Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework for the Public-Law Puzzle of Subdelegation

In the wake of Gundy v. United States, 139 S.Ct. 2116 (2019), there is reason to think that five Justices might be willing to consider reviving the constitutional non-subdelegation doctrine. But in what form? Judges and scholars have labored for more than two centuries to come up with a legally rigorous standard for evaluating the permissible scope and breadth of congressional grants of discretion to executive and judicial agents. Some, such as Justice Scalia, eventually gave up in despair. That is a grave mistake. Lawyers had faced subdelegation questions for centuries before the Constitution was ratified, in the context of private-law agency arrangements. There are good reasons to think that the Constitution draws on private-law background norms for much of its meaning, and the subdelegation problem is an excellent candidate for elaboration in private-law terms. Thus, when Chief Justice John Marshall in 1825 drew a distinction between impermissible grants of discretion on “important subjects” and permissible grants of discretion on matters of “less interest,” his approach was far more structured, grounded in precedent , and law-like than may appear at first glance. It drew on principles and case law developed in settings ranging from powers of appointment in wills, in which the holder of the power tries to designate another person to exercise it, to the lack of privity between merchants and subdelegees in the absence of express authority on the part of the agents to subdelegate power, to the lack of authority of factors and supercargoes to entrust sale of goods to subagents without the express consent of their principals. Thus, judges worried about the open-ended character of a non-subdelegation doctrine need not run away from Chief Justice Marshall’s classic formulation. They simply need to flesh out its private-law background. There was abundant law regarding subdelegation in the eighteenth and nineteenth centuries, and the Constitution’s subdelegation principle is grounded in that law

AIDS, Astrology, and Arline: Towards a Casual Interpretation of Section 504

Section 504 of the Rehabilitation Act of 1973 provides that [n]o otherwise qualified individual with handicaps shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under [any federal or federally funded program]. \u27 In School Board v. Arline, the Supreme Court held that a school teacher with a history of infectious tuberculosis was an individual with handicaps protected by section 504, and that the determination of whether she was otherwise qualified to teach elementary school required a sound medical assessment of the risks of contagion posed by her condition. Had the case arisen a decade ago, it likely would have attracted little attention or comment. In 1987, however, a spectre haunted Arline-the spectre of AIDS.Several of the amicus curiae briefs filed on both sides in Arline specifically discussed the case\u27s possible implications for future claims under section 504 alleging discrimination against persons with AIDS or AIDS-Related Complex (ARC), carriers of the Human Immunodeficiency Virus (HIV) responsible for AIDS,or persons wrongly regarded as having AIDS or harboring the virus.\u27 The Solicitor General shared argument time with the petitioning school board, urging a construction of section 504 first advanced in 1986 by the Justice Department\u27s Office of Legal Counsel (OLC) in an opinion by Assistant Attorney General Charles J. Cooper dealing specifically with AIDS-related discrimination. When Justice Brennan announced the opinion of the Court, he took the unusual step of cautioning those present in the courtroom that the case was not about AIDS. Nonetheless, the Washington Post, no doubt reflecting the prevailing understanding of the case, ran a front-page story on the Arline decision with the headline, AIDS Ruled a Protected \u27Handicap.\u2

Legal Indeterminacy: Its Cause and Cure

Legal indeterminacy--the extent to which any particular legal theory cannot provide knowable answers to concrete problems is one of the principal themes of modern jurisprudence. Indeterminacy plays an important role in debates concerning interpretation, the nature of legal obligation, and the character and possibilities of the rule of law. Indeterminacy looms particularly large in debates concerning originalism as a method of constitutional interpretation. Some scholars insist that originalism resolves too few problems to be of much use, while others argue that originalism\u27s indeterminacy is often overstated

Rebel Without a Clause: The Irrelevance of Article VI to Constitutional Supremacy

With Stare Decisis and Constitutional Text, Jonathan Mitchell has produced what I think is the most interesting and creative textual defense (or at least partial defense) to date of the use of horizontal precedent in federal constitutional cases. Mitchell\u27s careful analysis of the Supremacy Clause is fascinating and instructive, and he does an impeccable job of drawing out the implications of his premise that the Supremacy Clause prescribes only a very limited choice-of-law rule-a rule that does not, by its own terms, specifically elevate the Constitution above federal statutes and treaties. His innovative and intriguing framework yields four distinct conclusions about the permissible uses of precedent. In brief, under Mitchell\u27s analysis, the Supremacy Clause forbids using precedent (1) to invalidate congressional statutes (because congressional statutes are the supreme law of the land while prior court decisions are not) or (2) to uphold constitutionally challenged state laws (because the Constitution is the supreme law of the land while prior court decisions and state-law interpretations of the Constitution are not). Yet, according to Mitchell, the Supremacy Clause does not forbid using precedent (3) to uphold congressional statutes (because both the Constitution and congressional statutes are equally supreme, and there is no constitutional mandate to prefer one to the other) or (4) to invalidate state laws (because neither prior court decisions nor state laws are supreme, and there is no constitutional mandate to prefer one to the other). The article is an eminently worthy contribution to a vibrant debate, and I am delighted to have the opportunity to respond to it-as well as to clarify some ambiguities in my own prior work on precedent

Mostly Unconstitutional: The Case Against Precedent Revisited

In Part I of this Article, the author briefly recaps the argument against precedent that the author sketched in The Constitutional Case Against Precedent. Although the author’s purpose here is to refine that argument, the author still believes that the original argument is right in most particulars, and it still functions as a prima facie case against the use of precedent in constitutional interpretation. In Part II, the author surveys different possible grounds for the practice of precedent. In Part III, the author dismisses the possibility that the Constitution or some other controlling legal source affirmatively commands the use of precedent in constitutional cases. In Part IV, the author argues that the Constitution only permits the use of precedent in constitutional cases in very limited circumstances. The author concludes that there is at best a very weak constitutional case for the doctrine of precedent, and it is at best a case for a very weak doctrine of precedent