any law regulating the use, possession, ownership, transfer, purchase, sale, lease, rental, receipt or transportation of weapons or ammunition for which a term of imprisonment may be imposed.’ ”¹⁷⁶ In upholding the Massachusetts law, the circuit court applied intermediate scrutiny, which the Supreme Court has since rejected as inappropriate for Second Amendment analysis.¹⁷⁷ However, in a similar post-Bruen case, the Fifth Circuit upheld a law prohibiting possession of a firearm by persons under indictment,¹⁷⁸ and several district courts have upheld laws prohibiting possession of firearms by felons,¹⁷⁹ domestic violence misdemeanants,¹⁸⁰ and unlawful users of controlled substances.¹⁸¹ Although some district courts have held similar laws unconstitutional,¹⁸² there is, as of yet, no circuit precedent invalidating these laws.
In addition to the weight of circuit precedent, the plain text of Heller supports the conclusion that “prohibitions on the possession of firearms by felons and the mentally ill”¹⁸³ and similar measures are “presumptively lawful.”¹⁸⁴ However, if the Court determines that Bruen abrogates the “longstanding prohibitions” dictum from Heller, a historical analogue will have to be found.¹⁸⁵ Bruen provides two metrics to be considered in determining whether a regulation is relevantly similar to a historical analogue: (1) how they burden a “law-abiding citizen’s right to armed self-defense,” and (2) why they burden that right.¹⁸⁶
Under these metrics, section 3(a)(7) of the Model Act could escape invalidation on the same basis as felon-in-possession laws¹⁸⁷: because it burdens a law-abiding citizen’s right of lawful self-defense in a way similar to, and for a reason practically identical to, the colonial practice of disarming “disaffected” or “delinquent individuals” through attainder,¹⁸⁸ and the colonial practice of prohibiting convicted felons from owning chattels, including firearms.¹⁸⁹
First, the burden is similar because a regulation prohibiting possession of firearms to certain classes of misdemeanants does not actually burden the right any more than a law prohibiting a felon’s possession of firearms. The right described in Bruen is one belonging to law-abiding citizens, not citizens convicted of felonies.¹⁹⁰ Individuals convicted of a felony or misdemeanor domestic violence; unlawful use or handling of a firearm; or fraud for the purpose of unlawfully obtaining a firearm are by definition not law-abiding.¹⁹¹ To the contrary, those individuals would be showing that they are willing to commit serious violent crimes—domestic violence—or crimes showing that they are not safe users of firearms. Second, the reason for the restrictions in section 3(a)(7) of the Model Act are identical to the reasons for the colonial practice of prohibiting dangerous individuals from owning firearms: to ensure those bearing arms are responsible, safe, and law-abiding. In discussing the regulations in shall-issue licensing regimes, Bruen acknowledges that regulations designed “to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens’ ” are constitutional.¹⁹² Because section 3(a)(7) is closely analogous to the presumptively lawful measures expounded in Heller,¹⁹³ it is likely to be held constitutional.
Another potentially problematic provision is section 3(a)(8), which does not allow individuals addicted to narcotics to obtain an eligibility certificate that is a prerequisite to possession of any firearm. In 2023, a federal court in Oklahoma ruled that the federal statute prohibiting possession of firearms by users of substances made illegal by the federal Controlled Substances Act¹⁹⁴ was unconstitutional.¹⁹⁵ However, this ruling is far from sounding the death knell for laws prohibiting possession of firearms by drug addicts. Even if this position was adopted by the circuit courts or the Supreme Court, it would not invalidate section 3(a)(8) because that section only prohibits individuals who are addicted to, rather than mere users of, intoxicating substances from obtaining eligibility certificates. This is intended to prevent individuals whose mental stability would be regularly impaired by the abuse of drugs or alcohol from possessing firearms and would not apply to an occasional marijuana user. Section 3(a)(8) is therefore very similar to a law prohibiting possession by those with mental illnesses, as described in Heller as presumptively lawful.¹⁹⁶
One final challenge section 3(a)(8) might face is that it is unconstitutional under Robinson v. California.¹⁹⁷ In Robinson, the Court held that a law criminalizing being addicted to the use of narcotics was cruel and unusual punishment under the Eight Amendment.¹⁹⁸ This comparison is, however, inapposite. Section 3(a)(8) does not criminalize drug addiction; it only prevents drug addicts from arming themselves—for their own safety and the safety of the general public. It is fundamentally no different from making it illegal for blind persons to drive. Moreover, the Model Act does not prevent persons who were once addicted to drugs but are no longer addicted from obtaining an eligibility certificate. Thus, section 3(a)(8) falls far short of being a punishment at all, much less a cruel and unusual one.
B. Regulation of Different Classes of Arms
1. Purpose-Based Licensing
The defining characteristic of the Model Act, in accordance with South Africa’s licensing system, is how it ties the ownership of a firearm to its use by only allowing ownership of firearms that are suited to the purpose for which the license is sought. Although access to certain firearms, such as semi-automatic rifles, is restricted under the Model Act, they are not entirely banned. This is done in an attempt to limit access to especially dangerous firearms while acknowledging the reality that a blanket ban on assault weapons might not be held constitutional by the current Supreme Court because of the inherent difficulty in finding a historical precedent regulating distinctly modern arms.¹⁹⁹ Moreover, given the Supreme Court’s current 6-3 conservative supermajority, a blanket ban would create a risk of creating a dangerous precedent. If the Supreme Court invalidated an assault weapons ban, future Justices who might not consider such a ban unconstitutional per se might nevertheless feel duty-bound to apply Supreme Court precedent faithfully.
The requirements for a license to possess a firearm for self-defense described in section 4(b) of the Model act would likely be found constitutional under Bruen because it is very closely analogous to the “shall-issue” carry licensing system in place in the vast majority of states.²⁰⁰ Bruen held only that the discretion afforded to licensing officials in the states with “may-issue” regimes is unconstitutional,²⁰¹ and did not jeopardize the licensing requirements that are employed in forty-three states.²⁰² The Court explained that “nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general desire for self-defense is sufficient to obtain a [permit].’ ”²⁰³ Moreover, the Court used the fact that “shall-issue” licensing regimes are in place in the vast majority of states to bolster its argument that New York’s “may-issue” regime was unconstitutional.²⁰⁴ The Court further explained that states are free to “require applicants to undergo a background check or pass a firearms safety course,” and that these measures “are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’ ”²⁰⁵ Section 4(b) of the Model Act follows the convention of a “shall-issue” licensing regime, but applies to firearm ownership for self-defense in general, not just to public carry. Regulations such as section 4(b) of the Model Act, just like regulations that the court mentioned,²⁰⁶ serve only to ensure that firearm owners are law-abiding, responsible citizens.²⁰⁷ Thus, section 4(b) burdens the right of law-abiding citizens to keep and bear arms for self-defense to a similar extent, and for the very same purpose, as the public carry licensing requirements in effect in forty-three states.²⁰⁸ Although the modern prevalence of the licensing requirement might not be doctrinally relevant, practically speaking, 4(b) would be unlikely to be invalidated unless a court were either willing to invalidate the widespread practice of public carry licensing or unwilling to accept licensing for firearm ownership in general.
2. High-Capacity Magazines and Semi-Automatic Rifles
Perhaps the most difficult constitutional question in this area is whether states can ban specific types of arms. The Supreme Court has not given clear guidance on these issues in any of its decisions, resulting in discordant lower court rulings on the issues of high-capacity magazine bans²⁰⁹ and assault weapon bans.²¹⁰ Heller states that the Second Amendment protects individual ownership of the types of firearms in common use, and that this protection means states cannot outright ban handgun ownership, but it is not clear how expansively “common use” (or for that matter, the “type” of a firearm) will be interpreted. Several states have attempted to prohibit possession of high-capacity magazines and assault weapons such as the AR-15;²¹¹ however, until the issue is squarely addressed by the Court, states will have to operate based on discordant lower federal court decisions.
Adding to this opacity is the term “assault weapon” itself. “Assault weapon” is a legal term that is not uniformly defined by legislatures.²¹² Some states define these weapons by its semi-automatic²¹³ functioning in combination with features like flash hiders,²¹⁴ pistol grips,²¹⁵ and adjustable stocks.²¹⁶ Regardless of how they are defined, however, the most functionally important aspects of assault weapons are that they are semi-automatic rifles and accept detachable magazines.²¹⁷ Assault weapons typically fire an intermediate rifle cartridge—a cartridge that is less powerful than a full-power rifle cartridge but more powerful than a pistol cartridge—making for a light and easy-to-use weapon with low recoil.²¹⁸ Perhaps the most common cartridge used in assault weapons in the United States is the 5.56 x 45mm NATO round.²¹⁹ Although the projectile weighs only one tenth of an ounce, it is capable of traveling at up to 3,200 feet per second—almost triple the speed of sound—making for a rather destructive weapon.²²⁰ Because the functionally important aspect of an assault weapon is that it is a semi-automatic rifle that accepts detachable magazines, the Model Act addresses these features specifically rather than fussing over the minute details of weapons that make little functional difference.
In acknowledgement of the constitutional invalidation risk that an outright ban on high-capacity magazines or assault weapons poses,²²¹ the Model Act takes an intermediate approach limiting, but not prohibiting, access to assault weapons and does not attempt to regulate magazine capacity. Under sections 4 and 5 of the Model Act, citizens cannot be granted a license to possess a semi-automatic rifle or shotgun—classified as restricted firearms under section 5(a)—for self-defense unless they show the particular restricted firearm for which they are seeking a license serves an important purpose for which a non-restricted firearm is insufficient. For instance, if a person lives on a property with large open fields, a handgun might not be sufficient for self-defense because it is difficult to shoot accurately over a long distance and a manually operated rifle²²² would be too slow to operate and use for self-defense. In this instance a semi-automatic rifle could be necessary to defend against an attacker who is armed with a semi-automatic long gun, thus serving an important need under section 5(b). Moreover, unlike the unfettered discretion that the “may-issue” regimes discussed in Bruen allowed for,²²³ section 5(c) severely limits the discretion of the designated firearms officer by requiring “an objectively reasonable basis based on clear and convincing evidence” to support a denial.²²⁴
Individuals could also obtain a license to possess a restricted firearm for dedicated hunting or sports shooting under section 9 of the Model Act. This is intended for individuals who regularly engage in hunting or sports shooting activities such as competitive shooting. This provision serves the purpose of limiting access to such particularly dangerous firearms as semi-automatic rifles while still allowing individuals to continue to engage in hunting, target practice, and shooting competitions using other kinds of firearms. The requirements that a person be regularly engaged in hunting or sports shooting and belong to an accredited hunting or sports shooting association is meant to keep semi-automatic rifles from being available to any adult for any purpose.
At first blush, this restriction on semi-automatic rifles seems to violate the historical test created in Bruen,²²⁵ unless a historical analogue can be found. However, a close reading of Bruen’s test shows that, in reviewing section 9 of the Model Act, the burden to find a historical analogue would never shift to the government. The Bruen test states that the Second Amendment presumptively protects an individual’s conduct only when its “plain text covers an individual’s conduct.”²²⁶ The Court has held that the plain text of the Amendment covers “ ‘the individual right to possess and carry weapons in case of confrontation’ that does not depend on service in the militia.”²²⁷ Section 9 of the Model Act, however, does not burden the “individual right to possess and carry weapons in case of confrontation”²²⁸ in the slightest. It restricts only the sporting use of certain weapons, not their self-defense use.²²⁹
The restriction on the sporting use of certain especially dangerous arms notwithstanding, individuals who wish to own a restricted firearm for self-defense have that option, subject only to a showing that the restricted firearm they wish to possess serves an important purpose that a non-restricted firearm cannot. This provision requiring an applicant to show that a restricted firearm serves an important purpose is also likely to be found constitutional under Bruen. Because section 5(a) concerns a restriction on firearms ownership for self-defense—unlike the sporting use contemplated in section 9—the “plain text” of the Second Amendment presumptively covers the conduct in question. Therefore, the burden would shift to the government to prove that section 5 burdens the right to bear arms for self-defense in a similar way and for a similar reason as a historical analogue to that regulation.²³⁰ The clear historical analogue for section 5 is the English prohibition on going armed with dangerous or unusual weapons.
The offense of riding or going armed with dangerous or unusual weapons is a crime against the public peace, by terrifying the good people of the land, and is particularly prohibited by the statute of Northampton, 2 Edward III, c. 3 (Wearing Arms, 1328), upon pain of forfeiture of the arms, and imprisonment during the king’s pleasure . . . .²³¹
Laws prohibiting going armed with dangerous or unusual weapons form a “long, unbroken line of common-law precedent”²³² that was recognized in the United States following the adoption of the Second Amendment.²³³ Although the Court stated in Bruen that the English and colonial laws prohibiting affrays were not sufficiently analogous to New York’s proper cause requirement,²³⁴ it did not foreclose reliance on these laws to justify other firearms regulations.²³⁵ The Court went so far as to state that “colonial legislatures sometimes prohibited the carrying of ‘dangerous and unusual weapons’—a fact we already acknowledged in Heller.”²³⁶ Crucially, sections 4 and 5 of the Model Act concern dangerous and unusual weapons, not a restrictive carry licensing scheme like the one the respondents sought to justify in Bruen.
In comparing sections 4 and 5 of the Model Act with the historical analogue, it is first necessary to establish whether the arms described in section 5(a) can fairly be described as “dangerous and unusual.” Clearly, compared with the types of arms the English law prohibited at the time of Blackstone’s Commentaries, the arms described in section 5(a) are extraordinarily dangerous and unusual. Even compared with other modern firearms, however, semi-automatic rifles that can be reloaded quickly are uniquely destructive.²³⁷ They are capable of inflicting an incredible amount of damage in a short period of time, making them especially dangerous and unusual by any standard.²³⁸ Comparing the relative burdens of the historical prohibition and the Model Act, the latter clearly burdens the right to bear arms to a lesser degree than the historical analogue. The historical offense outright prohibits going armed with dangerous or unusual weapons while sections 4 and 5 only limit it to certain uses. Within the terms of the Model Act, these uses include the “law-abiding citizen’s right to armed self-defense.”²³⁹ Moreover, the historical analogue and the Model Act burden the right for a similar purpose—to prevent especially dangerous and frightening arms from being widespread and to prevent individuals from terrorizing others with these arms.²⁴⁰
C. Public Carry
The portion of the Model Act regulating public carry of firearms for self-defense—sections 6 and 7—is perhaps as restrictive as courts will allow under Bruen. Of course, sections 6(b) and 7(b) make clear that the Model Act establishes a shall-issue public carry licensing regime, as required by Bruen.²⁴¹ Sections 6 and 7 also require an applicant to have a valid eligibility certificate, which is where most of the requirements that help ensure safe use of a firearm are listed. The eligibility certificate requirements would not be likely to face much resistance from the courts because they do not burden the right per se;²⁴² rather, they are “designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’ ”²⁴³ The Model Act leaves to the states the decision of whether one type of carry—open or concealed—should be banned.²⁴⁴
CONCLUSION
The governing case law concerning the Second Amendment greatly limits how states can restrict firearm ownership. The Supreme Court’s historical approach to Second Amendment challenges places many regulations many people find desirable outside the realm of constitutionality. This does not mean, however, that all reasonable regulations are impossible to implement. The Model Firearms Control Act presented in this Note is an initial step toward a comprehensive firearms licensing system that can serve to keep Americans safer while respecting their right to armed self-defense. The relatively limited nature of the regulations advocated in this Note is simply an acknowledgement of the reality that the Supreme Court has adopted a sweeping interpretation of the Second Amendment irrespective of its true meaning, which may best be left to historians. Given its current membership, the Supreme Court will not, for the foreseeable future, overturn its trilogy of Second Amendment precedents, so all states can do is implement the safest gun control solutions that governing case law will allow. On a later day, perhaps, a differently constituted Supreme Court will reconsider Bruen and replace its untenable historical inquiry with some form of means-end scrutiny. If and when that happens, the Model Act proposed in this Note can be expanded to be more restrictive while still respecting the individual right to armed self-defense. This Note offers an initial large step in implementing such solutions.

97 S. Cal. L. Rev. 211

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Lukas T. Huldi*

* Senior Editor, Southern California Law Review, Volume 97; J.D. Candidate 2024, University of Southern California Gould School of Law; B.S. Criminology & Criminal Justice 2020, California State University, Long Beach. Thank you to Professor David B. Cruz for his invaluable feedback and to the Southern California Law Review for their meticulous editing. A very special thank you to Alyssa Polito whose unwavering support during my time in law school has made this Note possible.

“Shelby County” to Clean Air Act: Evaluating the Constitutionality of California’s Clean Air Act Waiver Under the Equal Sovereignty Principle

May 2024July 2024Justine Huang*

In August 2022, California promulgated the Advanced Clean Cars II regulation, banning all sales of new gasoline-powered cars in the state by 2035. Transportation is the largest source of air pollution in California, responsible for nearly 40% of greenhouse gas (“GHG”) emissions; thus, the regulation is a crucial step towards meeting the state’s carbon neutrality and climate goals. California has the unique authority to regulate motor vehicle emissions due to a waiver exemption in the Clean Air Act. Congress recognized California’s expertise and unique air pollution challenges early on by authorizing just two standards: the national and California standards. Over the last five decades, California has received over one hundred waivers for its motor vehicle emission standards. However, in May 2022, seventeen states challenged the constitutionality of the waiver provision in Ohio v. EPA (pending in the D.C. Circuit Court of Appeals as of the publication of this Note), alleging, inter alia, that it violates the equal sovereignty principle—the idea that states must have equal political authority—by allowing only California to set new vehicle emission standards. These states further argue that California cannot regulate GHGs because climate change is a global problem not unique to California. To date, no court has addressed the constitutionality of the Clean Air Act under the equal sovereignty principle. Thus, this Note takes the principle seriously and analyzes how courts historically have applied it. In 2013, the Supreme Court developed the equal sovereignty principle as a meaningful concept for the first (and last) time in Shelby County v. Holder to invalidate section 4 of the Voting Rights Act. This Note applies the test established in Shelby County to the Clean Air Act waiver at issue, arguing that the equal sovereignty principle does not apply to the Clean Air Act, and even if it were to apply, the Clean Air Act waiver provision remains constitutional because Congress’s reasons for granting California an exemption remain relevant. California’s pioneering role in early air pollution control, its large economy, and its characteristic geographic and climate conditions put the state in a unique position to protect public health by regulating automobile emissions, while the state faces increasingly formidable threats from climate change that have exacerbated the local air pollution problems that initially compelled its motor vehicle regulations. Thus, even as California’s motor vehicle regulations have shifted from reducing local smog to reducing GHG emissions, California’s current needs continue to justify its differential treatment—maintaining, and perhaps even strengthening, the Clean Air Act waiver’s relevance in the twenty-first century.

INTRODUCTION

In August 2022, the California Air Resources Board (“CARB”), California’s chief air pollution regulator, promulgated the Advanced Clean Cars II regulation, which bans the sale of new gasoline-powered cars in California by 2035.¹ Transportation is the largest source of air pollution in the state, responsible for nearly 40% of greenhouse gas (“GHG”) emissions, 80% of nitrogen oxide pollution, and 90% of diesel particulate matter pollution.² CARB estimates that the new rule will result in significant climate, economic, and public health benefits. By 2040, the regulation is projected to result in a 50% reduction in GHG emissions from cars, pickup trucks, and SUVs.³ Taking gas cars off the road would eliminate the equivalent of 395 million metric tons of carbon dioxide emissions, which is analogous to avoiding the combustion of 915 million barrels of petroleum or shutting down more than one hundred coal plants for a year.⁴ From 2026 to 2040, the decrease in pollution should lead to 1,290 fewer cardiopulmonary deaths, 460 fewer hospital admissions for cardiovascular or respiratory illness, and 650 fewer emergency room visits for asthma.⁵ Thus, the regulation is a crucial step towards meeting the state’s carbon neutrality and climate goals.⁶

The regulations that California enacts are hugely influential; thus, the implications of California’s ability to implement motor vehicle regulations are extensive. If California were a country, it would be the tenth largest auto market in the world.⁷ As of May 13, 2022, seventeen states and the District of Columbia have adopted California’s Low-Emission Vehicle (“LEV”) and Zero-Emission Vehicle (“ZEV”) regulations under section 177 of the Clean Air Act, which allows other states to adopt California’s approved standards instead of the federal standards.⁸ California alone makes up 11% of U.S. new light-duty vehicle sales, or 40.1% when combined with the states that have already adopted its rules.⁹ New York was the second state to ban sales of gas-powered cars by 2035 as part of its plan to increase EV adoption.¹⁰ In February 2021, New York passed a law requiring all new passenger cars and trucks sold in the state to produce zero emissions by 2035,¹¹ and in September 2022, after California finalized its own ban, New York followed California in requiring all new vehicles sold by 2035 to be zero-emissions, setting in motion the regulatory process to implement the law.¹² In August 2022, Massachusetts Governor Charlie Baker also signed climate change legislation to end new sales of gas-powered cars in the state by 2035.¹³

California has the unique ability to implement motor vehicle emissions regulations because of an exception in the Clean Air Act.¹⁴ While the Clean Air Act generally prohibits states from setting vehicle emission standards,¹⁵ it provides a waiver exemption under section 209(b)(1) that allows California to set more stringent vehicle emission standards than the federal government.¹⁶ Given California’s pioneering role in motor vehicle regulations and unique air pollution problems, Congress recognized California’s expertise early on in the history of federal air pollution regulation.¹⁷ However, in May 2022, seventeen Republican-led states filed a lawsuit, Ohio v. EPA, challenging California’s ability to set its own pollution rules and demanding that the U.S. Environmental Protection Agency (“EPA”) revoke the waiver.¹⁸ The petitioner states claimed that the waiver provision is unconstitutional because it violates the so-called equal sovereignty principle—the idea that states must have equal political authority—by only empowering California to set new vehicle emission standards.¹⁹ The petitioners additionally argued that Congress cannot allow California alone to regulate climate change, which is a global problem not unique to California.²⁰ Because California has shifted from regulations to reduce smog and local air pollution to GHG regulations to address global climate change, the petitioners essentially argued that circumstances have changed enough since Congress enacted the waiver provision in 1967 that California’s special treatment is no longer justified.²¹

This Note takes the equal sovereignty claim seriously and argues that the Clean Air Act waiver provision remains constitutional under the equal sovereignty principle. Part I provides relevant background on the waiver provision and history of California’s waiver requests. It then summarizes the equal sovereignty principle arguments made in the pending Ohio v. EPA lawsuit and provides relevant history on how courts have applied the principle leading up to Shelby County v. Holder,²² the first time the Supreme Court held a statute unconstitutional based on the equal sovereignty principle. Part II argues that the equal sovereignty principle does not apply to the Clean Air Act, but even if it were to apply, the test from Shelby County does not invalidate the Clean Air Act waiver provision. This Note concludes by offering final thoughts on the equal sovereignty claim and underscoring the implications of Ohio v. EPA in California’s ability to continue to lead the nation in addressing GHG emissions.

I. BACKGROUND

A. The Clean Air Act and EPA Waiver Provision

California’s ability to implement its own motor vehicle standards stems from the Clean Air Act. Congress passed the Clean Air Act in response to air pollution crises in the mid-20th century resulting from industrialization.²³ “Killer fog” events, where a deadly mix of pollution and fog covered cities in the United States and around the world, spurred federal regulation of air pollution.²⁴ In 1955, Congress enacted the Air Pollution Control Act, the first national air pollution legislation.²⁵ Continuing “killer fog” incidents in the United States then prompted Congress to pass the 1963 Clean Air Act, which established grant and research programs to support states in their air pollution control efforts but left air pollution regulation primarily to the states.²⁶

California was the first state to regulate emissions from cars.²⁷ The first recognized episodes of smog occurred in Los Angeles in 1943, and in the 1950s, a California researcher determined that the automobile was the main cause of the smog.²⁸ In 1966, California established the first tailpipe emissions standards in the nation.²⁹

Congress continued to enact new statutes in response to California’s regulations.³⁰ The 1967 Air Quality Act amended the 1963 Clean Air Act, moving towards a uniform federal policy by requiring national air quality criteria, which states would then implement.³¹ It was also the first statute to give preemptive power to the federal government to adopt and enforce standards relating to the control of emissions from new motor vehicles.³² However, Congress added a waiver provision exempting California from the preemption provision when California could demonstrate a need for more stringent standards than those the EPA established.³³ While the waiver does not reference California by name, it was clearly intended for California because California was the only state that met the requirement of adopting motor vehicle emission standards prior to March 30, 1966.³⁴ Thus, Congress acknowledged California’s expertise early on in the history of federal air pollution regulation.

In fact, the Clean Air Act is a paradigmatic example of cooperative federalism, under which “States and the Federal Government [are] partners in the struggle against air pollution.”³⁵ The federal preemption provision reflects Congress’s interest in allowing automobile manufacturers to produce uniform automobiles for a national market and benefit from the economies of large-scale production without having to accommodate multiple state standards.³⁶ Congress acknowledged the complex nature of automobile manufacturing and noted the importance of ensuring that automobile manufacturers obtain “clear and consistent answers” concerning emission standards.³⁷ Courts have also interpreted that Congress preempted the field of vehicle emission regulation “to ensure uniformity throughout the nation, and to avoid the undue burden on motor vehicle manufacturers which would result from different state standards.”³⁸ However, given California’s lead in early motor vehicle regulations and Congress’s additional interest in having California as a “laboratory for innovation,”³⁹ Congress intentionally struck a balance between having one national standard and fifty different state standards by authorizing just two standards, the national and California standards.⁴⁰ This balance allowed California to continue to innovate and improve its air quality without creating a practical nightmare for automakers and interstate commerce.⁴¹

The 1970 Clean Air Act Amendments, which form the basis of the contemporary federal Clean Air Act, authorized the development of federal and state regulations to limit emissions from stationary (industrial) and mobile sources (including automobiles).⁴² Section 109 requires the EPA Administrator to establish basic requirements for ambient air quality, known as National Ambient Air Quality Standards (“NAAQS”), for particular criteria pollutants, which the states would be required to meet.⁴³ The current list of criteria pollutants includes sulfur dioxide, particulate matter, nitrogen oxide, carbon monoxide, ozone, and lead, but does not include carbon dioxide.⁴⁴

In 1977, Congress revised the provision to read as it does today. Section 202(a)(1) requires the EPA Administrator to establish motor vehicle emissions standards for pollutants “which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.”⁴⁵ The 1977 Clean Air Act Amendments strengthened the deference given to California under the waiver provision in two significant ways. First, the 1977 Amendments revised section 209(b)(1) by requiring the EPA Administrator to grant a preemption waiver for California “if the State determines that the State standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.”⁴⁶ This amendment allows California, rather than the EPA, to make its own determination as to whether the regulations are sufficiently protective of public health and welfare. It also allows California to make this determination by looking at the entire program as a whole, rather than evaluating each regulation individually. Thus, as long as the entire set of regulations is more protective than the federal system, the EPA must allow California to implement these measures. The EPA Administrator can deny the waiver only if the state’s determination is “arbitrary and capricious” or the state does not need its standards to meet “compelling and extraordinary conditions.”⁴⁷ Second, the 1977 Amendments added section 177, which enhanced the strength of California’s motor vehicle emissions regulations by allowing other states to adopt California’s approved standards in lieu of the federal standards.⁴⁸ According to the House Report, the Committee on Interstate and Foreign Commerce makes clear that it sought to “ratify and strengthen the California waiver provision . . . to afford California the broadest possible discretion in selecting the best means to protect the health of its citizens and the public welfare.”⁴⁹ The legislative and statutory history thus suggests that Congress intended to give California broad discretion to regulate air pollutants in the way it deems most appropriate to protect public health and welfare.

B. History of California’s Motor Vehicle Regulations and Waiver Requests

The Clean Air Act section 209(b)(1) waiver reflects a five-decade history of allowing California to implement motor vehicle emissions standards that are more stringent than federal government standards.⁵⁰ California was granted its first waiver in 1968 and has since received over one hundred waivers for a range of new or amended motor vehicle and motor vehicle engine standards.⁵¹ Smog in Los Angeles initially spurred California to adopt statewide standards to regulate criteria pollutants,⁵² and CARB has consistently developed the first emission standards in the nation.⁵³

As California transitioned from regulating criteria pollutants to promulgating regulations that address GHG emissions, certain EPA administrations began to challenge its waiver requests, leading to the ping-ponging back and forth between administrations. In 2002, recognizing that global warming would impose “compelling and extraordinary impacts” on California, the state enacted Assembly Bill (AB) 1493, Chapter 200.⁵⁴ The bill acknowledged that motor vehicle emissions are a major source of the state’s GHG emissions and that reducing GHG emissions is critical to slowing down the effects of global warming and protecting public health and the environment.⁵⁵ The bill directed CARB to adopt regulations that achieve the “maximum feasible . . . reduction of greenhouse gas emissions” from passenger vehicles, beginning with the 2009 model year.⁵⁶ Thus, in 2004, CARB approved the first regulations in the nation that control GHG emissions from motor vehicles (Pavley regulations), which applied to new vehicles for the 2009–2016 model years.⁵⁷

In December 2005, CARB requested a waiver to allow California to enforce its new GHG emission standards.⁵⁸ The EPA delayed action pending the outcome of litigation regarding whether the EPA had authority to regulate GHG emissions under the Clean Air Act, as the Clean Air Act did not explicitly regulate GHG emissions at the time.⁵⁹ The Supreme Court addressed GHG emissions for the first time in Massachusetts v. EPA, holding in a 5-4 decision that carbon dioxide is considered an “air pollutant” that the EPA may regulate under section 202(a)(1) of the Clean Air Act.⁶⁰ Thus, the Court held that the EPA has the statutory authority to regulate GHG emissions from new motor vehicles and that Congress provided the EPA with the flexibility to address new air pollutant threats that the EPA determines endanger the public welfare.⁶¹

Despite the Supreme Court ruling, in March 2008, the Bush administration’s EPA denied the waiver for the Pavley regulations, which was the first time the EPA denied a waiver for California.⁶² In its decision, the EPA deviated from the traditional interpretation of the “compelling and extraordinary” waiver criteria⁶³ to narrowly interpret that Congress authorized the EPA to grant a waiver only when “California standards were necessary to address peculiar local air quality problems,” as opposed to global climate change problems.⁶⁴ Unlike California’s previous motor vehicle programs, which addressed local smog problems, the GHG emission standards aimed to address climate change. Thus, the EPA determined that California did not need its new motor vehicle standards to meet “compelling and extraordinary” conditions related to GHG emissions because emissions from California cars “become one part of the global pool of GHG emissions”⁶⁵ and do not directly cause elevated concentrations of GHGs in the region.⁶⁶ Alternatively, the EPA determined that because climate change is a global issue, the impacts of climate change in California were not sufficiently unique and different.⁶⁷

In July 2009, the Obama administration’s EPA reversed the 2008 denial and granted California’s waiver request to enforce its GHG emission standards for model year 2009 and later new motor vehicles.⁶⁸ As the EPA stated, CARB has repeatedly demonstrated the need for its motor vehicle program to address “compelling and extraordinary” conditions in California, and Congress did not intend to allow California to address only local or regional air pollution problems.⁶⁹ Rather, Congress intended California to have broad discretion and autonomy, acting as a pioneer and a “laboratory for innovation.”⁷⁰ Thus, narrowing the waiver’s scope would hinder California from implementing motor vehicle programs “as it deems appropriate to protect the health and welfare of its citizens.”⁷¹ In contrast to the 2008 EPA’s reasoning, the 2009 EPA determined that the impacts of global climate change can exacerbate the local air pollution problem.⁷² It found compelling California’s assessment that its GHG standards are linked to improving California’s smog problems and that higher temperatures from global warming will exacerbate California’s high ozone levels and the “climate, topography, and population factors conducive to smog formation in California, which were the driving forces behind Congress’s inclusion of the waiver provision in the Clean Air Act.”⁷³ The EPA noted that California’s GHG regulations will reduce greenhouse gas concentrations, even if only slightly, and “every small reduction is helpful . . . .”⁷⁴ Given California’s unique geographical and climatic conditions that foster extreme air quality issues, its ongoing need for dramatic emissions reductions, and growth in its vehicle population and use, the EPA determined that California’s need met “compelling and extraordinary” conditions.⁷⁵ Still, the EPA acknowledged that “conditions in California may one day improve such that it no longer has the need for a separate motor vehicle program.”⁷⁶

In 2012, CARB adopted the Advanced Clean Cars I (“ACC I”) regulations to increase the stringency of criteria pollutant and GHG emission standards for new passenger vehicles for the 2015–2025 model years.⁷⁷ In 2013, the Obama administration’s EPA granted California a waiver for its ACC I regulations.⁷⁸ The EPA largely followed the 2009 waiver decision in determining that the new standards continued to meet “compelling and extraordinary” conditions.⁷⁹ The EPA found a rational connection between CARB’s emission standards and long-term air quality goals,⁸⁰ as well as compelling and extraordinary conditions within the state pertaining to the effects of pollution.⁸¹

In September 2019, in an unprecedented move, the Trump administration’s EPA revoked the 2013 waiver, marking the first time the EPA retroactively withdrew a previously granted waiver.⁸² The EPA went a step further than its 2008 waiver decision, narrowly interpreting that “Congress did not intend the waiver provision . . . to be applied to California measures that address pollution problems of a national or global nature,” but only conditions “extraordinary” with respect to California; that is, “with a particularized nexus to emissions in California and to topographical or other features peculiar to California.”⁸³ The EPA argued that climate change caused by carbon dioxide emissions is not a local air pollution problem and that California’s new motor vehicle standards deviated too far from what Congress intended in granting California a waiver.⁸⁴ The EPA concluded that California’s GHG standards were missing a specific connection to local features, and thus excluded GHG regulation from the scope of the waiver.⁸⁵

In March 2022, the Biden administration’s EPA rescinded the 2019 waiver withdrawal, restoring the 2013 waiver and California’s authority to enforce its GHG emission standards and ZEV sales mandate.⁸⁶ In determining that California has a compelling need for its GHG standards and ZEV sales mandate, the EPA essentially reverted back to its 2013 analysis, maintaining that pollution continues to pose a distinct problem in California.⁸⁷ The EPA saw no reason to distinguish between local and global air pollutants, reasoning that all pollutants play a role in California’s local air quality problems and that the EPA should provide deference to California in its comprehensive policy choices for addressing them.⁸⁸ The 2022 EPA refuted the 2019 EPA’s premise that GHG emissions from motor vehicles in California do not pose a local air quality issue,⁸⁹ noting that criteria pollution and GHGs have interrelated and interconnected impacts on local air quality.⁹⁰

Congress recently expanded the Clean Air Act to include GHGs, clarifying that GHGs are pollutants under the Clean Air Act. On August 16, 2022, President Biden signed the Inflation Reduction Act into law, the single largest climate package in U.S. history, which will invest almost $370 billion in clean energy and other climate-related measures over the next ten years, and is expected to reduce U.S. carbon emissions by 40% by 2030 compared to 2005 levels.⁹¹ The Act reinforces the EPA’s authority to regulate GHGs under the Clean Air Act, amending sections of the Clean Air Act to define “greenhouse gas” to include “the air pollutants carbon dioxide, hydrofluorocarbons, methane, nitrous oxide, perfluorocarbons, and sulfur hexafluoride.”⁹² It also grants money under the Clean Air Act for any project that “reduces or avoids greenhouse gas emissions and other forms of air pollution.”⁹³ This language supports that Congress fully intends to include GHGs in the Clean Air Act and that California is acting within the scope of the Clean Air Act in implementing its forward-looking motor vehicle emissions regulations.

C. Pending Lawsuit—Ohio v. EPA

Similar to its prior motor vehicle regulations, California will need to request a preemption waiver from the EPA under section 209(b)(1) of the Clean Air Act to regulate post-2025 vehicles. In the meantime, the Biden administration’s EPA’s latest March 2022 waiver decision prompted Republican-led states and private petitioners to challenge the constitutionality of the Clean Air Act waiver provision, making the case highly relevant for California’s ability to regulate motor vehicle emissions in the future.⁹⁴ In May 2022, seventeen states filed a lawsuit in the U.S. Court of Appeals for the D.C. Circuit (Ohio v. EPA), claiming, inter alia, that the section 209(b)(1) waiver provision violates the equal sovereignty principle because it limits state political authority unequally by allowing only California to set new car emission standards and “exercise sovereign authority that section 209(a) takes from every other State.”⁹⁵ Under this principle, the petitioners alleged, Congress cannot give only some states favorable treatment of sovereignty authority, as it has done with California.⁹⁶ Even if section 209(b)(1) allowed California to regulate unique state-specific issues, the petitioners argued that the waiver would still be unconstitutional because it allows California to regulate GHGs to address climate change, which is not a problem unique to California.⁹⁷ The petitioners disagreed with the Biden administration’s EPA’s statement that “California is particularly impacted by climate change,”⁹⁸ arguing that other states will be impacted just as much, if not more, from climate change.⁹⁹

The petitioner states also took issue with the idea of giving one state power to regulate a major national industry.¹⁰⁰ The states argued that California’s “special treatment” under the Clean Air Act—giving California special power to regulate a major national industry and exercise sovereign authority that the Act withdraws from every other state, when California has no unique interest¹⁰¹—violates the Constitution’s intent to hold all states equal.¹⁰² In a separate brief, a group of private petitioners, including the American Fuel & Petrochemical Manufacturers and Clean Fuels Development Coalition, argued that the equal sovereignty principle does not allow the federal government to give only one state the authority to regulate national and international issues.¹⁰³ They claimed that any mandate to shift the nation’s automobile fleet to electric vehicles must come from Congress, because such a shift would “substantially restructure the American automobile market, petroleum industry, agricultural sectors, and the electric grid, at enormous cost and risk.”¹⁰⁴ The private petitioners cited the recent West Virginia v. EPA decision, which essentially restricted the EPA’s authority to regulate GHG emissions from power plants.¹⁰⁵ Applying the major questions doctrine,¹⁰⁶ the Court held that the EPA must point to “clear congressional authorization”¹⁰⁷ to justify its regulatory authority in “extraordinary cases” when the EPA asserts broad authority in an area of “economic and political significance.”¹⁰⁸ The Court concluded that the EPA does not have the authority to “substantially restructure the American energy market . . . .”¹⁰⁹ If the EPA cannot upend energy generation in the country, as West Virginia v. EPA held, then, the petitioners argued, California similarly cannot “upend the transportation and energy sectors.”¹¹⁰ The petitioners further argued that section 177 also allows California to shape national industries, which may burden the states that decline to adopt California’s standards.¹¹¹

On the other hand, several electric utility providers, clean energy industry groups, and auto manufacturers have backed California.¹¹² A few automakers have indicated that they support the more stringent California standards. In July 2019, CARB reached a voluntary agreement with four major automakers—BMW of North America, Ford, Honda, and Volkswagen Group of America—to adopt a modified version of the GHG standards.¹¹³ Building on this voluntary framework, in 2020, Volvo joined the four automakers in agreeing to a 17% emissions cut through the 2026 model year.¹¹⁴ The automakers filed a motion to intervene to defend the EPA’s March 2022 decision.¹¹⁵

To date, the Supreme Court has not addressed the constitutionality of the Clean Air Act under the equal sovereignty principle. In its 2019 decision revoking the 2013 California waiver, the Trump administration’s EPA interpreted the statutory criteria in the context of the equal sovereignty principle, explaining that section 209(b)(1) provides “extraordinary treatment” to California and therefore should be interpreted to require a “state-specific particularized” pollution problem.¹¹⁶ In contrast, in its 2022 waiver grant, the Biden administration’s EPA noted that it has historically declined to consider constitutional issues, reviewing the waiver solely based on the section 209(b)(1) criteria because the statute and legislative history reflect a broad policy of deference to California to address its air quality problems.¹¹⁷ Although equal sovereignty presented a new constitutional argument, the EPA limited its role in evaluating waiver requests to “the criteria that Congress directed EPA to review.”¹¹⁸ Nevertheless, the Biden administration’s EPA briefly addressed the equal sovereignty principle, arguing that the waiver does not impose a burden on any state and that Section 177, in enabling other states to adopt California’s standards, undermines the notion that the section 209(b)(1) waiver treats California in an extraordinary manner.¹¹⁹ Rather, in deliberately compromising between having one national standard and fifty different state standards by authorizing just two—the federal standard and California’s standards—Congress allowed California to be a “laboratory for innovation” and address the state’s extraordinary pollution problems, while ensuring that automakers were not overburdened with varying state standards.¹²⁰

D. California’s Advanced Clean Cars II Regulations

California recently promulgated the Advanced Clean Cars II (“ACC II”) regulations in the shadow of the pending Ohio v. EPA lawsuit. ACC II stems from an executive order Governor Gavin Newsom signed in September 2020 directing CARB to develop regulations contributing to the goal that 100% of in-state sales of new passenger cars and trucks will be zero-emission by 2035.¹²¹ As a result of the executive order, on August 25, 2022, CARB promulgated a new regulation, the ACC II program, phasing out all sales of new fossil fuel cars by 2035.¹²² The regulation requires that automakers increase the percentage of electric vehicles progressively, nearly tripling it to 35% by 2026 and reaching 100% by 2035 (see Figure 1).¹²³

Figure 1. Percentage of new vehicle sales that must be zero-emission vehicles

The ACC II regulations amend the ZEV and LEV standards for model years 2026–2035,¹²⁴ following the ACC I regulations, which address model year 2015–2025 vehicles.¹²⁵ CARB estimates that the new regulations will reduce vehicle GHG emissions by more than 50% by 2040.¹²⁶ Thus, the decision from Ohio v. EPA will have implications for California’s ability to implement standards including the ACC II program going forward.

E. The Equal Sovereignty Principle

The Supreme Court didn’t develop the equal sovereignty principle as a meaningful concept until Shelby County v. Holder in 2013,¹²⁷ in which the Supreme Court held a statute (the Voting Rights Act) unconstitutional based on the equal sovereignty principle for the first time. The Court did not clarify what constitutional provision this principle is based on.¹²⁸ Although the Constitution requires equal treatment among the states in particular contexts,¹²⁹ no provision explicitly requires Congress to treat all states equally as a general matter.¹³⁰ This absence of an explicit statement could mean that the founders did not intend to establish a generally applicable equal sovereignty principle.¹³¹ Critics of Shelby County have claimed that the Supreme Court invented the equal sovereignty principle to achieve political ends.¹³² Other scholars argue that questions about the sovereign power of the states have existed since the drafting of the U.S. Constitution.¹³³ Many scholars agree there is some support for the principle in the historical record and constitutional doctrine, but they doubt that is sufficient for it to be considered a “fundamental” principle, as Shelby County claims.¹³⁴ This Section traces the history of how courts have applied the equal sovereignty principle, from the context of admitting new states into the Union to voting rights.

1. Origins: The Equal Footing Doctrine—New Admission of States

The equal sovereignty principle dates back to the equal footing doctrine referenced in Article IV, Section 3 of the Constitution: “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State . . . without the Consent of the Legislatures of the States concerned as well as of the Congress.”¹³⁵ The Northwest Ordinance of 1787, which provided a path toward statehood for the territories northwest of the Ohio River,¹³⁶ further required that these states be admitted “on an equal footing with the original States in all respects whatever,” on the condition that the new state constitutions and governments were “republican, and in conformity to the principles contained in these articles . . . .”¹³⁷

Several court cases also interpret the Constitution to support the equal sovereignty principle. Pollard’s Lessee v. Hagan held that Congress must admit every state into the Union on the same terms and with the same powers as the original states.¹³⁸ Every state must be “admitted into the union on an equal footing with the original states,¹³⁹ with “equal sovereign rights.”¹⁴⁰ Further, the court held that “no compact” can “diminish or enlarge” the rights a state has when it enters the Union.¹⁴¹ Northwest Austin v. Holder referenced this case as support for the historic tradition that all states enjoy equal sovereignty.¹⁴² Coyle v. Smith held that states, not Congress, have sovereignty to choose where to locate their state capital: the United States “was and is a union of States, equal in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself.”¹⁴³ No state is “less or greater . . . in dignity or power” than another.¹⁴⁴ Thus, Congress may not unequally limit or expand the states’ political and sovereign power.¹⁴⁵ Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.”¹⁴⁶ Thus, these cases establish the origins of the equal sovereignty principle in the admission of new states into the Union.

2. Equal Sovereignty Applied to Voting Rights

When the equal sovereignty principle was brought up in the context of the Voting Rights Act, courts had to determine whether the principle applied outside the state admission context.

Congress designed the Voting Rights Act of 1965 to address continuing voting discrimination after the Civil War.¹⁴⁷ The Fifteenth Amendment to the Constitution, ratified in 1870, prohibited voting discrimination based on race,¹⁴⁸ and Congress subsequently enacted the Enforcement Act of 1870, which prohibited obstruction of the exercise of the right to vote.¹⁴⁹ However, enforcement of the law was ineffective, and throughout Reconstruction, many southern states continued to enact tests designed to prevent Black people from voting.¹⁵⁰ To address this continuing discrimination, section 5 of the Voting Rights Act established a preclearance requirement, mandating that the federal government approve all new voting regulations to ensure that they did not perpetuate racial discrimination.¹⁵¹ However, the preclearance requirement only applied to states with a history of voting discrimination, as determined by the coverage formula in section 4 of the Voting Rights Act.¹⁵² The coverage formula implicated states located primarily in the South; thus, a select group of states were subject to more stringent requirements than other states when seeking to change their voting laws.

In its 1966 decision in South Carolina v. Katzenbach, the Supreme Court rejected the notion that the equal sovereignty principle prohibited differential treatment in the voting rights context. The Court held that the equal sovereignty principle only applied to situations involving the admission of new states, not the Voting Rights Act: “The doctrine of the equality of States . . . applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.”¹⁵³ The Court observed that Congress passed the Voting Rights Act in response to the “insidious and pervasive evil” of racial discrimination in voting,¹⁵⁴ and thus held that the Voting Rights Act was a constitutional and appropriate means for carrying out the Fifteenth Amendment.¹⁵⁵

Fourteen years later in City of Rome v. United States, the Supreme Court again upheld the Voting Rights Act as constitutional, finding that the Reconstruction Amendments were “specifically designed as an expansion of federal power and an intrusion on state sovereignty,” and thus, Congress had the authority to regulate state and local voting.¹⁵⁶ The Court cited Fitzpatrick v. Bitzer, which held that the principle of state sovereignty embodied by the Eleventh Amendment is “necessarily limited by the enforcement provisions of section 5 of the Fourteenth Amendment.”¹⁵⁷ However, the Court would later apply the equal sovereignty principle to invalidate part of the Voting Rights Act.

3. Shelby County v. Holder—Equal Sovereignty as a General Principle

Only two Supreme Court cases discuss equal sovereignty as a general principle.¹⁵⁸ Northwest Austin v. Holder,¹⁵⁹ though still a voting rights case, applied the equal sovereignty principle more broadly in 2009, laying the foundation for Shelby County v. Holder¹⁶⁰ to overrule Voting Rights Act section 4 in 2013.¹⁶¹

In Northwest Austin, the Supreme Court observed that the section 4 coverage formula of the Voting Rights Act went against the “historic tradition that all the States enjoy ‘equal sovereignty’ ” by differentiating between the states.¹⁶² The Court acknowledged that differentiating between states is sometimes justified, citing Katzenbach as an example.¹⁶³ However, it held that departing from “the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.”¹⁶⁴ Thus, the equal sovereignty principle limits Congress’s ability to subject different states to unequal burdens, at least without sufficient justification.¹⁶⁵ The Court also noted that the Act “imposes current burdens and must be justified by current needs.”¹⁶⁶ While the Court ultimately resolved the case on statutory grounds,¹⁶⁷ it expressed concern that sections 4 and 5 of the Voting Rights Act raised “serious constitutional questions.”¹⁶⁸ The Court observed that improved conditions in the South since 1965 may distinguish the case from Katzenbach because current conditions in 2009 may no longer reflect the discriminatory state actions that Congress meant for section 5 to address, and cited a lower racial gap in voter registration as an example to show that the coverage formula may rely on outdated statistics.¹⁶⁹ The Court also observed that the Voting Rights Act’s preclearance requirements “authorize[d] federal intrusion into sensitive areas of state and local policymaking” and imposed “substantial ‘federalism costs.’ ”¹⁷⁰

These concerns formed the basis for Shelby County to hold that section 4 of the Voting Rights Act was unconstitutional because it departed from the “fundamental principle” of equal sovereignty.¹⁷¹ The Supreme Court found the “fundamental principle of equal sovereignty” to be “highly pertinent in assessing subsequent disparate treatment of States.”¹⁷² The Court adopted the guidelines Northwest Austin set—namely, that the Voting Rights Act “imposes current burdens and must be justified by current needs,” and that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.”¹⁷³ The Court also distinguished the case from Katzenbach. Whereas in Katzenbach, the coverage formula was “relevant to the problem” of voting discrimination at the time,¹⁷⁴ here, the coverage formula was not updated to reflect contemporary improvements in voting participation, including higher voter registration and turnout numbers.¹⁷⁵ The Court concluded that Congress did not sufficiently justify its reauthorization of the “extraordinary and unprecedented features” of the Voting Rights Act;¹⁷⁶ thus, the Court held that the coverage formula no longer met the test introduced in Northwest Austin.¹⁷⁷

Shelby County, the only Supreme Court case to apply the test established in Northwest Austin, gave little guidance on how to apply the equal sovereignty principle in future cases, other than indicating that the law should rely on “current data reflecting current needs” when the degree of voting discrimination that prompted the original passage of the Voting Rights Act had changed.¹⁷⁸ The Supreme Court has not decided an equal sovereignty challenge since Shelby County, leaving lower courts to interpret how to apply the equal sovereignty principle outside the voting rights context.

II. APPLYING THE SHELBY COUNTY TEST TO THE CLEAN AIR ACT

Under the Northwest Austin test that Shelby County applied (the “Shelby County test”), the statute “must be justified by current needs,” and if federal legislation departs from the “fundamental principle of equal sovereignty,” it “requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.”¹⁷⁹ This Part argues that the equal sovereignty principle likely does not apply to the Clean Air Act, thus the Shelby County test should not even apply. But even if it were to apply and the Shelby County test is triggered, this Part concludes that the principle does not invalidate section 209(b)(1) of the Clean Air Act because California’s current needs continue to justify its differential treatment. California’s unique exemption is sufficiently related to the public health problem that the Clean Air Act waiver provision targets; allowing California broad discretion to regulate motor vehicle emissions directly contributes to Congress’s goal of addressing public health threats from motor vehicle pollution in the state.

A. The Equal Sovereignty Principle Likely Does Not Apply to the Clean Air Act

This Section argues that the scope of the Shelby County test is limited and likely does not apply to the Clean Air Act. Shelby County emphasizes that the equal sovereignty principle applies to federal laws that “authorize[] federal intrusion into sensitive areas of state and local policymaking.”¹⁸⁰ The Supreme Court thus applied the equal sovereignty principle to the Voting Rights Act because it determined that election regulation was a sensitive area of state policymaking. Highlighting the “extraordinary” nature of the Voting Rights Act’s preclearance provisions,¹⁸¹ the Court noted that the law suspends “all changes to state election law—however innocuous—until they have been precleared by federal authorities . . . .”¹⁸² The federal government must explicitly grant states permission to implement voting laws that they “would otherwise have the right to enact and execute on their own . . . .”¹⁸³ Because the Voting Rights Act intruded into a sensitive area of state policymaking that had traditionally been the exclusive province of the states, the Court limited Congress’s authority under the Fifteenth Amendment to restrict states’ election procedures disparately.

Professor Leah Litman goes even farther to posit that only federal action that lessens the dignity of a state or group of states triggers the Shelby County conception of equal sovereignty.¹⁸⁴ Under this narrower interpretation, Litman argues that laws will violate equal sovereignty only if they single out particular states that have behaved in morally-blameworthy ways, limiting the scope of the principle to legislation enacted under the Reconstruction Amendments.¹⁸⁵ Under this interpretation, the equal sovereignty principle primarily serves as a check on the Fourteenth and Fifteenth Amendments and should only apply in cases similar to those involving voting rights, in which the dignity of human beings is at stake.¹⁸⁶

Since Shelby County, a few weak equal sovereignty claims have been made in the lower courts in areas outside of voting rights, and the courts have distinguished these cases from Shelby County. For example, in Mayhew v. Burwell, the U.S. Court of Appeals for the First Circuit held that the equal sovereignty principle does not apply to Medicaid laws.¹⁸⁷ Perhaps most relevant to the Clean Air Act waiver is National Collegiate Athletic Association (NCAA) v. Governor of New Jersey, which addressed the constitutionality of the Professional and Amateur Sports Protection Act of 1992 (“PASPA”).¹⁸⁸ PASPA prohibits states from licensing sports gambling, except for states that had gambling operations prior to the Act’s passage, which only includes Nevada.¹⁸⁹ The U.S. Court of Appeals for the Third Circuit determined that the equal sovereignty principle does not apply to PASPA, distinguishing the Voting Rights Act from PASPA by finding that regulating gambling via the Commerce Clause is “not of the same nature” as regulating elections via the Reconstruction Amendments.¹⁹⁰ The court held that the Commerce Clause allowed Congress to enact laws “aimed at matters of national concern and finding national solutions will necessarily affect states differently,”¹⁹¹ such that federal Commerce Clause regulation “does not require geographic uniformity.”¹⁹² The court found that applying Shelby County to all situations is “overly broad” and that the equal sovereignty principle does not apply outside “the context of ‘sensitive areas of state and local policymaking.’ ”¹⁹³

Similar to PASPA, Congress acted pursuant to its Commerce Clause authority in passing the Clean Air Act to regulate motor vehicle emissions; thus, Congress is exercising the federal power of regulating interstate commerce and can treat states differently in the process.¹⁹⁴ The Clean Air Act likely does not intrude into “sensitive areas of state and local policymaking” as the Voting Rights Act does. Regulating motor vehicles has not traditionally been the exclusive province of the states. Three agencies set federal and state vehicle emissions standards: the EPA, the National Highway Traffic Safety Administration, and CARB.¹⁹⁵ Section 209(a) of the Clean Air Act explicitly provides for federal preemption, prohibiting states from adopting their own motor vehicle regulations.¹⁹⁶ Regulating motor vehicle emissions affects interstate commerce because air pollution crosses state borders.¹⁹⁷ Thus, like PASPA, the Clean Air Act does not intrude into a sensitive area of policymaking traditionally occupied by the states.

At its core, the outcome the petitioners demand in Ohio v. EPA is inconsistent with the fundamental principle of equal sovereignty. Without the waiver, the Clean Air Act defaults to only federal standards and federal preemption, leaving states with no choice but to adopt the federal standard. Thus, invalidating the California waiver—as petitioners seek to do—gives states fewer choices. It fails to promote the principle of equal sovereignty, which arguably protects the power of the states to enact policies that differ from those of the federal government.¹⁹⁸ In her amicus brief, Professor Litman noted that the petitioners’ invocation of the equal sovereignty principle is inconsistent with its history because the petitioners’ arguments would result in less authority and flexibility for the states, and more coercive authority for the federal government.¹⁹⁹ By allowing California to promulgate more stringent standards and allowing other states to choose between the federal and California standards, Congress has offered those states more options, not fewer. This is likely not an abuse of state sovereignty.²⁰⁰ By arguing for an expansion of federal preemption, thereby preempting more state legislative and policy goals, the petitioners seek a result that does not promote state sovereignty and instead runs contrary to the equal sovereignty principle’s historical use as a limit on congressional power.²⁰¹

Congressional debates regarding California’s special status indicate that Congress clearly considered the equal sovereignty problem and rejected it. In 1970, members of the House of Representatives expressed concern that all states should have the “same right that the State of California has in setting standards that they deem necessary for the health and safety of their people.”²⁰² Representatives of other states, including Pennsylvania and New York, argued that their air quality problems were worse than California’s, so they too should have the power to create state regulations exceeding federal standards.²⁰³ Thus, proper application of the equal sovereignty principle would allow all states to promulgate their own motor vehicles emissions regulations. Congress was more concerned about other states not being able to promulgate their own motor vehicles emissions standards than about California having special privileges. In contrast, in Ohio v. EPA, the petitioner states attempt to prevent California from enacting more stringent policies that could benefit other states, thus flipping the use of the equal sovereignty principle to make it more difficult for states to enact their own policies.

