Advancing a Left-Liberal Jurisprudence

This blog first appeared in Take Care.

Win elections.  That’s been a constant refrain among many progressives who’ve been watching (and lamenting) the Court’s—really, the entire federal judiciary’s—shift further to the Right.  Win at politics, and you can win the courts.

But winning elections isn’t enough.  Progressive majorities need to be willing to invest significant political capital in judges who are committed to a left-liberal jurisprudence—and, as importantly, who are willing to expound their constitutional theories on and off the bench.

Such an investment cannot be assumed.  President Barack Obama was (by my lights rightly) criticized by David Fontana and Micah Schwartzman, among others, for making rather cautious appointments of older, quite moderate judges to the federal courts of appeals in particular.

Fontana and Schwartzman were worried principally that Obama wasn’t seeding a SCOTUS farm team.  But there’s another, more direct concern.  The federal courts of appeals are often the final word on many questions of law.  Thus the dearth of bold, progressive defenses of the administrative state, gun control, affirmative action, reproductive rights, anti-discrimination laws, and voting rights has unduly cramped—and asymmetrically cropped—our constitutional horizons.

We need a coherent strategy to change that.  A big part of that strategy is thinking ahead to future nominations.  But we must also think about current judges and providing them with occasion and reason to embrace and amplify progressive constitutional theories.  At least four significant benefits would follow from these combined efforts.

First, vision and message.  Judges are uniquely situated to elucidate a constitutional vision that is sensitive to the times—and to the needs of those most dependent on the law’s protections.  Bold progressive judges can articulate just that kind of vision.  Even more, they can revive the powerful, often-forgotten message that courts can be agents of justice and, as Daniel Hemel recently put it, “bulwarks of democracy.”  It is hard to win any argument or persuade any adversary—let alone rally a political base—when judicial vision and messaging lack ambition and urgency.

Second, cover and legitimacy.  Judges can vouch for academics and advocates who propound left-liberal constitutional theories and who, moreover, are potential judicial timber.  When, as has often been the case, moderate (center-left) judges keep those academics and advocates at some distance, it becomes easier to readily and credibly dismiss those groups as outside of the jurisprudential mainstream—radicals shouting into the wind.  To borrow Jack Balkin’s phrasing, their ideas remain “off the wall.”

This is a particular shame right now, given the exciting and generative work on economic inequality, equal protection, and progressivism advanced by a new generation of constitutional theorists—and given the trenchant and creative advocacy of relative newcomers such as the Constitutional Accountability Center and Protect Democracy alongside old stalwarts like the ACLU.

Going forward, much can be borrowed from the conservative playbook.  Right-leaning judges often give considerable credence to the ideas and projects of conservative academics and movement lawyers.  They therefore lend legitimacy to many of those scholars and advocates, thus ensuring them a place in the constitutional mainstream.

Progressives are, in many respects, where the conservatives were in the 1960s and 1970s.  We thus likewise need to do more to integrate the realms of progressive judges, academics, and movement lawyers.  National ACS Conventions and other such splashy events that spotlight a couple of high-wattage judges are surely nothing to sneeze at.  But, in truth, integration of this sort requires retail connections—that is, broader, more frequent, and more workaday judicial engagement with innovative academic theories and advocacy projects. The result, one hopes, is to get those ideas “on the wall.”

Third, transformative dissent.  Given the current composition of the courts, progressive judges may be lone voices of dissent, not just today but also for the foreseeable future.  Yet forceful and forward-thinking articulations of contrary constitutional visions are essential.  They are essential if for no other reason than to serve as reminders (especially to young lawyers) that there are other powerful and eminently reasonable constitutional philosophies.  Dissents of this sort can galvanize young lawyers who, in time, can convert those dissents into majority opinions.

Here too there’s a conservative model to follow:  William Rehnquist.  At the beginning of his time on the Court, then-Associate Justice Rehnquist did a great deal to earn the moniker, “the lone dissenter.”  He certainly kept the fire warm for young conservatives back in the day when the Court was still leaning in the left-liberal direction; and, as those conservatives rose to positions of power and prominence, so did the vision that Justice Rehnquist outlined.  By the end of his time on the Court, Rehnquist wasn’t just Chief.  He was also the leader of a Court majority shaped and inspired by quite a few of those dissents.

