By David B. Rivkin Jr. and Lee A. Casey

7 December 2021 in the Wall Street Journal

Congress is about to begin another debt-ceiling fight, and it threatens the Constitution as well as America’s solvency.

Over the past two years, Uncle Sam has borrowed and spent trillions of dollars to address Covid-19. Coronavirus spending added nearly $3 trillion to the national debt this year alone—and that doesn’t count the recently passed infrastructure bill and the pending Build Back Better Act. The unprecedented growth in federal outlays has contributed to inflation, which has reached a 30-year high, and caused annual budget deficits to soar.

The government is about to reach its statutory federal borrowing limit of $28.4 billion. If Congress doesn’t increase the limit, Washington will run out of money to meet its legal obligations. Republicans and Democrats are at loggerheads over how much to spend and whether to enact what the Democrats call “transformational” legislation—measures that would reshape the American economy and increase government’s role in nearly all aspects of life.

The threat to the Constitution comes from one of the options lawmakers are considering: suspending rather than raising the statutory debt ceiling, thereby authorizing the executive branch to borrow an unlimited amount of money for a limited time. Suspending the debt ceiling would undermine the structure of American democracy—particularly when government spending obligations are in flux, and the future direction of key policies is being fiercely contested.

Senate Minority Leader Mitch McConnell has warned Democrats that if they insist on enacting major and costly policy changes on a partisan basis, they will have to increase the debt ceiling without votes from Republicans. That could be accomplished through budget reconciliation, the means by which the Democrats intend to pass the Build Back Better Act with a simple majority. But Democrats are wary of unilaterally raising the debt ceiling, which isn’t popular.

In October, facing a debt-ceiling stalemate and a possible government shutdown, Republicans reluctantly supplied the votes necessary to increase the debt ceiling by $480 billion. That was constitutionally proper, but it bought only a little time. The increase will be exhausted this month, and Mr. McConnell and Majority Leader Chuck Schumer have again started negotiations on the debt ceiling.

Congress usually raises the statutory debt ceiling to a new specific dollar amount, a core part of its constitutional power of the purse. Occasionally, however, Congress (with both parties in the majority) has “suspended” the debt ceiling. As we argued in these pages during the last debt-ceiling crisis, such delegations of power are constitutional only if, as Justice Elena Kagan put it in Gundy v. U.S. (2019), “Congress lays down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform.”

The current unsettled budgetary environment makes the constitutional infirmity of suspending the debt ceiling acute. When suspensions were adopted in the past, there was at least a shared understanding between Congress and the executive about where the dollars were to go and how much spending there would be. Previous suspensions weren’t coupled with open attempts to transform the country’s economy and society—to upend the fundamental relationship of government to the governed.

Today’s spending plans are opaque and unpredictable. The estimated cost of Build Back Better alone ranges from $1.75 trillion to more than $5 trillion. That lack of clarity could also dramatically alter the terms upon which the Treasury can find willing buyers for new U.S. debt, greatly increasing debt-servicing costs. Suspending the debt ceiling in these circumstances would mean the executive branch is entirely unbound.

As another debt-ceiling cliff-hanger emerges, Democratic leaders appear committed to a suspension, which again would require Republican support. Giving bipartisan cover to another unconstitutional suspension would be disastrous. Decisions about the levels of spending, borrowing and taxation now under consideration require democratic accountability. Congress is almost evenly divided between the two major parties, a situation that counsels against transformative political and economic changes negotiated in back rooms.

If Democrats believe their programs are meritorious enough to burden the country with trillions of dollars in additional debt, they should accept the political risk of raising the debt ceiling without Republican votes. If Democrats are right, they’ll benefit and Republicans will pay the political price for intransigence. That’s how American democracy works, and why so many of the Constitution’s most fundamental provisions, such as Congress’s power of the purse, were adopted—to ensure accountability and the consent of the people.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush Administrations.

Source: https://www.wsj.com/articles/debt-ceiling-crisis-threatens-democracy-budget-limit-build-back-better-mcconnell-schumer-11638718728

OSHA’s job is to promote safe workplaces, not to dictate medical decisions to employees.