The Supreme Court has suggested in Shelby County that the equal sovereignty principle does not extend to all areas of the law, and this Section concludes that the equal sovereignty principle does not apply to the Clean Air Act. However, even if it were to apply, the Clean Air Act waiver provision passes the Shelby County test and remains constitutional, as analyzed in the next Section.

B. Even if the Equal Sovereignty Principle Applies to the Clean Air Act, It Does Not Invalidate Section 209(b)(1) of the Clean Air Act

Even if the equal sovereignty principle were to apply to the Clean Air Act, the Clean Air Act waiver provision remains constitutional. Applying the Shelby County test, the Clean Air Act waiver likely departs from the “fundamental principle of equal sovereignty” in creating a differential in its treatment of states’ political authority. As a result, the “statute’s disparate geographic coverage” must be “sufficiently related to the problem that it targets.” This Section concludes that this criterion is met; thus, the waiver provision remains constitutional. Congress had strong justifications for granting California an exemption that continue to remain relevant. First, the Clean Air Act targets not only smog in one region of California, but also the broader problem of public health from automobile emissions. Second, allowing California to implement more stringent motor vehicle regulations would directly help address this broader problem. California faces new and increasingly formidable threats from climate change, which have exacerbated the existing problems that initially compelled California’s motor vehicle regulations. Allowing California broad discretion to regulate GHG emissions is directly related to Congress’s goal of addressing the public health threats from motor vehicle pollution in California because the effects of GHG emissions and smog are interrelated and affect one another. This Section thus concludes that California’s current needs continue to justify Congress’s differential treatment of California—maintaining, and perhaps even strengthening, section 209(b)’s relevance in the twenty-first century.

1. By Treating States’ Political Authority Differently, the Clean Air Act Waiver Likely Violates the Equal Sovereignty Principle

The equal sovereignty principle does not require the federal government to treat states equally in every scenario, but requires that all states have equal political authority.²⁰⁴ Black’s Law Dictionary defines “sovereignty” as “[s]upreme dominion, authority, or rule”²⁰⁵ and “state sovereignty” as “[t]he right of a state to self-government; the supreme authority exercised by each state.”²⁰⁶ The Court in Shelby County explained that “[s]tates retain broad autonomy . . . in structuring their governments and pursuing legislative objectives,”²⁰⁷ referencing the Tenth Amendment and federalism principles as crucial in preserving the “integrity, dignity, and residual sovereignty of the States.”²⁰⁸ In United States v. Texas, the Supreme Court noted that the equal footing doctrine applies to political rights and sovereignty, but not economic issues.²⁰⁹ The Court observed that the equal footing doctrine was not designed to eliminate diversity in economic aspects such as area, location, and geology, but rather to “create parity as respects political standing and sovereignty.”²¹⁰ Thus, Congress violates the equal sovereignty principle when it limits the political power of a particular subset of states.²¹¹

Legislation that prohibits some states but not others from enacting laws about the same topic likely would violate the equal sovereignty principle. For example, the Voting Rights Act limits only southern states’ ability to regulate elections and PASPA permits only Nevada to legalize sports betting;²¹² thus, these laws would in theory violate the principle. Similarly, the Clean Air Act treats California’s sovereign authority differently from the other states. By permitting only California to regulate motor vehicles and promulgate new motor vehicles emissions standards, while limiting other states to either adopt the California or federal standards, the Clean Air Act waiver arguably limits other states’ rights to govern themselves in the area of motor vehicles, as well as transportation and energy more broadly. Rather than allow all states with certain air quality conditions to set regulations, the Clean Air Act allowed the state that first adopted its own motor vehicle regulations to continue setting the standard for new regulations.²¹³ Thus, if we were to apply the equal sovereignty principle to the Clean Air Act, the Clean Air Act likely departs from the equal sovereignty principle by exhibiting disparate treatment of the states’ political authority pertaining to motor vehicle regulations.

2. Nevertheless, the Clean Air Act Waiver Provision Remains Constitutional Because Its Disparate Geographic Coverage Favoring California Is “Sufficiently Related to the Problem that It Targets”

Violating the equal sovereignty principle does not automatically invalidate a law as unconstitutional. However, it triggers heighted scrutiny, meaning that Congress must justify the disparate treatment of the states as unequal sovereigns²¹⁴ by showing that the differential treatment is sufficiently related to the problem the law is addressing.²¹⁵ This higher standard “ensures that when Congress limits the sovereign power of some of the states in ways that do not apply to others, it has a good reason to do so.”²¹⁶

In Shelby County, the Supreme Court concluded that the coverage formula, while perhaps justified in 1965, was no longer justified in 2006 when Congress reauthorized the Voting Rights Act.²¹⁷ Because the coverage formula continued to distinguish states “based on ‘decades-old data and eradicated practices,’ ” including the past use of literacy tests that “have been banned nationwide for over 40 years” and on racial disparity in “voter registration and turnout in the 1960s and early 1970s” that no longer persisted, the Court held that the 2006 reauthorization statute’s disparate geographic coverage was not sufficiently related to the problem of twenty-first century racial discrimination in voting that it targeted, so “current needs” no longer justified it.²¹⁸ Thus, the Court found circumstances in 2013 to be sufficiently changed to render the coverage formula unconstitutional.²¹⁹

Applying this line of reasoning to the Clean Air Act, the petitioners in Ohio v. EPA claim that because California has transitioned to regulating GHG emissions, the waiver provision is no longer sufficiently related to the problem that it targets because California’s standards are targeting climate change, which is global, not state-specific, in nature: “[C]limate change is not an acute California problem.”²²⁰ This Section counteracts this argument and asserts that the waiver provision continues to be sufficiently related to the problem that it targets, distinguishing California’s motor vehicle regulations from the voting regulations at issue in Shelby County. First, the Clean Air Act targets not only smog in one region of California, but also the broader problem of public health from automobile emissions. Second, allowing California to implement more stringent motor vehicle regulations would directly help address this broader problem. California faces new and increasingly formidable threats from climate change that have exacerbated the existing problems that initially compelled California’s motor vehicle regulations. The effects of GHG and smog pollution are directly interrelated and affect one another; thus, addressing GHG emissions is directly related to Congress’s goal of addressing the public health threats from motor vehicle pollution in California. This Section therefore concludes that California’s current needs continue to justify the state’s differential treatment.

i. The Clean Air Act Targets the Broad Problem of Public Health Threats from Automobile Emissions

How courts frame the problem that Congress is targeting can shape their determination of whether a statute is constitutional. In NCAA v. Governor of New Jersey, the U.S. Court of Appeals for the Third Circuit held that even if the equal sovereignty principle were to apply to Commerce Clause legislation, PASPA passed the Shelby County test because its “true purpose” was to “stop the spread of state-sanctioned sports gambling,” rather than eliminate it altogether.²²¹ Because PASPA was drafted in neutral terms, any state that already supported gambling could continue to do so, and Congress likely knew that Nevada was the only state that had existing gambling operations.²²² PASPA’s disparate geographic coverage was therefore justified: “Targeting only states where the practice did not exist is . . . precisely tailored to address the problem.”²²³ If the court had defined the problem PASPA was targeting as eliminating all sports gambling, Nevada’s exemption would be harder to justify, and the statute would likely be unconstitutional for not being sufficiently related to the problem. However, because the court defined the problem as halting the spread of sports gambling, the Third Circuit’s analysis was a stronger one.

In Ohio v. EPA, the petitioners argue that the problem Congress designed the Clean Air Act to target was a narrow, California-specific problem.²²⁴ However, while smog may have been the impetus for the legislation,²²⁵ Congress also intended a broader goal of enabling California to use its developing expertise in vehicle pollution to develop innovative regulatory programs and serve as a leader in automobile emissions regulations.²²⁶ In 1967, Congress acknowledged California’s serious air quality problems as well as its role as a laboratory for emissions control technology for the country.²²⁷ The Senate Report concluded that with California’s experience in control systems and design, the waiver provision will allow California to “continue to be the testing area” for more stringent standards, potentially strengthening federal standards and benefiting all states.²²⁸

Multiple instances from the Congressional Record suggest that the broader problem Congress intended to target was the public health threats caused by motor vehicle pollution.²²⁹ Congress could have amended the Clean Air Act in 1977 to restrict the waiver provision. Instead, it ratified and strengthened the waiver by giving California the flexibility to adopt a complete program of motor vehicle emission controls.²³⁰ The original 1967 waiver provision required the EPA Administrator to grant a waiver “unless he finds that such State does not require standards more stringent than applicable Federal standards . . . .”²³¹ In contrast, the amended version requires that the EPA grant the waiver “if the State determines that the State standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.”²³² Congress intentionally granted California deference in creating motor vehicle standards in order to “afford California the broadest possible discretion in selecting the best means to protect the health of its citizens and the public welfare.”²³³ The amendment “confers broad discretion” on California to “weigh the degree of health hazards from various pollutants and the degree of emission reduction achievable for various pollutants with various emission control technologies and standards.”²³⁴ Congress made clear that the EPA should defer to California’s policy decisions, unless they are overwhelmingly arbitrary and capricious: the EPA Administrator “is not to overturn California’s judgment lightly. Nor is he to substitute his judgment for that of the State. There must be clear and compelling evidence that the State acted unreasonably in evaluating the relative risks of various pollutants . . . .”²³⁵ The EPA recognized in its 2013 waiver decision that Congress allowed it only limited review based on the section 209(b)(1) criteria to “ensure that the federal government did not second-guess state policy choices.”²³⁶ As the EPA affirmed, “Congress recognized that California could serve as a pioneer and a laboratory for the nation in setting new motor vehicle emission standards.”²³⁷ Thus, as long as the regulations protect the health of California residents, the EPA should defer to California on the scope of those regulations.

ii. Allowing California Broad Discretion to Regulate GHG Emissions Is Sufficiently Related to Addressing the Public Health Threats from Motor Vehicle Pollution in California

In Shelby County, the Voting Rights Act coverage formula factored in states’ voting discrimination history, which consisted of specific, unchangeable factors.²³⁸ In contrast, Congress noted that California’s circumstances can change: if California no longer faces “compelling and extraordinary” conditions, it can no longer establish its own standards.²³⁹ This possibility creates a built-in mechanism to continually evaluate whether California needs its separate regulations²⁴⁰ and whether the waiver provision is “justified by current needs.”²⁴¹ Recognizing “the unique problems facing California as a result of its climate and topography,” Congress noted in 1967 that only California has demonstrated “compelling and extraordinary circumstances sufficiently different from the Nation as a whole to justify standards on automobile emissions which may, from time to time, need [to] be more stringent than national standards.”²⁴² The petitioners in Ohio v. EPA treat GHG emissions as if they are a separate and mutually exclusive concept from smog and criteria pollutants, claiming that because California has shifted from regulations to reduce local smog problems to regulations to reduce GHGs and address global climate change, the waiver provision no longer justifies California’s exemption.²⁴³ On the contrary, this Section argues that the effects of GHG emissions and smog pollution are interrelated and affect one another. Thus, addressing GHG emissions is directly related to Congress’s goal of addressing the public health threats from motor vehicle pollution in California.

Given the history of California’s early motor vehicle regulations and Congress’s interest in having California as a “laboratory for innovation” while not overburdening automobile manufacturers by forcing them to comply with multiple state standards, Congress intentionally struck a balance by authorizing just two standards: the national standard and the California standard.²⁴⁴ This compromise would allow California to continue to innovate and improve its air quality without creating a practical nightmare for automakers and interstate commerce.²⁴⁵ Congress deliberately exempted California from federal preemption of motor vehicle regulations because of its “pioneering role in regulating automobile-related emissions, which pre-dated the Federal effort.”²⁴⁶ Because California had already adopted a robust air quality program and established its own motor vehicle emission standards prior to the passage of the federal Clean Air Act, it had expertise in emissions regulations that other states did not have.²⁴⁷

California’s large automobile market and economy continue to justify its disparate treatment. At the time Congress passed the Clean Air Act waiver, it recognized the “presence and growth of California’s vehicle population, whose emissions were thought to be responsible for ninety percent of the air pollution in certain parts of California.”²⁴⁸ Congress noted the large effect of vehicles on local air pollution: “Motor vehicles are responsible for about 90 percent of the smog in the Los Angeles County, some 56 percent in the San Francisco Bay area, and about 50 percent in San Diego.”²⁴⁹ Congress also noted that because of its large size, California has “an economy large enough to support separate standards.”²⁵⁰ Thus, California’s market was large enough that automobile companies could still make a sizable profit while producing cars to meet California’s more stringent environmental requirements.²⁵¹ There were twice as many vehicles in California as in any other state, including New York.²⁵² Today, California continues to be the largest automobile market in the United States; if the state were a country, it would be the tenth largest auto market in the world.²⁵³ California makes up 11% of U.S. new light-duty vehicle sales, and combined with the states that have already adopted its LEV rules, makes up 40.1% of U.S. new light-duty vehicle sales.²⁵⁴ Forty-three percent of ZEVs sold in the U.S. are sold in California.²⁵⁵

California’s unique topography and climate conditions have also contributed to the air pollution problems exacerbated by climate change. The legislative history indicates that Congress granted California an exemption to regulate motor vehicle emissions primarily because California was facing unique, severe air pollution problems across the state, particularly in the Los Angeles area.²⁵⁶ California’s air pollution problem was among “the most pervasive and acute in the Nation” at the time.²⁵⁷ Geographical and climatic factors were consistently cited as “compelling and extraordinary” factors during the House debate, including the “unique problems facing California as the result of numerous thermal inversions that occur within that State because of its geography and prevailing winds pattern.”²⁵⁸ Rep. Holifield noted that California has a unique problem due to an atmospheric inversion which “the peculiar topography of the metropolitan area of Los Angeles County” has caused to some extent by keeping smog in the area and surrounding counties.²⁵⁹ Even though members of Congress recognized that air pollution also affects other states in concerning ways,²⁶⁰ they agreed that California’s distinct conditions and topography continue to contribute to the unique effects of pollution in the state, creating a critical need for air pollution control.²⁶¹ As CARB established, California’s ozone levels will be exacerbated by higher temperatures from global warming, and “there is general consensus that temperature increases from climate change will exacerbate the historic climate, topography, and population factors conducive to smog formation in California, which were the driving forces behind Congress’s inclusion of the waiver provision.”²⁶²

Most significantly, climate change has only exacerbated the air pollution and smog problems that initially compelled California’s motor vehicle regulations and the Clean Air Act waiver. Automobiles emit both GHGs and smog-forming emissions including nitrogen oxide, carbon monoxide, and particulate matter.²⁶³ The 2021 report of the United Nations’ Intergovernmental Panel on Climate Change (“IPCC”) reflects the latest scientific consensus that climate change is both a local and global problem.²⁶⁴ The report establishes a connection between climate change and intensifying weather extremes including heat waves and droughts.²⁶⁵ Additionally, GHGs contribute to respiratory disease from smog and air pollution.²⁶⁶ GHG emissions lead to hotter global temperatures,²⁶⁷ which is expected to enhance the formation of ground-level ozone (a main component of smog).²⁶⁸ Exposure to ozone can cause respiratory problems²⁶⁹ and aggravate lung diseases including asthma, particularly within more vulnerable groups.²⁷⁰ Thus, GHGs can worsen exposure to ground-level ozone and smog, which is associated with increased mortality from respiratory and cardiovascular diseases.²⁷¹ As a result, it has been well established that GHGs and smog are interrelated and affect air quality separately and together.²⁷²

Contrary to what the petitioners claim, climate change continues to uniquely affect California as an “acute California problem.”²⁷³ While GHG emissions from California cars can “become one part of the global pool of GHG emissions,”²⁷⁴ this global pool eventually affects local conditions. The EPA recognized CARB’s strong evidence that California is “particularly impacted by climate change, including increasing risks from record-setting fires, heat waves, storm surges, sea-level rise, water supply shortages and extreme heat,” and that “GHG emissions contribute to local air pollution.”²⁷⁵ Climate change impacts ozone exacerbation and wildfires, which affect local air quality.²⁷⁶ California continues to have a serious smog problem, exacerbated by climate change.²⁷⁷ Seven of the ten cities with the worst air pollution nationwide are in California.²⁷⁸ Ten million Californians in the San Joaquin Valley and Los Angeles air basins currently live under “severe non-attainment” conditions for ozone, where people suffer unusually high rates of asthma and cardiopulmonary disease.²⁷⁹ Climate change has increased the number of hot days that can result in smog events and exacerbate wildfires.²⁸⁰ Thus, smog exacerbates climate change, which in turn exacerbates smog, and GHGs—which lead to climate change—continue to pose a direct and local threat.²⁸¹ As the 2022 EPA decision concluded, the 2019 EPA decision to withdraw the 2013 EPA waiver grant failed to properly consider “the nature and magnitude of California’s serious air quality problems, including the interrelationship between criteria and GHG pollution.”²⁸² The EPA noted that the 2019 record contained evidence that GHG emissions can lead to locally elevated carbon dioxide concentrations with local impacts such as ocean acidification, in addition to the longer-term global impacts from global emissions.²⁸³ Thus, just like smog, climate change poses serious threats to the public health and safety of residents in California. As a result, ZEV regulations are crucial in protecting the public health and safety of Californians.

Even adopting the 2019 EPA’s narrow “local nexus” test, which required that the California waiver only applies to measures that address conditions “extraordinary” with respect to California, or those with a specific connection to local features and emissions peculiar to California,²⁸⁴ California’s ZEV standard meets this test in directly addressing local air pollutant conditions by reducing criteria pollutant emissions. California’s 2020 Executive Order and resulting ACC II regulations made clear that California intended to regulate both GHG emissions and smog pollutants. The 2020 Executive Order states that zero emissions technologies “reduce both greenhouse gas emissions and toxic air pollutants,”²⁸⁵ and the ACC II regulations require new vehicles to “produce zero exhaust emissions of any criteria pollutant (or precursor pollutant) or greenhouse gas . . . .”²⁸⁶ California’s more stringent standards will thus continue to achieve critical reductions in conventional criteria pollution and help the state address public health problems caused by smog and soot.²⁸⁷ Congress has not provided any indication that California cannot take measures to reduce criteria pollutants and GHGs. Transportation is the largest source of air pollution in the state, responsible for nearly 40% of GHG emissions, 80% of nitrogen oxide pollution, and 90% of diesel particulate matter pollution.²⁸⁸ The EPA concluded that GHG measures are relevant to addressing local criteria pollutant issues²⁸⁹ and that regulations to reduce GHGs often simultaneously address smog-forming pollutants like nitrogen oxide.²⁹⁰ The legislative history provides no basis for the claim that California cannot mitigate climate change threats or address environmental problems within their boundaries as soon as the problems extend beyond them.²⁹¹ In fact, Congress expressed an interest in allowing California to “continue its already excellent program” and continue to be the testing area of motor vehicle standards, which is expected to benefit its people and the nation by strengthening federal standards.²⁹² The Senate report reflected opposition to displacing California’s right to set more stringent standards, as justified by California’s “unique problems and pioneering efforts.”²⁹³ Members of Congress concurred with the principle that California’s advances in air pollution regulation should not be nullified and that the state’s progress should not be impeded. Congressman John Dingell stated: “To penalize California for being ahead of the rest of the country in combating the menace of air pollution is totally incomprehensible.”²⁹⁴ The Ninth Circuit has also stated that California should be “encouraged to continue and to expand its efforts . . . to lower carbon emissions.”²⁹⁵ Thus, Congress’s reasons for granting California a waiver continue to be compelling and extraordinary, and California’s current needs continue to remain relevant as ever in justifying the Clean Air Act waiver provision.

Congress did not justify the Clean Air Act waiver provision based on whether pollution problems were of a more local or global nature, but rather on the unique effects of smog in the Los Angeles area.²⁹⁶ This emphasis suggests that Congress intended to give California the flexibility to adopt motor vehicle standards that the state determines are needed to address air pollution in the state, regardless of whether those problems might also be global in nature.²⁹⁷ Thus, California’s problems are serious enough and its efforts are such a model for the nation that a waiver provision is necessary in order for California to adequately protect public health. More recently, Congress’s clarification in the 2022 Inflation Reduction Act that GHGs are pollutants regulated under the Clean Air Act suggests that Congress intends the Clean Air Act to include GHGs.²⁹⁸ This further strengthens the argument that California is acting within the scope of the Clean Air Act in regulating GHGs through its innovative motor vehicle program.

CONCLUSION

The equal sovereignty argument is a new attempt to invalidate the Clean Air Act waiver provision and California’s ability to regulate motor vehicle emissions. As of this Note, no court has specifically addressed the constitutionality of the Clean Air Act under the equal sovereignty principle, and the decision is pending for Ohio v. EPA, which is expected to address this constitutional question.

This Note concludes that the equal sovereignty principle does not apply to the Clean Air Act, but even if it were to apply, it does not invalidate section 209(b)(1). Distinguishing from the outcome in Shelby County, the Clean Air Act waiver provision remains constitutional because granting California an exemption is “sufficiently related to the problem that it targets.” First, the Clean Air Act targets the broader problem of public health from automobile emissions. Second, allowing California to implement more stringent motor vehicle regulations will directly help address this problem. Congress had strong justifications for granting California an exemption which continue to remain compelling and relevant today. California’s history with air pollution control, its large economy, and its characteristic geographic and climate conditions put the state in a unique position to influence the automobile market and address GHG emissions. California faces new and increasingly formidable threats from climate change, which have exacerbated the existing problems that initially compelled California’s motor vehicle regulations. Allowing California broad discretion to regulate GHG emissions is directly related to Congress’s goal of addressing the public health threats from motor vehicle pollution in California because the effects of GHGs and smog are directly related and affect one another. Even as California’s motor vehicle regulations have shifted from reducing local smog by regulating criteria pollutants to reducing GHG emissions by eliminating gasoline-powered cars, California’s current needs continue to justify its differential treatment—maintaining, and perhaps even strengthening, section 209(b)(1)’s relevance in the twenty-first century.

The court’s decision on whether section 209(b)(1) of the Clean Air Act remains constitutionally valid will determine the extent to which California can continue to realize the localized benefits of the Clean Air Act while helping accelerate the nation’s transition towards a clean energy economy. It will also have implications for California’s ability to continue to regulate GHG emissions as a leader in addressing the most pressing environmental issues of the day.

Is the court going to handcuff California’s ability to protect the health and safety of its residents in the name of equal sovereignty? That was not the intention of Congress when it discussed equal sovereignty concerns pertaining to the Clean Air Act waiver. On the contrary, Congress debated whether other states should also be able to enact more stringent standards than the federal government, which would be the more reasonable remedy if the Clean Air Act waiver provision were deemed unconstitutional per equal sovereignty, as the petitioners demand.

To strengthen the ability of motor vehicle regulations to withstand future court challenges, California could emphasize criteria pollutants in its regulations. Since criteria pollutants have been more directly linked to local air pollution issues and Congress originally implemented the waiver provision in response to regional smog problems, this change could make it more difficult to challenge a regulation on the basis of it only regulating climate change. It will likely be simpler to show that the disparate treatment of California is sufficiently related to the problem that the Clean Air Act targets if legislators explicitly provide how they expect the regulations to affect local air quality as well as the local co-benefits of implementing them. For example, replacing internal combustion passenger vehicles with EVs will reduce not only GHG emissions, but also criteria pollutants including nitrogen oxides that are emitted.

California’s motor vehicle standards alone may not reverse or solve climate change, but the EPA has a duty to take steps to slow or reduce it.²⁹⁹ Allowing California to continue to promulgate innovative, forward-looking motor vehicle standards is crucial to its ability to lead the country as a “laboratory of innovation,” as Congress intended, and address the urgent environment and public health consequences of motor vehicle pollution.

97 S. Cal. L. Rev. 165

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Justine Huang*

* Senior Editor, Southern California Law Review, Volume 97; J.D. Candidate 2024, University of Southern California Gould School of Law; B.A. Economics 2019, Wellesley College. A special thank you to Professor Robin Craig for her thoughtful guidance, my friends and family for their consistent support and encouragement, and the Southern California Law Review editors for their thorough feedback.

The Federal Reserve and the Constitution

May 2024July 2024Daniel K. Tarullo*

In a number of important cases restricting the authority and independence of federal agencies, the Supreme Court’s conservative majority has adopted reasoning that, if applied consistently, could have more far-reaching consequences for the administrative state. To explore the limits of the Court’s evolving doctrines, this Article shows how their application might lead to a conclusion that the structure or mandate of the Federal Reserve, as created by Congress, is unconstitutional. On the assumption that at least some of the conservative Justices would not want to reach this result, the Article goes on to survey strategies available to the Court for avoiding such an outcome. It explains how, if a constitutional challenge to the Federal Reserve were to reach the Court, its choice among these strategies would further delineate the reach of its campaign against the administrative state. Even in the absence of an actual challenge, this exercise reveals how the Court’s political philosophy is shaping its jurisprudence.

INTRODUCTION

The low intensity offensive against the administrative state that has been waged by the conservative Justices of the Supreme Court for well over a decade has escalated in the last several terms. The campaign has two prongs. One is the restriction of agency authority derived from enabling legislation. The other is the invalidation of structural measures that insulate decisions of government officials from the political control of the President. The first is exemplified by the potentially very broad “major questions doctrine” announced by the Court in West Virginia v. EPA¹ and the possible revival of the long dormant non-delegation doctrine heralded by Justice Gorsuch’s dissent in Gundy v. United States.² The second is reflected in the trio of decisions invalidating for-cause removal protections for officials in agencies that Congress had chosen to make independent,³ and in United States v. Arthrex,⁴ which gave a political appointee authority to review certain decisions of patent law judges that Congress had insulated from direct political influence.

While the battle lines have thus been drawn, it remains unclear how much territory the conservative Court aims to capture. The rhetoric and logic of some of these opinions seem to extend far beyond the holdings and practical effects of the decisions themselves. An important open question is where the Court will stop. In this article I take up that question indirectly by examining what is perhaps the strongest candidate for a limiting case—the Federal Reserve.

In his famous foretaste of Legal Realism, Justice Holmes observed that common law rights and duties are “nothing but prophecies” of what courts will do when presented with a specific case.⁵ So too with a judicially-centered view of constitutional law. An assertion that an act of Congress is “constitutional” or “unconstitutional,” as opposed to whether it should be, is coherent only if it rests on a more or less convincing prediction of how the Supreme Court would rule on the matter.⁶ I believe, as I suspect most readers do, that even the current Court is unlikely to rule unconstitutional the delegation of monetary policy to the Federal Open Market Committee (“FOMC”)—an independent entity that includes nongovernmental officials as well as the Board of Governors of the Federal Reserve System (the “Board”), an independent government agency. At least on first inspection, however, this prediction is discordant with some of what the Court has already said about the Appointments Clause and the removal power. Were the conservative Justices’ intimations of further expansion of the removal power doctrine and revival of the non-delegation doctrine to be realized, the dissonance with the Federal Reserve’s structure would only grow. If my intuition is correct, and the Court would decline to follow some of the logic in earlier opinions to a conclusion that the Federal Reserve was unconstitutional, then its rationale for pulling up short of this outcome would itself be revealing of the limits of the emerging doctrines and, perhaps, of the political philosophy lying behind them.

The Article proceeds as follows: Part I provides some background on the mandate and structure of the Federal Reserve. Part II evaluates that mandate and structure in light the evolving separation of powers doctrines of the Court’s conservative majority and reaches the following conclusions:

First, although a majority of the Justices have indicated interest in reviving the non-delegation doctrine, the streak of nearly ninety years without a statute being declared an excessive delegation continues. Should the conservative Justices move beyond their talk in Gundy to action, the broad delegation of authority to the FOMC in the Federal Reserve Act would almost surely raise a constitutional question.

Second, the status of the nongovernmental members on the FOMC is most vulnerable to constitutional challenge. The FOMC includes as five of its voting members the presidents of regional Federal Reserve Banks, who are not appointed by the President and confirmed by the Senate. Indeed, they are not even employees of the U.S. government. They could well be adjudged principal officers of the United States, in which case their presence on the FOMC would be unconstitutional as a violation of Article II.

Third, because the Court has not to this point ruled that traditional multi-member independent agencies are unconstitutional infringements on the President’s removal power, the Board continues to enjoy for-cause removal protection. However, if the Court were to follow through on the logic of its recent opinions, as explicitly urged by some of its conservative members, the Board would presumptively be just as vulnerable as every other independent federal agency.⁷

Part III discusses why and how, notwithstanding these apparent constitutional vulnerabilities, the Court might well not hold the core delegation to, and structural features of, the Federal Reserve to be unconstitutional. As to why—members of the Court’s conservative majority may be more favorably inclined toward a central bank than other economic regulatory agencies. A more tangible consideration is the difficulty the Court would have in fashioning a remedy for the supposed unconstitutionality of the FOMC structure or mandate that did not risk major disruption to monetary policy, and thus the U.S. economy.

As to how, there are two means of avoidance that are at least arguably consistent with the revealed doctrinal inclinations of the conservative Justices. First, the Court may literally avoid the merits through denying standing to likely plaintiffs. A fairly restrictive standing doctrine of the sort now embraced by the Court would preclude challenges to the FOMC mandate and, quite possibly, to the status of the Reserve Bank presidents.

Second, the Court may find that, on the merits, the Federal Reserve enjoys an exception to the doctrines the Court’s majority has been building. This second way itself has two branches. One is based on the history of the regulation of money going all the way back to the First Bank of the United States. The other rests on perceived functional differences between the Federal Reserve and other independent agencies—an “anomaly,” as then Judge Kavanaugh once described it.⁸

Part IV builds on the detailed doctrinal analysis of Part II and Part III to discuss the constitutional choices of the Court that would be revealed by the possible outcomes of challenges to the Federal Reserve’s mandate or structure. If the Court refrains from further incursions on congressional decisions to delegate authority to independent agencies, the mandate and structure of the FOMC would be largely insulated from constitutional attack, at least as a practical matter. In that event, some limits on the Court’s separation of powers campaign would have been established.

But what if the Court extends its separation of powers doctrines further? Cass Sunstein and Adrian Vermeule have argued that one of the Court’s recent removal cases was driven not by originalism or any other interpretive method based on the text of the Constitution, but by “judgments, grounded in abstract principles, about what would make the constitutional order the best that it could be.”⁹ Assuming the Court wishes to avoid interfering with the statutory independence of the nation’s central bank, even as it pushes those principles further into the statutory organization of the U.S. government, then it will reveal not just its political philosophy, but some of its specific policy preferences. In granting the Federal Reserve exceptional status, the Court would be making choices that either seem arbitrary or that quite overtly appropriate the legislative role of making policy judgments. Finally, were the Court unexpectedly to find some part of the Federal Reserve’s mandate or structure unconstitutional, it would signal an escalation of its campaign against the administrative state and its strong resolve to remake the U.S. government.

* * *

Two additional points should be stated at the outset. First, my aim in this article is not to make a normative argument on the constitutionality of the Federal Reserve. Instead, my aims are to analyze that set of issues as a positive matter against the backdrop of the Court’s separation of powers jurisprudence and to consider what that analysis reveals about the ideological and policy dispositions of the Court underlying that jurisprudence. But this focus should not be confused with the view that the Federal Reserve’s mandate or structure should be captured by the Court’s evolving doctrines. On the contrary, like so many others, I find Justice Kagan’s arguments in her dissent in Seila Law convincing: Congress should have broad, though not unbounded, leeway in deciding how to structure the agencies it creates.¹⁰

Second, the Article focuses solely on these constitutional considerations. Nothing here should be read to suggest that the structure of the FOMC is or ought to be sacrosanct. There are good reasons to consider a range of changes, especially to the Reserve Banks and the status of their presidents. But decisions on whether the country should have an independent central bank, and how independent it should be, properly lie with Congress, not the Supreme Court.

I. STRUCTURE AND MANDATES OF THE FEDERAL RESERVE

The “Federal Reserve” actually consists of two separate policymaking entities created by statute. The awkwardly named “Board of Governors of the Federal Reserve System” is recognizable as one of the many independent regulatory agencies in the U.S. government. The Federal Reserve Act provides for seven members who are appointed by the President and confirmed by the Senate for fourteen-year terms¹¹ and then enjoy for-cause removal protection.¹² The Board has a number of regulatory and programmatic responsibilities. Most prominent are certain authorities for providing emergency liquidity to the financial system¹³ and the regulation of bank holding companies and certain insured depository institutions.¹⁴ Like the two agencies with which the Board shares bank regulatory authority, it regularly engages in notice-and-comment rulemakings and formal adjudications under the Administrative Procedure Act. And, like those two other agencies, it is self-funding and thus not subject to the congressional appropriations process.¹⁵

The FOMC, by contrast, is an institutionally unique policymaking entity within the U.S. government. The FOMC sets monetary policy for the United States. While it considers itself an “agency” for purposes of the Administrative Procedure Act,¹⁶ it is not an organization unto itself. Instead, it consists of representatives of the constituent entities of the Federal Reserve System. It has no employees. Its staff work is done by employees of the Board and the Reserve Banks.¹⁷ Its voters include all members of the Board plus, on a rotating basis, five of the presidents of the twelve Reserve Banks.¹⁸ Thus, when the Board is at full strength, there are at any given time seven Board votes and five Reserve Bank votes.¹⁹ The remaining seven Reserve Bank presidents nonetheless attend and participate fully (except for voting) in all FOMC meetings.

The Reserve Banks themselves are organizationally unusual. They are not “agencies” of the U.S. government. Neither the presidents nor staff of the Reserve Banks are government employees. However, both their distribution of profits and governance differ substantially from that of private corporations. They were created through a somewhat circuitous process outlined by Congress in Section 4 of the Federal Reserve Act.²⁰ Their paid-in capital comes from private banks that are required or choose to become member banks of the Federal Reserve system. Reserve Banks make money principally through seigniorage on cash transactions in securities, interest paid on securities held by the Federal Reserve, and fees charged for various financial services. The member banks are entitled to a dividend, which is calculated roughly as a preferred stock dividend would be—as a percentage of the paid-in capital of each bank.²¹ All remaining “profits” of the Reserve Banks, beyond those necessary to meet their expenses, and that of the Board, are turned over to the Treasury Department.²²

By law, the nine members of the boards of directors of each Reserve Bank consist of three representatives of the member banks (Class A directors), three representatives of non-banking interests selected by the member banks (Class B directors), and three representatives of the public selected by the Board (Class C directors).²³ The chair of each Reserve Bank is appointed by the Board from among the Class C directors. In practice, Reserve Bank presidents suggest the three public members and chair after consultation with the Board. With the approval of the Board, the Class B and Class C directors select the president of the Reserve Bank, who is generally the representative of that Bank on the FOMC.²⁴ Both the Board²⁵ and the board of directors of a Reserve Bank²⁶ have statutory authority to remove its president.

Congress has legislated the objectives of monetary policy—“to promote effectively the goals of maximum employment, stable prices, and moderate long-term interest rates.”²⁷ For decades the FOMC’s principal means for managing monetary policy was through “open market operations”—the purchase and sale of short-term U.S. government obligations.²⁸ Open market operations directly affect interest rates on these risk-free obligations, which in turn affect all interest rates in the economy.²⁹ During the Global Financial Crisis of 2007–2009, the FOMC quickly used open market purchases of Treasuries to lower its target short-term interest rate to what was effectively zero. At the “zero lower bound,” the traditional policy approach of managing short-term rates had reached its limit. The FOMC consequently engaged in “quantitative easing”—that is, the purchase of longer duration securities in an effort to bring longer-term rates down as well.³⁰

The resulting enormous increase in reserves meant that when the FOMC was ready to begin cautiously raising rates in late 2015, traditional open-market operations would not have produced the scarcity of reserves in the federal funds market that would result in higher lending rates in the economy as a whole. Consequently, the FOMC has changed to the use of “administered rates” to set policy.³¹ The Federal Reserve sets its interest rate on reserves³² (and in separate facilities in which certain non-bank financial firms can participate)³³ to establish floors below which the recipients of the interest will have no incentive to lend to households and businesses.

The FOMC is, if not the most independent policymaking organization in the U.S. government, certainly among the top few. Because its operations are funded by the Reserve Banks and the Board, which are themselves self-funding, it is not subject to the congressional appropriations process. Its deliberations are exempted from the Government in the Sunshine Act³⁴ and, to a considerable extent, from the Freedom of Information Act.³⁵ Monetary policy activities and communications may not be audited by the Government Accountability Office.³⁶ Finally, to repeat, members of the Board may be removed by the President only for cause, and Reserve Bank presidents are neither appointed nor removable by the President.³⁷

The unusual structure of the Federal Reserve System was established in the original Federal Reserve Act, as signed into law in 1913. However, while the original framework of twelve nongovernmental regional Reserve Banks and a governmental Board in Washington providing coordination and oversight has endured in the intervening century, much else has changed. Because recent Supreme Court decisions have assessed the pedigree of an agency in determining its constitutionality, Parts III and IV will discuss relevant features of Federal Reserve history and of its antecedents—the two Banks of the United States created in the nation’s early decades. Here, as a prefatory matter, I make a few general points to provide some context for the discussions to follow.

First, the motivation for creation of the Federal Reserve differs from that of the now prominent central banks that predated it. While the Bank of England and Banque de France were established to help the governments of those countries finance wars, the Federal Reserve was a response to a series of financial panics that culminated in the Panic of 1907. Thus, the availability of credit throughout the economy and the preservation of financial stability were central to the original mission of the Federal Reserve. The legacy of sectional and political disputes over credit helps explain its peculiar decentralized structure, while the experience of private clearinghouse efforts to mobilize private bank resources in the face of credit crunches helps explain its peculiar public-private character.³⁸

Second, the authority of the Federal Reserve is more centralized and governmental today than at its creation. For its first two decades, the Reserve Banks—especially the Federal Reserve Bank of New York—had the upper hand in determining Federal Reserve policies, which often varied across Reserve Banks. New Deal legislation increased Board authority—including requiring Board approval of the Presidents of the Reserve Banks—and entrenched a single, unified approach to monetary policy decisions by formally establishing the FOMC and removing the autonomy of individual Reserve Banks to make their own decisions on the rates at which liquidity can be extended to member banks. While changes in the intervening eighty years have been more incremental, they have almost uniformly enhanced Board authority at the expense of Reserve Bank prerogatives. Still, despite proposals in the 1930s to nationalize the Reserve Banks or to make their Presidents subject to the Article II appointment process, no change in the basic structure of the System was made then. Nor, despite periodic revival of such proposals, has any been made since.

Third, notwithstanding a formal ruling by the Attorney General at the inception of the Federal Reserve that the Board was independent of the Treasury Department,³⁹ both its de jure and de facto independence have varied over time. Until the New Deal legislation, both the Treasury Secretary and Comptroller of the Currency were ex officio members of the Board, with the Treasury Secretary as chair. Even after the Administration officials were removed from the Board, statutory authorities that gave Treasury the authority to create money on its own afforded Administrations leverage over the Federal Reserve.⁴⁰ This legal influence was buttressed by political pressures on the Federal Reserve to keep interest rates low in order to support government financing of both World Wars and New Deal spending programs.

Even following the 1951 Fed-Treasury Accord, which obliquely freed the Fed from a commitment to peg rates at a level desired by Treasury,⁴¹ various Presidents and Treasury Secretaries have successfully influenced FOMC decisions, and Fed Chairs in particular. The posture of reasonably scrupulous presidential respect for Fed independence—which today many consider a norm to have been breached by President Trump—was arguably a historical anomaly during a period covered by the presidencies of Clinton, Obama, and both Bushes.⁴² Finally, during periods of financial stress, close coordination between the Federal Reserve and Treasury has understandably been the rule, rather than the exception. Now that some of the Board’s emergency liquidity authorities require the agreement of the Secretary,⁴³ that coordination has a legal, as well as practical, foundation.⁴⁴

II. CONSTITUTIONAL PROBLEMS

A. Non-Delegation

As recently as a few years ago, a non-delegation issue would not have appeared in a discussion of possible constitutional infirmities in the structure and operation of the Federal Reserve. Indeed, it would have appeared on none but the most comprehensive lists of constitutional issues associated with any agency. In his opinion for the Court in Whitman,⁴⁵ Justice Scalia had seemingly put to rest any lingering question as to whether a congressional grant of authority to an agency might be found to lack an “intelligible principle” and thus be an unconstitutional delegation. But Justice Gorsuch’s dissent in Gundy v. United States,⁴⁶ which now appears to command the support of a majority of the Court,⁴⁷ has raised the prospect of breathing life into the non-delegation doctrine for the first time in ninety years.

It remains to be seen whether this prospect will in fact be realized, or whether the Court will ultimately demur in the face of the same problem of defining the limits of an intelligible principle (or some other test for valid delegations) that bedeviled it for all those decades following Schechter⁴⁸ and Panama Refining.⁴⁹ Until the Court’s intentions become clearer, though, at least some consideration of the non-delegation issue—as expressed in Justice Gorsuch’s dissent—seems warranted in assessing the constitutional status of any agency with broad authority.⁵⁰ The FOMC’s broad authority to decide between important, sometimes conflicting macroeconomic policy goals would certainly be implicated by any serious revival of the doctrine.

Until 1977, Congress had never articulated a standard to guide monetary policy decisions by the Federal Reserve.⁵¹ In the brief, but significant, Federal Reserve Reform Act of that year, Congress specified the monetary policy objectives:

The Board of Governors of the Federal Reserve System and the Federal Open Market Committee shall maintain long run growth of the monetary and credit aggregates commensurate with the economy’s long run potential to increase production, so as to promote effectively the goals of maximum employment, stable prices, and moderate long-term interest rates.⁵²

When assessed against the statutory standards considered in the line of decisions between Schechter and Gundy, the Federal Reserve’s “dual mandate” of maximum employment and stable prices seems unremarkable.⁵³ True, Congress has given the Federal Reserve broad discretion, both to determine what “maximum employment” and “stable prices” mean in concrete terms and to strike a balance between the two objectives when they may conflict.⁵⁴ Indeed, the genesis of the amendment was the view of many in Congress that the Federal Reserve needed to weight employment goals more substantially. However, as aptly summarized by Justice Scalia in Whitman,⁵⁵ the Court has found statutes with objectives as broad as achieving the “public interest” to meet the intelligible principle test.

How, though, might the dual mandate fare if the non-delegation doctrine is put back in play? At present the best starting point for answering that question is Justice Gorsuch’s view of the limits of permissible delegations, as explained in his Gundy dissent. He gives us a detailed application of his position only for the Sex Offenders Registration and Notification Act (“SORNA”)—the statute challenged in Gundy.⁵⁶ Still, his dissent is composed mostly of criticism of the evolution of the “intelligible principle” test set forth by the Court nearly a century ago in J.W. Hampton, Jr., & Co. v. United States⁵⁷ and, as such, contains an outline of what he believes to be the salient considerations in formulating a more robust test.

First, drawing from cases decided prior to J.W. Hampton, Justice Gorsuch identifies what he considers the three limited forms of delegation permitted by the Court until the intelligible principle test “began to take on a life of its own.”⁵⁸ Two are relevant for present purposes—“fill[ing] up the details” of a congressional policy decision and making “the application of . . . [a congressional] rule depend on executive fact-finding.”⁵⁹ The most far-reaching permissible delegation in the cases he favorably cites to illustrate these principles is found in United States v. Grimaud, a 1911 decision upholding a statute authorizing the Secretary of Agriculture to adopt rules regulating the “occupancy and use” of public forests to protect them from “destruction” and “depredations.”⁶⁰

Second, after rejecting the “mutated version” of the contemporary intelligible principle doctrine, but suggesting that some cases decided under that test might “be consistent with more traditional teachings” of the nineteenth and early twentieth centuries,⁶¹ Justice Gorsuch enunciates something approaching a test:

To determine whether a statute provides an intelligible principle, we must ask: Does the statute assign to the executive only the responsibility to make factual findings? Does it set forth the facts that the executive must consider and the criteria against which to measure them? And most importantly, did Congress, and not the Executive Branch, make the policy judgments? Only then can we fairly say that a statute contains the kind of intelligible principle the Constitution demands.⁶²

At first glance, application of this test would suggest significant, if not major, problems for the Federal Reserve Act. While the Federal Reserve’s dual objectives of stable prices and maximum employment often call for the same policy response, the most important decisions occur precisely at moments when those objectives are in actual, or at least arguable, conflict. Thus, monetary easing was obviously indicated in 2009, when employment was well below anyone’s estimate of its “maximum” levels, and it was the risk of deflation that threatened price stability. But the two objectives were in at least short-term conflict in the early 1980s, when unemployment and inflation were both well above historical levels. Less dramatically, in the recent past there has been vigorous debate both within the FOMC and among outside commentators as to how quickly monetary policy should be eased to reduce the risk of a future recession, as opposed to maintaining a more restrictive policy in order to guard against inflation reaccelerating.⁶³ For these latter two instances, Congress did not provide a standard to guide the Federal Reserve in making the policy judgment either to maintain an accommodative monetary policy to foster higher employment at the risk of continued price instability, or instead to tighten policy to restrain inflation at the risk of lowering achievable levels of employment in the near to medium term.

Despite this ostensible inconsistency of the FOMC’s policy discretion with Justice Gorsuch’s provisional test for constitutional delegations, the wording of his summary of “traditional teachings”⁶⁴ on the subject might be read to suggest that the dual mandate could fall on the permissible side of that yet-to-be-well-defined line. In stating the “fill up the details” and “executive fact-finding” forms of acceptable delegations, he refers respectively to statutes “regulating” and “governing” private conduct.⁶⁵ One might draw from this formulation the negative inference that delegations not involving the regulation of private conduct are less constrained by constitutional considerations. As explained in the discussion of standing doctrine in Section III.B., the FOMC’s monetary policy does not “regulate” or “govern” private conduct—at least not directly. Monetary policy is executed through trading in government securities and adjustments in the interest rates the Federal Reserve itself pays on bank reserves and short-term borrowing from certain classes of non-bank financial firms. So perhaps it would fit within what at this moment remains an inchoate possible exception to the Gorsuch test for impermissible delegations.

At present, of course, there is no way to know if this distinction is one that Justice Gorsuch means to be significant. If so, there is something peculiar about the outcome: delegation to the FOMC of authority to balance growth and price stability goals for the entire country through massive open market purchases and sales of government debt could be acceptable, while determinations by the War Department under a statutory standard allowing the government to recover “excessive profits” from military contractors during the Second World War might not be.⁶⁶

Still, Justice Gorsuch’s emphasis in Gundy on the delegation doctrine’s role in preserving “liberty” at least mildly supports this reading.⁶⁷ He asserts that the non-delegation doctrine springs from the framers’ belief that the “new federal government’s most dangerous power was the power to enact laws restricting the people’s liberty,”⁶⁸ and that it is “one of the most vital of the procedural protections of individual liberty found in our Constitution.”⁶⁹ More importantly, perhaps, this distinction aligns with standing doctrine. As explained later in this Article, plaintiffs challenging the constitutionality of the FOMC have generally been denied standing, at least in part because the FOMC did not take any action specifically and directly affecting them. Similar reasoning might lie behind a delegation doctrine that applied most stringently to rules directly regulating the conduct of citizens.

Finally, it is perhaps worth noting that Congress could, if it were so inclined, legislate a monetary policy goal that would come closer to, if not meet, the embryonic test for permissible delegations set forth by Justice Gorsuch in Gundy. This possibility might affect the disposition of the Court majority associated with that opinion to conclude that current law failed that test. However, as a practical matter, Congress could do so only if it embraced a conservative monetary policy. To see why, it is necessary to understand at least the broad strokes of two longstanding, and sometimes conflated, debates among monetary policy economists and practitioners concerning the desirability of monetary policy rules.

The first is whether a dual mandate is appropriate, as opposed to a single mandate instructing a central bank to pursue price stability. One traditional position in this debate begins from the premise that monetary policy cannot itself expand the productive potential of the economy, which is determined by structural features such as productivity gains and the efficiency of labor markets. Hence, those taking this position argue, central bank attention to employment is at best inefficacious and at worst inflationary. The second debate is whether, assuming that monetary policy should have only a single objective, that objective should be expressed as a quantified benchmark to guide the central bank. In the past, advocates for this position urged the adoption of a target for the growth of the money supply. While a monetary aggregate target is embraced by relatively few contemporary economists and policymakers, there is considerably more support for an inflation target. Indeed, many major central banks have, as a formal matter, only the single mandate of price stability. And some of those are given a quantified inflation target by their governments.⁷⁰

Were the Federal Reserve Act amended to establish a single mandate—instructing the FOMC to target, say, 2% inflation—it would fit much more comfortably into Justice Gorsuch’s comments on acceptable delegations. ⁷¹ Congress would have made the key policy “judgment” that the country should be aiming for 2% inflation. The FOMC, at least in theory, would not need to balance that policy against other policy aims. Instead, it would be doing something closer to Gorsuch’s “executive fact-finding.” Is inflation materially over (or under) 2%? Or, a bit more subtly, are economic conditions such that inflation is likely to deviate significantly from that target in the coming months unless monetary policy is adjusted?

The problem, of course, is that this more confined delegation is possible only if Congress makes the policy decision to elevate a price stability goal above employment and growth goals. But what if Congress takes one of the other sides in the long-running debates over monetary policy? A majority of legislators might, for example, agree with economists who believe that an exclusive focus on price stability may, under some economic conditions, allow hysteresis effects to take hold—that is, the persistent shortfall in aggregate demand will negatively affect the production potential of the economy. As a result, those holding this position believe an insufficiently accommodative monetary policy during recessions may reduce maximum achievable employment over the medium term.⁷² Similarly, legislators might believe that some inflationary (or disinflationary) bursts have idiosyncratic causes that will abate without leading to sustained upward pressure on overall price levels. Under these circumstances, forcing central banks to raise interest rates to dampen demand and thus relieve inflationary pressures would be unnecessary to maintain price stability, but damaging for short-term employment and growth.

As these two examples illustrate, it would be quite rational for Congress to conclude that a single-minded focus on achieving 2% inflation in all circumstances would be suboptimal policy. Further, Congress might recognize the impracticality of trying to specify in advance all situations in which deviation from the target would be desirable, or of itself revisiting the inflation target whenever economic conditions seem to be changing. But if one formulation of Justice Gorsuch’s limited view of permissible delegations is to be taken at face value, Congress would not be able to delegate this policy preference for balancing higher inflation against higher unemployment within a particular configuration of economic circumstances.⁷³

B. Appointment and Removal

There are distinct constitutional issues raised by the structure of the FOMC and its constituent entities—one pertaining to the Board and others to the Reserve Bank presidents. The former is not specific to the Board, since it involves the broader question of whether the Court might abandon nearly ninety years of precedent and find traditional multi-member agencies with for-cause removal protection to be unconstitutional. The other issues, though, are very much specific to the unique status of Reserve Bank presidents in the American administrative landscape. Precisely because the status and role of Reserve Bank presidents differ so much from those of the officials at issue in the Court’s recent appointments and removal cases, the analysis here is necessarily not a straightforward application of the doctrines enunciated in those opinions. But it does not require a bold extrapolation of their analyses to conclude that, in their monetary policy capacity, the presidents are principal officers under the Constitution. If that is the case, the structure of the FOMC is unconstitutional because the Reserve Bank presidents are not nominated by the President and confirmed by the Senate.

1. Removal of Members of the Board of Governors

As with application of the delegation doctrine to monetary policy, the for-cause removal protection afforded members of the Board by the Federal Reserve Act would until recently not have been thought much of an issue at all.⁷⁴ And perhaps it will prove not to be one. But, just as Justice Gorsuch’s dissent in Gundy raises the possibility that the Court may depart from its longstanding accommodating view of the delegation doctrine, so Chief Justice Roberts’s majority opinion in Seila Law⁷⁵ raises the possibility that the Court may upend the traditional understanding that Humphrey’s Executor v. United States⁷⁶ sanctions for-cause removal protection for principals of independent multi-member agencies such as the Federal Trade Commission (“FTC”) and the Federal Communications Commission (“FCC”).

Seila Law involved a constitutional challenge to the structure of the CFPB. Congress established the CFPB with a single director appointed for a five-year term and removable only for cause. In his majority opinion holding this structure unconstitutional, Chief Justice Roberts neither had to, nor did, address directly whether the contemporary form and authority of multi-member independent agencies raise constitutional concerns. In his opinion a decade earlier in Free Enterprise Fund⁷⁷ he had simply left Humphrey’s Executor aside.⁷⁸ In Seila Law, however, he went out of his way to characterize that case as an “exception” to the general rule of broad removal authority that he believes Myers v. United States⁷⁹ had created. While he affirmed that “we do not revisit Humphrey’s Executor or any other precedent today,”⁸⁰ his opinion suggests that the “exception” it created might be a fairly narrow one. If so, the reach of that precedent may be considerably less than has been widely assumed for decades.

In defining the scope of the Humphrey’s Executor “exception” to the Myers rule, Chief Justice Roberts emphasized what he took to be the narrow reading of the FTC’s authority given by the Court in that case. Specifically, he noted that the Humphrey’s Executor Court described the FTC as possessing legislative and judicial powers, not executive power. He went on to point out that the Court had explicitly abandoned that view in Morrison v. Olson⁸¹ and left readers to draw the inference that the rationale for Humphrey’s Executor is no longer valid. The Chief Justice further maintained that the Humphrey’s Executor Court had a more circumscribed view of the FTC’s authority than is associated with it (and many other agencies) today.⁸² Especially since none of this was necessary to decide whether the single-headed CFPB was constitutional, one finishes reading his depiction of the Humphrey’s Executor exception with at least some doubt as to whether it covers the modern-day FTC or other influential agencies.⁸³

These doubts are strengthened by the way in which the Chief Justice frames the question of the CFPB’s constitutionality. He quotes some of the broadest statements from Chief Justice Taft’s opinion in Myers on the need for the President to be able to control those executing the laws, in order to fulfill the President’s own duty to see that the laws are faithfully executed.⁸⁴ Furthermore, in drawing a sharp contrast between the powers of the CFPB and those of the FTC in the 1930s—or at least those he believes the Myers Court understood the FTC to have—Chief Justice Roberts indirectly suggests there may be constitutional problems with the modern administrative agencies:

[T]he CFPB Director is hardly a mere legislative or judicial aid. Instead of making reports and recommendations to Congress, as the 1935 FTC did, the Director possesses the authority to promulgate binding rules fleshing out 19 federal statutes, including a broad prohibition on unfair and deceptive practices in a major segment of the U.S. economy. And instead of submitting recommended dispositions to an Article III court, the Director may unilaterally issue final decisions awarding legal and equitable relief in administrative adjudications. Finally, the Director’s enforcement authority includes the power to seek daunting monetary penalties against private parties on behalf of the United States in federal court—a quintessentially executive power not considered in Humphrey’s Executor.⁸⁵

Had the Chief Justice wanted only to emphasize the anti-novelty principle⁸⁶ he had invoked in Free Enterprise, he need not have focused on the authorities of the agency itself, but only their concentration in a single director. It is possible that, in adding this color about the CFPB’s authority, Chief Justice Roberts was simply looking to buttress rhetorically his rather formalistic argument later in the opinion that “[a]side from the sole exception of the Presidency, [the constitutional] structure scrupulously avoids concentrating power in the hands of any single individual.”⁸⁷ Indeed, the Chief Justice does not make clear whether Myers principles, novelty, and inconsistency with his political theory of American government are each sufficient grounds for the Seila holding. But, as Justice Thomas observed in his separate opinion, “with today’s decision, the Court has repudiated almost every aspect of Humphrey’s Executor.”⁸⁸ Given the Chief Justice’s proclivity for step-by-step, rather than sweeping, undoing of longstanding constitutional doctrine, it is conceivable that in a head-on challenge to a contemporary “multimember body of experts, balanced along partisan lines,”⁸⁹ he would find that the modern FTC does exercise “executive power” and thus falls outside his interpretation of the Humphrey’s Executor “exception.”

