Just posted a new paper on SSRN: “Rules, Commands, and Principles in the Administrative State.” Forthcoming in a symposium at the Yale Law Journal Forum. Comments welcome.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3660026
Adrian Vermeule
In Department of Homeland Security v. Regents of the University of California, 591 U.S. ____ (2020), Chief Justice John Roberts struck down the actions of the Department of Homeland Security revoking the prior administrative actions popularly known as “DACA” (“Deferred Action for Childhood Arrivals”). The DACA program, established in 2012 and expanded in 2014, allows individuals who came to the United States illegally as children to defer their deportation and, having done so, regularize their immigration status. The program came to include access to benefits. Shortly after President Trump took office in 2017, the Department of Homeland Security rescinded its DACA orders. The Supreme Court struck down these rescissions, not as exceeding the government’s power, but as failing to comply perfectly with the Administrative Procedure Act.
Continue reading “DACA and Leadership”
Ius & Iustitium is happy to present this guest post by Jamie McGowan. Jamie McGowan is a postgraduate researcher in Constitutional Law at the University of Glasgow.
The recent debate about originalism in the US has triggered a lot of conversation about judicial deference. Adrian Vermeule recently clarified that the position of common good constitutionalism is that legislators of every kind ought to consider the common good and natural law when making legislative decisions. He rightly noted, however, that a very different question arises concerning the “institutional allocation” of that legislative power. Given the recent Bostock decision in the US, the question that inevitably enters the conservative legal debate is whether it is wise to allocate so much legislative power in the judiciary. In civil law countries, the judiciary deals mostly in the particularia of individual cases, determining moral right in its context, without establishing legal precedent. In most modern common law countries, however, an incredible amount of binding legislative power is bestowed upon judges, to the extent that the judiciary becomes a sort of supra-legislature. In classical legal theory, where law carries a telos of upholding the common good, the pertinent question is whether this judicial supremacy is friend or foe to the primacy of the common good and, by implication, the natural law.
Ius & Iustitium is happy to present this guest post by Dr. Jonathan Askonas. Dr. Askonas is an assistant professor of politics at the Catholic University of America and a Fellow at the Center for the Study of Statesmanship.
Last week, the Supreme Court issued a stunning decision in favor of tribal sovereignty in McGirt v. Oklahoma. The case turned on the question of whether the Creek reservation was ever disestablished by Congress, and therefore whether Creek sovereignty was extinguished in favor of the State of Oklahoma. Most of the arguments in the opinion are over whether Congress’s various actions diminishing or infringing on the original rights granted to the Creek were sufficient to count for disestablishment. But underlying the dissenting opinion (that Congress had disestablished the Creek reservation) is a fatal flaw: the collapsing of the distinction between imperium and dominium that is essential to the ius gentium and that is explicitly incorporated into American constitutional law on this very issue.
Continue reading “Ius Gentium and Tribal Sovereignty”
The Supreme Court’s decision yesterday in McGirt v. Oklahoma, has garnered a flurry of breathless headlines and commentary describing the court’s decision as “reshap[ing] criminal justice in eastern Oklahoma by preventing state authorities from prosecuting Native Americans.”1 This statement is misleading, as Congress, in the Major Crimes Act of 1885, placed within the exclusive jurisdiction of the federal government the prosecution for felonies such as murder, assault, arson, burglary, or robbery committed by an Indian on reservation territory. Indeed, in affirming the constitutionality of the Major Crimes Act, the Supreme Court found that Indians “owe no allegiance to the States, and receive from them no protection.” United States v. Kagama, 118 U.S. 375, 384, 6 S. Ct. 1109, 1114 (1886). What the majority opinion, authored by Justice Gorsuch and joined by the so-called “liberal” justices, has done is actually quite “conservative.”
Continue reading “McGirt and the Patchwork of American Sovereignties”
In Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___ (2020), the Supreme Court, in a seven to two decision, expanded the so-called ministerial exception to employment laws. In a sense, the decision is a victory for Christians (and, indeed, believers of any stripe), especially in the wake of the expansion of Title VII in Bostock v. Clayton County. The flexible, totality-of-the-circumstances standard announced by the Court will undoubtedly provide ample protection to Catholic schools. But it is worth considering the distinction between the majority’s test and the approach advocated by Justice Clarence Thomas in his concurrence, especially if one rightly views “religious liberty” as the wrong way to think about these issues.
