Case Comments

Trevor W. Morrison⁰* * Copyright © 2025 by Trevor W. Morrison, Eric M. and Laurie B. Roth Professor of Law and Dean Emeritus, New York University School of Law. For helpful comments and criticism, I am grateful to Payvand Ahdout, Curt Bradley, Michael Dreeben, Jack Goldsmith, Daryl Levinson, Marin Levy, Gillian Metzger, Rick Pildes, Sai Prakash, Shalev Roisman, Tom Schmidt, and participants in workshops at New York University School of Law and the University of Virginia School of Law. Thanks to Morgan Brandewie, Mia Bravo, Kendra Cornelis, and Ben Perelmuter for excellent research assistance, and thanks to the editors at the New York University Law Review for their expert and quick work. Elements of this Essay are drawn from two short pieces published last year, one as Trump v. United States was being briefed before the Supreme Court and the other just after the Court decided the case. See Trevor W. Morrison, Moving Beyond Absolutes on Presidential Immunity, Lawfare (Mar. 18, 2024, 8:00 AM), https://www.lawfaremedia.org/article/moving-beyond-absolutes-on-presidential-immunity [https://perma.cc/64YR-SL5S]; Trevor W. Morrison, A Rule for the Ages, or a Rule for Trump?, Lawfare (July 11, 2024, 1:42 PM), https://www.lawfaremedia.org/article/a-rule-for-the-ages—or-a-rule-for-trump [https://perma.cc/4FBH-M8XA]. Show More*

In Trump v. United States, the Supreme Court held the President at least presumptively immune from criminal prosecution for all of his official acts and absolutely immune for acts taken within his “conclusive and preclusive” constitutional authority. Critically, it then held that the President has conclusive and preclusive power over the investigative and prosecutorial functions of the Justice Department (and potentially over the execution of the law more broadly). Because the Court deemed that power conclusive and preclusive, it held that Congress may not regulate or restrict it in any way—even if it is used to conduct “sham” or otherwise improper investigations or prosecutions. As other commentators have pointed out, the Court’s sweeping language on this point would appear to have far-reaching consequences well beyond the criminal prosecutability of the President.

Thus far, however, commentators have largely overlooked the implications of Trump for subordinate executive officials who implement the President’s orders. In fact, a widespread belief that Trump carries no implications for subordinates has been cited as mitigating its impact. On this view, even if a President may not be prosecuted for directing his subordinates to conduct unlawful investigations and prosecutions, his subordinates do face those (and other) constraints. Thus, a lawless President will be kept somewhat in check by the unwillingness of his subordinates to expose themselves to liability.

This Essay argues that the conventional understanding is wrong. Executive subordinates who act at the President’s direction to effectuate his powers have long been understood to be exercising the President’s powers, not their own. If the presidential power at issue is conclusive and preclusive of congressional or judicial limitation, it remains so even when exercised by a subordinate. That was clear well before the Court decided Trump. But when the point is combined with Trump’s sweeping account of presidential power, the result is new and deeply troubling.

If the Court meant what it seemed to say about the President’s conclusive and preclusive power over law execution, then presidential subordinates who conduct sham or otherwise improper investigations or prosecutions at the President’s behest are just as absolutely immune as he is. And the immunity applies not just to criminal charges, but to any congressional or judicial attempt to constrain the President’s conclusive and preclusive power. This Essay shows how Trump seemingly leads to this result, discusses some of its potentially disastrous consequences, and identifies some ways to limit those consequences.

Introduction

The presidency of the United States is an immensely consequential role.¹1. See Forrest McDonald, The American Presidency: An Intellectual History (1994) (“The presidency of the United States is often described as the most powerful office in the world.”); Theodore J. Lowi, The Personal President: Power Invested, Promise Unfulfilled, at x–xi (1985) (calling the presidency “the most powerful office in the world”); Lawrence M. Friedman, A History of American Law 568 (1973) (“The man who holds this office has become, as Presidents like to think, the most important, the most powerful man in the world.”).Show More It is also just immense. As the Supreme Court has explained, “Because no single person could fulfill [the President’s] responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance.”²2. Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2191 (2020).Show More And indeed he does. The President typically exercises his powers through others in the Executive Branch, who act on his behalf and at his (direct or indirect) behest. Sometimes, the law treats the person of the President differently than the subordinates who help discharge his role; other times, it does not.³3. Cf. Daphna Renan, The President’s Two Bodies, 120 Colum. L. Rev. 1119, 1122–23 (2020) (describing two models of the presidency, one focused on the individual elected to the role and the other encompassing the various actors and offices that wield and shape presidential power).Show More This Essay is about how the Supreme Court’s decision in Trump v. United States⁴4. 144 S. Ct. 2312 (2024).Show More bears on that issue.

Trump has not been well received. It declared the President broadly immune from criminal prosecution for his official acts, which Justice Sotomayor in dissent described as turning the President into “a king above the law.”⁵5. Id. at 2371 (Sotomayor, J., dissenting).Show More Press commentators reacted similarly, lamenting that the decision created a “lawless presidency.”⁶6. See, e.g., Kate Shaw, Opinion, The Supreme Court Creates a Lawless Presidency, N.Y. Times (July 2, 2024), https://www.nytimes.com/2024/07/02/opinion/supreme-court-immunity-trump.html [https://perma.cc/D9S8-DA63]; Michael Stokes Paulsen, A Lawless Court Gives Us a Lawless Presidency, Pub. Discourse (July 22, 2024), https://www.thepublicdiscourse.com/2024/07/95374 [https://perma.cc/529V-A923]. Show More Most of the criticism has focused on the Court’s recognition of “at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”⁷7. Trump, 144 S. Ct. at 2331 (emphasis omitted). Show More Justice Sotomayor argued that the Court’s account of this presumption made it virtually impossible to rebut, and thus that the Court had in effect made the President absolutely immune from prosecution for all official acts, no matter how abusive or unlawful.⁸8. See id. at 2357 (Sotomayor, J., dissenting) (“Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless.”); id. at 2361 (pointing out that, under the majority’s test, “the President must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch’” (alteration in original) (emphasis omitted) (quoting id. at 2331–32 (majority opinion)), which all but guarantees immunity because “[i]t is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes”). Show More The result, she said, “ma[de] a mockery of the principle . . . that no man is above the law.”⁹9. Id. at 2355.Show More

Whatever one makes of those criticisms,¹⁰10. Jack Goldsmith argues they are overstated. He points out that it was already difficult to stop “a bad-man President [from] engaging in widespread lawless criminal behavior,” and that “the bad-man President had many tools to skirt the criminal law before Trump, to which its uncertain immunity ruling added relatively little.” Jack Goldsmith, The Presidency After Trump v. United States, 2024 Sup. Ct. Rev. 1, 2. Show More the Court’s holding on official-acts immunity has overshadowed its separate holding that the President is absolutely (not just “at least presumptively”) immune for a subset of his official actsthose that fall “within his ‘conclusive and preclusive’ constitutional authority.”¹¹11. Trump, 144 S. Ct. at 2328, 2344 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J., concurring)).Show More Justice Sotomayor told readers they should “[f]eel free to skip over those pages of the majority’s opinion,” because “[w]ith broad official-acts immunity covering the field, this ostensibly narrower immunity serves little purpose.”¹²12. Id. at 2367 (Sotomayor, J., dissenting).Show More If we focus only on the narrow question presented in Trump, she may be right: If the President’s nominally presumptive official-act immunity is effectively absolute, the existence of a narrower category of truly absolute immunity is largely irrelevant.¹³13. Although it is beyond the scope of this Essay to consider, it is possible that the Court’s standard for official-act immunity could turn out to be more flexible in practice. See Shalev Gad Roisman, Trump v. United States and the Separation of Powers, 173 U. Pa. L. Rev. Online 33, 52 (2025) (arguing that although the language of the Trump majority’s test “is overly restrictive,” it “do[es] not . . . need[] to be applied literally,” and observing that “there is precedent for an ostensibly demanding standard like this one being overcome in separation of powers cases”).Show More

Yet as some commentators have pointed out, the Trump Court’s discussion of “conclusive and preclusive” presidential power could have far-reaching effects, well beyond the specific issue of presidential immunity from criminal charges.¹⁴14. See, e.g., Goldsmith, supra note 10, at 2 (arguing that Trump’s primary impact will be on the President’s removal, investigatory, and prosecutorial powers rather than on presidential immunity); Shalev Gad Roisman, President Trump in the Era of Exclusive Powers, Harv. L. Rev. Blog (Apr. 12, 2025), https://harvardlawreview.org/blog/2025/04/president-trump-in-the-era-of-exclusive-powers/ [https://perma.cc/WEN2-RDA3] (exploring Trump’s impact on the scope of the President’s exclusive powers beyond the immunity context); Marty Lederman, A Vivid Illustration of the Impact of the Roberts Court’s Radical New “Unitary Executive” Doctrine, Balkinization (Sept. 23, 2024), https://balkin.blogspot.com/2024/09/a-vivid-illustration-of-impact-of.html [https://perma.cc/39FP-AT38] (arguing that “the most extraordinary and troubling thing about [the Trump] opinion” is not the immunity decision, but rather the holding that the President’s investigatory and prosecutorial powers are “preclusive” and thus untouchable by Congress).Show More That is because of what it said about the content of that power. According to Trump, the President has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,”¹⁵15. Trump, 144 S. Ct. at 2335; see also id. at 2334 (“[T]he Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime.” (quoting United States v. Nixon, 418 U.S. 683, 693 (1974))).Show More and Congress therefore may not regulate or restrict the exercise of that authority in any way, even if it is used to conduct “sham” or otherwise unlawful investigations or prosecutions.¹⁶16. Id. at 2335 (“The indictment’s allegations that the requested investigations were ‘sham[s]’ or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions . . . .” (quoting Joint Appendix at 186, Trump, 144 S. Ct. 2312 (No. 23-939))).Show More Trump grounded its reasoning in part in the Take Care Clause of the Constitution,¹⁷17. See id. (“The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed.’” (quoting U.S. Const. art. II, § 3)).Show More suggesting that its view of unregulable presidential control of law execution may extend well beyond criminal law.

The language of this part of the Trump decision is as sweeping as it is unprecedented. It is one thing to say, as the Court has in recent cases like Seila Law LLC v. CFPB, that the President generally must have “unrestricted . . . power . . . to remove those who assist him in carrying out his duties” so that he may effectively oversee the execution of the law.¹⁸18. 140 S. Ct. 2183, 2198 (2020) (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 513–14 (2010)). As the Court there explained, its cases recognize “only two exceptions to the President’s unrestricted removal power”: “Congress could create expert agencies led by a group of principal officers removable by the President only for good cause,” and “Congress could provide tenure protections to certain inferior officers with narrowly defined duties.” Id. at 2192.Show More As others have noted, it is a giant further step to suggest, as Trump seemed to do, that Congress could not “create and structure executive branch offices and departments as it sees fit,” and that it “could not require the executive branch to adhere to standard requirements of administrative law.”¹⁹19. Roisman, supra note 14; see Goldsmith, supra note 10, at 20 (“The Court’s holding about the President’s exclusive control over how the executive branch enforces the law . . . enhance[s] the president’s vertical control over executive branch action, [which] gives the President expanded discretion from the pre-Trump baseline over when and how to enforce (and thus, perhaps, comply with) federal law.”); Lederman, supra note 14 (stating that “the most extraordinary and troubling thing about [Trump] was not the Court’s already infamous holding that the President enjoys some sort of immunity . . . from criminal trial and sanction when he violates a valid law while acting in his official capacity,” but instead the part of the opinion where “the Court held not only that the President has ‘exclusive authority over the investigative and prosecutorial functions of the Justice Department,’ but also (apparently) that that authority is ‘preclusive’ and that Congress therefore may not regulate it by statute!” (quoting Trump, 144 S. Ct. at 2335)).Show More And yet it is something else again to say, as the Trump majority did explicitly, that the President’s power over law execution includes the power to direct his subordinates to do things that the law says no one may do.²⁰20. See 144 S. Ct. at 2335 (holding that the the President’s “exclusive authority over the investigative and prosecutorial functions” includes the authority to direct investigations “for an improper purpose”). Show More In describing the presidential power of law execution in those terms, Trump did not simply immunize the President from a particular legal sanction for his otherwise unlawful actions. Instead, it declared the President’s conduct in relation to law execution categorically lawful, even if it violated the law. To borrow from Richard Nixon, the Trump majority opinion seems to have embraced the view that when it comes to law execution, “when the President does it, that means that it is not illegal.”²¹21. Excerpts from Interview with Nixon About Domestic Effects of Indochina War, N.Y. Times, May 20, 1977, at A16.Show More Yet the Court did not even acknowledge, much less attempt to justify (or to disclaim), this consequence of its reasoning.

Even among those focused on this aspect of Trump, however, there is a consensus that the decision had no impact on a separate but critically important issue—whether subordinate officials in the Executive Branch may claim any immunity (criminal, civil, or otherwise) for violating the law at the President’s direction. In fact, in the aftermath of the Trump decision, a belief that it had no impact on subordinates has been invoked as tempering Trump’s holding on presidential immunity.²²22. See, e.g., Zachary S. Price, Even if the President Is Immune, His Subordinates Are Not, Yale J. on Regul.: Notice & Comment (July 11, 2024), https://www.yalejreg.com/nc/even-if-the-president-is-immune-his-subordinates-are-not-by-zachary-s-price/ [https://perma.cc/SS6J-C3S4] (arguing that Trump “left in place one of the most important constraints on the American presidency: the need to act through subordinates to carry out most government functions,” and that “[b]ecause those subordinates lack the same criminal immunity as the President, this constraint may now be all the more important”); Goldsmith, supra note 10, at 35–37 (“Trump nowhere hinted that it was extending immunity to subordinates. . . . The availability of remedies against presidential subordinates even when the President receives absolute immunity accommodates the President’s special position . . . with the need for government accountability to law. The same accommodation would serve the same aim in the criminal immunity context . . . .”); Thomas P. Schmidt, Presidential Immunity: Before and After Trump, 79 Vand. L. Rev. (forthcoming 2026) (manuscript at 50 n.364), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5187348 [https://perma.cc/7AYW-5B9N] (“One palliative [of the Trump decision] is that . . . criminal prosecutions might still proceed against executive branch subordinates.”).Show More On this view, even if a President may not be prosecuted for directing his subordinates to conduct unlawful investigations and prosecutions, his subordinates do face those (and other) constraints. Thus, a lawless President will be kept somewhat in check by the unwillingness of his subordinates to expose themselves to liability.²³23. See Price, supra note 22 (“[E]ven when the President is immune . . . , he or she will often be able to take unlawful action only if subordinate officers are willing to risk personal legal jeopardy . . . . These constraints should alleviate some of gravest risks predicted by the dissenters in Trump.”); Goldsmith, supra note 10, at 33–34 (“Subordinate liability is one reason why administrations do not engage in rampant violations of non-criminal law. . . . [P]otential criminal liability for subordinates is an important hurdle for a lawless president to carry out lawless acts.”).Show More

The premise of this position is that immunity is specific to the nature and function of the office, and that presidential immunity is about the person of the President. Given the uniqueness of the presidency, the mere fact that he is absolutely immune from some set of judicial remedies does not necessarily mean the same thing for his subordinates. That is indeed how officer immunity works with civil suits for money damages: The President is absolutely immune for acts “within the ‘outer perimeter’ of his official responsibility,”²⁴24. Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982).Show More while most executive officials enjoy only qualified immunity.²⁵25. See Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). There are exceptions, the most notable being that prosecutors enjoy absolute immunity for their prosecutorial acts. See Butz v. Economou, 438 U.S. 478, 511–12 (1978); Imbler v. Pachtman, 424 U.S. 409, 427 (1976). Show More The majority opinion in Trump said nothing about presidential subordinates, and it is tempting to think that its holding has no implications for them.²⁶26. See Goldsmith, supra note 10, at 35 (“The [Trump] Court emphasized that its decision turned on the unique position of the President in the constitutional scheme and the need to protect presidential decisionmaking, and its holding about immunity concerned only the President.”); Schmidt, supra note 22 (manuscript at 50 n.364) (“[T]he Court in Trump did not suggest that the President’s immunity would extend to subordinates.”).Show More

That position is untenable. We have long understood that when presidential subordinates take actions to effectuate a power that the President asserts for himself, the legality of the subordinates’ actions depends on an assessment of the President’s authority. Relatedly, the Supreme Court has made clear that if the President cannot be regulated in the exercise of a particular power because it is conclusively and preclusively his, subordinates effectuating that power likewise cannot be regulated.²⁷27. See infra Part II.Show More That point is neither new nor controversial. When it is combined with the Trump Court’s sweeping account of the President’s power over law execution, however, the consequences for presidential subordinates are potentially immense.

This Essay traces those consequences. It shows that—whether or not the Court intended it—the logic of Trump’s analysis renders the President’s subordinates absolutely immune for a potentially broad range of official acts, even if those acts are otherwise unlawful. Worse, the immunity Trump unleashes is not easily limited to criminal prosecution: When implementing the President’s now-conclusive-and-preclusive power over law execution, subordinates are immune from all legislative restrictions and all judicial remedies.²⁸28. See infra Part II.Show More That is because if the President has the conclusive and preclusive power over law execution, then any conduct taken by his subordinates to implement that power is lawful, not just immune from a particular remedy.²⁹29. The only extended treatment of subordinate liability after Trump seems to miss this point. See Carter S. Squires, Note, Writing a Rule for the Aegis: Against Subordinate Criminal Immunity After Trump v. United States, 135 Yale L.J. (forthcoming 2026), https://papers.ssrn.com/sol3/papers.cfm?abstract_id= [https://perma.cc/7HMC-MYFD]. Instead, it treats the question of criminal immunity for subordinates as subject entirely to a functionalist balancing, in the same way the Court approached presidential and subordinate immunity from civil damages in Nixon and Harlow. See id. (manuscript at 63–64 & n.240). That approach does not come to grips with the implications of the highly formalist part of the Trump decision that addressed conclusive and preclusive presidential power. It is true that the part of the decision addressing the broader category of official-act immunity is more functionalist in its analysis, but that is not the part of the opinion that matters for these purposes.Show More

Trump gave rise to this concern the day it was issued. But the problem has become far greater—and the need for judicial course correction more urgent—in light of the actions of the new Trump Administration. From the very beginning of his second term in office, Trump has “used his official powers to carry out a retribution campaign against his perceived enemies.”³⁰30. Charlie Savage, A Campaign to Extract Revenge, Using the Powers of the Presidency, N.Y. Times (Apr. 28, 2025), https://www.nytimes.com/interactive/2025/04/28/us/trump-100-days-actions.html [https://perma.cc/4S8H-ZLFS]; see Charlie Savage, Maggie Haberman, Jonathan Swan & Michael S. Schmidt, Trump Escalates Use of Official Power to Intimidate and Punish His Perceived Foes, N.Y. Times (Apr. 10, 2025), https://www.nytimes.com/2025/04/10/us/politics/trump-officials-justice-department.html [https://perma.cc/8XG9-VBNS] (“Mr. Trump is openly using his control of the executive branch to satisfy his desire for retribution against people he perceives as working against him. And his officials are readily helping him.”).Show More One part of that campaign has involved opening official investigations targeting those enemies. For example, Trump singled out a member of his first administration for “falsely and baselessly den[ying] that the 2020 election was rigged and stolen,” and he directed the Attorney General to “take all appropriate action to review [the former official’s] activities as a Government employee” and to make recommendations about “appropriate remedial . . . actions”—which may include criminal charges.³¹31. Memorandum on Addressing Risks from Chris Krebs and Government Censorship, 2025 Daily Comp. Pres. Doc. 465 (Apr. 9, 2025).Show More More broadly, Trump has directed the Attorney General to investigate the supposed “weaponization” of the legal process by federal officials during the Biden Administration.³²32. See Exec. Order No. 14,147, 90 Fed. Reg. 8235, 8235 (Jan. 20, 2025).Show More To implement that directive, the Attorney General has established a “Weaponization Working Group” and charged it with investigating the Special Counsel who filed the criminal charges at issue in Trump, among others.³³33. See Memorandum from the Att’y Gen. to All Dep’t Emps., Restoring the Integrity and Credibility of the Department of Justice (Feb. 5, 2025), https://www.justice.gov/ag/media/1388506 [https://perma.cc/ATX7-QWE7].Show More To take another example, Trump has suggested that the Internal Revenue Service should look into revoking the tax-exempt status of universities and other nonprofit organizations whose policies or activities he opposes.³⁴34. See Andrew Duehren, Maggie Haberman & Alan Blinder, Harvard Signals It Will Resist Trump’s Efforts To Revoke Tax-Exempt Status, N.Y. Times (May 2, 2025), https://www.nytimes.com/2025/05/02/us/politics/trump-harvard-tax-exempt-status.html [https://perma.cc/3A7Z-8KM5] (quoting Trump as saying on social media that the federal government would be “taking away Harvard’s Tax Exempt Status,” and adding that “[i]t’s what they deserve”); Lisa Mascaro, Law Firms, Universities and Now Civil Society Groups Are in Trump’s Sights for Punitive Action, Associated Press (Apr. 18, 2025, 12:04 AM), https://apnews.com/article/trump-tax-exempt-crew-environmental-groups-harvard-5e1e0ffacfa040ccdeaf4e43fb72b5fe [https://perma.cc/4M7M-L3N2]. Show More It is not difficult to imagine additional possibilities.³⁵35. See, e.g., Abrego Garcia v. Noem, No. 25-1404, slip op. at 5 (4th Cir. Apr. 17, 2025) (Wilkinson, J.) (opinion and order denying motions for stay pending appeal and writ of mandamus) (“If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home[,] . . . [or] train its broad discretionary powers upon its political enemies?”).Show More

It is at least arguable that all these actions fall within Trump’s account of the President’s conclusive and preclusive authority over law execution. If they do, then even if the investigations were all “shams” with no lawful basis—indeed, even if they were conducted in ways that violated the criminal law—under Trump, they apparently could not be constrained by Congress or the courts. And that would be true, not just for President Trump himself, but for all executive subordinates implementing his orders.³⁶36. See infra Section IV.A.Show More The Trump Administration is already invoking Trump in cases challenging various actions it has taken in recent months,³⁷37. See infra notes 117–18 and accompanying text; see also Jack Goldsmith, The President’s Favorite Decision: The Influence of Trump v. U.S. in Trump 2.0, Lawfare (Feb. 10, 2025, 8:52 AM), https://www.lawfaremedia.org/article/the-president-s-favorite-decision—the-influence-of-trump-v.-u.s.-in-trump-2.0 [https://perma.cc/77FD-YEMY] (noting that “[t]he conception of presidential power articulated in Trump . . . went further on many dimensions, and in the aggregate, than prior decisions,” and that “[t]he Trump administration is relying on the maximalist implications of Trump”).Show More though not yet on the issue of subordinate liability. But the danger is there. For now, Trump is the proverbial “loaded weapon,”³⁸38. Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting).Show More lying about and available to be seized not just by a vengeful President but by his subordinates, who now have little personal legal incentive to say no to the President when it comes to law execution.

The goal of this Essay is to show how Trump can be read to yield this result, and to urge the Court to fix the problem it has created. Part I begins by distinguishing between two types of officer immunities, which I call remedial and substantive. Both were at issue in Trump. Remedial immunity is officer- and conduct-specific and has no necessary connection to the legality of the defendant’s underlying conduct. Substantive immunity has everything to do with the lawfulness of the defendant’s conduct and the unlawfulness of attempts to restrict it. Settled principles of the constitutional separation of powers recognize that there are certain presidential authorities that the Constitution vests so exclusively in the President that they are “conclusive and preclusive,” and as to which the President is therefore substantively immune from constraint by Congress.

Part II discusses the implications of substantive, conclusive and preclusive presidential immunity for the President’s subordinates. Again turning to canonical separation of powers authorities, it shows that when a subordinate executive official acts to effectuate the President’s conclusive and preclusive powers, the subordinate is no more subject to legislative or judicial constraint than is the President. We have known this for decades.

Part III then turns to the Court’s decision in Trump itself. It focuses on the unprecedentedly broad language the Court used to assert a conclusive and preclusive presidential power over law enforcement. This part of the majority opinion is rather thinly reasoned, with no acknowledgement of its potential consequences. But if read in the context of the Court’s actual holding in the case, the language of the majority opinion seems to grant the President the power, in the name of law enforcement, to order illegal action. The laws that had allegedly been violated in Trump were not simply laws structuring the inner operation and organization of the Executive Branch; they were laws defining certain primary conduct to be crimes. The Court held the President immune from those laws when exercising his power over law enforcement. Trump, then, can be read to recognize a conclusive and preclusive presidential power to commit crimes in the course of enforcing the law. It seems unlikely that the Court intended this result. Yet it is not an easy result to avoid.

Putting Parts II and III together, Part IV traces Trump’s implications for subordinate immunity. They are dramatic. The logic of Trump seems to suggest that not only the President but all presidential subordinates acting at his direction are absolutely immune from all judicial remedies relating not just to the investigation and prosecution of criminal offenses, but to the enforcement of federal law more generally. That immunity remains in place even if the enforcement in question is itself a “sham” or otherwise unlawful. This entails an enormous expansion of absolute substantive immunity for executive officials below the President. Again, it is difficult to believe that the Court meant this result, but the critical parts of the majority opinion contain no qualifying language foreclosing it.

Part V proceeds from the assumption that the Trump majority did not mean to sweep as far as its language can be read to reach. It considers ways—within the general framework of conclusive and preclusive presidential powers—to limit the President’s authority over law execution, and thus to limit his subordinates’ immunity in this area. In the absence of such limits, the Conclusion contends, Trump may well fuel the fires of presidentially-driven retribution and reprisal that seem to be characterizing our new political moment.

I. Distinguishing Immunities

The term “immunity” has “a wide variety of meanings.”³⁹39. Schmidt, supra note 22 (manuscript at 10).Show More Hohfeld proposed that it could be understood to refer to “one’s freedom from the legal power or ‘control’ of another as regards some legal relation.”⁴⁰40. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 55 (1913).Show More But depending on the precise legal relation at issue, the nature of the immunity can vary significantly. In Trump, the Court used “immunity” to refer to two quite different things, which I will call remedial and substantive immunity.⁴¹41. This nomenclature roughly corresponds to Jack Goldsmith’s distinction between limits on judicial review of executive action and limits on congressional control of executive action, though they may not be identical in all particulars. See Goldsmith, supra note 10, at 6.Show More Distinguishing the two will make it easier to grasp Trump’s implications for executive subordinates.