While the members of the Board of Governors in their FOMC roles may not exercise these kinds of powers, they (and not the Reserve Bank presidents) have broad statutory authority to regulate banking organizations that, if anything, exceeds the powers of the CFPB described in the above quote.⁹⁰ Were the Court to take the step hinted at by Chief Justice Roberts and urged by Justice Thomas, and invalidate for-cause removal protection for the principals of a multi-member agency that exercises executive authority, the Board of Governors would join many other agencies in the crosshairs of ensuing constitutional challenges.⁹¹

2. The Status of Reserve Bank President

Up until the last several years, few would have thought there was even a modicum of doubt about the constitutionality of the delegation of monetary policy under the Federal Reserve Act, or for-cause removal protection afforded the members of the Board. In contrast, at least since the 1935 legislation that established the current structure of the Federal Reserve, both the constitutionality and the policy merits of participation by Reserve Bank presidents on the FOMC have periodically become live topics for debate. Various plaintiffs have challenged their constitutional status, although no appellate court has yet reached the merits. (As discussed below, two district courts have). Although some commentators find the analysis and conclusion of unconstitutionality straightforward,⁹² the unique configuration of the Federal Reserve makes application of structural constitutional precedents developed in other contexts somewhat inexact.

The basic issue, and the complexities attending it, arise from the fact that the Reserve Bank presidents are not employees of the U.S. government. They are hired as chief executives of the congressionally-created but nongovernmental Reserve Banks by the private boards of directors of those Banks.⁹³ Yet five of them vote on the committee to which Congress has delegated monetary policy. For this arrangement to be constitutional, they must either be “officers” of the United States appointed in conformity with Article II requirements or nongovernmental actors whose participation in policymaking can pass muster under the private non-delegation doctrine enunciated in Carter v. Carter Coal.⁹⁴ As was evident in Department of Transportation v. Association of American Railroads,⁹⁵ decided only a decade ago, there is not likely to be much receptivity in the current Court to the latter rationale.

If the Reserve Bank presidents are officers of the United States, they must be appointed by one of the two routes laid out in Article II. Because they are not nominated by the President and confirmed by the Senate, they must both qualify as “inferior” officers and be appointed by a “Head of Department.” Because, at least since Edmond v. United States,⁹⁶ the determination of whether officers are inferior is bound up with the question of how they can be removed, the constitutional issues pertaining to appointment and removal are closely related.

A good point of reference for considering these questions is a 2019 opinion of the Office of Legal Counsel (“OLC”).⁹⁷ This opinion, which was occasioned by the introduction of a bill that would have made all Reserve Bank presidents voting members of the FOMC, concluded after careful analysis that the participation of Reserve Bank presidents on the FOMC was constitutional because they were inferior officers appointed, and removable, by the Board. As we will see, reaching this conclusion took some doing. Moreover, the Court’s subsequent decisions in Seila Law and Arthrex⁹⁸ have arguably attenuated further the weaker links in OLC’s reasoning, though it is difficult to say by how much.

i. Reserve Bank Presidents as “Officers of the United States”

As the Court itself observed in Lucia v. SEC,⁹⁹ the standard that an officer of the United States is an official who “exercis[es] significant authority pursuant to the laws of the United States” has not been much developed since it was enunciated in Buckley v. Valeo¹⁰⁰ nearly fifty years ago. OLC reasoned that the FOMC meets the Buckley standard because it “sets the government’s monetary policy by ordering open-market transactions on the government’s behalf, which is ‘the most important monetary policy instrument’ of the United States.”¹⁰¹ OLC also cited the FOMC’s power to issue binding rules, a factor that appeared to have influenced the Court in Buckley.¹⁰²

On the face of it, conducting monetary policy through the power delegated to the FOMC in the Federal Reserve Act seems an exercise of authority more significant than that possessed by most other officers in the U.S. government. If anything, OLC understated its significance in pointing to the FOMC’s authority to order the Federal Reserve Bank of New York to buy or sell government securities in order to implement monetary policy.¹⁰³ When the Federal Reserve buys Treasuries from the market in order to increase demand and thus lower the interest rate on this risk-free asset, it does not fund the transaction as a private bond trader would—by using existing assets to purchase the bonds. Instead, the Federal Reserve creates the money it uses to buy the bonds through increasing the reserve balances of the correspondent banks of the dealers that sell those bonds. Understood in these terms, the FOMC’s power to order the purchase of bonds is a direct exercise of the sovereign authority to create money.

Are there any countervailing arguments? Perhaps the Court would look differently upon the FOMC because it does not bind private parties in ways comparable to the actions of the tax court judges, administrative law judges, Federal Election Commission members, and Public Company Accounting Oversight Board members who have been treated as officers in previous decisions. Indeed, the rulemaking function of the FOMC cited by OLC mostly binds parts of the Federal Reserve System itself.¹⁰⁴ While this point does echo a distinction suggested in Justice Gorsuch’s Gundy dissent, there is little in any of the cases just noted to suggest that this distinction makes a difference. Nor do the alternative formulations for determining officer status suggested by the concurring and dissenting Justices in Lucia support such a distinction.¹⁰⁵ It seems likely, then, that the Court would find Reserve Bank presidents to be officers of the United States.

ii. Inferior or Principal Officers

As is already apparent, there is some uncertainty around how precedents derived in other contexts would be applied by the Court in considering the constitutionality of the Federal Reserve. The question of whether the Reserve Bank presidents are inferior officers is easily the most nettlesome of all, owing both to the idiosyncrasies of the Federal Reserve structure and to the fact that the line of relevant Supreme Court cases has generally involved officials acting in an adjudicatory capacity.¹⁰⁶ OLC concluded they were, but in doing so appeared to elide some salient considerations. A recent district court case also concluded that a Reserve Bank president was an inferior officer, but outside the monetary policy context. As this section will show, there is a respectable argument that, extending the reasoning of recent opinions by members of the conservative majority, the Reserve Bank presidents are principal officers, at least for purposes of monetary policy.

OLC applied the test put forth by Justice Scalia in the first of those cases, Edmond: an inferior officer is one “whose work is directed and supervised at some level” by an officer who was nominated by the President and confirmed by the Senate.¹⁰⁷ OLC acknowledged that “the FOMC, as a body, has final authority over open-market operations.” But, specifically citing Justice Scalia’s “at some level” language in Edmond, as well as his observation that the “power to remove . . . is a powerful tool for control,”¹⁰⁸ OLC relied heavily on the statutory authority of the Board to remove Reserve Bank presidents for its conclusion that they were inferior officers.¹⁰⁹ It did not invoke the provisions of the Federal Reserve Act giving the Board broad authority over Federal Reserve Banks,¹¹⁰ presumably because the presidents act in a different capacity on the FOMC than as chief executives of their Banks.

Before assessing whether the at-will removal power of the Board is enough to make the presidents inferior officers, we must address the threshold question of whether the Federal Reserve Act actually grants this power. As OLC noted, the same statutory provision that creates the removal authority goes on to require that “the cause of such removal [must] . . . be forthwith communicated in writing by the Board . . . to the removed officer or director and to said bank.”¹¹¹ The question is whether the requirement to communicate “the cause” should be read to restrict the Board’s discretion, just as it would be if the language paralleled that applicable to the Board— with a specified term of office “unless sooner removed for cause by the President.”¹¹² OLC concluded that it did not, citing four reasons: the meaning of “cause” in the context of a reporting requirement; what OLC characterized as the “default rule that the appointing authority retains plenary removal authority”; the existence of “many statutes” that “parallel” the requirement of a communication of reasons; and the principle of constitutional avoidance.¹¹³

At the time the opinion was issued, one might have wondered whether OLC’s assertion of the default rule proposition reflected Executive Branch bias toward presidential prerogative. The Court’s subsequent opinion in Seila Law, with its full-throated reaffirmation of much of the Myers reasoning, has certainly strengthened the OLC conclusion. Given that rule, OLC’s related argument of constitutional avoidance seems fairly well-grounded. So too, the Court’s endorsement of that rule strengthens an already plausible argument that a requirement to communicate “the cause” does not carry the term-of-art meaning of “for cause” elsewhere in the statute. So, the OLC’s conclusion that clear statutory language will be required by the current Court before it recognizes “for-cause” protection seems a reasonable prediction.¹¹⁴

Turning back to the inferior vs. principal officer issue, it is not obvious that a principal’s removal power is always sufficient to establish inferior status. While Justice Scalia’s majority opinion in Edmond clearly elevated the “directed and supervised” standard above other factors that had been considered in past cases, it did not specify that the removal power was dispositive. The Coast Guard judges at issue in that case were removable by the Judge Advocate General, though not in an effort to change the outcome in any specific case, and Justice Scalia noted the importance of that fact.¹¹⁵ He went on to cite two other ways in which the work of the judges was “directed and supervised.” One was that the Judge Advocate General set the rules of procedure and formulated policies for reviews of court-martial cases.¹¹⁶ The other was that the judges had “no power to render a final decision on behalf of the United States” because of an explicit, if somewhat complicated, system of review within the military justice system.¹¹⁷

The inference one might draw from Edmond that removability alone may not be enough was modestly strengthened by the Court’s ruling in Free Enterprise Fund. There the Court ruled that the members of the Public Company Accounting Oversight Board were inferior officers both because it had invalidated their for-cause removal protection and because of “the Commission’s other oversight authority.”¹¹⁸

The importance of one of Justice Scalia’s other factors for determining inferior status—the inability to “render a final decision on behalf of the United States”—has increased following the Court’s decision in Arthrex, which came nearly two years after the OLC opinion. It was precisely the “unreviewable authority wielded by [Administrative Patent Judges]” that the Court found “incompatible with their appointment by the Secretary to an inferior office.”¹¹⁹ The removal authority of the relevant principal officer was more circumscribed than in Edmond: while Administrative Patent Judges (“APJs”) could be removed from serving on future review panels, they had for-cause protection from being fired from federal service entirely.¹²⁰ It is not clear whether the Court would have found an unrestricted removal authority enough to offset the fact that the agency principal would still have had “no means of countermanding the final decision already on the books.”¹²¹ But Chief Justice Roberts’s choice of remedy suggests it would not have ruled differently. Rather than making the power to remove APJs explicitly plenary, the Court required that—contrary to the statutory scheme—the Director of the Patent and Trademark Office (the relevant principal officer) have discretion to review every decision made by the APJs.¹²²

Perhaps because the Court was so closely divided, Chief Justice Roberts made clear that “we do not address supervision outside the context of adjudication.”¹²³ This remark underscores the uncertainty as to how the Court might apply principles developed in an adjudicatory context to other kinds of officers. Still, it helps identify the part of the OLC opinion that was necessarily the most speculative. OLC was aware of the difference in functions between FOMC members and the officials in prior cases. It “recognize[d] that Reserve Bank FOMC members have voting power on a body that is empowered to make final decisions on behalf of the federal government.”¹²⁴ In opining that they were nonetheless inferior officers, OLC doubled down on its removal argument: “The Board’s ability to supervise Reserve Bank FOMC members through the removal authority means that Reserve Bank members would have remained inferior officers, even if H.R. 6741 had made them a majority on the FOMC.”¹²⁵

In support of its conclusion, OLC cited a 2012 Court of Appeals case that, like Edmond and Arthrex, involved an adjudicatory function. In Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board, the D.C. Circuit had ruled that “[w]ith unfettered removal power, the Librarian [of Congress] will have the direct ability to ‘direct,’ ‘supervise,’ and exert some ‘control’ over the Judges’ decisions,” even though “individual CRJ decisions will still not be directly reversible.”¹²⁶ Whether this precedent remains a good one after Arthrex is at least questionable (again, the apparently dissimilar removal powers in the two cases leaves us without a clear answer). Even before Arthrex was decided, however, Intercollegiate would have been less than a complete answer to the “directed and controlled” issue in the significantly different context of the FOMC—one in which supposed inferior officers vote for final government decisions on the same committee with principal officers.

For similar reasons, a district court’s recent holding in Custodia Bank, Inc. v. Federal Reserve Board of Governors¹²⁷ that a Reserve Bank president is an inferior officer provides at best limited support for the OLC conclusion. This case involved not monetary policy, but a determination by the Federal Reserve Bank of Kansas City not to grant a “master account” at the Federal Reserve to a financial institution.¹²⁸ Although the Court’s analysis was brief,¹²⁹ it referred both to the Board’s appointment and removal powers and to its statutory authority to “exercise general supervision over [the] Federal reserve banks.”¹³⁰ Moreover, elsewhere in its opinion, the Court had concluded that the Board was properly a defendant in the case because Custodia had plausibly alleged that the Board had “participated in or interfered with the consideration and decision of Custodia’s master account application.”¹³¹ It appears, then, that the Court was under the impression that the Board’s actual influence over the Reserve Bank’s decision extended beyond its removal power.

Stepping back for a moment from the doctrine that has evolved in the cases just discussed, one is struck by the oddness of the relationship between members of the Board and Reserve Bank presidents on the FOMC that is implicit in the OLC opinion: If the Board does not like the positions taken on monetary policy by one or more presidents, it can replace those presidents. Through the exercise of this power, or the threat of its exercise, the Board thereby provides the direction and control necessary to satisfy the Edmond standard. To accept this view, one would have to believe that when Congress created the FOMC in 1933, its allocation of five votes to Reserve Bank presidents was more or less for show.¹³² Yet there is nothing in the historical record suggesting such an intent. Nor, in contrast to the Board’s posture towards Reserve Banks with respect to non-monetary policy issues,¹³³ is there anything in Federal Reserve practice during the ensuing ninety years to support the view that Reserve Bank presidents are answerable to the Board for their votes on monetary policy. Of course, when the Court starts operating under the rubric of the constitutional avoidance doctrine, it may reshape statutes in ways surely not contemplated when they were passed.¹³⁴ But OLC does not appear to be relying on the constitutional avoidance doctrine to conclude that the Board must have supervisory power over the monetary policies of Reserve Bank presidents.¹³⁵ Moreover, even if we accept this view of the statutory relationship between the Board and the presidents, there may still be constitutional problems.

The votes of Reserve Bank presidents have not come close to determining outcomes on the FOMC in the last thirty years. If the Board is at full strength and of one mind on monetary policy, even a solid bloc of Reserve Bank presidents would be outvoted 7-5. True, for several periods in recent years, the Board has had as few as four Members. Even in such circumstances, however, a prevailing coalition of Reserve Bank presidents has never seemed even a remote possibility. For one thing, there have been only two dissenting votes cast by Members of the Board in the twenty years since the FOMC began announcing its rollcall vote immediately following its meetings.¹³⁶ For another, the president of the Federal Reserve Bank of New York has traditionally been Vice-Chair of the FOMC and, in that capacity, has worked closely with the Chair in the so-called “troika,” which formulates the proposed monetary policy action prior to each FOMC meeting.¹³⁷ Finally, as a group Reserve Bank presidents tend to have more divergent views than Board members, and thus the odds of all five voters taking the same dissonant position are low.

However, the opinions in Free Enterprise Fund, Seila Law, and Arthrex suggest that a majority of current Justices is largely uninterested in the ways in which agencies have actually functioned. Led by Chief Justice Roberts, they have focused more on theoretically possible outcomes within the structures Congress has created. In Seila Law, Roberts invoked the possibility that a single director might be less responsive to the President than a multi-member Board as part of the justification for striking down the for-cause removal protection that Congress had granted the Director of the Consumer Finance Protection Bureau. And in both Free Enterprise Fund and Arthrex he rejected arguments from dissenting Justices that the relevant principal officers had effective, though not direct, control over the decisions of officers who had not been nominated by the President and confirmed by the Senate. Here, there are certainly theoretical possibilities for Reserve Bank presidents to determine the outcome of an FOMC vote. Moreover, there were at least half a dozen votes in the period 1960–1988 in which the votes of Reserve Bank presidents were significant, including one in which those votes produced a different outcome from that which would have been reached had only Board members been voters.

The first possibility has already been mentioned: a Board at less than full strength may be outvoted by the bloc of five Reserve Bank presidents at an FOMC meeting. Under OLC’s account of the Board’s control over the “inferior” presidents, the Board could respond by removing some or all of the presidents, who would be replaced as voters by the previously designated alternates.¹³⁸ Then the Chair could call a special FOMC meeting at which the Board’s original monetary policy preference could be adopted. If all the alternates proved recalcitrant, the Board could then remove them. Because the Federal Reserve Act specifies that only presidents and first vice presidents can represent the Reserve Banks on the FOMC,¹³⁹ at some point there would be no eligible alternates remaining and the Board would outnumber the Reserve Bank presidents.

The foregoing scenario is no way to run a central bank. The FOMC personnel drama would consume financial markets. The projection of a solid institutional footing, on which central banks rely for their credibility, would at least for a time be undermined, with potentially deleterious effects on the achievement of monetary policy aims. How would the Court assess the prospect of such a situation (fanciful as one hopes it will remain)? Perhaps the Court would find the confusion resulting from this sequence of events, coupled with the delay in implementing the Board’s preferred action, analogous to the impact of a decision by the APJs in Arthrex. That is, there would have been a final action taken on behalf of the United States that would have consequences that could not be completely undone by subsequent dismissal of the inferior officers involved. Alternatively, because the impact of the FOMC struggle would not fall on identifiable actors (such as patent holders), the Court might worry less about infringements on “liberty,” and accept the plenary removal power of the Board as adequate to establish the inferior officer status of Reserve Bank presidents. That is, the removal power might be found in this context to meet the Edmond standard of direction and supervision “at some level.”¹⁴⁰

A second possible situation in which Reserve Bank votes could be determinative is where a monetary policy action favored by a majority, but not all, of the Board did not prevail because of the votes of Reserve Bank presidents. In a sense, the circumstances of this second situation present a variation on the first. As a matter of legal authority, the same majority favoring a different monetary policy action could remove one or more presidents who had taken the opposite position. If the Chair was in the minority of Board members (but the majority of the FOMC), the organizational complications in achieving this outcome could be substantial, with potential negative effects on financial markets. But, if the dissenting Board members held their ground, eventually they would probably prevail.

A third possible situation seems harder to resolve through use of the Board’s removal authority. Suppose the Board is one short of its full complement, and the Members are split 3-3 on whether to raise rates. If three or more of the Reserve Bank presidents vote to raise rates, a majority of the FOMC will have voted to raise the target federal funds rate. If only the votes of the Board Members (principal officers) counted, the target rate would remain the same. Unlike the prior hypothesized situations, the policy outcome that would have prevailed if only Board Members voted may not be achievable through use of the removal power, since the evenly divided Board could deadlock on removing the presidents who favored the rate increase.

As mentioned earlier, this last scenario is not entirely hypothetical. There are at least two instances in Federal Reserve history when the votes of Reserve Bank presidents resulted in a change of policy for which there was not majority support on the Board. At the June 1988 FOMC meeting, the Board had six Members, rather than its full complement of seven. They split evenly on whether to tighten monetary policy conditions, the position favored by Chairman Greenspan. Had only the presidentially appointed members of the FOMC been voting, the deadlock would have meant no change in policy. But because all five Reserve Bank voting members sided with the Chairman, the outcome was an 8-3 vote to tighten.¹⁴¹ At the December 1961 FOMC meeting, four of the Board’s seven Members dissented from the position favored by Chairman Martin, which nonetheless prevailed because of the Reserve Bank presidents’ votes. This situation was unlike that in my second hypothetical scenario, because the four dissenting Board members had three different views—one for greater tightening of policy than the FOMC majority had voted, two who opposed any tightening, and one who disagreed with the means chosen to implement the less accommodative policy.¹⁴²

Whatever the Court’s views of the other situations, this last possibility would presumably be more troubling. The closest thing we have to a relevant view from a member of the current Court supports that inference. Justice Alito, concurring in Department of Transportation v. Association of American Railroads,¹⁴³ considered various constitutional issues that would need to be addressed following the Court’s unanimous decision that Amtrak was a governmental entity.¹⁴⁴ Among these was whether the manner of selecting Amtrak’s president ran afoul of the Appointments Clause. Eight members of Amtrak’s board were presidentially appointed and Senate confirmed. They chose the president, who became ex officio the ninth member of the Board. The president served at the pleasure of the Board.¹⁴⁵

Although he did not reach any definitive conclusions, Justice Alito clearly found the arrangement constitutionally suspect:

It would seem to follow that because agency heads must be principal officers, every member of a multimember body heading an agency must also be a principal officer. After all, every member of a multimember body could cast the deciding vote with respect to a particular decision. One would think that anyone who has the unilateral authority to tip a final decision one way or the other cannot be an inferior officer.¹⁴⁶

Dismissing the government’s argument that the president serves only at the pleasure of the other members of the Amtrak board, Justice Alito said “it makes no sense to think that the side with which the president agrees will demand his removal.”¹⁴⁷ It is hard to know how Justice Alito would parse the FOMC. As already noted, interest rate increases are not regulatory, at least in a direct sense, and thus perhaps not the threat to “liberty” perceived by the conservative members of the Court to lurk in every administrative regulatory action.¹⁴⁸ On the other hand, nothing in the logic of Justice Alito’s comment that every member of a multimember body heading an agency must be a principal officer suggests that this principle is limited to agencies that directly regulate nongovernmental individuals or entities.¹⁴⁹

iii. Article II Requirements for Appointment of Inferior Officers

Assuming Reserve Bank presidents are inferior officers, there remains the question whether their appointments conform to Article II requirements. Free Enterprise confirmed that the “Head” of a Department may be a multi-member board or commission, so it is clearly acceptable for the Board to appoint the inferior members of the FOMC.¹⁵⁰ There are two additional issues. First, the Board does not appoint the presidents directly; it approves selections made by the boards of directors of the Reserve Banks. Second, that approval is for the individuals appointed to be presidents of the Reserve Banks, not members of the FOMC. Under the Federal Reserve Act, the boards of directors of the Reserve Banks each year select the representatives of the Reserve Banks who will be voting members of the FOMC, with no requirement for approval by the Board of Governors.¹⁵¹

OLC disposed of both issues in concluding that the appointment of the presidents to the FOMC was consistent with Article II requirements. To deal with the fact that the Board approves—rather than directly makes—the selections of the Reserve Bank boards, OLC cited a 19th century case, United States v. Hartwell.¹⁵² In Hartwell, which was favorably cited in a footnote in Free Enterprise Fund,¹⁵³ the Court ruled that a clerk in the office of the assistant Treasurer of the United States was a validly appointed officer, even though he had been selected by the assistant Treasurer with the “approbation” of the Secretary of the Treasury.¹⁵⁴ OLC further noted that the Board appoints the Class C directors of the Reserve Banks (one of whom is designated as the chair), and has the power to dismiss the directors of all three classes.¹⁵⁵ OLC reasoned that “the Board could indefinitely reject proposed candidates until the directors propose Reserve Bank presidents to the Board’s liking.”¹⁵⁶ Indeed, it appears as though the Board could even short circuit that potentially lengthy process by dismissing any Class B director who was unwilling to appoint a president satisfactory to the Board and, if necessary, appointing new Class C directors, who for at least a brief time could be the only members of the Board eligible to select the president.

As to the fact that the Board’s approval authority is for selection of individuals in their roles as presidents of Reserve Banks, rather than for participation on the FOMC as such, OLC again relied on a 19th century decision whose authority has been reaffirmed in a modern case. In Shoemaker v. United States,¹⁵⁷ the Court ruled that Congress could place the holders of two existing offices requiring Senate confirmation on a newly created commission without the incumbents having to go through another nomination and confirmation process. The test adopted by the Court was whether the “additional duties” were “germane to the offices already held by them.”¹⁵⁸ Applying this test to the Chief of Engineers of the U.S. Army and the Engineer Commissioner of the District of Columbia, the Court found that the duties of their original offices were indeed germane to sitting on a commission charged with creating what is now Rock Creek Park in Washington, D.C.¹⁵⁹

Weiss v. United States, a 1994 case considering whether commissioned military officers could be appointed as military judges without a new Article II appointment, applied the Shoemaker germaneness test.¹⁶⁰ In a concurring opinion, Justice Scalia explained the rationale for the test:

Violation of the Appointments Clause occurs not only when (as in Shoemaker) Congress may be aggrandizing itself (by effectively appropriating the appointment power over the officer exercising the new duties), but also when Congress, without aggrandizing itself, effectively lodges appointment power in any person other than those whom the Constitution specifies. Thus, “germaneness” is relevant whenever Congress gives power to confer new duties to anyone other than the few potential recipients of the appointment power specified in the Appointments Clause—i.e., the President, the Courts of Law, and Heads of Departments.¹⁶¹

Insofar as Justice Scalia’s concerns extended beyond the potential for congressional aggrandizement, they foreshadow the Court’s construction of the President’s removal power in Free Enterprise Fund, and thus better reflect the contemporary approach to these structural Constitutional issues.

Even with this more expansive view of the germaneness test, the selection by Reserve Bank boards of the presidents who will vote on the FOMC seems to pass muster. As OLC reasoned, “[I]n approving the selection of Reserve Bank presidents to their positions, the Board of Governors has implicitly concluded that the presidents would be competent to serve on the FOMC.”¹⁶² Indeed, the Federal Reserve Act explicitly ties the two roles together. The Board is fully aware that, in approving Reserve Bank presidents, they are effectively deciding who will be sitting around the table at FOMC meetings.

iv. Removal of Presidents by Reserve Bank Boards

Unless one reads as a limitation the requirement that the Board notify a president of its reasons for exercising its power of removal, the Board has the plenary removal authority that is consistent with inferior officer status of the presidents. But OLC pointed out that the boards of directors of the Reserve Banks also have statutory authority to remove presidents whose appointments have been approved by the Board.¹⁶³ This is the one feature of the Federal Reserve structure that OLC assessed to be unconstitutional.¹⁶⁴

In reaching this conclusion, OLC cited Myers v. United States for the proposition that “the power to remove inferior officers is . . . ‘an incident of the power to appoint them.’ ”¹⁶⁵ But Myers involved a statute requiring congressional approval before the President could remove a postmaster. Even a broad reading of that case does not directly support the OLC conclusion, since there is no question the Board can remove a Reserve Bank president on its own. Doubtless for this reason, OLC relied more on its own prior opinions involving removals of officers by actors other than those with the Constitutional power to appoint them.¹⁶⁶ However, in asserting that “a delegation [of the power to remove a Reserve Bank president] would improperly diffuse accountability for the supervision of inferior officers,”¹⁶⁷ OLC did reflect a concern that has been featured in the Court’s recent decisions. It cited Chief Justice Roberts’s complaint in Free Enterprise Fund that “[t]he diffusion of power carries with it a diffusion of accountability.”¹⁶⁸ Though preceding Arthrex, OLC foreshadowed the Chief Justice’s emphasis there on the “chain of command” from the president,¹⁶⁹ in whom—according to a majority of the current Court—an indivisible and complete executive power of the United States was lodged by the Constitution.

OLC apparently resolved this issue by invoking the constitutional avoidance doctrine and then reading the statutory provision giving Reserve Bank boards the power of removal as requiring the approval of the Board before exercising that authority.¹⁷⁰ I say “apparently” because, although OLC cited to a well-known case in which the Court applied that doctrine,¹⁷¹ it also pointed out that “all classes of directors are subservient to the Board of Governors,”¹⁷² because of the Board’s power to remove those directors and its general supervision of Reserve Banks. OLC reasoned that the Board could, accordingly, require the Reserve Bank boards to seek approval before dismissing a president.¹⁷³

Given that these powers of the Board are explicitly set forth in the Federal Reserve Act, it is unclear why OLC felt it needed to give the directors’ removal authority provision a reading arguably inconsistent with its plain language. The alternative would have been for OLC to follow the course it did in considering the appointments process, where it emphasized that the Board could repeatedly reject individuals suggested by a Reserve Bank board until the latter sent the Board a name it liked.¹⁷⁴ Here, OLC could have noted that the Board’s authority to dismiss directors (and directly appoint the Class C directors) means that the Board could effectively reverse any decision by a Reserve Bank board to dismiss a president.

v. Reserve Bank Presidents as Private Actors

Until the recent Custodia Bank case, the only court opinion addressing the merits of the constitutional status of the Reserve Bank presidents was the 1986 district court decision in Melcher v. Federal Open Market Committee.¹⁷⁵ The D.C. Circuit Court affirmed on procedural grounds, leaving Judge Greene’s opinion on the merits neither validated nor rejected.¹⁷⁶ Judge Greene’s view that the authority granted Reserve Bank presidents on the FOMC was a permissible delegation to private actors seems unlikely to find favor in today’s Court.¹⁷⁷ His opinion is nonetheless instructive in thinking about both the constitutional arguments considered in the preceding subsections and the reasons why the Supreme Court might decline to find the structure of the FOMC unconstitutional even if the logic of its recent decisions tends toward that conclusion.

Judge Greene’s conclusion rested principally on two grounds. One was his textual observation that the Appointments Clause “governs the selection of public officers—it says nothing about the exercise of public power by private persons.”¹⁷⁸ The other, to which I will return in closing my discussion of the status of the presidents, was that “the lessons of history . . . militate strongly against a conclusion that would rigidly exclude the private members from the FOMC.”¹⁷⁹

The first point, while literally true, elided the question of whether someone acting in an effective government capacity should be treated as an “officer of the United States” for Appointments Clause purposes.¹⁸⁰ It also ignored the doctrine enunciated, if not especially well explained, in Carter Coal, which had found a delegation of federal governmental authority to private parties to be unconstitutional.¹⁸¹

Subsequent judicial developments have further undermined the consistency of Judge Greene’s reasoning with the Court’s views. One is the persistent emphasis in structural constitutional cases over the last thirty years on the accountability of those exercising any form of executive power in the U.S. government. The other, consistent with that emphasis, is the Roberts Court’s conclusion in two cases that even entities and individuals specified as “private” by Congress can be considered parts of the government for Constitutional purposes.¹⁸² Although the features of the Reserve Banks and their presidents might be distinguished from those of the Public Company Accounting Oversight Board and Amtrak—the entities at issue in those cases—the basic logic applies: entities and individuals whose positions have been created by the government, that continue to have significant links to the government, and that exercise governmental powers will be treated as part of the government.¹⁸³

From our vantage point, the most interesting feature of Judge Greene’s opinion is that he turned to a rationale of a permissible delegation to private actors only after he had concluded that the Reserve Bank presidents had not been selected in a manner consistent with the Appointments Clause.¹⁸⁴ He cited three factors in reaching this conclusion: One was that they were appointed by the Reserve Bank boards of directors, rather than by the Board itself.¹⁸⁵ The other two factors were closely related. The first was that it “would be a distortion of language to label as ‘inferior officers’ members of a body vested with the vast powers possessed by the Federal Open Market Committee.”¹⁸⁶ The other was that “Reserve Bank members sit on the FOMC with the Governors themselves, with the same opportunity to participate and vote as the Governors.”¹⁸⁷ Elaborating a bit on the latter point, Judge Greene asserted that the Federal Reserve Act contained “no suggestion that the Governors may supervise or otherwise influence the policy choices of the Reserve Bank members.”¹⁸⁸ He further maintained that the Board’s power to remove presidents was only for cause and, in any case, that the statutory removal provision contained “not even a hint of a suggestion” that it was “meant to be used by the Board to influence the votes of those officers who sit with them as members of the FOMC.”¹⁸⁹

As discussed earlier, some of these arguments would be dealt with by OLC thirty years later. Judge Greene did not even mention the statutory approval authority given to the Board for appointments of the presidents. And, unlike OLC, he did not parse the use of “cause” in the removal provision, but simply asserted that it was “a mechanism undoubtedly meant to encompass such infractions as misfeasance in office, but not a policy disagreement.”¹⁹⁰ As we have seen, this is a contestable proposition as a textual and doctrinal matter.

Still, Judge Greene’s observations about how the FOMC actually operated were valid in 1986, and remain so today. In a sense, he was anticipating the functional analysis of inferior officer status that would be set forth a couple of years later in Morrison v. Olson.¹⁹¹ The fact that the Reserve Bank presidents act like, and are treated like, equals on the FOMC sits uneasily with the notion that they are subordinate to the Board. OLC followed the formalist approach to inferior status that began with Justice Scalia’s dissent in Morrison, became the Court’s position in Edmond, and was reinforced in Arthrex. While I constructed low probability hypotheticals to demonstrate the gap in OLC’s formalist analysis, Judge Greene captured the FOMC’s “tradition of operation,”¹⁹² even as he glossed over doctrinal points that have become only more important as formalism has gotten the upper hand over functionalism in the Court’s structural Constitutional doctrines.

Judge Greene’s doctrinal argument that Congress may constitutionally delegate voting positions on the FOMC to private individuals has an awkward feel to it. As already noted, it is almost summary in its brevity and does not deal with two obvious issues. Additionally, one of the points he makes in that argument is somewhat at odds with his analysis of the inferior officer question. While he had earlier referred to “the vast powers possessed by the Federal Open Market Committee” in rejecting the notion that the presidents could be inferior officers, he suggests later that because private parties regularly buy and sell Treasury securities, Congress can establish a public-private partnership in the Federal Reserve to do just that.

An indication of what might have been motivating a smart district court judge to offer such a strained argument may be found in Judge Greene’s invocation of what he called the “deliberate, time-honored balance” of public and private representation in the regulation of the monetary system,¹⁹³ as contemporaneously reflected in the composition of the FOMC: “Ever since the birth of this nation, the regulation of the nation’s monetary systems has been governed by a subtle and conscious balance of public and private elements.”¹⁹⁴ He recounted how this balance had been variously struck in the structures of both the First and Second Banks of the United States, the original Federal Reserve Act, and finally the Banking Act of 1935 that established the FOMC as we know it today. He concluded that

[f]ew issues in the history of this nation have been as thoroughly considered and debated as central banking and the regulation of the money supply, and private participation, or even control, have been hallmarks of what was from time to time prescribed by the Congress. The current system is also the product of an unusual degree of debate and reflection within the Legislative Branch, with the participation from time to time of the Executive, and it represents an exquisitely balanced approach to an extremely difficult problem. To be sure, this background would not save the legislation if it clearly contravened the Constitution. But the Court concludes on the basis of its consideration of all the factors discussed above, that, while the composition of the Federal Open Market Committee may be unusual, it is not unconstitutional.¹⁹⁵

One can read this part of Judge Greene’s opinion as both acknowledging the force of long-established practice in determining the constitutionality of certain government arrangements and as giving at least some Constitutional role to the political branches in determining the acceptable form of those arrangements. As we will see in Part III, a variation on this theme might also affect the view of today’s Court on the constitutionality of not just the Reserve Bank presidents’ status, but of the Federal Reserve more generally.

III. CONSTITUTIONAL AVOIDANCE

Application of the doctrines embraced by the Court’s conservative majority in recent cases raises significant questions about the constitutionality of the FOMC. Even without further steps in the Court’s revamp of the separation of powers doctrine, the presence of Reserve Bank presidents on the FOMC is not easy to reconcile with the reasoning in existing opinions. If, as seems quite possible, the conservatives extend the logic of some of their opinions in future cases, other features of the FOMC could be more directly implicated. Were the Court to resurrect a meaningful non-delegation doctrine, the broad monetary policy discretion of the FOMC would obviously invite scrutiny. Similarly, were the Court to invalidate a traditional multi-member independent agency, the Board would obviously be among the many agencies whose constitutionality would be under a cloud.¹⁹⁶

But suppose the Court wants to avoid holding that some part of the Federal Reserve’s structure or mandate runs afoul of its separation of powers doctrines. In this Part, I begin with some conjecture as to why the conservative majority may prefer such an outcome and then consider the doctrinal positions that could be available to the Court to achieve this end.¹⁹⁷ With respect to the participation of Reserve Bank presidents in monetary policy and the breadth of the FOMC’s delegated powers, standing requirements could foreclose a case from ever reaching the merits.¹⁹⁸ Alternatively, even if standing were established and the substantive constitutional issues were taken up, the Court might find the FOMC, and perhaps the entire Federal Reserve System, to be exceptional and thus protected from the reach of generally applicable separation of powers doctrines.¹⁹⁹

A. Reasons to Forbear

There are many reasons why at least some conservative Justices might be reluctant to invalidate either the mandate or the structure of the FOMC. As a matter of ideology, they may simply be more accepting of a powerful, operationally independent central bank than of regulatory agencies such as the EPA, Occupational Safety and Health Administration, and SEC, which typify the administrative state that they hold in such low esteem. As became apparent when President Trump mused publicly about replacing Federal Reserve Chair Jerome Powell, there is support for an independent Fed among some Republican legislators.²⁰⁰ And, while many—perhaps most—companies subject to the jurisdiction of those latter agencies would like to see their authority curtailed, there is almost certainly more support for an independent central bank. Indeed, while financial firms may differ with specific decisions of the FOMC and regulatory actions of the Board, they rely on the central bank to moderate inflation, promote growth, and support the financial system in periods of stress.²⁰¹

Another explanation, not inconsistent with the first, is that some members of the Court may share the sense that the Federal Reserve is a higher-status and more consequential agency than others.²⁰² Some of the Justices may recognize that they have very little understanding of monetary policy, other than that it is important. For both reasons, they may be reluctant to disrupt the agency to which that policy has been committed.

It is obviously hard to know whether, or how much, policy considerations of this sort would affect the Court’s predisposition toward a constitutional challenge lodged against the FOMC. The potential impact of an adverse ruling on the economy, however, would almost surely weigh on at least some of the conservative majority. This concern would be evident in the difficulty the Court would face in the more narrowly legal exercise of crafting a workable remedy.

Although the Court’s recent separation of powers decisions have been doctrinally aggressive, their immediate impact on the functioning of government has been limited. Indeed, it may be a mark of the conservative majority’s eagerness to make new law that its decisions provided little practical relief to the plaintiffs in those cases.²⁰³ None produced any immediate tangible consequences of note to the general public—or, indeed, to anyone beyond the relatively small circles of parties and agency officials involved in the cases.

In contrast, a holding that either the mandate or structure of the FOMC was unconstitutional could have a major destabilizing effect on financial markets and, at least for a time, could be front page news. As in Free Enterprise Fund, Seila Law, and Collins, a holding that the Members of the Board were removable at will by the President would not in itself affect the actions of the formerly protected officials. However, the presumed independence of the Federal Reserve would have been called into question. Especially if the decision was handed down at a time when the Administration was thought to be unhappy with FOMC policy, there could be a period of volatility as market actors speculated on whether the President might use the implicit threat of removal to force a change in policy.²⁰⁴ Market actors might also speculate on the likelihood that a new President would remove several members of the Board whose monetary policies did not align with those of the incoming Administration.

A holding that the Reserve Bank presidents were principal officers, and thus not constitutionally eligible to sit on the FOMC, would present an especially tricky remedial challenge. The cleanest option might be to sever the portion of Section 12A of the Federal Reserve Act that provides for Reserve Bank representation on the FOMC,²⁰⁵ leaving just the Members of the Board. This would be a major amputation, not the neat surgical snip performed in recent separation of powers cases. Moreover, it would clearly be at odds with the congressional policy reflected in the Federal Reserve Act for more than a century, and thus hard to justify as capturing what congressional preferences would be in light of the holding that the Reserve Bank presidents were principal officers.

An alternative approach would be to give the President authority to remove the Reserve Bank presidents, thereby dodging the problem of a divided Board discussed in Part II.²⁰⁶ But this remedy would require the Court not just to excise from a statute the provisions that it has found unconstitutional. It would have to write in a new provision never drafted by Congress.²⁰⁷ In addition, this remedy would create some of the same uncertainty discussed earlier in connection with an invalidation of for-cause protection for Board Members, though probably of a lesser order, because the Reserve Bank presidents occupy fewer seats and generally have more heterogeneous views.

Finally, of course, the Court could simply invalidate the entire Federal Reserve Act, rather than changing a core structural feature of the FOMC by severing or rewriting certain offending provisions. Quite possibly—almost inevitably, to my mind—the result would be chaos in financial markets as banks, businesses, and households all scrambled to preserve the value of their money after the creator and caretaker of that money had just been put out of business. In theory, Congress could step in quickly by—for example, reenacting the Federal Reserve Act for a limited period, while leaving the Reserve Bank presidents off the FOMC. Congress would thereby calm financial markets to some degree, while giving itself time to decide on a permanent solution. Presumably, however, the Court is not oblivious to the difficulties in getting anything done across First Street in the Capitol. Even apparent no-brainers such as raising the statutory debt limit in order to pay obligations already incurred by the federal government have entailed political brinkmanship, which in 2011 led to the credit rating of U.S. government debt being downgraded for a time,²⁰⁸ and in 2023 caused anxiety in financial markets until an eleventh-hour agreement avoided the U.S. government defaulting on its obligations. The Court could not have confidence that Congress would expeditiously pass a temporary measure that preserved at least a recognizable status quo at the Federal Reserve.

Were the Court to strike down as an excessive delegation of legislative authority the dual mandate that gives the FOMC substantial discretion in the conduct of monetary policy, it would either have to divine a permissible congressional rule for the FOMC to implement or, as in the invalidation of the entire Federal Reserve Act scenario of the preceding paragraph, leave the country without any monetary policy until Congress (somehow) acted.

The former path seems difficult but not inconceivable. Where could the Court find an appropriate congressional rule if not in the Federal Reserve Act itself? Perhaps, as suggested in Part II.A., the Court could follow the preference of some (mostly conservative) economists and effectively read the “maximum employment” aim of monetary policy out of the Federal Reserve Act. Doing so would leave price stability as the “rule” set by Congress, which will then be assumed to have made the basic policy decision for price stability over employment. As with some other recent controversial steps it has taken, the Court might justify such an outcome by invoking the expanded canon of constitutional avoidance.²⁰⁹ That is, it would argue that Section 2A of the Federal Reserve Act would be an unconstitutional delegation of authority to the FOMC unless the statutory “maximum employment” goal is read to be a byproduct of achieving price stability, rather than as a goal in itself. To reach this decision, though, the Court would have to ignore not just the plain meaning of Section 2A (including the fact that “maximum employment” precedes “stable prices” in the text), but the entire purpose and history of the Federal Reserve Reform Act that added this provision in 1977.²¹⁰

B. Standing

One way for the Court to avoid the unattractive outcomes described in the preceding section would be simply to decline to reach the merits of a challenge to the FOMC. There is a quartet of D.C. Circuit cases from the late 1970s to the late 1980s in which the court found that plaintiffs alleging economic harm from monetary policy actions lacked standing to challenge the constitutionality of the FOMC on grounds of excessive delegation of authority, due process, and the Appointments Clause.²¹¹ Those cases largely explain the paucity of judicial discussions of the constitutional status of Reserve Bank presidents.²¹² The two questions to be addressed in this section are, first, whether enough has changed in the last thirty-five years to alter those outcomes today and, second, whether there are claims other than injury from monetary policy actions that might provide an alternative route for a structural challenge to the FOMC.

As to the first question, the best chance for a plaintiff probably lies in appealing to the Court’s recent preoccupation with accountability in the context of Appointments Clause and removal issues to argue that the special rules of separation of powers standing should apply here. As to the second question, there are several possibilities: The D.C. Circuit cases included unsuccessful claims by Members of Congress asserting harm to their position as legislators. Another possibility is an indirect route, by which a plaintiff suing a Reserve Bank or its president for a non-monetary policy harm includes a constitutional claim. Finally, there is the theoretical possibility that the President would attempt to remove a Reserve Bank president.

When both legal and practical considerations are taken into account, the chances of any plaintiff having standing to pursue a structural challenge to the FOMC are, at best, modest. However, it is important to note that the standing hurdle in past cases applied only in cases directly challenging the FOMC—the presence of the Reserve Bank presidents, the breadth of its mandate, or both. Were the Court to extend its reasoning in Seila Law and find traditional multi-member independent commissions unconstitutional, any banking organization regulated by the Federal Reserve could easily meet the standing requirements in challenging a regulation or order. If its outcome were to subject the members of the Board to at-will removal by the President, it would immediately affect the independence of the FOMC.

1. Private Party Standing to Challenge Monetary Policy Actions

i. The D.C. Circuit Decisions

Of the four D.C. Circuit cases, two addressed standing claims by plaintiffs suing in their private capacities. Committee for Monetary Reform v. Board of Governor of the Federal Reserve System²¹³ involved only private standing claims, while in Reuss v. Balles²¹⁴ Representative Reuss claimed standing both in his capacity as a Member of Congress and as a private citizen owning government securities.

In Committee for Monetary Reform, the court applied a three-part test for determining standing very similar to that used today:

Art. III requires the party who invokes the court’s authority to show [1] that he personally has suffered some actual threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury [2] fairly can be traced to the challenged action and [3] is likely to be redressed by a favorable decision.²¹⁵

Although the 800 entities and individuals joining the Committee in the suit were a varied lot,²¹⁶ the court did not dwell on the first prong of the test. It simply assumed that the economic injuries alleged—“serious financial damage as a result of monetary instability and high interest rates in recent years”²¹⁷—were sufficient to establish injury in fact. The court may have felt it unnecessary to detail economic injuries such as wealth erosion because of high inflation in the late 1970s and early 1980s, and job loss, because of the contractionary monetary policy and serious recession that followed. Alternatively, the court may simply have economized its analysis because of its conclusion that the second prong of traceability was clearly not satisfied.

On this point, the court stated that it was “entirely speculative” whether the influence of the Reserve Bank presidents was responsible for the FOMC’s pursuit of restrictive monetary policies.²¹⁸ In addition, it was “highly uncertain whether and to what extent such policies were responsible for the adverse economic conditions that allegedly resulted in harm to the appellants.”²¹⁹ For good measure, the court also said that the injuries could not be redressed by the court, because it was again “too speculative” whether having only members on the FOMC subject to “democratic control” would have resulted in a different monetary policy.²²⁰

The plaintiffs had also argued that they had standing on “separation-of-powers grounds,” an argument based on the Supreme Court’s decision a decade earlier in Buckley v. Valeo.²²¹ In Buckley, the Court had allowed a challenge to the constitutionality of the composition of the Federal Election Commission without requiring the plaintiff to show that an appropriately appointed Commission would have decided the matter at hand any differently. The D.C. Circuit rejected this argument derived from Buckley, quoting its holding that “litigants with sufficient concrete interests at stake may have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights.”²²² Here, the court said, the plaintiffs had not alleged they were “directly subject to the governmental authority they seek to challenge, but merely assert[ed] that they [were] substantially affected by the exercise of that authority.”²²³ Judicial intervention was thus not necessary to protect individual rights. To allow standing under these circumstances would be to open up the courts to the “generalized grievances” shared by a large class of citizens and, thereby, to decide “abstract” questions better decided by other governmental institutions.²²⁴

The D.C. Circuit’s earlier decision in Reuss had rested on generally similar reasoning, with a few notable differences. One was the reluctance of the panel majority in that case even to conclude that the injury prong of the standing test had been met, though Congressman Reuss’ own pleadings may have led to this conclusion.²²⁵ A second was that the panel majority distinguished Buckley not on the Committee for Monetary Reform ground that the plaintiffs must be “directly subject to the authority of the agency, whether such authority is regulatory, administrative, or adjudicative in nature,”²²⁶ but because Reuss had not shown a sufficiently “personal stake”²²⁷ that would “benefit” from a favorable decision.²²⁸ This reasoning seemed to invoke, without specifically citing, the “generalized grievance” concern. But, as Judge Wright noted in dissent, the counterargument was that Reuss’ bonds could well benefit if the FOMC did not tighten monetary policy.²²⁹

ii. Current Standing Doctrine

How, if at all, would the views of a majority of the current Court differ from those expressed in the D.C. Circuit cases decided several decades ago? The recent cases invalidating for-cause removal protection for federal officials provide a starting point for analysis. In the most recent of the three, Collins v. Yellen,²³⁰ Justice Alito addressed standing to bring a separation of powers challenge, in a part of his opinion joined by all his colleagues but Justice Sotomayor.²³¹ Because he concluded rather easily that the plaintiffs had standing, his discussion is not lengthy.

Justice Alito began by invoking the now-familiar three-part test of Lujan.²³² The plaintiffs, shareholders of the government-sponsored enterprises Fannie Mae and Freddie Mac, claimed that actions taken by the Federal Housing Finance Agency (“FHFA”) had diminished the value of their shareholdings. FHFA, the regulator of Fannie and Freddie, had taken these actions in its other statutory role as conservator of those two enterprises following their massive losses during the onset of the Global Financial Crisis in 2008. Justice Alito found the first injury-in-fact prong of the Lujan standard easily satisfied because plaintiffs’ claim of unnecessarily withheld dividends was the “sort of pocketbook injury [that] is a prototypical form of injury in fact.”²³³

The second prong of traceability was satisfied because FHFA had adopted a dividend formula that swept all the net worth of Fannie and Freddie to the Treasury Department, in exchange for its financial support of the two enterprises. Justice Alito found the third prong of redressability satisfied, at least in part because the case involved a claim that the President’s removal power had been unconstitutionally infringed. He quoted from Seila Law, in which Chief Justice Roberts’s majority opinion had stated that, in the context of the removal power, it was “sufficient that the challenger sustains injury from an executive act that allegedly exceeds the official’s authority.”²³⁴ Thus there was no need for plaintiffs to allege, much less prove, that FHFA would have acted differently had the relevant enabling legislation not restricted the President’s removal power.

A claim of standing to challenge the constitutionality of the FOMC by plaintiffs such as Congressman Reuss or the Committee for Monetary Policy Reform would differ in two salient respects from that advanced by the aggrieved Fannie and Freddie shareholders in Collins. First, the existence of an injury-in-fact would not be so clear cut for today’s Court. Second, as discussed by the D.C. Circuit in those two older cases, the many economic factors affecting bond prices and interest rates more generally make tracing the putative bondholder injury back to the FOMC less straightforward. The traceability prong may also be complicated by the absence of the regulatory relationship between agency and plaintiffs that was present in Seila Law, Collins, and Buckley itself.

At first glance, an allegation that the actions of the FOMC reduced the value of a plaintiff’s bonds or resulted in a recession in which a plaintiff was laid off would seem a clear injury in fact, and thus adequate under the first prong of the Lujan test. In Collins, Justice Alito had characterized “pocketbook injury” as a “prototypical” form of injury in fact.²³⁵ However, Lujan’s statement of standing requirements included not only that an injury in fact be “concrete,” but that it be “particularized.”²³⁶ This requirement is often explained as disallowing standing where plaintiffs have only “generalized grievances” shared with most or all other citizens.²³⁷

Again at first glance, the particularization—or non-generalized grievance—requirement does not seem to pose a significant problem for bondholder standing. After all, the injury any bondholder claims to have suffered will vary, obviously with the face value of the bonds they hold, but also with their maturity, since changes in the federal funds rate will normally have different effects on shorter-term bonds than on long bonds.²³⁸ The cases in which the Court has found a plaintiff’s grievance to be a generalized one involved quite different circumstances, usually involving “every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large.”²³⁹ Thus the Court has denied standing to plaintiffs claiming that funds had not been properly appropriated or spent,²⁴⁰ that a member of Congress who was also an officer in the military reserves violated the Incompatibility Clause,²⁴¹ and that a successful voter referendum had not been properly implemented.²⁴²

The particularized injury argument of a bondholder is arguably strengthened by Justice Scalia’s explanation, offered a few years before he authored the Lujan opinion, that a “widely shared” grievance was not the same as a “generalized” grievance.²⁴³ The explanation was contained in his dissent in Federal Election Commission v. Akins,²⁴⁴ a case that granted standing to a group of voters seeking review of a Federal Election Commission (“FEC”) decision that an organization was not a “political committee.”²⁴⁵ Justice Scalia made clear that his objection was based not on the fact that many people may have been harmed by the FEC action, but that every voter had been harmed in the same way.²⁴⁶ He explained that victims of a mass tort had standing because each suffered a different injury, and that each plaintiff in a voting rights suit had been denied his or her own statutorily protected right to vote.²⁴⁷ The differing losses to individual bondholders would seem consistent with these forms of particularized injury.

While Justice Scalia’s reasoning in Akins might be applied in a case challenging the constitutionality of the FOMC, two considerations inject at least a bit of doubt. First, in the twenty-five years since Akins, the Court has neither embraced nor rejected his approach. There is no congruent analysis to be found in any more recent majority opinion. Second, Chief Justice Roberts has subsequently suggested that the generalized grievance bar to standing might be higher than one might infer from Justice Scalia’s Akins opinion.

In a dissent in Massachusetts v. EPA joined by Justice Scalia himself, the Chief Justice included among his arguments against standing the fact that the “very concept of global warming seems inconsistent with this particularization requirement” because it is a “phenomenon ‘harmful to humanity at large.’ ”²⁴⁸ He did not elaborate. One should perhaps not place too much emphasis on this comment, insofar as most of his dissent focused on the problems of traceability and redressability, and his objections to what he believed to be the majority’s relaxation of standing requirements based on a state’s parens patriae interests. Still, his observation about global warming is at least arguably inconsistent with Scalia’s Akins reasoning: Not everyone is harmed in the same way by global warming, or perhaps at all. Indeed, while the economic losses are likely to be very large for the country as a whole, there will be discrete winners. And the damage suffered by those owning coastal property in New England surely will be particular to each owner.

So, too, with interest rate increases—households and institutions holding mostly cash or very-short-term assets (as opposed to equities or longer-term bonds) can benefit from higher rates. The Roberts dissent thus raises the possibility that the current Court would expand the meaning of generalized grievance to include actions by the FOMC that reverberate broadly through the economy, whether or not some plaintiffs could point to injuries specific to them. How real that possibility would be is among the many imponderables encountered in the muddled world of standing doctrine. One wonders, for example, whether the Chief Justice’s view may be limited to instances where plaintiffs seek to force an agency to regulate, rather than to escape regulation.

Turning to traceability, there are two hurdles for plaintiffs attempting to satisfy this second prong of the Lujan test. First, as both D.C. Circuit panels concluded in those older cases, the action of the FOMC in raising the federal-funds target does not directly cause the harm that plaintiffs allege they suffer because of a higher-interest-rate financial environment. The second hurdle also implicates the redressability prong of the Lujan test: How can plaintiffs trace back their injury to the fact of a putatively unconstitutional FOMC, when they have no way of showing that a properly appointed (or removable) FOMC would have taken a different policy action in light of prevailing economic circumstances?

The first hurdle to establishing traceability does appear significant for many of the plaintiffs represented in the Committee for Monetary Reform case. While the historically high interest rates of the 1980s FOMC, and the recession they brought on, led to considerable economic pain, tracing any specific job loss or corporate bankruptcy to the FOMC’s actions is not straightforward. After all, not every company went bankrupt, and the vast majority of employees did not lose their jobs. Other factors, such as pre-existing vulnerabilities of certain firms and employees or changes in consumer preference, presumably played a role. At least as to holders of Treasury securities, though, the argument for traceability is much stronger, since Treasuries of the same denomination and maturity are fungible. Indeed, there is solid economic evidence linking changes in the federal-funds rate to changes in the prices of Treasuries. As one review of the economic literature concluded, “FOMC decisions affect bonds of all maturity.”²⁴⁹ While intervening variables such as liquidity considerations and term premia also play a role, it is quite clear that FOMC actions have a major impact on prices.²⁵⁰ Because plaintiffs would not be seeking damages, and thus would not need to quantify the impact of an FOMC policy change on the market value of their bonds, the argument for a traceable injury-in-fact seems a strong one.

Still, the preceding paragraph is based on financial economics analysis, not legal doctrine. There is no regulatory, contractual, or any other relationship between the FOMC and a bondholder. The loss occurs as financial markets adjust their assessment of the value of a bond in light of the effects on funding costs for financial institutions that participate in the federal funds market, hold reserves with the Federal Reserve, or transact in the repo and reverse repo facilities now maintained by the Federal Reserve.²⁵¹ Those institutions will face higher borrowing costs and, accordingly, will need to increase the rates they charge to households and businesses borrowing from them.²⁵² Anticipating these effects, a potential purchaser of the plaintiff’s Treasury bond will now be willing to buy it only at a price that effectively equalizes the return the purchaser could get on a newly issued Treasury with a similar term until maturity.