Fourth, a critical mass.  When Democratic presidents appoint mostly late-career moderates, they avoid many difficult confirmation battles and controversies.  But the more those presidents (and their allies in the Senate) rely on “safe” appointments, the more they will find themselves boxed in—for any nominee who doesn’t fit that “safe” profile becomes much easier to reject out of hand as dangerously outside of the judicial mainstream.

This may be the one of the enduring lessons of Goodwin Liu’s failed nomination to the Ninth Circuit.  Many Republican Senators opposed Liu, raising objections principally to his left-liberal constitutional scholarship.  Liu ultimately withdrew his name from consideration, effectively lending credence to those insisting Liu’s constitutional vision was indeed out of step—and perhaps cementing a pernicious precedent against which to measure (and bar) other would-be progressive nominees.  More fervent White House support for Liu might have resulted in his being confirmed—and, just as importantly, created a counternarrative in which his jurisprudence is within the mainstream.  What’s more, the confirmation of judges like Liu (and, say, Caitlan Halligan and Victoria Nourse) would have made it even harder for Senators to oppose more anodyne, center-left jurists like Merrick Garland.

Again, there is a conservative counterexample: Brett Kavanaugh.  It took almost three years for Kavanaugh to be confirmed to the D.C. Circuit.  But President George W. Bush remained steadfast in his support.  As a result of that initial, protracted, and of course successful confirmation battle, Kavanaugh was well positioned to be appointed to the Court by the next Republican president.  One could imagine an alternative world in which Obama re-nominated Liu (say, after the Senate eliminated the filibuster for appellate judges), thereby laying the foundation for the latter’s elevation to the Supreme Court by a President Elizabeth Warren or Kamala Harris in 2021.

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It is true that these four reasons may not convince everyone.  Some progressives understandably feel unease and ambivalence about courts; such unease reportedly contributed to Obama (and, perhaps, Bill Clinton) not wishing to invest too heavily in potentially transformative judicial appointments.  But part of that unease is, quite possibly, a bit of a self-fulfilling prophecy.  The absence of powerfully progressive courts may make some doubt the value of powerful courts in the first place.  And the absence of a strong progressive constitutional jurisprudence may make us less enthusiastic, less convinced by, and less open to the possibility of courts playing an important, facilitative role in the democratic project.

Remember, too: hewing to the approach taken by recent Democratic presidents has done little, perhaps nothing, to dislodge courts from their central role in our constitutional order.  Yet it has done a great deal to marginalize left-liberal jurisprudence.  We continue down that path at great peril.

Reforming State Judicial Selection

At a time when many people are concerned about the lasting impact of the broken U.S. Supreme Court confirmation process, state supreme courts are facing their own legitimacy crisis. High-cost state supreme court elections are increasingly the norm across the country and place substantial pressure on judges to rule in favor of wealthy and powerful interests when deciding cases. Similar pressures exist in states that use a political process to determine only whether a sitting judge should serve an additional term. With this in mind, the Brennan Center for Justice at NYU School of Law released Choosing State Judges: A Plan for Reform, a report urging states to depoliticize their systems for choosing judges to safeguard public confidence in the courts.

The culmination of a three-year research project, the Brennan Center report calls for the replacement of state supreme court elections with a publicly accountable appointment system, and—regardless of whether a state uses elections or appointments—the elimination of reselection pressures by the adoption of a single, lengthy term for state supreme court justices.

The Brennan Center’s recommendations follow research showing that million-dollar judicial races are increasingly the norm, and dark money spending—the source of which remains anonymous—flows freely in state supreme court elections. During the 2015-2016 cycle, there were more $1 million-plus supreme court races than ever before. As a result, the number of states with sitting justices who had been through a $1 million race rose from seven in 1999 to 20 in 2017, when one-third of all elected justices sitting on the bench had run in at least one $1 million race. And this spending concerns both the public and judges themselves: polls show that nearly 90 percent of voters believe that campaign cash affects courtroom decisions, and nearly half of state court judges believe the same.