A. Remedial

Most immunity doctrines are remedial. They are concerned with whether a given actor may be subjected to a particular judicial remedy in particular circumstances. The doctrine of qualified officer immunity, for example, governs the circumstances in which most government officials may be personally subject to private suits for money damages for acts taken in their official capacity.⁴²42. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”).Show More The real force of the doctrine is to shield officers from damages liability for conduct that was unlawful, but not so clearly unlawful that a reasonable officer at the time would have known.⁴³43. Id.Show More Similarly, the doctrine of state sovereign immunity governs the circumstances in which states may be subject to suit by private parties.⁴⁴44. See Hans v. Louisiana, 134 U.S. 1, 13 (1890) (“It is inherent in the nature of [state] sovereignty not to be amenable to the suit of an individual without its consent.” (emphasis omitted) (quoting The Federalist No. 81 (Alexander Hamilton))).Show More Here again, the real force of the doctrine is to shield states from certain suits even though they may have acted unlawfully. These forms of immunity, in other words, are distinct from the legality of the defendant’s challenged conduct. To the extent they shield defendants from certain sanctions even though they may have acted unlawfully, remedial immunity doctrines contribute to the familiar “right-remedy gap” in American public law.⁴⁵45. See generally John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 Yale L.J. 87 (1999); Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1779–87 (1991) (examining sovereign and official immunity as remedial bars in constitutional law). The distinction between immunity and the substance of the law is found in other legal systems as well. See, e.g., André Nollkaemper, International Adjudication of Global Public Goods: The Intersection of Substance and Procedure, 23 Eur. J. Int’l L. 769, 773 (2012) (noting that, in international law, “[i]mmunity is an example of a procedural principle that is distinct from the substance of the law on which a claim is based”). Show More However, there will often be other ways to enforce the law against the offending party without triggering any remedial immunity.⁴⁶46. See, e.g., Pearson v. Callahan, 555 U.S. 223, 242 (2009) (noting that qualified officer immunity is “not available” in “criminal cases and . . . cases . . . where injunctive relief is sought”); Alden v. Maine, 527 U.S. 706, 755 (1999) (“The States have consented . . . to some suits pursuant to the plan of the Convention or to subsequent constitutional Amendments[, including] suits brought by other States or by the Federal Government.”); id. at 756 (“Congress may authorize private suits against nonconsenting States pursuant to its § 5 enforcement power.”).Show More

The presidential immunity recognized in Nixon v. Fitzgerald is remedial. “Because of the singular importance of the President’s duties,” the Court reasoned, “diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government. . . . In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages.”⁴⁷47. Nixon v. Fitzgerald, 457 U.S. 731, 751, 753 (1982).Show More To protect against those risks, the Court adopted a rule of absolute immunity from implied causes of action seeking money damages for conduct falling “within the ‘outer perimeter’ of his official responsibility.”⁴⁸48. Id. at 756. Show More

The Fitzgerald Court emphasized that its rule “merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends.”⁴⁹49. Id. at 758; see id. at 758 n.41 (“This case involves only a damages remedy. Although the President is not liable in civil damages for official misbehavior, that does not lift him ‘above’ the law.”); id. at 759 (Burger, C.J., concurring) (“The immunity is limited to civil damages claims.”).Show More It did not apply to any other remedies that might be available. The Court also confirmed that the immunity had nothing to do with whether the President’s alleged conduct in fact violated the law. If determining a President’s entitlement to immunity involved determining the legality of his actions, he would be “subject . . . to trial on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose. Adoption of this construction thus would deprive absolute immunity of its intended effect.”⁵⁰50. Id. at 756 (majority opinion).Show More As the D.C. Circuit recently explained in a case involving an assertion of Fitzgerald immunity, “the President’s actions do not fall beyond the outer perimeter of official responsibility merely because they are unlawful or taken for a forbidden purpose. Rather, the President’s official immunity insulates all of his official actions from civil damages liability, regardless of their legality or his motives.”⁵¹51. Blassingame v. Trump, 87 F.4th 1, 14 (D.C. Cir. 2023).Show More

The broader holding in Trump—regarding official-act immunity from criminal charges⁵²52. See Trump v. United States, 144 S. Ct. 2312, 2331 (2024).Show More—is also remedial. The Trump Court drew on Fitzgerald as well as United States v. Nixon⁵³53. 418 U.S. 683 (1974).Show More to emphasize that, in light of the unique breadth and complexity of the President’s responsibilities,⁵⁴54. See Trump, 144 S. Ct. at 2329 (“The President ‘occupies a unique position in the constitutional scheme,’ as ‘the only person who alone composes a branch of government.’” (citations omitted) (first quoting Fitzgerald, 457 U.S. at 749; and then quoting Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2034 (2020))).Show More an at least presumptive criminal immunity for all presidential acts “is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution.”⁵⁵55. Id. at 2331; see id. at 2230 (contending that “[c]riminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession,” and that “[t]he danger is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability”); id. at 2331 (“Although the President might be exposed to fewer criminal prosecutions than the range of civil damages suits that might be brought by various plaintiffs, the threat of trial, judgment, and imprisonment is a far greater deterrent.”); id. (“Indeed, if presumptive protection for the President is necessary to enable the ‘effective discharge’ of his powers when a prosecutor merely seeks evidence of his official papers and communications, it is certainly necessary when the prosecutor seeks to charge, try, and imprison the President himself for his official actions.” (citation omitted) (quoting Nixon, 418 U.S. at 711)).Show More Specifically, the Court held that “[a]t a minimum, the President must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”⁵⁶56. Id. at 2331–32 (quoting Fitzgerald, 457 U.S. at 754). As Justice Sotomayor pointed out in her dissent, this “no dangers” standard may be impossible to satisfy as a practical matter, in which case the immunity is functionally absolute. See supra notes 8–9 and accompanying text. In prior writing, I have questioned whether Fitzgerald actually supports any remedial immunity in Trump. See Trevor W. Morrison, Moving Beyond Absolutes on Presidential Immunity, Lawfare (Mar. 18, 2024, 8:00 AM) [hereinafter Morrison, Beyond Absolutes], https://www.lawfaremedia.org/article/moving-beyond-absolutes-on-presidential-immunity [https://perma.cc/64YR-SL5S]; Trevor W. Morrison, A Rule for the Ages, or a Rule for Trump?, Lawfare (July 11, 2024, 1:42 PM), https://www.lawfaremedia.org/article/a-rule-for-the-ages—or-a-rule-for-trump [https://perma.cc/4FBH-M8XA]. Without repeating all of that here, two points bear mentioning. First, the civil suit in Fitzgerald asserted statutory and constitutional claims as to which Congress had not expressly provided any right of action, and a plurality of the Court explicitly limited its holding to those circumstances. See 457 U.S. at 748 n.27 (“In the present case we . . . are presented only with ‘implied’ causes of action, and we need not address directly the immunity question as it would arise if Congress expressly had created a damages action against the President of the United States.”). It thus left open the possibility that the President might not be immune from privately initiated suits (or civil enforcement actions by the government) that are expressly authorized by Congress. In Trump, of course, Congress had expressly authorized the government to enforce the federal criminal statutes at issue. Second, although the Trump majority quoted Fitzgerald (regarding “dangers of intrusion on the authority and functions of the Executive Branch”) when describing what it would take to rebut the presumption of criminal immunity, it took that language spectacularly out of context. Here is the full sentence in Fitzgerald: “But our cases have also established that a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.” 457 U.S. at 754. Fitzgerald thus portrayed the key inquiry as a balancing test: Weigh the interest served by immunity (protecting against intrusions on presidency) against the interest served by allowing the case to move forward (vindicating the values served by the law being invoked). Applied in the criminal context, this would mean balancing the risk of undue intrusions on the presidency against the public interest in upholding the criminal law and the rule of law more generally. The Trump majority all but ignored the second side of the scales, transforming a balancing inquiry into a one-sided test of its own invention. Fitzgerald does not support that maneuver. Show More

Critically, this aspect of Trump immunity also has nothing to do with the lawfulness of the President’s alleged conduct. As in Fitzgerald, the Court emphasized that the point of the immunity is to shield the President from liability without subjecting him to the full rigors of a trial.⁵⁷57. See 144 S. Ct. at 2334 (explaining that courts may not deem an action unofficial (and thus beyond the scope of the President’s immunity) “merely because it allegedly violates a generally applicable law. . . . Otherwise, Presidents would be subject to trial on ‘every allegation that an action was unlawful,’ depriving immunity of its intended effect.” (quoting Fitzgerald, 457 U.S. at 756)). Show More Only that level of insulation, the Court concluded, could adequately ward against “seriously crippl[ing] the proper and effective administration of public affairs as entrusted to the executive branch of the government.”⁵⁸58. Id. at 2333 (quoting Fitzgerald, 457 U.S. at 745).Show More

The key components of the remedial immunity holding in Trump, then, are that the immunity precludes only a particular kind of remedy (criminal prosecution), covers only the official acts of a particular officeholder (the President), and is uncoupled from the lawfulness of the alleged conduct. Recognizing an immunity of this sort does not affect the availability of other remedies for unlawful presidential action (like injunctive relief),⁵⁹59. See generally Schmidt, supra note 22 (exploring the availability of injunctive and declaratory claims against presidential action before and after Trump). Show More or the immunity enjoyed by other officeholders. If the immunity announced by the Trump Court were only of this variety, it would carry no necessary consequences for subordinates.

B. Substantive

Substantive immunities involve questions about whether the legal rule that the plaintiff seeks to enforce against the defendant lawfully applies to the defendant. Intergovernmental immunity, for example, holds that the Supremacy Clause of the Constitution generally bars states from regulating the federal government.⁶⁰60. See United States v. Washington, 142 S. Ct. 1976, 1982 (2022) (“The Constitution’s Supremacy Clause generally immunizes the Federal Government from state laws that directly regulate or discriminate against it.”); id. at 1984 (describing this protection as “the intergovernmental immunity doctrine”).Show More Tracing to the Court’s decision in McCulloch v. Maryland,⁶¹61. 17 U.S. (4 Wheat.) 316 (1819) (holding unconstitutional Maryland’s effort to tax the Bank of the United States).Show More this form of immunity is not about the unavailability of only certain judicial remedies. Instead, it recognizes constitutional limits on the power of states to regulate the federal government. Such state regulation is substantively unconstitutional, without regard to how the state seeks to enforce it.

Supremacy Clause immunity is similar. It bars states from bringing criminal charges against federal officers for acting within their lawful federal authority. The foundational case is In re Neagle, where the Court explained that if a federal officer took an action “which he was authorized to do by the law of the United States, . . . and if in doing that act he did no more than what was necessary and proper for him to do, he cannot be guilty of a crime under [state] law.”⁶²62. 135 U.S. 1, 75 (1890). See generally Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L.J. 2195 (2003) (examining the foundations and exploring the scope of federal officer immunity from state law enforcement).Show More Because of the principle of federal supremacy enshrined in the Supremacy Clause, using state law to punish a federal officer for exercising his federally authorized responsibilities is substantively unconstitutional.

Although we do not typically speak of it in such terms, there is another substantive immunity already established by settled principles of the constitutional separation of powers. The framework laid out in Justice Jackson’s canonical concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer⁶³63. 343 U.S. 579, 634 (1952) (Jackson, J., concurring).Show More is instructive. As he explained, “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.”⁶⁴64. Id. at 635.Show More The President’s authority is at its maximum when he acts “pursuant to the express or implied authorization of Congress”; it is in a somewhat ambiguous “zone of twilight” when he acts in the absence of congressional authorization or prohibition; and it is at its “lowest ebb” when he acts in ways that are “incompatible with the express or implied will of Congress.”⁶⁵65. Id. at 635–37.Show More The last category is the key one for present purposes.

As Justice Jackson emphasized, when the President asserts a power to contravene the will of Congress, his claim “must be scrutinized with caution,” because “what is at stake” with a “[p]residential claim to a power at once so conclusive and preclusive . . . is the equilibrium established by our constitutional system.”⁶⁶66. Id. at 638.Show More Indeed, “[c]ourts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.”⁶⁷67. Id.Show More The Constitution contains no general presumption of executive immunity from congressional regulation. As Justice Amy Coney Barrett recognized in Trump, “Congress has concurrent authority over many Government functions, and it may sometimes use that authority to regulate the President’s official conduct, including by criminal statute.”⁶⁸68. Trump v. United States, 144 S. Ct. 2312, 2352 (2024) (Barrett, J., concurring in part).Show More Accordingly, the President must clear a high bar in order to establish that the Constitution not only empowers him to act in a given area, but that it does so in a way that makes his power “conclusive and preclusive” of congressional regulation.⁶⁹69. See Youngstown, 343 U.S. at 640 (Jackson, J., concurring) (explaining that when the President acts contrary to Congress, his “power [is] most vulnerable to attack and in the least favorable of possible constitutional postures.”). Show More

Yet it has long been understood that there are some limited areas of conclusive and preclusive presidential power. In Youngstown itself, Justice Jackson suggested that the President’s “power of removal” of executive branch officials fell within this category (though he did not specify exactly which categories of officials it covered).⁷⁰70. Id. at 638 n.4. Of course, the scope of the President’s unilateral removal authority is its own immensely important topic. The modern Court views that authority as largely unregulable by Congress. See generally Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2191 (2020) (“‘[A]s a general matter,’ the Constitution gives the President ‘the authority to remove those who assist him in carrying out his duties.’” (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 513–14 (2010))). Show More Other examples include the President’s power to grant pardons for federal criminal offenses⁷¹71. See U.S. Const. art. II, § 2, cl. 1; United States v. Klein, 80 U.S. 128 (1871) (holding that Congress cannot limit the President’s pardon power).Show More and to recognize foreign governments.⁷²72. See Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1 (2015) (holding that the President has the exclusive power to recognize foreign governments).Show More Because these presidential powers are conclusive and preclusive, Congress may not direct the President in how to exercise them.

The Trump majority recognized that if a given presidential power is conclusive and preclusive and thus beyond the power of Congress to regulate, Congress may not criminalize the use of that power. As the Court put it,

Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his ‘conclusive and preclusive’ constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power.⁷³73. Trump, 144 S. Ct. at 2319.Show More

The majority was correct about this general proposition, and the dissenting Justices agreed with it.⁷⁴74. See id. at 2367–68 (Sotomayor, J., joined by Kagan & Jackson, JJ., dissenting) (“The idea of a narrow core immunity might have some intuitive appeal, in a case that actually presented the issue. If the President’s power is ‘conclusive and preclusive’ on a given subject, then Congress should not be able to ‘ac[t] upon the subject.’” (alteration in original) (quoting Youngstown, 343 U.S. at 638)). Justice Sotomayor cited the removal, pardon, and recognition powers as examples. See id.Show More This, then, is a substantive immunity: Legislation purporting to prohibit or impermissibly constrain the President in the exercise of one of his “conclusive and preclusive” powers is substantively unconstitutional, and he is immune from such regulation. Unlike remedial immunities, substantive immunities of this sort have everything to do with the legality of the conduct in question, and of the unenforceability (no matter the remedy) of laws invoked to constrain that conduct.⁷⁵75. One might object that substantive immunity should not be called an immunity at all, that this category of cases simply describes laws that are substantively unconstitutional, and that they are no different in principle from laws that violate some individual right like the First Amendment or the Equal Protection Clause. As I have noted, however, there are other doctrines that travel under the immunity label (intergovernmental immunity and Supremacy Clause immunity) that are based on similarly substantive theories. Thus, I do not think it is anomalous to use the term here. See Schmidt, supra note 22 (manuscript at 10) (surveying different uses of “immunity,” including in ways that cover what I am calling substantive immunity). Moreover, there is one practical consideration that cuts in favor of viewing Trump’s “conclusive and preclusive” rule as an immunity. In cases where it is asserted to apply—that is, in cases where a former President faces prosecution for acts taken within what he claims is a zone of his conclusive and preclusive authority—surely it should be possible to assert the objection at the outset of the case, to seek dismissal of the charges on that basis, and to take an immediate appeal if the trial court refuses to dismiss. But if the absolute immunity recognized in Trump were viewed as merely a defense and not an immunity, it is not obvious that an interlocutory appeal would be available. See Goldsmith, supra note 10, at 13–14 (discussing this issue). Justice Barrett’s concurring opinion in Trump seemed both to acknowledge the potential awkwardness of treating conclusive and preclusive presidential power as an immunity, and to emphasize the importance of it being immediately appealable the way other immunities are. See Trump, 144 S. Ct. at 2352 (Barrett, J., concurring in part) (“The Court describes the President’s constitutional protection from certain prosecutions as an ‘immunity.’ As I see it, that term is shorthand for two propositions: The President can challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment, and he can obtain interlocutory review of the trial court’s ruling.”). If we grant that the denial of a motion to dismiss on these grounds is immediately appealable, I don’t think anything substantive turns on whether it is called an immunity or a defense. So while I am comfortable calling it an immunity for the reasons I have identified, that terminology is not necessary to this Essay’s main claims. Show More

II. Substantive Immunity and Subordinates

A substantive presidential immunity has significant implications for presidential subordinates. Those implications flow from the Court’s well-established precedents and our general understanding of how executive power works.

As a starting point, the Court’s cases make clear that when the President directs a subordinate to effectuate a power that belongs to the President, the subordinate’s actions are understood as an exercise of presidential power. Youngstown is illustrative. There, President Truman issued an executive order directing the Secretary of Commerce to take possession of most of the nation’s steel mills and to keep them running. The Secretary implemented that order by issuing “his own possessory orders, calling upon the presidents of the various seized companies to serve as operating managers for the United States.”⁷⁶76. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 583 (1952).Show More The companies “[o]bey[ed] the Secretary’s orders under protest” while also filing suit “against him in the District Court.”⁷⁷77. Id.Show More But the fact that the Secretary was the one being sued, and that the orders that the companies were challenging were his, did not affect the constitutional analysis. The Secretary was understood to be acting at the direction of the President to effectuate an assertion of power by the President.⁷⁸78. See id. at 583–84 (describing the case as involving a challenge to “the Secretary’s orders,” then framing the substantive question in the case as, “is the seizure order within the constitutional power of the President?”).Show More All members of the Court approached the case on that basis—as a case about presidential power, not the power of the Secretary of Commerce.

Youngstown is no anomaly. As noted at the beginning of this Essay, it is well understood that the President cannot personally exercise all the powers and fulfill all the responsibilities assigned to him by the Constitution and laws, and so he must act through his subordinates.⁷⁹79. See supra note 2 and accompanying text. Although the Court’s unitary executive precedents treat the President’s power to direct his subordinates as inherent to “the executive Power” granted to him by the Constitution, Congress has also provided statutory authorization. See 3 U.S.C. § 301 (“[The President] is authorized to designate and empower the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform . . . any function which is vested in the President by law.”).Show More When he directs his subordinates to effectuate power that he asserts for himself, the legal analysis of the subordinates’ actions will focus on the President’s power.⁸⁰80. Multiple Supreme Court cases reflect this understanding. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (Secretary of Defense asserting presidential authority to convene military commissions); Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (Secretary of Defense asserting presidential authority to detain enemy combatants); Dames & Moore v. Regan, 453 U.S. 654 (1981) (Secretary of the Treasury asserting presidential authority under the International Economic Emergency Powers Act (and otherwise)); Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (Secretary of the Interior asserting presidential power under the National Industrial Recovery Act).Show More This is especially important in the context of suits for injunctive relief. The Court is, at a minimum, highly reluctant to enjoin the President directly.⁸¹81. See Franklin v. Massachusetts, 505 U.S. 788, 802–03 (1992) (citing United States v. Nixon, 418 U.S. 683 (1974), to confirm that “the President may be subject to a subpoena to provide information relevant to an ongoing criminal prosecution,” but observing that, “in general ‘this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.’” (quoting Mississippi v. Johnson, 71 U.S. 475, 501 (1866))). For a persuasive argument that injunctive relief targeting the President should not be categorically foreclosed, see Schmidt, supra note 22.Show More But as Justice Scalia explained in a concurring opinion in Franklin v. Massachusetts, the unavailability of injunctive relief directly against the President does not “in any way suggest[] that Presidential action is unreviewable. Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President’s directive . . . .”⁸²82. Franklin, 505 U.S. at 828 (Scalia, J., concurring in part and concurring in the judgment).Show More That approach depends on an understanding that when presidential subordinates act to implement presidential directives, courts will evaluate their actions as exercises of presidential power.

It follows, then, that when subordinates act to effectuate presidential powers that are conclusive and preclusive, the subordinates are no more subject to legislative or judicial constraint than is the President himself. Consider the Court’s 2014 decision in Zivotofsky v. Kerry.⁸³83. 576 U.S. 1 (2015).Show More There, the Court held that the power to recognize a foreign state belongs to “the President alone,” and therefore that Congress cannot “command” the President “to issue a formal statement that contradicts” his own exercise of that power.⁸⁴84. Id. at 21, 5.Show More On that basis, the Court held unconstitutional a federal statute providing that, when issuing a U.S. passport, “‘the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel’ for a ‘United States citizen born in the city of Jerusalem.’”⁸⁵85. Id. at 29 (alteration in original) (quoting 116 Stat. 1366).Show More As the Court explained:

The statute require[d] the President, through the Secretary, to identify citizens born in Jerusalem who so request as being born in Israel. But according to the President, those citizens were not born in Israel. As a matter of United States policy, neither Israel nor any other country is acknowledged as having sovereignty over Jerusalem. In this way, [the statute] directly contradicts the carefully calibrated and longstanding Executive branch policy of neutrality toward Jerusalem.⁸⁶86. Id. The position of the United States on the status of Jerusalem changed significantly during the first Trump Administration. The United States now understands Jerusalem to be part of Israel. See Proclamation No. 9683, 82 Fed. Reg. 58331 (Dec. 6, 2017) (recognizing Jerusalem as the capital of Israel and relocating the United States Embassy to Israel to Jerusalem).Show More

The key for our purposes is that the statute in Zivotofsky did not impose any obligations directly on the President; it regulated the Secretary of State. But that did not stop the Court from seeing that the President’s recognition power was implicated. The statute “require[d] the President, through the Secretary,” to take actions that would contradict the President’s exercise of the recognition power.⁸⁷87. Zivotofsky, 576 U.S. at 29 (quoting 116 Stat. 1366).Show More The constitutional analysis did not differ just because the statute formally targeted the Secretary for regulation, rather than the President himself. And having concluded that the statute impermissibly infringed on the President’s conclusive and preclusive recognition power, the Court held the statute unenforceable against the Secretary.

It is important to see that the Court’s approach in Zivotofsky and Justice Scalia’s observation in Franklin do not conflict. The fact that courts are reluctant to enjoin the President directly but often enjoin his subordinates for essentially the same conduct should be understood as a difference in remedial, not substantive, immunity. As Justice Barrett observed in her Trump concurrence, “the Constitution does not vest every exercise of executive power in the President’s sole discretion. Congress has concurrent authority over many Government functions, and it may sometimes use that authority to regulate the President’s official conduct.”⁸⁸88. 144 S. Ct. at 2352 (Barrett, J., concurring in part) (citation omitted).Show More In such cases, treating presidential subordinates as subject to injunctive relief for violating relevant statutes while treating the President as immune is a difference in remedial immunity, akin to the difference between qualified and absolute immunity when it comes to civil damages.⁸⁹89. See supra notes 42–46 and accompanying text.Show More But the fact that executive subordinates (and not the President) are generally subject to the injunctive power of the courts does not establish a basis for treating subordinates and the President differently when it comes to the President’s conclusive and preclusive powers. That is the point underscored by Zivotofsky. The Secretary of State is not generally immune from the injunctive power of the courts, even when acting to implement presidential powers that are regulable by Congress. But when he acts to implement a conclusive and preclusive presidential power like the recognition power, the Secretary is just as insulated from congressional regulation and judicial remedies as is the President himself.⁹⁰90. For this reason, I think Judge Katsas was partially right and partially wrong in his recent dissenting opinion in Dellinger v. Bessent, No. 25-5028, 2025 WL 559669 (D.C. Cir. Feb. 15, 2025). The case challenged President Trump’s unilateral removal (acting through the Presidential Personnel Office) of Special Counsel Dellinger, despite a statutory restriction providing that “[t]he Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. § 1211(b). The key issue was the scope of the President’s conclusive and preclusive power of removal, and whether the statute conflicted with that power. See infra notes 102–03 and accompanying text (discussing that power). If the statute ran afoul of that power, then the fact that the suit sought to enjoin the presidential subordinate through whom the President effected Dellinger’s removal would not change the analysis. The panel majority seems to have missed this point. Instead, it acknowledged that, under Franklin and the earlier case Mississippi v. Johnson, 71 U.S. 475 (1866), the President generally may not be enjoined directly, and it responded by stressing that “a court can unquestionably review the legality of the President’s action by enjoining the officers who would attempt to enforce the President’s order.” 2025 WL 559669 at *6 n.1 (citing Youngstown as an example). But as I have explained, the general availability of injunctive relief against presidential subordinates does not address circumstances where a subordinate is implementing the President’s conclusive and preclusive powers. In those circumstances, the subordinate is no more enjoinable for their acts than the President would be if he took the action himself. Judge Katsas correctly recognized that point. See Dellinger, 2025 WL 559669 at *13 n.2 (Katsas, J., dissenting). At the same time, Judge Katsas seems to have suggested that the general unavailability of an injunction directly against the President means that subordinates are also not enjoinable for implementing the President’s will, no matter the nature of the presidential power at issue. He observed, for example, that the Temporary Restraining Order in the case “necessarily targets the President—the only official with the statutory and constitutional authority to appoint, remove, and supervise the Special Counsel.” Id. (emphasis added). By definition, a power conferred on the President by statute cannot be conclusive and preclusive of congressional regulation. Thus, if all that were at issue in the case were a statutory presidential power (or a constitutional presidential power that is not conclusive and preclusive), the fact that the President could not be enjoined with respect to that power would not bar an injunction against his subordinates. To the extent Judge Katsas meant to suggest otherwise, he was mistaken. Show More

Equally important, the link between the President and his subordinates discussed here is not confined just to certain judicial remedies. If the President may not be enjoined by the courts to comply with a statute that impermissibly interferes with his conclusive and preclusive powers, then neither may his subordinates when they act to effectuate that power.⁹¹91. See Zivotofsky, 576 U.S. at 21 (holding that Congress may not interfere with the Secretary of State’s implementation of an exclusive Executive power).Show More And if (as Trump recognized) “[i]t follows that an Act of Congress . . . may not criminalize the President’s actions within his exclusive constitutional power,”⁹²92. Trump, 144 S. Ct. at 2319.Show More then it follows that his subordinates also may not be prosecuted for helping him execute that exclusive power.⁹³93. The Justice Department’s Office of Legal Counsel has long recognized the same basic point. See Prosecution for Contempt of Cong. of an Exec. Branch Off. Who Has Asserted a Claim of Exec. Privilege, 8 Op. OLC 101, 140 (1984) (“[T]he Constitution does not permit Congress to make it a crime for an official to assist the President in asserting a constitutional privilege that is an integral part of the President’s responsibilities under the Constitution.”).Show More

Remedial immunities are typically a function of the particular actor and remedy at issue. Substantive immunities are not. They are a function of the unregulability of the underlying conduct. Thus, when it comes to the substantive immunities flowing from the President’s conclusive and preclusive powers, they insulate the President’s subordinates just as much as they insulate him.