In a sense, the question the Court would face is whether economic traceability will suffice, or whether standing doctrine will demand legal traceability—a kind of privity between the plaintiff and the agency. This same question is raised by the second hurdle, that of demonstrating that a validly constituted FOMC would have acted differently than the current FOMC with Reserve Bank presidents as voters. This hurdle is also relevant to the redressability prong of standing requirements.

Without some doctrinal relaxation, that second hurdle would be effectively insuperable. But, as explicitly stated by the Court in its recent decisions finding that statutory constraints on the President’s prerogative to remove officials were unconstitutional, “a litigant challenging governmental action as void on the basis of the separation of powers is not required to prove that the Government’s course of conduct would have been different in a ‘counterfactual world’ in which the Government had acted with constitutional authority.”²⁵³

As noted earlier, the two D.C. Circuit panels had rejected plaintiffs’ claims of “separation of powers standing,” based on their readings of Buckley. Recall that in Buckley the Court said that plaintiffs with “sufficient concrete interests at stake may have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights.”²⁵⁴ The Committee on Monetary Reform panel read the last clause of that sentence as restricting separation of powers standing to plaintiffs “directly subject to the governmental authority they seek to challenge,” and not simply “substantially affected by the exercise of that authority.”²⁵⁵ The court seems to have concluded a lot from a single sentence in a massive per curiam opinion. The plaintiffs in Buckley were clearly subject to regulation by the FEC. Thus, the Court had no occasion to consider whether the relaxation of traceability might be permitted in other circumstances. The fact that the Court has never since cited the Buckley sentence in disposing of standing objections in its separation of powers cases reinforces the inference that the D.C. Circuit may have invested it with too much significance.

Again, the atypical characteristics of the FOMC and monetary policy, relative to those of most other federal agencies, make extrapolation of standing doctrine tricky. In most cases, potential plaintiffs fall into two groups—those who are, or might be, regulated by the agency whose action is being challenged, and those who are not. As explained by Justice Scalia in Lujan, contemporary standing doctrine erects a high barrier to those in the second group:

When . . . plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction—and perhaps on the response of others as well . . . . [A]nd it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.²⁵⁶

Many of the more controversial standing cases have involved the question of whether the Court regards the interests of beneficiaries of the regulation to be concrete and particularized enough to satisfy the Court’s view of legal harm. But the FOMC does not regulate anyone.²⁵⁷ The claim of bondholders would turn neither on a regulatory relationship nor on the actions of a regulated party, but instead on the well-documented reaction of financial markets to FOMC action, the motivation of which is usually to bring about that very reaction.

This distinctive circumstance appears to pit two predilections of the Roberts Court conservative majority against one another—on the one hand, a restrictive view of standing to challenge agency action (or inaction) for anyone not directly regulated or otherwise suffering injury comparable to one cognizable at common law²⁵⁸ and, on the other, an expansive view of Appointments Clause requirements and presidential removal prerogatives. While it is obviously impossible to say for sure, I suspect that the conservative majority would incline toward the former position, since the plaintiffs for which it has shown most solicitude are the subjects of regulation.²⁵⁹ Apart from the Court’s abstract preferences, though, one thing is certain. If, for whatever reason, the Court does not want to take on the merits of such a case, it has a ready means for avoiding the issue by taking a narrower view of standing.

2. Claims Other than Economic Harm from Monetary Policy Actions

i. Congressional Standing

Three of the four D.C. Circuit cases included a claim of congressional standing.²⁶⁰ In the first, Reuss v. Balles, the court rejected the argument of the Member of Congress that he had standing because he was deprived of his constitutional right to initiate impeachment proceedings against a Reserve Bank president.²⁶¹ In the second case, Riegle v. FOMC, the Court assumed that Senator Riegle had standing, because a violation of the Appointments Clause deprived him of his Constitutional right to advise on, and consent to, officer appointments.²⁶² However, the Court ruled that “[w]here a congressional plaintiff could obtain substantial relief from his fellow legislators through the enactment, repeal, or amendment of a statute, this court should exercise its equitable discretion to dismiss the legislator’s action.”²⁶³ In the third case, Melcher v. FOMC, the court simply invoked the Riegle equitable discretion ground for dismissal, without conducting its own standing analysis.²⁶⁴

The Supreme Court’s decision in Raines v. Byrd²⁶⁵ very likely resolves the standing issue raised in Reuss, Riegle, and Melcher against the legislators in those cases. Raines involved a challenge by six legislators to the constitutionality of the Line Item Veto Act, which allowed the President to “cancel” specific spending authorizations or tax benefits in subsequently enacted legislation. The legislators argued that a line item veto violated the Article I bicameralism and presentment requirements and, thereby, “divest[ed]” them of their constitutionally protected role in repealing legislation.²⁶⁶ The majority opinion by Chief Justice Rehnquist rejected their claim of injury, holding that “individual members of Congress do not have a sufficient ‘personal stake’ in this dispute and have not alleged a sufficiently concrete injury to have established Article III standing.”²⁶⁷ The Court believed the injury was “institutional,” rather than personal.²⁶⁸

The injuries alleged in the three suits against the FOMC are fairly clearly “institutional” as the Court used the term in Raines. The Court characterized any claim that is not “personal,” such as entitlement to the congressional seat itself or receipt of salary, as institutional, because it “ran” with the status of being in Congress and would not be retained when the Member left that body.²⁶⁹ The prerogatives of adopting Articles of Impeachment, or advising and consenting in connection with appointment of an officer of the United States, belong to the full House and Senate, respectively. And, for all the twists and turns in standing doctrine in the intervening years, the Court recently reiterated that after Raines, “individual members lack standing to assert the institutional interests of a legislature.”²⁷⁰

Might a majority of the House or the Senate have standing under the Raines doctrine, as elaborated in subsequent cases, to complain that the presence of Reserve Bank presidents on the FOMC deprives that house of its unique constitutional powers?²⁷¹ Maybe, but not very likely.²⁷²

In the first place, the one circumstance in which the Raines Court envisaged legislative body standing was when an action in another part of government had “completely nullified” its vote.²⁷³ While the Court did not explain the scope of “complete nullification,” the two cases in which it found institutional legislative standing (one before and one after Raines) involved situations in which an executive branch official determined the outcome of a tied legislative vote²⁷⁴ or a voter initiative removed the authority of a legislature to determine legislative districts.²⁷⁵ While one might argue that the denial of the opportunity to vote on articles of impeachment of a presidential nomination also “completely nullified” the relevant house’s vote, the absence of an intervening action by a non-legislative actor distinguishes an FOMC challenge from those prior cases.

Relatedly, Raines did not stipulate that institutional legislative standing would be found even if both houses of Congress had authorized challenges to a line item veto. The Court pointedly noted that its denial of standing did not “deprive[] Members of Congress of an adequate remedy (since they may repeal the Act or exempt appropriations bills from its reach).”²⁷⁶ In one recent D.C. Circuit case, which was later vacated as moot, the Court found institutional standing where there was the theoretical possibility of a veto-proof majority of Congress passing legislation to forbid an allegedly unconstitutional Executive Branch expenditure.²⁷⁷ But even this somewhat expanded view of legislative standing, assuming its acceptance by the Supreme Court, still involved an action in another part of government that “nullified” the effect of a congressional vote.²⁷⁸ In the FOMC context, the Court might well return to the point that Congress itself has created the situation of which one House complains, with no intervening action by anyone to undermine the original congressional vote (or a future one).²⁷⁹ Indeed, the point is further made by the identity of the likely defendant in such a case—the FOMC itself. The FOMC has surely done nothing to interfere with, much less nullify, congressional prerogatives.

As with so many strands of standing doctrine, Raines and its progeny have been vigorously criticized from different perspectives.²⁸⁰ And there have been indications that legislative standing may be available in certain other circumstances, such as to defend the Constitutionality of a statute where the Executive declines to do so.²⁸¹ But there has been no indication that the Court would be receptive to a claim of standing when members of Congress challenge the constitutionality of a statute validly enacted into law. A search for a nonlegislative government actor that has “nullified” a congressional voting prerogative will come up empty in a prospective challenge to any of the potential Constitutional infirmities associated with the FOMC. As a result, even if one or both houses of Congress voted to initiate such a challenge, the Court would likely find standing lacking.

ii. Private Actions Against Reserve Banks

Recall that in Custodia Bank the plaintiff financial firm argued that the Reserve Bank president was a principal officer. Because the Reserve Bank’s denial of a master account to Custodia was a particularized harm that gave it standing, it could include this structural constitutional argument along with its administrative law claims.²⁸² In dismissing that claim, the court found that the Reserve Bank president was an inferior officer properly appointed by the Board. But its conclusion was built on the facts of that case—the undoubted power of the Board to remove her and at least the suggestion that the Board had successfully influenced her decision. Might a similarly situated future plaintiff import the arguments for Reserve Bank presidents being principal officers in the monetary policy context, as discussed in Part II.B.2? Possibly, but there are some hurdles.

First, there is the question of whether the Reserve Bank president’s action is an exercise of “executive power” to which Article II requirements attach. In Custodia, the district court noted that the standard for deciding the case was whether granting a master account “constitutes the execution and enforcement of the Federal Reserve Act.”²⁸³ But the court made clear it was not definitely deciding that actions on master account applications are executive functions as a matter of law.²⁸⁴ Instead, it observed that Custodia had “plausibly alleged” this to be the case.²⁸⁵ Presumably because of its view that the Reserve Bank president was an inferior officer, the Court did not believe it needed to resolve the executive power issue.

In its motion to dismiss, the Board had argued that granting a master account was incident to the taking of deposits from banks and other financial institutions, a function that Reserve Banks are authorized (but not required) by the Federal Reserve Act to perform.²⁸⁶ The Board seemed to be arguing that the granting of master accounts—and, by extension, the provision of other services by Reserve Banks—falls on the private, operational side of the public-private hybrid created by the Federal Reserve Act. Indeed, the Board explicitly invoked the precedent of the First Bank of the United States for the proposition that a “decision on whether to open an account at a government-affiliated bank is not the type of sovereign power implicating the [Appointments] Clause.”²⁸⁷ This characterization is belied somewhat by the Board’s own explanation that it was developing guidelines to promote consistency in master account decisions across the Federal Reserve System, because “access decisions made by individual Reserve Banks can have implications for a wide array of Federal Reserve System . . . policies and objectives.”²⁸⁸ This aim itself suggests that, in making decisions on master accounts, Reserve Bank presidents do “exercis[e] significant authority pursuant to the laws of the United States.”²⁸⁹

Regardless of a plaintiff like Custodia Bank’s success on the executive power issue, the second hurdle would likely prove more formidable. The very fact that its claimed injury has nothing to do with monetary policy decisions, or the FOMC as such, might well foreclose the plaintiff from arguing that Reserve Bank presidents are principal officers because of their role on the FOMC. In Seila Law, the Court stated that, “[i]n the specific context of the President’s removal power, we have found it sufficient that the challenger ‘sustain[s] injury’ from an executive act that allegedly exceeds the official’s authority.”²⁹⁰ As explained earlier, this standard removes the need for a plaintiff to show that the official or agency would have made a different decision in the absence of for-cause protection. But it retains a required link between the injury and the official’s authority. A disappointed applicant’s injury is related to the Reserve Bank president’s statutory authority to accept deposits, under the general supervision of the Board, not from an FOMC monetary policy decision on which the president has voted.

The circumstance here raises a peculiar question: Can a Reserve Bank president be an inferior officer for some purposes (those in which she is acting as head of the Reserve Bank), while being a principal officer for purposes of FOMC monetary policy decisions? The possibility may seem a bit jarring. But perhaps that is a sensible way to parse the anomalous characteristics of the Federal Reserve System generally, and the Reserve Bank presidents in particular. In any case, if standing to challenge the FOMC role of Reserve Bank presidents is denied plaintiffs like Custodia Bank, chances are that courts will never need to decide the question one way or another.

iii. Presidential Removal of a Reserve Bank President

A third possibility is that the President could attempt to remove a Reserve Bank president, much as President Roosevelt attempted to remove Commissioner Humphrey in the confrontation that gave rise to Humphrey’s Executor. While the procedure by which the President would execute this effort is not entirely clear, given that the Reserve Bank president is not an employee of the U.S. government, presumably an actual case or controversy would eventually be joined. Undoubtedly, the putatively deposed Reserve Bank president would have standing to challenge her removal, thereby bringing the Article II issues front and center. While the legal issue is clear, the circumstances under which the President might be tempted to initiate a confrontation of this sort, with its potential for economic uncertainty, are probably quite limited.

C. The Federal Reserve as Exceptional

While a relatively low probability outcome, there is at least some chance that a bondholder could successfully argue for standing to challenge the role of Reserve Bank presidents on the FOMC or the breadth of monetary policy discretion granted the FOMC in its statutory mandate. Alternatively, if the Court applies the logic of Seila Law in future cases involving traditional independent agencies, a plaintiff appealing a regulatory action by the Board would have no difficulty establishing standing to challenge the for-cause removal protection of its members. This section explores two, arguably mutually reinforcing, avenues by which the Court might nonetheless find that the FOMC’s pedigree provides it some insulation from contemporary constitutional challenge. One is quite literally the Fed’s pedigree—that is, its arguable ancestry in the First and Second Banks of the United States, which date to the earliest years of the Republic. The other is a simple denomination of the Federal Reserve as “exceptional” or an “anomaly” because of the role of a central bank. There are hints of both these arguments—though no more than that—in opinions by Justices in the current conservative majority.

1. History

Much of the doctrine on the relevance of historical practice to separation of powers issues—if it can even be called that—predates the consolidation of the conservative majority on today’s Court.²⁹¹ Still, the Chief Justice’s emphasis on what he regarded as the novelty of the for-cause removal protections invalidated in Free Enterprise Fund and Seila Law raises the question whether a long-established agency structure might be tolerated even if the Court’s increasingly muscular Article II doctrines suggest constitutional difficulties. If, that is, a structure is unconstitutional in part because it is novel, then perhaps it may be constitutional if it is longstanding. It should be noted at the outset, though, that there are no examples of the current conservative majority using this reasoning to validate a practice in a separation of powers case—only examples where the purported novelty of practice is said to reinforce questions about its constitutionality.

A threshold question is whether the asserted novelty of the two-level for-cause protection in Free Enterprise Fund and the single-headed independent agency in Seila Law was, in fact, integral to the Court’s conclusions that they were unconstitutional. If the decisions ultimately rested on the Court’s textual extrapolations and its theory of the separation of powers, then the absence of novelty might not save the FOMC (or any other agency). The Chief Justice does not give a clear answer to this question.²⁹² In Free Enterprise Fund, the direct discussion of novelty was relatively brief and came only after both a lengthy consideration of judicial precedent and some speculation as to the effects of the two-level protection on the President’s ability to take care that the laws be faithfully executed. His reference late in the opinion to then-Judge Kavanaugh’s assertion that the “lack of historical precedent” was “the most telling indication of [a] severe constitutional problem” appeared to “hover[] somewhere between rhetorical dressing and doctrine,” as Neal Katyal and Thomas Schmidt characterized it.²⁹³

By contrast, the Chief Justice’s discussion of history and novelty is a prominent part of his opinion in Seila Law. It actually precedes his structural analysis. He again quotes the “telling indication” comment and, further echoing then-Judge Kavanaugh’s opinions in the D.C. Circuit, proceeds to distinguish or dismiss the handful of historical precedents of agencies headed by a single director with for-cause removal protection that were cited by the parties and in Justice Kagan’s dissent. But, as in his earlier invocations of an anti-novelty doctrine in Free Enterprise Fund and National Federation of Independent Business v. Sebelius,²⁹⁴ he does not explain why the absence of historical precedent is problematic. Nor does he specify how, exactly, the purported novelty of the CFPB’s single-director structure fits into his conclusion that it is unconstitutional. He begins his structural discussion by saying that “[i]n addition to being a historical anomaly, the CFPB’s single-Director configuration is incompatible with our constitutional structure.”²⁹⁵ And he certainly gives no indication that a well-established practice might help save an agency structure.

In truth, there is little in the Seila Law opinion to suggest that congressional and executive practice matters to the Chief Justice, except insofar as it confirms his view of far-reaching presidential prerogatives. On the contrary, the trouble he took to narrow the conventional understanding of Humphrey’s Executor might be read to suggest that he attaches little constitutional significance to historical practice by the politically accountable branches of government.²⁹⁶ As the Chief Justice made clear in dismissing Justice Kagan’s argument that the FTC’s authority in 1935 had been quite broad, its actual authority did not matter to him.²⁹⁷ All that mattered was the characterization of the agency provided by the Humphrey’s Executor Court.²⁹⁸

One might conclude from Seila Law that novelty matters because it identifies a practice falling outside the narrow bounds of the reinterpreted Humphrey’s Executor (or Morrison, the other “exception” to Myers), but that non-novelty in itself has no validating force.²⁹⁹ The issues for Chief Justice Roberts may be limited to whether a practice runs afoul of his conception of the Myers “general rule” and, if so, whether the Court deigns to extend the two narrow exceptions created by those two cases. Indeed, the discussion of novelty may be little more than a rhetorical device to help mask what might otherwise seem a rather aggressive judicial restructuring of the government to the Court’s liking.

Still, as already noted, Chief Justice Roberts does not address the issue of historical practice head-on. And there is a single, tantalizing hint in Seila Law—albeit only in a footnote—that history might carry some significance after all. In rejecting the argument that any prior agencies are relevant precedents for the CFPB, Chief Justice Roberts references Justice Kagan’s point that “financial regulators” have historically enjoyed some insulation from the president.³⁰⁰ He responds that “even assuming financial institutions like the Second Bank and the Federal Reserve can claim a special historical status, the CFPB is in an entirely different league.”³⁰¹ He does not endorse the point, but he apparently admits of the possibility.

To supplement the limited inferences on the relevance of historical precedent that can be drawn from recent separation of powers cases, we can turn to another fairly recent case—one that offers a more extensive look at the constitutional relevance of historical practice. National Labor Relations Board v. Noel Canning³⁰² relied substantially on past practice in concluding that the Recess Appointments Clause covered vacancies that had arisen prior to a congressional recess.³⁰³ However, with the change in composition of the Court since 2014, Justice Breyer’s majority opinion is likely of limited value in predicting how history might influence the disposition of the constitutional issues raised by the FOMC’s structure and mandate.³⁰⁴ Justice Scalia’s stinging concurrence in the judgment, joined by the Chief Justice and Justices Thomas and Alito, is almost surely more relevant in projecting when and how the current Court may credit history and practice.³⁰⁵

A good portion of Justice Scalia’s opinion addressed disagreements with the majority that are not especially salient for present purposes—whether the Recess Appointments Clause is ambiguous and whether there was any textual basis for the majority’s conclusion that a three day intrasession congressional break was not a “recess.”³⁰⁶ He did, however, also spend considerable time contrasting the majority’s approach with his own high threshold for historical practice to affect constitutional interpretation:

Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision . . . . ‘But [p]ast practice does not, by itself, create power. . . . That is a necessary corollary of the principle that the political branches cannot by agreement alter the constitutional structure. Plainly, then, a self-aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court—in other words, the sort of practice on which the majority relies in this case—does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding.³⁰⁷

He went on to note, among other things, that no “[p]residential legal adviser” had opined until 1921 that intrasession recess appointments were constitutional,³⁰⁸ and that it was only after this opinion was delivered to President Harding by his Attorney General “did the flow of intra-session recess appointments start.”³⁰⁹ His observation that “[i]t is necessary to skip over the first 13 decades of our [n]ation’s history”³¹⁰ underscored his “early days of the Republic” standard. Indeed, to support his narrowly drawn characterization of when historical practice might argue in favor of its constitutionality, he invoked INS v. Chadha,³¹¹ in which “[w]e did not hesitate to hold the legislative veto unconstitutional even though Congress had enacted, and the President had signed, nearly 300 similar provisions over the course of 50 years.”³¹² The Court does not defer to accommodations between the President and Congress, because the structural features of the Constitution were “designed first and foremost not to look after the interests of the respective branches, but to ‘protec[t] individual liberty.’ ”³¹³

Justice Scalia did not explain why historical practice meeting his fairly demanding standard should receive deference from the judiciary. This omission is unfortunate, because an understanding of the rationale might help in assessing the FOMC’s historical case. Justice Breyer’s majority opinion invoked Madison’s “liquidation” theory in explaining why practice could be relevant to constitutional interpretation—that is, that the “difficulties . . . in expounding terms & phrases necessarily used in such a charter . . . might require a regular course of practice to liquidate & settle the meaning of some of them.”³¹⁴ Then-Judge Kavanaugh apparently agreed with the liquidation explanation, since he quoted this part of the Breyer opinion in his D.C. Circuit opinions on the CFPB single-director structure.³¹⁵

In his Seila Law opinion, Chief Justice Roberts does not use the term “liquidation,” but does nod in its direction by citing the famous debate on removability in the First Congress.³¹⁶ He appears, though, to be nodding toward a narrow view of liquidation, which values the non-judicial explication of ambiguous Constitutional text only when it was “contemporaneous” with the drafting of the Constitution and is thus presumed to reflect its original meaning.³¹⁷ Again, though, insofar as the Chief Justice reads that decision of the First Congress to accord with his view that the Constitution gives the President far-reaching removal power,³¹⁸ it remains unclear whether this history has independent significance or is simply a helpful gloss on his structural analysis.

Assuming that Chief Justice Roberts might grant some relevance to history that cuts against his doctrinal instincts on separation of powers issues, his comments in Seila Law on the prior practice cited by Justice Kagan and the parties appear consistent with the Scalia standard: “[T]hese isolated examples [of agencies with single heads who have for-cause removal protection] are modern and contested.”³¹⁹ While Roberts did not say that a practice had to date back to “the early days of the Republic” to be relevant, he did observe that the Office of Special Counsel, the “first enduring single-leader office,” had been created in 1978, “nearly 200 years after the Constitution was ratified.”³²⁰ He tracked the “unchallenged” component of Justice Scalia’s standard in asserting that President Carter had raised a Constitutional objection, that President Reagan had vetoed a renewal of the office on constitutional grounds, and that President Clinton had “questioned the constitutionality” of the Social Security Administration’s new single-director structure when signing the relevant legislation in 1994.³²¹

Although Chief Justice Roberts did not explicitly embrace the “early years of the Republic” norm, his recasting of Humphrey’s Executor suggests that actual congressional practice in creating the Federal Trade Commission Act in 1914 is not dispositive of anything. As noted earlier, all that matters is the characterization of an agency whose principals enjoy for-cause protection that he understands the Humphrey’s Executor Court to have validated. Since the Federal Reserve was created less than a year before the FTC, it seems increasingly unlikely that the early twentieth century lineage of an agency would in itself buy anything with the current Court.³²²

Indeed, one could argue that, for constitutional purposes, the salient characteristic of today’s Federal Reserve—its more or less exclusive, independent authority and discretion to make monetary policy—is even more recent. It did not take shape for two or more decades after passage of the Federal Reserve Act. Both directly and indirectly, Presidents and their Secretaries of the Treasury played a role under the original Federal Reserve Act. It was only in the Banking Act of 1935 that the Secretary of the Treasury and Comptroller of the Currency were removed from the Board.³²³ President Roosevelt’s roughly contemporaneous decision to take the United States off the gold standard removed what had initially been a notable, if variable, constraint on the Fed’s policy discretion.³²⁴ But even then, the Federal Reserve did not have full legal, much less practical, autonomy in setting monetary policy. Two provisions included in 1933 legislation—the Thomas Amendment to the Agricultural Adjustment Act³²⁵ and the Emergency Banking Act³²⁶—gave the President and the Treasury Department authority to make open market purchases of Treasury securities and to regulate all member banks of the Federal Reserve System. Although the Administration did not exercise either of these authorities, they “remained at hand to make the wishes of the Treasury forceful in the councils of the Federal Reserve System.”³²⁷

Assuming that congressional practice from the first half of the twentieth century is not old enough to affect the current Court’s constitutional analysis, do the Banks of the United States nonetheless ground the Fed in practice from the “earliest days of the Republic”? After all, the First Bank was incorporated on February 25, 1791,³²⁸ in the waning days of the very same First Congress whose debates over the removal of presidential appointees loomed so large in the reasoning of Chief Justice Taft in Myers v. United States³²⁹ and, by extension, Chief Justice Roberts in Seila Law. The answer to that question may depend on how broadly or narrowly the antecedent “practice” is characterized for purposes of deciding if it created a relevant precedent.

If the history is framed narrowly, then the precedents of the Banks of the United States are likely immaterial. So, for example, if the Court asks whether there is an unchallenged practice for two centuries or more of having a mixed committee composed of both government and nongovernment employees with unlimited capacity and discretion to inject fiat money into the economy, and to withdraw it in order to restore price stability, then the answer is clearly no. Both Banks of the United States were chartered directly by Congress as private entities in a way similar to the chartering of corporations by state legislatures at the time—through special acts of incorporation that sought to achieve a public purpose while setting forth many specific powers, constraints, and governance provisions.³³⁰ Those acts contained neither the mandate nor the authority to conduct monetary policy as we know it today.³³¹ Unlike the Federal Reserve, both Banks competed with state-chartered banks for lending business.³³² Unlike shares in Federal Reserve Banks, shares of the banks of the United States could be (and were) held by non-bank individuals and entities, and could be alienated more or less freely. Both banks had statutory limitations on the size of their balance sheets, in contrast to today’s Federal Reserve, which as a legal matter has no constraints on the amount of its borrowing, lending, or purchases.³³³ The Second Bank was also subject to an explicit requirement that it not refuse payment in specie (i.e., gold or silver) to any noteholder or depositor, thereby restraining its ability to create money.³³⁴

In short, while the congressional acts of incorporation of the banks did provide for a board that combined shareholder-selected and presidentially-appointed directors, in a manner that roughly foreshadowed the structure of the Federal Reserve, the authority of that board was, to borrow Chief Justice Roberts’s phrase, “in an entirely different league.”³³⁵ Finally, while the Supreme Court famously held in McCulloch v. Maryland³³⁶ that Congress could constitutionally charter a banking corporation, the Court gave no indication that it was endorsing the delegation of monetary policy to any actors, governmental or nongovernmental. Indeed, the Court assumed that the purpose of the Second Bank of the United States was to facilitate the “fiscal operations” of the government.³³⁷

On the other hand, a broader—but, as a factual matter, equally accurate—characterization of the history could readily lend relevance to the legacy of the Banks of the United States in applying separation of powers doctrines as they are remade by the current Court. Starting less than two years after the country began operating under the Constitution, the objective of ensuring a stable, national currency has periodically led the political branches to create institutions to pursue that objective with a significant measure of operational autonomy from those same political branches. In part to reinforce this autonomy, these institutions have always been public/private hybrids, combining certain government features with contributions of private capital and with a governance structure that includes individuals who are not employees of the government.

When the Banks of the United States were incorporated in 1791 and 1816, respectively, there was no conception of monetary policy as we think of it today to be found anywhere in the world.³³⁸ But, as has been regularly noted by economic historians, both Banks engaged in activities to expand or contract the amount of credit being extended in the economy. With the government’s deposits and the Banks’ own capital, they were the dominant financial actor in the country. Like any bank, they could, and did, increase the amount of credit in the economy through their own lending. They also could, and sometimes did, exercise restraint in the interests of a more stable economy by declining to extend more credit, even where profitable opportunities may have been available.³³⁹ In a rudimentary way they also “regulated” credit creation by the growing number of private, state-chartered banks. This they accomplished not by means of legally binding rules, but by either presenting the notes of those banks with a demand for payment in specie (a credit constraining activity) or by forbearing from doing so, and thereby allowing higher levels of credit in the economy.³⁴⁰ By statute, both Banks of the United States were granted the critical privilege of having their bills and notes declared legal tender for “all payments to the United States.”³⁴¹ This provision enhanced the money status of the Banks’ notes across the country by sparing them the discounting to which the notes of state banks were frequently subject, especially in locales far removed from the banks.³⁴² Finally, it is worth noting the contemporary references to the Banks as “public” banks and the fact that the basis for Chief Justice Marshall’s opinion in McCulloch was that Congress had created the Second Bank as a “necessary and proper” adjunct to the exercise of its governmental powers.³⁴³

The governance of both Banks was even more weighted to the private side than the original Federal Reserve, and certainly than today’s Federal Reserve. In the First Bank, the twenty-five directors were elected annually by a plurality of shareholders, with no more than three-quarters eligible for re-election the following year. The U.S. government had the right to,³⁴⁴ and did, acquire twenty percent of the ten million dollars in stock that was set by statute as the capital ceiling for the Bank. With the reduced weighting of votes for owners of larger numbers of shares required by the Act of Incorporation,³⁴⁵ the government would not have been able to dominate formal governance of the Bank in any case. However, the government waived its voting rights,³⁴⁶ thereby ceding any formal governance role altogether (though economic historians have argued that the influence of the Secretary of the Treasury on the Bank’s operations was nonetheless significant).³⁴⁷ The Act of Incorporation of the Second Bank required, rather than simply authorized, the government to acquire twenty percent of the shares.³⁴⁸ It also provided for the President to appoint five of the twenty-five directors annually, with the advice and consent of the Senate.³⁴⁹

In short, the legacy of the Banks of the United States can be characterized as establishing an American practice of using a public-private hybrid financial institution to manage the monetary affairs of the country, in accordance with the needs of the day. If the Court were to choose this relatively broad framing of the history of the Banks, it would probably have already decided against finding the FOMC unconstitutional. Still, it is worth asking how historical “practice” as so understood measures up against the Scalia formulation in Noel Canning.

Scalia’s limitation of history’s value to cases involving an “ambiguous constitutional provision”³⁵⁰ does not seem especially problematic here. There is no constitutional text defining inferior officers or addressing delegations of congressional authority or granting the President the power to remove officials. All are judge—or, more accurately, Justice—made doctrines whose specifics can be refined as the Justices choose, perhaps in part because of the significance of history. The Appointments Clause, of course, is a part of the Constitution. But that text presents no difficulties for the FOMC so long as the Reserve Bank presidents are considered inferior officers.

The requirement that the practice have been “open” seems less applicable to statutory enactments, which are by definition publicly known. Nor does a requirement that a practice be “widespread” apply to legislation in the same way that actions by the Executive such as recess appointments do.³⁵¹ Once legislation is passed, it is law. But might the Court translate “widespread” from the context of Executive practice into a requirement that a legislated practice have been in effect more or less continuously since its implementation in the early years of the Republic? The charters of both Banks were allowed to lapse, one by congressional inaction and the other by presidential veto. There was an interval of three quarters of a century between the demise of the Second Bank in 1836 and the passage of the Federal Reserve Act in 1913.

Moreover, neither the Banks nor the FOMC have been “unchallenged.” The controversy over the constitutionality of the First Bank gave rise to the famous debate among the Founders, pitting Madison and Jefferson against Hamilton as all three vied to influence President Washington’s decision whether to veto the Bank bill. Controversy over the Second Bank produced one of the landmarks of constitutional history. Later, in his message vetoing the Second Bank, President Jackson argued it was unconstitutional not only by indirectly relitigating the Court’s decision in McCulloch,³⁵² but also by asserting that the Congress had unconstitutionally delegated its own authority to the Bank by granting it an effective monopoly.³⁵³ As discussed earlier, the FOMC itself has been challenged in litigation by legislators.

Even as some of Justice Scalia’s requirements are not germane to legislation, so there may be qualifications on the significance of historical practice that apply only to legislation. Most relevant here is that the “monetary policy” function of the Banks of the United States, as described earlier, was not authorized in either Bank’s Act of incorporation. It was the heft and reach of the Banks that enabled them to permit or restrain credit growth by state banks. While Congress had enabled this rudimentary credit regulation practice through providing for a large capitalization and by allowing branching, it had neither asked nor authorized the Banks to fulfill that function. Accordingly, one might argue, whatever monetary policy power the Banks might have possessed de facto was of no consequence for deciding constitutional practice, which is determined by the formal pronouncements and actions of the three branches of government established by the Constitution.

There are, in turn, rejoinders to these qualifications on the strong legacy account: As to a reformulation of “widespread” as “continuous,” James Madison himself eventually came to believe that the creation and existence of the First Bank had liquidated the question of its constitutionality. Extending this acknowledgement, one might argue that once the constitutionality of a governance device or delegation is established through practice, subsequent congressional choices for other means of achieving policy aims do not remove the precedential value of that practice. Congress is free to return to it as circumstances change. Similarly, with respect to the “unchallenged” point, it would be odd if constitutional objections by political actors themselves fatally undermine a piece of legislation, especially one that the Court itself has found constitutional. Under the logic by which standing was denied to some of the congressional challengers in the cases discussed earlier, their objections do not carry any constitutional weight beyond that which would apply in a private party’s challenge. Finally, while neither Act of incorporation of the Banks called upon them to regulate the credit practices of state banks, the issue of ensuring sound money—in part through exercising control over state bank note issuance—was central to the debate over (and support for) the Second Bank.³⁵⁴

2. The Federal Reserve as Anomalous

A second route by which the Court might find the FOMC exceptional is to declare it so. Peculiar as that might seem as the stated basis for a judicial conclusion, consider then-Judge Kavanaugh’s possibly revealing aside in his dissent from the en banc decision of the D.C. Circuit in PHH Corporation v. Consumer Financial Protection Bureau.³⁵⁵ Responding to the CFPB’s argument that the Chair of the Federal Reserve is not removable except for cause, Judge Kavanaugh first correctly noted that the matter is not at all clear from the language of the Federal Reserve Act.³⁵⁶ He then went on to say that, even if the CFPB were correct, that attribute of the Federal Reserve Board Chair was not pertinent to a decision on the CFPB:

But even assuming the CFPB’s assertion is correct, such an exception would simply reflect the unique function of the Federal Reserve Board with respect to monetary policy. The Chair of the Federal Reserve Board would be akin to what Justice Breyer in Noel Canning referred to as an historical anomaly—here, an anomaly due to the Federal Reserve’s special functions in setting monetary policy and stabilizing the financial markets.³⁵⁷

So, the Federal Reserve may be an “anomaly.”³⁵⁸ Given that this comment was in a footnote, it is perhaps not surprising that Judge Kavanaugh did not explain it any further. It seems unlikely that, in upholding the constitutionality of the FOMC, the Court would simply declare it anomalous without further explanation. But his remark is a good starting point for projecting what this escape route might look like.

To begin with, of course, the fact that an agency feature is an anomaly does not in itself validate that feature. A law authorizing the Senate Finance Committee to choose the Secretary of the Treasury without the involvement of the President or the rest of the Senate would certainly be anomalous. It would equally certainly be held unconstitutional. So what is it about the Federal Reserve that might make its anomalous status acceptable?

Judge Kavanagh did refer to the Federal Reserve, or at least the possible status of its chair, as a “historical anomaly.”³⁵⁹ It is not altogether clear if Judge Kavanaugh meant that the Federal Reserve is, historically, an anomaly or that it is an anomaly because of its history—in the sense of longevity or pedigree. If the answer is that banking and credit played an unusually prominent role in constitutional and policy debates in the early days of the Constitution, then we revert to the analysis in the preceding section. But because he says that the Federal Reserve is an anomaly due to its “special functions in setting monetary policy and stabilizing the financial markets,”³⁶⁰ he may be implying that something about those functions could justify agency features that would be struck down elsewhere.

One possibility is that Judge Kavanaugh, and perhaps other conservative colleagues, simply regard the Federal Reserve as too important to mess with, as suggested earlier. Whatever its utility as a realist explanation of why the Court may forbear from finding the FOMC unconstitutional, however, the perceived importance of the Federal Reserve is not an argument carrying much doctrinal weight. A rationale more easily grounded in the Court’s conservative doctrines has already cropped up several times in my discussion of recent separation of powers cases: the FOMC does not regulate any private actors. Judge Kavanaugh began his dissent with the same appeal to liberty that we saw in Justice Gorsuch’s Gundy dissent.³⁶¹ That same invocation of liberty appears in Justice Scalia’s Noel Canning concurrence (arguing that separation of powers doctrine is not principally a matter of protecting the prerogatives of the three branches of government, but of guarding liberty).³⁶² It is also echoed, albeit with less rhetorical flourish, in some elements of standing doctrine.

If the Court opts to maintain a fairly restrictive standing doctrine for anyone not directly regulated by an agency, perhaps it would extend the rationale for that position to its treatment of a removal, Appointments Clause, or delegation issue that unexpectedly reached the merits. That is, the Chief Justice’s emphasis on accountability and liberty interests in finding removal restrictions unconstitutional in Free Enterprise Fund and Seila Law, and in his somewhat ambiguous Appointments Clause opinion in Arthrex, might lead the Court to give Congress more constitutional latitude in structuring agencies where those interests are not at stake—at least as the Court seems to understand them. Similarly, as noted in Part II, Justice Gorsuch’s suggested non-delegation doctrine appears more permissive where Congress does not empower an agency to “regulate” or “govern” private conduct.³⁶³

However convincing this approach might be to the Court in considering the FOMC as a monetary policy body, it does not apply to the Board in its non-monetary policy roles. The Board has far-reaching regulatory powers over banking organizations and certain financial market utilities,³⁶⁴ which as an economic matter are much more significant than those of the CFPB. The Board alone exercises these powers, without the participation of the Reserve Bank presidents. Were Seila Law to prove a forerunner to a broader invalidation of traditional multi-member independent commissions, the non-regulator logic would hardly save the Board and, by extension, its independence as the more important of the two groups that constitute the FOMC. Indeed, insofar as the Chief Justice’s cryptic reference in Seila Law to the Second Bank of the United States and the Federal Reserve contrasted those institutions with the CFPB,³⁶⁵ he may have been referring only to their monetary policy and credit extension roles.³⁶⁶ His description of the CFPB—“a mini legislature, prosecutor, and court, responsible for creating substantive rules for a wide swath of industries, prosecuting violations, and levying knee-buckling penalties against private citizens,” mostly describes non-monetary policy roles of the Board as well.³⁶⁷

There is a basis for distinguishing the Board from the CFPB and most other agencies. The Board’s regulatory authority over banking organizations is in some sense an extension of its monetary policy authority. If the Court accepts a rationale for the exercise of monetary policy independent of the President, then there may be a derivative rationale for the independence of the Board’s regulatory functions. Moreover, the authority to pay interest on bank reserves held at the Federal Reserve, which has become a principal tool of monetary policy, is lodged solely in the Board.³⁶⁸ A greatly simplified explanation of how banks “create” money may be useful for understanding this argument.

When, as is usually the case, private banks extend loans to households and businesses by crediting the transaction accounts of those borrowers, they are creating money—“inside money” as it is described in economics.³⁶⁹ The borrowers receive in their checking accounts the amount of the loans, which are now available to spend. Meanwhile, no other party (for example, the bank or any of its depositors) has seen a reduction in the amount available for immediate expenditure. Hence the aggregate supply of money in the economy has increased. However, the banks know that the borrowers will spend some or all of their loans, and that other depositors will in the normal course of business be drawing funds as well. So the banks’ money creation function is at least somewhat constrained by its need to maintain sufficient reserves to meet the demands for payment as they are presented in the form of checks and electronic transfer instructions by account holders.³⁷⁰

Traditionally, banks have been regarded as the “transmission belt” for monetary policy. The Federal Reserve used open market operations to increase or decrease the amount of reserves in the banking system by, respectively, buying or selling government securities. The variation in available reserves, in turn, affected the amount and pricing of credit that banks could make available. Up until very recently, the Federal Reserve also imposed minimum reserve requirements on banks to help constrain the growth of the money supply.³⁷¹ The Federal Reserve’s response to the Global Financial Crisis of 2007–2009 included a massive increase in the amount of reserves, and thus significantly reduced the efficacy of open market operations in influencing the amount and pricing of bank lending.³⁷² Still, the now preferred monetary policy tool of paying interest on reserve balances held by banks at the Federal Reserve has not changed the basic situation: the Federal Reserve uses its reserve policies to affect lending—and thus the creation of money—by banks.³⁷³

Through its discount window lending programs, the Federal Reserve makes liquidity available to solvent banks unable to obtain funding from depositors or other private sources.³⁷⁴ The provision of liquidity to banks under stress was a principal motivation for the creation of the Federal Reserve—this is what was meant by the phrase “to furnish an elastic currency” in the purpose clause of the original Federal Reserve Act.³⁷⁵ But this access to liquidity is tied to the far-reaching prudential regulatory authority of the Board. That is, only financial institutions that have been subject to regulations designed to keep them responsibly supplying credit to businesses and households are entitled to the favorable terms of the discount window.³⁷⁶

More generally, this prudential authority is important to ensure the stability of the banking system, because problems such as bank runs will disrupt the flow of sustainable credit and thus the aims of monetary policy. The purpose clause of the original Federal Reserve Act included the aim of “establish[ing] a more effective supervision of banking in the United States.”³⁷⁷ The Act imposed detailed reserve requirements for member banks,³⁷⁸ which the Board was authorized to temporarily suspend.³⁷⁹ The Board was empowered to examine “the accounts, books and affairs” of each member bank.³⁸⁰ Any state bank that became a member was to be subject to the various statutory requirements already imposed on national banks “and to such rules and regulations as the Federal Reserve Board may, in pursuance thereof, prescribe.”³⁸¹

The prudential authority of the Federal Reserve granted in the original Act was, in effect, a price of membership for banks wishing to benefit from the Federal Reserve’s exercise of its “elastic currency” authority (though any bank wishing to acquire or maintain a national banking charter was required to be a member of the System). In the succeeding decades, both prudential regulation and access to lender-of-last-resort facilities ceased to be a choice for depository institutions. All state-chartered banks became subject to the reserve requirements promulgated by the Board and also gained access to the discount window.³⁸² Since passage of the Bank Holding Company Act in 1956,³⁸³ the Board regulates and supervises at a consolidated level all holding companies that own insured depository institutions. In the wake of the GFC, Congress gave the Board additional authority, and instructions, to regulate large banking organizations in order to promote financial stability.³⁸⁴

In short, one could plausibly argue that the function of the Board in regulating private banking organizations is inextricably related to the monetary policy function of the entire FOMC. The banks create money. The Board’s prudential regulation of the banks is thus an indirect regulation of the supply of money and credit. The fact that the Board also provides advantages to regulated banks (for example, interest on reserves and discount window access) further demonstrates that monetary policy, liquidity assistance, and bank regulation are all components of the same enterprise. To subject the Board to discretionary presidential removal would, accordingly, compromise monetary policy independence.

Whatever its policy and economic merits, this argument might well vex the conservative Justices, who may be inclined toward the presumed view of many bankers that prudential regulation is just as much an intrusion on their “liberty” as EPA regulation is on the liberty of chemical plants. There are also some complications internal to the argument itself. For one thing, prudential regulatory authority is shared among several federal agencies. While the Board’s authority over bank holding companies gives it, as a practical matter, regulatory power over the vast majority of U.S. banking assets, a small national or state non-member bank would be regulated only by the Office of the Comptroller of the Currency or Federal Deposit Insurance Corporation, respectively. So the Court might ask whether recognition of a special status for the Board under evolving separation of powers doctrines would need to extend to those other banking agencies. Second, the sustained and substantial growth of non-bank lending has led to a situation in which many institutions outside the prudential regulatory perimeter extend credit, and in some cases effectively create “money” through their lending activities.³⁸⁵ The Board’s regulatory authority is not coincident with the range of private activities that implicate the aims of monetary policy by affecting credit growth and financial stability.

IV. CONSTITUTIONAL CHOICES

To recap what we have seen thus far: The logic of opinions of conservative Justices in recent separation of powers cases suggests there may be one or more constitutional infirmities in the structure and mandate of the Federal Reserve. At the same time, there are various ways by which the Court could nonetheless avoid a decision that such an infirmity does indeed exist. The working assumption in this paper is that the Court would likely opt for an avoidance route. This last Part details the implications for the conservatives’ separation of powers jurisprudence of each avoidance route, as well as the less likely alternative of deciding that the structure or monetary policy mandate of the Federal Reserve is in action unconstitutional.

A. Doctrinal Restraint

As should be clear by now, it would take further evolution in one or more existing separation of powers doctrines to place the structure or mandate of the Federal Reserve at significant risk. If none but a very unlikely plaintiff has standing to challenge the FOMC, then the relatively strong argument on the status of Reserve Bank presidents and a potential argument on non-delegation grounds will not reach the merits. And if the Court forbears from holding traditional multimember independent agencies unconstitutional, then the standing readily available to any regulated banking organization cannot undo the removal protection of the Board. The independence of the Federal Reserve would be preserved.

1. Standing

Long before any of the current Justices were on the Court, the D.C. Circuit applied standing doctrine to preclude challenges to the FOMC from reaching the merits, as recounted in Part III. Thus, even as the current Justices have further restricted standing in other contexts,³⁸⁶ they need not break new doctrinal ground to avoid deciding constitutional issues related to the FOMC. However, in most other contexts, regulated entities will have standing to challenge an agency’s constitutionality when regulatory beneficiaries and interested members of the public do not. Here it is very possible that no one has standing to launch such a challenge, absent the unlikely scenario of the President attempting to remove a Reserve Bank president.³⁸⁷ With the concept of a unitary executive, and the associated norm of presidential accountability that is integral to the Chief Justice’s justification of recent separation of powers decisions, it might seem odd for the most powerful independent agency in the U.S. government to be insulated from presidential control solely because no likely plaintiff has standing.

The Court might try to reconcile these two doctrinal strands by embracing the position the D.C. Circuit inferred from that single sentence in Buckley—that is, by holding special separation of powers standing is limited to stating “a regulated entity with sufficiently concrete interests.”³⁸⁸ The justification for choosing traditional, restrictive standing doctrine over more recent concerns with political accountability of independent agencies is suggested by the argument we have already seen in the removal cases—that separation of powers principles are important only, or at least principally, to protect the “liberty” interests of regulated companies. Here, though, there is some latent tension between statements in the Seila Law and Collins majority opinions.

In Seila Law, Chief Justice Roberts had dismissed the argument that the single-headed Social Security Administration was a precedent for the CFPB by, among other things, noting that “unlike the CFPB, the SSA lacks the authority to bring enforcement actions against private parties. Its role is largely limited to adjudicating claims for Social Security benefits.”³⁸⁹ As with so much in in that opinion, this point echoed then-Judge Kavanaugh’s opinions in the earlier CFPB case, in which he had distinguished the Commissioner of Social Security’s for-cause removal protection because that official lacked the unilateral authority to bring enforcement actions against private citizens, “the core of the executive power and the primary threat to individual liberty.”³⁹⁰

But in Collins, Justice Alito—who himself is certainly not ill-disposed to the “liberty” argument—observed that the FHFA “could have an immediate impact on millions of private individuals and the economy at large,” even though it does not directly regulate any private individuals and businesses, as the CFPB does.³⁹¹ Because of the unusual circumstances of that case, the criterion of sheer economic impact was not essential to his conclusion on removability of the FHFA director. Nonetheless, it may fit more comfortably with the formalist notion reflected in the Chief Justice’s opinions that the Constitution requires all exercises of executive power to be subject to some form of direct presidential oversight. Indeed, it was relied on in the Office of Legal Counsel opinion that, despite his statutory for-cause protection, the Commissioner of Social Security could be removed by the President.³⁹²

There is, of course, no necessary congruence between standing doctrine and the Article II doctrines at issue in these recent cases. Still, a standing decision today would be made against the backdrop of a very different separation of powers jurisprudence from that which prevailed four decades ago when the D.C. Circuit ruled on the challenges to the FOMC. A denial of standing to the hypothetical bondholder in Part II would have the substantive effect of limiting the Court’s Appointments Clause and removal doctrines.

Such a decision would align with the special solicitousness of the current Court for regulated entities, as opposed to beneficiaries of regulation. In that sense it would reflect the Court’s ideological leanings. As a practical matter, it would be of much greater importance for the Federal Reserve, precisely because most other statutorily independent agencies do regulate private actors. But it would not require a break with precedent. Furthermore, in the specific context of the FOMC, the de facto substantive character of restrictive standing would not obviously favor either end of the political spectrum. One can readily imagine a more permissive standing doctrine producing challenges from the left seeking more presidential control over inflation-fighting central bankers, and from the right seeking to remove the discretion of the FOMC to balance employment growth and price stability in making monetary policy decisions.

2. Independent Agencies

Unlike a continuation of restrictive standing doctrine, the Court’s reaffirmation of the traditional understanding of Humphrey’s Executor would be received as very significant. Against the experience of the last decade and the changes in the Court’s composition, such a development may seem unlikely. A declaration that today’s multimember independent agencies violate Article II would permit the Court’s conservatives to pursue their goal of a unitary executive, but to do so through decisions that generally will have limited immediate impact, and thus elicit less popular blowback. The day after the Court’s decision, the agencies would function as they did before, except that they would labor under the tacit—and at times perhaps not so tacit—threat of removal if they do not follow the President’s wishes in their rule-making, programmatic, enforcement, and adjudicatory activities.

For the Court’s conservatives to pass up this opportunity, the Chief Justice and at least one other Justice would need to see good reasons not to apply the logic in parts of Seila Law in deciding a head-on challenge to a traditional independent agency. What reason or combination of reasons might they find convincing? A premonition that condemning those agencies to Executive subservience might indeed produce a significant public reaction, despite the absence of immediate policy change? Second thoughts about undoing nearly a century and a half of settled practice, and substituting their own views for those of so many Congresses and Presidents? A bit of uneasiness at the prospect of the jurisprudential gymnastics that might be needed to save the Board, and perhaps a few other favored agencies, for which a finding of unconstitutionality would produce significant economic or political repercussions?

Whatever its possible motivation, a decision reaffirming Humphrey’s Executor would signal, if not quite a cease fire, then at least a pause on one front of the Court’s campaign against the administrative state. It might be accompanied by an escalation on the other front, resulting in more “major questions” limitations on agency authority and perhaps a straightforward application of the non-delegation doctrine to strike down part of an agency’s statutory authority. But, at least with respect to the structure of government, it would be an accommodation to the transformation that took place in the first third of the twentieth century. In that sense, it would at least somewhat echo the accommodation by the Court’s conservatives in the 1930s.

This stance might well be interpreted in the way Professors Randy E. Barnett and Larry Solum interpreted the first stirrings of the Court’s anti-novelty sentiments—as an embrace of a “this far and no further” approach to evaluating congressional experimentation with agency independence.³⁹³ It may limit the range of options to those exercised by Congress through the 1930s but would pull up short of a complete imposition of the Court’s favored organization of government.

B. Federal Reserve as Exceptional

Were the Court unexpectedly to liberalize standing or open the door to challenging traditional multi-member agencies, it would need to address the merits. In that event, as discussed in Part III, it might distinguish the Federal Reserve from other agencies in applying its evolving separation of powers doctrines. This section considers the implications of a decision upholding the mandate and structure of the Federal Reserve.

1. History

The discussion of the history-based avoidance strategy in Part III explained how the Court can effectively determine the outcome of its analysis by the way it defines the practice for which historical validation is sought. By defining the practice in general terms—such as seeking a stable national currency through creating institutions with significant operational autonomy—the Court could vindicate the structure and mandate of the Federal Reserve. By defining it more narrowly—a mixed committee composed of both government and nongovernment employees with unlimited capacity and discretion to inject fiat money into the economy, and to withdraw it in order to restore price stability—the eighteenth and nineteenth century experience with the Banks of the United States becomes irrelevant. In fact, that narrow characterization of the Federal Reserve’s structure and mandate is not even a description of the original Federal Reserve in 1914 and arguably does not become so for decades following passage of the Federal Reserve Act.³⁹⁴

Faced with a decision on the constitutional merits, the Court might well opt for the broader characterization of the “practice” that was arguably liquidated by the creation of the Banks of the United States. But doing so, while producing the sensible outcome in that case, would raise a different question: Might the congressional practice not be fairly characterized even more broadly—as insulating additional recipients of extensive delegated statutory authority from full control by the President? If the two Banks provide precedent for today’s Federal Reserve because, despite all their differences, they were congressional creations with substantial autonomy, why do they not also serve as precedent for other such institutions, including today’s agencies such as the FTC and FCC? In creating those agencies, Congress endorsed the proposition that they too needed some degree of insulation from presidential politics and favoritism.

Of course, the early Congresses did not create independent regulatory commissions; they successively chartered two independent Banks that served public functions, including an early form of what today is called monetary policy. So perhaps the relevant precedent is limited to that substantive area—“monetary policy and stabilizing the financial markets” as then-Judge Kavanaugh expressed it.³⁹⁵ Again, though, why? It would be one thing if, during that same era, Congress had legislated on other economic issues and uniformly delegated regulatory functions to entities wholly subservient to the President. But that is not what happened. The forms of economic regulation pioneered by Congress beginning in the late nineteenth century just did not exist in 1789 or 1816.³⁹⁶ There was no railroad system to be regulated, no awareness of a radio spectrum to be allocated, no internal combustion engine to pollute the air and overheat the planet. There were not even monopolies, except perhaps those created by the states.³⁹⁷

The history of the regulation of money, and the various institutional arrangements created by Congress to perform this task, is indeed a complicated one. One can discern broad trends, especially since the founding of the Federal Reserve, whose authority has become decidedly more governmental and mostly more independent over time. The very complexity of that history—from Alexander Hamilton’s proposals, to the Banks, to the experiment with congressionally created currency during the Civil War, to the formation of the Federal Reserve, to the removal of the gold standard, to the New Deal overhaul of the Fed’s structure, to the addition of the dual mandate—suggests how reactionary it would be for the Supreme Court to override the decisions Congress and the President have made. Those decisions, as included in the Federal Reserve Act and updated most recently in 2010, have been made as prevailing economic and political concerns changed. For the Court to impose its view on the basis of a separation of powers theory nowhere stated in the text of the Constitution would seem the height of judicial imperialism.

As compelling a reason as this complex story of money regulation is for deferring to the political branches, the position of the Federal Reserve relative to other agencies is an accident of history. Even in a predominantly agricultural economy, the development of a reliable and uniform currency was an important issue for the fledgling national government. The only reason Congress could grant a measure of autonomy to money-related institutions and not to the other agencies we know today was that those other problems associated with the economy were either unknown or of such trivial importance in 1800 as not to be worth Congress’s time. So, yes, the pedigree of the Federal Reserve is unusual, if not unique. But that distinction from other agencies is not necessarily a good reason to parse the scope of congressional authority under the Necessary and Proper Clause in a qualitatively different way.

Noel Canning involved the interpretation of a discrete constitutional text—the Recess Appointments Clause. Both Justice Breyer’s opinion for the majority and Justice Scalia’s concurrence in the result were focused on the history of a well-defined practice that was recognized as such from the outset by the Presidents who made the appointments and by the Congresses that acquiesced in them (or did not, depending on your perspective). The Congresses that chartered the Banks of the United States had no idea that their actions could be relevant to the constitutionality of an independent commission to allocate the radio spectrum. The demarcation of the precedent—or liquidation, for those who prefer the Madisonian term—that was created by those Congresses is thus necessarily a task for those participating in today’s debates. As such, whether the Court defines the practice in need of historical precedent narrowly, somewhat more broadly, or very broadly is itself a policy choice.

2. Nature of Central Banking

In discussing removability doctrine, Justice Kavanaugh characterized the Federal Reserve as anomalous because the Fed has “special functions in setting monetary policy and stabilizing the financial markets.”³⁹⁸ Well, yes, and the FCC has special functions in regulating access to the airwaves. The FTC has special functions in protecting consumers. The Securities and Exchange Commission has special functions in protecting investors and assuring the smooth operation of capital markets. And, in fact, the CFPB itself has the “special functions” of ensuring that consumers understand financial commitments and protecting them from unscrupulous lenders.

