The Internationalization of Agency Actions

U.S. agencies routinely base their domestic regulations on international considerations, such as the benefits of coordinating American and foreign standards or the foreign policy advantages of a particular policy. I refer to this phenomenon as the internationalization of agency actions. This Article examines what the internationalization of agency actions means for agency decision-making processes, institutional design, and legal doctrine. It creates a stylized model of how agencies determine whether to coordinate their standards with foreign regulations. Among other institutional design findings, it shows that court opinions that reduce the stringency of judicial review when agencies implement internationally coordinated standards make such coordination more likely to occur, but they simultaneously deprive the executive of bargaining power because U.S. agencies cannot credibly threaten that any coordinated agreement must align more closely with U.S. values or risk being overturned in U.S. courts. This Article also develops a taxonomy of international factors relied on by agencies and applies that taxonomy to help clarify the doctrinal issue of whether and when agencies can use international factors to justify their actions in court. This taxonomical approach shows how the Supreme Court’s opinion in Massachusetts v. EPA can reasonably be read to allow agencies to invoke a far broader range of foreign policy rationales than some prevailing views suggest

Regulating Organic Food: The Case for the National Organic Standards Board

The organic food industry involves a mix of diverse interest groups, including agrarian purists, “big organic” industry, environmentalists, and consumer interest groups. This paper addresses how the different institutions charged with overseeing organic food to one extent or another – the USDA, the National Organic Standards Board, and the courts – should interact to produce the best regulations for organic food. The paper advances four arguments. First, courts lack competency in the area of organic food. Second, the USDA is not always transparent in its oversight and may in fact favor big organic businesses over other interests. Third, the NOSB has the expertise that the courts lack and the transparent deliberation that makes its decisions less vulnerable to charges of unfairness or favoritism. Fourth, courts should typically defer to the USDA on organic food decisions. But courts should help ensure that the USDA follows NOSB proposals by engaging in more searching review of agency rules and regulations that are misaligned with the advisory board’s recommendations

The Vagueness of the Independent State Legislature Doctrine

The Independent State Legislature (ISL) Theory has been one of the hottest topics in election law, with conservative thinkers championing a strong version of the theory. In Moore v. Harper, the Supreme Court had the opportunity to turn this controversial theory into actual doctrine. The Court, though, declined to adopt a maximalist version of the theory and declined to reject it outright. Instead, it offered a vague standard that gives close to zero guidance as to where, between these two poles, the doctrine sits. Several scholars and commentators have responded to the opinion with a mix of relief, because the conservative Court rejected the most extreme version, and wariness, because the Court left room for federal courts to use the theory to undermine voting rights. This commentary challenges and adds to this narrative in a couple of ways. First, it shows that the political and policy implications of the ISL Theory are more complex and uncertain than often assumed. For example, in addition to other complicating scenarios, future cases could see liberals invoking the theory in federal court to rectify conservative state court decisions on fraudulent vote dilution. This commentary offers an explanatory theory that shows the Court may have opted for a vague doctrine in part to preserve flexibility in this uncertain decision-making environment. Second, this commentary highlights one cost of a vague ISL doctrine – an increased risk of outcomes that confuse and disenfranchise voters. Both claims are descriptive. They discuss benefits and risks that have been overlooked or insufficiently analyzed in the literature on the ISL Theory

Constitutional Self-Interpretation

What are the constitutional norms for self-interpretation-that is, the constitutional rules governing whether and when a government body has the power to issue controlling interpretations of legal texts that it drafted? The answer to this question could determine the fate of Seminole Rock deference, the nearly seventy-year-old doctrine enabling agencies to issue controlling interpretations of their own regulations. Jurists and scholars have argued that the doctrine runs afoul of a constitutional norm against self-interpretation, and last term Chief Justice Roberts asked future litigants to brief whether the court should overturn the doctrine on this basis. This Article is the first to comprehensively examine constitutional self-interpretation norms by looking at the conditions under which the heads of the three branches of government exercise self-interpretation powers. It shows that self-interpretation is pervasive and that the Supreme Court would be wrong to overturn Seminole Rock on self-interpretation grounds. Moreover, by examining self-interpretation practices, this Article brings new insight to the many areas of law that involve self-interpretation, including presidential oversight of agencies and judicial stare decisis

