At The Huffington Post, Evan Bernick has offered a thoughtful reply to my suggestion that judicial deference to Congress differs categorically from judicial deference to the administrative state, arguing instead that the real problem is deference simply: “Judicial deference of any kind sees judges elevating will over the reasoned judgment that judges who draw their power from Article III must exercise.”
This usefully identifies the core of the issue. If federal judges actually possessed all the power Bernick says Article III assigns them, there would be less constitutional basis for constraining their authority. If they do not, the issue is whether they can commandeer it.
Another of the papers held at the Works-in-Progress Conference at the Originalism Center at the University of San Diego this past weekend was The Contested History of Article III’s Case-or-Controversy by James Pfander of Northwestern University Law School. Pfander’s paper provides evidence that early Congresses authorized and courts allowed lawsuits that do not seem to satisfy the modern Article III doctrine in terms of injury in fact and adverseness of the parties. (While Pfander’s paper is not yet available online, a longer related paper is.)
One of Pfander’s examples is the naturalization proceeding that involved an action by an individual in court seeking citizenship. The government was not a party to the proceeding. According to Pfander, this proceeding does not involve an injury in fact and does not involve adverseness. It does not involve injury in fact, because the applicant for citizenship has not been denied his citizenship by the government. He is simply applying for it in court. It does not involve adverseness because the government has not taken an adverse position to the applicant for citizenship. The government is not involved. Other noncontentious proceedings included administrative proceedings in bankruptcy jurisdiction and ex parte warrant applications.
Traditionally, in order to obtain an injunction, a plaintiff must prove four elements: “A plaintiff seeking a preliminary injunction must establish that he is (1) likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and that an (4) injunction is in the public interest. If an injunction is issued, a defendant is ordered to do, or not to do something. Failure to comply with the order can result in contempt of court.
The much-awaited argument in Noel Canning, arising over purported recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau, was a bit of a yawner (transcript here). And it won’t be a big test of originalism, textualism, etc: If (as here) the government doesn’t have an argument from text, or structure, or history, or functionality, what does it matter? And if the Senate was in session anyhow, why are we arguing about recess appointments? You don’t have to follow the argument. Just count the lines in the transcript: the justices let Miguel Estrada, who made that…