So why might the Federal Reserve’s “special functions” be more special than those of these other agencies, so as to justify agency features that would be struck down elsewhere? Here, the fact that the FOMC does not regulate any private actors, which we have seen multiple times as a possible distinction, does not really fit with the concept of “special functions.” Additionally, of course, the Board does regulate private actors. Some academics who favor more independence for the Federal Reserve than for other agencies offer what has become the standard argument for central bank independence—that a central bank subject to political control will be pushed toward accommodative monetary policy when helpful to the incumbent Administration’s electoral or other political needs, regardless of possible medium term effects in the form of high inflation.³⁹⁹ That is a good argument, to be sure, though it leaves open the question of just how to strike the balance between operational independence and accountability in a democracy.

Whatever the policy merits of this argument, however, it is not grounded in the Constitution. There is nothing there stating, or even implying, a different separation of powers principle for central banking. On the contrary, the constitutional controversy over the two Banks of the United States, those early avatars of a central bank, was resolved in a Supreme Court decision that rested on the Necessary and Proper Clause, a part of the Constitution that today’s conservative majority often glosses over. There was no reason to think the congressional discretion derived from that Clause applied any less to its implementation of any other explicit Article I power. Nor does anything in Article II suggest otherwise. There is no textual basis to conclude, for example, that Congress may grant independence to the Federal Reserve because of the importance of keeping near-term politics out of monetary policy, but that it may not grant independence to the FCC if it believes that near-term politics should be kept out of allocating broadcast licenses.

In her Seila Law dissent, Justice Kagan noted that, up until recently, the Court has nearly always left issues of agency structure and relative independence to the Congress.⁴⁰⁰ She made that point in the context of arguing that the Court should similarly have refrained from finding a separation of powers problem in the single-headed structure of the CFPB. As Sunstein and Vermeule argue, in doing otherwise and striking down the for-cause protection of the Director, the Seila Law majority opinion reflected a set of ideas and preferences about government that cannot be derived from the originalist approach to which the conservative justices say they subscribe. Were the Court later to exempt the structure or mandate of the Federal Reserve from the doctrines it has been crafting, its policy preferences would be more obviously on display. While that would be true of any decision giving the Fed special treatment, one that carved out the Board—despite its extensive regulatory powers—from an otherwise applicable prohibition on traditional multimember independent agencies would highlight the Court’s policy preferences in especially sharp relief. In finding historical precedent for allowing, for example, the Federal Reserve but not the FCC to be insulated from presidential control, the Court will be picking favorites from among the creations of Congress.

C. Finding of Unconstitutionality

Although my expectation is that at least two of the Court’s conservatives would refrain from finding the structure or mandate of the Federal Reserve to be unconstitutional, one cannot have full confidence in that assumption. Given the scope of some of its recent decisions and the limited regard of at least some Justices for stare decisis, one cannot rule out entirely such a finding. To the degree that the non-disruptive approach described above was attributable to Chief Justice Roberts’s status as the swing vote on the Court prior to Justice Ginsburg’s death, rather than to congruent views of the other conservative Justices, it is obviously less secure. The divergence between the approaches of incrementalism and sweeping change was on full view in the Court’s decision in Dobbs v. Jackson⁴⁰¹ overruling Roe v. Wade.⁴⁰² So too, the possibility of an escalation of the offensive against the administrative state has likely increased. Accordingly, it is worth noting the implications of a negative outcome for the Federal Reserve.

The implications for the Court’s separation of powers doctrine would vary depending on the specific basis for a ruling of unconstitutionality. They would be least significant if the ruling was based on the Appointments Clause issue with Reserve Bank presidents. Even if the ruling disrupted the economy,⁴⁰³ the Court could craft an opinion with few implications for the rest of the government. The circumstance of nongovernmental employees sitting on a powerful policymaking committee is unique to the Federal Reserve. While the decision might have an impact on policy roles for government corporations, as in the Amtrak case, it would have little relevance for traditional multi-member independent regulatory agencies. Indeed, the most consequential part of this hypothesized decision might be the expansion of the special standing rules for separation of powers cases that might be necessary in order to reach the merits.

On the other hand, a decision that the mandate of the FOMC or the for-cause removal protection of the Board was an unconstitutional delegation would have broad legal, as well as economic, repercussions. It would effectively signal that there were no limits to the Court’s redesigning of the federal government in accordance with its own views of the best relationship among the branches.

A finding that the Fed’s dual mandate for monetary policy was an unconstitutional delegation would either follow or presage the invalidation of a host of statutory authorities—not just of independent agencies, but probably of agencies within the Administration as well. Any delegation that requires an agency to balance different policy aims could be at risk. In addition, the Court would be faced with the remedial dilemma of either effectively terminating the FOMC or rewriting the Federal Reserve Act. The former option would produce economic chaos. The latter is certainly possible. As discussed in Part II, the Court might elevate price stability to a single mandate, requiring no balancing of inflation against growth. In that event, the Court would have overtly adopted the policy preference of some economic conservatives, thereby reinforcing suspicions that the Court has become an essentially political institution.⁴⁰⁴

A decision holding that the Board cannot constitutionally be given for-cause removal protection would, again, either follow or presage similar decisions pertaining to other agencies. The Court would have negated well over a century of practice and realized its vision of a unitary executive, eliminating at least the rulemaking functions of independent agencies and perhaps their adjudicatory and programmatic functions as well. As already seen in the cases of the CFPB and FHFA, the impact on most agencies might not be immediately noticeable in policy terms. One would expect, though, that agency principals whose policies were disagreeable to the current President would eventually be removed. Their replacements would presumably be of one mind (the Administration’s) and significant policy changes could ensue. This impact would be even greater if the Court simultaneously struck down partisan balance requirements as a further infringement on unitary executive authority. The result, as Professors Cass R. Sunstein and Adrian Vermeule put it well, would be a “Madisonian nightmare”—a “discretion-wielding, immensely powerful set of administrative authorities concentrated in a single person.”⁴⁰⁵

CONCLUSION

Some of the most important opinions authored by Chief Justice Roberts disclaim any intention to set forth rules that could be applied in future cases. Of course, it is nothing new for important Supreme Court cases to raise more questions than they answer. But this result is often the product of opinions whose reasoning is tied closely to the facts of the case, as to which competing principles or values are explicitly balanced. The uncertainty about the implications of those decisions for future cases arises because it is hard to predict how the Court will balance these principles and values in different factual circumstances.

Chief Justice Roberts’s opinions are different. They often articulate broad principles that do not appear actually or potentially offset by other principles of equal importance to the Court. Thus, the peculiar feel of cases like Seila Law and Arthrex, whose sweeping logic can readily be understood to threaten many other agency arrangements established by statute, but whose conclusions rather unpersuasively state that the reasoning is confined to specifics of the case.⁴⁰⁶ We can only guess as to the reasons for this approach. Perhaps the Chief Justice is trying to move the Court’s doctrine forward in a politically less provocative fashion, while still getting his more uncompromising colleagues to sign on to his opinions. Perhaps he hopes to recapture some legitimacy for the Court by pulling up short of full realization of those controversial principles in future cases. Perhaps he himself does not know how far he is willing to extend the doctrines.

Precisely because the Chief Justice’s principles can capture so much more than the facts of the cases that expressed them, their potential reach can be at least generally extrapolated. In this Article I have used the Federal Reserve to explore the limits of those principles, taking into account other relevant doctrines in opinions written or joined by Justices in the Court’s conservative majority. As a practical matter, a challenge to the constitutionality of the mandate or structure of the FOMC may never be decided on the merits. Yet, even if that remains the situation, working through the implications of the conservative majority’s evolving doctrines is valuable heuristically.

This exercise has revealed the choices from which the Court may need to select in applying its new separation of powers doctrines over time: One is to confine the principles already embraced through introduction of additional, moderating principles. A second is to apply doggedly the logic of those principles by invalidating congressional grants of authority and independence for many agencies. A third is to fashion ad hoc arguments that limit the reach of the new doctrines in particular cases. The first would, in essence, be a welcome retreat from the Court’s campaign against the administrative state. The second would lay bare a judicial appropriation of power from the other two branches of government that might (or might not) produce a destabilizing political reaction. The third would rest not on recognizable judicial standards but on the Court’s own preferences for certain agencies and functions of the U.S. government over others.

97 S. Cal. L. Rev. 1

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Daniel K. Tarullo*

* Nomura Professor of International Financial Regulatory Practice, Harvard Law School.

The Court’s Morality Play: The Punishment Lens, Sex, and Abortion

March 2024March 2024June Carbone* & Naomi Cahn†

This Article uncovers the hidden framework for the Supreme Court’s approach to public values, a framework that has shaped—and will continue to shape—the abortion debate. The Court has historically used a “punishment lens” to allow the evolution of moral expression in the public square, without enmeshing the Court itself in the underlying values debate. The punishment lens allows a court to redirect attention by focusing on the penalty rather than the potentially inflammatory subject for which the penalty is being imposed, regardless of whether the subject is contraception, abortion, Medicaid expansion, or pretrial detention.

This Article is unique in discussing the circumstances in which the Court has simultaneously concluded that the state could regulate but could not punish, even if that means redefining a sanction as not punitive. By making visible this framework, we offer the Court and the states a potential off-ramp from the continuation of an ugly and litigious future on abortion access. If the Supreme Court seeks to deflect the outrage over Dobbs, the simplest way to do so would be to take seriously the statement that all it has to do is to return the issue to the states. In that case, the Court’s focus should be, as Justice Kavanaugh suggested in his concurrence, on the impermissibility of punishment that infringes on established rights, independent of a right to abortion, such as the right to travel, the First Amendment right to communicate accurate information about abortion availability, or doctors’ efforts to perform therapeutic abortions necessary to preserve a pregnant person’s health. The Court would not pass judgment on the permissibility of abortion, and it could affirm the propriety of state bans, but still strike down heavy-handed prosecutions and ill-defined prohibitions that impose undue penalties.

After Dobbs v. Jackson Women’s Health Organization, this Article is particularly important for three reasons. First, this Article examines the ways in which the Court has used considerations of punishment to deflect irreconcilable values clashes. Second, a focus on punishment often illuminates the “dark side” of government action, justifying limits on such actions. Third, a focus on “punishment” often illustrates the consequences of government actions, consequences that may be an indirect result of statutes or regulations but that have disproportionate effects on marginalized communities. Understanding how the Court has used this elusive concept in the past may thus help shape the response to Dobbs.

INTRODUCTION

The concept of punishment is central to the Supreme Court’s jurisprudence on abortion—and, beyond abortion, to the expression of moral values in the public square. In Dobbs v. Jackson Women’s Health Organization, Justice Alito found “an unbroken tradition of prohibiting abortion on pain of criminal punishment” throughout the common law until the Court’s decision in Roe v. Wade in 1973.¹ He noted that “the great common-law authorities—Bracton, Coke, Hale, and Blackstone—all wrote that a post-quickening abortion was a crime”² and he traced these developments from the thirteenth century forward.³

The Dobbs opinion, like most criminal law discussions, assumes that the power to prohibit includes the power to punish violations of those prohibitions. And, indeed, criminal law scholars have produced an extensive literature on the justifications for the imposition of criminal sanctions and the constitutional limits on that imposition.⁴

What neither that vast literature nor the Dobbs opinion addresses, however, is the role of punishment in the evolution of the jurisprudence addressing the expression of public values, separate and apart from the existence of the laws prohibiting conduct. As this Article shows, when the Supreme Court has focused on the state’s justification for punishment independently from the underlying policy, it has often used the nature of punishment as a justification for striking down legislation—even when the Court concedes that the state purpose is otherwise legitimate.⁵ And it sometimes uses the declaration that onerous provisions are not “penalt[ies]” to uphold coercive legislation that, as a practical matter, limits access to what the Court otherwise recognizes as important rights.⁶ As these cases show, outside of the narrow context of whether a criminal prohibition justifies the imposition of a particular sentence,⁷ punishment has an ill-defined life of its own in Supreme Court jurisprudence.

This Article is the first to detail how the Supreme Court has viewed the concept of “punishment” as a justification for upholding or invalidating government acts in the context of issues involving contested values.⁸ While an intense debate raged at mid-century over whether the state should regulate morality, that debate generally assumed that if the state could regulate, it could also punish.⁹ This Article is unique in discussing the circumstances in which the Court has simultaneously concluded that the state could regulate but could not punish. For example, the Court held that a state could discourage teen sex but not by encouraging pregnancy as the consequence¹⁰ or could adopt restrictive measures,¹¹ such as blanket refusals to fund medically necessary abortions, so long as the statute did not prohibit abortion or penalize those seeking one.¹²

This Article is particularly important following Dobbs for three reasons. First, it illustrates the ways in which the Court has used considerations of punishment to deflect irreconcilable values clashes. For those who would like to extricate the Court from the conflicts Dobbs has inflamed, limiting punishment, for example, of those exercising a constitutionally protected right to travel, offers a potential off ramp.

Second, a focus on punishment often illuminates the “dark side” of government action. The opinion in Griswold v. Connecticut placed great weight on the intrusiveness of policing the use of contraceptives in the marital bedroom.¹³ The ugliness of imposing punishment may similarly become a focal point for organization in response to the patchwork of state laws after Dobbs.¹⁴

Third, a focus on “punishment” is often used to illustrate the consequences of government actions, consequences that may be an indirect result of statutes or regulations but that have disproportionate effects on marginalized communities.¹⁵ Abortion bans may aggravate race and class-based differences,¹⁶ prompting greater recognition of the rights of the pregnant to obtain the medical care needed to safeguard their health.¹⁷ Understanding how the Court has used this elusive concept in the past can thus help shape the response to Dobbs.

The Supreme Court’s conception of “punishment” underlying these considerations is slippery, perhaps intentionally so.¹⁸ The Court uses the concept at both an expressive level, reinforcing public norms, and a practical level, specifying the consequences for the violation of government mandates, both civil and criminal. Most critically for this Article, it provides the Court with a way to shape emerging norms in the context of public unease.

After describing the multidisciplinary literature on punishment’s multiple roles, we examine the way that the Court has deployed punishment as a rationale for invalidating government action, particularly in the context of cases involving sexual morality. Eisenstadt v. Baird, which stuck down bans on the sale of contraceptives to single women, provides a classic case: the Court simultaneously “conceded” that “the State could . . . regard the problems of extramarital and premarital sexual relations as ‘(e)vils’ ”¹⁹ but still held that this could not be the purpose of the Massachusetts legislation because it “would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication . . . .”²⁰ The irrationality of the punishment, not the permissibility of unmarried sex, provided the basis for the decision—and implicitly for the limitation of state power to regulate sexual morality.

We then explore how the Court has used the determination of what is a punishment to affirm state decision-making power in a federal system. The question of when the state is inflicting a punishment as opposed to imposing a reasonable condition or proceeding on appropriate administrative grounds arises in contexts ranging from welfare “home visits” to detention to Medicaid expansion, with the Court using the punishment lens to sidestep the substantive bases for these decisions.²¹

Finally, this Article considers cases that directly engage the relationship between punishment and the underlying values debate. Lawrence v. Texas, which invalidated Texas’s same-sex sodomy statute, provides the most striking example. Justice Kennedy’s majority opinion did not just strike down the criminalization of the sexual conduct.²² It affirmed the dignity and worth of the expression of intimacy in the case. Justice Scalia’s dissent, by contrast, saw punishment as the point, with both the majority and dissent agreeing that the values debate was central to the discussion.²³

This Article observes that the “punishment lens” provides a powerful tool for shaping the evolution of public values without enmeshing the Court in the underlying values debate. We consider whether the punishment lens can be successful in two ways: guiding the evolution of public values without triggering a backlash that further entrenches polarized opposition²⁴ or, failing that, reaching decisions in controversial cases that do not undermine the Court’s own legitimacy and authority.²⁵ By this standard, Eisenstadt v. Baird, which used the punishment lens to avoid the underlying values questions while striking down barriers to contraceptive access, and Lawrence v. Texas, which instead of relying on the punishment lens directly engaged the values questions, both succeeded in resolving issues in ways that helped move public opinion and lock in legal conclusions that remain embedded in American law. Whether applying the punishment lens to abortion can enjoy similar success remains to be seen, but this Article concludes by outlining the possibilities a focus on punishment can offer.

I. PUNISHMENT AND THE RULE OF LAW

The role of state-administered punishment is much studied—and much contested. Existing literature addresses the questions of what might justify the ability of the state to inflict intentionally burdensome treatment on its citizens,²⁶ what purposes such punishment should serve,²⁷ and what constitutes appropriate punishment.²⁸ As this scholarship establishes, law enforcement—and punishment of egregious crimes—is essential to a state’s legitimacy. Without punishment of criminal acts, a state cannot govern—and command either the support of its constituents or deference from the international order.²⁹ This literature, however, in its most idealized form, tends to assume a straightforward relationship between crime and punishment: the state prohibits certain acts, imposes prescribed penalties for the violation of the law, and administers the penalties in accordance with principles of procedural and substantive justice, emphasizing due process rights for the accused and fairness defined in terms of proportionality between the crime and the punishment.³⁰

This Section goes beyond the conventional analysis of criminal punishment to explore the expressive role that punishment serves. It shows that the judicial oversight of punishment serves four roles that pose difficult challenges in the face of contested or changing values: establishing shared societal values, maintaining or dismantling social hierarchies, mediating disputes over the authority of governmental actors to impose punishment, and channeling the individual desire for vengeance into state-approved channels.

First, the administration of punishment defines and reinforces societal values, often in symbolic ways. For example, with the recognition that smoking caused cancer and other health risks,³¹ the perceived acceptability of smoking changed.³² In the United States, the state did not respond by prohibiting smoking. Instead, government entities gradually limited the places where smoking was permitted, first, creating “no smoking” areas and ultimately banning smoking in restaurants, offices, and other places.³³ Over time, enforcement of these rules—and the imposition of sanctions on violators—did not just shift norms of politeness; they expressed moral disapproval of smoking as undesirable and deviant.³⁴ In 1993, the Supreme Court of the United States embraced the shift in attitudes in a decision that held placing a nonsmoking prison inmate in a cell with a five-pack-a-day smoker could constitute constitutionally impermissible “cruel and unusual punishment.”³⁵ In so ruling, the Court did not limit the word “punishment” to the prescribed penalties for a criminal act.³⁶ Instead, its finding of “cruel and unusual punishment” reflected and reinforced the changed social meaning of smoking from an acceptable activity to one that violated evolving “standards of decency,”³⁷ and concluded that violating this new moral sensibility could constitute “punishment” within the meaning of the Constitution. The act of placing a nonsmoker with a smoker thus became punishment because of the changed moral status of smoking.

Second, legal scholars have argued that beyond merely maintaining order, much of the power of state-administered punishment comes from this expression of “moral condemnation”³⁸ and its role in establishing social hierarchies within a society. In accordance with this analysis, moral condemnation does not just declare particular conduct to be illegal; it establishes and reinforces social order and social standing in a society.³⁹ Criminal acts threaten to upend the social order, as the person committing the crime asserts the right to defy established law and norms. Imposing punishment that carries moral condemnation with it restores the moral order,⁴⁰ affirming the victim’s superior status to that of the violator.⁴¹ Punishment can thus signal that “the community values the victim”⁴² while the failure to punish can indicate indifference, or even disdain, toward the victim.⁴³ Accordingly, both imposing punishment and failing to punish send important messages about what a society values. State-administered punishment can thus establish and reinforce norms in ways that contribute to social cohesion,⁴⁴ cohesion operating at the group as well as the individual level.⁴⁵ Disturbingly, the imposition of punishment can breed cohesion even if there is no crime;⁴⁶ nonetheless, the state reaffirms its legitimacy and authority when it punishes in the name of a value or ideal, rather than simply because it can.⁴⁷

The role of punishment in establishing social hierarchies, particularly when it operates at a group-based level, contributes to the dark side of punishment.⁴⁸ Brain imaging studies⁴⁹ show that the act of punishing engages the part of the brain that produces feelings of reward—the same area of the brain involved in drug addiction.⁵⁰ Individuals may thus derive pleasure from imposing punishment on others even when imposing punishment makes the punisher worse off.⁵¹

This psychological dimension corresponds to some descriptions of the retributivist purpose of punishment. Nietzsche argues that cruelty—and the satisfaction some derive from it—is the point of punishment.⁵² Even Oliver Wendell Holmes agreed that at least in some cases, punishment “is inflicted for the very purpose of causing pain” and “one of its objects is to gratify the desire for vengeance.”⁵³ And the anger and moral outrage that fuels demand for punishment can be manipulated.⁵⁴ Research has tantalizingly suggested that the act of punishment itself reinforces perception of harm.⁵⁵ Cultural cognition studies further show that people associate behavior contrary to their moral norms with socially detrimental consequences.⁵⁶

Precisely because the administration of punishment reinforces social standing at both the individual and the group level, it has implications that go beyond the punishment administered to any particular individuals. The decisions about which punishments to implement (such as firing an employee who refuses to be vaccinated or imposing work requirements as a condition of eligibility for state subsidized health insurance benefits) can create group-based winners and losers, elevating the status of one group at the expense of another.⁵⁷ Yet, denying the legitimacy of such demands for punishment—or imposing them too harshly—can also undermine respect for law.⁵⁸

This leads to the third role of judicial oversight of punishment: mediating conflicts that involve the authority of different governmental actors to impose punishment. In the United States, for example, the Supreme Court has overseen evolving conflicts between the states and the federal government in the administration of family law. The U.S. Constitution has historically been viewed as entrusting family law to the states,⁵⁹ but the Supreme Court has selectively intervened, at times to enhance or restrain state authority to impose punishment. In Stanley v. Illinois,⁶⁰ for example, the Supreme Court held that Illinois could not treat Peter Stanley as an unfit parent⁶¹—and thus deprive him of standing to seek the custody of his children after their mother’s death—solely because he had not married the mother.⁶² The Court intervened to limit the power of the state to punish unmarried fathers, at a time when attitudes were changing toward unmarried relationships.

Finally, the courts have historically overseen punishment in order to channel vengeance into socially constructive venues. The failure to punish perceived wrongs may persuade wronged individuals or groups to “take the law into their own hands” or to impose punishments out of proportion to the wrongful act.⁶³ The courts, in contrast, are supposed to act “judiciously” in administering punishment in a neutral manner, not just on behalf of the wronged individual, but because the assertion of the moral values of the social order can contribute to a sense of social order and cohesion.⁶⁴

The challenge of serving these four roles increases as social norms change.⁶⁵ The tension between maintaining order and imposing destabilizing punishments is particularly difficult if some social groups reject the norms, while others respond to the increasing defiance of the first group by calling for greater punishment as violations increase.⁶⁶ The imposition of punishment thus involves an “ever-shifting relationship between a regime and a given population that makes up the most essential element in any political order.”⁶⁷

These four roles make the administration of punishment central to the rule of law. They are also evident as a longstanding aspect of Supreme Court jurisprudence. Yet, managing the tensions between these objectives can undermine as well as maintain social cohesion. Congress and various state legislatures, for example, have attempted to shift norms surrounding intimate relationships by changing the laws governing sexual assault to make date rape easier to prosecute.⁶⁸ Imposing more serious penalties, however, may make judges and juries more reluctant to convict—and failures to impose punishment can undermine, in turn, the efforts to shift norms and also lead victims to feel even more isolated and aggrieved.⁶⁹ Expressing moral condemnation while keeping punishments commensurate with the perceived seriousness of the offenses thus requires walking a tightrope, one that sways with changing public sensibilities. Abortion, perhaps as much as if not more than any other issue, involves “irreconcilable disagreement” that challenges the legitimacy of the judicial system itself. The issues of punishment in the abortion context will test whether the judiciary generally, and the Supreme Court in particular, retain any capacity for guiding the recreation of shared social values.⁷⁰

II. SEX AND PUNISHMENT: RECOGNIZING REPRODUCTIVE RIGHTS

At the time Roe v. Wade was decided in 1973, the Supreme Court was carefully navigating a revolution in sexual mores.⁷¹ Sexual morality presents a classic case for the expressive role of punishment,⁷² with punishment serving to reinforce what are seen as consensus-based moral values broadly shared by the public.⁷³ Enforcing such norms also involves, however, punishment of private consensual conduct.

This Part shows how the Supreme Court focused on the acceptability of punishment as a rationale for state action rather than on the changing norms themselves. It did so through a series of cases that addressed contraception, nonmarital children’s legitimacy status, welfare benefits, parentage—and ultimately abortion—though the lens of punishment for sexual conduct. Within this new jurisprudence, the Court carved out a right to privacy that did not address the propriety of intimate conduct, but rather evaluated the permissibility of state action designed to shape private conduct.

A. Contraception and the Propriety of Pregnancy as Punishment for Sex

Starting with Griswold v. Connecticut⁷⁴ in 1965, the Supreme Court began to strike down legislation that regulated sexuality in ways that the Court deemed needlessly punitive. In doing so, the Court never waged a frontal assault on the moral order that channeled sexuality into marriage.⁷⁵ Instead, the Court examined the rationales underlying the laws and the consequences of imposing punishment.

Griswold addressed the constitutionality of a law that forbade the use of contraception. Anthony Comstock had spearheaded prohibition of contraceptives in the nineteenth century, convinced that they “facilitate[d] immoral conduct” because they “reduce[d] the risk that individuals who engage[d] in premarital sex, extramarital sex, or prostitution [would] suffer the consequences of venereal disease or unwanted pregnancy.”⁷⁶ Comstock persuaded Congress to outlaw “print and pictorial erotica, contraceptives, abortifacients, information about contraception or abortion, sexual implements and toys, and advertisements” in 1873⁷⁷ and the states adopted their own “Little Comstock laws” thereafter.⁷⁸ Connecticut’s statute, adopted in 1879,⁷⁹ was one of the most restrictive, banning not just the advertising and sale of contraceptives, but also the use of contraception.⁸⁰

The Court framed the case as one against defendants who “gave information, instruction, and medical advice to married persons as to the means of preventing conception.”⁸¹ In resolving the matter, the Court conceptualized a right to privacy, a right that justified looking the other way at sexual conduct. The Court wrote that “[w]e deal with a right of privacy older than the Bill of Rights older than our political parties, older than our school system.” ⁸² The Court did not mention married couples’ efforts to limit the number of children they had directly, although it did refer to the marital relationship as “intimate to the degree of being sacred” and suggested that enforcing a ban on contraceptive use would have “a maximum destructive impact upon [the marital] relationship.”⁸³ By contrast, the Court acknowledged the validity of the state’s purported rationale for the regulation: “the discouraging of extra-marital relations.”⁸⁴ While the Court stated that this rationale “is admittedly a legitimate subject of state concern,”⁸⁵ banning contraceptive use by married couples was simply too far removed from the purported subject of the statute to pass constitutional muster.⁸⁶ The Court suggested that the state could regulate the manufacture or sale of contraceptives but not their use within marital unions.⁸⁷ In short, the Court focused on the ugliness of enforcement⁸⁸ rather than on the permissibility of the underlying conduct—the use of contraception.⁸⁹

Connecticut did not often enforce its ban on married couples’ contraceptive use, but the fact that the law was on the books effectively limited the ability to use contraception to those with access to doctors and pharmacists.⁹⁰ While the Griswold decision did not mention the issue,⁹¹ a major reason for challenging the ban on contraception was the unequal nature of contraceptive access.⁹² By striking down criminal penalties for contraceptive sales, the Court effectively allowed doctors and clinics to make contraception more broadly available. The implicit principle at the core of this decision was that, while the state could steer sexuality into marriage, it could no longer seek to ensure that pregnancy be the unavoidable consequence of sexual relationships.

Eisenstadt v. Baird,⁹³ decided in 1972, expanded the principle—that pregnancy was an unreasonable punishment—beyond marriage. Eisenstadt struck down a Massachusetts statute that prohibited supplying contraception to single, as opposed to married, individuals. As in its decision in Griswold, the Court “conceded” that “the State could, consistently with the Equal Protection Clause, regard the problems of extramarital and premarital sexual relations as ‘(e)vils.’ ”⁹⁴ Nonetheless, it concluded that this could not be the purpose of the Massachusetts legislation because it “would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication.”⁹⁵ The Court acknowledged, as it did in Griswold, that notwithstanding the law, contraceptives are widely available, and thus “the rationality of this justification is dubious.”⁹⁶

By 1977, the Supreme Court was willing to say that the state could not prescribe pregnancy as the punishment for sex even where the state had a clear interest in discouraging sex between minors. In striking down a state law that prohibited selling contraceptives to minors under the age of sixteen, the Court noted the state interest in regulating the “morality of minors” in its efforts to promote “the State’s policy against promiscuous sexual intercourse among the young.”⁹⁷ Again, however, the Court accepted the legitimacy of the state interest, but rejected the connection between such a state interest and the prohibition on sales of contraceptives to minors. The Court observed that, “with or without access to contraceptives, the incidence of sexual activity among minors is high, and the consequences of such activity are frequently devastating,” but observed that there was little evidence that banning contraception had much impact.⁹⁸ The Court thus concluded that the state could not promote an otherwise legitimate objective—discouraging “promiscuous sexual intercourse among the young”—by making pregnancy the punishment for sex and criminalizing efforts to avoid the consequences.⁹⁹ And it emphasized that the justification for banning contraceptive sales became that much weaker as the evidence mounted that the laws on the books did not have the desired effect. It thus concluded that the “punishment” (pregnancy) did not serve the interests of either deterrence (teens with still have sex) or an appropriate desert (a child) for a wrongful act.

B. Public Recognition and the Removal of the Scarlet Letter from Children

The Supreme Court relied on similar reasoning in dismantling the distinctions between “legitimate” and “illegitimate” children, with the Court ultimately concluding that the states could not seek to channel childbearing into marriage by punishing children for their parents’ conduct. In the “seminal” case of Levy v. Louisiana,¹⁰⁰ the Court considered a Louisiana law that restricted the ability to bring a tort action for the wrongful death of a parent to “legitimate children.”¹⁰¹ As a result, an unmarried mother’s five children, who lived with her, and whom she raised on her own earnings, had no right to sue for their mother’s allegedly wrongful death. The Court, in striking down the statute in a brief opinion, observed that the Court could imagine no reason “why, in terms of ‘equal protection,’ should the tortfeasors go free merely because the child is illegitimate?”¹⁰² The Court reasoned that the circumstances of the birth had “no relation to the nature of the wrong allegedly inflicted on the mother;” the children, “though illegitimate, were dependent on her.”¹⁰³ The Court even recounted how the mother in the Levy case supported her children by working as a domestic servant, “taking them to church every Sunday and enrolling them, at her own expense, in a parochial school.”¹⁰⁴ In this opinion, the Court identified no countervailing state interest; the children were deprived of the right to sue for the loss of their mother simply because of the circumstances of their birth.

The Supreme Court in Levy did not mention the issue of race, but amicus briefs filed in the case emphasized that, particularly in Louisiana, the distinctions between marital and nonmarital children had a significant racial impact. Indeed, an amicus brief filed by Illinois law professor Harry Krause (and others) argued explicitly that the statute “discriminates on the basis of race.”¹⁰⁵ The brief maintained that the discrimination stemmed partly from the fact that “disproportionately more Negro children than white children are born out of wedlock,” and, partly from the fact that “a high percentage (70%) of white illegitimate children are adopted . . . whereas very few (3-5%) Negro illegitimates find adoptive parents.”¹⁰⁶ As a result, “95.8 percent of all persons affected by discrimination against illegitimates under the statute are Negroes.”¹⁰⁷ The brief concluded, “the classification of illegitimacy . . . is a euphemism for discrimination against Negroes.”¹⁰⁸

Louisiana denied that it sought to punish the children for immorality in sexual behavior, but it nonetheless maintained that it sought to encourage marriage.¹⁰⁹ And the state asserted: “If the community grants almost as much respect for non-marriage as for marriage, illegitimacy increases” and that “illegitimate daughters tend to err in the manner of their illegitimate mothers, producing more illegitimate children.”¹¹⁰ In short, Louisiana did argue that it was necessary to punish the children to deter their parents, if not quite in so many words. And the children who would be punished as a result were overwhelmingly Black.¹¹¹ Louisiana’s efforts to punish nonmarital births thus reinforced a racial as well as moral line, though the majority opinion for the Court did not directly address the racial issue.

In subsequent cases, the Court made the role of punishment even more explicit. In 1972, the Court reaffirmed Levy in striking down a Louisiana statute that defined “child” so that only marital children were eligible for insurance benefits resulting from their father’s death.¹¹² Justice Powell’s majority opinion held that the “status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage,” but still concluded that imposing “this condemnation on the head of an infant is illogical and unjust.”¹¹³ Powell concluded that the distinction between marital and nonmarital children was not justified by any state interest.¹¹⁴

In 1977, the Court revisited the issue of inheritance,¹¹⁵ invalidating an Illinois statute that permitted nonmarital children to inherit only from their mothers, not their fathers.¹¹⁶ In a 5-4 decision, Justice Powell reiterated that “visiting this condemnation on the head of an infant is illogical and unjust.”¹¹⁷ He emphasized that, while the parents’ behavior might have been immoral, that was not the fault—nor the responsibility—of the children. The opposition to the punishment of children commanded a majority of an even more conservative Court than the Warren Court that had initially struck down such classification.¹¹⁸

C. The Right to Abortion: Part I

The Supreme Court’s 1973 decision in Roe v. Wade situated the case within the punishment lens the Court had constructed to deal with reproductive rights more generally. The case never squarely fit there, however, because abortion did not just involve the regulation of sexual behavior between consenting partners; it also raised issues about the involvement of the medical profession and the status of the fetus. Nonetheless, the Court framed the decision as a right centered on the irrationality of the state prescription of childbirth as a way to prevent illicit sex and a jurisprudence conscious of the consequences, intended and unintended, of regulating sexual morality. It thus treated laws banning abortion as imposing punishment—on the pregnant for incurring an unwanted pregnancy, on doctors for exercising medical judgment in treating patients, and on those who felt compelled to seek illegal abortions in unsafe circumstances.

Among the telling aspects of this analysis is the way the Court articulated the state interests at stake. The Court identified the first such interest as one based on “a Victorian social concern to discourage illicit sexual conduct.”¹¹⁹ Curiously, though, the Court acknowledged that Texas did not articulate that justification in Roe, and it appeared that courts and commentators had not actually taken the argument seriously.¹²⁰ On the other hand, however, the Comstock laws, which banned abortifacients along with pornography and contraception, treated the regulation of sexual morality as of a piece with abortion.¹²¹ The Court thought the connection between an abortion ban and the regulation of morality sufficiently important to mention—and dismiss.

Second, the Court acknowledged that forcing a woman to carry an unwanted pregnancy to term is cruel.¹²² It referred to the burdens of pregnancy and childbirth, including the possibility that childbirth “may force upon the woman a distressful life and future,” her “[m]ental and physical health may be taxed by child care,” and the unwanted child may cause “distress, for all concerned.”¹²³ The opinion acknowledged the hardship involved in bringing a child into a family that could not care for the child, and the potential for stigmatizing a nonmarital mother.¹²⁴ The Court accordingly echoed earlier cases treating avoidable pregnancy and childbirth an inappropriate way to advance state purposes because of the burden imposed.

Third, the Court was aware that the states often brought criminal actions against doctors.¹²⁵ One of the parties in Roe, Dr. James Hubert Hallford, allegedly had faced prosecutions for violations of the Texas abortion statutes.¹²⁶ Hallford maintained that the applicable statutes were unconstitutionally vague because he could not determine whether his patients’ situations would qualify as exceptions to the abortion ban,¹²⁷ so he faced punishment for exercising a good faith medical judgment about his patients’ therapeutic needs. Justice Blackmun’s initial draft proposed striking down Texas’s anti-abortion law as unconstitutional only on the grounds that it was void for vagueness.¹²⁸ The punishment that doctors faced in making delicate judgements was clearly a factor in the subsequent Roe decision and in its declaration that abortion decisions should be left to “the woman and her responsible physician.”¹²⁹

Fourth, the Court dismissed state assertions that banning abortion was necessary to protect women’s health, observing that mortality rates during the first trimester of pregnancy “appear to be as low as or lower than the rates for normal childbirth” in contrast with the “prevalence of high mortality rates at illegal ‘abortion mills.’ ”¹³⁰ While less explicit than the Court’s acknowledgment of the burdens of pregnancy, the Court recognized that resort to unsafe abortions was a punitive consequence of the prohibition of legal abortions.

In the background of the case, states’ law on abortion had begun to change, with some states repealing their anti-abortion statutes entirely and others reforming their law to expand the availability of therapeutic abortions.¹³¹ A practical consequence was that, as with contraception, the availability of abortion, particularly safe abortion, differed significantly by race, location, and class.¹³² Partly as a result, women of color were substantially more likely—by some estimates twelve times more likely¹³³—to die from illegal abortion than white women.¹³⁴

In limiting the state ability to restrict abortion, the Court treated these restrictions as imposing impermissible penalties on those seeking abortion. The penalties were not so much the criminal sanctions themselves; these were rarely imposed on the individuals who secured abortions.¹³⁵ Instead, states banning abortion were making childbirth the consequence of unprotected sex—and the risk of death the price of seeking an illegal abortion. The Court found that unacceptable. And while the Court recognized the state interest in protecting fetal life, it balanced that interest against the woman’s interest in deciding whether to give birth. Fetal life, as an interest separated from the sexuality (and women’s bodies) that produced it, would become more prominent as an issue only after Roe was decided.¹³⁶

In these cases, the Supreme Court helped oversee a shift in sexual mores during a period where nonmarital sexuality was becoming more common and accepted. In focusing on the acceptability of the punishment, the Court did not endorse the changes directly; instead, it addressed the rationality of widely violated restrictions that imposed serious, arbitrary and discriminatory harms. The Court’s use of the term “punishment” was not, however, consistent or the subject of a coherent jurisprudence. Sometimes, it referred to the state rationales (deterring sex by limiting access to contraception, making pregnancy the “punishment” for fornication), sometimes it referred to the intrusive nature of criminal enforcement (searching the marital bedroom) rather than the imposition of criminal sanctions, and sometimes it considered the collateral consequences of government action (the stigma and limitations associated with nonmarital births). In the process, however, the Court used the punishment lens to oversee a wholesale effort to strike down what it saw as the outdated remnants of “Victorian” sexual mores without disavowing the legitimacy of state efforts to channel sexuality into marriage.

III. PUNISHING PARENTS

The era that produced Roe involved overlapping interests reducing the support for a punitive approach to sexual morality: a change in sexual norms, a remaking of women’s roles, and more urgent calls for racial equality.¹³⁷ In addition, the parties were less ideologically polarized, with greater elite consensus.¹³⁸

Nonetheless, by the mid-seventies, another jurisprudential revolution was taking place: one embedding a neoliberal¹³⁹ view of the state into Supreme Court jurisprudence. The Warren Court had been sympathetic to calls not just for racial equality, but also for greater economic rights.¹⁴⁰ These claims often took the form of calls to treat government benefits as entitlements, with more equal access to the benefits and more obstacles to denying eligibility. The neoliberal era taking hold by the late seventies rejected these claims. The Court embedded this perspective in the same way it had overseen the change in sexual mores: by using the punishment lens to resolve issues that involved farther reaching clashes in values. The Court did so by denying the very fact of punishment. It concluded that if a given regulation did not penalize the individuals subject to it for protected activity, no constitutional issue arose at all. In the process, the Court upheld regulations that supervised poor women’s sexuality and denied access to abortion funding.

This Section focuses on how the punishment lens applies in more varied civil settings, tracing the evolution of the Court’s treatment of government benefits. The first part of this Section describes how the Court deemed public benefit requirements non-punitive in order to uphold limitations on government benefits under the Aid to Families with Dependent Children (AFDC) and Medicaid programs; the second part of the Section shows how the punishment lens applies outside of the sexual-morality context, analyzing how it has been used to limit access to benefits under the Affordable Care Act.

A. Welfare Benefits and the Rejection of Positive Rights

In the 1960s, the Supreme Court addressed the relationship between sexuality and eligibility for government benefits during a period in which the Court was enhancing access to government benefits more generally.¹⁴¹ The original Aid for Dependent Children (ADC) program was adopted in the 1930s as part of the New Deal’s far-reaching social legislation. The United States, unlike many European nations, had never adopted a universal system of family allowances to support childrearing but instead had a variety of state programs designed to provide widows’ pensions to support children who would otherwise land in orphanages because their mothers could not support them.¹⁴² In the 1930s, Congress nationalized these efforts, providing federal funding for a state-run system to compensate for the loss of a male breadwinner.¹⁴³ Congress limited aid to children who had “been deprived of parental support or care by reasons of the death, continued absence from the home, or physical or mental incapacity of a parent” and allowed the states to impose additional eligibility standards, such as “moral character” requirements that excluded the children of unmarried parents from the program.¹⁴⁴

As early as the 1940s, critics argued that the moral requirements “were habitually used to disguise systematic racial discrimination; and that they senselessly punished impoverished children on the basis of their mothers’ behavior.”¹⁴⁵ The federal government sought to discourage the moral requirements.¹⁴⁶ By the late 1960s, the states had shifted from outright prohibition of benefits to “man in the house rules” that deemed the income of a man who cohabited with a welfare recipient to be available to the family, thereby affecting the family’s qualification for public welfare.¹⁴⁷ These regulations were understood to serve the dual purpose of punishing African Americans and privatizing dependency by withholding public benefits from nonmarital families.¹⁴⁸

In King v. Smith, the Supreme Court examined the punitive nature of these requirements. The Court sidestepped the constitutional issues in the case, striking down the Alabama regulation at issue on statutory grounds, noting that federal law precluded states from denying public welfare to children because “of their mothers’ alleged immorality or to discourage illegitimate births.”¹⁴⁹ The Court concluded that “Congress has determined that immorality and illegitimacy should be dealt with through rehabilitative measures rather than measures that punish dependent children, and that protection of such children is the paramount goal of AFDC.”¹⁵⁰ Justice Douglas’s concurrence, however, would have reached the constitutional issue. He saw Alabama officials as discriminating against children on the basis of illegitimacy and therefore acting at odds with the ruling in Levy v. Louisiana, decided during the same term.¹⁵¹ He wrote that “the Alabama regulation is aimed at punishing mothers who have nonmarital sexual relations.”¹⁵² In administering the provisions, the “economic need of the children, their age, their other means of support, are all irrelevant. The standard is the so-called immorality of the mother.”¹⁵³ He viewed that standard—and the attendant punishment—inflicted on the mother to be constitutionally impermissible.¹⁵⁴

By the time the Supreme Court decided the case in 1968, the nature of the AFDC program had changed. While 43% of the ADC caseload in 1937 consisted of widows, only 7% were in 1961.¹⁵⁵ And as documented in an amicus brief in Levy v. Louisiana, decided the same term, the statute was both “overt discrimination on the basis of the criterion of illegitimacy,” and “covertly discriminate[d] on the basis of race.”¹⁵⁶ The Court almost certainly saw the two cases as linked, although only Justice Douglas’s concurrence in King made the connection directly.¹⁵⁷

In deciding King v. Smith, the majority opinion, however, dealt with these issues only obliquely. Instead, it focused on the irrationality of the punishment imposed—the denial of benefits in a program intended to help children that would disproportionately disadvantage the very children the program was intended to help. The Court did not endorse a right to nonmarital sexuality.¹⁵⁸ It did not discuss the discriminatory motive and effect underlying the regulations.¹⁵⁹ It did not recognize an affirmative “right” to federal benefits¹⁶⁰ nor a right to privacy for benefit recipients.¹⁶¹ Instead, it focused solely on the legitimacy of the punishment, concluding that children could not be deprived of benefits in an effort to change their mothers’ conduct. It treated the man-in-the-house rules not as a rational effort to determine the resources available to the family, but as a subterfuge to continue morals regulation in the face of federal disapproval.¹⁶² The case was thus of a piece with the contraception and legitimacy cases in challenging irrational punishments: punishments that were irrational because once they failed to deter nonmarital sexuality in an era of changing mores, their application became arbitrary and discriminatory.

In subsequent cases, however, the Supreme Court upheld provisions that burdened the poor and their children by deeming such provisions non-punitive. Thus, in Wyman v. James, the Court found constitutional a New York statute mandating home visits,¹⁶³ that were in line with federal law’s requirements that aid be provided only after consideration of the family’s resources and only to children who were not being neglected.¹⁶⁴ The “visits” could prove embarrassing in front of children and guests, and could serve to police sexual relationships.¹⁶⁵ The Court refused to find that mandated visits were a penalty at all, terming them instead a condition of benefit eligibility¹⁶⁶ and not a substantive, much less punitive, standard tying loss of benefits to impermissible or arbitrary considerations.¹⁶⁷

The dissent objected on the grounds that welfare rights should be seen as entitlements.¹⁶⁸ While both the majority and the dissent focused on the status of welfare benefits, Justice Blackmun’s majority opinion used the conclusion that the “conditions” on receipt of benefits were not penalties to lock in a neoliberal view of government action: because there is no right to benefits, the state could impose whatever standards it chooses as preconditions for eligibility, and those conditions never become punishment subject to constitutional scrutiny.¹⁶⁹

B. Punishing Sex

In subsequent cases, the Court’s characterization of a particular government action as non-punitive allowed it to uphold conditions that were challenged as discriminatory, cruel, or unjust. The results were particularly striking when the issue turned to abortion. Legislators who opposed abortion and who could not overturn Roe v. Wade directly sought to express their disapproval of abortion by prohibiting the use of public funds to pay for abortions, while permitting those funds to be used for pregnancy and childbirth.¹⁷⁰ Were these bans penalization of a constitutionally protected right—the right to elect abortion to terminate a pregnancy—or were they simply the exercise of legislative policy preferences to allocate public funds to support some activities and not others? The Supreme Court used the punishment lens to resolve the issue. Since individuals enjoyed no positive right to health care—or to abortion funding—the denial of funding could not constitute a penalty and thus had no constitutional implications.¹⁷¹

An initial case upheld Connecticut regulations limiting public funding of abortions to medically necessary abortions during the first three months of pregnancy.¹⁷² Justice Powell wrote for the 6-3 majority that the Constitution did not impose any obligation on the states to pay pregnancy-related medical expenses of low-income women or any other medical expense.¹⁷³ He noted that the Court had not found in previous cases that wealth was a suspect class¹⁷⁴ and that Connecticut was accordingly free to subsidize childbirth and not abortion as an expression of state policy designed to encourage the former.¹⁷⁵

By 1980, Congress had gone further, adopting the Hyde Amendment, a prohibition on the use of federal funds to reimburse the cost of abortions under the Medicaid program, including abortions that were the result of rape or incest or medically indicated.¹⁷⁶ In a 5-4 opinion later that year, the Supreme Court upheld the constitutionality of the Amendment. The majority opinion treated the issue as a classic one of negative liberty, explaining that the freedom to choose to have an abortion, even a medically necessary one, does not carry with it a government obligation to fund the abortion.¹⁷⁷ It then explained that a woman’s poverty was “the product not of governmental restrictions on access to abortions, but rather of her indigency.”¹⁷⁸ Accordingly, the Court concluded that the failure to pay for abortions was not punishment and thus not subject to constitutional review.

The four dissenters viewed the Hyde Amendment as punitive and cruel. Justice Blackmun made the point that the legislators championing the Hyde Amendment cynically sought to express their own views on the morality of abortion by imposing those views “only upon that segment of our society which, because of its position of political powerlessness, is least able to defend its privacy rights from the encroachments of state-mandated morality.”¹⁷⁹ He would have accordingly subjected the legislation to more exacting judicial review.¹⁸⁰ Justice Stevens emphasized that “the Court expressly approves the exclusion of benefits in ‘instances where severe and long-lasting physical health damage to the mother’ is the predictable consequence of carrying the pregnancy to term” and, indeed, “even if abortion were the only lifesaving medical procedure available.”¹⁸¹ He concluded that the result “is tantamount to severe punishment” for wanting an abortion.¹⁸² Justice Marshall emphasized the racial impact of denying abortion funding and also noted that the Hyde Amendment resulted in “excess deaths.”¹⁸³

In Harris, the Court upheld the validity of an extraordinarily cynical statute. Congress, in effect, limited poor women’s abortion access because it could—it could allow expression of the anti-abortion sentiments of members of Congress at the expense of a relatively powerless group.¹⁸⁴ By declaring that forced birth due to the failure to secure funding for an abortion was not a punishment, the Court avoided addressing the question of whether it burdened a constitutional right.

In Wyman and Harris, neither the majority nor the dissenting opinions treated these cases as imposing punishment for sex, and the majority opinions rejected even the premise that the aid recipients had been punished for the exercise of constitutional rights (privacy in Wyman, abortion in Harris). The reasoning in the cases backtracked on the entitlement language that had been building in the welfare rights era, leading to the conclusion that if the benefits at issue were not entitlements, the failure to provide them could not be seen as punishment—effectively ending the discussion of whether the provisions at issue were unduly cruel or whether they reinforced class- or race-based social hierarchies.¹⁸⁵

C. The Punishment Lens Beyond Sex

The litigation over the Affordable Care Act (ACA)¹⁸⁶ involves the clash of values we have described in this Article and the use of the punishment lens to resolve some of the challenges. The ACA was the largest expansion of public largesse in a half century and therefore a direct challenge to neoliberal values. The legislation’s principle of universal health insurance coverage clashed with those who wished to limit government benefits altogether or to withhold them from those deemed unworthy, such as those who were not working, reinforcing class and racial hierarchies. In addition, by treating contraception as an integral part of women’s health care, the ACA conflicted with the views of some Christian employers who opposed contraception. The legislation thus involved, on a much larger scale, the clash of values underlying the characterization of government benefits in Wyman and Harris.

In the cases discussed in this Section, the Supreme Court returns to the issue of punishment, though without any more precise a definition of the concept. Instead, the Court repeatedly faced the question of whether the ACA provisions operated as a tax or a penalty, a condition or a penalty, and a provision of alternative means of compliance or a penalty, and used the characterization of the actions as penalty or not to resolve the cases.¹⁸⁷ The net effect for the ACA was a compromise: the ACA endured but on somewhat more neoliberal terms than the Obama Administration and the Congress that enacted the legislation might have intended.¹⁸⁸

The ACA, in attempting to provide universal health care access,¹⁸⁹ included a series of alternatives that were designed to balance the principles of expanded access, adequate funding, and reasonable private choice.¹⁹⁰ In National Federation of Independent Business v. Sebelius, the most prominent of the ACA cases,¹⁹¹ the Court addressed two issues that turned on the concept of a penalty. The first involved the “individual mandate,” which required an individual who did not otherwise receive health insurance through their employers or other state provisions, to purchase health insurance on state exchanges or pay what the legislation described as a “penalty” collected by the Internal Revenue Service with the filing of individual tax returns. The Court rejected the government’s claim that the commerce clause authorized the mandate,¹⁹² but upheld it instead as a “tax.”

The Court reasoned that under the ACA, “if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes.”¹⁹³ The Government accordingly argued that the mandate could “be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS.”¹⁹⁴ Under this theory, the legislation does not establish “a legal command to buy insurance,” just a trigger for owing taxes, like “buying gasoline or earning income.”¹⁹⁵ Therefore, the Court concluded that the ACA was within the Congressional tax power.

Critical to the Court’s reasoning was its decoupling of a requirement to buy insurance, which the Court concluded that Congress could not do, and a requirement to pay an amount, deemed by the Court a “tax,” intended to finance the program. In reaching this conclusion, the Court explained that “[i]n distinguishing penalties from taxes, this Court has explained that ‘if the concept of penalty means anything, it means punishment for an unlawful act or omission.’ ”¹⁹⁶ The ACA mandate was not a penalty (or punishment) because while the mandate sought to incentivize health insurance purchases, it did not make the failure to do so “unlawful.”¹⁹⁷ The fact that Congress sought to influence individual behavior did not matter, just as Congress’s efforts to encourage childbirth rather than abortion did not matter in Harris v. McRae; so long as the federal government did not outlaw the failure to buy insurance, the individual mandate was a tax, not a penalty (and not punishment for the failure to buy insurance). It was therefore constitutional.¹⁹⁸

The second issue the Court addressed was Medicaid expansion, which the Court again decided in terms of the acceptability of the Act’s “penalties.” Congress revised the existing Medicaid program, which is a federal-state partnership, to cover individuals within 138% of the poverty line, and to bring Medicaid coverage in line with the coverage health insurance policies offered on the exchanges.¹⁹⁹ Congress then gave the states a choice: accept federal funding in accordance with the new expanded Medicaid program or forego federal Medicaid funding.²⁰⁰ The majority in Sebelius objected that the “choice” was too coercive, effectively mandating state participation in the program.²⁰¹ It reasoned that while Congress could condition state eligibility for federal funding under a new program, it could not “penalize States that choose not to participate in that new program by taking away their existing Medicaid funding,”²⁰² describing the “inducement” in the Act as “a gun to the head.”²⁰³ Justice Ginsburg’s dissent objected that Congress was, as it had done in the past, just requiring states to comply with “conditions” imposed by Congress to receive Medicaid funding.²⁰⁴

The parallels between Sebelius and Wyman v. James are striking. The requirement that the states adopt Medicaid expansion in order to participate in the Medicaid program could have been described, as Justice Ginsburg wrote, as a condition for participation in a federally funded program. The Sebelius Court disagreed, finding that it penalized the states for the failure to agree to the program’s terms.²⁰⁵ The Court effectively treated the state’s existing funds as an entitlement the federal government could not threaten to take away in order to obtain the performance it sought. In Wyman, because welfare was not an entitlement, a welfare recipient’s failure to consent to intrusive home visits was not considered a penalty at all; it was labelled as “a condition of eligibility” to the continued receipt of benefits.²⁰⁶ The label—condition or penalty—resolved each case without engaging the substantive issue of whether the conditions themselves were reasonable or justified.

In Sebelius, the result cloaks the real issues underlying Medicaid expansion—skepticism about whether the poor merit medical benefits²⁰⁷ and opposition to the state role in meeting such needs.²⁰⁸ Indeed, the federal government picked up 100% of the initial costs associated with implementing the program, and 90% thereafter so that the financial burden on the states was relatively minimal²⁰⁹—and less than the state share of the pre-ACA Medicaid program²¹⁰ and arguably much less of a burden on the states than asking a welfare recipient to consent to frequent, unannounced, and intrusive home visits (or the uninsured to go without health care).²¹¹ What Sebelius did not address is why states opposed Medicaid expansion, given the substantial financial incentives in the ACA for the states to do so. Most commentators attribute the opposition to the states’ ideological opposition to government provision of health insurance, if not outright hostility to the poor people in their states.²¹² Some states continue to resist Medicaid expansion, despite widespread public support for it.²¹³ In effect, the Court, in the name of federalism, authorized the states to act with impunity in frustrating Congressional efforts to ensure accessible health insurance at the expense of people in their states who qualified for the benefits.

In a later ACA case,²¹⁴ the Supreme Court also used the concept of punishment to address the employer mandate, which gave businesses the choice of providing health insurance that met federal standards for their employees or contributing to the exchanges so that employees could purchase their own insurance.²¹⁵ Hobby Lobby, a closely held, for-profit corporation, provided health insurance for its employees, but refused to comply with federal requirements to cover certain forms of contraception, including the morning after pill, because, according to the company, they acted as an abortifacient.²¹⁶ In a 5-4 decision, the Court held that requiring a company to cover certain mandated health care benefits, such as the pills in question, violated the Religious Freedom Reformation Act.²¹⁷ The Court gave little regard to women’s loss of access to the contraceptives, holding that the federal government, if it chose, could provide them through “less restrictive means.”²¹⁸ In short, the Court held that it would be an unjustifiable penalty to compel corporate owners to comply with the terms of a neutral government program that benefitted their employees, if those terms conflicted with the owners’ religious beliefs.²¹⁹

The employer mandate was essentially the same as the individual mandate—it gave those affected, whether individuals or employers, a choice: meet the ACA requirements (individuals by purchasing insurance that met federal standards or employers by providing such insurance) or pay the mandated sums to the federal treasury, in each case less than the cost of the insurance. With respect to the individual mandate, the Court concluded that the payment was a tax on those without insurance and not a penalty because the federal government had not (and could not) compel the purchase of insurance. In the case of the employer mandate, the Court concluded that the required payments were, in effect, a penalty for Hobby Lobby’s desire to act on its religious beliefs, rather than a condition for participation in a program providing federal subsidies.