***

There is a critical caveat to the link between Presidents and their subordinates explored in this Part. As just discussed, when a subordinate acts at the President’s behest to effectuate a presidential power, the subordinate’s actions will be evaluated as an exercise of that presidential power. The premise of that understanding is that the subordinate is, in fact, acting at the President’s direction. If they are not—if they are acting without presidential direction on authority they claim the law has given to them, or if they are illegitimately invoking presidential power, without any delegation or direction from the President—then they should not be understood to be exercising the President’s powers. The link between the President and his subordinates, in other words, should not be understood to protect rogue subordinates.⁹⁴94. I thank Tom Schmidt for raising this point with me. It raises the question of how the subordinate can show that they acted at the President’s direction. If the action in question is challenged in court as it is happening—with the plaintiff seeking an injunction against the subordinate in their official capacity—the Department of Justice will presumably defend against the action and cite the President’s direction as the basis for its legality. To be sure, the Court in Trump held that in a criminal prosecution of a former President, courts may not “scrutiniz[e]” “official conduct for which the President is immune,” even if the charges in the case focus on the President’s unofficial conduct for which he has no immunity. 144 S. Ct. at 2341. Whatever the merits of that position, it need not be understood to preclude the courts from admitting evidence submitted by a (current or former) President to establish that he directed a subordinate to take certain actions to effectuate the President’s own powers. Put another way, the evidentiary privilege discussed in Trump is best understood to be waivable by the President if he wants evidence of his interactions with his subordinates to be admitted in evidence. Cf. Carroll v. Trump, 88 F.4th 418, 425–29 (2d Cir. 2023) (holding presidential immunity from civil damages under Nixon v. Fitzgerald is waivable). However, if the litigation against the subordinate is a civil damages suit or criminal prosecution after the subordinate has left office, it is conceivable that the (now former) President might not be willing to shoulder the weight of telling the court that he directed the subordinate to act. If so, and if the subordinate has no other way to establish that they acted at the President’s direction, the court may conclude that the subordinate’s actions do not constitute exercises of the President’s power.Show More

III. Conclusive and Preclusive Substantive Immunity in Trump

The problem with Trump’s account of conclusive and preclusive substantive immunity is not its recognition of the concept. As noted in Part I,⁹⁵95. See supra notes 73–74 and accompanying text.Show More everyone on the Court agreed with the general idea that the President possesses some authorities that are so exclusively his as to be beyond the power of Congress or the courts to regulate. Instead, the problem with Trump lies in what it said about the content of the President’s purported conclusive and preclusive power over law execution.

The Trump indictment generally “alleged that after losing [the 2020 presidential] election, Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results.”⁹⁶96. Trump, 144 S. Ct. at 2324.Show More Of greatest interest for present purposes, it charged that Trump tried to “leverage the Justice Department to use deceit to get state officials to replace legitimate electors and electoral votes with [Trump’s].”⁹⁷97. Indictment, United States v. Trump, No. 1:23-cr-00257-TSC, 27 (D.D.C. Aug. 1, 2023) (capitalization in heading omitted).Show More The indictment alleged that those actions violated multiple federal statutes, including those prohibiting fraud against the United States,⁹⁸98. 18 U.S.C. § 371.Show More obstructing an official proceeding and conspiring and attempting to do so,⁹⁹99. 18 U.S.C. § 1512(c)(2), (k).Show More and conspiring to interfere with the exercise of constitutional rights.¹⁰⁰100. 18 U.S.C. § 241.Show More

The Court held that all of those charges implicated the President’s conclusive and preclusive authority. Here is the bulk of what it said on that score:

Investigation and prosecution of crimes is a quintessentially executive function. . . . The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed.’ And the Attorney General, as head of the Justice Department, acts as the President’s chief law enforcement officer who provides vital assistance to [him] in the performance of [his] constitutional duty to preserve, protect, and defend the Constitution. . . .

Investigative and prosecutorial decisionmaking is the special province of the Executive Branch, and the Constitution vests the entirety of the executive power in the President. . . .

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.¹⁰¹101. Trump, 144 S. Ct. at 2334–35 (quoting U.S. Const. art. II, § 3) (citations omitted).Show More

There are a number of large and undefended steps in this analysis, but the rationale appears to be sweeping.

To be sure, the idea that some aspects of the President’s interactions with the Justice Department might fall within his exclusive authority is not novel. Under Seila Law and the Court’s other removal precedents, the President generally has unfettered power to remove high-ranking executive officials whom he has appointed.¹⁰²102. See Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2191 (2020) (“‘[A]s a general matter,’ the Constitution gives the President ‘the authority to remove those who assist him in carrying out his duties.’” (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 513–14 (2010))).Show More Thus, Trump could not be prosecuted simply for threatening to remove (or, had he done it, actually removing) the Acting Attorney General for refusing to go along with efforts to advance Trump’s election subversion plans.

The Trump majority went much further. It announced that the President has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.”¹⁰³103. 144 S. Ct. at 2335.Show More And when describing conclusive and preclusive presidential powers generally, the Court said that the “authority of the President ‘disabl[es] the Congress from acting upon the subject.’”¹⁰⁴104. Id. at 2327 (alteration in original) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (1952)).Show More Under the logic of Trump, therefore, it appears that Congress cannot “ac[t] upon” the Justice Department’s “investigative and prosecutorial” functions at all.

That is breathtaking. It is one thing to observe that the President has broad power to supervise the functioning of the Justice Department. But it is quite another to say that all presidentially-directed law enforcement actions are within the President’s unfettered discretion, even if they violate otherwise applicable laws.¹⁰⁵105. I am sympathetic to efforts to cabin the Court’s reasoning on this point. Gillian Metzger, for example, has suggested that Trump should perhaps be understood to say that the President has the conclusive and preclusive authority to communicate with Justice Department officials about how to enforce the law, but that those officials’ subsequent actions implementing the President’s directions should be deemed subject to regulation. See Gillian E. Metzger, Disqualification, Immunity, and the Presidency, 138 Harv. L. Rev. F. 112, 134 (2025). I’m afraid that I don’t see how that limitation can be squared with what the Trump majority actually said. As noted above, the Court said the President has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” 144 S. Ct. at 2335. That goes well beyond a power to talk with relevant officials about enforcement priorities; it goes to the power to control how the law is actually enforced. As I discuss infra in Part V, I do think there are ways to limit Trump’s impact even within the framework of conclusive and preclusive power that it embraces. But as long as Trump remains in place, I don’t think it can be done by confining the President’s power just to discussions with his subordinates about how to execute the law.Show More As Justice Sotomayor observed, by the majority’s reasoning, “even fabricating evidence and insisting the Department use it in a criminal case” could fall within the President’s conclusive and preclusive authority, and thus be immunized from any legislative restriction.¹⁰⁶106. Trump, 144 S. Ct. at 2368 (Sotomayor, J., dissenting).Show More Tellingly, the majority nowhere disclaimed that consequence or provided any reason for resisting it.

To make matters worse, the Trump majority also gestured towards the President’s constitutional responsibility to “take Care that the Laws be faithfully executed” as a basis for his conclusive and preclusive immunity.¹⁰⁷107. See id. at 2335 (“The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to ‘take Care that the Laws be faithfully executed.’” (quoting U.S. Const. art. II, § 3)).Show More That responsibility is not limited to the activities of the Justice Department; it stretches across all law execution. The majority thus seems to have said that the President is not subject to any legislative restriction (through the criminal law or otherwise) of any of his interactions with any executive official who has any role in law execution, no matter the context, no matter the purpose, no matter the result.¹⁰⁸108. See Goldsmith, supra note 10, at 14 (The Trump Court’s “logic appears to disable Congress from punishing the President for firing or threatening to fire a subordinate official in an effort to facilitate any crime.”); Lederman, supra note 14 (noting that numerous federal laws “provide that DOJ officials . . . may not corruptly alter, destroy or conceal documents to prevent them from being used in an official proceeding; may not suborn others to commit perjury; and may not bribe or threaten witnesses,” but then observing that, according to Trump, “Congress may not prohibit the President from directing DOJ officials to abuse their statutory authorities for unlawful ends”). Show More That would upend a great deal of settled caselaw recognizing, for example, that “Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities or by circumscribing an agency’s power to discriminate among issues or cases it will pursue.”¹⁰⁹109. Heckler v. Chaney, 470 U.S. 821, 833 (1985).Show More

The more conventional understanding would have been that Congress—whose legislation creates, authorizes, and funds all executive departments and agencies—and the President each have some authority in this space, and that they overlap in ways that make some aspects of the President’s interactions with his subordinates (and their subsequent conduct) subject to congressional regulation.¹¹⁰110. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring) (recognizing “a zone of twilight in which [the President] and Congress may have concurrent authority”). Show More The President undoubtedly has significant power to direct the Justice Department and other law enforcement agencies in the exercise of their enforcement discretion. Direct legislative attempts to cabin that discretion have been treated warily by the Court.¹¹¹111. See, e.g., United States v. Texas, 143 S. Ct. 1964, 678–79 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207 (2021))). Show More Yet Congress surely possesses considerable authority to affect the Justice Department’s activities. Congress, after all, created the Department by legislation.¹¹²112. See An Act to Establish the Department of Justice, 16 Stat. 162 (1870).Show More It decides which powers to give to the Department. It determines the Department’s budget, and, if it wants, how that budget shall be allocated across the Department’s various functions.¹¹³113. See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 500 (2010) (“Congress has plenary control over the salary, duties, and even existence of executive offices.”).Show More That includes the power to specify that certain funds may be used for certain activities (including to enforce certain laws), and not others. In all these ways and myriad others, Congress has an enormous role in structuring the Department’s enforcement of the law.¹¹⁴114. As Shalev Roisman puts it, “decisions by Congress about how to structure the executive branch—by creating principal and inferior offices and departments and granting them specific powers as it sees fit—quite obviously interfere with the President’s control over law execution.”Through these acts, “Congress is telling the President which officers are in charge of what and which departments they sit in. This is hardly a system where the President is exclusively in charge of how to execute the law.” Shalev G. Roisman, President Trump in the Era of Exclusive Powers, Harv. L. Rev. (Apr. 12, 2025), https://harvardlawreview.org/blog/2025/04/president-trump-in-the-era-of-exclusive-powers [https://perma.cc/63AR-4CT3].Show More It seems unthinkable that Trump simply swept all that aside. Yet the majority opinion contains no language protecting against that result.

Moreover, until Trump, even the Court’s most pro-unitary executive holdings had not suggested that the President’s power to execute the laws includes the power to take actions that Congress has said no one may take. As then-Judge Alito explained during his Supreme Court confirmation hearings, a move of that sort tends to confuse questions about who controls the exercise of executive power with the scope of executive power itself.¹¹⁵115. In Alito’s words, “the scope of Executive power” is “very different” from the question, “when you have a power that is within the prerogative of the Executive, who controls the Executive?” Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 351–52 (2006) (statement of Samuel A. Alito, J., United States Court of Appeals for the Third Circuit). See John Harrison, The Unitary Executive and the Scope of Executive Power, 126 Yale L.J. F. 374 (2017) (discussing this distinction as drawn by Alito). Show More As to the latter, the longstanding understanding has been that in taking care that the laws are faithfully executed, the President “cannot control the statute, nor dispense with its execution, and still less can he authorize a person to do what the law forbids. If he could, it would render the execution of the laws dependent on his will and pleasure.”¹¹⁶116. United States v. Smith, 27 F. Cas. 1192, 1230 (C.C.D.N.Y. 1806) (No. 16,342) (Patterson, J.); see Kendall v. U.S. ex rel. Stokes, 37 U.S. 524, 613 (1838) (“To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible.”).Show More It is hard to believe that a majority of the Court now thinks the President possesses such power. Yet the literal holding of Trump is that the President may violate statutory prohibitions on defrauding the United States, obstructing official proceedings, and conspiring to interfere with constitutional rights and then successfully claim substantive immunity, on the ground that the violations all happened in the exercise of his conclusive and preclusive power over law execution.

The new Trump Administration, for its part, is seizing the opportunity. Unsurprisingly, it has invoked Trump’s discussion of the removal power when defending Trump’s summary firings of various executive officials.¹¹⁷117. See, e.g., Memorandum in Support of Defendants’ Motion for Summary Judgment and in Opposition to Plaintiff’s Motion for Preliminary Injunction and Summary Judgment at 7, Grundmann v. Trump, No. 1:25-cv-00425 (D.D.C. Feb. 25, 2025); Emergency Motion for a Stay Pending Appeal at 17–18, Harris v. Bessent, No. 25-5055 (D.C. Cir. Mar. 4, 2025).Show More But it is not stopping there. For example, in a pair of cases challenging an executive order directing federal agencies to condition federal funds on recipients’ refusal to provide gender-affirming care to minors, the Administration has argued that “[t]he President has the constitutional authority to direct his subordinates to pursue a general policy goal,” and that, under Trump, “[f]ederal courts cannot superintend—let alone proscribe—that policy direction.”¹¹⁸118. Defendant’s Memorandum in Opposition to Plaintiffs’ Motion for a Temporary Restraining Order at 8–9, PFLAG, Inc. v. Trump, No. 8:25-cv-337 (D. Md. Feb. 11, 2025). Show More Although it has not yet said so in so many words, the Administration may be inching in the direction of arguing that Trump places presidential orders about law execution categorically beyond the power of courts to review.

***

A year before it decided Trump, the Court in United States v. Texas¹¹⁹119. 143 S. Ct. 1964 (2023).Show More held that a state lacked standing to challenge a federal immigration policy for violating a law that, the state claimed, required the Executive to arrest a broad category of removable noncitizens. The majority opinion couched part of its analysis in respect for the Executive’s inherent prosecutorial discretion, though it allowed that Congress likely could constrain and channel that discretion in certain ways.¹²⁰120. See id. at 1973 & n.4.Show More Even with that allowance, Justice Alito was appalled. Dissenting for himself alone, he accused the Court of tacitly accepting a “grossly inflated conception of ‘executive Power,’ which seriously infringes the ‘legislative Powers’ that the Constitution grants to Congress.”¹²¹121. Id. at 1990 (Alito, J., dissenting) (citations omitted).Show More He did not stop there:

What the majority has done is to apply Oliver Wendell Holmes’s bad-man theory of the law to the separation of powers. Under Holmes’s theory, as popularly understood, the law consists of those things that a bad man cannot get away with. Similarly, the majority’s understanding of the “executive Power” seems to be that a President can disobey statutory commands unless Congress, by flexing its muscles, forces capitulation. That is not the Constitution’s conception of “the executive Power.” The Constitution, instead, requires a President to “take Care that the Laws be faithfully executed.”¹²²122. Id. at 2002 (footnote omitted) (citations omitted).Show More

There is more than a little tension between this position and the Trump majority opinion that Justice Alito joined the following year. But hypocrisy aside, whatever one makes of the bad-man accusation in United States v. Texas, surely in Trump it has run amok. If the law constraining the President describes the things he “cannot get away with,” Trump seems to suggest that there is very little law left when it comes to the President and law execution.

None of this was necessary to the outcome the Trump Court was evidently determined to reach. The Court could have covered the charges relating to law execution with the remedial official-act immunity it recognized for the President, with no broader implications for executive power or executive subordinates. But because the Court insisted on declaring law execution a matter of the President’s conclusive and preclusive power, and because, as described in Part II, that substantive immunity radiates to subordinates executing the President’s will, the potentially sweeping implications just discussed all apply to the President’s subordinates as well.

The only viable way to limit those implications is to put boundaries on the President’s authority over law execution. Although the Trump majority did not explicitly recognize any meaningful boundaries in that area, it may be possible to identify some even within the general framework of conclusive and preclusive presidential powers. Part V considers some possibilities along those lines. But first, the next Part applies Trump’s account of the President’s power over law execution to his subordinates.

IV. Trump’s Implications for Subordinates

As we have seen, presidential immunity has implications for subordinate immunity when it is substantive, deriving from a presidential power that qualifies as conclusive and preclusive within the Youngstown framework. We can organize Trump’s implications for subordinates accordingly.

A. Subordinate Actions Implementing the President’s Power Over Law Execution

Some of Trump’s implications for subordinates are easy to see. The Court was explicit that the President may not be prosecuted for conspiring with Justice Department officials to open “sham” investigations and prosecutions.¹²³123. Trump v. United States, 144 S. Ct. 2312, 2335 (2024).Show More That necessarily means that the Justice Department officials with whom he conspires also may not be prosecuted for participating in the sham, to the extent they are acting at his direction to effectuate his conclusive and preclusive power. Justice Sotomayor went further and argued that the President now may not be prosecuted for “fabricating evidence and insisting the Department use it in a criminal case” in an effort to advance a sham.¹²⁴124. Id. at 2368 (Sotomayor, J., dissenting).Show More The majority did not deny that accusation, though it is possible the Court would find a way to avoid that result. But if Justice Sotomayor was correct in her accusation, then the investigators and prosecutors who fabricated the evidence at the President’s behest likewise may not be prosecuted. This follows straightforwardly from the way the Court has always grouped presidential subordinates together with the President when it comes to analyzing conclusive and preclusive presidential power.

Moreover, given Trump’s reliance on the Take Care Clause,¹²⁵125. See id. at 2334–35.Show More there is no obvious basis for confining things just to the activities of the Justice Department. To take just one example, a provision of the Internal Revenue Code makes it unlawful for certain executive officials (including the President and Vice President, anyone employed by their respective offices, and any member of the Cabinet other than the Attorney General) “to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.”¹²⁶126. 26 U.S.C. § 7217(a), (e).Show More There is at least a very colorable argument that Trump immunizes the President for violating that statute in exercise of his conclusive and preclusive power to execute the law. If it does, then if a Cabinet member or anyone in the President’s or the Vice President’s office (i.e., any other official covered by the statute) makes the prohibited request at the President’s direction, that official is likewise immune.

Next, recall that substantive immunities are not remedy-specific. They derive from the substantive unenforceability (by whatever means) of the underlying law against the defendant. Thus, to the extent the President is immune from criminal prosecution in all of the above scenarios, he is also immune from any other form of congressional regulation or judicially imposed remedy (specifically, civil damages and equitable remedies like injunctions). In the case of the President, this is not all that significant since he was already immune from civil damages for actions falling within the outer perimeter of his official responsibility,¹²⁷127. See Nixon v. Fitzgerald, 457 U.S. 731, 755–57 (1982).Show More and he was probably safe from an injunction since courts are extremely reluctant to enjoin the President directly.¹²⁸128. See Franklin v. Massachusetts, 505 U.S. 788, 802–03 (1992).Show More

For the President’s subordinates, however, the implications are significant. Outside the President’s conclusive and preclusive authority, personal immunities for executive officials are generally remedial in nature. They are specific to the remedy, officer, and function at issue, and they are typically not absolute. As discussed in Parts I and II, the President’s subordinates generally enjoy only qualified immunity from civil suits for damages and no immunity at all from suits for injunctive relief. The latter are particularly important as a means of ensuring the basic requirement that the government operate lawfully. But because Trump instructs that the President’s immunity with respect to law execution is a matter of his conclusive and preclusive power, that immunity must radiate to his subordinates as well. Thus, if the various illegal shams and reprisals hypothesized above all fall within the President’s unregulable authority, then his subordinates cannot be sued for money damage or injunctive relief for participating in any of them.¹²⁹129. Harlow v. Fitzgerald, 457 U.S. 800 (1982), is not to the contrary. That decision set the general level of civil damages immunity for executive subordinates. See id. at 819. It did not consider the special case of when subordinates act to effectuate a conclusive and preclusive presidential power. Show More Their actions “cannot [be] act[ed] on” by Congress, and “courts cannot examine” them.¹³⁰130. Trump, 144 S. Ct. at 2328.Show More

What other remedies might be affected? One possibility for government lawyers is disbarment and other forms of bar discipline. Wholly apart from criminal or civil damages liability, the prospect of disbarment could be a significant deterrent to participating in the schemes of a lawless President.¹³¹131. See, e.g., Bruce E. Yannett, Prosecutors Seeking ‘Retribution’ for Trump Can Be Disbarred, Wash. Post (Feb. 26, 2025), https://www.washingtonpost.com/opinions/2025/02/26/justice-prosecutors-trump-enemies-states [https://perma.cc/4WCE-DH6T] (opining on the risks that prosecutors in the Department of Justice might face if they engage in politically-motivated prosecutions). Show More But in at least some cases, those sanctions may not survive Trump.

Until the late 1990s, there were questions about the extent to which federal lawyers were bound by state bar disciplinary rules. In 1985, for example, the Justice Department’s Office of Legal Counsel (OLC) opined that “[r]ules promulgated by state courts or bar associations that are inconsistent with the requirements or exigencies of federal service may violate the Supremacy Clause.”¹³²132. State Bar Disciplinary Rules, 9 Op. O.L.C. 71, 71 (1985). Show More But in 1998, Congress passed the McDade Amendment, which provides that government attorneys are “subject to State laws and rules . . . governing attorneys in each State where such attorney[s] engage in [their] duties, to the same extent and in the same manner as other attorneys in that State.”¹³³133. 28 U.S.C. § 530B(a). See United States v. Grass, 239 F. Supp. 2d 535, 539 (M.D. Pa. 2003) (“In the past, significant debate surrounded the issue of whether state rules of professional responsibility apply at all to federal prosecutors. However, in 1998, Congress eliminated all doubt regarding this issue by enacting what is commonly referred to as the McDade Amendment.” (citation omitted)). The District of Columbia Court of Appeals has held that the District counts as a state for purposes of the McDade Amendment. See In re Clark, 311 A.3d 882, 888 (D.C. 2024). Show More That effectively ended any Supremacy Clause-based arguments against subjecting federal attorneys to state disciplinary rules, since federal law now subjected them to it.

Trump’s discussion of the President’s power over law execution poses a new challenge. If neither the President nor his subordinates acting at his direction may be subject to criminal or civil sanction for their conduct in this area, it is difficult to see how his lawyer-subordinates could be subject to professional discipline for the same. If the President depends on his subordinates to effectuate his power over law execution, imposing bar sanctions on those subordinates for doing so could impede the exercise of the President’s power. And that is exactly what Trump said Congress and the courts may not do.¹³⁴134. See Trump, 144 S. Ct. at 2327 (“The exclusive constitutional authority of the President ‘disabl[es] the Congress from acting upon the subject.’ And the courts have ‘no power to control [the President’s] discretion’ when he acts pursuant to the powers invested exclusively in him by the Constitution.” (alterations in original) (first quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38; then quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803)).Show More Thus, it would appear that the President’s conclusive and preclusive constitutional authority over law execution must preclude enforcement of state disciplinary rules (whether via the McDade Amendment or directly on their own), just as the President’s exclusive power of recognition precluded enforcement of the statute at issue in Zivotofsky against the Secretary of State.¹³⁵135. This could have significant implications for the still-pending D.C. Bar disciplinary proceeding against Jeffrey Clark, who served as Acting Assistant Attorney General during the final months of the first Trump Administration and who aided Trump in his (otherwise unlawful and obviously abusive) attempt to pressure state-level election officials to change the outcome of the election. See In re Clark, 311 A.3d at 884 (reciting facts of the proceeding). In July 2022, the D.C. Bar’s Office of Disciplinary Counsel filed disciplinary charges against Clark in relation to those activities. Clark asserted immunity under Trump, and in August 2024 the Hearing Committee of the D.C. Bar’s Board on Professional Responsibility rejected the assertion, reasoning that “Trump does not discuss immunity of Executive Branch employees for criminal liability, much less immunity from disciplinary sanction.” Rep. and Recommendation of Hearing Com. No. Twelve at 148, In re Clark, (D.C. Bd. on Pro. Resp. Aug. 1, 2024), https://statesunited.org/wp-content/uploads/2024/08/2024-08-01-issuance-letter-and-report-and-recommendation-of-hearing-committee-number-twelve.pdf [https://perma.cc/AV9Z-ULFE]. The Board’s analysis treated Trump immunity as purely remedial (though it did not use that terminology) and thus as confined only to the President himself, and with respect only to criminal immunity. But for the reasons advanced in this Essay, to the extent the underlying conduct involved matters within the President’s conclusive and preclusive authority, the resulting immunity is neither actor- nor remedy-specific, and (at least very arguably) covers subordinates like Clark as well. Show More

B. Subordinate Actions Implementing Other Presidential Powers

Trump’s discussion of conclusive and preclusive immunity focused on the President’s authority over law enforcement—principally criminal investigations and prosecutions, but also law execution more broadly. But of course, the Constitution grants the President a number of other powers, and questions of subordinate immunity could potentially arise with each of them. As noted above, in each case the key question is whether the presidential power in question is conclusive and preclusive within the meaning of the Youngstown framework.

Consider the most prominent hypothetical raised during the course of the Trump litigation: May the President be prosecuted (or, we might add, face any other judicial remedy) for ordering Navy Seal Team Six to assassinate a political rival? And critically for purposes of this Essay, may any of the Seals involved in the operation themselves be prosecuted (or face any other legal sanction) for their actions?