And while debates about state judicial selection often focus on how judges first reach the bench, how judges stay on the bench may pose the most substantial threat to judicial independence. Indeed, extensive evidence, including two reports by ACS, suggests that when sitting justices go through a political process to retain their position—election by voters or reappointment by a governor—they respond to political pressures by ruling more often against criminal defendants and in favor of their donors and political party. As noted by retired Alabama Supreme Court Chief Justice Sue Bell Cobb, “Judges would have to be saints to ignore the political reality. And judges aren’t saints.”

States must consider how to safeguard the independence of state courts, particularly as the new U.S. Supreme Court may make state courts increasingly essential protectors of fundamental rights. To that end, Choosing State Judges: A Plan for Reform outlines best practices for states seeking to lessen the role of politics in the selecting, and reselecting, of judges:

  • The 38 states that have elections or retention elections for state supreme court justices should eliminate them.
  • States should adopt a publicly accountable appointment process where an independent, bipartisan commission vets candidates and creates a shortlist for appointment by the governor.
  • Those commissions should have transparent procedures and clear criteria for vetting candidates, and their membership should be bipartisan, adopted by diverse stakeholders, and include non-lawyers.
  • Justices should serve for a single, lengthy “one and done” term rather than face elections or a political reappointment process to retain their seats.

Even before a state undertakes a wholesale shift in how it selects justices, there are steps states can take to mitigate the political pressures on courts, such as adopting a more accountable process for interim appointments, strengthening rules for when judges must step aside from cases involving major campaign supporters, and adopting public financing for judicial races.

State supreme courts already play a powerful role in American life. Ninety-five percent of all cases are filed in state courts, and state supreme courts are generally the final word on interpreting state law. As a result, state courts are the courts the public is most likely to interact with, and are capable of having a profound impact on laws related to everything from reproductive rights, to environmental regulations, to partisan gerrymandering. The recommendations outlined in Choosing State Judges: A Plan for Reform can help states insulate these decisions from political pressures and wealthy interests, and preserve the public’s confidence in them.

Process Counts: Leveling the Regulatory Reform Playing Field

This blog is part of the blog symposium published in conjunction with a new ACS issue brief: Reforming “Regulatory Reform”: A Progressive Framework for Agency Rulemaking in the Public Interest. View the other blogs in the symposium by Lisa Heinzerling, Adam Zimmerman, Dan Farber, and Rena Steinzor.

At least since the Reagan Administration, opponents of regulation have taken the lead in waving the banner of “regulatory reform.” Indeed, less than a month into his first term, President Reagan launched the modern era of White House regulatory oversight explicitly “in order to reduce the burdens of existing and future regulations.”

As it happens, if one’s predominant aim is less regulation, then efficacious paths to “reform” are both manifold and obvious: Multiply procedural obstacles. Increase the number of “veto-gates.” Intensify judicial review. It might even be demanded, however incoherently, that two rules be put on the chopping block for every new rule proposed. Or a ceiling might be imposed on the gross aggregate costs to be imposed by new regulations—without taking into account the value of any offsetting benefits.

It is for this reason that Dan Farber, Lisa Heinzerling and I found ACS’s challenge – to reimagine regulatory reform through a progressive lens – to be both irresistible and daunting: irresistible because the pursuit of reform should not be one-sided, but daunting because the routes to better regulation, rather than less regulation are simply harder to map.

In many respects, administrative law is already sharply focused on the public values that progressives have historically pursued in the administrative state. In terms of process, we prize:

  • Evidence-based decision making;
  • Government transparency and accountability;
  • Inclusive opportunities for public input and the representation of affected interests; and
  • Fairness in regulatory enforcement.

These goals should be well-served, in principle, by the existing statutory requirements that guide notice-and-comment rulemaking, a process disciplined by judicial review to insure both legal compliance and policy making that is supported by sound public reasoning. In the portion of our paper to which I most contributed—the portion on internal agency process—I took our challenge to be refining, rather than wholly redesigning existing mechanisms.