By David B. Rivkin Jr. and Robert Alt

Sept. 28, 2021, in the Wall Street Journal

President Biden told unvaccinated Americans this month: “We’ve been patient, but our patience is wearing thin. . . So, please, do the right thing.” He backed up this request with a series of new regulatory mandates, including one from the Occupational Safety and Health Administration, which directs businesses with 100 or more employees to make vaccination a condition of employment.

The Covid vaccine has been widely hailed as a modern scientific miracle. Yet as a means to increase nationwide vaccination rates, the OSHA mandate far exceeds the authority Congress granted the agency, and if the president can order private companies to dictate such terms of employment, his power to coerce citizens in the name of public health might as well be unlimited. This would both be profoundly unconstitutional and fundamentally transform the relationship between the government and the people.

The Occupational Safety and Health Act of 1970 authorizes OSHA to enact rules that are “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” But the Biden mandate is unreasonably and unnecessarily broad. As announced, it applies to all employees, even those who work at home, as millions have done during the pandemic. It’s simultaneously too narrow, failing to require vaccination for contractors, customers and other nonemployees who may be present at the work site.

It’s overbroad in another way: Previous Covid infection doesn’t excuse employees from the vaccine requirement. Natural immunity tends to be more robust and longer-lasting than vaccinated immunity, according to Marty Makary of the Johns Hopkins University School of Medicine. Worse, Dr. Makary says, there is evidence that people who already have natural immunity are at heightened risk of vaccine side effects caused by an augmented inflammatory response. For these reasons, lawsuits have already been filed challenging employer vaccine mandates as applied to employees with natural immunity.

Another concern is that the administration’s interpretation of the OSHA statutory language presents a “delegation” problem. If Congress delegates discretion to an agency without a proper limiting principle, it violates the separation of powers. To avoid this constitutional problem, the courts will have to give the statute a more restrictive reading. Coming up with a meaningful judicially enforceable principle would not be easy.

Additional problems arise from the administration’s urgency. In imposing the vaccination requirement immediately, OSHA will bypass the ordinary notice-and-comment rule-making process and issue what’s known as an Emergency Temporary Standard. OSHA has used that legal authority only 10 times in 50 years. Courts have decided challenges to six of those standards, nixing five and upholding only one.

The OSH Act imposes stringent limits on emergency standards precisely so OSHA can’t easily circumvent the ordinary rule-making process. The government has to prove that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that using the emergency process is “necessary to protect employees from such danger.” Courts subject emergency standards to a what appellate courts call a “hard look” review, a more stringent standard than for ordinary economic regulations.

The White House justifies the mandate as a proportional response to the spread of Covid’s Delta variant, which is straining hospital capacity in some states. But the mandate is nationwide and indefinite, not tied to Covid rates. The administration’s vaccine rhetoric is therefore another reason to regard the standard as legally suspect. In addition to Mr. Biden’s remark about his patience wearing thin, White House chief of staff Ron Klain retweeted a journalist’s comment that “OSHA doing this vaxx mandate as an emergency safety rule is the ultimate work around for the Federal govt to require vaccinations.”

All this suggests that the administration’s statutory reliance on workplace safety is pretextual. OSHA was established to ensure workplace safety, not to act as a “work around” for achieving other political or policy objectives. In Department of Commerce v. New York (2019), the Supreme Court struck down an otherwise defensible census regulation because the Trump administration’s grounds for instituting it were pretextual.

Beyond these statutory issues lie constitutional concerns. Many commentators are under the impression that Jacobson v. Massachusetts (1905), in which the Supreme Court upheld a vaccine mandate, settles all such questions. But that case involved a state law and a local regulation, not any federal action—a crucial distinction. The states have plenary police power to regulate health and safety. Congress has only those limited powers enumerated in the Constitution. That wouldn’t include the authority to impose a $155 fine (today’s equivalent of the $5 at stake in Jacobson) on an individual who declines to be vaccinated, much less to prevent him from earning a livelihood.

