Faculty Bibliography

Justice Ginsburg’s opinions challenge us to rethink the role of statutes in American constitutional democracy, and how to interpret the authority of the people to innovate on the lawmaking process itself. Her legacy includes a body of opinions that comprises a forceful rebuttal to the Court’s current interpretive dogma. Justice Ginsburg’s writing poses an alternative vision of American public law—a “republican” jurisprudence that puts the power to make law back in the hands of the people. This Symposium Essay elucidates three aspects of that jurisprudence: what work it understands legislation to do in the polity, how it understands the authority of Congress to make law, and how it interprets the authority of the people to innovate on the lawmaking process itself.

And Congress should claw it back.

Most jurists and scholars today take for granted that the U.S. Constitution imposes unwritten but judicially enforceable limits on how Congress and the President may construct their interrelationships by statute. This “juristocratic” understanding of the separation of powers is often regarded as a given or inherent feature of American constitutionalism. But it is not. Instead, it emerged from a revanchist reaction to Reconstruction. As an ascendent white South violently returned to power in Washington, its intellectual supporters depicted a tragic era in which an unprincipled Congress unconstitutionally paralyzed the President in pursuit of an unwise and unjust policy of racial equality. Determined to prevent Reconstruction from reoccurring, historians, political scientists, and a future Supreme Court Justice by the name of William Howard Taft demanded judicial intervention to prevent Congress from ever again weaving obstructions around the President. This Lost Cause dogma became Supreme Court doctrine in Myers v. United States. Authored by Chief Justice Taft, the opinion was the first to condemn legislation for violating an implied legal limit on Congress’s power to structure the executive branch. It is today at the heart of an ongoing separation-of-powers counterrevolution. That counterrevolution has obscured, and eclipsed, a more normatively compelling conception of the separation of powers—one that locates in representative institutions the authority to constitute the separation of powers by statute. This “republican” conception accepts as authoritative the decision of the political branches as to whether a bill validly exercises the Necessary and Proper Clause to carry into execution the powers and interrelationships of Congress, the President, and the executive branch. Where the juristocratic separation of powers undermines both the legal legitimacy of the Court and the democratic legitimacy of the political branches, the republican separation of powers sustains an inherently provisional constitutional order—one grounded in deliberation, political compromise, and statecraft.

I want to press a bit on the question of what the unwritten aspects of our constitutional structure establish. Rather than a fixed legal order constructed by conventions, I want to suggest that this unwrittenness points to the ♦provisionality♦ of the constitutional order itself—that is, to its essentially unsettled character. This perspective raises three problems or puzzles that a Constitution-by-Convention poses for public law: a duality at the crux of the presidential office; the unsettled nature of the separation of powers itself; and the role of courts in an unstable constitutional order. In particular, I will argue that our unwritten Constitution provides a challenge not just to Textualism but to the very idea of the separation of powers as a legalistic concept that courts can and should robustly enforce. At the same time, our unsettled presidency raises crucial questions about how courts should respond when litigation implicates presidential norms—or norm breaches—that pertain not just to the legitimacy of executive action, but to the legitimacy of the courts as well.

The standard conception of executive branch legal review in the scholarship is a quasi-judicial Office of Legal Counsel (“OLC”) dispensing formal, written opinions binding on the executive branch. That conception of executive branch legalism did have a brief heyday in practice. But its institutional underpinnings are unstable. A different approach to executive branch legalism—informal, diffuse, and intermingled in its approach to lawyers, policymakers, and political leadership—is today on the rise. This Article documents, analyzes, and assesses that transformation. Scholars have suggested that the failure of OLC to constrain presidential power in recent publicized episodes means that executive branch legalism ought to become more court-like. They have mourned what they perceive to be a disappearing external, legalistic constraint on the presidency. But executive branch legalism has never been an exogenous or external check on presidential power. It has always been a tool of presidential administration itself. The needs of the president have simply shifted. While earlier presidents looked to executive branch legalism to buttress public legitimacy through a more insulated, more court-like design, the president today looks to executive branch legal review to augment discretion at the retail, or issue-specific, level—to forge pathways to policy and political compromise in highly-contested, consequential, and legalistic terrain. There is much at stake in that transformation. But it is not the disappearance of law as an external constraint on the presidency. Rather, it is a reformation of executive branch legalism as an instrument of presidential power. Exploring that transformation sheds light on presidential power, the making of executive branch law, and the interrelationship between them.