The question first arose during oral argument before the D.C. Circuit. Trump’s lawyer (now the Solicitor General, D. John Sauer) suggested that the President would indeed be immune from prosecution for directing the military to assassinate a political rival.¹³⁶136. See David A. Graham, A Thought Experiment About SEAL Team 6 Goes Terribly, Terribly Wrong, The Atlantic (Jan. 9, 2024), https://www.theatlantic.com/ideas/archive/2024/01/trump-presidential-immunity-trial/677068 [https://perma.cc/7GGA-RJ2T] (describing the oral argument).Show More The Supreme Court majority did not take up the hypothetical, but Justice Sotomayor accused the majority of providing the same answer as Sauer.¹³⁷137. Trump, 144 S. Ct. at 2371 (Sotomayor, J., dissenting) (opining that, according to the majority, if the President wields “his official powers in any way, . . . he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”).Show More She reached that conclusion by focusing on the majority’s analysis of the President’s official-act immunity, which, as noted above,¹³⁸138. See supra notes 52–59 and accompanying text.Show More is a remedial immunity that applies only to the President and not to his subordinates. So even if Justice Sotomayor were correct in her account of the President’s official-act immunity under Trump (which would depend on whether she’s right that the majority’s nominally presumptive standard for official-act immunity is actually irrefutable and thus effectively absolute), it would not apply to the Seals.¹³⁹139. See Schmidt, supra note 22, at 50 n.364 (arguing on this basis that the Seals could be prosecuted).Show More

The answer would be different, however, if the President’s assassination order were thought to be an exercise of conclusive and preclusive presidential power. If it were, the resulting immunity would preclude any and all judicial remedies, and it would cover not just the President but also the Seals. Could the assassination order be understood to be within the President’s conclusive and preclusive power? Jack Goldsmith persuasively argues no.¹⁴⁰140. See Goldsmith, supra note 10, at 33–34 n.146 (explaining why “the assassination order would almost certainly not be an exclusive presidential power”).Show More The Supreme Court has never suggested that the President has any such power. Indeed, even in its most extreme pro-executive opinions, OLC has not concluded that the President’s power to use military force is entirely conclusive and preclusive.¹⁴¹141. Goldsmith, supra note 10, at 33 n.146 (“[I]n any event OLC has recognized that the President’s offensive war power is not exclusive, though it once without analysis asserted that Congress could not limit the President’s self-defensive reactions to the 9/11 terrorist attacks.” (citations omitted)).Show More If it is not, the Seals in the hypothetical likely could not claim immunity.

Having said that, the new Trump Administration has asserted a rather remarkable presidential authority to interpret the law for the entire Executive Branch on potentially every legal question that might arise within it.¹⁴²142. See Ensuring Accountability for All Agencies, Exec. Order No. 14215, 90 Fed. Reg. 10447, 10448–49 (Feb. 18, 2025) (asserting that the President and Attorney General determine their employee’s official stances on questions of law and that “[n]o employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law”).Show More If a President were truly intent on ordering the assassination of a political or personal enemy, he might well be prepared to announce a new and broader legal theory of exclusive presidential authority to use military force, and to direct everyone in the Executive Branch to follow it. Or he might simply appoint an Attorney General or an Assistant Attorney General for OLC who is prepared to write a legal opinion going beyond prior precedents and extending exclusive presidential power as far as necessary. If OLC adhered to its traditional norms and practices, it would be quite unlikely to take that step.¹⁴³143. See generally Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448 (2010) (discussing interpretive norms and cultural practices within OLC, including a presumptive obligation to adhere to OLC’s own precedents).Show More But in the absence of a Justice Department leadership willing to uphold those norms and practices, they cannot stop an administration determined to chart a new course.

Still, if the Seals actually carried out a presidential assassination order and later faced criminal charges (presumably during a subsequent presidential administration), the courts would have the final say on whether the operation implicated any conclusive and preclusive presidential power. Trump does not dictate an answer to that question, and I see no reason to think the courts would accept an account of conclusive and preclusive presidential power broad enough to cover such conduct.

***

The prevailing understanding that Trump carries no special implications for subordinate liability is wrong. When it comes to investigation, prosecution, and law execution more generally, the Court’s finding of conclusive and preclusive presidential authority means that presidential subordinates who implement the President’s directions are just as immune as he is. Not every presidential power is conclusive and preclusive, as the Seal Team Six hypothetical illustrates. But the scope of absolute immunity for presidential subordinates is now very broad.

V. Limits

The main problem with Trump is how sweepingly it described the President’s power to control the execution of the law, without identifying any meaningful limits on that power. But precisely because the Trump majority did not acknowledge the potential implications of its analysis, there is reason to suspect that it did not intend to recognize as broad a sweep of unregulable presidential power (with its concomitant implications for presidential subordinates) as the language of its opinion seems to embrace. Justice Barrett sounded an optimistic note along these lines in her concurrence, stating that she did “not understand the Court to hold that all exercises of the Take Care power fall within the core executive power.”¹⁴⁴144. Trump v. United States, 144 S. Ct. 2312, 2352 (2024) (Barrett, J., concurring in part).Show More She may be right about that as a matter of the majority’s intent. If so, we might hope that, given the opportunity, the Court might walk back—perhaps in the guise of “clarifying”—some of what it said in Trump.

In doing so, the Court could identify some limits even within a framework of conclusive and preclusive presidential power. These limits do not provide a basis for subjecting presidential subordinates to greater liability than the President when executing those powers; the longstanding linking of the President and his subordinates in that context needs to remain, lest the President’s genuinely conclusive and preclusive powers themselves be undermined.¹⁴⁵145. As discussed above, see supra note 94 and accompanying text, this linkage depends on a demonstration that the subordinate is in fact acting at the President’s direction to implement a power that belongs to the President. Depending on the context, this requirement could be quite limiting.Show More Instead, the considerations I have in mind provide ways to identify appropriate limits on the President’s law execution power itself, and thus to limit the substantive immunity (for him and his subordinates) that flows from that power. These limits can potentially be understood to be implicit within the logic of Trump itself (because not explicitly rejected by it), or as elaborations of Trump’s basic approach that impose limits on its otherwise sweeping language.

A. Constitutional Rights

Even if the Court insists on a broad understanding of the President’s conclusive and preclusive authority over law execution, that power need not be understood to be “preclusive” of the rest of the Constitution. Justice Jackson’s Youngstown framework was designed principally to provide a framework for thinking about the relationship between the Executive and Legislative Branches.¹⁴⁶146. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (“Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.”).Show More It should not be understood to exempt executive power from all constitutional limitations that otherwise apply.¹⁴⁷147. Cf. id. at 636–37 (observing that even when the President acts with congressional authorization, his actions might be found unconstitutional in circumstances where “the Federal Government as an undivided whole lacks power” to take the action in question).Show More

When it comes to prosecutorial discretion, for example, the Court has emphasized that although the discretion “is broad, it is not ‘unfettered.’”¹⁴⁸148. Wayte v. United States, 470 U.S. 598, 608 (1985) (quoting United States v. Batchelder, 442 U.S. 144, 125).Show More Specifically, “the decision to prosecute may not be ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,’ . . . including the exercise of protected statutory and constitutional rights.”¹⁴⁹149. Id. (citations omitted); see United States v. Texas, 143 S. Ct. 1964, 1973 (2023) (“[T]he Court has adjudicated selective-prosecution claims under the Equal Protection Clause.”).Show More Relatedly, the Court has made clear that “for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’”¹⁵⁰150. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 32–33 & 32 n.20 (1973)); see Nat’l Rifle Ass’n v. Vullo, 144 S. Ct. 1316, 1322 (2024) (holding that, under the First Amendment, “[g]overnment officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.”).Show More To be sure, the doctrines implementing these prohibitions on selective and retaliatory prosecution are highly protective of prosecutors. Thus, it is extremely difficult for defendants to prevail on such claims. But the doctrines’ very existence confirms that the Constitution places limits on prosecutorial discretion.

Suppose, then, that a defendant in a federal criminal case were able to establish that the government was deliberately pursuing them on account of an impermissible reason such as their race, religion, or political views, and moved to dismiss the charges on that basis. Could the government defeat the motion by showing that the President had ordered the prosecution? Surely not.¹⁵¹151. Cf. Perkins Coie LLP v. U.S. Dep’t of Just., No. 25-716 (BAH), 2025 WL 1276857 at *1 (D.D.C. May 2, 2025) (noting that “[n]o American President has ever before issued executive orders like the one at issue in this lawsuit targeting a prominent law firm with adverse actions to be executed by all Executive branch agencies”); id. at *4 (observing that “government officials ‘cannot . . . use the power of the State to punish or suppress disfavored expression’” and holding that the executive order at issue in the case is therefore unconstitutional (alteration in original) (quoting Vullo, 144 S. Ct. at 1326)).Show More If that is correct, it must mean that the President’s “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials”¹⁵²152. Trump v. United States, 144 S. Ct. 2312, 2335 (2024)Show More is not preclusive of constitutional limitations like equal protection, due process, and the First Amendment. And that, in turn, would entail a significant limitation on subordinate immunity under Trump.

To see this more clearly, suppose the President and the Justice Department officials who conspired to engage in unconstitutional selective or retaliatory prosecution are later pursued civilly and criminally for that conduct. Specifically, suppose they are sued civilly under Bivens¹⁵³153. See generally Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Of course, under current doctrine there are many significant barriers to bringing a Bivens action, quite apart from questions of immunity. See, e.g., Egbert v. Boule, 142 S. Ct. 1793 (declining to extend Bivens to cover an alleged First Amendment violation); Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (declining to extend Bivens to cover conditions of confinement and prisoner abuse). Those barriers are beyond the scope of this Essay.Show More and charged criminally under either or both of 18 U.S.C. §§ 241 and 242.¹⁵⁴154. See 18 U.S.C. § 241 (making it a crime for “two or more persons [to] conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same”); id. § 242 (making it a crime to, “under color of any law, . . . willfully subject[] any person . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties” because of a person’s race or citizenship status).Show More What immunities would apply? If the President’s power to direct the Department’s investigative and prosecutorial functions does not include the power to do so in ways that violate constitutional rights, then neither the President nor his subordinates could assert a substantive immunity based on the President’s conclusive and preclusive authority. Any immunity that any defendant could assert would thus be a form of remedial immunity. The President would likely enjoy absolute immunity from civil damages under Fitzgerald and at least presumptive immunity from prosecution under Trump’s official-act immunity.¹⁵⁵155. See supra notes 47–59 and accompanying text. In the criminal case, the President might also argue that the statute simply does not apply to him. As Justice Barrett emphasized in her Trump concurrence, an important protection for Presidents facing potential criminal charges is that not all laws of general application are understood to apply to the President. See Trump, 144 S. Ct. at 2352 (Barrett, J. concurring) (“The first question is whether the relevant criminal statute reaches the President’s official conduct. Not every broadly worded statute does.”). OLC has taken the position that if a federal statute does not explicitly refer to the President and if application of the statute to him would “involve a possible conflict with his constitutional prerogatives,” the statute should be construed not to apply to him. Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350, 351 (1995). Others, however, have argued that there is no such clear statement rule. See, e.g., Brief of Professor Martin S. Lederman as Amicus Curiae in Support of Respondent at 12–26, Trump v. United States, 144 S. Ct. 2312 (2024) (No. 23-939) (“There is no canon of construction that precludes application of a generally applicable statute to a President’s official conduct absent a clear statement.”). For her part, Justice Barrett indicated that she would not apply either a clear statement rule or any version of the general canon of constitutional avoidance when determining whether a law of general applicability applies to the President. See Trump, 144 S. Ct. at 2353–54 n.3 (Barrett, J. concurring) (“In my view, neither canon applies in this circumstance. Courts should instead determine the statute’s ordinary meaning . . . .”). Show More As for the Justice Department officials, they could assert some combination of absolute immunity from civil damages for their prosecutorial decisions and qualified immunity for their investigative actions. But on the criminal side, they would enjoy no immunity.¹⁵⁶156. See Imbler v. Pachtman, 424 U.S. 409, 429 (1976) (“This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally for willful deprivations of constitutional rights . . . .”). Show More

Here, then, is a situation where the exposure of the President’s subordinates to criminal sanction could potentially frustrate the ambitions of a lawless President. Importantly, however, this limit on Trump applies only in circumstances where the actions of the President and his subordinates violate the target’s constitutional rights. Not all sham investigations, prosecutions, and other modes of law execution involve such violations.

B. Judicial Power

Relatedly, the fact that a given presidential power is conclusive and preclusive does not mean the President can commandeer other branches of government in the exercise of that power. Recall the selective prosecution example discussed above.¹⁵⁷157. See supra notes 151–52 and accompanying text.Show More Wholly apart from whether the government lawyers who brought the charges could be sued or prosecuted later for their actions, it is clear that the court hearing the criminal case in the first place would have the power to dismiss the charges if it concluded they were brought in violation of the Constitution—even if the President had ordered the prosecution. In addition to showing that the President’s powers are constrained by constitutional rights, this example highlights something else: The President may have “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials,”¹⁵⁸158. Trump, 144 S. Ct. at 2335. Show More but that does not include the power to control the outcome of a case once it is brought to court. The President takes the courts as he finds them, subject to all the jurisdictional, procedural, and other rules that govern their operation.

The substantive immunity discussed in this Essay significantly limits the power of parties to go to court to challenge the exercise of certain presidential powers (whether by the President himself or his subordinates). But it does not entitle the President to invoke the courts himself and then to dictate the resolution of the case. To conclude otherwise would be to allow the executive power of prosecution to swallow the judicial power itself.¹⁵⁹159. This point recalls Justice Jackson’s dissent in Korematsu. While acknowledging that the courts had no basis to judge the “military necessity” of the exclusion order at issue in the case, and while allowing that the courts should not have “attempted to interfere with the Army” in enforcing the order, Jackson emphasized that the posture was critically different when the government decided to come to court to prosecute Korematsu for violating the order. Id. at 246, 248 (Jackson, J., dissenting). As he put it, courts are not required to uphold a constitutionally impermissible order “even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.” Id. at 247 (Jackson, J., dissenting). I thank Adam Samaha for raising this point with me.Show More The President’s conclusive and preclusive power over investigation and prosecution means he and his subordinates are at least substantially immune from legal sanction for pursuing sham cases, but it doesn’t mean they get to win them.

Of course, a lawless President and his willing subordinates can still do significant harm to the targets of their sham investigations and prosecutions, even if they don’t get to win the prosecutions in court. Merely subjecting a target to a criminal investigation can impose huge costs (financial, reputational, emotional, and otherwise) on a target. Members of the Trump Administration recognize this and have expressed enthusiasm for inflicting such costs on their enemies without regard to their prospects in court.¹⁶⁰160. See Glenn Thrush & Alan Feuer, If Justice Dept. Can’t Prosecute Trump’s Foes, It Will ‘Shame’ Them, Official Says, N.Y. Times (May 21, 2025), https://www.nytimes.com/2025/05/21/us/politics/trump-justice-department-ed-martin-weaponization.html [https://perma.cc/TY7E-SW4F] (reporting that “Ed Martin, the self-described ‘captain’ of the Justice Department’s ‘weaponization’ group,” has said that “[h]e plans to use his authority to expose and discredit those he believes to be guilty, even if he cannot find sufficient evidence to prosecute them” and quoting Martin as saying, “if they can’t be charged, we will name them. And . . . in a culture that respects shame, they should be people that are ashamed.”).Show More The limits I have described thus far in this Part may not do much to curb such abuses.

C. Exclusive ≠ Conclusive and Preclusive

Finally, the Court might give further thought to what it means for a Presidential power to be truly conclusive and preclusive of congressional regulation. In my view, before characterizing a given power in those terms, courts should require more than a simple finding that the power belongs exclusively to the President. Articles I, II, and III of the Constitution are full of provisions that grant just one branch of the federal government the authority to do something. For example, only Congress may regulate commerce among the several states; the Constitution gives the President and the judiciary no power to do so.¹⁶¹161. See U.S. Const. art. I, § 8, cl. 3.Show More Congress’s commerce power is thus exclusive in that sense. But the fact that the Constitution grants a particular power to only one branch of government does not, by itself, establish that no other branch may exercise its constitutionally conferred authority in ways that affect what the first branch has done.¹⁶²162. See Lederman, supra note 14 (explaining that the majority’s reasoning, that powers exclusive to the Executive Branch should have preclusive protection from other branches, is logically incomplete because “it does not follow that Congress may not use one of its constitutional powers . . . to limit or condition what the President could otherwise do” (alteration in original)). Show More If a statute regulating interstate commerce is enforceable by the government, the Executive will, in exercise of its enforcement discretion, be able to affect when and how the statute is applied. And when the Executive’s enforcement of the statute is challenged in litigation, the courts will ultimately determine the scope and meaning of the statute. These executive and judicial functions coexist perfectly well with the exclusivity of Congress’s power to regulate interstate commerce. All of this is elementary.

Following the same reasoning, there is a difference between the exclusive presidential power to appoint and remove certain executive officials and an unregulable authority to determine how, when, and to what extent to execute federal law (even in ways that violate other laws). Something more than the former is needed to justify the latter. To go from being an exclusive presidential power to a presidential power that is preclusive of any congressional regulation (or judicial oversight), it must be shown that the President’s ability to exercise the power would be undermined or frustrated in some critical way if it were subject to the regulation in question.

Zivotofsky is illustrative. There, the Court readily concluded that “[t]he text and structure of the Constitution grant the President the power to recognize foreign nations and governments.”¹⁶³163. Zivotofsky ex. rel. Zivotofsky v. Kerry, 576 U.S. 1, 13 (2015).Show More But that alone was not enough to establish that the power was conclusively and preclusively the President’s. To reach that conclusion, the Court pointed to a number of functional considerations:

[T]he Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not. Foreign countries need to know, before entering into diplomatic relations or commerce with the United States, whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights. These assurances cannot be equivocal. Recognition is a topic on which the Nation must ‘speak . . . with one voice.’ . . . That voice must be the President’s.¹⁶⁴164. Id. (quoting American Ins. Ass’n v. Garamendi, 539 U.S. 396, 424 (2003)); see id. at 17 (“A clear rule that the formal power to recognize a foreign government subsists in the President therefore serves a necessary purpose in diplomatic relations.”).Show More

At the same time, and critically, the Court emphasized that treating the recognition power as belonging conclusively and preclusively to the President did not entail denying Congress all power to act on matters adjacent to recognition. To the contrary:

Congress’ powers, and its central role in making laws, give it substantial authority regarding many of the policy determinations that precede and follow the act of recognition itself. If Congress disagrees with the President’s recognition policy, there may be consequences. Formal recognition may seem a hollow act if it is not accompanied by the dispatch of an ambassador, the easing of trade restrictions, and the conclusion of treaties. And those decisions require action by the Senate or the whole Congress.¹⁶⁵165. Id. at 16.Show More

Two points bear emphasis here. First, before concluding that the recognition power was preclusive of congressional regulation, the Zivotofsky Court engaged in a functional analysis of whether such preclusion was necessary for the effective exercise of the President’s power. That question was not answered by asking the formalist question whether recognition is inherently “executive”; it was answered by asking whether the executive power of recognition could function effectively if Congress also wielded the power. The Trump Court’s analysis of the President’s power over law execution included no such considerations. Had it done so, it could have found a basis for allowing Congress to play a greater role in structuring the exercise of the executive power over law execution.¹⁶⁶166. For an argument that “Youngstown category 3” cases inevitably require a functionalist, balancing analysis to determine whether the President or Congress should prevail, see Roisman, supra note 14 at 50–56. See also Shalev Gad Roisman, Balancing Interests in the Separation of Powers, 91 U. Chi. L. Rev. 1331, 1340–42 (2024) (positing a new approach for resolving “separation of powers infringements”).Show More

Second, even after declaring the President’s recognition power to be conclusive and preclusive, the Zivotofsky Court emphasized that Congress possessed considerable authority to legislate on matters closely adjacent to the power, in ways that could have “consequences” for the President’s recognition policy and could even render that policy “hollow.”¹⁶⁷167. Zivotofsky, 576 U.S. at 16.Show More That approach stands in marked contrast to Trump’s discussion of conclusive and preclusive powers, which seems to admit of no even incidental legislative burdens on such powers.¹⁶⁸168. See, e.g., Trump v. United States, 144 S. Ct. 2312, 2328 (2024) (“Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his ‘conclusive and preclusive’ constitutional authority.”). Show More A re-orientation of the analysis in Zivotofsky’s direction could thus narrow the scope of the President’s conclusive and preclusive powers to their core, where legislative preclusion truly is functionally necessary. And that, in turn, would cause a corresponding narrowing of subordinate immunity.

To see how this could work in another context, consider the federal criminal prohibition on bribery.¹⁶⁹169. 18 U.S.C. § 201(c). Show More Suppose the President accepts a bribe in return for issuing a pardon. Does the conclusive and preclusive nature of the pardon power render him substantively immune to prosecution for taking the bribe? I have argued no, on the ground that we can distinguish between laws that regulate conclusive and preclusive presidential powers themselves and laws that regulate matters adjacent but not inherent to those powers.¹⁷⁰170. See Morrison, Beyond Absolutes, supra note 56. Show More The former are impermissible and trigger substantive immunity; the latter are valid and do not. On this formulation, the pardon itself would remain in effect even though the President granted it in return for a bribe. But the bribe is not inherent to the pardon power, and, as OLC has recognized, “[t]he Constitution confers no power in the President to receive bribes.”¹⁷¹171. Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19 Op. OLC 350, 357 n.11 (1995). OLC supported this conclusion by observing that “the Constitution expressly authorizes Congress to impeach the President for, inter alia, bribery.” Id. It would be strange if the President could be impeached for exercising a power that the Constitution grants conclusively and preclusively to him. Hence, we need some way to separate that power (in this hypothetical, the pardon power) from the bribe. Show More Subjecting the President to prosecution for taking the bribe may well have “consequences” for his exercise of the pardon power,¹⁷²172. Zivotofsky, 576 U.S. at 16.Show More just as the criminal law generally is presumed to deter criminal behavior. But as Zivotofsky illustrates, such consequences are not enough to support substantive immunity.¹⁷³173. Id. at 16–17.Show More So the President may be prosecuted for taking the bribe even though Congress (and the courts) may not undo the pardon.

Drawing lines like this can admittedly be difficult, but the Trump majority may already have agreed to do it. In an exchange with Justice Barrett, the majority seemed to endorse prosecuting a President for taking a bribe in connection with the exercise of a presidential power, even though he may not be prosecuted for exercising the power itself.¹⁷⁴174. Trump v. United States, 144 S. Ct. 2312, 2341 n.3 (2024) (“[O]f course the prosecutor may point to the public record to show . . . that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept . . . for being influenced in the performance of the act.”).Show More The majority and Justice Barrett disagreed over exactly how such a prosecution would work, and what kind of evidence should be admissible to support it.¹⁷⁵175. Compare id. (“What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety.”) with id. at 2355 (Barrett, J., concurring) (“I appreciate the Court’s concern that allowing into evidence official acts for which the President cannot be held criminally liable may prejudice the jury . . . [b]ut the rules of evidence are equipped to handle that concern on a case-by-case basis.” (citation omitted)).Show More As others have observed, the precise scope of that disagreement is hard to pin down.¹⁷⁶176. See, e.g., Anna Bower & Benjamin Wittes, What’s Going On in Footnote 3?, Lawfare (July 23, 2024), https://www.lawfaremedia.org/article/what-s-going-on-in-footnote-3 [https://perma.cc/635A-GXKP]; Goldsmith, supra note 10, at 18–19 n.80.Show More Both, however, evidently agreed on the permissibility of the bribery prosecution, which depends on distinguishing between the prosecutable bribe and the immune exercise of presidential power.¹⁷⁷177. Jack Goldsmith is right, however, that the exchange between the majority and Justice Barrett did not focus specifically on bribery in relation to a conclusive and preclusive presidential power (as opposed to any other presidential power). See Goldsmith, supra note 10, at 19 n.80. That distinction might make a difference in this context; as I have argued throughout this Essay, it makes a big difference on the issue of subordinate liability generally. But I don’t see any basis in the logic of conclusive and preclusive presidential powers to think that substantive immunity would need to include immunity for taking a bribe in return for exercising those powers. Show More

Going forward, if the Court were to adopt Zivotofsky’s approach to identifying and discerning the boundaries of conclusive and preclusive presidential power, and if it were to remain mindful of core/periphery issues raised by the bribery example, it could rein in its account of the President’s power over law execution in a way that leaves more room for Congress. In so doing, it would correspondingly limit the substantive immunity of presidential subordinates. That would be a very helpful corrective to Trump’s excesses.

Conclusion

When analyzing separation of powers issues that the judiciary rarely addresses, the Court tends to seek modest rulings that don’t unduly upset the existing equilibrium.¹⁷⁸178. See, e.g., Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020) (noting that while the case was “the first of its kind to reach this Court[,] . . . Congress and the Executive have nonetheless managed for over two centuries to resolve such disputes among themselves without the benefit of guidance from us” and emphasizing that “[s]uch longstanding practice ‘is a consideration of great weight’ in cases concerning ‘the allocation of power between [the] two elected branches of Government,’ and it imposes on us a duty of care to ensure that we not needlessly disturb ‘the compromises and working arrangements . . .’” of Congress and the Executive branch) (first quoting NLRB v. Noel Canning, 573 U.S. 513, 524 (2014) then quoting The Pocket Veto Case, 279 U.S. 655, 689 (1929)). See generally Samuel Issacharoff & Trevor Morrison, Constitution by Convention, 108 Calif. L. Rev. 1913, 1920 (2020) (“[W]e aim to suggest ways that courts can preserve an appreciation for practice-based historical settlement that can last beyond the aberrations of the current moment.”). Show More That is especially true when the Court is obliged to hear a case on an expedited basis.¹⁷⁹179. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 660–01 (1981) (asserting, without positing general guidance, that “the expeditious treatment of the issues involved by all of the courts which have considered the President’s actions make us acutely aware of the necessity to rest decision on the narrowest possible ground capable of deciding the case”).Show More Trump v. United States did not follow that pattern. The Court’s sweeping account of the President’s purportedly conclusive and preclusive power over law execution ran roughshod over its own precedents without even acknowledging them, and rested on a theory whose logic reaches far beyond the circumstances of the case.

One senses that much of this was unintended. Near the conclusion of his majority opinion, the Chief Justice stressed the need to protect against the “prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”¹⁸⁰180. Trump, 144 S. Ct. at 2346.Show More He invoked George Washington’s Farewell Address to emphasize that “[a] government ‘too feeble to withstand the enterprises of faction’ . . . could lead to the ‘frightful despotism’ of ‘alternate domination of one faction over another, sharpened by the spirit of revenge.’”¹⁸¹181. Id. at 2347 (quoting President George Washington, Farewell Address (Sept. 19, 1796) reprinted in 35 Writings of George Washington From the Original Manuscript Sources 1745-1799, 214, 226–27 (John C. Fitzpatrick ed., 1940)).Show More That may be the wellspring of the Court’s decision: As a matter of pure pragmatism, unmoored from any serious engagement with conventional sources of constitutional meaning, the Court thought it was simply unwise to allow Presidents to be prosecuted by their successors. I cannot say whether I would have opposed a decision based explicitly and exclusively on such consequentialist reasoning.

But that’s not what we got. Instead, we got a decision that may well have been motivated by “raw consequentialism,”¹⁸²182. See Aziz Z. Huq, Structural Logics of Presidential Disqualification: An Essay on Trump v. Anderson, 138 Harv. L. Rev. 172, 217 (2024) (drawing parallels between consequentialist arguments underpinning the majority’s reasoning in Trump v. Anderson and Trump v. United States).Show More but that sought to ground itself in settled separation of powers principles to which it then did considerable violence. The result was irony.