Defenders of the Biden mandate surely will justify it as a delegation pursuant to Congress’s power to regulate interstate commerce. But the actual target of the rule is individual medical choices, not commercial ones. If a personal decision not to buy medical insurance can’t be characterized as “commerce”—as the Supreme Court held in NFIB v. Sebelius (2012), the ObamaCare case—how can the decision not to be vaccinated?

Further, if public-health benefits are sufficient to justify an OSHA vaccine mandate, what principle would limit the agency’s authority? Could it ban employees from smoking or consuming foods containing trans fats while working at home? The public-health profession has already characterized everything from gun ownership to social-media use as posing a serious public-health issue. Could OSHA legitimately police these, too, even away from the workplace?

Higher vaccination rates would be a public good. But our nation’s Founders understood that much mischief can be done under the theory of being “for your own good” and provided limits to government authorities accordingly. Even during a pandemic, the Biden administration would do well to respect those limits.

Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Alt is president and CEO of the Buckeye Institute, a think tank engaged in public-interest litigation and policy.

Source: https://www.wsj.com/articles/biden-lawless-vaccine-mandate-constitution-occupational-safety-11632841737

By David B. Rivkin Jr. and Andrew M. Grossman

September 2, 2021, in the Wall Street Journal

Charles and Kathleen Moore have done well, but they certainly aren’t billionaires. Yet the couple’s constitutional challenge stands to slam shut the door on a federal wealth tax like the one Sen. Elizabeth Warren wants to enact.

The story is complicated, though less so than the tax code. In the 1990s Mr. Moore, a software engineer, worked at Microsoft on its Office applications and grew close to a fellow programmer, Ravi Agrawal. Mr. Agrawal dreamed of returning to his native India to do something for the small-scale farmers he knew growing up in the state of Chhattisgarh.

On a series of trips to India in the early 2000s, he saw an opportunity. Unlike the massive agricultural operations that feed the U.S., capital-poor farmers working a few acres each serve much of India. What struck Mr. Agrawal is that their tools were plainly inadequate, far less reliable and effective than what any American could buy for a few dollars at Home Depot. His idea was to close the gap by providing India’s poorest farmers with tools that would improve their livelihoods and lives, even in the face of the labor shortages in many rural areas as workers migrated to the cities.

Mr. Agrawal needed capital to get the business off the ground. He approached friends to invest in his new company, KisanKraft, and the Moores put up $40,000. It was a lot of money for them, but they believed in Mr. Agrawal and the mission. They knew they were unlikely to earn much of a financial return on their investment, because the plan was to reinvest any profits in the business and serve more of India’s rural poor.

That was the real return, and it proved massive. Mr. Agrawal had put his finger on an unmet need, and by 2017 KisanKraft had expanded to reach the entire country, with hundreds of employees, thousands of dealers and millions of customers. The Moores have never received a dime from their investment, yet it paid off beyond their greatest hope.

Then the tax bill came. As part of the Tax Cuts and Jobs Act of 2017, Congress reworked the way multinational corporations are taxed, limiting the amount that they had to pay on foreign income. Offsetting part of the cost was a new, one-time tax on earnings that certain foreign corporations had accumulated over the preceding 30 years but not distributed to their shareholders through dividends. The law deemed those earnings as 2017 income to the shareholders and taxed them on it. The Moores’ bill amounted to $15,000. They paid and are now suing for a refund, on grounds that the new tax is unconstitutional.

The Constitution grants Congress the “power to lay and collect taxes,” but with limits. Article I requires that any “direct tax”—one that falls directly on the payer rather than being passed on to someone else, such as the consumer—“be apportioned among the several states” according to population. The idea was that taxation, like representation, should be fairly apportioned so that no state or region could be singled out for disadvantage. Alexander Hamilton explained in Federalist No. 36 that tax apportionment was a key component of federalism, given that direct taxes could disrupt local economies in ways federal lawmakers couldn’t even imagine. By contrast, men of commerce would understand the effects of indirect taxes like tariffs or sales taxes, which the Constitution therefore didn’t subject to apportionment, only uniformity.

