Executive Primacy, Populism, and Public Law

As the articles in this Symposium suggest, populism and authoritarianism present ongoing challenges not only to liberal democracy but also to its legal underpinnings. Manipulation, avoidance, evasion, and outright rejection of the constitutional and legal frameworks of liberal democracy are features of populist authoritarianism. The basic argument of this article is that liberal-democratic public law and legal theory no longer satisfy human needs and desires because they were conceived in worlds that no longer exist, when the main pre-occupation was to secure liberty, not equality. The aim of the article is to explain the inherited structure of our public law and theory and the main events and developments that have produced this mismatch between public law and social aspiration

Food and Drug Administration Regulation of Food Safety

Food-borne illness remains a major public health challenge in the United States, causing an estimated 48 million illness episodes and 3000 deaths annually. The FDA Food Safety Modernization Act (FSMA), enacted in 2011, gives the Food and Drug Administration (FDA) new tools to regulate food safety. The act emphasizes prevention, enhanced recall authority, and oversight of imported food. The FSMA brings the FDA’s food safety regulation in line with core tenets of public health by focusing on preventing outbreaks, rather than reacting to them, and differentiating between foods and food producers based on the degree of risk they pose. The FSMA also recognizes the increasing importance of imported food and enhances the ability of the FDA to safeguard the U.S. food supply from hazards originating abroad. The act achieves its prevention objectives through requiring food production facilities to establish preventive control plans and by increasing inspection frequency—a shortcoming of the FDA in recent years. The act also enhances the FDA’s ability to respond to food safety problems when they occur. Through pilot projects on food tracing systems and an enhanced surveillance system, the FDA will be have better tools to determine the source of outbreaks. Additionally, the act gives the FDA new mandatory recall authority—a badly needed addition to its enforcement capabilities. In an increasingly globalized food environment, the FSMA gives the FDA new authority to regulate imported food. Among other provisions, the act allows FDA to inspect foreign facilities and to partner with foreign food regulatory agencies to help build capacity. Through new tools and increased enforcement, the FSMA holds great promise for public health. The act, however, leaves several regulatory gaps, including keeping the food safety functions of the USDA and FDA separate. Additionally, the potential of the act to improve food safety may be thwarted by inadequate funding in the current budget environment. The act includes numerous programs for building the capacity of domestic and foreign regulators and food producers. Such programs are essential to an improved food safety system, but require adequate funding from Congress to be fully implemented. In addition to national capacity building, FDA and Congress should fully engage partners in government and industry to improve global food safety at the international level

Foreword: Academic Influence on the Court

The months leading up to the Supreme Court’s blockbuster decision on the Affordable Care Act (ACA) were characterized by a prodigious amount of media coverage that purported to analyze how the legal challenge to Obamacare went mainstream. The nation’s major newspapers each had a prominent story describing how conservative academics, led by Professor Randy Barnett, had a long-term strategy to make the case appear credible. In the first weeks after the ACA’s passage, the storyline went, the lawsuit’s prospects of success were thought to be virtually nil. Professor (and former Solicitor General) Charles Fried stated that he would “eat a hat...made of Kangaroo skin” if the challenge were successful. But, as the case went through the system, the predictions evolved to the point where many believed that the ACA would be struck down. A (rapidly diminishing) group of observers maintained their prediction that the ACA would be upheld, but even then, most of those individuals focused exclusively on Commerce Clause grounds. In the midst of this speculation came an important article by Robert Cooter and Neil Siegel arguing that the ACA should be upheld as a valid exercise of the tax power. They argued—in a draft placed online two months before the oral argument in the case—that there was a key distinction between penalties and taxes. Applying that framework, they argued that the ACA was not a penalty because penalties have the effect of preventing conduct (thereby producing little revenue) and the ACA’s minimum cover-age provision, by contrast, was projected to raise oodles of revenue. It is fair to say that this article had little to no impact on the media predictions that were being bandied about as the case wound its way through the Supreme Court. The Commerce Clause remained everyone’s focus

Natural Law Ambiguities

I share with Fred Schauer the relatively unpopular belief that the positivist insistence that we keep separate the legal is from the legal ought is a logical prerequisite to meaningful legal criticism, and therefore, in the constitutional context, is a logical prerequisite to meaningful criticism of the Constitution. As Schauer argues, despite the modern inclination to associate positivism with conservatism, the positivist separation thesis, properly understood, facilitates legal criticism and legal reform, not reactionary acquiescence. If we want to improve law, we must resist the urge to see it through the proverbial rose-colored glasses; we must be clear that a norm\u27s legality implies nothing about its morality. To reverse the classical natural lawyer\u27s formulation of the issue, if we wish to make our laws just, we must first see that many of our laws are unjust, and if we are to understand that simple truth, we must understand that the legality of those norms implies nothing about their justice. Surely the lessons of positivism are more compelling, not less compelling, in the constitutional context where the capacity for self-delusion is so great, given the moralistic content and peculiar history of the Constitution, and where the stakes are highest: the consequences of merging constitutional fact with constitutional virtue are that we preclude even the logical possibility of fundamental criticism of our most foundational legal document. As I have argued at some length elsewhere, by merging in our own minds and in the public mind constitutional morality and critical morality, we have closed the door to meaningful criticism of the Constitution. The positivist\u27s classic and even enlightened insistence on the separation of law and morality, if it would free up criticism of constitutional norms, could bring a welcome breath of fresh air. Today, legal positivism is widely taken to imply not just a conservative stance against legal change, but much worse: a refusal even to engage the issue, a denial of the coherence of legal criticism, and a denial of the relevance, in some sense, of legal reform. Given the historical grounding of positivism in an insistence on the need for legal criticism and legal reform, this modern belief about the reactionary consequences of legal positivism is strikingly peculiar: how did black become white? Where did this belief, so widely shared yet so wildly at odds with both the clear history and the apparent logic of legal positivism, come from? In these comments I want to supplement Fred Schauer\u27s discussion and general defense of positivism with a brief response, in a sense, to Cover\u27s quite chilling indictment. I will ultimately argue that whatever the (limited) force of Cover\u27s indictment of the positivism of the abolitionist judges, that argument has no force against the positivism of the nonjudge constitutional critic. The critic, unlike the judge, is interested in competing theories of the relationship between law and morality, not as a guide to legal interpretation, but rather as a guide to clear-headed legal criticism. The constitutional critic, almost by definition, will rarely if ever be a judge. For such a critic, contrary to contemporary opinion and for the reasons stressed by the classical positivists, positivism does indeed facilitate the kind of constitutional criticism that natural law thinking obscures