The irony is that Trump did indeed protect former Presidents from the vengeance of their successors. Yet in doing so, the Court made it easier for the very same vengeance to be directed against virtually all of a sitting President’s other rivals and enemies—and anyone else they might care to target. And in embracing an unprecedentedly broad account of a conclusive and preclusive presidential power over law execution, the Court necessarily rendered presidential subordinates similarly unregulable when acting to effectuate the President’s will. No matter that the investigation or prosecution is a sham, corrupt, or otherwise unlawful.¹⁸³183. The irony compounds: During oral argument in Trump, Justice Alito asked Michael Dreeben, counsel for the government, whether Justice Department lawyers could be “trusted to act in a professional and ethical manner” when contemplating whether to prosecute a former President. Transcript of Oral Argument at 101, Trump v. United States, 144 S. Ct. 2312 (2024) (No. 23-939), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-939_3fb4.pdf [https://perma.cc/X6ZA-G9AQ]. Mr. Dreeben answered that they could indeed be relied upon to meet their professional ethical responsibilities, and he offered the facts of Trump as evidence: Trump tried to get senior DOJ officials to send fraudulent letters to state officials to get them to reverse the results of the 2020 election, but the DOJ officials refused to cooperate. Id. at 102–03. Justice Alito replied: “I understand that, Mr. Dreeben, but as I said, this case will have effects that go far beyond this particular prosecution.” Id. at 104. That’s for sure. Show More

And that, in turn, laid the groundwork for turning executive officials responsible for enforcing federal law into the President’s own personal faction of Holmesian bad men,¹⁸⁴184. See United States v. Texas, 143 S. Ct. 1964, 2022 (2003) (Alito, J., dissenting) (“Under Holmes’s theory, as popularly understood, the law consists of those things that a bad man cannot get away with.”).Show More available to help him wreak vengeance on his enemies and beyond the power of Congress to tame. In seeking to shield the President from cycles of political revenge, the Court’s recklessly broad reasoning helped underwrite the era of presidentially-directed reprisal and retribution in which we now find ourselves. No reasonable person wants that. The Court should fix it.

Bella M. Ryb²2. * Copyright © 2025 by Bella M. Ryb, Director, Stanford Constitutional Law Center; Ph.D. Candidate, Stanford Program in Modern Thought & Literature. I am grateful to Bernadette Meyler, who planted the seed for this case comment and gave me occasion to write it, to Jacob Abolafia for his incisive comments at every stage of the project, and to Jacqueline Lewittes for her thoughtful feedback. Thanks also to Rita Wang and the editors of the New York University Law Review.Show More*

The 2022 Supreme Court decision in Dobbs v. Jackson Women’s Health Organization overturned the constitutional right to abortion, thereby raising critical questions about the future of substantive due process. Justice Clarence Thomas’s call for broader repudiation of substantive due process rights, including contraception access and same-sex marriage, has sparked alarm about impending legal challenges to these protections. This Case Comment explores a subtler strategy the Court might employ to curtail fundamental rights: redefining and narrowing their scope rather than overturning them entirely. This approach is exemplified in Department of State v. Muñoz, the first substantive due process case decided after Dobbs, which has not yet received scholarly attention for its contribution to substantive due process jurisprudence. As this Case Comment argues, Muñoz showcases the Court’s ability to redefine fundamental rights in ways that diminish their practical application. By narrowing the marriage right’s scope, the conservative majority left the marriage right intact in name but gutted in substance. Similar strategies, the Case Comment predicts, could diminish protections for contraception and parental rights regarding gender-affirming care for transgender children. Ultimately, this Case Comment argues that Muñoz represents a new avenue for eroding substantive due process protections through subtle limitation rather than overt dismantling.

Introduction

On June 24, 2022, the Supreme Court handed down Dobbs v. Jackson Women’s Health Organization,³3. 142 S. Ct. 2228 (2022).Show More overturning half a century of precedent to conclude that the U.S. Constitution does not confer a right to abortion. In so holding, the Court not only gutted the legal and medical infrastructure undergirding abortion access in the United States,⁴4. See Kelly Baden, Joerg Dreweke & Candace Gibson, Clear and Growing Evidence That Dobbs Is Harming Reproductive Health and Freedom, Guttmacher (May 2024), https://www.guttmacher.org/2024/05/clear-and-growing-evidence-dobbs-harming-reproductive-health-and-freedom [https://perma.cc/7XMU-UTSH] (analyzing data from peer-reviewed studies and empirical evidence regarding the impact of Dobbs).Show More it also shook the very foundation of constitutional jurisprudence by calling into question the future of substantive due process.⁵5. See infra text accompanying notes 18–24.Show More

Under Roe v. Wade,⁶6. 410 U.S. 113 (1973).Show More the fundamental right to abortion was grounded in the principle of substantive due process, which bars the government from depriving a person of life, liberty, or property without a “sufficient substantive justification, a good enough reason for such a deprivation.”⁷7. Erwin Chemerinsky, Substantive Due Process, 15 Touro L. Rev. 1501, 1501 (1999).Show More Since its inception in the Lochner era,⁸8. See Ilan Wurman, The Origins of Substantive Due Process, 87 U. Chi. L. Rev. 815, 825 (2020) (tracing “the emergence of substantive due process in the conflation of these distinct strands of legal doctrine in the federal cases interpreting the Fourteenth Amendment after the Slaughter-House Cases, culminating in Lochner v. New York”).Show More the Court has used substantive due process to identify and protect a series of unenumerated yet fundamental constitutional rights, including rights of parental autonomy,⁹9. Meyer v. Nebraska, 262 U.S. 390, 401 (1923); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925); Parham v. J. R., 442 U.S. 584, 604 (1979); Troxel v. Granville, 530 U.S. 57, 66 (2000).Show More procreation,¹⁰10. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).Show More contraception,¹¹11. Griswold v. Connecticut, 381 U.S. 479, 485 (1965); Eisenstadt v. Baird, 405 U.S. 438, 443 (1972).Show More marriage,¹²12. Loving v. Virginia, 388 U.S. 1, 11 (1967); Zablocki v. Redhail, 434 U.S. 374, 386 (1978); Obergefell v. Hodges, 576 U.S. 644, 651–52 (2015).Show More sexual privacy,¹³13. Lawrence v. Texas, 539 U.S. 558, 578 (2003).Show More familial association,¹⁴14. Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977).Show More and—until Dobbs—abortion.¹⁵15. Roe v. Wade, 410 U.S. 113, 153 (1973); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 846 (1992).Show More

Despite its enduring and influential role in constitutional adjudication, substantive due process has long been controversial.¹⁶16. Erwin Chemerinsky, The Future of Substantive Due Process: What Are the Stakes?, 76 SMU L. Rev. 427, 427 (2023) (describing the longstanding controversy regarding the principle of substantive due process and the “disdain” for substantive due process among conservative jurists and constitutional law scholars).Show More For decades, conservative jurists have characterized substantive due process as lacking textual grounding, regarding it as a mechanism through which judges make policy from the bench or “write their personal beliefs” into the Constitution.¹⁷17. Robert H. Bork, The Tempting of America: The Political Seduction of the Law 31 (1990) (calling substantive due process “a momentous sham” that “has been used countless times since by judges who want to write their personal beliefs into a document”. For other prominent conservative critics of substantive due process, see, for example, John H. Ely, Democracy and Distrust: A Theory of Judicial Review 18 (1980) (calling substantive due process “a contradiction in terms—sort of like ‘green pastel redness’”); Josh Blackman & Ilya Shapiro, Is Justice Scalia Abandoning Originalism?, Cato Inst. (Mar. 9, 2010), https://www.cato.org/commentary/justice-scalia-abandoning-originalism [https://perma.cc/H5QB-ZBMZ] (“[Justice Antonin] Scalia has attacked substantive due process as an ‘atrocity,’ an ‘oxymoron,’ ‘babble,’ and a ‘mere springboard for judicial lawmaking.’”).Show More Substantive due process has also been criticized as antidemocratic, with some justices contending that “in our democratic republic,” decisions regarding unenumerated rights “should rest with the people acting through their elected representatives,” not with unelected judges.¹⁸18. Obergefell v. Hodges, 576 U.S. 644, 688 (2015) (Roberts, C.J., dissenting).Show More Among the doctrine’s most influential critics is Supreme Court Justice Clarence Thomas, who has rejected the principle of substantive due process throughout his judicial career.¹⁹19. Chemerinsky, supra note 14, at 427.Show More In his Dobbs concurrence, Justice Thomas reiterates that position, writing that “the Due Process Clause does not secure any substantive rights” and calling for the Court to “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” in order to “jettison[] the doctrine entirely.”²⁰20. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2301–02 (2022) (Thomas, J., concurring).Show More In other words, Justice Thomas expressly calls for the overturning of rights to contraception, same-sex intimacy, and same-sex marriage—a restatement of his decades-old position imbued with new force by the overturning of the right to abortion he had long criticized.

Justice Thomas is the only sitting Supreme Court justice to expressly reject the doctrine of substantive due process writ large.²¹21. The late Justice Antonin Scalia shared Justice Thomas’s wholesale opposition to the doctrine of substantive due process. See City of Chicago v. Morales, 527 U.S. 41, 85 (1999) (Scalia, J., dissenting) (“The entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of so-called ‘substantive due process’) is in my view judicial usurpation.”). While Justice Scalia has not been on the bench since his passing in 2016, his former clerk Justice Amy Coney Barrett was confirmed to the Court in 2020. While Barrett has not disparaged substantive due process in such blunt terms, she remarked in a speech following her nomination that “[Justice Scalia’s] judicial philosophy is [hers] too,” suggesting that she may harbor similar skepticism toward substantive due process. Emma Newburger, Amy Coney Barrett Pays Homage to Conservative Mentor Antonin Scalia – ‘His Judicial Philosophy Is Mine Too’, CNBC (Sept. 26, 2020, 6:12 PM), https://www.cnbc.com/2020/09/26/amy-coney-barrett-pays-homage-to-mentor-antonin-scalia.html [https://perma.cc/YRB8-LKUS].Show More Nevertheless, “the Court’s decision in Dobbs,” as one scholar put it, “evinced considerable hostility to the basic project of substantive due process.”²²22. Leah M. Litman, The New Substantive Due Process, 103 Tex. L. Rev. 565, 567 (2025).Show More Not only did the Court overturn one of the most prominent substantive due process rights, but the majority opinion repeatedly suggests that the doctrine of substantive due process may rest on a shaky foundation, remarking that the doctrine “has at times been a treacherous field for this Court”²³23. Dobbs, 142 S. Ct. at 2247 (plurality opinion) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977)). Show More and “has long been controversial.”²⁴24. Id. at 2246.Show More As a result, commentators have observed that, after Dobbs, “[s]ubstantive due process is very much under attack . . . put[ting] in jeopardy other constitutional rights that have been safeguarded under the liberty of the Due Process Clause.”²⁵25. Chemerinsky, supra note 14, at 427; see also Cass R. Sunstein, Dobbs and the Travails of Due Process Traditionalism, in Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion 129, 133 (Lee C. Bollinger & Geoffrey Stone eds., 2024) (concluding that, after Dobbs, “some or many of the existing substantive due process holdings are exceedingly vulnerable”); Seema Mohapatra, An Era of Rights Retractions: Dobbs as a Case in Point, Am. Bar Ass’n (July 26, 2023), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-end-of-the-rule-of-law/era-of-rights-retractions-dobbs-as-a-case-in-point [https://perma.cc/437S-MXY5] (“The parade of horribles that may lie ahead is terrifying—any existing law related to privacy, contraception, same-sex marriage, and interracial marriage is at risk, as are protections for anything that may rely on substantive due process for its protection.”); Kenji Yoshino, After the Supreme Court’s Abortion Ruling, What Could Happen to Other Unwritten Rights?, Wash. Post (Nov. 30, 2022, 5:34 PM), https://www.washingtonpost.com/magazine/interactive/2022/substantive-due-process-dobbs [https://perma.cc/78L3-W6DX] (“Many liberals mourned the loss of a fundamental right and worried that other unenumerated rights . . . were now also endangered.”).Show More Some have gone as far as to call Dobbs “the roar of a wave that could drown the whole world of substantive due process liberties protecting personal autonomy, bodily integrity, familial relationships (including marriage), sexuality, and reproduction.”²⁶26. Linda C. McClain & James E. Fleming, Ordered Liberty After Dobbs, 35 J. Am. Acad. Matrim. Ls. 623, 623 (2023).Show More

Given these indications of the Court’s hostility to substantive due process, the possibility that the Court may take Justice Thomas up on his invitation to reconsider the full spectrum of substantive due process rights should not be underestimated²⁷27. Although Thomas is considered more extreme than most conservatives on substantive due process, his initially fringe positions on criminal justice, campaign finance, guns, and abortion have eventually been adopted by the conservative bloc on the Court. See Corey Robin, The Self-Fulfilling Prophecies of Clarence Thomas, New Yorker (July 9, 2022), https://www.newyorker.com/news/daily-comment/the-self-fulfilling-prophecies-of-clarence-thomas [https://perma.cc/L9M9-BJY9].Show More—despite Justice Alito’s assurance that Dobbs does not endanger other rights²⁸28. Dobbs, 142 S. Ct. at 2261 (2022) (calling fears that Dobbs would “imperil those other rights” “unfounded”).Show More and conservatives’ derision of these fears as “hysterical.”²⁹29. Paul Moreno, Justice Thomas’s ‘Substantive Due Process’ Dare, Nat’l Rev. (July 8, 2022, 6:30 AM), https://www.nationalreview.com/2022/07/justice-thomass-substantive-due-process-dare [https://perma.cc/2T3P-U9K9].Show More But even if the Court makes good on Justice Alito’s promise that substantive due process is not at risk, the fundamental rights which presently seem imperiled will not necessarily remain intact.

In this Case Comment, I will argue that the Supreme Court need not issue a wholesale rejection of substantive due process, nor even overturn substantive due process rights one at a time as in Dobbs, to deny litigants protections that have historically been central to long-established fundamental liberties. Rather, by defining fundamental liberties in narrow and formalistic terms, the Court can defang substantive due process jurisprudence by stripping away the protections which make such fundamental rights valuable in the first place. This is not an abstract prediction; the Court has already modeled this approach in the 2024 case Department of State v. Muñoz,³⁰30. 144 S. Ct. 1812 (2024).Show More the first substantive due process case since Dobbs, which considers the fundamental right to marriage in the immigration context.

This paper will proceed in two Parts. In Part I, I will analyze the Court’s treatment of the fundamental right to marriage in Muñoz. Through close readings of the majority and dissenting opinions, I will demonstrate how the conservative majority breaks with prior judicial treatment of the marriage right, stripping away previously acknowledged components of the right until it has been gutted of practical significance. This approach, I will argue, illustrates how the Court can effectively nullify substantive due process rights merely by narrowing the scope of how those rights are defined, a strategy which enables the Court to curtail fundamental rights without rejecting substantive due process writ large. In Part II, I will turn to two substantive due process questions disfavored by many conservatives—contraception access and parental rights to seek gender-affirming care for their transgender children—in order to imagine how the strategy of rights redefinition employed by the majority in Muñoz might be used to weaken legal protections without rejecting underlying fundamental liberties outright. Ultimately, this Case Comment contends that, while Dobbs models one approach through which the Roberts Court might strip away fundamental rights on which Americans have come to rely, Muñoz—which, until now, has received virtually no scholarly attention³¹31. Only one work of legal scholarship has analyzed Muñoz thus far; that student note examines Muñoz’s effect on the immigration law doctrine of consular nonreviewability, not on substantive due process. Jake Steubner, Note, Consular Nonreviewability After Department of State v. Muñoz: Requiring Factual and Timely Explanations for Visa Denials, 124 Colum. L. Rev. 2413 (2024). Show More—models another. Substantive due process may be necessary to safeguard our fundamental yet unenumerated rights, but it is not sufficient. As the Court’s approach in Muñoz demonstrates, defining fundamental rights increasingly narrowly may be just as devastating as a wholesale overturning of substantive due process.

I. The Muñoz Approach: Redefining Fundamental Rights to Defang Them

On June 21, 2024, the Supreme Court handed down its decision in Department of State v. Muñoz,³²32. 144 S. Ct. 1812. Show More the first substantive due process case decided by the Court since Dobbs. The case concerned Sandra Muñoz, a U.S. citizen whose husband, Luis Asencio-Cordero, sought and was repeatedly denied a visa to enter the United States without being given a reason.³³33. Id. at 1818–19. Show More Muñoz and Asencio-Cordero ultimately sought procedural due process protections: a justification and opportunity to challenge Asencio-Cordero’s visa denial.³⁴34. Id. at 1819.Show More But as a non-citizen without a right to enter the United States, Asencio-Cordero enjoyed no procedural due process protections in the immigration context.³⁵35. Id. at 1815. Show More Thus, Muñoz sued the Department of State, asserting that, as part of her substantive due process right to marriage, she “has a liberty interest in living in the United States with her husband that is sufficient to implicate procedural due process.”³⁶36. Brief for Respondent at 3, Dep’t of State v. Muñoz, 144 S. Ct. 1812 (2024) (No. 23-334). Show More

The case came to the Supreme Court on appeal from the U.S. Court of Appeals for the Ninth Circuit, which held in Muñoz’s favor.³⁷37. Muñoz v. Dep’t of State, 50 F.4th 906, 908–09 (9th Cir. 2022).Show More At the Supreme Court, a six-justice majority found for the Department of State, concluding that Muñoz’s fundamental right to marriage does not encompass substantive or procedural rights related to her husband’s immigration proceedings.³⁸38. Dep’t of State v. Muñoz, 144 S. Ct. at 1817–18. Show More The dissenting justices, on the other hand, cited extensive precedent from the Court’s earlier decisions to suggest that the right to marriage is sufficiently capacious to encompass Ms. Muñoz’s claim.³⁹39. Id. at 1833–36. (Sotomayor, J., dissenting). Show More This disagreement between the majority and the dissent, then, turns on the breadth of the fundamental right of marriage. In this Part, I will explicate each opinion in turn, demonstrating how the conservative majority employs a strategy of redefinition to defang a fundamental right without overturning it.

A. Majority Opinion

In Muñoz, the majority holds that “a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.”⁴⁰40. Id. at 1821.Show More In so holding, the Court obscures the fact that Muñoz asserts no such right to bring her husband into the United States; rather, she argues that her “liberty interest in her marriage” triggers procedural protections—namely, the right to be advised of the factual basis for the consular officer’s finding of inadmissibility—not afforded to immigrants without U.S. citizen spouses.⁴¹41. Brief for Respondent, supra note 34, at 19, 37–38.Show More Muñoz expressly states that she “does not advance a substantive right to immigrate one’s spouse.”⁴²42. Id. at 19 n.10. Show More Rather, her “argument . . . is procedural. She maintains that her marital right is sufficiently important that it cannot be unduly burdened without procedural due process as to an inadmissibility finding that would block her from residing with her spouse in her country of citizenship.”⁴³43. Id. Show More

Nevertheless, the majority opinion time and time again suggests that Muñoz asserts a fundamental “right to bring her noncitizen spouse to the United States.”⁴⁴44. Dep’t of State v. Muñoz, 144 S. Ct. 1812, 1818 (2024); see also id. at 1821 (“[S]he argues that the State Department abridged her fundamental right to live with her spouse in her country of citizenship[.]”); id. at 1822 (“Muñoz claims . . . the right to reside with her noncitizen spouse in the United States.” (emphasis in original)); id. (“Muñoz cannot . . . demonstrat[e] that the right to bring a noncitizen spouse to the United States is ‘deeply rooted in this Nation’s history and tradition.’” (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997))). The Court repeats this formulation of the right asserted despite acknowledging that Muñoz “disclaim[ed] that characterization” and “disavowed that argument.” Id. at 1822, 1827. Show More The Court arrives at that formulation of her claim by making the following argument: First, the Court defines the right to marriage extraordinarily narrowly—a definition in support of which they cite no precedent.⁴⁵45. Id. at 1822 (differentiating the “fundamental right of marriage”—defined as the status of being married—from “distinct” rights “involv[ing] more than marriage”). Show More Ms. Muñoz “is already married,” the Court points out, suggesting that the right begins and ends with the formation and legal recognition of the marriage relationship. Second, the Court asserts that Ms. Muñoz’s claim “involves more than marriage.”⁴⁶46. Id.Show More Because Muñoz is already legally married to her husband, the Court reasons, her right to marriage cannot possibly be burdened. Finally, because the Court’s narrow definition of the right to marriage—a definition in support of which they cite no precedent—cannot support Ms. Muñoz’s claim, they conclude that she must have meant to assert some other fundamental right, which they take the liberty of describing as “the right to have her noncitizen husband enter (and remain in) the United States.”⁴⁷47. Id.Show More In so arguing, the majority constructs a straw man of Muñoz’s assertion of her fundamental right, which they handily defeat under the Glucksberg test, concluding on the basis of a historical recognition of the “Government’s sovereign authority to set the terms governing the admission and exclusion of noncitizens” that no fundamental right to bring one’s spouse into the country exists.⁴⁸48. Id. at 1823. Under the two-prong test established in Washington v. Glucksberg, courts will only recognize a new implied fundamental right—and thus subject any restrictions on that right to strict scrutiny—if the right is “objectively, deeply rooted in this Nation’s history and tradition.” 521 U.S. 702, 720–21 (1997). Since the Court characterizes Muñoz as asserting a novel right, she must satisfy this history-and-tradition test in order to have a substantive due process claim at all.Show More However, as the dissent demonstrates, had the majority considered the robust precedential cases on the right to marriage, they could not have so easily disposed of Muñoz’s claim.⁴⁹49. See infra Section I.B.Show More

B. Dissenting Opinion

Whereas the majority adopts a sui generis definition of the right to marriage coextensive with the granting and recognition of the legal status of marriage, Justice Sotomayor, writing in dissent, articulates a robust fundamental right of marriage. This right, grounded in substantive due process, is sufficient to entitle Muñoz to procedural due process with respect to her husband’s immigration proceedings. Rejecting the majority’s stance that the fundamental right to marriage does not include some right to make a home with one’s spouse in the United States, Justice Sotomayor writes that “[t]he constitutional right to marriage is not so flimsy. The Government cannot banish a U.S. citizen’s spouse and give only a bare statutory citation as an excuse.”⁵⁰50. Dep’t of State v. Muñoz, 144 S. Ct. 1812, 1833 (2024) (Sotomayor, J., dissenting). Show More

While the majority stipulates without justification the narrowest possible definition of the marriage right, Sotomayor quotes extensive precedent supporting a fundamental marriage right more expansive than mere legal status. Quoting from Maynard v. Hill, Sotomayor asserts that marriage “is something more than a mere contract,” “the most important relation in life,” and “the foundation of the family.”⁵¹51. Id. (quoting Maynard v. Hill, 125 U.S. 190, 205, 210–11 (1888) (holding that marriage is more than a contract and thus state law can regulate marriage and divorce without running afoul of the Contracts Clause of the Constitution)).Show More Turning to Meyer v. Nebraska, Sotomayor recounts how the Court “has described [the fundamental right to marriage] in one breath as the right ‘to marry, establish a home and bring up children,’ a right ‘long recognized at common law as essential to the orderly pursuit of happiness by free men.’”⁵²52. Id. at 1833–34 (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (striking down a state law prohibiting foreign language instruction in schools on the grounds that parents have an unenumerated right to control the upbringing of their children)).Show More Sotomayor goes on to cite Loving v. Virginia, in which the Court asserts that marriage is “one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”⁵³53. Id. at 1834 (quoting Loving v. Virginia, 388 U.S. 1, 12 (1967) (finding unconstitutional laws prohibiting interracial marriage) (quoting Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (striking down a law providing for the compulsory sterilization of criminals on the basis of an unenumerated fundamental right to procreation))).Show More Finally, she turns to Obergefell v. Hodges, quoting Justice Kennedy’s assertions that the fundamental right of marriage “fulfils yearnings for security, safe haven, and connection that express our common humanity,” “responds to the universal fear that a lonely person might call out only to find no one there,” and “offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”⁵⁴54. Id. (quoting Obergefell v. Hodges, 576 U.S. 644, 666–67, 675 (2015) (extending the fundamental right of marriage to same-sex couples)).Show More These landmark cases all articulate a vision of marriage which exceeds a valid marriage certificate, pointing to how the interpersonal intimacy of the marriage relationship can support human flourishing. It is not the mere legal status of marriage which confers these benefits; rather, it is the practices of home-establishing, family-building, and mutual care facilitated and celebrated by marriage that ultimately make it so essential to the lives of many. These practices all rely in large part upon—or are at least built around—physical proximity and cohabitation.

According to Sotomayor, Muñoz’s claim falls squarely within “the right to marry in its comprehensive sense”⁵⁵55. Id. (quoting Obergefell v. Hodges, 576 U.S. 644, 671 (2015)).Show More which precedent implores the Court to consider; after all, the abilities to establish a home, raise a family, and care for one another are core to the marriage right as articulated by the Court,⁵⁶56. See id. (describing the “right ‘to marry, establish a home and bring up children’ with [one’s spouse]”) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).Show More and these abilities are clearly hampered by a visa denial that excludes one’s spouse from the country where the couple had established a home.⁵⁷57. Id. at 1835 (“There can be no real question that excluding a citizen’s spouse from the country ‘burdens’ the citizen’s right to marriage as this Court has repeatedly defined it.”). Show More To be sure, the legal status conferred by marriage is an essential component of the right, but simply because that status is recognized does not mean the right to marriage has not been burdened. And, as Justice Sotomayor explains,

This Court has never held that a married couple’s ability to move their home elsewhere removes the burden on their constitutional rights. It did not tell Richard and Mildred Loving to stay in the District of Columbia or James Obergefell and John Arthur to stay in Maryland. It upheld their ability to exercise their right to marriage wherever they sought to make their home.⁵⁸58. Id.Show More

Furthermore, the fundamental right of marriage, even broadly construed, “has deep roots” capable of withstanding the Glucksberg test.⁵⁹59. Id. at 1833. Show More Indeed, the fundamental right to marriage is uncontested; as the majority concedes, the State Department acknowledges Muñoz’s fundamental right to marriage.⁶⁰60. Id. at 1822 (majority opinion). Show More Moreover, Sotomayor cites historical evidence, dating back to 1888, to support her robust definition of the marriage right. She even cites Tocqueville’s 1835 remark that “[t]here is certainly no country in the world where the tie of marriage is so much respected as in America.”⁶¹61. Id. at 1840 (Sotomayor, J., dissenting) (quoting Obergefell v. Hodges, 576 U.S. 644, 669 (2015) (quoting 1 Alexis de Tocqueville, Democracy in America 309 (H. Reeve transl., rev. ed. 1900)). Show More Thus, Sotomayor demonstrates that the centrality of marriage has been recognized since the birth of the United States—a historical tradition sufficient to support the right to marriage’s status as fundamental under the doctrine of substantive due process.