The Supreme Court held the first income tax unconstitutional as an unapportioned direct tax in 1895, and Congress eventually responded by proposing the 16th Amendment, ratified in 1913. It authorizes Congress to tax “incomes, from whatever source derived, without apportionment.”

So far as tax law goes, the Moores’ argument is straightforward. The new tax is a direct tax, and it isn’t on income—after all, they haven’t received any from KisanKraft. Instead, they’re being taxed on their property, the KisanKraft shares. The tax is therefore constitutionally invalid because it isn’t apportioned.

The government insists that the Moores are being taxed on income, because KisanKraft could theoretically distribute its accumulated earnings in the future. The courts, however, have consistently defined “income” to require, as the Supreme Court put it in Commissioner v. Glenshaw Glass (1955), “undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.” As the Moores observe, they haven’t realized a dime in income. The government argues that the courts should abandon the realization requirement, giving the federal government carte blanche to tax “deemed” income without apportionment.

The stakes of the Moores’ case go well beyond their own tax liability. If they prevail, that would confirm that the Supreme Court’s precedents generally requiring apportionment and limiting the exception for taxes on “income” to its common understanding remain good law, clearly barring any kind of federal property tax, including a wealth tax—unless Congress apportions it, which there is no obvious way to do.

What makes the case an especially attractive vehicle to resolve this issue is the simplicity of their situation, a rarity in tax cases. There’s also the timing: If the courts confirm the 16th Amendment’s limited reach now, that would relieve them from having to do so in a politically explosive case directly challenging a wealth tax. The courts would do well to remind Congress at this opportune time that its taxing power is not without limits.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington. They represent the Moores in their refund action.

Source: https://www.wsj.com/articles/congress-tax-wealth-courts-constitution-moore-agrawal-kisankraft-elizabeth-warren-11630529642

By Mike Pompeo and David B. Rivkin Jr.

Aug. 26, 2021, in the Wall Street Journal

Will we ever know where Covid-19 came from? Not if the last word comes from the U.S. intelligence community, which reported to the White House this week that China’s fault is plausible but unprovable. Beijing has refused to cooperate with inquiries, which it has characterized as “origin tracing terrorism.” The Chinese Foreign Ministry even denounced the equivocal intelligence report: “If they want to baselessly accuse China, so they better be prepared to accept the counterattack from China.”

For the rest of the world, getting to the bottom of the question is essential to assigning blame and preventing pandemics. Fortunately, we have an institution dedicated to getting to the bottom of thorny factual disputes: the U.S. judicial system. Our judiciary is respected globally for its impartiality and scrupulous adherence to due process. Civil discovery gives litigants the tools to compel production of evidence, backed by the threat of sanctions or even default judgment, so Beijing would be unable to stonewall. With so many losses caused by the pandemic, U.S. litigants have a powerful incentive to bring cases, prosecute them aggressively, and test liability through adversarial presentation. Several such cases have already been filed.

But those suits and others like them face a high hurdle: the Foreign Sovereign Immunities Act. The FSIA is the reason at least eight lawsuits were dismissed or withdrawn on grounds that foreign states are generally shielded from litigation in U.S. courts. Yet that immunity isn’t a constitutional mandate, only a matter of congressional discretion. Congress can legislate exceptions, and has done so.

Lawmakers should enact a new FSIA exception denying sovereign immunity to nations that fail to inform, or deliberately misinform, the global community of the nature and scope of a local epidemic that becomes a global pandemic. Beijing’s failure in December 2019 to comply with the 24-hour notification requirement of the 2005 International Health Regulations, which China joined, should be a sufficient trigger. This would permit lawsuits to proceed so China’s culpability for the Covid-19 outbreak can be openly adjudicated.