Why Would Anyone Want to Be a Public Interest Lawyer?

I can barely express how grateful the Law Center is to the Delaneys for their generous gift, or what an honor it is to be designated as the first Delaney Family Professor of Public Interest Law at this incredibly vibrant institution. But our celebration today is not merely the recognition of my scholarship or public service. What the Delaneys have done is to honor not only me but also the hundreds of Georgetown students, faculty, staff and alumni who perform public service. Whether they have achieved high office, like Senators Richard Durbin and Patrick Leahy, or provide free legal services for accused defendants in the local courts, or like April Delaney herself, do research, advocacy, or public education in nonprofit organizations, the public interest lawyers who have passed through the halls of Georgetown Law are all encompassed by the Delaneys\u27 vision that public service is the highest calling of those in our profession

Rights Over Borders: Transnational Constitutionalism and Guantanamo Bay

This essay argues that the most profound implications of the Supreme Court’s decision in Boumediene v. Bush may lie not in what it says about the place of law in the war on terror, but in what it reflects about the Supreme Court’s altered conceptions of sovereignty, territoriality, and rights in the globalized world. Boumediene was groundbreaking in at least three respects. For the first time in its history, the Supreme Court declared unconstitutional a law enacted by Congress and signed by the president on an issue of military policy in a time of armed conflict. Also for the first time, the Court extended constitutional protections to noncitizens outside U.S. territory during wartime. And for only the third time in its history, the Court declared unconstitutional a law restricting federal court jurisdiction. The Court has traditionally sought to avoid such confrontations through the application of statutory interpretation, bending over backward to interpret statutes to preserve judicial review where it might be unconstitutional to deny such review. But the real significance of the decision may lie in what it portends for modern-day conceptions of sovereignty, territoriality, and rights. The Bush administration relied on old-fashioned conceptions of sovereignty and rights in arguing that habeas corpus jurisdiction did not extend to Guantanamo, and that federal courts should have no constitutionally recognized role there. The Court’s decision, by contrast, reflects new understandings of these traditional conceptions, understandings that pierce the veil of sovereignty, reject formalist fictions of territoriality where the state exercises authority beyond its borders, and insist on the need for judicial review to safeguard the human rights of citizens and noncitizens alike. And while Boumediene may appear unprecedented from a domestic standpoint, it fits quite comfortably within an important transnational trend of recent years, in which courts of last resort have played an increasingly aggressive role in reviewing (and invalidating) security measures that trench on individual rights

The Missing Jurisprudence of the Legislated Constitution

Does the fourteenth Amendment and its Equal Protection Clause — the promise that no state shall deny equal protection of the laws — have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country\u27s poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts — the adjudicated Constitution — or what I propose to call the legislated Constitution, the Constitution looked to by the conscientious legislator as he or she seeks to fulfill her political obligations. My claim in this chapter is that the legislated, rather than the adjudicated, Constitution can more plausibly be read as guaranteeing an equality that is supportive of progressive goals rather than in tension with them. Programmatically, I will suggest that progressive lawyers should take this opportunity of their respite from judicial power and attend to the development of that Constitution, so that we might at some point in the future urge fidelity to it on the part of our representatives, rather than continue to attend, with the same intense devotion that still characterizes our current legal zeitgeist, to the adjudicated Constitution. The very coherence of a legislated Constitution, however, depends upon an accompanying jurisprudence (or, awkwardly, legisprudence), and that is a jurisprudence that is currently entirely missing from even the most utopian constitutional theorizing. I will conclude by suggesting what that jurisprudence might look like and what its creation, or rediscovery, will require

A Thought Experiment

Herewith, Justice Antonin Scalia\u27s long lost dissenting opinion in Brown v. Board of Education

The Siren Song of History: Originalism and the Religion Clauses

It is hard to foresee much happiness in the lot of those seeking the original meaning of the Religion Clauses. We may acknowledge the opacity of the historical record, the variety of viewpoints held by founders forgotten and non-forgotten, the humanness of the founders who did not always practice what they preached, even the basic indeterminancy of language; still, we are seduced by the siren song of interpretive certainty. But the search for greater clarity is not without its payoff. As the three books under review here illustrate, the more we look for answers in the historical record, the more we are likely to find ambiguity--and with each step we take away from the promised land of historical clarity, we move a step closer to the richer, if less certain, terrain of historical truth. This essay reviews the following works: The Forgotten Founders on Religion and Public Life. Edited by Daniel L. Dreisbach, Mark David Hall and Jeffrey H. Morrison. Foreword by Mark A. Noll. University of Notre Dame Press 2009. Pp. 316. ISBN: 0-268-02602-5; Church, State, and Original Intent. By Donald L. Drakeman. Cambridge University Press 2010. Pp. 371. ISBN: 0-521-11918-9; God and the Founders: Madison, Washington, and Jefferson. By Vincent Phillip Muñoz. Cambridge University Press 2009. Pp. 242. ISBN: 0-521-51515-7