Continue reading “The Ministerial Exception and the Church’s Jurisdiction”
Is a Catholic school teacher a “minister” of the Catholic Church? Notwithstanding the more laity-centric ecclesiology of the past several decades and the proliferation of “ministers” and “ministries” in the average parish, most Catholics would answer in the negative. While the Catholic Church employs a multitude of lay people in important functions, particularly in schools, calling them “ministers” is indeed a stretch. In today’s dissenting opinion in Our Lady of Guadalupe School v. Morrissey-Berru, Justice Sotomayor emphasized this incongruity. She claimed that the “ministerial exception” to employment laws is meant to address concerns about state meddling in the leadership and governance of religious communities. Relying on the more common understanding of “minister”, Justice Sotomayor suggested that the exception should only apply to those individuals who serve a “unique leadership role” in religious community, which does not include “[l]ay faculty . . . who teach religion at church-affiliated schools.”
Continue reading “The Ministerial Exception and the Liberty of the Church”
In the Washington Post, I discuss our unwritten small-c constitution and its powerful influence on the Supreme Court, especially the swing votes of conservative Justices.
https://www.washingtonpost.com/opinions/2020/07/08/why-is-it-always-conservative-justices-who-seem-defect-disappoint/
Adrian Vermeule
A brief look at the chasm separating Chiafalo v. Washington‘s originalist interpretation of and the Founders’ intent regarding the Electoral College.
In Chiafalo v. Washington, the Supreme Court ruled today by a 7-2 vote that, in the light of “our whole experience as a Nation,” States may subject “faithless electors” — members of the Electoral College who vote for a candidate other than the one to whom they are pledged — to statutory penalties such as a monetary fine. The Framers may have expected electors to make independent judgments, but, alas! “[w]hether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page.” And “established practice,” developed since the 19th century, authorizes States to reduce electors to a pass-through mechanism. As early as 1864, the English barrister J.F. Stephen had observed acidly that “the election of the President by electors chosen by the people at large was supposed to be a security for the appointment of men of high character and ability. The security turned out to be worthless, inasmuch as for many years past, the electors have always been so completely pledged before their election that they might as well be dispensed with altogether.”
Of course “faithlessness” is ambiguous here; fidelity to the State-enforced pledge might be seen as infidelity to the original conception of the Electoral College itself, which as Stephen noted was intended by its creators and explained to the ratifiers as an independent body of notables deliberating in the public interest. Indeed, the whole line of development that culminates in Chiafalo would certainly startle the members of the Convention. As Max Farrand said of the Electoral College scheme in 1913, “of all things done in the convention the members seemed to have been prouder of that than of any other, and they seemed to regard it as having solved the problem for any country of how to choose a chief magistrate.”
If originalism is “our law,” it is apparently so in some very special, epicyclical sense that does not bar the Nation’s developing norms and traditions from so “informing” the interpretation of the written law as to essentially reverse the Framers’ publicly stated expectations about a central mechanism of the constitutional plan. One may say all sort of things to square such a result with originalism — heroic work can be and has been done with concepts like “construction” and “liquidation,” and the Court gestures briefly at the latter phrase — but the sheer amount of work one has to do merely raises questions about the value of the originalist enterprise itself, just as one might question the value of a car that must constantly be repaired. In a world in which post hoc developments can undo what was, in any rationally purposive sense, thought to be a linchpin of the constitutional plan, it is at best unclear what the force of calling oneself an “originalist” really is, or why anyone should care.
Adrian Vermeule
Ius & Iustitium is happy to present this guest post by Gregory Caridi. Mr. Caridi, a civil and canon lawyer, is chancellor for the Diocese of Dallas.
While most conservative commentary on the Bostock decision has focused on the possibly severe ramifications to religious liberty, a much more serious implication lies buried in the opinion. Justice Gorsuch writes:
Continue reading “Bostock’s hidden trap”We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations…This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” … And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA)…That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.