Congress should also withdraw immunity from international organizations that aided and abetted China’s efforts to play down the virus’s transmission and health risks. Western intelligence services have suggested that Beijing instructed the World Health Organization early in the pandemic on what it should say about Covid-19. Plaintiffs could use discovery to identify other governmental and private entities that collaborated with Beijing and hold them accountable. This litigation would have an added benefit of unmasking much of the pro-China infrastructure within international organizations and Western companies, think tanks and other institutions.

To ensure that China can’t delay proceedings, the FSIA amendment should also either create a new federal tort action or give federal courts jurisdiction over Covid-related claims under state law.

Some may object that these measures could interfere with U.S. diplomacy. But Congress can address that concern. The Justice Against Sponsors of Terrorism Act of 2016—which withdrew sovereign immunity from nations that provided material support to terrorist attacks on American soil—authorized the federal government to intervene in litigation to secure a diplomatic resolution that compensates plaintiffs and mitigates future harm. It makes sense to follow that model here. That would provide the Biden administration with the impetus to declassify and make available to Covid-19 litigants intelligence relating to the virus’s origin. Here, too, there is precedent, stemming from civil cases over the Iran-contra affair and the 9/11 terrorist attacks.

Defendants in U.S. legal proceedings are ordinarily entitled to bring counterclaims and spread liability to other potential defendants. Beijing has accused the U.S. military of creating the Covid-19 virus at the Army’s Fort Detrick, Md., lab and introducing it during the 2019 Military World Games in Wuhan, in which a U.S. team participated. To ensure that Beijing is accorded every opportunity to defend itself, including bringing counterclaims against the U.S., the Biden administration should waive governmental immunity, a step it can take unilaterally without statutory changes. Let Beijing test its implausible theory in court.

China wouldn’t be able to ignore lawsuits in American courts, given its close commercial ties with the U.S. If it refused to participate, courts would enter enforceable default judgments. China would be hard-pressed to avoid complying with any court-ordered damages and injunctions. Successful plaintiffs could pursue collection actions against Chinese government-owned commercial property around the world. Corporations are not normally liable for their owners’ debts, but there is an exception when the owner is involved on a day-to-day basis in running the company. Given the Chinese Communist Party’s pervasive control over formally private Chinese companies, this shouldn’t be difficult to prove.

It should be possible to secure broad bipartisan support for these measures. Republicans and Democrats have expressed a keen desire to hold Beijing accountable, and the Biden administration has made a priority of defending and strengthening the rules-based international order. The president has repeatedly said he wants to make sure China plays by the rules.

Chinese military publications have run articles expressing interest in developing biological weapons. China understands that bioweapons are particularly effective against open societies, where stringent isolation and quarantine measures spur resistance, and could be used to incapacitate aircraft carriers and military bases, which are crucial to the U.S. ability to project power in the Indo-Pacific. Pandemics aside, upholding international norms is essential to deterring China from other malevolent acts, including against Taiwan.

Permitting Covid-19 suits would have additional strategic benefits. In its propaganda, Beijing has sought to capitalize on its supposedly superior handling of Covid-19, claiming it demonstrates the superiority of its totalitarian political system over open, democratic society. Legal discovery could unearth information puncturing these claims.

Holding Beijing accountable would also do much to dispel its assertions that the U.S. is a declining power. While Beijing still respects U.S. military power, it routinely talks down U.S. political will and economic strength. It would face a formidable foe in an army of lawyers on an honest judicial battlefield.

Mr. Pompeo is a distinguished fellow at the Hudson Institute. He served as director of the Central Intelligence Agency (2017-18) and secretary of state (2018-21). Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/covid-19-coronavirus-origin-fsia-foreign-sovereign-immunities-act-china-lab-leak-wet-market-11629990917

By David B. Rivkin Jr. and Andrew M. Grossman

July 23, 2021, in the Wall Street Journal

As liberals lick their wounds from the recent Supreme Court term, a small but noisy band on the right has launched a dissent against the conservative legal movement that produced the court’s majority. They want a new jurisprudence of “moral substance” that elevates conservative results over legalistic or procedural questions such as individual rights, limited government and separation of powers. Some advocates call this idea “common good originalism,” but it isn’t originalism. It’s no different from the raw-power judicial activism conservatives have railed against for decades as unaccountable, unwise and dangerous.