For example, with regard to public participation, it would be helpful to make the public comment period not just more inclusive, but more meaningful for the agency. Our suggestion is thus to have agencies engage in a conscious exercise to plan the comment process for significant rules. Agencies should “ seek to identify those groups of individuals most likely to be interested in or affected by a forthcoming rule, the subset of those individuals most likely to face barriers to participation in the rulemaking, and the forms of outreach and engagement most likely to yield additional information that could be of genuine use to the agency.” As the White Paper mentions, there exist numerous models of public participation that may be better suited to both agency needs and genuine engagement than the one-way process of dropping comments in the agency’s electronic “suggestion box.” Better targeted and more deliberative efforts could yield insights that are more useful for the agency and a deeper sense of civic participation for an often alienated public.

Both the quality of public participation and the success of evidence-based policy making can also be enhanced through more thoughtful and extensive use of advisory boards. We urge agencies not to follow the EPA’s recent and misguided lead in trying to remove from its advisory boards those scientists who are also federal grantees. University-based experts are invaluable advisors in many regulatory contexts and are needed to balance participation by those who receive financial support from regulatory industries.

To promote more transparent regulation, we believe Congress should amend the Administrative Procedure Act to make sure the public has access to the ex parte contacts that may prove relevant to a rulemaking. Congress should require that ex parte contacts whether in the form of written statements, documentary information, or summaries of oral contacts be docketed, including all such contacts made after the formal close of the public comment period for any particular rule. The aim should be to avoid an unaccountable system in which the public docket omits key information that has influenced agency outcomes without being subject to public vetting.

We also think there is room for more public initiative in identifying potential regulatory improvements, whether in the form of entirely new rules or amendments to existing regulations. We endorse the recommendations of the Administrative Conference of the United States that agencies simplify and regularize their procedures for receiving and processing public petitions for rulemaking. As we observe, “[t]he petitioning process could prove a significant tool for progressive reform if the process were more widely appreciated and pursued not just by ‘sophisticated stakeholders, but also by community groups and engaged citizens generally.”

Process re-design inevitably poses a conundrum for progressives, who traditionally focus more organizing attention on substantive outcomes, rather than procedures. “Clean air” and “worker safety” are more powerful rallying cries than “amend the Administrative Procedure Act.” I am conscious also that the reforms I have catalogued will absorb resources of already underfunded agencies and may prolong the regulatory process without guaranteeing yet greater public health and safety, freedom from discrimination, sound environmental stewardship, and the like.

Yet our democratic commitments necessarily entail process commitments, too. And on this point, we ought to take a lesson from the Reagan Administration. When President Reagan issued Executive Order 12,291, there was some grumbling among conservatives who bemoaned his decision to expend significant political capital on the general architecture of regulatory policy making rather than campaigning for a rewrite of the Clean Air Act or the Endangered Species Act or any of the other statutes that industry would like to see gutted. Yet the Reagan order, updated by the Clinton Administration, has proven the most consequential institutional innovation in federal regulation in the last half century. The point is: process counts. We should make it count in the public interest.

Progressive Regulatory Reform

This blog is part of the blog symposium published in conjunction with a new ACS issue brief: Reforming “Regulatory Reform”: A Progressive Framework for Agency Rulemaking in the Public Interest. View the other blogs in the symposium by Lisa Heinzerling, Adam Zimmerman, Peter Shane, and Rena Steinzor.

Until recently, you could be a very well informed American – a lawyer, even – without ever having heard of the Chevron doctrine.  That has changed enough that last month the New Yorker had a “Talk of the Town” essay discussing Kavanaugh’s views of the Chevron doctrine. The reason for the attention to Chevron is ultimately congressional deadlock, which means that the only viable path for big changes in policy is through the administrative process.  That’s how Obama created DACA and the Clean Power Plan; it’s how Trump is trying to roll back Obama’s achievements.

The Chevron doctrine is a key part of the way courts review these administrative actions because it gives agencies leeway in interpreting the statutes that authorize administrative action. This doctrine is largely a recognition that Congress gave administrators, not courts, the primary responsibility for implementing regulatory statutes.  This doctrine has become a target for conservatives because it allows agencies to innovate in response to new problems.

Lisa Heinzerling, Peter Shane, and I have written an Issue Brief for the American Constitution Society that develops a progressive agenda regarding Chevron and other important issues in administrative law like the role of the White House in overseeing agencies. The Issue Brief seeks measured reforms – unlike conservative versions of regulatory reform that claim to be about procedure but are really just about making new regulations impossible.