Justice Sotomayor’s dissent makes visible the sleight of hand upon which the majority’s analysis rests. By stipulating a narrow definition of a fundamental right which clashes with the analyses of earlier cases, the Court reframes a substantive due process claim as beyond the bounds of the fundamental right which it implicates, thereby denying relief without expressly invalidating the fundamental right. While this tactic for the denial of a substantive due process claim is formally distinct from that employed in Dobbs, Sotomayor recognizes that both approaches are part of the same effort to limit substantive due process rights, writing that “[d]espite the majority’s assurance two Terms ago that its eradication of the right to abortion ‘does not undermine . . . in any way’ other entrenched substantive due process rights . . . , the Court fails at the first pass.”⁶²62. Id. (quoting Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2257–58 (2022)). Show More As the next Part will demonstrate, the tactic of narrowing the definition of substantive rights so as to strip away precisely the dimensions of those rights that make them valuable could be applied in other substantive due process contexts—at great cost.

II. The Muñoz “Narrowing” Approach Applied

As the previous Part illustrates, the majority in Department of State v. Muñoz employed a strategy of redefining and narrowing fundamental rights—an approach which enabled them to reject “at the threshold” a right to marriage claim without overturning the fundamental right to marriage.⁶³63. Id. at 1817.Show More The utility of this approach is not limited to the marriage-and-immigration context.

The Muñoz strategy of narrowly defining fundamental rights may prove potent across substantive due process contexts because successfully arguing that the law burdens a fundamental, substantive right is crucial to a plaintiff’s chance of prevailing on a substantive due process claim. Fundamental rights are subject to strict scrutiny, the highest standard of constitutional review, which requires the government to demonstrate that the law in question (1) serves a compelling state interest and (2) is narrowly tailored to achieve that interest.⁶⁴64. Reno v. Flores, 507 U.S. 292, 302 (1993) (holding that the Fourteenth Amendment “forbids the government to infringe . . . ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest”); see also Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1283 (2007) (noting that the application of strict scrutiny to a fundamental due process right first emerged in Griswold v. Connecticut and that, since Roe v. Wade, courts have evaluated fundamental rights under strict scrutiny).Show More While a statute may be found to burden a fundamental right yet still survive strict scrutiny review, this is a high bar to meet.⁶⁵65. Carey v. Population Servs. Int’l, 431 U.S. 678, 686 (1977) (“[E]ven a burdensome regulation may be validated by a sufficiently compelling state interest.”). One empirical study found that, in substantive due process cases considered in federal courts between 1990 and 2003, 78 percent of challenged laws were defeated under strict scrutiny. See Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 864 (2006).Show More However, if the challenged law does not burden a fundamental right but only a mere “liberty interest,” only rational basis review is triggered.⁶⁶66. McClain & Fleming, supra note 24, at 633. Show More This standard, requiring only that the challenged statute further a “legitimate government interest” and be “rationally related” to doing so, is so deferential that Courts “all but automatically uphold[] the statute[s] in question.”⁶⁷67. Id.; see also Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976) (describing rational basis review as “a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one”). Show More Because it shifts the standard of review from strict scrutiny to rational basis, narrowly defining a fundamental right to exclude that which is burdened by the challenged statute all but dooms a due process challenge.

This Part will imagine how the redefinition tactic employed in Muñoz could be applied to narrow other unenumerated yet fundamental rights. The first Subpart will consider how a Muñoz-style redefinition of rights might curtail the fundamental right to contraception, even if Griswold v. Connecticut⁶⁸68. 381 U.S. 479 (1965).Show More is left standing: The Court may narrow its definition of the right to contraception to encompass only protections from bans on use, not regulations which restrict access to contraception or even eliminate the availability of some forms of contraception altogether. The second Subpart will demonstrate how the scope of parental rights may be narrowed with regard to parents’ ability to consent to gender-affirming care for their transgender children. Together, these Subparts demonstrate that the survival of substantive due process is not enough to protect the fundamental rights currently under attack by right-wing lawmakers and jurists. Rather, the survival of robust fundamental rights protections depends on the definitions of those fundamental rights remaining full in scope rather than artificially narrowed.

A. The Right to Contraception

Following nearly ninety years of federal and state restrictions on the transportation and use of contraception,⁶⁹69. See Priscilla J. Smith, Contraceptive Comstockery: Reasoning from Immorality to Illness in the Twenty-First Century, 47 Conn. L. Rev. 971, 981 (2015) (“[A] legal framework restricting contraceptives was not established in the United States until 1873 with the enactment of the Comstock Act . . . .”); Lauren MacIvor Thompson & Kelly O’Donnell, Contemporary Comstockery: Legal Restrictions on Medication Abortion, 37 J. Gen. Internal Med. 2564, 2566 (2022) (“[S]tate statutes and local ordinances known as the ‘Little Comstock Laws’ also followed in the wake of the 1873 federal statute to further regulate sex and sexual material.”).Show More the Supreme Court established the fundamental right to contraception for married couples in the 1965 landmark case Griswold v. Connecticut.⁷⁰70. 381 U.S. 479 (1965).Show More In that case, the Court struck down Connecticut’s “Little Comstock” act, concluding that, although the Constitution contains no enumerated right to contraception or privacy, a married couple’s use of contraception is protected by the “zone of privacy created by several fundamental constitutional guarantees.”⁷¹71. Id. at 485.Show More In the 1972 case Eisenstadt v. Baird, the Supreme Court extended Griswold’s holding to unmarried people on equal protection grounds.⁷²72. 405 U.S. 438, 453 (1972).Show More In 1977, the Court handed down the third case in the contraception-rights trilogy—Carey v. Population Services International.⁷³73. 431 U.S. 678 (1977).Show More In Carey, the Court affirmed the fundamental right to contraception (tied to the fundamental right to privacy) and found that this right may implicate “[r]estrictions” as well as “total prohibition[s] against sale of contraceptives.”⁷⁴74. Id. at 687.Show More Read together, this line of cases suggests a robust privacy right to contraceptive decision-making—a right not (yet) unsettled by the Court.

Contraception, however, is increasingly under attack by conservatives. Policymakers have propagated misinformation characterizing certain forms of contraception as abortifacients.⁷⁵75. Jill Filipovic, How American Women Could Lose the Right to Birth Control, Time (May 20, 2024, 7:00 AM), https://time.com/6977434/birth-control-contraception-access-griswold-threat [https://perma.cc/GDS6-XQZZ].Show More Conservative influencers have spread alarmist—and acontextual—anecdotes about hormonal birth control’s health consequences.⁷⁶76. Kat Tenbarge, Conservative Influencers are Pushing an Anti-Birth Control Message, NBC (July 1, 2023, 6:00 AM), https://www.nbcnews.com/tech/internet/birth-control-side-effects-influencers-danger-rcna90492 [https://perma.cc/38ML-QKVG]. For example, one prominent anti-contraception influencer, Turning Point USA’s Alex Clark, has called hormonal birth control “poison” and suggested that it is an abortifacient, causes cancer, has long-term effects on fertility, accelerates aging, and can even “falsely make women feel bisexual.” Justin Horowitz, Turning Point USA’s Alex Clark is on a Misinformation Campaign Against Hormonal Birth Control, Media Matters for Am. (Feb. 14, 2023, 9:00 AM), https://www.mediamatters.org/health-care/turning-point-usas-alex-clark-misinformation-campaign-against-hormonal-birth-control [https://perma.cc/EM6W-BUA4].Show More In June 2024, Senate Republicans blocked the Right to Contraception Act,⁷⁷77. Mary Clare Jalonick, Republicans Block Bill to Protect Contraception Access as Democrats Make Election-Year Push, AP (June 5, 2024, 4:03 PM), https://apnews.com/article/contraception-senate-abortion-biden-trump-reproductive-rights-3f9e8546624a3acf8e64d1138fcb84b1 [https://perma.cc/MBX2-L7PX].Show More legislation which would have instituted federal protections of “an individual’s ability to access contraceptives and to engage in contraception” and “a health care provider’s ability to provide contraceptives, contraception, and information related to contraception.”⁷⁸78. S. 4381, 118th Cong. (2024).Show More The emerging effort to restrict access to birth control would be facilitated by overturning the substantive due process cases, including Griswold, as Justice Thomas urged in his Dobbs concurrence.⁷⁹79. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2301 (2022) (Thomas, J., concurring) (“[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”).Show More But rather than overturn Griswold, the Court may instead choose to narrow the definition of the fundamental right to privacy as applied to contraception.

Under current law, the fundamental right to privacy broadly guarantees the right to “be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”⁸⁰80. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).Show More Not only has the Court found outright bans on contraception use unconstitutional,⁸¹81. Id.; see also Griswold v. Connecticut, 381 U.S. 479, 485 (1965).Show More but it has recognized that despite Griswold’s language ostensibly permitting restrictions on the manufacture or sale of contraceptives, “less than total restrictions on access to contraceptives that significantly burden the right to decide whether to bear children must also pass constitutional scrutiny.”⁸²82. Carey v. Population Servs. Int’l, 431 U.S. 678, 697 (1977).Show More “[A]ccess,” the Court explains in Carey, “is essential to exercise of the constitutionally protected right of decision in matters of childbearing.”⁸³83. Id. at 688–89.Show More Thus, restrictions which “render[] contraceptive devices considerably less accessible to the public, reduce[] the opportunity for privacy of selection and purchase, and lessen[] the possibility of price competition” trigger strict scrutiny.⁸⁴84. Id. at 689. Show More

The Court, however, may seek to narrow the fundamental privacy interest to merely the right to use contraception. In advocating for this redefinition, the Court may cite Griswold, in which the Court describes the law found to be unconstitutional as “a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.”⁸⁵85. Griswold v. Connecticut, 381 U.S. at 485 (emphasis added). Reva Siegel and Mary Ziegler have argued that this language was included “sub silentio to distinguish and to distance Comstock” by permitting restrictions such as those on the mailing of contraceptives. See Reva B. Siegel & Mary Ziegler, Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, 134 Yale L.J. 1068, 1151 (2025).Show More Laws “regulating the[] manufacture or sale” of contraceptives, the Court might reason, are different from laws “forbidding the use of contraceptives”; under Griswold, the former is presumed not to burden the fundamental privacy interest, while the latter does burden that fundamental right.

This construction is clearly contrary to the holding in Carey, which emphasizes how “less than total restrictions on access” to contraceptives may still burden the fundamental liberty if those restrictions make it harder to exercise one’s right to make reproductive choices.⁸⁶86. Carey, 431 U.S. at 688–89, 697.Show More But the Court may attempt to salvage their Muñoz-style redefining analysis by characterizing the problem with the restrictions in Carey as the fact that they mounted such a high barrier to contraceptive access that they constituted a de facto ban. In Carey, the Court might reason, extreme barriers to accessing “any contraceptive of any kind,”⁸⁷87. Id. at 681.Show More rather than only prescription contraception, may have precluded many individuals from using any sort of contraception, leaving them with no way to prevent pregnancy whatsoever. In contrast, restrictions which do not apply to all varieties of contraception, or which make accessing contraception inconvenient but not excessively burdensome, would not be considered to burden the fundamental right to contraception.

By concluding that individuals have a fundamental liberty interest only in the ability to use contraception—but not in discretion over methods of contraception, nor in the convenience of access—the Court may authorize any number of laws with the effect of significantly reducing individuals’ ability to exercise agency over reproduction. Bans on forms of contraception—for instance, the bans on IUDs and emergency contraception which are already being contemplated in some red states⁸⁸88. See Don’t Be Fooled: Birth Control Is Already at Risk, Nat’l Women’s L. Ctr. (June 17, 2022), https://nwlc.org/resource/dont-be-fooled-birth-control-is-already-at-risk [https://perma.cc/65UN-5MR7]. If IUDs and emergency contraception are deemed abortifacients, the belief upon which these laws are premised, the holding in Dobbs may allow states to proscribe them, regardless of the legal status of contraception-related rights. See Filipovic, supra note 73.Show More—may be deemed permissible because individuals are still free to use contraception like the pill, the subdermal implant, or barrier methods. Prohibitions on telecontraception,⁸⁹89. See Jenna Nitkowski, State-Level Conditions and Telecontraception Platform Availability, 12 Health Pol’y & Tech. 1, 1 (2023) (analyzing telecontraception availability across state lines). State licensing laws have already impeded telecontraception services from operating in some states, including Louisiana and Tennessee. See Melissa Daniels, Online Birth Control Providers Are Booming Amid Restrictive Care Laws, ModernRetail (Sept. 4, 2024), https://www.modernretail.co/marketing/online-birth-control-providers-are-booming-amid-restrictive-care-laws [https://perma.cc/4DUV-8MSJ].Show More over-the-counter birth control pills,⁹⁰90. See A New Birth Control Pill Is Available Over the Counter. Who Is It For?, Colum. U. Irving Medical Ctr. (July 20, 2023), https://www.cuimc.columbia.edu/news/new-birth-control-pill-available-over-counter-who-it [https://perma.cc/X2JT-LRGU] (describing the over-the-counter birth-control pill as helping to overcome “significant barriers to access” to contraception).Show More and extended-supply birth control⁹¹91. See Maria I. Rodriguez, Thomas H. A. Meath, Ashley Daly, Kelsey Watson, K. John McConnell & Hyunjee Kim, Twelve-Month Contraceptive Supply Policies and Medicaid Contraceptive Dispensing, 5 JAMA Health Forum 1, 2, 6 (2024) (finding that “dispensing only 1 month of pills at a time is associated with decreased continuation of contraception and increased unintended pregnancies” and describing that “[t]o address this barrier to contraceptive use, policymakers have enacted 12-month contraceptive supply policies in 19 states”).Show More—innovations which have done much to expand access to birth control in so-called “contraceptive deserts”⁹²92. See Contraceptive Deserts, Power to Decide, https://powertodecide.org/what-we-do/contraceptive-deserts [https://perma.cc/UGD6-3KQD].Show More—do not prevent individuals from using birth control but rather merely require them to see their physicians in person and refill their prescriptions monthly; as such, these restrictions may be characterized as imposing inconvenience rather than burdening access. These hypothetical restrictions are by no means exhaustive; under this standard, any regulation which does not pose a de facto barrier to contraception use would fall beyond the fundamental liberty established in Griswold.⁹³93. One hypothetical restriction that would not fall within this narrowing strategy in the contraception context is the revival of the Comstock Act to prohibit the shipping of contraception. In recent years, “opponents of abortion have made raising Comstock from the dead a key part of their current strategy,” hoping to use the nineteenth-century law’s restrictions on shipping abortion-related materials (including abortion medications, instruments, and other equipment) to reduce or ban abortion nationwide. David S. Cohen, Greer Donley & Rachel Rebouché, Abortion Pills, 76 Stan. L. Rev. 317, 345, 346–47 (2024). For further discussion of efforts to revive the Comstock Act to restrict abortion, see Siegel & Ziegler, supra note 83 at 1071; Danny Y. Li, The Comstock Act’s Equal Protection Problem, 123 Mich. L. Rev. Online 42 (2025). The Comstock Act, however, is moot in the contraception context, because following Griswold v. Connecticut, “Congress deleted references to birth control from the statute in 1971.” Cohen, Donley & Rebouché, supra note 91, at 343. And even if Congress were to restore the language referencing contraception in a revived Comstock Act, the Court would almost certainly need to overrule Carey to ratify such a total ban on shipping contraception—a change in law that would look more like a Dobbs-style overturning than a Muñoz-style narrowing. A total ban on shipping, after all, is much broader in scope than the law struck down in Carey, which only made it a crime for three reasons: “(1) for any person to sell or distribute any contraceptive of any kind to a minor under the age of 16 years; (2) for anyone [except a] licensed pharmacist to distribute contraceptives to persons 16 or over; and (3) for anyone, including licensed pharmacists, to advertise or display contraceptives.” Carey v. Population Servs. Int’l, 431 U.S. 678, 681 (1977).Show More

Because such regulations would be deemed to burden liberties beyond the contraception right established in Griswold and extended in Eisenstadt and Carey, the Court would then turn to the Glucksberg test to determine whether this newly asserted fundamental right to contraception without restriction or inconvenience passes muster. The Court would almost certainly find that this right is not “deeply rooted in this Nation’s history and tradition,” given the history of laws like the Comstock Act that have harshly regulated contraception.⁹⁴94. See Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)) (summarizing the primary features of the Court’s method of substantive due process analysis: (1) whether the fundamental rights and liberties in question are rooted in the nation’s history, and (2) whether there is a description of the fundamental liberty interest being asserted). Scholars have hypothesized that, if the Court reconsidered Griswold as they did Roe, they would find that no right to contraceptive privacy was sufficiently “deeply rooted” to survive Glucksberg on these grounds. See, e.g., Martha Minow, The Unraveling: What Dobbs May Mean for Contraception, Liberty, and Constitutionalism, in Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion 318, 329–30 (Lee C. Bollinger & Geoffrey R. Stone eds., 2024).Show More To be sure, there is a long history of unrestricted contraceptive use in the United States prior to the Comstock Act and its state equivalents.⁹⁵95. Minow, supra note 92 at 329.Show More But as Martha Minow argues, “[n]one of this actual history . . . is likely to matter in litigation challenging future contraception restrictions, given how the Dobbs majority selected particular historical moments of the late nineteenth century and ignored both prior and subsequent practice.”⁹⁶96. Id.Show More

Having defeated their strawman fundamental right to contraception under the Glucksberg test, the Court would consider any such restriction under rational basis review. Because the aforementioned restrictions could be connected to efforts to avoid inadvertent compromise of fetal life or the health and safety of the would-be contraception user, they would pass muster. Thus, sweeping restrictions on contraception could be upheld by the Court even while Griswold is ostensibly left intact.

B. Parental Rights & Gender-Affirming Care

In his call for the rejection of substantive due process, Justice Thomas singled out for reconsideration cases regarding the issues of reproduction and LGBTQ life. Another less obviously divisive right falls under the substantive due process umbrella and yet escapes Justice Thomas’s condemnation: the fundamental liberty interest of parents to control the upbringing of their children.

Parental rights are the oldest of the existing substantive due process rights.⁹⁷97. See Troxel v. Granville, 530 U.S. 57, 65 (2000) (describing parental rights as “perhaps the oldest of the fundamental liberty interests recognized by this Court”).Show More In Meyer v. Nebraska, the first of the parental rights cases, the Court struck down a statute prohibiting the teaching of German to schoolchildren, finding that parents’ decision-making regarding their children’s education falls within the fundamental right “to marry, establish a home and bring up children.”⁹⁸98. 262 U.S. 390, 399 (1923).Show More Two years later, the Court relied on their holding in Meyer to settle Pierce v. Society of Sisters.⁹⁹99. 268 U.S. 510 (1925).Show More In that case, the Court found unconstitutional a statute requiring children to attend public rather than private schools, reasoning that the statute “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.”¹⁰⁰100. Id. at 534–35.Show More As the Court explained, “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”¹⁰¹101. Id. at 535. Show More

In Prince v. Massachusetts, the Court reaffirmed the paramount importance of this fundamental right, writing that “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”¹⁰²102. 321 U.S. 158, 166 (1944).Show More More recently, in Troxel v. Granville, the Court struck down a state statute permitting judges to order grandparent visitation against the wishes of parents, finding the statute repugnant to the widely recognized “fundamental right of parents to make decisions concerning the care, custody, and control of their children.”¹⁰³103. 530 U.S. 57, 66 (2000).Show More The Court has found that this fundamental right to parental authority extends to medical decision-making, even against the wishes of an adolescent; in Parham v. J.R., the Court upheld parents’ right to commit their children to mental hospitals on the basis of the fundamental “broad parental authority over minor children,” which includes the right to “recognize symptoms of illness and to seek and follow medical advice.”¹⁰⁴104. 442 U.S. 584, 602 (1979).Show More

Conservative jurists’ objection to the principle of substantive due process in general has not been used to challenge parental rights explicitly—perhaps because the idea of parental rights is frequently employed to advance conservative causes.¹⁰⁵105. Interestingly, the majority opinion in Dobbs describes Meyer and Pierce as establishing “the right to make decisions about the education of one’s children”—an uncommonly narrow construal of parents’ substantive due process rights that may be taken to signal an appetite for a narrowed conception of fundamental parental rights. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2257 (2022). Show More In recent years, parental rights have been invoked to impose restrictions on public school curricula,¹⁰⁶106. See generally Cecilia Giles, Comment, Parental Rights or Political Ploys? Unraveling the Deceptive Threads of Modern “Parental Rights” Legislation, 92 U. Cin. L. Rev. 1171, 1172 (2024) (describing the use of parental rights narratives to push a conservative political agenda into public schools). A notable example of this trend is Florida’s infamous “Don’t Say Gay” law. Id. at 1180.Show More Title IX protections for transgender minors,¹⁰⁷107. See Cris Mayo, Distractions and Defractions: Using Parental Rights to Fight Against the Educational Rights of Transgender, Nonbinary, and Gender Diverse Students, 35 Educ. Pol’y 368, 369 (2021).Show More minors’ access to reproductive healthcare,¹⁰⁸108. See Elizabeth Tobin-Tyler, The Past and Future of Parental Rights: Politics, Power, Pluralism, and Public Health, 30 Va. J. Soc. Pol’y & L. 312, 323–25 (2023). Show More vaccination requirements,¹⁰⁹109. See id. at 325–27.Show More and school mask mandates.¹¹⁰110. See id. at 328–29.Show More Conservative judges, legislators, and advocacy groups have rallied around this growing parental rights movement.¹¹¹111. See, e.g., id. at 329; Emilie Kao, Safeguarding Parental Rights and Protecting Children from Federally Mandated Gender Ideology, Heritage Found. (Jan. 10, 2023), https://www.heritage.org/gender/report/safeguarding-parental-rights-and-protecting-children-federally-mandated-gender [https://perma.cc/YZ4W-9G42]. See generally Ira C. Lupu, The Centennial of Meyer and Pierce: Parents’ Rights, Gender-Affirming Care, and Issues in Education, 26 J. Contemp. Legal Issues 147, 198 (2025) (documenting the uptake of parental rights messaging by conservatives). Show More Most recently, the Supreme Court held in Mahmoud v. Taylor that including LGBTQ+-themed storybooks in public-school curricula without inviting parental opt-outs “strip[s] away the critical right of parents to guide the religious development of their children.”¹¹²112. No. 24-297, slip op. at 31 (U.S. June 27, 2025). As Justice Sotomayor notes in her dissent, the majority based this decision exclusively on the Free Exercise Clause of the First Amendment, “mak[ing] no mention of substantive due process rights or the Fourteenth Amendment Due Process Clause” even though the precedents cited in support of their decision are “hybrid rights” cases relying on Free Exercise and Substantive Due Process in conjunction. Id. at 35 (Sotomayor, J., dissenting). Perhaps this signals the beginning of the Court’s retreat from a substantive due process jurisprudence of parental rights that would enable some assertions of parental agency to endure, even if substantive due process as a whole perishes. Show More

Parental rights, however, bear on a controversial issue to which conservative judges, legislators, and activists have been hostile: the right of parents to consent to gender-affirming care for their transgender children. About half of U.S. states, within which at least 39 percent of American trans teenagers reside, have passed bans on gender-affirming care for minors.¹¹³113. Hila Keren, Due Care in a Conservative Court, 2025 Wisc. L. Rev. 1, 3–4 (2025).Show More Over the course of the past several years, challenges to these laws have percolated through federal courts.¹¹⁴114. See, e.g., L.W. ex rel. Williams v. Skrmetti, 679 F. Supp. 3d 668 (M.D. Tenn. 2023) rev’d and remanded, 83 F.4th 460 (6th Cir. 2023); Eknes-Tucker v. Marshall, 603 F. Supp. 3d 1131 (M.D. Ala. 2022), vacated sub nom. Eknes-Tucker v. Governor of Alabama, 80 F.4th 1205 (11th Cir. 2023); Poe ex rel. Poe v. Labrador, 709 F. Supp. 3d 1169 (D. Idaho 2023). Show More Plaintiffs have alleged that, in addition to discriminating on the basis of sex in violation of the Equal Protection Clause, such laws substantially burden parents’ right “to make medical decisions for their minor children, including the right to obtain established medical treatments to protect their children’s health and well-being.”¹¹⁵115. Complaint at 20, Doe 1 v. Thornbury, 679 F. Supp. 3d 576 (W.D. Ky. 2023) (No. 3:23CV-230). Show More

District courts have found this argument convincing. The District Court for the Middle District of Tennessee, for one, “agree[d] with Plaintiffs that under binding Sixth Circuit precedent, parents have a fundamental right to direct the medical care of their children, which naturally includes the right of parents to request certain medical treatments on behalf of their children,” thus issuing a preliminary injunction of the law.¹¹⁶116. Skrmetti, 679 F. Supp. 3d at 684. For scholarly accounts of the Due Process argument against child gender-affirming healthcare bans, see Outlawing Trans Youth: State Legislatures and the Battle over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163, 2183–85 (2021) [hereinafter Outlawing]; Amy Vedder, Not a Mere Creature of the State: Protecting Parental Rights in the Era of Anti-Trans Legislation, 19 Harv. L. & Pol’y Rev. 279, 295–305 (2024). Show More On appeal, however, the Sixth Circuit Court of Appeals reversed the trial court’s preliminary injunction.¹¹⁷117. Skrmetti, 83 F.4th at 491. Show More Of three other recent cases which successfully challenged similar bans under a Due Process theory at the district-court level, two were likewise reversed at the circuit level.¹¹⁸118. The three cases are: Doe 1 v. Thornbury, 679 F. Supp. 3d 576 (W.D. Ky. 2023), rev’d and remanded sub nom. L. W. ex rel. Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert. dismissed in part sub nom. Doe v. Kentucky, 144 S. Ct. 389 (2023), and cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024); Eknes-Tucker v. Marshall, 603 F. Supp. 3d 1131 (M.D. Ala. 2022), vacated sub nom. Eknes-Tucker v. Governor of Alabama, 80 F.4th 1205 (11th Cir. 2023); and Poe ex rel. Poe v. Labrador, 709 F. Supp. 3d 1169 (D. Idaho 2023). While Poe has not yet been reversed, it has been appealed to the U.S. Court of Appeals for the Ninth Circuit and is awaiting disposition.Show More Plaintiffs appealed the Sixth Circuit’s decision to the Supreme Court, which granted certiorari in June 2024, making United States v. Skrmetti the vehicle for the Court’s consideration of the constitutionality of gender-affirming care bans for minors.¹¹⁹119. Lupu, supra note 109, at 180–81. Show More