The “common good” pitch arrived nearly full-born in a 2020 essay by Harvard law professor Adrian Vermeule. A brilliant eccentric, Mr. Vermeule is best known for his advocacy of unchecked presidential and administrative supremacy and for the incorporation of Catholicism into civil law, which he calls integralism and critics call theocracy.

Mr. Vermeule is skeptical of law, restraints on government and the Enlightenment generally. He describes originalism as “an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.” To that end, he would give less emphasis to “particular written instruments” like the Constitution and more to “moral principles that conduce to the common good.” A web link to Thomas Aquinas ’ “Summa Theologica” suggests what he has in mind.

A handful of populist conservatives— Hadley Arkes, Josh Hammer, Matthew Peterson and Garrett Snedeker —took up the “common good” banner in an essay published in March. Frustrated that conservatives can’t seem to win the culture war no matter how many judges they appoint, they fault the conservative justices’ legal formalism as morally denuded and counterproductive to conservative ends. But they part with Mr. Vermeule by avoiding sectarianism in favor of vague references to “moral truth” and in branding their enterprise as a variant of originalism, one centered on the Constitution’s preamble and its reference to “the general welfare.”

As with liberal talk about the “living Constitution,” the high-minded rhetoric conceals an assertion of unbridled power. Liberals, the quartet justly complain, rack up victories because they are unabashed about enforcing their own moral purposes. That’s “a form of tyranny,” to which they urge conservatives to respond in kind by remaining cognizant of results and not splitting hairs (and votes) over arcane matters of legal interpretation.

That is a far cry from originalism, the interpretive philosophy Justice Antonin Scalia championed. Scalia looked to the plain meaning of the words in the Constitution at the time they were enacted. He also championed textualism, which applies the same approach to statutory interpretation. The common gooders, by contrast, would put a thumb on the scale (or, when necessary, a brick) to reach what they believe are conservative ends. They say that anything less is “morally neutered.”

But originalism and textualism defer to the morality wrought in the law by those who enacted it. The duty of a judge in a system of self-government is to exercise “neither Force nor Will, but merely judgment,” Alexander Hamilton wrote in Federalist No. 78. Or as Scalia put it in his dissent from Planned Parenthood v. Casey (1992), “Value judgments . . . should be voted on, not dictated.”

The Constitution doesn’t codify the common good, let alone appoint judges as its inquisitors. The Framers, as students of history, understood that mankind is fallible and that a government powerful enough to prescribe moral truth could achieve only tyranny. Rather than put their faith in the beneficence of statesmen, they established a structure that pits faction against faction to “secure the blessings of liberty,” as the preamble puts it. James Madison thought self-government “presupposes” public virtue, which can’t be dictated, only sown in the soil of freedom.

As in theory, so too in practice. Moral truth isn’t the output of any government program or court decision. It is cultivated by families, communities and civil society. It has long been the progressive tendency to seek a governmental mandate for the perfection of man and the conservative tendency to resist. The court decisions that social conservatives bemoan—from Roe v. Wade on down—can’t be criticized for failing to take a position on moral truth, only for imposing a progressive vision by judicial fiat. A jurisprudence of restraint, one that recognizes the proper limits of government, preserves the space necessary to practice moral values—ask the Little Sisters of the Poor or Catholic Social Services of Philadelphia.

There is no contradiction between the conservative legal movement’s pursuit of limited government and the common-gooders’ substantive ends. Genuine limits on government power protect the dignity and worth of the human person. The court’s history proves the point. When it has traded away constitutional command for popular notions of the common good, the result has been moral tragedy. Buck v. Bell (1927) approved compulsory sterilization of the “manifestly unfit” as a “benefit . . . to society.” Kelo v. New London (2005) regarded government’s taking homes from families for the benefit of a private corporation as “the achievement of a public good.” Yet the common-good quartet deride “the pursuit of limited government” as amoral, a hobbyhorse of the “individual liberty-obsessed.”