The section of the Issue Brief about judicial review may be the most difficult to grasp because it doesn’t deal with the administrative process, let alone the substance of regulations. Instead, it addresses the rules courts use to decide which cases can be heard and what standards apply to them. But despite what might seem its abstruse quality, it is aimed at issues that make a very real difference in what agencies can and cannot do.   One example is the Chevron doctrine, which discussed earlier. The Issue Brief advocates writing this doctrine into the Administrative Procedure Act to protect it from the increasingly conservative Supreme Court, clarifying it, and eliminating some troublesome exceptions.

The proposal also addresses other recurring problems. One way for agencies to deregulate is simply to sit on their hands and refuse to implement the law. Our proposals would make it easier for public interest groups to get into court to challenge this form of regulatory sabotage.

Some of the individual reforms in the proposal are substantial.  We advocate repealing the Congressional Review Act, which allows Congress to trash regulations with no opportunity for debate or deliberation. We also advocate changing the role of the White House when agencies issue regulations. Today, centralized review is designed to force all regulatory efforts into a one-size-fits-all economic straightjacket, imposing a cost-benefit standard on all regulations regardless of Congress’s goals in passing a law. The process is heavily clothed in secrecy and offers an avenue for business to lobby for changes in regulations.  We advocate making this process much more transparent and open. We also advocate switching White House review to a more legitimate focus: ensuring that agencies are effectively carrying out the purposes of statutes.

Many of our proposals are incremental and do not address dramatic issues – very unlike conservative efforts at regulatory “reform”.  There is a reason for that. We believe that overall the regulatory process has worked to protect the public interest.  It can be frustratingly cumbersome and occasionally untethered, and we have proposals to address that. But we also are aware that not all administrators are operating in good faith – look at Scott Pruitt, for instance – and that not all regulatory actions are well reasoned.  Going too far to unleash regulators would make it faster and easier to issue good regulations. But it would also make it faster and easier to issue bad ones.  We have attempted to strike a balance between empowering and restraining administrators.

Conservatives have long discussed ways to change the current “rules of engagement” for courts and administrators.  Progressives have devoted a lot of energy to resisting those efforts, which is obviously important. But it’s also important for us to start thinking about how the regulatory system could be improved.  This Issue Brief is a step in that direction, which hopefully will help promote debate and analysis by others.

Taming White House Review of Federal Agency Regulations

This blog is part of the blog symposium published in conjunction with a new ACS issue brief: Reforming “Regulatory Reform”: A Progressive Framework for Agency Rulemaking in the Public Interest. View the other blogs in the symposium by Adam Zimmerman, Dan Farber, Peter Shane, and Rena Steinzor.

Presidents since Ronald Reagan have, by executive order, required agencies to submit significant regulatory actions to the White House for review. Academic and public interest observers have variously criticized this review as slow, opaque, chaotic, lawless, and power-grabbing. Yet every president in the intervening years has not only embraced but also deepened the control of the White House over individual regulations.

Even President Obama, who announced early in his first term that he was conducting a top-to-bottom review of this process, ultimately embraced strict White House control over the rulemaking proceedings of the executive agencies. President Trump has taken White House control over rules to a whole different dimension by ordering agencies to revoke two existing rules for every new rule they issue and by giving them "budgets" for the costs they may impose on private entities.

One way to address some of the recurring criticisms of White House review would be for the Office of Information and Regulatory Affairs (OIRA), which runs the review process, to hew more closely to the actual provisions of the Clinton-era executive order that still structures this process. Closer adherence to the existing executive order's provisions on review deadlines, transparency, and an orderly process for elevation of issues to the President would address some of the criticisms about undue delays, a lack of transparency, and a chaotic decision-making process.

However, these procedural reforms would not address two basic criticisms: that White House review unlawfully supplants the authority of the agency that Congress has charged with making the relevant decisions and that the cost-benefit criterion that executive orders impose on agency rules is inconsistent with many of the regulatory statutes under which the agencies operate. In addition, the transparency-related provisions of the existing executive order, even if closely followed, would not be sufficient to achieve the degree of transparency we desire. To address these concerns, we propose four additional, and more fundamental, reforms.