To be sure, the two cases do not arise under identical bodies of law. Sebelius addressed two distinct legal issues: Congressional power to enact the individual mandate under the Commerce Clause and the taxing power, and the limits of Congressional power under a federal system to incentivize state participation in a federal program. Hobby Lobby was decided in accordance with a third body of law, determining the religious rights of for-profit corporations. Yet, in each case, the Court’s framing of the law as punishment or not—that is, whether the intricate provisions of the ACA acted as sanctions designed to compel specific behavior—determined the outcome. And, in each of these cases, the Court upheld moral hierarchies: protection of religious employers at the expense of employees denied access to federal contraception benefits, protection of states disapproving of health care subsidies at the expense of their citizens who would benefit from such subsidies, and limits on the power of the federal government vis-à-vis other actors, including the states and privately-held businesses. ²²⁰

IV. RETURNING MORALITY TO THE PUBLIC SQUARE

In focusing on punishment, the Supreme Court oversaw a revolution in sexual mores without directly engaging the issue of what values should govern in the public square. The Court has also strengthened a neoliberal regime by simultaneously holding that imposing conditions on program beneficiaries does not constitute punishment while imposing conditions that require coverage constitutes a constitutionally unacceptable “penalty.” In relatively few of these cases did the Court, particularly in its majority opinions, directly engage the underlying values clash. The exception has come in the discussion of LGBT rights—and increasingly in the Court’s opinions on abortion. These exchanges pull back the curtain on the role of punishment in Supreme Court jurisprudence. In these cases, the argument for the losing parties, embraced by the dissents, maintain that punishment is the point—the necessary component to affirming the “right values” in the public square. In response, the Court, in a way it did not do so in the earlier cases, directly addresses the relationship between the status of those affected by punishment and the values they express by engaging in the prohibited activity.

A. LGBTQ+ Rights and the “Homosexual Agenda”

One of the clearest clash of values prior to Dobbs occurred in the Supreme Court’s decision in Lawrence v. Texas.²²¹ In Bowers v. Hardwick,²²² the Court had considered whether there was a fundamental right to engage in same-sex sodomy, a formulation that the Court repeated in Dobbs. In both cases, the Court referred to the long history of criminalizing the conduct at issue,²²³ with those arguing for the constitutionality of such criminal penalties maintaining that the history of punishment reflected disapproval of the underlying conduct and provided evidence of the continuing legitimacy of such sanctions.²²⁴

Lawrence, which involved a criminal prosecution for same-sex sodomy, directly involved the issue of punishment. The two men in the case were arrested in a private residence when the police arrived to investigate a purported weapons disturbance.²²⁵ In his opinion for the majority, Justice Kennedy’s opinion had two levels of analysis. Like the Griswold line of cases, it affirmed a right to privacy, observing that “[t]he statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”²²⁶ The majority opinion then emphasized that the Texas statute being enforced in the case was not just about prohibiting a “particular sexual act”;²²⁷ it involved intimate conduct as part of “a personal bond that is more enduring.”²²⁸ The opinion thus concluded that such punishment was not just constitutionally impermissible²²⁹ but that the behavior at issue had societal value.²³⁰

Justice O’Connor, in her concurrence in Lawrence, did not go as far as the majority. Instead, in a manner reminiscent of the earlier cases on contraception, she limited her analysis to a punishment lens, finding that Texas could not claim a legitimate interest. She thus rejected out of hand the asserted state interest in the case, which she described as nothing more than the “moral disapproval of an excluded group.”²³¹ For O’Connor, the impermissibility of the punishment—and its discriminatory character—were enough to strike down the statute without necessarily requiring an affirmation of the value of same-sex intimacy.

Writing in dissent, Justice Scalia made clear that he thought that moral disapproval of same-sex sexuality was exactly what the case should have been about. He denounced what he called the “homosexual agenda,” which he defined as “the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”²³² He cast his dissent explicitly in terms of maintaining a moral hierarchy based on that opprobrium.²³³

The opinions in Lawrence thus frame, perhaps better than any of the other cases, the permissibility of punishment and the Court’s use of a punishment lens. They involve a clash between the ability to affirm moral values in the public square versus the preservation of private homes from the intrusion of the state. They also involve the use of the declaration of values to define those to be “protected,” in Scalia’s words, from those to be “excluded,” in O’Connor’s terms, thus reaffirming societal hierarchies between the groups. And they involve the permissibility of the imposition of criminal sanction to reinforce moral opprobrium, even when the behavior at issue is consensual conduct between two adults. The Lawrence Court’s 6-3 majority unequivocally rejected the propriety of punishment used to harden the lines between the protected and the excluded—and in the majority opinion, if not O’Connor’s concurrence,²³⁴ embraced an alternative view of the purpose of sexual conduct as an expression of commitment to a partner, not just as a means to procreation.

In Obergefell v. Hodges,²³⁵ the case upholding the right to marriage equality, the majority went even further in embracing same-sex relationships as an expression of family values²³⁶ while the dissents reaffirmed the need to channel sexuality into marriage—and to punish those who fell outside of such precepts. ²³⁷ Kennedy wrote that there “is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”²³⁸

The majority opinion added that the right to marry is not just about the couples’ relationship to each other, but also about their children. “Without the recognition, stability, and predictability marriage offers,” Kennedy wrote, “their children suffer the stigma of knowing their families are somehow lesser . . . . The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”²³⁹ The opinion thus saw denial of the ability to marry as a punishment imposed not only on the couple but on their children. ²⁴⁰ It accordingly equated the limitation of marriage to different-sex couples with imposition of a stigma on those raising families outside the institution.²⁴¹

The Obergefell majority did take sides in the culture wars—in recognizing the dignity and moral worth of same-sex relationships. In basing the decision on the changed nature of marriage, the Supreme Court acknowledged that marriage reflected a new moral sensibility: one that made autonomous choice, not religious or societal duty, the foundation of the marital relationship.²⁴² The Court accordingly went beyond the rejection of the punishment (while noting “the harm and humiliation” involved in the refusal to recognize same-sex families) to confer public recognition and moral worth on LGBT families.

The four justices who dissented rejected both the premise that marriage had changed and that the Supreme Court should acknowledge that change. Chief Justice Roberts’s dissent explained that “for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.”²⁴³

This reasoning is the same as the reasoning that justified the vilification of nonmarital sexuality a half century ago. In accordance with this reasoning, heterosexual sex, not just procreation, needs to be channeled into marriage and marriage needs to be about a moral command to avoid nonmarital sexuality.²⁴⁴ Punishment, whether material or symbolic, is the necessary complement to this reasoning.²⁴⁵

Alito’s dissent made explicit his objection to overturning traditional moral hierarchies. He wrote: “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”²⁴⁶ In short, Alito’s concern lay directly with the ability to uphold the preferred values in the public square and fear that those who did so would now be the ones receiving punishment. And while he acknowledged that family understandings and behavior could change over time, he simply treated data such as the 40% nonmarital birth rate as further reason states could chose to double-down on traditional moral understandings²⁴⁷—drawing clear distinctions between preferred groups and those subject to moral condemnation even when a substantial or even majority of the public did not share such views.

Alito’s opinion accepted the right of moral traditionalists to insist on the primacy of heterosexual marriage and to punish those who create families or engage in sexual intimacy outside of marriage. He saw the majority, in contrast, as embracing same-sex families as entitled to equal moral worth and such views as necessarily punishing those who disagree as bigots. Moreover, he treated evidence of changing norms, such as the increase in nonmarital births, as evidence of a threat to the traditional moral order and therefore as additional reason for punishment. Framed in such terms, the legal question becomes one of power and authority to uphold the preferred views and, in Alito’s terms, punishment cannot be separated from the underlying values.

B. Abortion Revisited

With respect to abortion, however, neither the Court’s efforts to sidestep the morality of the underlying conduct nor its efforts to address the issues directly have yet succeeded. In the years after Roe, abortion became a political marker in part because the issue offers little opportunity for compromise.²⁴⁸ While the Court largely succeeded in making contraception more available without directly embracing the sexual revolution, the Court’s efforts to sidestep the moral issues underlying the abortion issue satisfied no one. Roe satisfied neither those who saw reproductive rights as essential for gender equality nor those who believe the status of the fetus is not an issue that could be “bracketed.” ²⁴⁹ These divisions, unlike those underlying recognition of LGBT relationships, have increased over time.

In Planned Parenthood v. Casey,²⁵⁰ the Court nonetheless tried to tamp down the divisions by directly engaging the values conflicts. Decided in the early 1990s, Casey²⁵¹ had been widely expected to reverse Roe outright.²⁵² Instead Casey preserved the core of the right to abortion, while permitting the states to impose new restrictions, such as waiting periods and parental consent provisions.²⁵³ Justice O’Connor’s plurality opinion was the only significant abortion decision for the Court written by a woman. She observed that the earlier decisions in Griswold, Eisenstadt, and Carey “support the reasoning in Roe relating to the woman’s liberty because they involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it.”²⁵⁴ Casey, alone in the Supreme Court’s reproductive rights decisions, made women’s relationship to the growing fetus central to the decision.²⁵⁵ It succeeded, however, only in delaying the day of reckoning over Roe itself.

Dobbs v. Jackson Women’s Health Organization²⁵⁶ is radically at odds with previous decisions that have used the concept of punishment to distract attention from inflammatory subjects. It is also at odds with the conception of judicial statesmanship, through which courts legitimate the judicial system while also recognizing social change and creating community in the midst of conflicting values’ clashes.²⁵⁷ Although Justice Alito claimed otherwise, the decision is designed to inflame and, in doing so, it is likely to empower state officials who wish to exercise their authority to punish—in order to affirm the moral superiority of their position, to reaffirm their values in the public square, to impose dominance over outgroups, and to restore a sense of hierarchical order that validates their position in society. The opinion itself invites such a response.

First, it goes out of its way to say not just that opposing views, but Roe itself were never legitimate. Alito’s majority opinion declares that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”²⁵⁸

Second, it dismisses women’s interest in their bodily integrity as of no consequence, suggesting that those interests are amply protected through existing laws.²⁵⁹

Third, while the opinion claims not to base the decision on recognition of a fetus as a human being from the moment of conception forward, it clearly views state actions based on such views as a legitimate basis for legislative action and declares that the fact that abortion serves to “destroy a ‘potential life’ ” justifies the Court’s treatment of Roe as precedent entitled to less deference than other Supreme Court precedents.²⁶⁰

Fourth, unlike other Supreme Court decisions announcing a major change in governing law (with all deliberate speed),²⁶¹ the Court provides no guidance for the states and no timelines for implementation. It simply overturns Roe and leaves the states—and the pregnant—on their own in the face of a rapidly shifting and still uncertain legal landscape.

The majority opinion thus has the hallmarks of an act of vengeance righting a wrong, rather than serving to provide judicial guidance in the face of contentious issues. It seeks to restore the moral hierarchy associated with the forces that see abortion as necessarily impermissible. It affirms states’ right to ban abortion without addressing the impact on the rights of states who wish to ensure its continuing availability. And in not only issuing the Dobbs’ decision, but in failing to restrain the states’ earlier vigilante laws,²⁶² the Court’s current stance suggests that the states will be free to treat abortion as murder and punish those who provide abortions, those who seek abortions, and those who aid and abet those involved with abortions in any way.

V. THE FUTURE OF ABORTION PUNISHMENT

Abortion has become a flash point for political division because it falls on the fault lines of cultural polarization and political realignment.²⁶³ After Dobbs, the factors that drive political divisions are likely to overlap with the factors driving calls to punish those seeking and providing abortions.

In analyzing and moving forward on these issues, it is first critical to understand the sources of the call for punitive measures and then to consider whether a focus on punishment can also provide a strategy for defusing the conflict.²⁶⁴ Without such a strategy, this Article concludes, the likely result is a replication of the conditions that preceded Roe: pregnancy as the punishment for sex, aggravating the existing class and regional bifurcation in unintended births; a high-profile fight between elite actors on the boundaries of post-Dobbs public morality; and selective enforcement that disproportionately penalizes poor and minority women. As an alternative, this Article proposes that using the punishment lens analysis can serve as a means to de-escalate the coming legal wars over abortion.

A. Values Polarization and Abortion Punishment

The analysis of the factors underlying the calls for punishment start with the factors driving political polarization. Political theorists link partisan polarization to a sorting between the parties based on cultural values. They describe those with conservative values orientations as favoring in-group unity and strong leadership, and having “a desire for clear, unbending moral and behavioral codes,” that include an emphasis on the importance of punishing anyone who strays from the code, “a fondness for systematization,” as well as “a willingness to tolerate inequality (opposition to redistributive policies).”²⁶⁵

Those with a liberal values orientation, in contrast, tend to be more tolerant to outsiders, to consider context rather strict rules adherence when it comes to determining appropriate behavior.²⁶⁶ They also demonstrate more empathy and less interest in strict punishment for violations of moral and behavioral rules and greater intolerance of inequality.²⁶⁷

Attitudes toward abortion both reflect and contribute to the partisan polarization.²⁶⁸ Abortion attitudes have become more partisan over time, and psychologist Drew Westen describes this outcome as a matter of intentional political strategy.²⁶⁹ Such a strategy was designed to attract people who see abortion in rigid moral terms to the Republican party in the 1990s,²⁷⁰ and as that happened, self-identified Republicans became more opposed to abortion.²⁷¹ Stances on abortion accordingly became a political marker.

Public opinion polls today confirm the high degree of partisan polarization on abortion. While 61% of all Americans believe that abortion should be legal in all or most cases, 60% of Republicans—and 72% of those who identify as “conservative Republicans”—believe that abortion should be illegal in all or most cases.²⁷² In contrast, 80% of Democrats and 90% of “liberal Democrats” believe that abortions should be legal in all or most cases.²⁷³ Public opinion polls indicate that support for the imposition of criminal sanctions closely tracks abortion views generally.²⁷⁴

These attitudes correspond to the purposes and pitfalls of punishment. All groups seek affirmation of their values, but the values to be expressed are not parallel in their relationship to the imposition of punishment. Abortion rights advocates seek to preserve a right to privacy free from government intrusion through the democratic process, including referenda as well as litigation. To the extent they wish to exact punishment for taking away abortion rights, they have suggested defeating anti-choice politicians at the ballot box,²⁷⁵ impeaching Supreme Court justices for perjury about their willingness to follow precedent,²⁷⁶ and requesting ethics investigations.²⁷⁷ We could also imagine more aggressive efforts to counter the efforts of anti-abortion activists who attempt to interfere with abortion in states where abortion remains legal.²⁷⁸ Some of the most important actions pro-choice states have taken, however, is greater support to assist those coming from out-of-state, protecting their own health care workers, and ensuring access to medication abortion. ²⁷⁹ The symbolism involves a greater and more visible state embrace of a right of abortion access.

The punishment desired by those opposed to abortion, by contrast, has two components. The first involves the expressive function of law and the declaration that abortion is wrong.²⁸⁰ The declaration reaffirms the moral hierarchy that elevates those who oppose abortion entirely; empirical studies indicate that when abortion is perceived as a “moral wrong” that produces outrage in those who oppose it; they dehumanize the women (and their partners) who seek abortions.²⁸¹ Expressing this moral opposition even has a “shaming effect” on those who require abortions because of significant health issues.²⁸² It also justifies subjecting those who seek therapeutic abortions to intrusive review of their doctor’s medical determinations or requiring those experiencing rape or incest to face onerous proof requirements, retraumatizing victims of sexual assault. Yet, the symbolic effect can occur with limited punishment, prosecuting only occasional cases that involve public defiance of the new abortion bans.

This dehumanization and shame, in turn, empowers those who would pursue the second component: waging a war to root out the practice. The National Right to Life Committee has proposed sweeping measures, for example, that would not only criminalize abortion itself, but treat it as a “criminal enterprise” that needs to be eliminated using “RICO-style laws” that would reach anyone providing any type of support to someone seeking an abortion. ²⁸³ These provisions target not only medical personnel but those providing abortion information.²⁸⁴ Others propose empowering not only state prosecutors but individual citizens to conduct surveillance on those visiting out-of-state abortion clinics, accessing internet websites providing abortion information, or even monitoring the pregnant (and their friends and family) more generally.²⁸⁵ These activities, particularly when carried out by private “vigilantes,” combine opposition to abortion with a moral crusade. While some laws immunize the pregnant from prosecution, existing laws in many states have already been used to prosecute women experiencing miscarriages for “feticide”²⁸⁶ and more draconian laws have been proposed that provide for prosecution for crimes based on an abortion.²⁸⁷ Even without new laws, the Attorney General of Alabama, for example, threatened to prosecute those crossing state lines to terminate their pregnancies or using abortion pills as child chemical endangerment, even if the patients legally obtain the pills within Alabama.²⁸⁸

Finally, prosecutions, particularly if they are brought against those who seek abortions, are likely to enforce gender, race and class hierarchies. As anti-abortion fervor has mounted, some states over the last decade have increased criminal investigations of various types of pregnancy loss, including not just self-induced abortions but also miscarriages, stillbirths, and any form of infanticide.²⁸⁹ These cases overwhelmingly target “pregnant people who are poor, young, have substance abuse issues or live in areas with limited health services.”²⁹⁰ Advocates fear the reversal of Roe will fuel more such cases and particularly harm women of color, already disproportionately overpoliced and prosecuted on pregnancy-related issues.²⁹¹ Farah Diaz-Tello, an attorney who works on reproductive health rights commented, “It’s this vicious cycle where lack of access, . . . increased scrutiny and stigma around abortion, as it becomes further restricted or criminalized, leads to more criminalization.”²⁹² And the fact that the individuals are poor, minority group members, substance abusers, or otherwise lack full control of their lives contributes to the willingness of others to impose moral condemnation on their behavior.

Dobbs will only make this worse.

B. Punishment in the Courts

Striking down Roe invited the states to adopt abortion bans that, in criminalizing abortion, also prescribe punishment. The courts have historically policed the limits of criminal punishment, requiring, for example, that criminal laws provide clear notice as to what acts are proscribed, that those accused enjoy appropriate procedural protections, and punishments are proportionate to the offence. This Article has gone beyond these traditional concerns to address how the Supreme Court uses a punishment lens to accomplish broader objectives, particularly in the face of irreconcilable and intrinsically divisive issues, and issues that may threaten judicial legitimacy. Abortion certainly qualifies as divisive, and Dobbs has already raised serious concerns about judicial legitimacy.

Indeed, in the years since Roe, anti-abortion activists have made the fetus the issue—with the impact on the person forced to give birth disappearing from view.²⁹³ When the fetus becomes the subject of concern, consensual sex—with no victims other than public mortality—is beside the point. When prosecutors act to prosecute abortions, they are passing moral judgment on the permissibility of the abortion itself and often imposing significant penalties.²⁹⁴

Two arenas in particular, however, offer the Court an opportunity to tamp down the Dobbs-inspired conflicts.

First, if the Supreme Court seeks to deflect the outrage over Dobbs, the simplest way would be to take seriously its own statement that all it has to do is to return the issue to the states.²⁹⁵ Taking that seriously requires protecting the rights of states that wish to secure access to abortion—and protecting, as Justice Kavanaugh suggested in his concurrence, the constitutional right to travel.²⁹⁶ The most basic question involving the right to travel is whether citizens of one state can travel to another state, return to their home state, and be punished for their out-of-state conduct. Existing precedent from the Roe era suggests that such conduct is constitutionally protected and other limits on state jurisdiction ordinarily preclude punishment for out-of-state acts.²⁹⁷ Affirming the constitutional right to travel should also mean that states cannot burden exercise of the right to travel, by punishing, for example, those within the state who assist the traveler in leaving the state or acts that a pregnant person takes within the home state, such as researching out of state options, packing one’s bags, or driving to the state line for the purpose of accessing abortion in another state, just as the Court concluded in Hobby Lobby that forcing an employee to choose between an ACA compliant health plan or a monetary contribution to ACA funding constitution a burden on religious freedom.²⁹⁸ The Court should also strike down punishment that creates obstacles to First Amendment rights of expression, ²⁹⁹ such as penalizing websites or advice to individuals that contain accurate information about abortion and out-of-state availability.³⁰⁰ The Court could also recognize that states encouraging private citizens to track those accessing out-of-state abortion clinics, websites, menstrual periods or other personal information either serves no legitimate state purpose to the extent it is intended to penalize the right to travel or, like searching the marital bedroom for contraceptives, is so intrusive as to be constitutionally suspect. ³⁰¹ Striking down punishment that burdens the right to travel could simultaneously affirm state abortion bans and still protect its availability in the states that permit it.³⁰²

The second arena where a punishment lens could be effective in defusing abortion controversies involves women’s right to medical treatment to protect their health. Statutes banning abortion pose a dilemma for doctors; they report that they fear retaliation for performing abortion-like procedures—even when the fetus is dead or the health threat to the patient is significant.³⁰³ In these cases, the risks are asymmetrical: the doctor faces punishment for “doing the right thing” and little in the way of negative consequences for not acting, even if the patient dies as a result.³⁰⁴ Uncertainty itself thus imposes punishment—and serves the purposes of those who would root out abortion (with inevitable spillover effects to abortion-like procedures). Yet, criminal prosecutions of the doctor in these cases, while risky and expensive for the doctor personally, could bring the criminal justice system into disrepute. For those seeking to ensure abortion access, the question therefore should be how to bring the issue of punishing doctors—and the corresponding ability of the pregnant to receive abortions necessary to protect their health—into public focus. Test cases on enforceability of abortion bans in circumstances threatening the life of the mother might bring greater clarity.³⁰⁵ Such suits could also focus attention on the health threat that punishment poses to pregnant patients. Heavy-handed interventions into newborn care, in which governors sought to prolong the lives of children born with substantial birth defects, helped to discredit the interventions.³⁰⁶ The same approach might work in the context of pregnancy care. Justice Blackmun’s initial draft opinion in Roe sought to focus on the issue of professional judgment.³⁰⁷ Partisan differences on abortion are smaller (and overall support for punishment is substantially less) when the mother’s health is at risk.³⁰⁸ Striking down abortion laws that do not clearly immunize doctor’s decisions about medically therapeutic abortions is a first step; recognizing that the pregnant have a right to abortions necessary to protect their health is an important second step.

In cases of rape and incest, the effort ought to go further to highlight the callous treatment of such victims. Governor Greg Abbott declared, in response to questions about precluding abortion for the victims of involuntary sexual activity, that “Texas will work tirelessly to eliminate all rapists from the streets of Texas . . . .”³⁰⁹ In short, the Governor tried to deflect claims of punishment of one type (forcing the victims of rape to carry the rapist’s child to term) by talking about another type of punishment—that imposed on rapists. The veracity of the claim is not the issue, particularly because Texas has one of the highest rape rates in the country and Abbott had done little to combat it.³¹⁰ As with abortions necessary to protect the lives of the pregnant, partisan differences narrow considerably on cases of rape and incest and the failure to provide such exceptions underscores the punitive nature of the restrictions. ³¹¹

Finally, cases in which patients are prosecuted ought to be used to highlight the cruelty associated with abortion restrictions in the United States.³¹² Restricting access to abortion is in fact just one more form of punishment of the marginalized, with the same groups that support abortion restrictions also opposing more generous provisions to the poor.³¹³ White evangelical Protestants, for example, the religious group most opposed to abortion,³¹⁴ is also one of the groups most likely to respond that aid to the poor does more harm than good.³¹⁵ And the same groups have become more likely to oppose immigration and efforts to promote racial equality³¹⁶ and to favor imposition of preferred values through authoritarian means.³¹⁷ The cruelty of abortion bans is a large part of what motivated the decision in Roe. With abortion opponents calling for draconian enforcement measures,³¹⁸ it should be a factor in mobilizing the opposition to post-Dobbs enforcement of abortion restrictions.³¹⁹

CONCLUSION

Focusing on punishment will not resolve intractable values disputes; it simply changes the subject. Changing the subject, however, does offer a tactic for diffusing intractable disputes—or a long-term strategy for reframing what is at stake. In either case, it makes visible the consequences of public actions, such as abortion bans, on those affected by them in ways that can serve to underscore their cruelty. The public wants its core values expressed and respected in the public square; in cohesive societies the values are consensus based, and punishment reinforces them. The urge to punish, when embedded in group conflict, inflames divisions (threatening violence or civil war); channeling it effectively is central to the rule of law. Understanding this dynamic gives the Court tools (and a motive) to construct an offramp: it also allows states to decide their own approaches to abortion while protecting the pathways out of the states that ban it, and ensures that doctors can save the lives of their patients.

96 S. Cal. L. Rev. 1101

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June Carbone*

* Robina Chair in Law, Science and Technology, University of Minnesota Law School.

Naomi Cahn†

† Justice Anthony M. Kennedy Distinguished Professor of Law, Nancy L. Buc ’69 Research Professor in Democracy and Equity, University of Virginia School of Law. Thanks to workshop participants at the University of Minnesota Law School Squaretable for comments and to Sam Turco for research assistance, and to Katherine Bake, Mary Anne Case and John Q. Barrett for comments on an early draft.

Delegating War Powers

February 2024February 2024Michael D. Ramsey* & Matthew C. Waxman†

Academic scholarship and political commentary endlessly debate the President’s independent constitutional power to start wars. And yet, every major U.S. war in the last sixty years was fought pursuant to war-initiation power that Congress gave to the President in the form of authorizations for the use of military force. As a practical matter, the central constitutional question of modern war initiation is not the President’s independent war power; it is Congress’s ability to delegate its war power to the President.

It was not until quite late in American history that the practice of war power delegation became well accepted as a domestic law basis for starting wars. This Article examines the development of war power delegations from the founding era to the present to identify when and how war power delegations became a broadly accepted practice. As this Article shows, the history of war power delegation does not provide strong support for either of two common but opposite positions: that war power, as a branch of foreign affairs powers, is special in ways that make it exceptionally delegable; or that it is special in ways that make it uniquely nondelegable. More broadly, that record counsels against treating “foreign affairs delegations” as a single category, and it reveals that constitutional questions of how Congress exercises war power are as significant as whether it does.

INTRODUCTION: WAR POWER AND THE NEW NONDELEGATION DEBATES

Academic scholarship and political commentary endlessly debate the President’s independent constitutional power to start wars or launch military interventions.¹ And yet, every major U.S. war in the last 60 years—Vietnam, the Persian Gulf War, Afghanistan, and the 2003 Iraq War—was fought pursuant to war-initiation power that Congress gave to the President in the form of authorizations for the use of military force.²

Congress’s war power—and by that term, or alternatively “war-initiation power,” we mean throughout this Article specifically the power to commence war, as distinct from power to wage it³—is generally understood to arise from Article I, Section 8’s power “To declare War.”⁴ But none of the congressional war authorizations of the past sixty years was in any sense a declaration of war. None had the effect of initiating, or directing the initiation, of military conflict. Instead, they were broad delegations to the President of the power to decide when and whether to initiate hostilities. In each case the President did use force (and it was apparent beforehand that he likely would, at least to some extent), but Congress left that decision to the President.⁵ Thus, as a practical matter, the central constitutional question of modern war initiation is not the extent of the President’s independent war power; it is the extent of Congress’s ability to delegate its war power to the President.

Until very recently, that latter question seemed easy—so easy that it was rarely asked. Under the Supreme Court’s modern nondelegation doctrine, Congress can, for the most part, delegate power to the President if it includes an “intelligible principle” by which the delegated power would be exercised—and this principle presents an exceptionally low bar, reviewed by courts with a high degree of deference.⁶ So while Congress likely could not delegate to the President discretion to start wars anywhere for any reason, delegations limited to particular places or particular threats (even stated broadly) would easily pass the test.

The conventional permissive nondelegation doctrine has, however, been called sharply into question by academic commentators⁷ and, more importantly, by the Supreme Court. In particular, Justice Gorsuch’s 2019 dissent in Gundy v. United States, joined by Chief Justice Roberts and Justice Thomas, argued for a new, more restrictive approach to the doctrine.⁸ In a separate opinion, Justice Alito signaled willingness to revisit the doctrine in an appropriate case,⁹ and two Justices added since Gundy—Justices Kavanaugh and Barrett—may have sympathy for the project as well.¹⁰ In 2022, the Court rejected the Environmental Protection Agency’s purported authority to regulate carbon emissions, reasoning that extra scrutiny and strict statutory interpretive rules apply to claims that Congress delegated to executive agencies power over “major” public policy questions.¹¹ Justice Gorsuch, joined by Justice Alito, wrote separately to emphasize the foundational constitutional importance of keeping major legislative decision-making in Congress.¹² One senses that a substantial revision of the nondelegation doctrine may be impending, thus provoking new scholarly attention to—among other things—the historical practice of delegation.¹³

War powers have not yet been a focus of this renewed nondelegation debate—but they should be. That is especially so because when the issue comes up, those who consider it are often pulled in one of two opposing directions.

One view sees war-initiation power as special in ways that make it unusually—maybe even uniquely—non-delegable.¹⁴ In this view, there is something about going to war, including the stakes or the institutional advantages and proclivities of the different branches, that constitutionally requires Congress to retain ultimate control. For Congress to yield substantial discretion over such a monumental decision to the President violates a key design feature of the Constitution.

A contrary and more common view (at least in the modern era) sees war-initiation power as special in ways that make it unusually delegable. Some justices and commentators have suggested that a more stringent nondelegation doctrine, even if revived in domestic matters, would not apply to foreign affairs.¹⁵ And, indeed, at the height of its nondelegation jurisprudence in the 1930s, the Court in United States v. Curtiss-Wright Export Co.¹⁶ indicated that the doctrine generally applies less strictly in foreign affairs than in domestic matters. Given that war powers are (again, at least in the modern era) a quintessential foreign affairs matter, and given that the President has some independent military powers, this view treats war powers as especially delegable.

Neither of these opposing views has been accompanied by sustained examination of historical practice. Such examination is important not just for history’s sake but because historical interpretive gloss often plays an important role in constitutional separation of powers law¹⁷ and because, in addition to the rising originalist orientation of the Supreme Court, the political branches often invoke originalism to support their respective positions on war powers.

This Article examines the development of war power delegation from the founding era to the present to identify when and how war power delegations became a broadly accepted practice. Ultimately, we argue that the historical record does not provide strong support for either of the two polar views described above: that war-initiation power is exceptionally delegable, or that it is uniquely nondelegable. Throughout much of American history, both political branches sometimes treated war initiation as constitutionally distinct, but not so consistently to alone justify either of those positions. We then explore what that history suggests about both constitutional war power and foreign affairs delegations more generally.

We show first that, contrary to common assumptions, early American history offers little support for broad war-initiation delegation. If anything, the historical record reveals that such delegations were rare and narrow, and sometimes accompanied by strong expressions of concern. In that way, this Article contributes directly to the current debate about nondelegation originalism, pointing to the ways in which war power in particular was understood to operate. We then go on to show that even as war power delegations became more widely used in the nineteenth and especially the twentieth centuries, eventually becoming an accepted practice during the Cold War, constitutional objections to war power delegations have had remarkable staying power. Even if now a minority view, they resurface again and again, especially at moments of major controversy about the role of military force in American foreign policy.

We do not contend that the historical record alone yields a clear doctrinal answer to whether and to what extent the war power is delegable—and, to reiterate, by that we mean the power to commence war as distinct from powers over how to wage it.¹⁸ A comprehensive doctrinal analysis would look at other factors, including functional arguments.

Nevertheless, our analysis of the historical record yields at least four implications for thinking about law in this area. First, this Article casts doubt on efforts to separate a category of “foreign affairs delegation” from resurgent controversies about the nondelegation doctrine in general, because it shows that foreign affairs delegation is not a single, coherent category. Those who want to breathe new life into the nondelegation doctrine, often on originalist grounds, sometimes carve out foreign affairs for special treatment as an area in which broad delegation of executive policy discretion seems especially appropriate. This Article, however, draws attention to the ways in which war-initiation power has historically been viewed as distinct from some other foreign affairs delegations. Contrary to the tendency of some constitutional critics of delegation in general to see Congress’s war power as an area in which delegation is especially appropriate, this Article spotlights arguments as to why war power delegation has sometimes been viewed as uniquely problematic. Among other things, this account complicates efforts by some jurists and commentators to pursue on originalist grounds a restrictive domestic nondelegation doctrine while preserving broad delegations as to war and foreign affairs.

Second, this Article shows that the contemporary emphasis in constitutional debates on whether Congress authorizes war or force misses the historical emphasis on how Congress does so. The stakes involved in the latter are immense, too. Any reform project aimed at restoring Congress’s “original” war powers also needs to grapple with constitutional limits to their delegation.

Third, the periodic reemergence of war power nondelegation objections illustrates how constitutional arguments have always been a major part of policy debates over U.S. military power. A defining feature of American constitutional war powers is the extent to which, even centuries after the founding, many basic legal questions remain contested, and the extent to which partisans in strategic debates over the use of military force wield constitutional arguments for political effect. This point is worth highlighting at this moment because U.S. overseas military commitments face intense resistance from both the right and the left. The history in this Article suggests that we will likely see an uptick in war power nondelegation arguments again as a tool of resistance to military adventurism—and at a time when nondelegation doctrine generally seems to be in some flux.

And, fourth, this Article shows the many ways in which war power delegations have been used or proposed to deal with a wide array of novel strategic challenges. One obvious function of war power delegation is to manage complexity, by giving the President leeway to respond quickly and flexibly to crises. This fits with standard arguments for delegation in general. The story of war power delegation is more intricate. This tool also served as a device for handling various, specific challenges—including dilemmas that were virtually unimaginable to the founders—that arose over time in the context of overseas policing, collective security, and nuclear deterrence.

The Article proceeds as follows. Part I considers what, if anything, the Constitution’s drafting and ratifying history can contribute to debates about war power delegation. Part II examines historical war power practice up to 1860 under four categories of conflicts and their legal bases: (1) formally named “wars”; (2) the “Quasi-War” with France in 1798–1800; (3) lesser-known nineteenth-century episodes in which war power delegation was considered or debated but no actual military conflict ensued; and (4) other use-of-force delegations relating to frontier conflicts with Native American tribes, piracy, and insurrections. Part III looks at delegations from the Civil War to the Second World War, a period in which the nation’s emergence as a global power was, perhaps surprisingly, not accompanied by any material delegation of war-initiation power. Part IV examines practices beginning with the Cold War, in which we find the most decisive shift to a regime of broad delegation of war power. Part V discusses the implications of this history for war powers doctrine, foreign affairs nondelegation doctrine, and war powers reform.

I. WAR POWER DELEGATION AT THE FOUNDING

A vast scholarly literature has explored the extent to which the Constitution’s original design vested the war power exclusively in Congress.¹⁹ Article I gave Congress the power to declare war, and Article II vested executive power in the President and made the President commander in chief. Debate rages today about whether, beyond giving the President wide powers to control the conduct of war, those Article II powers also include authority to initiate military hostilities. We do not relitigate that issue here. For present purposes, we assume that the original design gave Congress some exclusive war power—a proposition not widely contested—and ask instead what founding-era debates suggest about Congress’s ability to delegate that exclusive power (whatever its extent may have been) to the President.

We find that the founding-era debates say surprisingly little on the matter. Neither the framers nor the ratifiers appear to have engaged war power delegation directly. The war power did not play a large role in founding-era debates, and contemporaneous commentary on that power lacked detail about how it would be exercised. Further, discussions of delegation more broadly (which themselves were rare) do not have obvious implications for war power delegations. The founding-era debates and background understandings do not clearly establish congressional authority to delegate war powers. If anything, they indicate strong beliefs among at least some key framers that important war power decisions should not lie with the President, raising doubt whether those framers would have thought it permissible for Congress to broadly hand them off to the President by statute.

A. War Initiation in the Convention and Ratification Debates

The records of the 1787 Philadelphia Convention indicate that delegates discussed war powers on two material occasions. Although both exchanges convey a strong sense that Congress, not the President, should hold war-initiation power, neither considers the question of war power delegation directly or definitively.

On May 29, Edmund Randolph opened the Convention’s substantive debate by introducing the Virginia Plan,²⁰ which soon prompted a discussion of the war power. The Plan said nothing directly about war power, but it proposed a national government headed by a “National Executive” which, in addition to “general authority to execute the National laws,” would have “the Executive rights vested in Congress by the [Articles of] Confederation.”²¹ Various speakers objected that this language could be read to give war powers to the President.²² The delegates did not vote specifically on the war power point, but on a subsequent motion by James Madison (seconded by James Wilson) they dropped the reference to the executive powers of the Confederation Congress and substituted a direction that the executive would have power “to carry into execution the national laws” and “to appoint to offices in cases not otherwise provided for.”²³ The task of defining legislative and executive powers ended up with the inaptly named Committee of Detail,²⁴ which delivered to the Convention on August 6 a draft giving Congress the power “To make war.”²⁵

When the full Convention reached the “make war” language on August 17, Charles Pinckney suggested that the war power should go to the Senate rather than Congress as a whole, and Pierce Butler spoke in favor of “vesting the [war] power in the President.”²⁶ Butler’s suggestion received no recorded support; Elbridge Gerry replied that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.”²⁷ Madison and Gerry famously moved to replace “make” with “declare,” which passed eight states to one.²⁸ That vote established what became the Constitution’s final language,²⁹ and the delegates seem not to have returned to it.

The August 17 debate tends to support the idea of congressional war-initiation power, but it is unhelpful on the question of delegation. Questions of how Congress would exercise war power were not addressed directly at all. One might argue that the delegates’ focus on the dangers of executive war initiation suggests that they would not have wanted Congress to delegate it broadly to the President.³⁰ Ellsworth and Mason, for example, seemed to favor congressional war power as a way of reducing the likelihood of war—because they thought presidents would be too inclined toward it.³¹ Sherman and Gerry argued (along with Pinckney, Rutledge, Wilson, and Madison in the earlier debate) that the President should not have war-initiation power.³² Perhaps this meant they thought the President should not have war-initiation power even with Congress’s approval, but that is not certain. Alternatively, they (or some of them) might have thought only that Congress should make the initial decision, but that decision might include empowering the President ultimately to exercise discretion. In the end, only a few delegates spoke to the war power issue (though the speakers included some of the most influential delegates).³³ It seems that the delegates were thinking generally about the question of which branch should have war power, and what the scope of that power would be,³⁴ but were not focused on how that power would be exercised in practice, including the permissibility or impermissibility of delegating it.

This pattern continued in the ratification debates. As at the Convention, war initiation was not a major focus. When it came up, speakers seemed to assume it was a congressional power without dwelling on how they expected Congress to exercise it. For example, in an often-quoted passage, James Wilson in Pennsylvania said:

This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress, for the important power of declaring war is vested in the legislature at large; this declaration must be made with the concurrence of the House of Representatives. From this circumstance we may draw a certain conclusion, that nothing but our national interest can draw us into a war.³⁵

The Federalist also had little to say about war initiation. The most significant discussion is in Federalist 69, in which Alexander Hamilton—a bit disingenuously—compared the President’s power under the Constitution to the power of the British monarch and the governor of New York. Regarding war power, Hamilton noted that while the monarch alone could declare war, under the Constitution that power “would appertain to the legislature.”³⁶

As with the comments at the Philadelphia Convention, these statements can be read to imply a nondelegable power in Congress. Although Wilson’s comment does not address delegation directly, concerns about lodging war initiation in a single person—instead demanding that such decisions ultimately rest with both houses of Congress—might also cut against allowing Congress to delegate its war power to the President. But again, that is far from certain. Such statements might only mean that Congress must make the initial decision regarding war, but that choice might include a decision to pass discretionary authority to the President. In Hamilton’s contrast between the British monarch and the Constitution’s President, even if Congress’s war-initiation power were delegable, placing it in Congress in the first instance would still represent a substantial limit on the President’s power compared to the British monarch’s.

Like the drafting debates, the statements regarding war power in the ratification period have only limited value for our inquiry. They are isolated statements by only a few participants (albeit important participants), not addressed to the particular issue of delegation, and not part of an extended discussion of the operation of war powers. Their central focus was to point out an important constitutional limit on presidential power. Their phrasing—and the fact that they were not contested by anti-federalist speakers or writers—indicates a broad consensus on the basic proposition that allocating declare-war power to Congress implicitly denied the President a corresponding independent power. But, how Congress could exercise its declare-war power is a different matter.³⁷

B. General Understandings of Delegation in the Founding Era

The framers and ratifiers might not have addressed war-initiation delegations specifically because they had a broader understanding of delegation that would encompass war power along with many other congressional powers. The founding-era view on that broader issue is sharply contested, with some scholars contending that the founding generation generally saw Congress’s powers as delegable subject perhaps to only modest limits³⁸ while other scholars argue that the founding generation held more exacting restrictions on congressional delegation.³⁹ This debate has said little about war power directly, and we do not take a position on it here.

One specific strand of that debate over the founders’ view of delegation, however, is quite relevant to war power and merits further discussion. Several commentators have suggested that, notwithstanding substantial general limits on delegation, the framers may have understood foreign affairs powers to be broadly delegable. Because that categorical exception might include war-initiation power, we address it briefly here.

The core case against delegation starts with the text of Article I, Section 1: “All legislative Powers herein granted shall be vested in a Congress of the United States . . . .”⁴⁰ By negative implication, it may be argued, legislative powers shall not be vested elsewhere—and statutes delegating power to the President, to the extent they transfer that legislative power to the President, appear to violate this directive.⁴¹ Further, influential English political theorists including Locke and Blackstone had suggested that delegation of lawmaking power by the parliament to the monarch threatened separation of powers.⁴² These sources may indicate a background principle of nondelegation informing the founding-era understanding of Article I.⁴³ But even if the Constitution contained such a broad nondelegation principle regarding Congress’s legislative powers, it is not clear how it would relate to war-initiation power (and other foreign affairs powers). Under the British system, war initiation—like much of foreign affairs—was a power of the monarch, not of parliament.⁴⁴ Thus, to the framers and the thinkers who influenced them, war power may not have been considered the type of lawmaking (that is, making rules governing ordinary private behavior) to which nondelegation principles applied.⁴⁵

The most developed defense of this position, principally based on Convention debates, comes from Professor Michael McConnell. He suggests that “the non-delegation doctrine, with its roots in the rejection of a Proclamation Power, may apply only to lawmaking, not to the former royal prerogative powers given to the legislative branch.”⁴⁶ He finds support in an exchange near the outset of the Convention, in which participants discussed and rejected a proposal by Madison to specify that the executive would have power “to execute such other powers not Legislative nor Judiciary in their nature as may from time to time be delegated by the national Legislature.”⁴⁷ McConnell suggests that the Convention accepted the view that Congress could authorize presidential exercise of congressional powers if those powers were not legislative in nature, and that the President’s exercise of such delegated powers was within the law execution power.⁴⁸ He goes on to include “formulating foreign policy” as an example of powers that are not judicial or legislative in nature and which might be especially delegable to the President.⁴⁹

Perhaps, but this seems far from certain. There was little recorded debate on this issue, and it seems unclear whether the delegates rejected Madison’s proposal because they thought it redundant (McConnell’s view) or because they opposed it on the merits. Nor is it clear whether the category of matters “not Legislative nor Judicial in their nature” approximated the former royal powers or included foreign affairs. And even if McConnell is right about the broad outlines of his conclusion, it is unclear whether Convention participants would have regarded war power as within the category of non-legislative delegable powers. Several key delegates, including Wilson and Madison himself, said or implied that war power was legislative in nature (even if some other foreign affairs powers might not be).⁵⁰

In sum, it is difficult to discern how the founding generation would have thought general principles of delegation applied to war power, even if one could determine what, if any, general principles on delegation they held in common. Lacking specific discussion of war power delegations, the founding-era debates and assumptions seem not to provide clear direction on the matter.

II. DELEGATION AND WAR POWER, 1789–1860

Given the ambiguity of the founding era regarding war power delegations, early practices may be particularly salient in establishing precedent.⁵¹ This Part examines early congressional practice relating to delegation and military conflicts. It proceeds in four parts. First it considers conflicts that Congress formally designated as “war.” Second, it describes the most significant authorization of military force in the period apart from formal declarations, the naval “Quasi-War” in 1798–1800. Third, it considers a series of lesser-known incidents involving delegations that did not lead to material conflicts. Finally, it examines delegations relating to uses of force in frontier conflicts with Native American tribes and suppression of piracy and insurrections.⁵²

We conclude in this Part that the early record of war-initiation delegation is surprisingly thin. Delegations during this period were scattered, relatively narrow, and often accompanied by special circumstances that caution against their use as broad precedents. Moreover, proposals to delegate war-initiation authority (or related authority) were sometimes opposed on constitutional grounds, including on the grounds that war-initiation power was especially nondelegable. These objections stand in contrast to Congress’s extensive delegations during this period as to the manner in which the President might conduct wars and other uses of force that Congress authorized.

A. Formal Wars

In the first seventy years of practice under the Constitution, Congress recognized four wars against foreign powers by name and authorized the President to use the U.S. military to fight them. Two of these are the well-known conflicts with Britain, begun in 1812, and with Mexico, begun in 1846. The other two, less commonly included on the list of formal wars, are conflicts with Tripoli (authorized in 1802) and Algiers (authorized in 1815).

The War of 1812 was the only time in this period that Congress used the phrase “declare” war. Amid rising tensions with Britain on various matters, President Madison asked Congress for a declaration of war in mid-1812, and Congress responded with an Act stating that “[W]ar . . . is hereby declared to exist between [Britain] and the United States . . . and that the President of the United States is hereby authorized to use the whole land and naval force of the United States to carry the same into effect . . . .” ⁵³

Notably for our purposes, the 1812 statute was not a delegation of war-initiation power. Unlike modern authorizations, it did not leave war initiation to presidential discretion. Congress itself invoked the state of war. The statute went on to authorize broad presidential discretion in conducting the war. But that is distinct from war initiation. At minimum, the Commander-in-Chief clause indicates a shared power of war-making between the President and Congress.⁵⁴ Congress’s recognition of broad presidential discretion signaled Congress’s decision not to direct or limit the President’s exercise of the commander-in-chief power in conducting the hostilities.

Congress’s first formal recognition of a state of war came a decade earlier in 1802. The Pasha (ruler) of Tripoli, in modern Libya, as a prelude to beginning piratical attacks on U.S. merchant shipping in the Mediterranean, formally declared war against the United States in 1801.⁵⁵ President Jefferson asked Congress for authority to respond;⁵⁶ in early 1802, Congress recognized a state of war and authorized the President to conduct hostilities against Tripoli.⁵⁷ Although Congress did not use the word “declare,” the 1802 Act resembled the subsequent 1812 declaration in other significant respects—including that it did not delegate war-initiation authority. Congress itself acknowledged the war’s existence. Again, Congress recognized broad presidential authority to conduct the war, but the President presumably would have had that authority in any event once the existence of war was established.⁵⁸

The 1815 events with Algiers resembled the earlier Tripoli conflict. During the War of 1812, Algiers’s navy began seizing U.S. shipping, but the United States had little ability to respond with force. After hostilities with Britain ceased, President Madison asked Congress for war-making authority, which Congress granted in similar terms to the 1802 Tripoli authorization. As with Tripoli, Congress did not delegate war-initiation power; it recognized a state of war and authorized the President to direct the military conflict as he saw fit.⁵⁹

Finally in this period, Congress recognized a state of war with Mexico in 1846. In popular history the Mexican War is often listed with the War of 1812 as a “declared” war. In fact, Congress’s authorization of the Mexican War tracked its authorization of the Algiers and Tripoli conflicts, not using the word “declare” but instead recognizing the existence of a state of war resulting from the other party’s acts. Prior to the war, President Polk (without Congress’s authorization) sent U.S. troops into territory claimed by both the United States and Mexico, whereupon Mexican forces attacked U.S. troops in the disputed territory. Polk then asked Congress to recognize a state of war created by Mexico, which Congress did.⁶⁰ Leaving aside the much-debated constitutionality of Polk’s provocative deployment,⁶¹ for present purposes the key point is that Congress did not delegate war-initiation power to the President. As in the previous conflicts, Congress made the decision for war itself and authorized broad presidential discretion in the means of fighting it.

In sum, Congress’s treatment of formal war authorization in the early nineteenth century differed significantly from Congress’s modern authorizations. None of the four nineteenth-century acts delegated war-initiation authority. In each of them, Congress itself stated the existence of war without qualification. This contrasts with modern authorizations that, as discussed below, leave to the President the decisions when, whether, and (sometimes) against whom to begin hostilities. Early nineteenth-century practice regarding formal war authorizations thus affords little precedent for modern delegations of war-initiation power.

These four episodes do support broad congressional delegation of power over the conduct of war. But this should not be read to endorse delegation of congressional war-initiation power because the President was likely understood to have independent war-waging authority once Congress recognized a state of war. To the extent Congress has concurrent authority to manage the conduct of war, the nineteenth-century authorizations signaled that Congress would not exercise that power and left the conduct of war to the President. As a result, early precedent for the delegation of war-initiation power must be sought elsewhere.

B. The Quasi-War

The naval war with France at the end of the eighteenth century, called the Quasi-War,⁶² is a frequently cited example of early post-ratification delegation. David Currie observed: “The bellicose legislation of the Fifth Congress was riddled with broad delegations of authority.”⁶³ As to war initiation delegation, however, that is something of an overstatement.

The conflict opened in 1797 when France began seizing U.S. merchant ships as part of an effort to cut off trade with Britain. Congress’s response was initially limited. Consistent with President Adams’s policy of strengthening defenses while seeking peace, it appropriated money for coastal fortifications (with discretion to the President in choosing their location),⁶⁴ authorized (but did not require) the President to equip and man three frigates (with very specific directions as to the treatment of the crews), and authorized (but did not require) the President to increase the strength of existing revenue cutters.⁶⁵ In early 1798, Congress increased appropriations to these ends and authorized the President to raise an additional regiment of artillery and engineers.⁶⁶ But mostly Congress rejected proposals for more aggressive measures from Federalist leaders and awaited results from a diplomatic mission sent by Adams.⁶⁷

The diplomatic mission failed, and once the outcome was known in mid-1798, Congress embraced more warlike measures in the form of delegations. Congress authorized the President to use the navy to seize French ships committing “depredations” on U.S. shipping or “hovering” on the U.S. coastline for that purpose.⁶⁸ On the same day, it also approved a Federalist proposal to authorize the President to raise additional troops at his discretion (the so-called Provisional Army); however, at the insistence of Republican and moderate Federalist congressmen, the President’s authority was limited to situations in which a foreign power declared war or there was an actual or imminent invasion.⁶⁹ In June, Congress prohibited U.S. ships from sailing to French ports and prohibited French ships from sailing to U.S. ports, with discretion to the President to waive the prohibition in some circumstances.⁷⁰ Congress later that month authorized U.S. merchant ships to arm themselves and resist French attacks, with the President authorized to provide what we would now call rules of engagement and to suspend the law if France disavowed further hostilities.⁷¹

In July 1798, Congress took its strongest step, authorizing the President to use the navy to attack French navy ships and privateers on the high seas and to commission U.S. privateers.⁷² Some congressional leaders discussed declaring war, but that was never formally proposed, nor was there specific direction to the President to expand the war (merely an authorization). This was the high point of Quasi-War delegation. Although the war continued into 1800 before a new diplomatic mission restored peace, Congress’s war-related legislation in subsequent years was largely confined to reenacting prior measures and making additional appropriations.

As delegations of war-making power, these measures are important but modest. Congress gave the President some discretionary authority in war-related matters. But the only direct delegations of the decision to use force were the two 1798 statutes authorizing attacks on French ships. Of these, the first (in May 1798) was purely defensive: the President could respond to French attacks or imminent attacks along the U.S. coast. One might have thought that the President had that power in any event, as part of the power (recognized by Madison at the Convention) to repel sudden attacks.⁷³ Moreover, Congress likely would not have seen this as delegating much policy discretion as a practical matter, as there was no doubt at that time the President would use the force described. Nonetheless, at least formally, the statute conveyed discretion to respond to warlike measures in limited circumstances.

The July 1798 authorization was broader and somewhat more akin to modern war power delegations. It permitted—but did not require—the President to expand the conflict to the high seas and against French shipping and naval forces generally. And the case for the President having this power independently is weaker than for purely defensive measures.⁷⁴ On its face, this was a material delegation. But Congress did not authorize the President to begin new hostilities—only to extend existing hostilities. Indeed, the July statute could be seen as lifting some restrictions of the previous statute, which implicitly constrained the President to defensive responses. And the July authorization was itself limited, allowing attacks on the high seas but not against French ports or other land facilities, for example in the French Caribbean colonies. Overall, it seems that Congress was trying to maintain tight control over the extent to which the conflict escalated into full-scale war, rather than transferring to the President substantial discretion over whether to escalate.

The related matter of the Provisional Army is noteworthy because Congress’s control over raising a national army (including whether there would be one at all) was such a sensitive issue at the founding. Congress delegated only limited power in this case, which might have been viewed as constitutionally comparable to delegating war power. Some members of Congress expressed grave concerns over broad delegation, successfully narrowing the measure’s proposed scope. The initial Federalist proposal, enacted by the Senate and sent to the House in April 1798, authorized the President to raise the army at his discretion, if he found it required by the public safety.⁷⁵ House Republicans objected, specifically in constitutional terms, that this unduly delegated congressional power to the President.⁷⁶ Though the delegation involved raising armies rather than initiating war, the two were thought analogous; Representative Brent, for example, argued that “if a proposition was made to transfer to the President the right of declaring war in certain contingencies, the measure would at once appear so outrageous, that it would meet with immediate opposition.”⁷⁷ These objections resonated with enough Federalists that the proposal was modified to limit the President’s discretion to specified circumstances of a declaration of war or actual or imminent invasion, and only during the next recess of Congress.⁷⁸ With this debate on their minds from earlier in the 1798 session, the lack of delegation-based objections to the July force authorization suggests that members of Congress probably did not regard the July measure as a substantial war-initiation delegation.

To be sure, there were other delegations in the Quasi-War period that could be precedent for other types of modern delegations. But as to delegating war-initiation power, the Quasi-War affords only limited precedent. That is particularly significant because the Quasi-War was the only foreign conflict fought pursuant to delegated discretionary authority in the early post-ratification era (and indeed, as later sections show, the only one prior to the twentieth century).

C. Delegations Not Leading to Military Conflict

Perhaps the most interesting and least studied episodes of war power delegation in the post-ratification era are those in which proposed delegations were refused, or in which delegations were made but no conflict ensued. These are significant because they highlight optional war power delegations, in which the President is authorized to engage in hostilities, or to opt not to act at all. We identified four such episodes, recounted below. They indicate that no clear consensus or consistent pattern existed in the mid-nineteenth century regarding war power delegation. Further, they provide little support for the proposition, discussed above, that formerly prerogative powers were understood to be broadly delegable.⁷⁹

1. The No-Transfer Act

In 1811, war with Britain was on the horizon. So was the United States’ acquisition of Florida. A year earlier, President Madison directed U.S. troops to take possession of West Florida (the coastal strip between the Mississippi River on the west and the Perdido River on the east),⁸⁰ on the view that it was part of the Louisiana territory purchased from France in 1803.⁸¹ Spain, which claimed and nominally controlled West Florida, objected but lacked power to mount opposition. That left Spain in control of East Florida (east of the Perdido River) for the moment, but U.S. acquisition of East Florida seemed inevitable. Seeking to make the best of a bad situation, Spain undertook negotiations for a U.S. purchase of East Florida.