One might excuse these objections if a results-oriented jurisprudence promised some practical benefit, but it doesn’t. The success of the conservative legal movement is evident in the five Supreme Court justices, and scores of lower-court judges, who have described themselves as originalists. No jurist to date has claimed the “common good” mantle.

And originalism delivers results. In the past several months, self-consciously originalist decisions have fortified property rights, limited unaccountable bureaucracy, strengthened protections for freedom of association, recognized young adults’ Second Amendment rights, and expanded the freedom of religious practice. What is to be gained from abandoning originalism now, at the apex (at least to date) of its influence?

The critics’ main answer is to assail the court’s decision in Bostock v. Clayton County (2020), which interpreted the Civil Rights Act of 1964 to permit employment-discrimination claims based on sexual orientation or transgender status. Yet the Bostock dissenters, led by Justice Samuel Alito, faulted Justice Neil Gorsuch’s decision not for its embrace of textualism but for doing textualism badly. As Ed Whalen of the Ethics & Public Policy Center observed: “A bungling carpenter should not lead you to condemn the craft of carpentry.”

The high court in recent years has moved away from approaches that often sacrificed the principles of limited government to popular fashion or expert opinion. Fostering division among conservatives threatens that project at a time of special peril, as progressives march through the institutions of power. The chief obstacles to the left’s ambitions are the Constitution and a judiciary that withstands the pressure to read the enthusiasms of the elite into the law. If conservatives seeking easy victories succumb to the allure of facile judicial activism, those barriers will be breached.

For his part, Mr. Vermeule takes inspiration from an 1892 encyclical in which Pope Leo XIII “urged French Catholics to rally to the Third French Republic in order to transform it from within.” He imagines American Catholics will eventually co-opt “executive-type bureaucracies” to effect a “restoration of Christendom.” Such a ralliement seems far less likely in the U.S. than in France, but it failed there too.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/supreme-court-conservative-liberal-originalist-vermeule-11627046671

Ideological lines turn out to be more fluid than partisans had imagined when Barrett was named.

By David B. Rivkin Jr. and Andrew M. Grossman

July 1, 2021, in the Wall Street Journal

‘Every time a new justice comes to the Supreme Court,” Justice Byron White used to say, “it’s a different court.” Activists expected that to be especially true when Justice Amy Coney Barrett arrived last year. The leftist pressure group Demand Justice denounced the nominee to succeed Justice Ruth Bader Ginsburg as “a far-right, activist judge whose confirmation would threaten to upend the lives of millions of Americans” and predicted her vote would doom ObamaCare.

Reality is seldom so simplistic. ObamaCare survived California v. Texas with a 7-2 majority, including Justice Barrett. Of the 65 cases the court reviewed this term, it decided only nine by 6-3 votes along conventional ideological lines, and only three of those could fairly be described as involving hot-button political controversies. One was Cedar Point Nursery v. Hassid, which held that a California labor regulation requiring agricultural employers to allow labor organizers on their property constituted “a per se physical taking” for which the employers were entitled to just compensation. The others were decided on Thursday as the term ended: Brnovich v. Democratic National Committee on election regulation and Americans for Prosperity Foundation v. Bonta on forced disclosure of nonprofit donors.

Yet it’s true the court has entered a new phase—one characterized by modest conservative victories, unpredictable alignments of justices, and surprising unanimous judgments. The driving forces are doctrinal differences among the court’s six conservatives, Chief Justice John Roberts’s preference for incremental rather than sweeping change, and the embrace across ideological lines of the principle that judges should follow the language of the law. As Justice Elena Kagan said in 2015, “We’re all textualists now.”

The same day the court ruled in favor of ObamaCare, it unanimously held that Philadelphia had violated the First Amendment by decreeing that a Catholic foster-care agency couldn’t operate in the city unless it certified gay couples. The deeper issue was the fate of Employment Division v. Smith (1990), a landmark decision holding that generally applicable laws burdening religious practice don’t violate free exercise, no matter that the burden may be great and the government’s interest slight.