Fraudulent Vote Dilution

In recent years, the Republican Party and conservative groups have brought lawsuits that advance a novel type of voting claim, which this Article calls fraudulent vote dilution. This claim asserts that an election rule is unconstitutional because it makes it too easy to cast fraudulent ballots that, when tabulated, will dilute the strength of valid and honest ballots. With the 2024 election nearing, the Republican Party may again test fraudulent vote dilution claims in court, as it seeks injunctions to make liberal election rules stricter in ways that make it harder for Democratic voters to cast ballots. This Article advances several new descriptive and normative claims about fraudulent vote dilution. First, it clearly situates fraudulent vote dilution as a new conservative litigation weapon. Conservatives, who typically are on the defensive in voting rights cases, are developing fraudulent vote dilution to give them an offensive weapon they can deploy against liberal election rules. Second, the Article explores the relationship between fraudulent vote dilution and race. For decades, the Supreme Court has recognized vote dilution claims that protect the rights of Black voters. This Article shows that, by co-opting dilution language associated with racial justice claims, conservatives can attempt to shield their project from moral criticism and advance their goal to decenter race from voting rights disputes. Third, this Article provides an institutional analysis that examines the capacity of courts to review fraudulent vote dilution claims and identifies facets of the claims that create a high risk of erroneous judicial decisions. Finally, to guide courts and guard against judicial errors, this Article proposes three necessary elements for a fraudulent vote dilution claim

Judicial Preferences and Aggrandizement Effects

Scholars increasingly portray the Supreme Court as power hungry and self-aggrandizing. This aggrandizement literature, though, lacks a robust causal theory. This essay argues that judicial aggrandizement is not the product of a power-maximizing agenda but a function of judicial preferences and legal background conditions. Aggrandizement occurs in cases where legal background conditions do not align with judicial policy preferences and the justices assert power to create their preferred policy outcomes. This theory has significant prescriptive and normative implications. For example, counterintuitively, this essay shows that more judicial aggrandizement could be a sign of a healthier institution under some conditions

Election Obstruction

In 2020 and 2022, multiple Republican county canvassers refused to perform their ministerial duty to approve election returns, obstructing the official certification of the results. The canvassers latched onto false claims of fraud and other conspiracies advanced by election deniers. They eventually relented because of court orders and public pressure. The elections produced official winners, and crisis was averted. But, as long as election denialism rots our political discourse, election obstruction by canvassers will be a persistent risk with significant dangers for our democracy. This Essay provides a brief history of election obstruction by canvassers, examines the modern link between election denialism and election obstruction, and proposes two solutions to minimize the risk of election obstruction—diversifying canvassing institutions and bypassing county canvassers for national and statewide race

The Dangerous Independent State Legislature Theory

In 2020, conservative justices and the Trump Campaign championed a theory, known as the independent state legislature doctrine, that claims voting rights protections in state constitutions do not apply to the election rules that state legislatures set for the federal elections in their states. Under the theory, state courts cannot review and enjoin these state election laws for state constitutional violations. This Article exposes the flaws and dangers of the independent state legislature theory. It deconstructs the justifications for its utility, revealing them as undertheorized and based on flawed assumptions of legislative behavior and flawed understandings of constitutional and institutional design. As for the danger, while our constitutional system generally provides dual federal-state protections for civil rights, the independent state legislature theory would effectively remove state constitutions as a safeguard for voting rights. In this way, the theory would make voting rights the least protected civil right

Judicial Preferences and Aggrandizement Effects

Scholars increasingly portray the Supreme Court as power hungry and self-aggrandizing. This aggrandizement literature, though, lacks a robust causal theory. This essay argues that judicial aggrandizement is not the product of a power-maximizing agenda but a function of judicial preferences and legal background conditions. Aggrandizement occurs in cases where legal background conditions do not align with judicial policy preferences and the justices assert power to create their preferred policy outcomes. This theory has significant prescriptive and normative implications. For example, counterintuitively, this essay shows that more judicial aggrandizement could be a sign of a healthier institution under some conditions