On June 18, 2025, the Supreme Court handed down its decision in Skrmetti, upholding on equal-protection grounds the Tennessee ban on gender-affirming care for minors.¹²⁰120. United States v. Skrmetti, No. 23–477, slip op. at 24 (U.S. June 18, 2025) (holding that Tennessee’s SB1 “does not violate the equal protection guarantee of the Fourteenth Amendment”). Show More The Court, however, did not address the parental rights theory of the bill’s constitutional impermissibility, despite the fact that the petition for certiorari, like the briefing below, included both due process and equal protection arguments.¹²¹121. Both the Department of Justice and the ACLU litigated the case at the Sixth Circuit and sought certiorari at the Court, but the Court only granted the government’s petition. The Department of Justice is only statutorily authorized to intervene with regard to the plaintiff’s equal protection argument, not their due process parental rights claim. As a result, the Court only addressed the equal protection argument. See Mark Joseph Stern, Transgender Rights Advocates’ Last Best Hope Is Neil Gorsuch and John Roberts, Slate (June 24, 2024, 1:20 PM), https://slate.com/news-and-politics/2024/06/transgender-supreme-court-neil-gorsuch-john-roberts.html [https://perma.cc/D4FU-VXK2]; see also 42 U.S.C. § 2000h-2 (1964) (authorizing the Attorney General to intervene “[w]henever an action has been commenced in any court of the United States seeking relief from the denial of equal protection of the laws under the fourteenth amendment to the Constitution on account of race, color, religion, or national origin”—but not in due process cases)).Show More As a result, it remains unresolved whether parents have a due process right to make decisions regarding gender-affirming care for their minor children. Challenges to recent federal restrictions on gender-affirming care for minors may soon come to the Court, presenting it with the opportunity to settle the due process issue not reached in Skrmetti.¹²²122. See, e.g., Complaint for Declaratory and Injunctive Relief, PFLAG v. Trump, No. 1:25-cv-00337-BAH (D. Md. Feb 4, 2025) (challenging Donald Trump’s January 28, 2025 Executive Order restricting gender-affirming care for young people). The complaint argues that, “[b]y directing agencies to withhold grants from entities that provide gender affirming medical care to minors, the Gender Identity and Denial of Care Orders infringe upon parents’ fundamental rights by overriding the aligned judgment of parents, adolescents, and their doctors regarding medically necessary care.” Id. at 40. The District Court for the District of Maryland granted a preliminary injunction. PFLAG, Inc. v. Trump, 769 F. Supp. 3d 405 (D. Md. 2025). Defendants appealed to the Fourth Circuit, which subsequently granted defendants’ motion to hold the case in abeyance for a decision in United States v. Skrmetti. Order Granting Motion for Abeyance, PFLAG, Inc. v. Trump, No. 25-1279 (4th Cir. May 12, 2025).Show More

Parental rights may be the most viable remaining basis on which to challenge gender-affirming care bans moving forward. Despite its holding in Skrmetti, there is reason to suspect that the Roberts Court may be more sympathetic to a parental-rights argument for the unconstitutionality of gender-affirming care bans. As scholar Hila Keren has argued, the justices’ conservative orientation may be more amenable to substantive due process parental rights arguments than to antidiscrimination arguments.¹²³123. Keren, supra note 111, at 9–10, 39.Show More According to Keren, “parental rights stand a better chance, as they are uniquely important to conservatives who care about keeping the government out of parents’ choices in settings such as homeschooling and vaccination.”¹²⁴124. Hila Keren, Parental Rights Face a Surprising Moment of Truth at the Supreme Court, Slate (Sept. 19, 2024, 5:45AM), https://slate.com/news-and-politics/2024/09/supreme-court-term-trans-rights-parental-rights.html [https://perma.cc/KUH4-QN3H]. Show More This argument, however, does not take into account the way in which the Court could employ a strategic redefinition of parental rights to foreclose this alternative avenue to challenge gender-affirming care bans without disturbing parental rights more broadly.

Even though parental-rights precedent gives parents wide latitude to make decisions for children, including medical decisions, the Court may employ a narrow, Muñoz-like construction of fundamental parental rights that excludes the ability to consent to gender-affirming care. For instance, the right to make “decisions concerning the care, custody, and control of [one’s] children” may be said to encompass only traditional concerns of child-rearing, not “the use of innovative, and potentially irreversible, medical treatments for children” which concern “new norms, new drugs, and new public health concerns.”¹²⁵125. L. W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 471, 475 (6th Cir. 2023) (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000), cert. dismissed in part sub nom. Doe v. Kentucky, 144 S. Ct. 389 (2023), and cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024).Show More Just as the Muñoz Court reasoned that the fundamental right of marriage does not extend so far as to curtail the government from regulating immigration at their discretion, the Court may reason—as the Sixth Circuit did in Skrmetti before the case reached the Supreme Court—that the substantive due process right of parental discretion does not extend so far as to “prevent[] governments from regulating the medical profession in general or certain treatments in particular, whether for adults or their children.”¹²⁶126. Id. at 473.Show More This construction of parental rights would enable the Court to seemingly maintain parental rights while excluding gender-affirming health care from that package of rights.

Under this narrowed conception of parental rights, gender-affirming care restrictions would not be classified as burdening the fundamental liberty interests of parents to make decisions regarding their children. The Court could defeat the right to consent to gender-affirming care under Glucksberg by pointing out, as the Sixth Circuit did in Skrmetti, that “[s]tate and federal governments have long played a critical role in regulating health and welfare”; as such, legislation would only need to satisfy rational basis review.¹²⁷127. Id.Show More Given the low bar of rational basis and states’ interest in “protecting minors’ health and welfare,”¹²⁸128. United States v. Skrmetti, No. 23–477, slip op. at 4 (U.S. June 18, 2025). The Court found such an objective to satisfy rational basis review in Skrmetti, id. at 22 (stating that rational basis review is met since, because there is an “ongoing debate among medical experts regarding the risks and benefits[,] . . SB1’s ban on such treatments responds directly to that uncertainty.”).Show More the laws would be deemed constitutional. Thus, the Court could significantly curtail parental rights in the gender-affirming care context while leaving the “fundamental right of parents to make decisions concerning the care, custody, and control of their children” intact.¹²⁹129. Troxel v. Granville, 530 U.S. 57, 66 (2000).Show More This would bolster Skrmetti’s authorization of state legislation denying trans youth the healthcare which every major U.S. medical association has deemed the appropriate treatment for gender dysphoria and which research associates with “decreased anxiety, depression, suicidal behavior, and psychological distress, and increased quality of life.”¹³⁰130. See Outlawings, supra note 114, at 2165, 2168.Show More

Conclusion

Since the Supreme Court handed down Dobbs v. Jackson Women’s Health Organization,¹³¹131. 142 S. Ct. 2228 (2022).Show More overturning the fundamental right to abortion, observers of the Court have anticipated its repudiation of other unenumerated Due Process rights. Looking to Clarence Thomas’s concurrence, many commentators fear the Court’s wholesale rejection of substantive due process or Dobbs-style overturning of specific rights.¹³²132. See supra note 23 and accompanying text.Show More But as this Case Comment has demonstrated, the Court need not follow Justice Thomas’s recommended course to chip away at substantive due process rights. In Department of State v. Muñoz,¹³³133. 144 S. Ct. 1812 (2024). Show More the first substantive due process case decided by the Court since Dobbs, the Supreme Court models an alternative approach to the contraction of fundamental rights.

The legal concept of property is famously described as a “bundle of rights,” a metaphor which highlights how ownership encompasses related yet distinct entitlements that can be differentiated in concept and disaggregated in practice.¹³⁴134. See, e.g., Gregory S. Alexander, Commodity & Propriety 319 (1997) (“No expression better captures the modern legal understanding of ownership than the metaphor of property as a ‘bundle of rights.’”); J. E. Penner, The “Bundle of Rights” Picture of Property, 43 UCLA L. Rev. 711, 712 (1966) (“The currently prevailing understanding of property in what might be called mainstream Anglo-American legal philosophy is that property is best understood as a ‘bundle of rights.’”).Show More The fundamental liberties protected by substantive due process are likewise bundles of rights. The fundamental liberty interest in marriage, for example, combines legal recognition, material and dignitary benefits, physical proximity, emotional intimacy, and family-building. In Muñoz, the Court preserves the liberty interest in marriage but thins the bundle of rights which comprise it, leaving behind only the “stick” which corresponds to the legal status of marriage. This approach—while seemingly less radical than the wholesale rejection of substantive due process or the constitutional marriage right—nevertheless denies the plaintiff protections to which she is entitled and weakens the marriage right more broadly. As this Case Comment has demonstrated, this approach has implications beyond the facts of Muñoz. The fundamental liberty interests which have thus far protected access to contraception and parental autonomy are likewise bundles of rights which the Court could disaggregate and selectively discard.

The Muñoz approach, in short, enables fundamental rights to be formally maintained but practically diminished—in other words, reduced from a robust constellation of substantive rights to a legal protection in name only. In the wake of Dobbs, progressives have feared that the demise of fundamental rights protections would come in the form of the repudiation of substantive due process writ large. But these commentaries fail to apprehend that the assault on fundamental rights may come through a subtler yet equally insidious strategy: the Court’s narrowing of how fundamental rights are defined, which allows protections currently taken for granted to be stripped away. Fundamental rights protections, then, depend not just on the survival of the substantive due process doctrine but upon the survival of full and robust definitions of substantive due process rights. If Muñoz is any indication of the future of substantive due process jurisprudence, fundamental rights may be stripped away not with a bang but with a whimper—but stripped away nonetheless.¹³⁵135. See T.S. Eliot, The Hollow Men, Poets.org, https://poets.org/poem/hollow-men [https://perma.cc/PN5W-BYZK].Show More

Maeve O’Brien²2. * Copyright © 2024 by Maeve O’Brien. J.D., 2024, New York University School of Law; B.A., 2020, The University of Michigan. Thank you to Professors Barry Adler and Paul Barrett for teaching the class that introduced me to the Donziger case, and to Professor Adler specifically for supervising my work on this essay. Thank you as well to the Online Department of the New York University Law Review for their thoughtful edits to this piece, particularly (in alphabetical order by last name), Gordon Ahl, Elaine Miao, Lydia Schiller, Julius Sim, and Shawn Young.Show More*

“[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them . . . . It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” The Federalist No. 78 (Alexander Hamilton).

Last term, the Supreme Court denied a petition for writ of certiorari, filed by now famed environmental lawyer Steven Donziger, that presented the question of whether Federal Rule of Criminal Procedure 42(a)(2) violated the Appointments Clause of the U.S. Constitution. The rule allows federal judges to appoint private attorneys to prosecute criminal contempt charges should the government decline to do so and was the mechanism by which Donziger himself was prosecuted. Justice Gorsuch, joined by Justice Kavanaugh, dissented from the denial, arguing that the appointment of the special prosecutors ran afoul of the text of the Appointments Clause and blurred the line between the judicial and executive powers. The denial of the petition is an interesting departure from the Court’s recent Appointments Clause jurisprudence, which has been sensitive to separation of powers concerns, and provides a data point on where the Court is unwilling to draw a rigid line between the functions of the three branches.

Introduction

No shortage of ink has been spilled about the (literal) trials and tribulations of Steven Donziger. He rose to prominence after winning an over $9 billion victory in Ecuador for the Cofán people, an indigenous group living in the Amazon, against Chevron.³3. Isabella Grullón Paz, Lawyer Who Won $9.5 Billion Judgment Against Chevron Reports to Prison, N.Y. Times (Oct. 27, 2021), https://www.nytimes.com/2021/10/27/business/energy-environment/steven-donziger-chevron.html [https://perma.cc/AK24-U9W5].Show More Chevron had drilled for oil in the region and polluted it, allegedly, and tragically, giving many Cofán people cancer and other diseases.⁴4. Paul M. Barrett, Law of the Jungle 215-218 (2014) (describing the impact of oil drilling on the Cofán people).Show More However, an American judge found that Donziger’s victory was won through bribery and fraud—that he had taken advantage of opportunities for corruption in the Ecuadorian legal system.⁵5. See Chevron Corp. v. Donziger (Chevron I), 974 F. Supp. 2d 362 (S.D.N.Y. 2014), aff’d, 833 F.3d 74 (2d Cir. 2016). Show More The judge ruled that the Ecuadorian judgment could not be enforced in the United States;⁶6. See id. at 642.Show More after decades of litigation, no money changed hands from Chevron to the Cofán people. The ensuing legal battle in the United States culminated in Donziger having to spend months in federal prison and years in house arrest,⁷7. Paz, supra note 1.Show More garnering significant media attention and public outcry.⁸8. See, e.g., Erin Brockovich, This Lawyer Should Be World-Famous for His Battle with Chevron – but He’s in Jail, Guardian (Feb. 8, 2022, 11:54 AM), https://www.theguardian.com/commentisfree/2022/feb/08/chevron-amazon-ecuador-steven-donziger-erin-brockovich [https://perma.cc/3K8K-YXNJ]; Sharon Lerner, How the Environmental Lawyer Who Won a Massive Judgment Against Chevron Lost Everything, Intercept (Jan. 29, 2020), https://theintercept.com/2020/01/29/chevron-ecuador-lawsuit-steven-donziger [https://perma.cc/W9F6-386W]; Support Steven, Free Donziger, https://www.freedonziger.com [https://perma.cc/B3QD-H2NB] (last visited Dec. 27, 2023). Show More

There are many interesting things to say about every chapter of Donziger and Chevron’s decades-long fight. Indeed, the story has inspired a documentary,⁹9. Crude (Joe Berlinger Sept. 9, 2009).Show More a book,¹⁰10. Barrett, supra note 2.Show More and hundreds of news articles.¹¹11. See, e.g., Kevin E G Perry, Crusading Lawyer Steven Donziger on His 993 Days of House Arrest Amid Battle with Oil Companies, Independent (Jan. 8, 2024), https://www.independent.co.uk/climate-change/news/steven-donziger-interview-texaco-oil-b2446695.html [https://perma.cc/S37Y-3W8L]; Paz, supra note 1; Brokovich, supra note 6; Lerner, supra note 6.Show More The focus of this Case Comment, however, is on the end of the story, at least as it stands now: Donziger’s constitutional challenge to his criminal contempt prosecution, and the United States Supreme Court’s recent decision not to hear the case.¹²12. See Donziger v. United States (Donziger III), 143 S. Ct. 868 (2023) (denying Donziger’s petition for a writ of certiorari).Show More

Donziger’s legal battle in the U.S. culminated in him being convicted of criminal contempt, the reason that he ultimately spent time in prison.¹³13. United States v. Donziger (Donziger I), 2021 WL 3141893, at *86 (S.D.N.Y. July 26, 2021), aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023); see also Brockovich, supra note 6 (noting that Donziger reported to serve a six-month prison sentence for contempt).Show More He was prosecuted not by a local district attorney, but by private attorneys that were appointed to serve as special prosecutors by the judge overseeing Donziger’s civil case.¹⁴14. See Order of Appointment, United States v. Donziger, No. 11-cv-00691-LAK-RWL (S.D.N.Y. July 31, 2019).Show More The judge had authority to do this under Federal Rule of Criminal Procedure 42(a)(2) (“Rule 42”), which provides that in cases of criminal contempt, “[t]he court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.”¹⁵15. Fed. R. Crim. P. 42(a)(2). The Federal Rules of Criminal Procedure are promulgated by the United States Supreme Court, House Comm. on the Judiciary, 116th Cong., Federal Rules of Criminal Procedure iii (Comm. Print 2020), and govern all criminal proceedings across federal courts, where Donziger was prosecuted. Fed. R. Crim. P. 1(a)(1).Show More

The current rule came about after the 1987 Supreme Court case, Young v. U.S. ex rel. Vuitton et Fils S.A. There, as in Donziger’s case, the defendants were prosecuted for criminal contempt by a private attorney appointed by the district court.¹⁶16. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 791–92 (1987).Show More Relevant here, they argued that the court lacked such authority under the version of Rule 42 that existed then.¹⁷17. Id. at 793. Show More The Court held that even though the old Rule 42 did not explicitly authorize courts to appoint private attorneys, it was “long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt.”¹⁸18. Id. The Court also ultimately held that the prosecutors appointed in Young were not disinterested because they represented the private beneficiaries of the court order that the defendants allegedly violated, rendering their appointment improper. Id. at 814.Show More There was a “longstanding acknowledgement” that such authority was “part of the judicial function” and “essential to ensuring that the Judiciary ha[d] a means to vindicate its own authority without complete dependence on other Branches.”¹⁹19. Id. at 795–96.Show More Without it, the Judiciary would be “at the mercy of another Branch”: the Executive.²⁰20. Id. at 796. Notably, Justice Scalia concurred in the judgment, but on the ground that prosecution of criminal contempt is part of the Article II executive power, not the Article III judicial power. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816 (1987) (Scalia, J., concurring). The judicial power “includes the power to serve as a neutral adjudicator in a criminal case,” but does not “generally include the power to prosecute crimes.” Id. at 816. To Justice Scalia, the idea of the efficaciousness of judicial judgments being at the mercy of the Executive, “[f]ar from being absurd . . . is a carefully designed and critical element of our system of Government.” Id. at 817.Show More However, the Court indicated that the ability to appoint private prosecutors should be restrained by the principle that “only [t]he least possible power adequate to the end proposed should be used in contempt cases.”²¹21. Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 801 (1987) (quoting United States v. Wilson, 421 U.S. 309, 319 (1975)) (internal quotation marks omitted). Show More Therefore, the court should first refer the case to the public prosecutor’s office, and it should only appoint a private prosecutor if the request is denied.²²22. Id. at 801.Show More In 2002, the language of Rule 42 was amended to reflect the holding in Young.²³23. Fed. R. Crim. P. 42(a)(2) advisory committee’s note to 2002 Amendment. Show More

It is worth pausing to note that Rule 42 is so remarkable because the prosecution of crimes is traditionally a function of the executive branch.²⁴24. See Young, 481 U.S. at 816–17 (Scalia, J., concurring) (highlighting that since the prosecution of law violators is part of the implementation of the laws, it is executive power vested by the Constitution in the President); see also Heckler v. Chaney, 470 U.S. 821, 832 (1985) (“[T]he decision of a prosecutor in the Executive Branch not to indict [is] a decision which has long been regarded as the special province of the Executive Branch . . . .”).Show More Although common law England used a model of private prosecution, the American colonies quickly recognized the importance of having criminal proceedings conducted by impartial government officials, and so they established local offices of public prosecutors.²⁵25. See Andrew Sidman, Comment, The Outmoded Concept of Private Prosecution, 25 Am. U. L. Rev. 754, 756–63 (1976).Show More At the federal level, the Judiciary Act of 1789 provided for the appointment of an attorney in each judicial district to prosecute federal crimes.²⁶26. 1 Stat. 92 (1789).Show More It also created the Office of the Attorney General, who was to prosecute cases in front of the Supreme Court and advise the President of the United States and the heads of the departments, situating the position in the Article II executive branch.²⁷27. Id.Show More The district attorneys came under the Attorney General’s supervision in 1861, and Congress officially established the Department of Justice, which houses all of these positions, as an executive department of the government in 1870.²⁸28. Jim Martin, The Creation of the Department of Justice, Libr. Cong. Blogs (Dec. 4, 2017), https://blogs.loc.gov/law/2017/12/the-creation-of-the-department-of-justice [https://perma.cc/TB2C-ZY77].Show More In the years since, it has become an accepted principle that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case . . . .”²⁹29. United States v. Nixon, 418 U.S. 683, 693 (1974).Show More

After Donziger was tried and convicted of criminal contempt by the special prosecutors appointed pursuant to Rule 42, he appealed on the ground that Rule 42 violated the Appointments Clause to the U.S. Constitution.³⁰30. Petition for a Writ of Certiorari, Donziger v. United States, 143 S. Ct. 868 (2023) (No. 22-274).Show More The Appointments Clause provides that the President of the United States, “by and with the Advice and Consent of the Senate . . . shall appoint . . . Officers of the United States . . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”³¹31. U.S. Const. art. II, § 2, cl. 2.Show More Donziger argued that his prosecution ran afoul of the Appointments Clause in two ways. First, the special prosecutors were inferior officers not supervised by a principal officer, which the Court had previously held to be required by the Clause.³²32. United States v. Donziger (Donziger II), 38 F.4th 290, 293 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023). In Edmond, the Court held that under the Appointments Clause, inferior officers—those not appointed by the President with the advice and consent of the Senate—must be “directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Edmond v. United States, 520 U.S. 651, 663 (1997).Show More Second, Rule 42 allows judges to appoint inferior officers without Congress “by Law” vesting appointment authority in the courts.³³33. Donziger II, 38 F.4th at 293–94.Show More Donziger lost in the Second Circuit, and filed a petition for writ of certiorari with the Supreme Court, posing two questions: Does Rule 42 authorize judicial appointments of inferior executive officers? If so, do those appointments violate the Appointments Clause?³⁴34. Petition for a Writ of Certiorari, Donziger v. United States, 143 S. Ct. 868 (2023) (No. 22-274).Show More In March of 2023, the Supreme Court denied the petition, with Justices Gorsuch and Kavanaugh dissenting.³⁵35. Donziger III, 143 S. Ct. 868 (2023). Show More

This Case Comment proceeds in three parts. Part I documents and provides context to the development of Donziger’s criminal contempt case, and how his constitutional challenges were handled in the district and appellate courts. Part II details Justice Gorsuch’s vocal dissent from the Supreme Court’s denial of the petition for the writ of certiorari. Part III evaluates the state of affairs with Rule 42 and attempts to reconcile the Supreme Court’s denial of the petition with its recent Appointments Clause jurisprudence, particularly Arthrex, as well as Relentless, an upcoming case implicating separation of powers concerns.

I. Journey to the Supreme Court

A. Pre-Criminal Contempt Litigation

The events leading up to this case date back to 1993, when Donziger first became involved in the litigation in Ecuador.³⁶36. Barrett, supra note 2, at 44–48.Show More What unfolded between then and 2014, the year of his conviction in the United States, is a story unto itself—at times so dramatic that it resembles fiction.³⁷37. For a thorough and altogether fascinating account of the events preceding Steven Donziger’s prosecution in the United States, see Barrett, supra note 2. Show More For the purposes of this Case Comment, however, I start the story in 2014, when Donziger was tried before Judge Lewis Kaplan in the Southern District of New York on charges under the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO), as well as other fraud-related charges, for his conduct in Ecuador.³⁸38. Chevron I, 974 F. Supp. 2d 362 (S.D.N.Y. 2014), aff’d, 833 F.3d 74 (2d Cir. 2016).Show More In a lengthy opinion, Judge Kaplan found that Donziger had violated RICO and that his victory in Ecuadorian court had been procured through fraud and other corrupt means.³⁹39. Id. at 644.Show More He granted Chevron the equitable relief it requested: that the multibillion dollar judgment in Ecuador be unenforceable in the United States and that Donziger and his team be prohibited from benefitting financially from the fraud (the “RICO judgment”).⁴⁰40. Id. at 639–42.Show More

A negative feedback loop then ensued: Judge Kaplan ordered Donziger to comply with the RICO judgment; Donziger appealed to the Second Circuit and refused to comply; Judge Kaplan penalized him; Donziger appealed the penalties and refused to comply; and so on and so forth.⁴¹41. For context, the back-and-forth between Judge Kaplan and Donziger in the courtroom occurred against a background of, and likely amplified, Judge Kaplan’s personal animus for Donziger. See Patrick Radden Keefe, Reversal of Fortune, New Yorker (Jan. 1, 2012), https://www.newyorker.com/magazine/2012/01/09/reversal-of-fortune-patrick-radden-keefe [https://perma.cc/2JWW-HT6Y] (describing Judge Kaplan as exhibiting a “palpable dislike” of Donziger over the course of several hearings leading up to the trial). Show More Donziger originally appealed the RICO judgment to the Second Circuit, which affirmed.⁴²42. Chevron Corp. v. Donziger, 833 F.3d 74, 151 (2d Cir. 2016).Show More Judge Kaplan then ordered that, in addition to the equitable relief, Donziger pay Chevron over $800,000 in court costs (the “money judgment”), which Donziger in turn appealed and did not pay.⁴³43. See Chevron Corp. v. Donziger, 384 F. Supp. 3d 465, 471–73 (S.D.N.Y. 2019) (hereinafter Chevron II) (describing the over $800,000 money judgment as being entered following the Second Circuit’s decision and reflecting taxable court costs), aff’d in part, vacated in part, rev’d in part, 990 F.3d 191 (2d Cir. 2021). Show More To enforce the money and RICO judgments, Judge Kaplan ordered that Donziger provide a list of all of his electronic devices and digital accounts to a forensic expert and surrender them for imaging,⁴⁴44. Chevron Corp. v. Donziger, 425 F. Supp. 3d 297, 306 (S.D.N.Y. 2019).Show More an inherently invasive measure. Donziger announced that he would not comply with the order,⁴⁵45. See Chevron II, 384 F. Supp. 3d at 476 (“Donziger announced in advance that he would not comply with these provisions of the Protocol and has not done so.”).Show More citing the attorney-client privilege and his constitutional due process rights.⁴⁶46. See United States v. Donziger, No. 11-CV-691(LAK), 2021 WL 92761, at *1 (S.D.N.Y. Jan. 10, 2021) (explaining that Donziger claimed he would not comply with the protocol until his due process rights were respected); see also Letter from Edward J. Markey & Sheldon Whitehouse, U.S. Sens., to Hon. Roslynn R. Manuskopf, Dir., Admin. Off. of the U.S. Cts. (July 29, 2021) [hereinafter Markey & Whitehouse Letter] (discussing Donziger’s justifications for not complying).Show More Additionally, Judge Kaplan found that Donziger had monetized the Ecuadorian judgment and had not transferred his contingent fees or any profits from the judgment to Chevron, which was part of the equitable relief in the RICO judgment.⁴⁷47. Chevron II, 384 F. Supp. 3d at 497.Show More All of this culminated in Judge Kaplan holding Donziger in civil contempt and ordering him to pay $666,476.34 and a $2,000 fine that doubled every day he did not comply with the contempt order,⁴⁸48. Id. at 506.Show More as well as ordering him to surrender his passport.⁴⁹49. See Order to Show Cause Why Defendant Steven Donziger Should Not Be Held in Criminal Contempt, United States v. Donziger, No. 11-cv-691 (LAK), at 6 (S.D.N.Y. July 31, 2019) [hereinafter Order to Show Cause].Show More A few months later, Judge Kaplan granted Chevron’s request that Donziger pay the company $3.4 million in attorney’s fees.⁵⁰50. Michael I. Krauss, Suspended Ex-Attorney Steven Donziger Condemned to Pay Chevron $3.4 Million, Forbes (July 17, 2019, 3:12 PM), https://www.forbes.com/sites/michaelkrauss/2019/07/17/suspended-ex-attorney-steven-donziger-condemned-to-pay-chevron-3-4-million/?sh=1f6113ca32cd [https://perma.cc/78ED-YPVT]. Show More

Unsurprisingly, Donziger did not pay the millions he owed to Chevron,⁵¹51. See Donziger I, 2021 WL 3141893, at *43, *47 (S.D.N.Y. July 26, 2021), aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023) (explaining that Donziger appealed the Money Judgment and that his bank accounts were frozen and he did not have the means to pay the fines). By this point, Donziger’s law license was suspended. Matter of Donziger, 163 A.D.3d 123, 125 (App. Div. 2018). Further, due to the RICO judgment, he could not pay using money from the Ecuadorian judgment, which he had spent virtually his entire legal career pursuing. See Barrett, supra note 2, at 45 (discussing how Donziger joined the case in Ecuador two years after graduating law school). Show More nor did he turn over his devices nor surrender his passport.⁵²52. Order to Show Cause, supra note 47, at 2, 5, 6.Show More Judge Kaplan issued an Order to Show Cause and referred the case to the U.S. Attorney’s Office for the Southern District of New York.⁵³53. Petition for a Writ of Certiorari, supra note 28, at 8.Show More The office declined to pursue criminal contempt charges against Donziger, explaining that the matter would require resources that it did not have readily available.⁵⁴54. Id.Show More Judge Kaplan proceeded to draft six counts of criminal contempt charges himself in an Order to Show Cause,⁵⁵55. Order to Show Cause, supra note 47. Show More and, pursuant to his power under Rule 42, appointed three private attorneys from the law firm Seward & Kissel to serve as prosecutors in the case.⁵⁶56. Order of Appointment, United States v. Donziger, No. 11-cv-0691(LAK) (S.D.N.Y. July 31, 2019); see also Markey & Whitehouse Letter, supra note 44 (laying out the sequence of events involved with the criminal contempt proceedings). The firm Seward & Kissel had previously represented Chevron. Id.Show More The Order mandated that Donziger appear for trial before Judge Loretta A. Preska, another judge for the Southern District of New York.⁵⁷57. Order to Show Cause, supra note 47, at 1. Judge Kaplan apparently bypassed the random assignment process and picked Judge Loretta Preska to oversee the criminal case. Compare Order to Show Cause, supra note 47, at 10 (ordering that the defendant appear before the Honorable Loretta A. Preska) with E.D.N.Y Loc. R.50.2(b) (“All cases shall be randomly assigned by the clerk or his designee in public view in one of the clerk’s offices . . . .”), https://img.nyed.uscourts.gov/files/local_rules/localrules.pdf [https://perma.cc/A3G5-MDAA].Show More This rare move of a judge invoking Rule 42 to appoint private attorneys to prosecute a case would come to form the basis of the Appointments Clause showdown in Donziger v. United States.