In Fulton v. Philadelphia, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch voted to overturn Smith. Chief Justice Roberts’s opinion for the other six justices didn’t go that far, but it remade the doctrine by holding that religious conduct must be treated no worse than equivalent secular conduct. That means a law isn’t “generally applicable” under Smith if it permits secular exceptions.

Fulton is a victory mainly for the chief justice’s incrementalism, which has its virtues—among them that it makes the court’s rulings easier for the losing side to accept. It’s no small matter that the court was able to rule unanimously for religious freedom in a case widely expected to be contentious. At the same time, Fulton makes Smith easier to overturn by weakening its rationale and reliance on its sweeping rule. In a concurrence, Justices Barrett and Brett Kavanaugh suggested they are open to doing so.

Fulton wasn’t the only surprising show of unanimity. In Caniglia v. Strom, all nine justices rejected a “community caretaking” exception to the Fourth Amendment’s warrant requirements for home searches—a case that might have splintered on concerns about gun violence or the needs of law enforcement. Twice the court unanimously overruled immigration decisions from the Ninth U.S. Circuit Court of Appeals favoring aliens; one of those decisions was written by Justice Sonia Sotomayor.

Other unanimous decisions rejected expansion of recent sentencing reductions for crack offenders, authorized money damages against state officials who violate the Religious Freedom Restoration Act, limited human-rights suits premised on foreign conduct, recognized First Amendment protection for a public-school student’s out-of-school speech, and declined to tighten jurisdictional limits on suits against major corporations. (So much for claims that the Roberts Court is in thrall to big business.)

Behind much of this agreement is the court’s convergence on textualism, the method of interpretation Justice Antonin Scalia advocated as a corrective to judicial policy making. The two unanimous immigration cases, as well as the crack-sentencing one, elevated clear statutory text over policy arguments. Likely the court’s outnumbered liberals have come to realize that only textualist reasoning can achieve a majority on today’s court.

There’s an asymmetry to this. Liberal justices’ methodological flexibility enables them to vote strategically with whichever conservative colleagues favor the most congenial result. Conservatives justices tend to be exacting on questions of text and doctrine, which can split their votes even when they agree on central issues or approach. Yet political conservatives can take heart from the court’s actions this term—and look optimistically toward the next. The justices agreed to hear cases in the 2021-22 term that give them opportunities to scale back precedents on abortion and expand them on gun rights.

The clearest area of positive reform this term concerns Congress’s attempts to shield executive-branch agencies from presidential control and democratic accountability. In U.S. v. Arthrex, the court found a constitutional violation in a scheme authorizing patent judges to render decisions free from review by the head of the Patent and Trademark Office, an officer subject to presidential oversight. In Collins v. Yellen, it held unconstitutional a restriction on presidential removal of the head of the Federal Housing Finance Agency.

The court invalidated only the offensive restrictions. But that limited remedy overcomes the principal objection—“widespread disruption”—to restoring presidential control by overruling the entire line of cases that authorize the headless “fourth branch” of government. That has been a central goal of the conservative legal movement since the 1970s.

To be sure, incrementalism can go too far. Some of the chief justice’s opinions, including Arthrex, are so carefully hedged that the rules they announce are little more than that one party prevailed and the other lost. A similar complaint can be leveled at Justice Stephen Breyer’s 8-1 opinion in the student-speech case Mahanoy Area School District v. B.L., which provides little guidance for lower courts or school administrators. Justice Alito offered more in a concurrence, but only Justice Gorsuch joined it. Likewise, Justice Breyer’s opinion in the ObamaCare case declined to rule on the merits, holding instead the challenges lacked standing yet without addressing their central argument to the contrary.

All these opinions were assigned by the chief justice and joined in full by his most junior colleagues, Justices Kavanaugh and Barrett. They are rightly concerned about overreaching and appear resolved in each case to decide no more than need be decided. Judicial restraint is essential and admirable, but clarity about the law is necessary for the rule of law to function. As the new justices gain confidence, the court should strike a truer balance.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/a-cautiously-conservative-supreme-court-11625164373