Our first proposal is to return the White House review process to the understanding articulated when President Reagan issued the first executive order creating a systematic process of White House review. In 1981, soon after he entered office, President Reagan issued an executive order providing for an approval process quite similar to the one that exists today under a Clinton-era executive order. The Office of Legal Counsel in the Department of Justice reviewed Reagan's executive order for legality. In its opinion confirming the legality of the executive order, the OLC emphasized that the executive order did not purport to displace the authority of the acting agency. The OLC stated that "a wholesale displacement might be held inconsistent with the statute vesting authority in the relevant official."

We believe the OLC opinion had it right. Just as Congress's instructions as to the decisions an agency makes should be followed and not countermanded by the President and aides in the White House, so, too, should Congress's instructions as to the decisionmaker be followed. Some statutes explicitly delegate decision-making authority to the President; most do not. Yet the existing executive orders on regulatory review treat all laws delegating authority to executive agencies as if they delegate decision-making authority to the President. We think the presumption should be reversed: that laws delegating decision-making authority to executive agencies do not delegate decision-making authority to the President.

Our second proposal is to reorient the White House review process to focus on whether a proposed regulatory action is consistent with the underlying statute, and away from the current focus on satisfying a quantitative cost-benefit standard. Very few federal regulatory statutes establish formal cost-benefit analysis as the decision-making criterion. Injection of a formal cost-benefit standard into the White House review process drives a wedge between statutory standards and the standards the White House applies. The current approach inevitably leads to overemphasis on factors that can be easily quantified, encourages dubious efforts to convert all benefits to monetary terms, conflicts with the precautionary approach embodied in many statutes, and disfavors regulatory programs that aim to protect against future harms. For these reasons, we believe that rather than asking, “Does this rule satisfy cost-benefit analysis?,” OIRA should ask, “Does this rule establish a policy that is consistent with the underlying statutory framework and the evidence before the agency? Has the agency engaged in a rigorous analysis of the evidence?” Under this approach, White House review would not inject a new, extra-statutory consideration – satisfaction of a quantitative cost-benefit criterion – into the decision-making process on rules.

In fact, White House involvement is most questionable when it is based on statutorily impermissible factors. For instance, the White House might direct the agency to take a proposed action on the basis of cost, when the statute requires a decision based purely on public health. The Supreme Court has made it clear that this is a basis for invalidating an agency decision. In Whitman v. American Trucking Associations, after first holding that cost was not a factor that the EPA could consider in setting National Ambient Air Quality Standards (NAAQSs), Justice Scalia went on to say:

Respondents' speculation that the EPA is secretly considering the costs of attainment without telling anyone is irrelevant to our interpretive inquiry. If such an allegation could be proved, it would be grounds for vacating the NAAQS, because the Administrator had not followed the law.

Courts should not inquire into the decision-making process without a strong showing based on publicly available information. But in some cases, this barrier might be overcome. When further inquiry confirms that the agency’s decision was based on legally irrelevant factors, a court reviewing an agency rule should send the rule back to the agency for reconsideration.

Our third proposal is to beef up the existing provisions on the transparency of regulatory review. The Clean Air Act offers a good model in this regard.  The Clean Air Act requires the EPA to place in the rulemaking docket all drafts of proposed and final rules submitted to OIRA, documents accompanying them, and written comments by other agencies along with EPA's responses to them. We would propose that these requirements be applied to all agencies and that the documents not only be added to the public docket but be included in the administrative record for judicial review.

Our final recommendation would be the repeal of Executive Order 13,771, issued by Donald Trump on January 30, 2017. That order goes well beyond the information gathering and coordination roles on which earlier presidents relied to support the White House review process. Executive Order 13,771 instructs agencies, in order to issue new rules, to identify two existing rules appropriate for revocation. It also instructs OIRA to impose on rulemaking agencies an annual ceiling on the gross costs to the economy that they may impose through new regulations. These provisions, which effectively amend agencies’ existing statutory authorities, go well beyond any constitutionally rooted presidential role; the president's duty is to faithfully execute the law, not to amend the law by executive order.