With the looming threat of war with Britain and Spain’s increasing weakness, U.S. leaders worried that Britain might seize East Florida first. On January 3, 1811, Madison asked Congress for authority to use force to secure U.S. interests in East Florida.⁸² Congress responded with a resolution declaring that “the United States cannot see, with indifference, any part of the Spanish Provinces adjoining the said States eastward of the River Perdido, pass from the hands of Spain into the hands of any other foreign Power.”⁸³ Simultaneously, Congress approved the so-called No-Transfer Act, authorizing the President to use force in East Florida, either under an agreement with the “local authority” or in the event of “an attempt to occupy the said territory, or any part thereof, by any foreign government.”⁸⁴ All of this was done in extraordinary secret sessions (presumably to keep Britain in the dark).⁸⁵ Britain never made any moves to occupy East Florida, and following the War of 1812, the Monroe Administration concluded the Adams-Onis Treaty of 1819, under which, among other things, the United States purchased East Florida from Spain.⁸⁶

The significance of the No-Transfer Act’s delegation of war-initiation powers is unclear. On one hand, the Act entailed a consequential transfer of power to use force from Congress to the President, made without recorded objection on that ground.⁸⁷ Armed conflict with Britain was no small thing (as the country found a year later), and the decision to counter a British move in Florida with force carried potentially grave consequences. Unlike the Quasi-War authorizations—the most substantial prior delegations of war power—the No-Transfer Act was not a response to attacks or likely attacks on the United States or U.S. ships; it authorized the opening of new hostilities against a formidable power. On the other hand, the authorization coupled with the resolution that the United States “cannot see, with indifference” any foreign seizure of East Florida, may have been meant to leave little discretion to the President to fail to respond to a British move. The secret Act thus might be seen more as a limited declaration of war conditioned on occurrence of a specific event, rather than a delegation.⁸⁸ In that sense, it is not directly analogous to modern war-initiation delegations that leave it to the President to decide on war or not war.

2. Rebuffs of Jackson

As President, former General Andrew Jackson twice sought authority to use the U.S. military to press claims against Mexico and France. Both times Congress declined to enact Jackson’s requested authorizations.

By an 1831 treaty, France agreed to pay claims by U.S. shipowners arising from French seizures during the Napoleonic Wars. France failed to pay as required, and in 1834 Jackson asked Congress for authority to make armed reprisals against French property.⁸⁹ Congress refused, with some speakers referring to the issue of delegation (although much of the discussion focused on the practical question of whether force was necessary). Representative Claiborne argued that the proposal would “be virtually conferring upon the President unconstitutional power—a power to declare war.”⁹⁰ The Senate Foreign Relations Committee Report on the matter, presented by Henry Clay, specifically objected to Jackson’s request partly on delegation grounds.⁹¹ The President’s supporters, while not defending delegations of war power, responded that reprisals, which were all Jackson proposed, were different from war.⁹²

Similar events transpired with respect to Mexico in 1837. United States citizens pressed various claims for injuries and lost property, which Mexico declined to satisfy. Jackson proposed that he make further demands and that Congress enact legislation authorizing reprisals and other uses of force if the demands were refused.⁹³ The Senate authorized the demands but not the reprisals or use of force, providing instead that the President should return to Congress for further authorization if Mexico did not respond satisfactorily. The House Committee on Foreign Affairs recommended a similar approach, but the full House failed to act before the end of the session.⁹⁴ Describing the episode later that year, new President Martin Van Buren observed the “indisposition to vest a discretionary authority in the Executive to take redress . . . .”⁹⁵ Congress refused to act on Van Buren’s renewed requests for authority against Mexico, and the matter was later settled by a treaty sending the claims to arbitration.⁹⁶

It is hard to know what to make of the failure of Jackson’s initiatives. Congress declined the requests to authorize prospective uses of force. Some reference, usually by the President’s political rivals, was made to constitutional limits on vesting the President with war-initiation power. Perhaps as importantly, responses did not claim broad constitutional license to delegate war-initiation power (nor invoke the No-Transfer Act precedent). But congressional objections likely arose as much from opposition to Jackson’s warlike measures on the merits as from constitutional scruples.

3. The Maine Boundary

President Van Buren subsequently had more success obtaining a war power delegation outside the Mexico context (one may speculate that the quieter Van Buren seemed less worrisome to Congress than the bellicose Jackson). In the 1830s, the uncertain border between northern Maine and Canada became a substantial issue. An attempted settlement through arbitration failed during Jackson’s administration, and Van Buren inherited the dispute. Professing commitment to a peaceful solution, Van Buren nonetheless asked Congress for authority to use military force in the disputed territory.⁹⁷ Perhaps surprisingly, given Congress’s rejection of Jackson’s requests for military authorizations, Congress in 1839 authorized the President “to resist any attempt on the part of Great Britain, to enforce, by arms, her claim to exclusive jurisdiction over that part of the State of Maine which is in dispute…” by “employ[ing] the naval and military forces of the United States and such portions of the militia as he may deem it advisable to call into service.”⁹⁸

The debates over this measure do not provide a clear picture of how Congress understood it. Some members of Congress specifically objected to delegating war-initiation power.⁹⁹ Others thought the matter largely one of defense against invasion, perhaps in which the President already had constitutional and statutory power to respond.¹⁰⁰ Ultimately the bill passed by wide margins.¹⁰¹

This might at first seem a clear-cut case of substantial war power delegation. However, its constitutional significance may be discounted because it involved direct defense of territory disputed between Britain and the United States—and hence perhaps the President’s implied independent power to repel invasions—and it depended on the specific contingency of Britain using force in connection with that dispute. It nevertheless represents a counterpoint to earlier rebuffs of Jackson and a continuation—arguably an expansion—of the willingness to delegate in the No-Transfer Act. In particular, the Maine delegation is unique for the time in putting entirely in the President’s hands, as a practical matter, the decision whether or not to use force. As discussed, the No-Transfer Act (beginning with its title) was close to a direction to the President not to allow British seizure of East Florida. And in the Quasi-War delegation, Congress presumably understood and intended that President Adams would use naval force against France once authorized. The Maine delegation differed from those previous examples in that Congress probably preferred that military conflict not result. Congress would not have assumed that voting for delegation was a vote for war. Rather, circumstances indicated that Congress was passing to the President the decision whether to use force based on future circumstances. In this sense the episode—despite other aspects limiting its significance—can be seen as the first “modern” delegation of the decision whether to initiate war.

4. Buchanan’s Mixed Record

After the Maine dispute, the next major discussion of delegating war power occurred in the Buchanan Administration. Buchanan was somewhat more inclined to use force abroad than his immediate predecessors, but he also generally believed that the President lacked authority to initiate hostilities without congressional approval.¹⁰² Thus he made several requests for authority to use force in Mexico, Central America, and Paraguay, with mixed results.

Buchanan’s putative success arose after Paraguayan artillery fired on a U.S. ship, the Water Witch, on the Paraná River.¹⁰³ At Buchanan’s request, Congress authorized the President, if Paraguay refused reparations, to “adopt such measures and use such force” as needed to induce Paraguay to give “just satisfaction” for the attack.¹⁰⁴ Buchanan sent a naval force to the region, leading to a diplomatic settlement.

On first look, the Water Witch incident may seem to be a major step in the development of war power delegation. Like the Maine delegation some twenty years earlier, it gave the President wide discretion, both on paper and in practice, to decide whether to launch military attacks. But unlike the Maine delegation, it did not address threats to U.S. territory or immediate U.S. strategic interests. It more closely resembled the authorizations proposed by Jackson and rejected by Congress in part on the argument that they were unconstitutional delegations. Like the Maine delegation but even more so, the Paraguay delegation might be thought akin to modern war-initiation delegations.

But other events complicate the episode as a precedent for emerging consensus on war power delegation. First, Buchanan’s proposed action also resembled earlier unilateral presidential uses of force responding to affronts to U.S. interests abroad. In a notable example, in the immediately preceding Pierce Administration, U.S. forces shelled the city of Greytown, Nicaragua, after perceived mistreatment of a U.S. diplomat.¹⁰⁵ In light of this and other unilateral actions, some members of Congress may have thought congressional approval was not constitutionally required in the Water Witch incident and thus might not have regarded it as a consequential delegation. Moreover, the Paraguay delegation itself drew some sharp opposition, including on the ground that it was unconstitutional.¹⁰⁶ And while opposition was overcome with respect to Paraguay, it prevailed against Buchanan’s more far-reaching proposals.

Buchanan had in mind multiple aggressive uses of military force in Latin America. He asked Congress for authorization “to employ the land and naval forces of the United States” to protect the isthmus of Panama.¹⁰⁷ Similarly, he asked Congress for authority to use force to prevent closure of alternate routes across Nicaragua¹⁰⁸ and the isthmus of Tehuantepec in Mexico.¹⁰⁹ Buchanan argued:

The remedy for this state of things [disorder and threats to Americans crossing between the oceans] can only be supplied by Congress, since the Constitution has confided to that body alone the power to make war. Without the authority of Congress the Executive cannot lawfully direct any force, however near it may be to the scene of difficulty, to enter the territory of Mexico, Nicaragua, or New Granada . . . even though they may be violently assailed whilst passing in peaceful transit over the Tehuantepec, Nicaragua, or Panama routes . . . . In the present disturbed condition of Mexico and one or more of the other Republics south of us, no person can foresee what occurrences may take place . . . .¹¹⁰

Buchanan also asked for authority to establish a military protectorate over parts of northern Mexico to defend the U.S. border, as well as authority to respond with force against Britain for interference with U.S. shipping.¹¹¹

Congress declined to act on all of these requests. How much this had to do with constitutional scruples is unclear; it may simply have been that a majority distrusted Buchanan’s motives. One scholar comments: “Congress was too jealous of the war-making power to heed the President’s requests, and Republican members in particular were too fearful of giving such authority to a president so sympathetic to the South’s desire for more slave territory.”¹¹² But constitutional arguments were strongly, if perhaps conveniently, invoked. Senator Trumbull objected that Congress did not have “any authority to surrender the war-making power to the President . . . He is not vested with it by the Constitution; and we have no right to divest ourselves of that power which the Constitution vests in us.”¹¹³ Buchanan responded that the requested authority “could in no sense be regarded as a transfer of the war-making power to the Executive, but only as an appropriate exercise of that power by the body to whom it exclusively belongs.”¹¹⁴ Invoking precedent, he added: “In [the Water Witch incident] and in other similar cases Congress have conferred upon the President power in advance to employ the Army and Navy upon the happening of contingent future events; and this most certainly is embraced within the power to declare war.”¹¹⁵

Thus, Buchanan’s experiences point in different ways. Congress approved a modern-looking war power delegation in the Water Witch incident, over constitutional objections. But in multiple other cases Congress ignored Buchanan’s appeals for advance authority to initiate hostilities at his discretion. Constitutional objections to delegation featured prominently in these debates as well, though Congress often had other, more practical reasons to withhold authority.

In sum, the record of war-initiation delegation as to foreign enemies in the pre-Civil War period is thin, though not entirely barren. We count three material delegations in addition to the Quasi-War: the No-Transfer Act, the Maine boundary delegation, and the Water Witch delegation. But each delegation was expressly conditioned on a specific fact—a fact that might have triggered the President’s limited independent constitutional authority to act anyway—and was somewhat offset by other near-contemporaneous episodes in which Congress refused delegations, with some objections expressed on constitutional grounds.

D. Using Force against Native American Tribes, Piracy, and Insurrection

Three other areas, distinct from war-initiation delegations, are sufficiently related to merit discussion. First, Presidents directed hostilities throughout this period against Native American tribes on the western frontier, generally with Congress’s implicit approval (although not with specific authorization). Second, Congress authorized the navy to suppress piracy and the slave trade. Third, Congress authorized the President to use the army and militia to enforce federal laws and suppress insurrections, an authority most notably invoked by President Lincoln in the Civil War.

1. Frontier Conflicts

The United States conducted military operations against Native American tribes on the frontier throughout the post-ratification period. Tribes were generally treated as tantamount to foreign nations for treaty-making purposes—that is, tribal treaties were adopted with the Senate’s advice and consent—so by parallel reasoning, the Constitution’s war power provisions arguably should have applied to them as well. It is not entirely clear how early Congresses saw the relationship between the tribes and constitutional war power, but in any event, the frontier conflicts do not provide clear examples of war-initiation delegations. They followed a similar pattern. They were not directly declared or authorized by Congress (nor formally called war). Presidents often sought expansions of the military and additional funding on the basis of frontier conflicts, so Congress was well aware of them. But Congress appeared to assume the President had some independent power to conduct frontier conflicts—perhaps because they were internal and were (or were claimed to be) defensive in nature.

The conflict in the Ohio Valley immediately after the Constitution’s ratification is illustrative. President Washington inherited a violent northwest frontier, with large numbers of U.S. settlers moving west, provoking conflicts with Native inhabitants.¹¹⁶ In 1789, he asked Congress to reauthorize and expand the small army carried over from the Articles of Confederation, citing among other things the troubled northwest. Congress did so,¹¹⁷ and followed up with a further modest expansion in 1790.¹¹⁸ Washington dispatched an expedition under Josiah Harmar against the northwest tribes. When Harmar was defeated, Washington sent a larger expedition under Arthur St. Clair—which likewise met defeat. Congress authorized more troops, at Washington’s request, while conducting a contentious investigation into St. Clair’s defeat. The new troops, commanded by Anthony Wayne, gained a decisive victory in 1794.¹¹⁹

The source of Washington’s authority to fight the northwest conflict is unclear. It is possible to see the early military statutes as broad delegations to the President to use the authorized troops as the President thought appropriate (including for offensive operations) on the frontier.¹²⁰ The statutes did not say this, though. They simply authorized troops, with no direction on their use.¹²¹ It seems more likely that Congress understood the troops to be available to respond to ongoing hostilities of the northwest tribes, which had begun before Washington took office. That is, Congress may have seen the United States as already at war in the northwest, with the troop authorizations allowing Washington to use his independent power to fight an existing war but not delegating power to start new ones.¹²²

There is reason to think Washington took the latter view. While directing campaigns against the northwest tribes without express congressional authorization apart from the authorization of the army, at the same time Washington refused requests from local authorities to use troops against tribes in the southwestern territories, where only sporadic violence had occurred. Washington explained that offensive operations in the south needed specific congressional approval.¹²³ Of course, Washington may simply have wanted to avoid southwestern conflicts while embroiled in a northwestern one. But his constitutional reservations fit well with the view that in authorizing troops Congress was not authorizing new theaters of hostilities and that the President had independent power or congressional approval to fight preexisting frontier wars but not to start new ones.

In any event, the Ohio Valley conflict seems a doubtful precedent for congressional delegation of war-initiation power. It is not clear that Congress saw itself delegating such power, as opposed to supplying troops and funds to a pre-existing and ongoing effort. The relevant statutes do not speak in terms of authorization, and modern scholars have drawn various conclusions from them.

Nineteenth-century frontier conflicts took a similar course, typically proceeding on the proposition that they were defensive wars or aspects of law enforcement.¹²⁴ The 1819 Seminole War is an important example. President Monroe, without congressional authorization, directed Andrew Jackson to attack the Seminoles in Spanish Florida in response to Seminole raids into U.S. territory. During the campaign, Jackson attacked Spanish posts—which Monroe had not authorized. Jackson’s actions prompted fierce constitutional debate in Congress. But most participants in the debate conceded that no congressional authorization was needed for hostilities against the Seminoles because those operations responded to attacks; the debate focused on the propriety of attacking the Spanish (who arguably encouraged the Seminoles but had not themselves attacked the United States).¹²⁵ This debate reinforces the more general impression that both the executive branch and Congress regarded the Native American conflicts (rightly or wrongly) as defensive and thus undertaken on independent presidential authority.

Congress’s most important (and regrettable) action regarding the frontier conflicts in this period, the so-called Indian Removal Act of 1830,¹²⁶ is notable for what it did not say. The Act authorized the President to enter into treaties with tribes to exchange land east of the Mississippi River for land in the unorganized western territories. It made no mention of military force; on its face it contemplated peaceful transfers. Of course President Jackson expected forcible removal and most congressmen likely did as well, but this assumption was not reflected in the statute. A range of conflicts with Native American tribes arose during implementation of the removal policy but Jackson and his successors did not seek further congressional force authorizations.

Thus, as with the earlier frontier conflicts, the early nineteenth-century frontier conflicts do not supply a ready precedent for broad war power delegation. It does not appear that Congress saw continuing authorizations of troops as delegating to the President authorization to start wars. Congress probably thought defensive wars (including offensive counterattacks) against the frontier tribes were constitutional, but this view likely rested on independent presidential power to respond to attacks, or perhaps implicit congressional approval to continue fighting preexisting conflicts, rather than delegation of war-initiation power. At minimum, the frontier wars of the period do not provide clear examples of war-initiation delegations.

2. Piracy

Some authorities suggest that early Congresses delegated to the President discretion to use force against pirates.¹²⁷ On closer examination, this suggestion is overstated.

Congress first addressed piracy in the 1790 Crimes Act, which provided punishments for various federal offenses including piratical activities, as well as (among others) treason, murder on federal property, and counterfeiting.¹²⁸ As with the other crimes it encompassed, the Act did not expressly authorize presidential enforcement against pirates, presumably because members of Congress thought the President had independent enforcement power under Article II. Subsequent Presidents, notably Jefferson, used U.S. naval forces against pirates to enforce the 1790 Act, without recorded constitutional concerns.¹²⁹

In 1819, Congress passed an act specifically targeting piracy.¹³⁰ Unlike the 1790 Act, it expressly authorized the President to use the navy to protect U.S. shipping and seize piratical ships.¹³¹ The point of the 1819 Act, which passed without material recorded debate,¹³² is not entirely clear. Piratical activity in the Caribbean and the Gulf of Mexico had surged with the breakdown of Spain’s authority over its American colonies.¹³³ Under pressure from constituents, Congress may have felt a need to take visible action, perhaps to encourage greater presidential attention to the matter.¹³⁴ Part of the 1819 Act also may have been designed to overrule the Supreme Court’s 1818 decision in United States v. Palmer, which held that the general language of the 1790 Act did not criminalize piratical attacks by non-citizens against non-U.S. ships.¹³⁵ It seems unlikely, though, that members of Congress thought the Act was constitutionally necessary to give the President enforcement authority against pirates. The 1790 Crimes Act had no express use-of-force authorization. And, as discussed below, once Congress engaged in substantial debate on the matter, members appeared to agree that the President had independent enforcement power so long as his actions did not risk war with foreign nations.

The United States stepped up anti-piracy operations after the 1819 Act, with limited success. Pirates evaded U.S. forces by developing hidden bases in remote parts of coastal Cuba and Puerto Rico, where Spanish colonial authorities either could not or would not act against them.¹³⁶ A frustrated President Monroe asked Congress in December 1822 for authority to build additional, lighter draft ships suitable for coastal operations.¹³⁷ Supporters in Congress proposed a bill authorizing such construction “for the purpose of repressing piracy, and of affording effectual protection to the citizens and commerce of the United States in the Gulf of Mexico, and the seas and territories adjacent.”¹³⁸ This language provoked the first substantial congressional debate on the matter, with Representative Eustis objecting to the bill as delegating war power because the apparent grant of authority to use force in adjacent territory might lead to war with Spain.¹³⁹ Representative Fuller, who introduced the bill, responded that it was not intended to authorize pursuit of pirates on land, but added that the President likely had some independent pursuit power under the law of nations.¹⁴⁰

An amendment proposed by Representative Smyth to authorize land operations¹⁴¹ met sharp resistance.¹⁴² Much of the discussion turned on the extent to which the law of nations allowed pursuit of pirates on land, on which there was no consensus among the members. Representative Archer also argued that Smyth “proposed in effect to divest Congress and give to the Executive the power to make war.”¹⁴³ Eventually Smyth withdrew his proposal, and the bill passed the House and later (without substantive debate) the Senate, becoming law upon President Monroe’s signature later that month.¹⁴⁴

After another two years of mixed results, Congress returned to the matter in December 1824 with a proposal, backed by President Monroe, to authorize land pursuit and blockade of ports in Cuba and Puerto Rico that sheltered pirates.¹⁴⁵ The blockade authorization soundly failed in the Senate. While a range of practical concerns were expressed, Maryland Senator Samuel Smith also raised a delegation objection: “Shall we then, by sanctioning a section of this kind, put in the hands of the Executive the power of declaring war? — a power which we alone possess in Congress . . . . I am unwilling to grant a provisional power, that may lead us into war.”¹⁴⁶ A Senate motion also attempted to strike the provision authorizing land pursuit, with a number of Senators arguing that the authorization was unnecessary because the President already had this power under the law of nations. The Senate voted to retain the pursuit authorization,¹⁴⁷ but the House deleted it, apparently on the grounds that it was unneeded. Congressman Forsythe, introducing the Senate bill on behalf of the House Committee on Foreign Relations, said “[t]here did not exist any necessity for granting this provision of the bill, since the President has it already by the law of nations.”¹⁴⁸ The Senate acquiesced in the deletion; the enacted bill only authorized expenditure for the construction of ships, without authorization or direction as to their use.¹⁴⁹

These events cast considerable doubt on the idea that Congress delegated expansive power to the President regarding piracy. The 1790 Act made piracy a crime and Presidents used their constitutional enforcement power to counter it in U.S. waters and on the high seas. These activities appear not to have inspired constitutional concerns.¹⁵⁰ Although Congress passed the 1819 Act authorizing anti-piracy operations, Congress became hesitant as intensifying and inconclusive conflict suggested the need for operations in Spanish territory. Members appeared to think that some pursuit of pirates on land was allowed by the law of nations and thus fell within presidential enforcement power. But Congress resisted authorizing broader hostile operations that might provoke war with Spain, with some concerns expressed about unconstitutional delegation of war power. Modern suggestions that the nineteenth-century Congress delegated broad powers to use force against pirates thus seem mistaken or overstated.¹⁵¹

3. Insurrections and Law Enforcement

In contrast to early concern about delegating war-initiation power, early Congresses seemed relatively (though not entirely) unconcerned about delegating authority to suppress domestic disturbances. The 1792 Militia Act conveyed broad discretion, after some debate over delegation. It gave the President authority to call the militia into federal service “whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe,” as well as “in case of an insurrection in any state, against the government thereof”¹⁵² and “whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act.”¹⁵³

These were quite broad delegations, made without reference to any particular situation. In the House they prompted objections. “It was surely the duty of Congress,” one member said, “to define, with as much accuracy as possible, those situations which are to justify the execut[ive] in its interposition of a military force.”¹⁵⁴ The House added amendments limiting power to suppress insurrections to situations where a state requested assistance, and limiting power to enforce federal laws to situations where a federal judge found the laws could not be enforced by ordinary means. In addition, the President could use only the militia of the affected state unless it was insufficient and Congress was not in session. The 1792 Act was also effective for only two years¹⁵⁵ (barely lasting to its 1794 invocation by President Washington during the Whiskey Rebellion). But even with these limitations, the Act contained much more open-ended delegations than anything on the international front for many years to come.

A subsequent Militia Act in 1795 made the authorization permanent and dropped several of the restrictions.¹⁵⁶ Congress followed up with the Insurrection Act in 1807, authorizing the President to use the regular army (as well as the militia) to suppress insurrections in situations where the President was authorized to use the militia.¹⁵⁷ The 1807 Act’s most famous invocation was the Civil War, as President Lincoln rested his initial military response to Southern secession in part on his authority to suppress insurrection. As the Supreme Court put it in the Prize Cases in 1863, rejecting a challenge to Lincoln’s actions:

The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.¹⁵⁸

Compared to delegations of war-initiation power, these authorizations were quite broad, especially after 1795. They operated generally, not in connection with any particular uprising, and (again, especially after 1795) left it largely to the President’s discretion when using the military or militia for domestic purposes was appropriate. And as the Civil War demonstrated, they could authorize large-scale presidential uses of force.

Yet as with piracy, delegation of authority to suppress insurrection stands in a very different light from delegation of authority to start foreign wars. The President has the constitutional authority and obligation to enforce the law, as well as an implied power to repel sudden invasions;¹⁵⁹ the Militia and Insurrection Acts gave him tools (the militia and military) to do so. The President has no corresponding constitutional power relating to war initiation in situations where Congress would be delegating to the President an exclusive power of Congress. Delegating power to use state militia forces might also be distinguished from delegating war power on a separate textual ground: unlike the Declare War Clause that simply grants that power to Congress, Article I states that Congress has the power “[t]o provide for calling forth the Militia” for certain purposes, perhaps indicating that militia powers are more appropriately delegated.¹⁶⁰

E. Conclusion: Implications of the First 70 Years

The early history of war power delegations is complex and resists easy conclusions. But several important ones may be ventured. First, it supplies surprisingly little precedent for modern broad delegation of war-initiation power. Most foreign conflicts of the time were fought pursuant to formal congressional recognition of a state of war—even relatively small-scale ones such as those against Tripoli and Algiers. The only foreign conflict fought by delegated authority was the 1798–1800 campaign against French ships on the high seas, but that was limited in important respects and occurred in the midst of ongoing low-level conflict. That record does not show war-initiation delegation to be unconstitutional, but it does show it to be unusual.

Second, in some now-obscure situations, delegations of war-initiation power began tentatively to take hold—first in the No-Transfer Act, then in the Maine boundary delegation, and finally in the Water Witch incident. So one cannot say the early period rejected war-initiation delegation. But these episodes are balanced by contentious debates over the Provisional Army and unsuccessful requests for delegated power to use force by Presidents Jackson and Buchanan, in which there was a recurring idea that the Constitution imposed limits on Congress’s delegation of its war powers. From the Republic’s birth, there has been an influential strain of thought that regards war powers as especially nondelegable. At minimum, this evidence should caution against a quick assumption that early constitutional practice supports setting aside or loosening general nondelegation principles when it comes to war-initiation power.

At the same time, early practice finds support for broad authorizations in areas where the President had some degree of independent constitutional power. Substantial delegations of war waging (as opposed to war initiating) authority were routine, accompanying all of Congress’s declarations of war, consistent with the President’s power as commander-in-chief to carry out wars once begun. Further, Congress provided broad authorizations in related areas, including using force against pirates and to suppress insurrections¹⁶¹—areas in which the President’s power to enforce law indicated substantial independent presidential authority.

III. WAR POWER DELEGATIONS FROM THE CIVIL WAR TO WORLD WAR II

This Part considers historical practice relating to war power delegations from 1865 to 1945. Though likely beyond the time relevant to the Constitution’s original meaning, practice during this period—a time in which the United States emerged globally as a great power—might contribute to the “historical gloss” on the constitutional regime of delegation.

Again, however, we find little from this period to support a constitutional practice of war-initiation delegation. Congress declared three wars, and authorized the President to direct them, but otherwise most uses of force during this time relied on claimed independent presidential authority, an increasingly common feature of U.S. foreign policy.

It was also during this period, however, that the Supreme Court issued its most significant decision on the nondelegation doctrine and foreign affairs. The Court’s 1936 decision in Curtiss-Wright rejected a challenge to delegation regarding certain arms exports and stated that the nondelegation doctrine applies less strictly in foreign relations than domestic affairs. Though not involving war powers, the decision’s broad language could be read—and we show in later Parts that it would be read by some—to apply in that area.

A. Declared Wars

From 1898 to 1945, the United States fought three formally declared wars. As with earlier major wars, Congress delegated to the President vast discretion over how to wage them, but the declarations did not give the President decision-making discretion over whether to wage them.

1. War with Spain: Congressional Direction to Use Force

In 1898, U.S. relations with Spain had been fraying for years, primarily over Cuba, a Spanish colony seeking its independence. United States investors in Cuba’s agricultural industry also pressed for protection of their interests, and interventionist sentiments intensified when the battleship U.S.S. Maine mysteriously exploded in Havana harbor, where President McKinley had sent it to protect U.S. citizens and property.¹⁶²

On April 20, 1898, Congress passed—at McKinley’s request—a joint resolution calling for Spain to withdraw from Cuba and authorizing the President to intervene militarily to support Cuban independence.¹⁶³ One remarkable feature of that force resolution was its imperative voice. It not only licensed the President to use force but instructed him to do so: “the President of the United States . . . hereby is . . . directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary” to compel Spain to withdraw from Cuba. True, the resolution’s phrase “as may be necessary” could be read either as giving the President discretion over how much and what type of force to use—or even whether to use it at all. But unlike modern force authorizations giving the President an option to use force, this act obliged him to. Moreover, at the time that Congress directed the President to use force against Spain, the President had made clear his intention to do so.¹⁶⁴

The April 20 resolution prompted Spain to break off diplomatic relations. McKinley then imposed a naval blockade of Cuba, and Spain responded by declaring war.¹⁶⁵ The President returned to Congress on April 25 requesting a war declaration.¹⁶⁶ A legal formality at that point, Congress that day unanimously passed by voice votes a resolution backdating its war declaration by four days, to the date of Spain’s declaration.¹⁶⁷ As in previous declared wars, Congress recognized a state of war rather than leaving the President discretion whether to do so.

2. World Wars I and II

Following German targeting of U.S. merchant ships in the Atlantic during World War I, as well as other hostile actions, President Woodrow Wilson asked Congress on April 2, 1917, to declare war against Germany. Within days Congress obliged by large majorities. Its joint resolution stipulated “[t]hat the state of war between the United States and the Imperial German Government which has thus been thrust upon the United States is hereby formally declared” and “authorized and directed”—echoing the imperative voice of the 1898 resolution—the President “to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial German Government.”¹⁶⁸ Later that year, Congress declared war against Germany’s ally Austria-Hungary, after that government “committed repeated acts of war against” the United States.¹⁶⁹ That war resolution’s operative language mirrored the Germany resolution. Both declarations granted immense discretion to the President over how to carry on the war, but they gave no option as to whether to engage in war.¹⁷⁰

World War II, the United States’ last formally-declared war, entailed six separate congressional war declarations.¹⁷¹ These declarations—against Japan, Germany, Italy, Bulgaria, Hungary, and Rumania—used a common template. They recognized a state of war to exist and (like the 1898 and 1917 resolutions) “authorized and directed” the President to use force to defeat each enemy.¹⁷² The President’s delegated discretion was entirely about how to wage war, not whether to enter the war.

B. Force Authorizations Other than Declared Wars, 1865–1945

Perhaps surprisingly, the post-Civil War period saw few congressional force authorizations apart from declarations of war. As it corresponded to the nation’s increasingly active and powerful position on the world stage, one might expect more force authorizations. But as discussed below, there were only a few, and even these came with significant qualifications. Presidents fought no major foreign conflicts pursuant to delegated authority during this period, although independent presidential uses of force became more frequent, more sustained, and more consequential. With the notable exception of the 1914 intervention in Mexico, discussed below, Congress played little role in, and at times opposed, increasingly interventionist U.S. foreign policy.

1. The Late Nineteenth Century

No conflicts of any sort were fought pursuant to expressly delegated authority between the end of the Civil War and Congress’s declaration of war against Spain in 1898. That was not because Presidents were uninterested in using force (although President Cleveland told Congress that he would not pursue war with Spain over Cuba even if Congress declared it).¹⁷³ While executive military unilateralism is more associated with the twentieth century, it had some roots in this earlier period. In general, though, the period prior to 1898 was marked by an absence of major foreign conflicts.

A prominent use of U.S. military force in the period was the 1893 landing of marines on Oahu in connection with the overthrow of Hawaii’s native ruler, Queen Lili’uokalani, by private American interests led by Sanford Dole (who became Hawaii’s head of government). President Harrison apparently did not authorize the landing in advance (though he approved it afterward), and it is unclear whether it played an important role in Dole’s success (Harrison denied that it did). Congress did not authorize this use of force, though Congress as a whole also did not object to it.¹⁷⁴

United States Presidents (or cabinet secretaries) had more direct involvement in several other low-level deployments or uses of force, including by the Grant Administration in the Dominican Republic,¹⁷⁵ the Hayes Administration in Mexico,¹⁷⁶ the Cleveland Administration in Haiti,¹⁷⁷ and the Harrison Administration in Brazil.¹⁷⁸ None of these incidents led to significant hostilities, but they marked a trend of presidential unilateralism that intensified in subsequent years. Congress did not directly approve any of these operations.

Three incidents bordering on delegation merit brief further discussion. During the Hayes Administration, Congress passed a bill authorizing the President to use measures “short of war” in a dispute with Britain over an imprisoned U.S. citizen.¹⁷⁹ Apparently nothing came of the authorization, and presumably (in keeping with the “short of war” limitation) Congress did not intend to authorize significant hostilities against a major power over a minor matter.

Second, during the late 1880s, tensions arose with Germany over the Samoan islands, where both countries had interests. President Cleveland sent naval ships to Samoa to protect U.S. interests and then “submitted [the matter] to the wider discretion conferred by the Constitution upon the legislative branch of the Government.”¹⁸⁰ Congress approved an appropriation to continue the naval deployment without directly addressing the use of force. Whether Congress regarded this as an authorization to use force if Germany attempted a takeover of the islands seems unclear; ultimately no open conflict with Germany occurred.¹⁸¹

Finally, in 1891, after street violence killed two U.S. sailors and injured others in Valparaiso, Chile, diplomatic tension escalated. President Harrison issued an ultimatum to the Chilean government and began preparations for war.¹⁸² However, he also submitted the matter to Congress asking for “such action as may be decreed appropriate.”¹⁸³ It is unclear whether Harrison was asking Congress for a declaration of war (at least one member of Congress read his message that way) or whether he was asking for delegated authority. It is also unclear whether Harrison would have taken unilateral action if Chile rejected the ultimatum and Congress failed to authorize force.¹⁸⁴ Chile defused the matter by meeting Harrison’s demands, and Congress took no action.

These three incidents are the closest Congress came to delegating war power during the period, and they fall far short of material delegations. As to Britain, Congress expressly disclaimed intent to delegate war power; in Samoa, it is unclear what level of force (if any) Congress meant to delegate; and the Chile episode can as easily be read as a request for a declaration of war rather than a request for a delegation (and, in any event, no congressional action followed). This period, like the preceding one, provides little clear practice or indication of consensus on war power delegation.

2. The Twentieth Century before World War II

President McKinley kicked off the new century by sending U.S. forces to China to aid other Western governments in suppressing the Boxer Rebellion in 1900.¹⁸⁵ Thereafter, presidential uses of force mounted, including Theodore Roosevelt’s support of Panama’s independence from Colombia (setting up U.S. control of the route of the prospective canal)¹⁸⁶ and substantial interventions, sometimes involving commitments of ground troops spanning multiple presidencies, in the Dominican Republic, Haiti, Cuba, and Nicaragua.¹⁸⁷

One should not overstate the rise of presidential uses of force. All major foreign conflicts in this period were declared by Congress. Though some presidential uses of force were quite consequential, none involved substantial commitments of troops, extended hostilities, or significant U.S. casualties. They were not clearly “wars” in the constitutional sense, and were not regarded as wars by the political branches or in popular description. Congress was generally aware of these activities, sometimes conducting inquiries of them after-the-fact, and continued to authorize the armed forces used for them, which later (and to this day) led the executive branch to argue that Congress tacitly acknowledged the President’s independent constitutional power to conduct them.¹⁸⁸ With Presidents less inclined to seek congressional authorization for low- and medium-level uses of force, there were limited congressional opportunities even to debate delegations.

Only one explicit congressional force authorization occurred in this period, though its significance is uncertain. It came with regard to the situation in Mexico in 1914.

Earlier, in 1910–1911, a popular uprising overthrew the longstanding dictatorial regime of Porfirio Díaz, bringing to power a democratically elected but weak government under Francisco Madero. During the unrest, President Taft considered the need to intervene to protect U.S. investments, but left the question to Congress, reporting that he had troops “in sufficient number where, if Congress shall direct that they shall enter Mexico to save American lives and property, an effective movement may be promptly made.”¹⁸⁹ Congress did not act.

Taft’s successor, Wilson, took a more aggressive stance. In the closing months of the Taft Administration, General Victoriano Huerta seized power from Madero, plunging Mexico into a bloody multi-sided civil war. Wilson refused to accept Huerta’s legitimacy and in 1914 used a minor incident to justify a substantial intervention. Telling Congress that Huerta had insulted U.S. forces by refusing a 21-gun salute, Wilson asked for authority to use force:

No doubt I could do what is necessary in the circumstances to enforce respect for our Government without recourse to the Congress, and yet not exceed my constitutional powers as President; but I do not wish to act in a manner possibly of so grave consequence except in close conference and cooperation with both the Senate and House. I, therefore, come to ask your approval that I should use the armed forces of the United States . . . .¹⁹⁰

Congress obliged with a joint resolution declaring that “the President is justified in the employment of the armed forces of the United States to enforce his demand for unequivocal amends for certain affronts and indignities committed against the United States.”¹⁹¹ The resolution included language (added to the House bill by the Senate) that the United States “disclaims any hostility to the Mexican people or any purpose to make war upon Mexico.”¹⁹²

The language—that the President “is justified” rather than “is authorized”—suggests that Congress may have accepted Wilson’s view that the President had independent authority to act.¹⁹³ Moreover, Wilson did not wait for Congress; while the Senate debated, Wilson ordered bombardment and seizure of the port of Veracruz, where U.S. forces remained for seven months until Huerta was overthrown.¹⁹⁴

Thus the only material force authorization (apart from war declarations) in this period was more likely a recognition of presidential power than a delegation, and in any event it disclaimed intent to authorize war; the ensuing hostilities, though perhaps consequential, were small in scale. Wilson’s presidency, like those before and after, was more significant for its growing presidential unilateralism than for delegation.

C. Curtiss-Wright and War Power Delegation

During this same era, the Supreme Court’s seminal 1936 opinion in Curtiss-Wright drew a distinction between foreign affairs delegation and domestic affairs delegation, stressing that the Constitution permits Congress greater latitude to delegate foreign affairs decision-making to the President.¹⁹⁵ That case arose from a 1934 joint resolution authorizing the President to proclaim an arms embargo against Paraguay and Bolivia if he found that doing so would contribute to peace in their ongoing war. “[C]ongressional legislation which is to be made effective through negotiation and inquiry within the international field,” wrote Justice Sutherland, “must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved.”¹⁹⁶

A leading justification the Court gave was functional—the President’s institutional advantages in agility and information—but the opinion also emphasized historical practice:

Practically every volume of the United States Statutes contains one or more acts or joint resolutions of Congress authorizing action by the President in respect of subjects affecting foreign relations, which either leave the exercise of the power to his unrestricted judgment, or provide a standard far more general than that which has always been considered requisite with regard to domestic affairs.¹⁹⁷

Curtiss-Wright’s implications for war power delegations are uncertain. War-initiation power of course may be thought of as a prime example of foreign affairs powers, and the Court’s invocation of the President’s institutional advantages in foreign affairs may seem particularly applicable to it. But Curtiss-Wright was not itself about U.S. war powers, only the prohibition of arms sales. Further, as our review of the historical record thus far shows, the Court’s argument from historical practice lacked support as applied to war-initiation, which (unlike some other aspects of foreign affairs) had not previously been a common subject of delegation. Nonetheless, as the following Part shows, Curtiss-Wright—especially its functional and historical claims—played a role in justifying expanded war power delegations in subsequent years.¹⁹⁸

IV. THE COLD WAR AND BEYOND

This Part shows that it was in the early Cold War period—when the United States became a superpower, with large standing military forces deployed around the world—that the modern practice of war power delegations, through legislative force authorizations, took hold. A watershed moment was a 1955 force resolution that, notably, the President never exercised.

It was also in that period, however, that Presidents asserted much broader unilateral powers to use military force, and Congress largely (if tacitly and dividedly) acquiesced. To those who viewed the President’s unilateral powers as wide even without legislative authorization, force resolutions would not have posed nondelegation issues. And to those opposing that view, the nondelegation issue probably seemed secondary to reclaiming Congress’s exclusive powers.

A. Collective Security and Delegation: The UN Participation Act

From World War II’s ashes, the victorious powers created the United Nations (“UN”), with a Security Council charged with maintaining peace and security, and empowered to employ military force to do so. In subsequent years, as the East-West Cold War quickly developed, the United States embraced a network of security commitments—some formal defense treaties, some informal pledges—around the world, aimed especially at stemming Communist aggression. To the architects of these arrangements, it was important that the United States be able to react quickly to crises and to assure foreign partners and adversaries of that ability. But a constitutional system of exclusive congressional prerogative to decide on war was designed to move slowly. Thus, security imperatives encouraged both more aggressive claims of independent presidential power and wider delegation of war power by Congress.

To participate effectively in the UN, Congress enacted the UN Participation Act (“UNPA”) in December 1945.¹⁹⁹ That statute provided that the chief U.S. diplomat at the UN would act at the President’s direction.²⁰⁰ It also contained a broad authorization to use force that remains on the books, but has never been used.

Specifically, section 6 authorized the President to negotiate agreements with the Security Council, pursuant to UN Charter Article 43, to make U.S. military forces available for maintaining peace and security.²⁰¹ Section 6 made Article 43 agreements “subject to the approval of the Congress,”²⁰² so that Congress retained responsibility over “the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance . . . to be made available to the [Council].”²⁰³ But the President did not need to return to Congress before providing these forces to the Council.²⁰⁴ Thus, if Congress approved Article 43 agreements in advance, the President could send forces into UN-approved armed conflicts as they developed. This statutory framework specified no geography. It specified no enemy. It specified no particular threat or type of threat.

The UNPA’s vast war power delegation was never activated because the idea that member states would place military forces at the Council’s disposal was stillborn. Cold War geopolitics made it impossible, given that the United States and the Soviet Union each had a veto on Council decisions. No Article 43 agreements were ever concluded. When the Charter and the UNPA were adopted, however, Article 43—and hence section 6 of the UNPA—were understood as a main way the Council would pursue its mandate to preserve international peace and security.²⁰⁵ The United States planned to carry it out and expected other members to do the same.²⁰⁶

The UNPA generated some congressional pushback on nondelegation grounds, but not much. To some critics, the arrangement was a double-delegation: it delegated decisions on war to an international organization, the Security Council, and it delegated decisions about U.S. participation in that body to the President. Senator Burton Wheeler, a prominent isolationist, was foremost among the objectors and among seven senators who voted against the UNPA.²⁰⁷ Wheeler noted “that there is no mention in the Constitution of any power of Congress to delegate its [Declare War] authority to the President and for him in turn to authorize his appointee to an international organization to vote to put down aggression in foreign countries.”²⁰⁸

In recommending passage, the Senate and House foreign relations committees stated that “[t]here exist several well-recognized and long-standing precedents for the delegation to the President of powers of this general nature.”²⁰⁹ Tellingly—and consistent with our reading that the historical record to this point is quite thin—they cited congressional delegations regarding international commerce in the early Republic, and only statutes specific to armed force from the Quasi-War with France.²¹⁰ They also cited Curtiss-Wright for support.²¹¹

The muted congressional concerns about the UNPA’s delegation might be explained on several grounds. Congress strongly supported the Charter—the Senate voted 89-2 for ratification²¹²—and many members understood that its collective security system required the U.S. military to back up Security Council mandates.²¹³ Additionally, political leaders and lawyers may have viewed UN-backed emergency interventions, sometimes called at the time “police action,” as distinct from inter-state war;²¹⁴ therefore, legislating discretionary authority to participate in them did not delegate war-initiation power. One lesson of World War II was that early international military action might prevent major war. If used to prevent wide-reaching war, then (so the logic went) an international police action did not implicate the Constitution’s Declare War Clause, at least not in the same way.²¹⁵ A strong current of thought within Congress held that the President could engage in limited police actions unilaterally but required congressional assent for full war.²¹⁶

This latter view of presidential war powers was implemented five years later, when North Korea invaded the South and President Truman intervened militarily, without express congressional authorization, in what became the three-year Korean War. Truman called the move a police action, citing UN approval. Though the Korean War did not involve delegation, it marks an important moment in background constitutional practice. The issue of war-initiation delegation assumes that Congress’s war-initiation power is largely exclusive (perhaps subject to narrow exceptions). Although there were precursors, the Korean War was a high-water mark in presidential assertions of unilateral constitutional power to launch large-scale military interventions. Congressional reactions were mixed, but it was also a high-water mark among a contingent of legislators who regarded unilateralism as proper. The Cold War’s stakes, the advent of nuclear weapons, a general sense of permanent military emergency, and extensive overseas American military commitments and troop deployments all contributed to this shift in thinking.²¹⁷

Alongside these geopolitical and security developments, the postwar period marked virtual obsolescence of formal war declarations, as a matter of both international law and U.S. domestic law.²¹⁸ The UN Charter’s outlawing of force except in self-defense or when authorized by the UN Security Council contributed to that discontinuance.²¹⁹ Beyond legal technicalities, the widespread public view of war as a moral catastrophe also cast old-fashioned war declarations as outdated. Without such clear markers, the lines around states of war—and hence war-initiation—became even blurrier.

B. Cold War Delegations

Many of the contextual factors—including perceptions of vital stakes in Cold War security crises around the world—that contributed to broader assertions of presidential powers to use force also set the stage for the broadest and potentially most consequential delegations of war power to that point in American history. The first ones, in the Eisenhower years, were never invoked. The last one of this critical early-Cold War period, in the Johnson years, was a basis for one of the United States’ costliest wars. These force authorizations entrenched the modern practice of broad war-initiation delegations.

1. A Delegation Turning Point: Eisenhower’s Force Resolutions

The post-World War II shift in thinking about presidential war powers is important to understanding two extraordinary congressional war power delegations during the Eisenhower Administration.²²⁰ Eisenhower rejected broad presidential unilateralism, generally believing only Congress could authorize major U.S. conflicts, but in a reversal of typical positions, many in Congress regarded the President’s unilateral war powers as vast.²²¹

Eisenhower’s security strategy emphasized military commitments to overseas allies to offset threats posed by the Soviet Union and China. It also emphasized taming runaway defense spending. To reconcile these seemingly conflicting tenets, Eisenhower relied on the threat of massive retaliation—including with nuclear weapons—against aggression. This approach encountered a major test in 1954–1955, when Communist China shelled tiny coastal islands that were under control of U.S.-aligned Nationalist China, based on the island of Formosa. In late January 1955, Eisenhower asked Congress for authorization to use force to assure Formosa’s security.²²² Days later, Congress obliged by nearly unanimous votes in both houses, resolving that:

[The] President . . . is authorized to employ the Armed Forces of the United States as he deems necessary for the specific purpose of securing and protecting Formosa and the Pescadores against armed attack, this authority to include the securing and protection of such related positions and territories of that area now in friendly hands and the taking of such other measures as he judges to be required or appropriate in assuring the defense of Formosa and the Pescadores.

This resolution shall expire when the President shall determine that the peace and security of the area is reasonably assured by international conditions created by action of the United Nations or otherwise, and shall so report to the Congress.²²³

As tensions simmered, Eisenhower signaled the possibility of major military action—even publicly referencing nuclear options. But all sides soon stepped back from the brink. Several years later, shelling and skirmishing between Communist and Nationalist China resumed, but the conflict did not escalate.²²⁴

The 1955 force resolution gave enormous discretion to the President. It provided advance authorization to initiate military conflict—understanding that it might include nuclear escalation—to protect a distant ally. It specified no target or enemy, though Communist China was obviously the intended one. Multiple times it emphasized the President’s role as sole judge of necessity. And its duration was subject to presidential judgment that the region was secure.²²⁵ Congress eventually repealed it twenty years later, and it probably would have stayed on the books much longer had the United States not reached a diplomatic détente with Communist China.

Despite this open-endedness, the nondelegation question was peripheral in congressional debates. Senator Wayne Morse, a harsh critic of Eisenhower with deep reservations about U.S. commitments to defend Formosa,²²⁶ was one of the few legislators to raise this issue. He objected to the constitutionality of a “predated declaration of war.”²²⁷ According to Morse:

I respectfully submit that we have no right under our oaths of office to delegate that great constitutional obligation of Congress. . . . In my judgement, we cannot do it constitutionally. . . . [W]e have no constitutional right to authorize any President to exercise his discretion in determining whether or not he should commit an act of war . . . .²²⁸

But Morse was an outlier. Eisenhower received more pushback from Congress on the grounds that its authorization was unnecessary.²²⁹ When Eisenhower consulted congressional leaders before seeking the force resolution, House Speaker Sam Rayburn “said that the President had all the powers he needed to deal with the situation,” and Rayburn even believed “that a joint resolution at this particular moment would be unwise because the President would be saying in effect that he did not have the power to act instantly.”²³⁰

Modern Presidents have usually requested force authorizations because the President has already initiated force or has concrete plans to do so. But an important aspect of the Formosa resolution is that it was never invoked. Eisenhower did not launch strikes, even when Communist China’s shelling of Chinese Nationalist forces later resumed. The authorization’s purpose was more about signaling than warfighting. Eisenhower’s strategy was deterrence—so China was a key audience—and he expected war power delegation to bolster the credibility of his threats.

For similar reasons, two years later, Congress passed—at Eisenhower’s urging—one of the broadest war delegations in American history. The 1957 act endorsed whatever force the President deemed necessary to prevent Communist aggression anywhere in the Middle East. It had no expiration date; in fact, it remains on the books today. Like the Formosa resolution, it was primarily about signaling rather than warfighting and has never been invoked.²³¹

As background, Eisenhower saw the Middle East as an emergency situation in 1956. The Suez crisis discredited European allies’ influence there, and the administration feared the Soviet Union would fill the vacuum without strong U.S. commitment. In January 1957, Eisenhower requested congressional support for military and economic aid for Middle East nations and sought authority to use military force to protect them. In a four-hour White House meeting with congressional leadership on January 1, 1957, the President emphasized that a force resolution would bolster deterrence and reassure allies:

[Eisenhower] added that should there be a Soviet attack in that area he could see no alternative but that the United States move in immediately to stop it. . . . He cited his belief that the United States must put the entire world on notice that we are ready to move instantly if necessary. He reaffirmed his regard for constitutional procedures but pointed out that modern war might be a matter of hours only.²³²

Two months later, Congress passed legislation endorsing the military and economic aid and included the following provision:

[T]he United States regards as vital to the national interest and world peace the preservation of the independence and integrity of the nations of the Middle East. To this end, if the President determines the necessity thereof, the United States is prepared to use armed forces to assist any such nation or group of such nations requesting assistance against armed aggression from any country controlled by international communism.²³³

The resolution provided that it would expire when the President determined that the “peace and security of the nations in the general area of the Middle East” was “reasonably assured” or if Congress revoked it with a concurrent resolution.²³⁴

Unlike the Formosa resolution, which Congress passed quickly and overwhelmingly, the Middle East resolution prompted major debate. Some members supported the proposal, some thought it was dangerously—and possibly unconstitutionally—open-ended, and some thought it was dangerous and possibly unconstitutional in the other direction, by implying that the President lacked unilateral power to respond to emergencies.

A number of senators and representatives specifically objected that it unconstitutionally delegated Congress’s war powers.²³⁵ Senator William Fulbright, for instance, argued that the delegation overturned legislative checks—though without clearly saying whether this was a constitutional or a policy objection:

It asks for a blank grant of power over our funds and Armed Forces, to be used in a blank way, for a blank length of time, under blank conditions, with respect to blank nations, in a blank area. We are asked to sign this blank check in perpetuity or at the pleasure of the President––any President. Who will fill in all these blanks? The resolution says that the President, whoever he may be at the time, shall do it.²³⁶

Other legislators believed that the President’s unilateral powers to use force were vast and feared that legislative authorization would undermine that position.²³⁷

In part to paper over these disagreements, the resolution avoided the term “authorize,” instead adopting a statement approving a policy of force. The Senate Report emphasized that the language had “the virtue of remaining silent” on constitutional allocations of war powers.²³⁸ The House Report added that “the resolution does not delegate or diminish in any way the power and authority of the Congress of the United States to declare war, and the language used in the resolution does not do so.”²³⁹ Given that Eisenhower believed congressional approval was constitutionally required to start wars, however, he must have read the resolution as a delegation—even if not technically styled as such.²⁴⁰

Taken together, the congressional force resolutions adopted at Eisenhower’s request represented major steps in the practice of war power delegation. They responded to a perceived strategic imperative to give the President discretion to respond immediately to threats against foreign partners. And nondelegation concerns were muffled or balanced by a rising sense among political leaders and many constitutional lawyers—though, ironically, not Eisenhower himself—that the President possessed such discretion even without congressional approval.

2. Two Cuba Crises: One Covert, One Nuclear

In the years after the Middle East resolution, Cuba was the epicenter of two major Cold War crises. Both situations involved congressional action that might be seen as war power delegations, though neither presented the issue squarely.²⁴¹ One concerned the postwar institutionalization of covert paramilitary operations by the Central Intelligence Agency (“CIA”); the other concerned a congressional resolution on Cuba policy.

Congress established the CIA in 1947 and authorized it to conduct various intelligence activities.²⁴² The statutes creating the CIA were ambiguous as to whether they authorized paramilitary operations, including training, advising, and supporting proxy forces against foreign governments. Under Eisenhower, the CIA engaged in clandestine operations against governments of, for example, Iran and Guatemala (both leading to overthrows), and Congress continued to fund the CIA.²⁴³ This raises questions whether Congress had implicitly delegated broad discretion to the President to engage in such operations, and whether that delegation included war-initiation power. The answers are unclear because the legislative basis was ambiguous and neither branch seemed to regard such operations as constitutionally equivalent to war or overt military intervention.²⁴⁴

The CIA paramilitary operation that most resembled an armed invasion was the 1961 Bay of Pigs fiasco, which highlighted those ambiguities. Though originally conceived under Eisenhower, President Kennedy in 1961 implemented plans for about 1,400 U.S.-trained and -armed Cuban exiles to overthrow Fidel Castro’s regime. After landing at the island’s Bay of Pigs, the invaders were routed by government forces.²⁴⁵ Little is publicly known about internal legal discussions behind the operation, but afterwards the Justice Department produced a memorandum characterizing such activities as exercises of the President’s independent foreign relations powers. That document compared covert paramilitary operations to war powers, but seemed to treat them as distinct. It also argued that Congress’s continued funding of such activities represented tacit congressional approval.²⁴⁶

Since then, Congress has legislated procedural and notification requirements for covert activities.²⁴⁷ It remains unclear, however, whether either branch regards the laws governing such activities as delegations, regulations of inherent presidential authority, or both—or whether either regards covert paramilitary activities as exercises of war powers or a separate category of foreign relations powers.

In 1962, Cuba was again the locus of Cold War crisis, arguably one of the most dangerous moments in world history. When U.S. intelligence discovered Soviet nuclear missiles on the island, Kennedy ordered a blockade—calling it a “quarantine”—and considered other military actions including air strikes. Although often considered an exercise of unilateral presidential powers,²⁴⁸ a congressional joint resolution resembling a war power delegation operated in the background.

Congress passed that Joint Resolution with overwhelming support on October 3, 1962,²⁴⁹ a few weeks before the missile crisis. It stated that “the United States is determined,” among other things:

to prevent by whatever means may be necessary, including the use of arms, the Marxist-Leninist regime in Cuba from extending, by force or the threat of force, its aggressive or subversive activities to any part of this hemisphere;

to prevent in Cuba the creation or use of an externally supported military capability endangering the security of the United States . . . .²⁵⁰

The resolution did not expressly authorize presidential action and is not generally regarded as a force authorization.²⁵¹ It instead declared a policy, implying strongly that the United States was willing to use force in broad circumstances. And the Cuban Missile Crisis is usually thought of as a momentous instance of executive unilateralism.²⁵²

Nonetheless, the resolution’s language resembles the 1957 Middle East resolution discussed above, which generally is regarded as a force authorization.²⁵³ And although the Kennedy Administration emphasized in internal deliberations the President’s Article II authority to act, it also cited this resolution for support, without clearly stating whether that support was legally (or merely politically) significant.²⁵⁴ The record is ambiguous as to whether members of Congress regarded this as a force authorization.²⁵⁵

In sum, around the same time Congress was enacting broad use of force delegations regarding Formosa and the Middle East, it was taking other actions that, although not formal delegations of war power, shared common attributes. One reason why their status as delegations remains ambiguous was that the executive branch simultaneously asserted (and Congress generally accepted) broad unilateral presidential war power. And, again, these episodes took place in the Cold War context of constant East-West hostilities and permanent U.S. military presence worldwide, which were further blurring the line between war and peace, or between war and military actions short of war.