Fourth Amendment law is transactional: it focuses on the one-off interaction typified by the singular investigatory search against a particular suspect for a specific crime. Yet surveillance is increasingly programmatic. It is ongoing and cumulative, and the scope of the executive’s search and seizure power is determined by administrative practice. Vindicating Fourth Amendment values today requires more than what the conventional transactional approach has to offer. This Article recasts problems of surveillance as problems of governance and develops an administrative framework to help address them. Administrative law suggests a way to flesh out the requirement for Fourth Amendment “reasonableness” in the exercise of agency discretion, where today’s Fourth Amendment often punts. Administrative law also provides a mechanism, independent of criminal procedure, through which courts can impose more systemic safeguards on privacy. Finally, administrative law points to a set of extrajudicial strategies for addressing surveillance at the level of governance.

This book chapter explores the relationship between Fourth Amendment law and administrative procedure in the governance of intelligence programs. It brings to the surface and analyzes an emergent dynamic in the recent case law from the Foreign Intelligence Surveillance Court (“FISC”): the role of administrative procedure inside Fourth Amendment law. Administrative rules today put meat on the bones of Fourth Amendment reasonableness. This development is in many respects salutary. Administrative rules enable a more systemic, dynamic, and grounded approach to intelligence oversight than traditional Fourth Amendment review would permit. But the type of administrative law that the FISC has created in the intelligence space is anemic at best. Elsewhere in the administrative state, we have long worried about agencies pushing on the legal bounds of their authorities or adopting policies out of step with their political overseers and the public. Administrative law has developed a set of structural and procedural safeguards in response to those threats. The administrative law of intelligence is different; it is devoid of these safeguards. We are relying on administrative rules to do crucial work to give content to Fourth Amendment reasonableness, but without the conditions that have come to legitimate administrative rulemaking elsewhere in the regulatory state. This chapter illuminates the FISC’s emergent “administrative Fourth Amendment law” and begins to explore avenues for reform.

By “pooling” legal and other resources allocated to different agencies, the executive creates joint structures capable of ends that no single agency could otherwise achieve. Pooling destabilizes core conceptions of administrative law. According to one influential account, for example, Congress exercises control over the bureaucracy through agency design. Pooling, however, calls into question the stickiness of those initial structural bargains. Through pooling, the executive reconfigures administration from within. If pooling renegotiates boundaries inside the administrative state, we might expect courts to actively police it. Yet judicial supervision, under current doctrines of administrative law, is quite spotty. Pooling can be a salutary response to administrative silos in our fast-changing and interconnected times. But pooling has a dark side. It can make administrative action less accountable and render legal safe- guards less resilient. The Article documents pooling across a range of policy domains, identifies its mechanisms, explores its structural and analytic implications, exposes legal questions that it raises, and provides a preliminary normative assessment.

The Mory's Club is emblematic of all that is old Yale. The walls are lined with framed black and white photos of clean-cut athletes and the tables have been etched by singing groups that made the club legendary in verse. The memories enshrined at Mory's, however, reveal the social barriers to gender integration. When a group of Yale graduates incorporated the Mory's Association in September 1912 with the purpose of "promot[ing] ... social intercourse and the culture of its members," gender discrimination was not a legal claim but rather a part of daily life. Half a century later, Yale College opened its doors to female students, and members of the Yale community urged Mory's to do the same. In the local movement that ultimately forced Mory's to admit women, civic participation reshaped women's equality in elite institutions and pushed the boundaries of law, or at minimum, expanded its shadow.