3. Vietnam, War Powers Reform, and Delegation

In contrast to the Formosa and Middle East resolutions, Congress passed the 1964 Gulf of Tonkin Resolution with clear expectation that President Lyndon Johnson would use force in Vietnam—even if it was not at all clear that the conflict would become so protracted and costly. Indeed, by the time Congress enacted this resolution, the United States was already deeply involved militarily.²⁵⁶

Following an alleged North Vietnamese attack on American naval vessels, Johnson asked Congress for a broad force authorization. Days later and nearly unanimously,²⁵⁷ Congress provided:

That the Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression . . . . Consonant with the [Constitution and UN Charter] and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is . . . prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom . . . .This resolution shall expire when the President shall determine that the peace and security of the area is reasonably assured by international conditions created by action of the United Nations or otherwise, except that it may be terminated earlier by concurrent resolution of the Congress.²⁵⁸

This language gave the president broad discretion in extent of force (“all necessary measures” and “all necessary steps”), in purpose (“to prevent further aggression”), in geography (“southeast Asia”), and in time (until “the President shall determine” that peace and security is restored). Over the next decade, Presidents used it—in addition to assertions of unilateral executive power—to justify combat involving hundreds of thousands of troops, not just in Vietnam but also in neighboring countries.²⁵⁹

As in earlier post-war episodes, Senator Morse was a lonely voice objecting on nondelegation grounds.²⁶⁰ Morse labeled the resolution a “predated declaration of war, in clear violation of article I, section 8 of the Constitution, which vests the power to declare war in the Congress, and not in the President.”²⁶¹ “In effect,” he asserted, “this joint resolution constitutes an amendment of article I, section 8, of the Constitution, in that it would give the President, in practice and effect, the power to make war in the absence of a declaration of war.”²⁶² The resolution’s supporters generally disregarded the nondelegation issue—sometimes referring to the 1955 and 1957 resolutions as precedent for authorizing force in broad terms.²⁶³

As it had during earlier action on resolutions relating to Formosa [1955] and to the Middle East [1957], the committee considered the relation of the authority contained in the resolution and the powers assigned to the President by the Constitution. While the resolution makes it clear that the people of the United States stand behind the President, it was concluded that the resolution does not enter the field of controversy as to the respective limitations of power in the executive and the legislative branches.

H.R. Rep. No. 88-1708, at 4 (1964). Similarly, Secretary of Defense Robert McNamara treated the Resolution’s constitutionality as settled. Joint Hearing Before the Comm. on Foreign Rels. and the Comm. on Armed Servs.: Hearing on a Joint Res. To Promote the Maintenance of International Peace and Security in Southeast Asia, 88th Cong. 3 (1964) (testimony of Robert McNamara). McNamara pointed to past resolutions dealing with Formosa (1955), the Middle East (1957), and Cuba (1962) and observed “There can be no doubt . . . that these previous resolutions form a solid legal precedent for the action now proposed.” Id. A few congressional backers of the resolution explicitly endorsed delegating war power to the President.²⁶⁴

Although the nondelegation issue received almost no attention when the resolution was adopted, it became more controversial as the conflict became a quagmire and the Johnson and Nixon administrations expanded it. In some court cases challenging the legality of the Vietnam War, litigants argued that Congress had invalidly delegated its war powers without itself declaring war, but no courts directly adjudicated these claims.²⁶⁵ In a 1971 speech on the legal basis for the war, then-Assistant Attorney General for the Office of Legal Counsel William Rehnquist felt obliged to address the issue. Rehnquist argued that from historical examples (though citing none between the Quasi-War and the 1950s Eisenhower resolutions), “both Congress and the President have made it clear that it is the substance of congressional authorization, and not the form which that authorization takes, which determines the extent to which Congress has exercised its portion of the war power.”²⁶⁶ Brushing aside objections of “unlawful delegation of powers,” Rehnquist noted that Curtiss-Wright demonstrated that the “principle [of unlawful delegation of powers] does not obtain in the field of external affairs.”²⁶⁷ Thus, Rehnquist concluded, “[t]he notion that an advance authorization by Congress of military operations is some sort of an invalid delegation of congressional war power is untenable in the light of the decided cases.”²⁶⁸

This notion—that Congress’s advance authorization of military operations was an invalid delegation—surfaced often in war powers reform debates at that time, including legislative discussions that culminated in the 1973 War Powers Resolution. That resolution (which is still on the books) among other things required the President to withdraw forces from hostilities within sixty days unless Congress authorized their use. In legislative discussions leading to that act, critics argued that the Gulf of Tonkin Resolution had been an unconstitutional delegation, while some critics of the Resolution further argued that allowing the President sixty days of unilateral action was also an unconstitutional delegation. Senator Eagleton, for example, who initially supported the Resolution, voted against the final version because it delegated “a predated declaration of war to the President and any other President of the United States, courtesy of the U.S. Congress.”²⁶⁹ “That is not,” he argued, “what the Constitution of the United States envisaged when we were given the authority to declare war. We were to decide ab initio, at the outset, and not post facto.”²⁷⁰ Congressional defenders of the Resolution echoed Rehnquist’s arguments based on Curtiss-Wright that, even if the resolution was a delegation, it was a valid exercise of congressional power. ²⁷¹

The nondelegation objection to open-ended force authorizations, including the Gulf of Tonkin Resolution, was pressed at that time by prominent constitutional scholars. In a 1972 article styled Requiem for Vietnam, Professor William Van Alstyne wrote that “it seems to me clearly the case that the exclusive responsibility of Congress to resolve the necessity and appropriateness of war as an instrument of national policy at any given time is uniquely not delegable at all.”²⁷² In extensive legislative testimony, Professor Alexander Bickel argued that absent detailed standards, Congress could not delegate to the President its own war power, “despite United States v. Curtiss-Wright Export Corporation, which was really quite a limited case.”²⁷³ Curtiss-Wright’s statements about independent executive power were “largely dicta,” Bickel asserted, and the case was not about “powers to go to war, or to use the armed forces without restriction.”²⁷⁴ When asked whether he challenged the Gulf of Tonkin Resolution as an unconstitutional delegation, Bickel replied, “Oh, yes.”²⁷⁵ The Lawyers Committee on American Policy Towards Vietnam took a similar position.²⁷⁶

Other prominent legal voices—including Eugene Rostow, John Norton Moore, and former Supreme Court Justice Arthur Goldberg—endorsed the constitutionality of Congress delegating authority to the President to use force. Rostow rejected the arguments of Bickel and others “that, save for minor exceptions, hostilities can be authorized only by Congressional action at the time they begin [rather than in advance], and then by delegations narrowly limited in scope,”²⁷⁷ finding this argument so impractical as to be unconstitutional, and arguing that the Gulf of Tonkin Resolution was sufficiently specific.²⁷⁸ In his subsequent book about the Vietnam War and the Constitution, John Hart Ely noted that opposition to the conflict generated efforts by scholars to push nondelegation objections against the Gulf of Tonkin Resolution and other broad force authorizations, but he sided with the Resolution’s defenders: “The bottom line must . . . be that the Tonkin Gulf Resolution could not have been held at the time, and cannot now responsibly be said, to violate the delegation doctrine unless one postulates a general doctrine significantly stronger than any the Supreme Court (or the academy) has been willing to recognize since the 1930s.”²⁷⁹ Ely went on to say a stronger argument would be that force authorizations must be sufficiently specific regarding against whom they are directed, but he concluded the Gulf of Tonkin Resolution met that requirement.²⁸⁰

In sum, after being almost entirely eclipsed in the early Cold War, war-power nondelegation arguments made a comeback in the wake of failure in Vietnam. As the following section shows, these arguments linger throughout the post-Cold War period, though at this point again contained to a small minority view in Congress.

C. Post-Cold War Delegations

Since the end of the Cold War, the United States has fought three major ground wars: two in Iraq, and the war against al Qaeda and the Taliban in Afghanistan and elsewhere. All three were waged pursuant to delegated war power. The President requested, and Congress legislated, these resolutions in the context of broad executive branch assertions of presidential power to use force.²⁸¹

1. Two Iraq War Delegations

Congress enacted force authorizations against Iraq in 1991 and 2002, both delegating discretion to initiate war. They authorized the President to use force—or not—based on the President’s judgments about the need and wisdom. In that respect they resembled the 1950s force resolutions, though unlike those earlier ones, presidential intentions to use force were apparent at the time. They also contrast with other force authorizations from the period, such as Congress’s 1983 (Lebanon) and 1993 (Somalia) resolutions authorizing force when substantial military deployment was already underway.²⁸²

On March 23, 1999, the Senate also passed a nonbinding concurrent resolution authorizing the President to use air power against the Federal Republic of Yugoslavia in response to the Kosovo crisis. At that point, the President’s intention to use force was clear; he ordered the air campaign to commence the next day. See Cong. Rsch. Serv., RL30729, Kosovo and the 106th Congress 8 (2001). The Senate debate on the resolution contains no discussion of delegation. 145 Cong. Rec. S3065-S3118 (daily ed. March 23, 1999).

For completeness, we also note that the American Servicemembers’ Protection Act of 2002 authorizes the President to use “all means necessary and appropriate” to bring about release of certain U.S. or allied persons detained by the International Criminal Court. ASPA, Pub. L. No. 107-206, 116 Stat. 899 (2002). This statute is sometimes dubbed the “Hague Invasion Act” or “Invade the Hague Act” because that provision might be interpreted to include authorization of military force—and in that regard a possible war power delegation—though we regard that as largely symbolic and therefore do not discuss it in detail.

In the lead-up to the first Iraq War, following Iraq’s 1990 invasion of Kuwait, the George H.W. Bush Administration generally argued that it had authority to use military force against Iraq even absent congressional authorization.²⁸³ The central constitutional debate in public commentary, legislative hearings, and the eventual floor vote concerned that assertion.²⁸⁴ At this point, the UN Security Council had also authorized member states to use force if Iraq failed to withdraw from Kuwait by a certain date.²⁸⁵ Many members both favoring and opposing force authorization emphasized the importance of Congress’s role in commencing military conflict; and many members characterized even a broad delegation not as passing the buck but as preserving Congress’s formal role in war initiation.²⁸⁶ The House passed a nonbinding resolution (shortly before authorizing the use of force) that declared: “the Constitution of the United States vests all power to declare war in the Congress of the United States. Any offensive action taken against Iraq must be explicitly approved by the Congress of the United States before such action may be initiated.”²⁸⁷

Congress ultimately passed, in January 1991, a joint resolution authorizing the President “to use United States Armed Forces” pursuant to and to achieve the objectives of UN Security Council Resolutions, that is to eject Iraqi forces from Kuwait.²⁸⁸ At that point it was virtually certain that President Bush would use force. Nonetheless, the resolution gave the President wide latitude to decide whether or not to initiate war. The only express limitation was that before commencing war, the President was required to report to congressional leadership that, in his determination, peaceful diplomatic means were insufficient to achieve the objectives.

Some congressional concerns were raised, especially in the House, about nondelegation. Like other modern force authorization debates, though, this was not a central issue and the constitutional objections remained a small minority view. A few representatives framed their criticism as constitutional protests that sound like nondelegation arguments, but it was often not clear whether they were invoking strict legal barriers or just appealing to general principles of legislative responsibility (or perhaps a different constitutional argument).²⁸⁹

Nondelegation arguments emerged a bit more vocally in Congress during debate over authorizing the next Iraq War. For a decade after the Gulf War, the Iraqi regime had obstructed Security Council-mandated weapons inspections. In 2002, at President George W. Bush’s request, Congress again authorized force against Iraq. The 2002 resolution empowered the President to use military force “as he determines to be necessary and appropriate” to “defend the national security of the United States against the continuing threat posed by Iraq; and . . . enforce all relevant United Nations Security Council resolutions regarding Iraq.”²⁹⁰ The force resolution again included the condition only that the President report to congressional leadership his determination that diplomatic means were insufficient.²⁹¹

Though still a minority, several members of the Senate²⁹² and House²⁹³ raised constitutional nondelegation concerns. Others made arguments that might be read either as legal objections or prudential ones.²⁹⁴ Several proponents expressly defended the constitutionality of the resolution.²⁹⁵ Then-Senator Joseph Biden specifically addressed delegation, arguing that the resolution included sufficient parameters to satisfy the nondelegation doctrine:

I am confused by the argument that constitutionally we are unable to delegate that authority. Historically, the way in which the delegation of the authority under the constitutional separation of powers doctrine functions is there have to be some parameters to the delegation . . . . But as I read this grant of authority, it is not so broad as to make it unconstitutional for us, under the war clause of the Constitution, to delegate to the President the power to use force if certain conditions exist. . . . [C]onstitutionally, this resolution meets the test of our ability to delegate. It is not an overly broad delegation which would make it per se unconstitutional, in my view.²⁹⁶

Beyond the legislative debate, the 2002 force resolution generated a rare judicial opinion on the war power nondelegation issue. After the resolution passed, a group including members of the armed forces and their relatives and members of Congress sued President Bush, seeking to enjoin him from initiating war.²⁹⁷ One of the plaintiffs’ claims was that the resolution unconstitutionally delegated Congress’s power to declare war.²⁹⁸ The district court dismissed the suit and the First Circuit affirmed, holding that the dispute was unripe and “[did] not warrant judicial intervention.”²⁹⁹ However, it also addressed the nondelegation argument:

In this zone of shared congressional and presidential responsibility, courts should intervene only when the dispute is clearly framed. An extreme case might arise, for example, if Congress gave absolute discretion to the President to start a war at his or her will. Plaintiffs’ objection to the October Resolution does not, of course, involve any such claim . . . . The mere fact that the October Resolution grants some discretion to the President fails to raise a sufficiently clear constitutional issue.³⁰⁰

The court rejected the nondelegation argument for several reasons. First, it treated war power as “shared between the political branches,” in contrast to many other Article I legislative powers.³⁰¹ Thus it apparently rejected the premise that war-initiation power is exclusively vested in Congress, or perhaps it recognized that war-initiation power is not always so easy to separate cleanly from war-waging or other foreign affairs powers. Second, citing Zemel v. Rusk (which had cited Curtiss-Wright for this proposition), it noted that “the Supreme Court has also suggested that the nondelegation doctrine has even less applicability to foreign affairs.”³⁰² It adopted the common assumption that war power is a subset of foreign relations powers for delegation purposes, and that within that subset, broader delegation is constitutionally permitted. Third, it rebutted the argument that Congress had relinquished policymaking responsibility to the executive branch. “Nor is there clear evidence of congressional abandonment of the authority to declare war to the President,” the court said. “To the contrary, Congress has been deeply involved in significant debate, activity, and authorization connected to our relations with Iraq for over a decade, under three different presidents of both major political parties, and during periods when each party has controlled Congress.”³⁰³

At the time of this writing, Congress is actively considering the repeal of the 1991 and 2002 Iraq force authorizations.³⁰⁴ The fact that they remained on the books for years after the overthrow of Saddam Hussein’s regime, as well as the withdrawal of U.S. combat forces from Iraq, also means that they continued to operate as possible delegations for resuming conflicts or initiating news ones in and around Iraq.³⁰⁵

2. The 2001 AUMF

Congress’s broadest force authorization may be the one following the terrorist attacks of September 11, 2001, which remains in effect. It authorizes the President to use

all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.³⁰⁶

It specifies a purpose—to prevent further terrorist attacks by those categories of target—but it names no specific enemy or duration. It requires the target to have some nexus to the September 11 attacks but gives the President wide latitude to determine who—individuals, groups, or states—comes within that scope.³⁰⁷

Unlike other modern war power delegations, the United States had been directly attacked on September 11. Even those who interpret the Constitution as lodging war-initiation decisions exclusively in Congress generally recognize an implicit exception for repelling invasions or attacks. So, although the 2001 AUMF is sweeping, at least part of its scope may be understood as recognizing preexisting presidential powers to respond to attacks.³⁰⁸ Presumably the reasoning applies to al Qaeda (the actual perpetrators), but defining that group’s organizational and geographic boundaries and determining whether presidential power also applied against, for example, Afghanistan or other nations or entities for harboring al Qaeda, are complicated matters. Thus, the authority granted the President to use force against those not already covered by the President’s constitutional power to respond to direct attacks was potentially quite broad, especially if the nexus requirement is interpreted loosely.

Nondelegation concerns were barely raised, if at all, in Congress or commentary when the AUMF was hurriedly enacted. A few members of Congress indicated at the time that they believed that this resolution was crafted more narrowly than the Gulf of Tonkin Resolution, to avoid serving as a “blank check,” but they did not explain how so.³⁰⁹

Although nondelegation objections were inaudible in 2001, some critics of the 2001 AUMF and proponents of amending it have more recently raised such concerns. As with the Gulf of Tonkin resolution, expansive interpretations by successive administrations—including applying it in countries far beyond Afghanistan and against new terrorist groups like the Islamic State—probably contributed to a view that at minimum Congress should name specific enemies.³¹⁰ In response to academic proposals to update the 2001 AUMF to allow the President to add new terrorist groups to its coverage, some commentators objected that doing so would skirt constitutional requirements. As two scholars put it:

The proposal to bypass Congress and instead delegate such future—and momentous—decisions to the President lacks anyhistorical precedent, and for good reason. It is Congress, not the Executive, that is given the authority under our Constitution to declare war. As our Founding Fathers understood well, an authorization to use military force is a measure that should be undertaken solemnly, after public debate and with buy-in from representatives of a cross-section of the nation, based upon a careful and deliberate evaluation of the nature of the specific threat. It should not be an ex antedelegation to the President to make unreviewable decisions to go to war at some future date against some as-yet-unidentified entity.³¹¹

Note the echo of arguments from earlier eras, that there is something uniquely problematic constitutionally about delegating war-initiation power, due to its special character.

As during the Cold War, broad legislative delegations were widely accepted in the post-Cold War period as an appropriate mode of exercising war power. Still, the nondelegation objection never fully went away.

V. SUMMARY AND IMPLICATIONS

The historical record laid out in previous Parts yields several significant and surprising points about history, doctrine, and legal reform in the field of war power. As to history, we conclude that—contrary to common assumptions—the originalist or historical case for broad war-initiation delegation is weak. At the same time, however, that history does not support the opposite position, that Congress’s war power is essentially nondelegable at all. Throughout much of American history, both political branches often treated war initiation as constitutionally distinct, but not so consistently to alone justify either of those positions. Modern war power delegation practices arose in the 1950s in response to geostrategic imperatives of the Cold War, but also, importantly, against a background expansion in the exercise of unilateral presidential power to use force.

Moreover, the mixed historical record shows that treating “foreign affairs delegation” as a special constitutional category is problematic. Rather, it points in favor of disaggregating that category, and even disaggregating the sub-category “war powers delegation.” The sparse record of war-initiation delegations prior to modern times also highlights the immense practical stakes of this issue as well as the varied and evolving strategic rationales behind broad delegations. In that way our focus on how Congress exercises its war power adds new dimensions to familiar accounts of whether Congress has done so. And as to legal reform, that historical record raises important questions about calls for restoring Congress’s traditional role in initiating war.

A. The Historical Development of War Power Delegation

This Article’s account of war power delegations suggests at least three conclusions about relevant constitutional history. First, the founding era has relatively little definitive evidence to offer on the topic, particularly for those searching for affirmative support for either broad war power delegation or near-absolute war power nondelegation. The drafters and ratifiers seem not to have discussed the matter directly.³¹² Although some scholars suggest that war power (and other foreign affairs powers) was seen at the time as more delegable than domestic lawmaking power, the leading specific defense of this suggestion relies principally upon extrapolation from a single obscure exchange in the Convention debates, with little if any confirmation in subsequent practice or commentary.³¹³ And to the contrary, at least some key figures of the time emphasized the need to place war-initiation decisions in Congress specifically to check the President.³¹⁴ The influential idea at the founding that decisions to start wars should rest with Congress, because Presidents might be too tempted toward war, is in considerable tension with unconstrained delegations of that power. ³¹⁵ Overall, though, originalist-oriented analysis of the founding era seems unlikely to generate specific conclusions on the delegability of war power, making this particular issue difficult to separate from the larger debate over Congress’s power to delegate its constitutional powers more generally.³¹⁶

Second, broad delegations of war-initiation power were surprisingly rare in historical practice prior to the Cold War. The 1798 Quasi-War statutes, often identified as key precedents for war power delegations, were actually quite narrow and incremental, sharply limiting the President’s ability to expand the naval conflict into a larger war.³¹⁷ Moreover, they were infrequently repeated. After the Quasi-War, no significant foreign conflict was initiated pursuant to delegated power until Vietnam.³¹⁸

While early Congresses authorized hostilities on a few now-obscure occasions in which Presidents ultimately chose not to use force, each of these has limitations as clear precedent for broad delegation. The 1811 No-Transfer Act was conditioned on the occurrence of specific events. The 1839 authorization concerning the Maine border involved defense of specific disputed territory under potential military threat from a hostile power. The 1858 Water Witch authorization also depended on specific events and likely contemplated a low-level use of force.³¹⁹ And those examples have generally received little scholarly or lawyerly attention, probably because they were never activated: Presidents did not invoke the delegated authority to use force because the facts on which they were conditioned did not occur.³²⁰ Indeed, none of the nineteenth-century acts just mentioned even appears in a recent Congressional Research Service compilation of historical authorizations to use military force.³²¹

Moreover, during the nineteenth century, Congress rebuffed Presidents Jackson and Buchanan when they requested delegated authority to use force, amid arguments (among others) that such delegations were constitutionally impermissible.³²² For example, the Water Witch delegation was offset by Congress’s subsequent refusal to grant Buchanan wider authority to use force in Mexico and Central America. The 1839 Maine authorization came only a few years after Congress refused Jackson’s request for force authorizations against France and Mexico.³²³ And part of the Quasi-War debate involved authorization for the President to establish a Provisional Army, in which the analogous delegated power was sharply circumscribed in response to nondelegation concerns.³²⁴ So, war initiation was sometimes—but not consistently—treated as a special case for which broad delegation was impermissible. In sum, there is little historical practice to support broad delegations of war-initiation power prior to the Cold War, although a somewhat better case might be made for a limited practice of narrow delegations, particularly ones tied to specific circumstances or events.

In contrast, broad delegations of military powers were much more common in related areas. For example, all of Congress’s formal declarations and other official recognitions of a state of war contained essentially unlimited authorizations for the President to choose ways of fighting the war.³²⁵ Similarly, as to suppressing insurrections and law enforcement, Congress made open-ended authorizations with less concern or debate.³²⁶ Thus, if anything the early historical record suggests that war-initiation delegation was an area of concern—even if the doctrinal limits were unclear and contested.

The historical record of war-initiation delegation spotlights another less-obvious reason that its early practice was more contested than delegation of war-waging powers. Whereas today war-initiation power is usually seen as a core foreign affairs issue, earlier it was viewed as straddling both foreign and domestic affairs. Madison, exemplifying concerns among some constitutional architects, observed that “[w]ar is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.”³²⁷ When Justice Nelson, dissenting in the Prize Cases, argued that Congress’s war-initiation power cannot be delegated, he did not appeal to grave foreign policy consequences; he cited the effects on the “business and property of the citizen.”³²⁸ As one modern scholar puts it, even today “[t]he transition from peace to war and back again fundamentally alters many legal relationships, whether they are privately ordered through contract or publicly ordered through statutes, common law doctrines, treaties, or even the Constitution.”³²⁹ Historically, it was as much the domestic implications of war initiation as the foreign ones that gave opponents of its delegation pause.³³⁰

A third conclusion about constitutional history in this area is that the pivotal period for war power delegation was the early Cold War, after which one might argue that the practice reflected a modern “historical gloss” on the Constitution.³³¹ In a relatively short period of time, Congress passed a series of force authorizations granting or acknowledging broad presidential discretion as to whether (and sometimes even where and against whom) to begin hostilities: the Formosa resolution (1955), the Middle East resolution (1957), the Cuba resolution (1962), and the Gulf of Tonkin Resolution (1964).³³² Nothing like these authorizations had occurred previously. Yet, at the time, they were largely uncontroversial, passing by wide margins with only isolated objections on nondelegation grounds. The Gulf of Tonkin Resolution became controversial later, with the growing unpopularity and inconclusiveness of the expanded Vietnam War, and with that controversy came a rise in political and scholarly appeals to constitutional nondelegation principles.³³³ But those objections faded as the United States withdrew from Vietnam and the Cold War was replaced by concerns over terrorism and rogue regimes.³³⁴

The most evident explanation for this shift is geostrategic. To be sure, the Supreme Court gave comfort through its prior Curtiss-Wright decision, indicating reduced constitutional concern about delegation in foreign affairs generally.³³⁵ But the fundamental changes presaging the new regime of war-initiation delegation were the rise of enduring Cold War military and ideological competition, the U.S. emergence as a global superpower with a worldwide ring of military bases and defensive alliances, and the advent of nuclear weapons. These new and dire circumstances underlay a broad consensus that Presidents needed powers to respond to global emergencies quickly and with a broad range of options. The constant military mobilization and sense of emergency muddied the distinction between war-initiation and presidential commander-in-chief activities, and the obsolescence of formal war declarations in international law further blurred it. Those conditions drove not only new thinking about delegation, but also new acceptance of presidential war powers unilateralism, as reflected in Korea and Cuba.³³⁶

Thus, while the 1955 Formosa authorization was a significant step-up from previous cases in the breadth of delegation, it occurred at a time when many officials in both political branches believed that security imperatives in the Cold War required interpreting Article II of the Constitution to allow the President to defend distant American interests from the Communist bloc. Only a few years earlier, President Truman took the United States into the Korean War without express congressional approval. Although Eisenhower, who had a narrower view of presidential powers, requested the Formosa authorization, he received at least as much congressional pushback on the grounds that he did not need it to use force as on the grounds that it granted too much discretion.³³⁷ These developments bring us to the modern view in which war power delegations are relatively well accepted with relatively little understanding of their origins.

In sum, although on their face congressional force authorizations over time included broader delegations, these resolutions were passed in the context of broader understandings and prevailing practice of executive unilateralism. War power delegation may generally look broader over time in absolute terms, but so do background presidential powers. Perhaps one might attach to Cold War resolutions a historical gloss in favor of delegation, but those background assumptions about independent presidential powers and the perceived need at all for congressional authorization at that time render unclear whether the political branches understood that they were systematically engaging in novel legislative delegations. Indeed, as pointed out in Part IV, that growth in unilateral presidential powers has largely obscured the nondelegation questions lurking below.

B. Doctrinal Implications

This section considers the modern doctrinal implications of the foregoing history. We suggest at least four.

First, for those who would revive a strong version of the nondelegation doctrine, war power delegations are not so easily distinguished from domestic legislative delegations. As discussed, some judges and scholars who seek such a revival on originalist and structural grounds suggest that it would not extend to war alongside other foreign affairs powers.³³⁸ Our account calls that suggestion substantially into question; at minimum it should caution against assuming that such a carve-out is easy to justify. As described, originalist and early post-ratification evidence for broad war-initiation delegations is quite thin. There is little basis for assuming that the founders were less concerned about war power delegations than they were about other delegations (and some evidence that they would have been more concerned). And prior to the 1950s there was essentially no practice of broad delegation of the decision to go to war. The originalist-driven project to revive the domestic nondelegation doctrine may necessarily entail grappling with war power delegations, however much some of its advocates might wish to avoid that.

Second, the historical record cautions against treating war-related or military-related delegations as a single category. Longstanding practice indicates much greater acceptance of some kinds of broad delegations: delegations as to the method of fighting wars, and as to matters of law enforcement and suppression of domestic insurrection.³³⁹ For example, starting with early force authorizations after the Quasi-War, including the 1802 Tripoli resolution and every formal war declaration thereafter, Congress delegated to the President broad discretion regarding how to use military force. Importantly, these are areas in which the President is widely believed to have substantial independent constitutional power as a result of the President’s constitutional status as commander-in-chief and head of the executive branch.³⁴⁰ “Some delegations have, at least arguably, implicated the president’s inherent Article II authority,” noted Justice Gorsuch in Gundy. He continued: “The Court has held, for example, that Congress may authorize the President to prescribe aggravating factors that permit a military court-martial to impose the death penalty on a member of the Armed Forces convicted of murder—a decision that may implicate in part the President’s independent commander-in-chief authority.”³⁴¹

In contrast, war-initiation power—much of which was widely thought, at least in the early Republic, to be vested exclusively in Congress—lacks a similar, long-running historical pattern of broad delegation. Relatedly, to the extent there is historical precedent for delegation of war-initiation power, it involves (prior to the Cold War) specific and limited delegations rather than broad open-ended ones. There is not simply one blanket category of military- or war-related powers for which delegability was historically treated and practiced in the same way.

Third, the above considerations suggest a possible path for limited revival of nondelegation principles in war power debates and adjudication, namely, through interpretation of force authorizations’ scope. To be clear, we are not arguing that such delegation in the modern era is unconstitutional, nor do we think courts are likely anytime soon to address this issue, let alone to hold so. Delegation might be defended on grounds other than originalism and history, and at this point, recent practice has ingrained broad delegations not just as an available option for Congress but even as the preferred option for those who believe that Congress must authorize war or force. However, well short of finding them unconstitutional, legislators, judges, and other legal actors who place great weight on early historical delegation practice might be inclined to read modern force authorizations narrowly.

For example, issues have arisen with respect to the scope of the 2001 and 2002 AUMFs: Presidents have sought to use the 2001 AUMF against entities such as the Islamic State, with only tenuous relationships to the 9/11 attacks, and to use the 2002 AUMF regarding Iraq to authorize force against Syrian and Iranian targets.³⁴² The constitutional history of delegation suggests that if courts were ever to reach the issue, they might instead read these authorizations more narrowly, similar to the way courts have begun to read ambiguous domestic delegations narrowly, as not encompassing important matters not clearly within the contemplation of the delegating Congress.³⁴³ Much like the Supreme Court held that it would not read a statute to delegate to the Environmental Protection Agency power to decide “major questions” of greenhouse gas regulation absent a clear statement by Congress of that intent,³⁴⁴ so too courts could reason from the historical record that force authorizations should be read narrowly absent a clear legislative statement.³⁴⁵

Of course, courts are likely for many reasons—including remedial problems and concerns about comparative expertise—to avoid this issue and treat it as non-justiciable.³⁴⁶ The wisdom and practicality of such an interpretive rule is beyond this Article’s scope, and it would depend on many other factors besides history. Ultimately this will likely remain a constitutional issue for the political branches to wrestle with outside of courts. But regardless of where the issue is debated and decided, the historical record—especially the founding-era concerns about this particular power and the early practice of specific and limited delegations, to the extent war powers were delegated at all—could be used to support such an interpretive approach.

One might respond to these first three doctrinal points by arguing that the President has at least some independent power to use military force, so—for the purposes of constitutional delegation analysis, and perhaps also for purposes of interpreting force authorizations—war-initiation is to some extent an overlapping set of shared powers among the political branches. But even so, assuming there is at least some zone of exclusive congressional power, the question remains how delegation operates in that zone. As noted, this Article assumes the existence of such a zone. We nevertheless acknowledge that the line separating that zone is not a bright one, and that is also among the reasons that courts are likely to regard this issue as nonjusticiable.

Finally and more generally, the above account indicates the importance of disaggregating the category of foreign affairs delegations. Since Curtiss-Wright, courts and commentators have discussed a generalized category of foreign affairs powers that (it is said) may be more easily delegated.³⁴⁷ The history of war power delegations shows that this cannot be so easily assumed. As discussed, even within the foreign-affairs sub-category of military or war-related powers, some powers were historically regarded as more readily delegable than others. By extension, it seems inappropriate to generalize about delegability of foreign affairs powers. Some foreign affairs powers may indeed be readily delegable—particularly if they are associated with independent presidential powers, or with longstanding practice of congressional delegations. Others may not be, perhaps because—like war-initiation power—structurally Congress was designed to play a checking role and longstanding practice is not supportive of delegation. Specific types of foreign affairs delegations should be assessed individually rather than in general categories.

The foreign-domestic distinction in nondelegation law has held little significance in practice since Curtiss-Wright because even in domestic cases, courts have generally upheld delegations to the President under very deferential review.³⁴⁸ However, the idea that the Constitution permits broader delegation in foreign than domestic affairs could become crucial if courts and the political branches were to apply the nondelegation doctrine more strictly, as some Justices say they would. In Gundy, for example, Justice Gorsuch (joined by two other Justices), signaled that expansive foreign affairs delegations might survive his stricter nondelegation analysis.³⁴⁹ Justice Thomas elsewhere similarly suggested that broad foreign affairs delegations might be more permissible.³⁵⁰ Although, again, courts will likely continue to treat war-initiation disputes as nonjusticiable,³⁵¹ a number of scholars have predicted that judges applying a stricter nondelegation doctrine would likely continue to carve out foreign affairs or national security generally for different treatment.³⁵² Ultimately, delegation of war-initiation may still be constitutionally justified and defended on functional or other grounds, but the history of war power delegation cautions against broad-gauge categorical approaches to foreign affairs as a whole.³⁵³

C. Strategic Significance of War Power Delegation

The historical record also gives reason to think that the question whether Congress may delegate power to initiate major war has arguably been more consequential than whether Congress must authorize major war (defined loosely as ground wars with immense costs to the United States³⁵⁴). The former issue gets almost no attention today and becomes critically important if one believes the answer to the latter is yes. Apart from the Korean War, the President has always requested and received congressional approval to launch major wars. Presidents have not always regarded this step as necessary, but they have done so. Counterfactual history is of course difficult, but it is hard to show past major wars in which a constitutional requirement of congressional approval would have made a difference.

It may be easier to identify situations where a requirement that Congress actually decide to initiate war might have influenced the outcome or timing. For example, Eisenhower believed that effectively deterring Chinese attacks on Taiwan in 1955 required diplomatic brinksmanship that in turn required congressional pre-approval to use unlimited force. At least in Eisenhower’s view, delegated war power reduced the likelihood of war compared to seeking a decision by Congress after a Chinese provocation. Requiring Congress to expressly initiate war rather than delegate the decision might reduce or delay war in other ways. In the Persian Gulf War, the Senate passed the 1991 resolution granting the President an option to initiate war by only a narrow 52-47 margin. Would Congress have passed a resolution firmly deciding to initiate war, if it could not constitutionally delegate that politically difficult decision to the President? Perhaps not, or perhaps only after diplomacy was given more time. Similarly, had Congress been required to decide on war with Iraq in 2002–2003, we wonder whether Congress might have scrutinized more carefully the intelligence about Iraq’s alleged weapons of mass destruction. It is impossible to prove the impact of such a requirement (compared to an option to delegate), but it is fair to speculate that war decisions might have played out differently or been slowed. And if merely slowing a decision for war seems insubstantial, remember that it is among the reasons most often cited for lodging war power in Congress to begin with.

The historical record also reveals that how Congress exercises its war power, specifically its choice to delegate decision-making on war, has been of great strategic importance—but for different reasons over time. That episodic history can be understood as efforts by the political branches to wrestle with new foreign policy dilemmas that did not fit neatly with a requirement or practice that Congress itself make the final decision on military intervention.

One obvious rationale for war power delegation is the generic rationale behind many legislative delegations: to manage complexity. To deal flexibly with complicated and uncertain situations, Congress often delegates substantial authority to the executive branch to implement policy within legislative parameters. War power delegations since World War II can be understood in similar terms, as recognition that fast-changing geopolitical conditions and the President’s simultaneous exercise of other military, diplomatic, and economic powers favor giving the President flexibility on whether and when to use force or initiate war. Indeed, although historically critics of war power delegation were generally concerned about presidential power, the practical impact of strict nondelegation—that is, giving Congress only a stark choice between deciding to use force or not, rather than allowing it to authorize the President to exercise some discretion—might actually have been more presidential unilateralism. As the U.S. government has dealt with a wide range of security crises, war power delegations may also thus reflect adaptive, pragmatic advantages of flexibility in how Congress legislatively exercises its war power.³⁵⁵

Historically, however, war power delegation has served as a device for handling various specific strategic challenges in addition to managing complexity. That history is especially useful to those who would justify broad war power delegation on functional grounds. The narrowly crafted 1811 No-Transfer Act involved special need for secrecy, for example. The UNPA involved delegation to solve particular credibility challenges for formal collective security arrangements that would have been unimaginable to the founders. Another new challenge after World War II was extended deterrence, or the credible threat of force to deter attacks on allies, particularly in the Eisenhower Administration.³⁵⁶ In the UNPA and Eisenhower-era force resolution episodes, war power delegations were intended to signal policy certainty, not highlight policy discretion. That dilemma of squaring credible commitments to use force with congressional control of war initiation was also partially obviated by a shift in practice from congressional delegation to executive unilateralism. As explained next, efforts to roll back presidential war powers will bring some of these dilemmas back to the fore.

D. Implications for War Powers Reform

Finally, the historical record of war power delegation—especially questions about its acceptance at the founding and the thin body of practice since then—has implications for war powers reform. Reformists often pitch their calls as “restoring” Congress’s proper constitutional role in war initiation, but the historical record raises questions about what interbranch arrangements reformists are usually calling for a return to. For those who advocate reversion to exclusive congressional control over war initiation, it also raises tough questions about Congress’s ability to delegate discretion through future force authorizations.

Those advocating tighter congressional control of war initiation, whatever their political stripes, often appeal to originalism. In advocating reforms to the 1973 War Powers Resolution, for example, legislative sponsors often talk of restoring the original constitutional framework, in which Congress wielded exclusive control over decisions to initiate war.³⁵⁷ The core of many war power reform proposals is to add teeth to the requirement that Congress must authorize major uses of military force. To reformists, it is usually assumed not just that a congressional resolution delegating power to use force is constitutionally sufficient, but that it represents the gold standard of congressional war power primacy. Note, also, that a similar view is currently shared by some members of Congress who propose (much like Eisenhower in 1955) to authorize the President in advance to use force against China to protect Taiwan³⁵⁸—a scenario that could entail large-scale war.

Such proposals may be normatively attractive, but if we take reformists’ appeal to originalism seriously, that commitment may prove more than reformists think. It is not clear that a forward-looking delegation of authority to use force would have satisfied constitutional requirements for how Congress exercised its exclusive war powers at the founding. Whereas today, requiring an express congressional force authorization for any major hostile use of armed force is generally seen as fully restorative of Congress’s powers as they were originally understood, our findings show that early understandings were uncertain—not uncertain in the way commonly discussed, as to whether Congress’s powers were exclusive, but uncertain as to how Congress was required to exercise those exclusive powers.

Our analysis suggests that those advocating a return to greater exclusive congressional war power should also grapple with whether there are any constitutional limits to its delegation. And in doing so, they would simultaneously have to consider how the strategic imperatives discussed in the previous section will continue often to push in favor of broad delegation.

CONCLUSION

This Article’s chief aim has been to describe the historical evolution of war power delegation from the founding era to the present. This account is interesting in itself, as it undercuts a common assumption that broad war-initiation delegations of the type used in modern practice are a longstanding feature of the constitutional landscape. To the contrary, the Article shows that from the Constitution’s earliest years until the mid-twentieth century, war-initiation delegations were rare and typically specific and conditioned on particular events. Broad delegations became more common only after World War II, first in the Cold War and then continuing to modern times in the conflicts with Iraq and the war on terrorism. The story of war-initiation delegations is a story of constitutional change.

The Article takes no firm position on the ultimate implications for modern war powers doctrine. That depends on one’s view of constitutional interpretation more generally—originalists, traditionalists and functionalists may, for example, draw different conclusions. At minimum, though, it is more difficult than often supposed to defend the modern approach to war initiation on grounds of longstanding historical practice. The historical record also spotlights an otherwise-obscured question about common calls to respect Congress’s original, exclusive war power: namely, whether originally there were constitutional limits to its delegation.

Our analysis also yields insights for broader debates about nondelegation. The Supreme Court has indicated that delegation may be categorically more appropriate in foreign affairs matters, and modern proponents of reviving the nondelegation doctrine have suggested that the revival might exempt delegation of foreign affairs powers. Especially for nondelegation revivalists who take originalism seriously, however, this Article cautions against categorical treatment of foreign affairs delegations, and even against categorical treatment of war-related delegations.

96 S. Cal. L. Rev. 741

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Michael D. Ramsey*

* Warren Distinguished Professor of Law, University of San Diego School of Law.

Matthew C. Waxman†

† Liviu Librescu Professor of Law, Columbia Law School. The authors thank Scott Anderson, Curtis Bradley, Harlan Cohen, Kristen Eichensehr, Jane Manners, Michael McConnell, and Kelsey Wiseman, as well as participants in the Duke-UVA Foreign Relations Law Workshop convened by Professors Bradley and Eichensehr, for their comments on earlier drafts. The authors thank Tanner Larkin, Christopher Malis, Austin Owen, Ruth Schapiro, Alec Towse, and Josh Tupler for outstanding research assistance, and they thank the Martin and Selma Rosen Research Fund for support.

The Illusory Moral Appeal of Living Constitutionalism

November 2023February 2024Samuel Izzo

Two prominent theories of constitutional interpretation are originalism and living constitutionalism.¹ One common argument for living constitutionalism over originalism is that living constitutionalism better avoids morally unjustifiable results. This Note will demonstrate that this argument is flawed because living constitutionalism lacks a definitive enough prescriptive claim as to how to interpret the United States Constitution.

Proponents of originalism assert that courts should interpret constitutional provisions in accordance with the public meaning of those provisions at the time of their enactment.² One criticism of originalism is that if the Supreme Court were to faithfully apply the theory, such application leads morally unjustifiable outcomes.³ This criticism has two components: (1) had the Supreme Court subscribed to originalism as its interpretive method in the past, then certain outcomes, such as the banning of racial segregation in public schools in Brown v. Board of Education,⁴ would not have occurred;⁵ and (2) if the Supreme Court employs originalism in the future, the Court might issue rulings contrary to contemporary moral sensibilities.⁶ Moreover, some critics of originalism maintain that when confronted with this problem, proponents of originalism deny that its application would lead to those outcomes and stretch the theory’s meaning beyond its capacity for any meaningful constraint on interpretation,⁷ or, alternatively, they admit that they would find the morally objectionable practice unconstitutional, even if such holding would be inconsistent with the originalist method.⁸ Thus, the claim is that originalists are “faint-hearted;”⁹ that is, they either tailor the definition of originalism to conform to morally required decisions or abandon originalism when it is too much to bear.¹⁰ This, critics of originalism assert, indicates that originalism is not viable as a constitutional method and should be abandoned, some argue, in favor of living constitutionalism.¹¹

This Note will demonstrate the flaws in the above argument. The argument is flawed, not because it can necessarily be proven that originalism leads to more morally justifiable results than living constitutionalism, but because living constitutionalism lacks a definitive prescriptive claim to make such a comparison between the two theories possible. That is, it is impossible to identify past or hypothetical future outcomes of cases as being consistent or inconsistent with living constitutionalism. Moreover, because it is possible to do so with originalism, and thus, posit how implementing originalism could lead to morally undesirable results, living constitutionalism has an illusory moral superiority over originalism.

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Respect for Marriage in U.S. Territories

November 2023February 2024Christopher R. Leslie

The 2010s were a watershed decade for marriage equality in the United States. In 2013, the Supreme Court in United States v. Windsor struck down section 3 of the so-called Defense of Marriage Act (“DOMA”),¹ which denied federal recognition to valid state marriages between same-sex couples. The opinion left intact section 2 of DOMA, which “allow[ed] States to refuse to recognize same-sex marriages performed under the laws of other States.”² Two years after Windsor, the Supreme Court in Obergefell v. Hodges invalidated all state laws against same-sex marriage.³ The opinion effectively invalidated section 2 of DOMA and went one step further: states had to not merely recognize out-of-state same-sex marriages but also had to perform same-sex marriages in state as well. Obergefell brought marriage equality to every state.⁴

Although Obergefell seemed to guarantee same-sex couples the constitutional right to marry, marriage equality became vulnerable in the summer of 2022. In addition to providing the critical fifth vote to reverse Roe v. Wade in Dobbs v. Jackson Women’s Health Organization,⁵ Justice Thomas wrote a concurrence calling for the complete repudiation of substantive due process.⁶ Ominously, he wrote “in future cases, we should reconsider all of this Court’s substantive due process precedents, including . . . Obergefell.”⁷

Justice Thomas’s concurrence in Dobbs reinvigorated congressional efforts to pass the Respect for Marriage Act (“RFMA”), a statute that would require states to grant full faith and credit to out-of-state marriages regardless of race, gender, ethnicity, or national origin.⁸ The marriage equality movement succeeded when President Biden signed the RFMA into law in December 2022.⁹ Despite the recent controversy of Thomas’s Dobbs concurrence, the RFMA was not new legislation; versions of the RFMA had been proposed in Congress for over a decade, before either the Windsor or Obergefell opinions were issued.¹⁰ The RFMA did not simply codify Obergefell, as the Act does not invalidate any state’s prohibition on licensing same-sex marriage within its own borders. Instead, the RFMA effectively repealed section 2 of DOMA and affirmatively requires states to recognize same-sex marriages legally performed in other states.¹¹

Opponents of the RFMA argued that the legislation was unnecessary because Obergefell already protects marriage equality.¹² They seem unimpressed with Justice Thomas’s shot across the bow in Dobbs.¹³ For example, one month after Justice Thomas announced his intention to reconsider and perhaps reverse Obergefell, Senator Marco Rubio belittled the RFMA as a “stupid waste of time.”¹⁴ Iowa Senator Chuck Grassley voted against the RFMA, asserting that the “legislation is simply unnecessary. No one seriously thinks Obergefell is going to be overturned so we don’t need legislation.”¹⁵ He implied that RFMA supporters were seeking “to fabricate unnecessary discontent in our nation.”¹⁶

The argument that the RFMA was unnecessary because marriage equality was already the law of the land failed to appreciate how constitutional law reaches the shores of U.S. territories. Even if Justice Thomas fails in his mission to overturn Obergefell, the RFMA is still essential now to bring the protections of Obergefell to all corners of the American empire. Before the RFMA, the U.S. territory of American Samoa refused to follow Obergefell and continued to restrict marriage licenses to opposite-sex couples.¹⁷

While Obergefell instantly brought marriage equality to every state, the path toward marriage rights has been more complicated in U.S. territories: American Samoa, Guam, the Commonwealth of the Northern Mariana Islands (“CNMI”), the U.S. Virgin Islands (“USVI”), and Puerto Rico.

Acquired primarily from colonial powers by purchase or as the spoils of war, U.S. territories hold a precarious position in our constitutional structure. Beginning in 1901, the Supreme Court issued a series of opinions known as the Insular Cases.¹⁸ This line of authority prevented constitutional rights from automatically protecting territorial residents. Instead, the Court held that “the Constitution is applicable to territories acquired by purchase or conquest, only when and so far as Congress shall so direct.”¹⁹ In the absence of congressional directive, the Insular rubric provides that federal courts can hold that a constitutional right applies to one or more territories when the court determines that the right is “fundamental” and that recognizing the right would not be “impracticable and anomalous” for that territory.²⁰ Under this test, for example, the district court in King v. Andrus²¹struck down rules denying jury trials in criminal cases in American Samoa, finding that it would not be impractical and anomalous to require American Samoa to provide jury trials to criminal defendants, given the structure of the American Samoan judicial system.²²

Conversely, in rejecting calls to provide birthright citizenship to individuals born in American Samoa,²³ The Court of Appeals for the D.C. Circuit in 2015 in Tuaua v. United States held that it would be “anomalous to impose citizenship over the objections of the American Samoan people themselves”²⁴ and federal judges should not “forcibly impose a compact of citizenship—with its concomitant rights, obligations, and implications for cultural identity.”²⁵ In 2021, the Tenth Circuit in Fitisemanu v. United States followed suit and used the Insular framework to block birthright citizenship for American Samoans.²⁶

The Fitisemanu plaintiffs petitioned the Supreme Court for certiorari.²⁷ Some commentators saw the case as the perfect vehicle for challenging the Insular Cases.²⁸ The hope was not far-fetched. Respected scholars advocate the reversal of the Insular Cases.²⁹ Significantly, in his concurrence in United States v. Vaello Madero in April 2022,³⁰ Justice Gorsuch observed the following:

A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.³¹

On October 17, 2022, however, the Supreme Court denied certiorari in Fitisemanu,³² thus leaving the Insular Cases intact. While not obvious at first glance, that decision has implications for marriage equality in U.S. territories.

This Article proceeds in three parts. Part I examines how the governments of the five U.S. territories responded to the Obergefell decision. Because of the Insular Cases, Obergefell did not necessarily automatically apply to the territories. Of the most concern, the territorial government of American Samoa has refused to recognize either Obergefell or marriage equality. Part II explains how the RFMA provides a partial solution to the problem created by the Insular Cases. It discusses the unappreciated significance of the RFMA for residents of U.S. territories. The RFMA brings a form of marriage equality to American Samoa for the first time. Less historic, but also important, the RFMA would ensure the continuation of marriage equality in those U.S. territories where the right to same-sex marriage is currently recognized but uniquely vulnerable because of the Insular Cases. Part III exposes some of the limitations of the RFMA. For example, the RFMA requires that states and territories provide full faith and credit to marriages legally performed in other states and territories; same-sex couples still cannot get legally married in American Samoa. They must leave home to get married, a burden not imposed on opposite-sex couples.

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Prosecutorial Authority and Abortion

October 2023February 2024Andrew T. Ingram

In the wake of Dobbs, abortion is now unlawful in many states. States that prohibit abortion use their regulatory authority, civil justice systems, and criminal law to do so. Presumably, many of the activists and politicians who have been fighting to ban abortion will want to see that outlawing abortion is effective at reducing the incidence of abortion in fact. Once abortion is unlawful in a state, some pro-life partisans will also want those who perform or assist abortions to be criminally punished.

This Essay identifies a serious procedural obstacle to the use of the criminal law against abortion in a post-Dobbs world: exclusive local authority to bring criminal prosecutions. The obstacle is constitutional in a small number of states, but one of those states, Texas, is the most populous state where abortion is now illegal. In these states, only local, autonomous prosecutors (district attorneys and county attorneys) can pursue indictments or file informations to commence criminal cases. Prosecutorial localism is enshrined in the Texas Constitution.

Inside the borders of states that do not allow their attorneys general to initiate prosecutions, criminal law against abortion will be a dead letter in certain urban and suburban counties as pro-choice electorates pick prosecutors who will not bring abortion prosecutions. For politicians in states like Texas with well-entrenched Republican leadership at the statewide level, the pressure to act forcefully against abortion will be immense, but without changes to jurisdictional laws, Republican attorneys general will be unable to enforce abortion bans through criminal law. At the same time, the pressure on Democratic county and district attorneys not to enforce the abortion laws will be equally immense. The outcome may be highly contentious constitutional litigation to revisit old understandings about the allocation of authority between state and local elected officials, as well as efforts in state legislatures to amend statutes and constitutional provisions that mandate localism in criminal procedure.

This brief Essay adds to the growing literature on criminal procedure in a post-Dobbs world. Those prosecuted for performing or having abortions who have lost the Fourteenth Amendment’s shield for the procedure itself will still be protected by the Fourth, Fifth, and Sixth Amendments, as well as broader common law traditions and workaday rules of criminal trials in their states. For instance, Peter Salib and Guha Krishnamurthi have already pointed out the deterrent effect of jury nullification on abortion prosecutions.¹

Visiting Assistant Professor, Chicago Kent College of Law, 2019–2021; Law Clerk to the Honorable Gregg Costa, United States Court of Appeals for the Fifth Circuit, 2016–2017; Law Clerk to the Honorable Michael Massengale, Texas Court of Appeals for the First District, 2013–2014.

The author’s previous work on the criminal law has appeared in Houston Law Review, University of Richmond Law Review, and The Ohio State Journal of Criminal Law.

Associate, Yetter Coleman LLP. The views expressed in this Essay are the author’s own and do not represent the views of his employer.

This Essay closes by recognizing that criminal prosecutions are not the only tool that pro-life leaders at the state level have to promulgate antiabortion policy. The fact that those involved with abortion in some “blue” counties in some “red” states will be safe from criminal prosecution will not restore the pre-Dobbs status quo. Rather, the likely result in these counties is a kind of gray market condition where unlicensed providers of medication abortions will be able to operate while licensed professionals and established clinics will be kept closed by the threat of regulatory fine, license revocation, and civil liability. And of course, this assumes that pro-life politicians and voters do not quickly amend state laws—even state constitutions—to permit attorneys general to prosecute abortion.

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INTRODUCTION

I. CONSTITUTIONAL LIMITATIONS OF GUN CONTROL

A. The Trilogy of Modern Second Amendment Jurisprudence

1. The Necessity of an Individual Right

2. The Pre-Existence Doctrine: Finding the Individual Right in Text and History

3. Market Share as Constitutionality: The Common Use Doctrine

4. Incorporation

5. The Third Act: Applying Heller to Public Carry Licensing

B. Summary of Second Amendment Precedent

II. SOUTH AFRICA’S GUN CONTROL SYSTEM

III. THE MODEL FIREARMS CONTROL ACT

A. Chapter 1: Definitions, License Requirement, Eligibility Certificate

B. Chapter 2: Types of Licenses and Use of Firearms

C. Chapter 3: Use and Transportation of Firearms

IV. CONSTITUTIONALITY

A. “Longstanding Prohibitions”

1. Prohibition on Firearm Possession by Felons

2. Prohibiting Firearm Possession for Certain Non-Felonies

B. Regulation of Different Classes of Arms

1. Purpose-Based Licensing

2. High-Capacity Magazines and Semi-Automatic Rifles

C. Public Carry

CONCLUSION

97 S. Cal. L. Rev. 211

INTRODUCTION

I. BACKGROUND

A. The Clean Air Act and EPA Waiver Provision

B. History of California’s Motor Vehicle Regulations and Waiver Requests

C. Pending Lawsuit—Ohio v. EPA

D. California’s Advanced Clean Cars II Regulations

E. The Equal Sovereignty Principle

1. Origins: The Equal Footing Doctrine—New Admission of States

2. Equal Sovereignty Applied to Voting Rights

3. Shelby County v. Holder—Equal Sovereignty as a General Principle

II. APPLYING THE SHELBY COUNTY TEST TO THE CLEAN AIR ACT

A. The Equal Sovereignty Principle Likely Does Not Apply to the Clean Air Act

B. Even if the Equal Sovereignty Principle Applies to the Clean Air Act, It Does Not Invalidate Section 209(b)(1) of the Clean Air Act

1. By Treating States’ Political Authority Differently, the Clean Air Act Waiver Likely Violates the Equal Sovereignty Principle

2. Nevertheless, the Clean Air Act Waiver Provision Remains Constitutional Because Its Disparate Geographic Coverage Favoring California Is “Sufficiently Related to the Problem that It Targets”

i. The Clean Air Act Targets the Broad Problem of Public Health Threats from Automobile Emissions

ii. Allowing California Broad Discretion to Regulate GHG Emissions Is Sufficiently Related to Addressing the Public Health Threats from Motor Vehicle Pollution in California

CONCLUSION

97 S. Cal. L. Rev. 165

INTRODUCTION

I. STRUCTURE AND MANDATES OF THE FEDERAL RESERVE

II. CONSTITUTIONAL PROBLEMS

A. Non-Delegation

B. Appointment and Removal

1. Removal of Members of the Board of Governors

2. The Status of Reserve Bank President

i. Reserve Bank Presidents as “Officers of the United States”

ii. Inferior or Principal Officers

iii. Article II Requirements for Appointment of Inferior Officers

iv. Removal of Presidents by Reserve Bank Boards

v. Reserve Bank Presidents as Private Actors

III. CONSTITUTIONAL AVOIDANCE

A. Reasons to Forbear

B. Standing

1. Private Party Standing to Challenge Monetary Policy Actions

i. The D.C. Circuit Decisions

ii. Current Standing Doctrine

2. Claims Other than Economic Harm from Monetary Policy Actions

i. Congressional Standing

ii. Private Actions Against Reserve Banks

iii. Presidential Removal of a Reserve Bank President

C. The Federal Reserve as Exceptional

1. History

2. The Federal Reserve as Anomalous

IV. CONSTITUTIONAL CHOICES

A. Doctrinal Restraint

1. Standing

2. Independent Agencies

B. Federal Reserve as Exceptional

1. History

2. Nature of Central Banking

C. Finding of Unconstitutionality

CONCLUSION

97 S. Cal. L. Rev. 1

INTRODUCTION

I. PUNISHMENT AND THE RULE OF LAW