B. District Court Proceedings

Ahead of the criminal contempt trial, Donziger moved to disqualify the special prosecutors.⁵⁸58. Petition for a Writ of Certiorari, supra note 28, at 9.Show More Judge Preska denied the motion, as well as several other motions to dismiss.⁵⁹59. See id. Early in the criminal contempt case, Judge Preska also deemed Donziger a flight risk—in part because of his ties to Ecuador—and ordered him to house arrest and seized his passport. See United States v. Donziger, 853 F. App’x 687, 688–89 (2d Cir. 2021), as amended (Apr. 26, 2021) (reviewing the district court’s risk-of-flight analysis and discussing the conditions of Donziger’s pretrial release).Show More A little over a month ahead of trial, Donziger’s legal team sent a letter to Acting Deputy Attorney General John P. Carlin, asking the Department of Justice to review the prosecution.⁶⁰60. Petition for a Writ of Certiorari, supra note 28, at 9–10.Show More Three days ahead of the scheduled trial start date of May 10, 2021, Carlin responded via email that the Department had reviewed the request and declined to intervene in the court-initiated proceedings.⁶¹61. Id. at 10.Show More At the outset of the trial, armed with Carlin’s email about the DOJ’s absence, Donziger moved to dismiss the case on the ground that the special prosecutors were inferior executive officers not supervised by a principal officer, as is required by the Appointments Clause.⁶²62. Donziger I, 2021 WL 3141893, at *52 (S.D.N.Y. July 26, 2021), aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023). Recall that under the Appointments Clause, inferior officers—those not appointed by the President with the advice and consent of the Senate—must be “directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate”; see also Edmond v. United States, 520 U.S. 651, 663 (1997).Show More Judge Preska found the email from Carlin to be inadmissible hearsay, and denied the motion.⁶³63. Donziger I, 2021 WL 3141893, at *52.Show More

Then, in a development consistent with the eventfulness of the Donziger litigation, the Supreme Court decided United States v. Arthrex, a major Appointments Clause case having to do with the administrative patent judges (APJs) of the United States Patent and Trademark Office.⁶⁴64. 594 U.S. 1 (2021).Show More There, the Court held that the APJs’ appointment to the Patent Trial and Appeal Board was inconsistent with their inferior officer status because they had binding, decision-making authority that was not reviewable by a principal officer.⁶⁵65. Id. at 23.Show More Therefore, they were functionally principal officers that had not been appointed by the President with the advice and consent of the Senate, in direct contravention of the Appointments Clause.⁶⁶66. See id.Show More Emboldened by Arthrex, Donziger filed a second motion to dismiss after trial but before the verdict.⁶⁷67. Donziger I, 2021 WL 3141893, at *53.Show More The special prosecutors themselves maintained that they were not subject to executive supervision, but, under Young, were merely part of the judiciary’s inherent power to prosecute contempt cases.⁶⁸68. See Petition for a Writ of Certiorari, supra note 28, at 11.Show More On their account, Arthrex was inapplicable because it pertained to only executive, not judicial, branch appointments.⁶⁹69. Id.Show More

Judge Preska rejected Donziger’s Appointments Clause claim raised in his post-trial motion for reasons adopted and reiterated by the Second Circuit, discussed infra Part I.C.⁷⁰70. Donziger raised a host of other arguments as to why the criminal contempt charges should be dismissed—including that the special prosecutors were not sufficiently disinterested as required by Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987)—which the court rejected. Donziger I, 2021 WL 3141893, at *49, aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023). For brevity’s sake, I will not review Donziger’s non-Appointments Clause arguments in any depth.Show More On procedural grounds, she also found that Donziger’s Appointments Clause claim was untimely and should have been raised by the deadline for pretrial motions.⁷¹71. Donziger I, 2021 WL 3141893, at *53.Show More This procedural finding supplied the basis for the Second Circuit later applying plain error review to Donziger’s challenge on appeal.⁷²72. See infra note 84 and accompanying text. Show More

Donziger was ultimately convicted of all six counts of criminal contempt and sentenced to six months in federal prison, the maximum for a criminal contempt case not required to be heard by a jury.⁷³73. Donziger I, 2021 WL 3141893, at *86 (S.D.N.Y. July 26, 2021), aff’d, 38 F.4th 290 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023); see also Paz, supra note 1. He was released early under a COVID-19 waiver and served the rest of his sentence at home. Sebastien Malo, Chevron Foe Donziger Released from Prison Under COVID Waiver, Reuters (Dec. 10, 2021, 11:29 AM), https://www.reuters.com/legal/litigation/chevron-foe-donziger-released-prison-under-covid-waiver-2021-12-10 [https://perma.cc/KJZ3-PT8Y]. He was released on April 25, 2022. Steven Donziger (@SDonziger), Twitter (Feb. 4, 2022, 3:01 PM), https://twitter.com/SDonziger/status/1489690528367226883 [https://perma.cc/F7JB-R4ZG].Show More He moved for a new trial on the ground that, since the district court had found the special prosecutors to be inferior executive officers, Rule 42 violated the Appointments Clause because Congress had not “by Law” vested appointment authority in the judiciary.⁷⁴74. Petition for a Writ of Certiorari, supra note 28, at 12.Show More Judge Preska denied the motion, and Donziger appealed to the Second Circuit.⁷⁵75. Donziger II, 38 F.4th 290, 295 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023).Show More

C. Second Circuit Proceedings

Donziger’s argument on appeal was a two-fold constitutional challenge to Rule 42 under the Appointments Clause, a combination of the pre- and post-trial arguments he had raised in the district court. First, he argued that the special prosecutors were inferior officers who were not supervised by a principal officer.⁷⁶76. Id. at 293.Show More Second, he argued that Rule 42 does not satisfy the Appointments Clause requirement that Congress must vest the appointment of inferior officers in the courts “by Law” if it is going to do so.⁷⁷77. Id. at 293–94.Show More

Writing for the majority, Judge Michael H. Park first addressed the threshold question of whether the special prosecutors were officers of the United States such that they fell in the ambit of the Appointments Clause. If not, there would be no constitutional issue. To qualify as an officer, an individual must exercise “significant authority” pursuant to federal law and “occupy a continuing position established by law.”⁷⁸78. Id. at 296 (citing Lucia v. S.E.C., 138 S. Ct. 2044, 2051 (2018)).Show More Judge Park reasoned that the role of a federal prosecutor—representing the United States in criminal proceedings—was surely significant authority.⁷⁹79. Id. at 296.Show More Further, the position, though not permanent, was continuing: It extended beyond any one individual, and may (and did in this case) last for years.⁸⁰80. Id. at 299.Show More He concluded that the special prosecutors were indeed inferior officers of the executive branch, subject to the Appointments Clause requirements.⁸¹81. Donziger II, 38 F.4th at 299; cf. Morrison v. Olson, 487 U.S. 654 (1988) (finding an independent counsel to be an inferior officer).Show More

Next, Judge Park turned to, and rejected, Donziger’s first Appointments Clause argument on the same ground as the district court. Recall that under the Appointments Clause, inferior officers’ work must be supervised at some level by a principal officer.⁸²82. Edmond v. United States, 520 U.S. 651, 663 (1997).Show More He found this standard to be satisfied by the fact that the Attorney General possessed the broad statutory authority to supervise all litigation involving the United States, which included the authority to supervise, and, if necessary, remove the special prosecutors.⁸³83. Donziger II, 38 F.4th at 300; see also 28 U.S.C. §§ 516–19 (describing the Attorney General’s authorities).Show More Whether they were in fact supervised (they undeniably weren’t) was “beside the point.”⁸⁴84. Donziger II, 38 F.4th at 301. Donziger’s argument was premised on both the email from the Department of Justice declining to intervene in the prosecution, as well as the fact that the Department filed a separate amicus brief to the Second Circuit rather than directing the special prosecutors to take its position. Id. The court found this evidence insufficient because the Department could have directed the special prosecutors if it wanted to. Id.Show More Judge Park considered this finding in line with Young, which, per its interpretation, only pertains to the judicial power to initiate a prosecution for criminal contempt should the executive branch decline to do so.⁸⁵85. Id. at 301–02 (citing Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795, 800–01 (1987)).Show More Under his reading of Young, after appointing the prosecutors, the power over the criminal contempt prosecution changes hands from the judicial to the executive branch.

Next, Judge Park turned to, and again rejected, Donziger’s second Appointments Clause argument, applying plain error review⁸⁶86. Donziger raised the specific challenge to Rule 42 after the district court opinion was issued, so the court considered it unpreserved and accordingly applied plain error view. Id. at 302–03.Show More and finding that that the judicial appointment of inferior executive officers, authorized under Rule 42, but not by statute, did not clearly violate the Appointments Clause. First, he considered it unclear whether the Appointments Clause language that Congress must “by Law” vest appointment authority in courts actually required bicameral approval and presentment, or whether Rule 42 sufficed because it was passed pursuant to the Rules Enabling Act.⁸⁷87. Donziger II, 38 F.4th at 303.Show More The Act gives the Supreme Court the power to prescribe rules of procedure for federal courts, such as Rule 42.⁸⁸88. 28 U.S.C. § 2072.Show More It must notify Congress, which can modify or reject the rules, but otherwise they automatically go into effect without congressional action.⁸⁹89. Id. § 2074. Show More

Second, he found that any error by the district court would not be clear in light of Young.⁹⁰90. Donziger II, 38 F.4th at 303. Show More Judge Park found that Young stands for the proposition that courts possess inherent authority to initiate criminal contempt proceedings by appointing private attorneys to prosecute the charges.⁹¹91. Id. (citing Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987)).Show More He conceded that although Young may be “in some tension with the [Supreme] Court’s more recent Appointments Clause and separation-of-powers jurisprudence,” the district court did not plainly err by following a directly applicable Supreme Court case.⁹²92. Id.Show More In other words, if the Court wanted to overturn Young, that was its task to take up.

Judge Park’s majority was answered by an impassioned dissent from Judge Steven J. Menashi.⁹³93. See id. at 306 (Menashi, J., dissenting).Show More Judge Menashi’s argument was as follows: In the American constitutional framework, the power to prosecute a case lies exclusively within the executive branch.⁹⁴94. Id. (quoting United States v. Nixon, 418 U.S. 683, 693 (1974)).Show More By this point in the litigation, everyone involved agreed that the special prosecutors were inferior officers exercising an executive power—their appointment, therefore, needed to comply with the Appointments Clause.⁹⁵95. Id.Show More But, according to Judge Menashi, their appointment didn’t comply with the Clause because they were appointed by a court pursuant to Rule 42, which was not Congress “by Law” vesting appointment authority in the courts.⁹⁶96. Donziger II, 38 F.4th at 310–11 (Menashi, J., dissenting). Judge Menashi also reasoned that the court should not apply plain error review because Donziger had sufficiently challenged the constitutionality of the special prosecutors to preserve the specific Rule 42 argument. See id. at 307–09. All along, Donziger had maintained that the prosecutors were unsupervised and therefore acting as principal and not inferior officers, so there was no need to focus on the language in Rule 42 about appointing inferior officers. Id. Once the district court affirmatively found them to be inferior officers, he raised it immediately. Id. Even under a plain error standard, Judge Menashi would find that Donziger prevails. See id. at 309–10. Show More Therefore, the appointment of the special prosecutors and everything that followed—Donziger’s prosecution, conviction, and sentencing—were unconstitutional and void.⁹⁷97. Id. at 307.Show More

Judge Menashi explained that the logic of Young no longer made sense now that the court had established special prosecutors to be inferior executive officers and cabined Young’s discussion to the judiciary’s authority over only the initiation of contempt proceedings.⁹⁸98. Id. at 311.Show More Recall that the justification underlying Young was the inherent authority of the judiciary to vindicate its own authority when dealing with disobedient litigants without depending on other branches.⁹⁹99. Donziger II, 38 F.4th at 311–12 (Menashi, J., dissenting) (citing Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 796 (1987)).Show More Judge Menashi’s opinion begged the question: How is that authority actually furthered by authorizing a court to appoint a prosecutor who could be immediately fired by the same executive branch that had just declined to prosecute the case?¹⁰⁰100. See id. at 307 (“[A]ll [Young] did was authorize a district court to appoint a prosecutor who could be immediately fired by the executive branch. That is not the ‘power of self-protection’ the Young Court had in mind.” (internal citations omitted)).Show More In Judge Menashi’s view, this was not what the Young court had in mind.

Judge Menashi further explained that Rule 42 is promulgated pursuant to the Rules Enabling Act, but is not itself a law enacted by Congress, as required by the Appointments Clause.¹⁰¹101. Id. at 310–11.Show More Even though the Act requires that the rule be submitted to Congress before it takes effect, it doesn’t have to, and usually doesn’t, do anything after being notified.¹⁰²102. Id. at 311.Show More

Judge Park’s recognition of Young’s tenuousness in light of the Supreme Court’s subsequent jurisprudence, and Judge Menashi’s laying plain of its dubious logic once establishing that court-appointed prosecutors are inferior executive officers, teed the case up perfectly for Supreme Court review.

II. The Supreme Court’s Denial of the Petition for the Writ of Certiorari

Three months after the Second Circuit’s decision in United States v. Donziger, Donziger filed a petition for a writ of certiorari to the Supreme Court of the United States.¹⁰³103. Petition for a Writ of Certiorari, supra note 28.Show More The petition posed two questions: Does Rule 42 authorize judicial appointments of inferior executive officers? If so, do those appointments violate the Appointments Clause?¹⁰⁴104. Id. at *1.Show More On March 27, 2023, the Supreme Court denied the petition.¹⁰⁵105. Donziger III, 143 S. Ct. at 868.Show More Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, wrote an ardent dissent.¹⁰⁶106. Id. (Gorsuch, J., dissenting).Show More

First, sounding in Judge Menashi’s dissent from the Second Circuit opinion, Justice Gorsuch attacked Young as a shaky constitutional foundation for the appointment of private prosecutors. Young treated court-appointed prosecutors as wielding judicial power, whereas the court-appointed prosecutors in Donziger were decidedly wielding executive power and were accountable through the executive branch’s chain of command up to the President.¹⁰⁷107. Id. at 869.Show More Young, then, wasn’t even applicable on its own terms.¹⁰⁸108. Id.Show More And, even on its own judicial power rationale, Justice Gorsuch seemed skeptical as to how Young could be squared with the principle of separation of powers: Under the Constitution, a court’s role is to serve as a neutral adjudicator in a criminal case, not to prosecute the crimes themselves.¹⁰⁹109. Id. at 868–69 (quoting Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816 (1987) (Scalia, J., concurring)).Show More

Justice Gorsuch then turned to the Second Circuit’s finding that Rule 42 satisfied the Appointments Clause requirement that “Congress . . . by Law vest[ed]” appointment authority of prosecutors in courts.¹¹⁰110. Id. at 869 (quoting U.S. Const. art. II, § 2, cl. 2).Show More He identified two challenges: First, Young itself rejected the idea that the precursor to the modern Rule 42 could serve as an independent source of appointment authority.¹¹¹111. Donziger III, 143 S. Ct. at 869 (citing Young, 481 U.S. at 794).Show More Quoting Justice Scalia’s concurrence in Young, Justice Gorsuch noted that Rule 42 is after all a “‘[r]ule of court rather than an enactment of Congress,’ and therefore it cannot ‘confer Article II appointment authority on anybody.’”¹¹²112. Id. (quoting Young, 481 U.S. at 816 n.1 (internal quotation marks omitted)).Show More Second, courts have adopted Rule 42 through the Rules Enabling Act, which provides that rules promulgated pursuant to it “shall not abridge . . . or modify any substantive right.”¹¹³113. Id. (quoting 28 U.S.C. § 2072(b)).Show More Interpreting Rule 42 as authorizing courts to play the part of both accuser and decisionmaker not only transfers the power of prosecutorial discretion from the executive to the judiciary, Justice Gorsuch argued, it also violates the due process rights of the accused.¹¹⁴114. Id. at 869–70 (quoting Williams v. Pennsylvania, 579 U.S. 1, 9 (2016)).Show More

Justice Gorsuch ended with a broad appeal to the principle of separation of powers—a “basic constitutional promise essential to our liberty.”¹¹⁵115. Id. at 870. Before concluding, Justice Gorsuch also dispensed with the Department of Justice’s argument before the Second Circuit that the court-appointed prosecutors were not inferior executive officers for the purposes of the Appointments Clause but were non-officer employees. Id. Like the Second Circuit, Justice Gorsuch found this argument difficult to square with Morrison. Donziger III, 143 S. Ct. at 869 (citing Morrison v. Olson, 487 U.S. 654, 670–71 (1988)). He also balked at the idea that the Constitution allows one branch to install non-officer employees in another branch—that the President, for example, could choose his law clerk, and he the White House staff. See id.Show More Per that promise, judges lack the power to initiate a prosecution of the defendants before them, just as prosecutors lack the power to judge the cases of those they charge.¹¹⁶116. Id.Show More In light of the majority’s denial of the petition, Justice Gorsuch urged lower courts deciding whether to appoint their own prosecutors to “consider carefully Judge Menashi’s dissenting opinion in this case, the continuing vitality of Young, and the limits of its reasoning.”¹¹⁷117. Id.Show More “Our Constitution,” Justice Gorsuch announced, “does not tolerate what happened here.”¹¹⁸118. Id.Show More

III. Post-Denial: The Survival of Rule 42 and Implications for the Court’s Separation of Powers Jurisprudence

A. The Continued Constitutionality and Operation of Rule 42

In the wake of the Supreme Court’s denial of the petition for a writ of certiorari in Donziger, a few things appear true: Young remains intact, Rule 42 is still considered constitutional, and courts can continue to appoint private prosecutors in criminal contempt proceedings. Whether or not they will heed Justice Gorsuch’s warnings remains to be seen.

One could argue that Donziger and the continued constitutionality of Rule 42 will have minimal impact, if measured by the number of cases in which Rule 42 is used. By all accounts, the invocation of the rule by judges is rare, which is why Judge Kaplan’s move to appoint private attorneys to prosecute Donziger when the U.S. Attorney’s Office declined to do so was so shocking.¹¹⁹119. See Lerner, supra note 6 (calling Judge Kaplan’s invocation of Rule 42 “virtually unprecedented”); Adam Klasfeld, When Feds Demur, Judge Charges Ecuador Crusader Himself, Courthouse News Serv. (Aug. 13, 2019), https://www.courthousenews.com/when-feds-demur-judge-charges-ecuador-crusader-himself [https://perma.cc/4GPD-Z989] (reporting that only one out of five former federal prosecutors interviewed had heard of a judge appointing a private attorney to prosecute criminal contempt). Show More As of February 2022, aside from Donziger, the records of the Administrative Office of the United States Courts (AO), which assists courts with funding special prosecutors, showed only two other cases in the preceding five years where private counsel served as special prosecutors in criminal contempt cases.¹²⁰120. Those two cases are United States v. Parker and United States v. Kilgallon. Letter from Hon. Roslynn R. Mauskopf, Dir., Admin. Off. of the U.S. Cts., to Edward J. Markey & Sheldon Whitehouse, U.S. Sens. (Feb. 25, 2022). In Parker, the U.S. District Court for the Northern District of Alabama invoked Rule 42 to charge two police officers who had allegedly violated the court’s sequestration order and attempted to intimidate witnesses in an earlier trial in the case. Notice and Order Regarding Contempt Proceeding at 1–2, United States v. Parker, 696 F. App’x 443 (11th Cir. 2017) (No. 126). Based on the publicly available opinions, it is clear that one of the officers was convicted of criminal contempt, a finding that was upheld on appeal. Parker, 696 F. App’x at 444. In contrast to Donziger, though, the officer there was only ordered to pay a $2,500 fine and attend liability-management training. Id. at 446. In Kilgallon, the U.S. District Court for the District of South Dakota used Rule 42 to charge three members of the U.S. Marshals Service who had allegedly allowed the removal of three prisoners from the courthouse without permission from the court after a marshal had refused to tell the judge whether she was vaccinated against COVID-19. United States v. Kilgallon, 572 F. Supp. 3d 713, 717, 721 (D.S.D. 2021). The court ultimately dismissed the criminal contempt charges. Id. at 717. AO only keeps records related to payment, so Parker and Kilgallon may not reflect the entire universe of cases. See Letter from Hon. Roslynn R. Mauskopf to Edward J. Markey & Sheldon Whitehouse, supra. Show More

Still, Rule 42 is used, if only occasionally, including in a recent high-profile case at the appellate level, United States v. Arpaio. There, Maricopa County Sheriff Joseph M. Arpaio was convicted of criminal contempt in federal district court in Arizona and subsequently pardoned by then-President Trump.¹²¹121. United States v. Arpaio, 887 F.3d 979, 980 (9th Cir. 2018).Show More Arpaio asked the district court to vacate its verdict as well as the scheduled sentencing, which it declined to do.¹²²122. Id. at 981. Show More On appeal, the government refused to defend the district court’s order, so the Ninth Circuit resorted to appointing a special prosecutor under Rule 42 so that its merits panel would “receive the benefit of full briefing and argument.”¹²³123. Id.Show More Though it may seem like a strange fit, the facts of Arpaio show how Rule 42 is used by appellate courts in criminal contempt cases.¹²⁴124. On one hand, Arpaio demonstrates a potential use case of Rule 42: The policy preferences of the President change and the government jumps ship mid-proceeding, so to speak, leaving judges to decide cases in the dark. On the other hand, though, Justice Gorsuch might answer that that is entirely within the province of the executive branch. President Trump was elected by the American public—a mandate to carry out his policies, including with respect to pardons and criminal law enforcement, that should be implemented down the chain of command. Show More

The relative infrequency does not render the rule a nullity, nor is it obvious that frequency should be the metric for impact. No doubt when Rule 42 is invoked to prosecute someone for criminal contempt, it can be life-altering for the defendant. With the recent petition of certiorari denial, courts can feel comfortable invoking Rule 42 knowing that the Supreme Court likely won’t take up the question of its constitutionality soon, at least while the composition of the court remains as it is.

It is worth noting that Congress could solidify Rule 42’s constitutionality and quell the Appointments Clause issue by codifying it in a statute. This would obviously qualify as Congress “by Law” vesting appointment authority in the courts, as opposed to its current form of a rule promulgated by the Supreme Court pursuant to the Rules Enabling Act.¹²⁵125. 28 U.S.C. § 2072.Show More But there is no reason to think that such a proposal is top of mind—if anything, there is momentum in the opposite direction. In 2021, while Donziger was in prison, nine members of the House of Representatives wrote to Attorney General Merrick Garland, admonishing that Donziger was in prison “without Executive Branch supervision or ever seeing a jury of his peers,” and requesting that the Department of Justice “reclaim control of th[e] case, dismiss the charges, and free Mr. Donziger from his imprisonment.”¹²⁶126. Letter from Rashida Tlaib & Jesús G. Garcia, Members of Cong., to Hon. Merrick Garland, Att’y Gen., U.S. Dep’t of Just. (Nov. 29, 2021).Show More Concern about Donziger’s case wasn’t limited to the House; also in 2021, two Senators sent a letter to AO asking a series of questions about Rule 42 and raising similar concerns. While there may be congressional support for the rule should the issue come to the fore, these letters indicate that there is some level of discomfort in Congress with Rule 42 in operation. Further, while codifying Rule 42 would alleviate constitutional concerns, it would not cure the bad optics of judges appointing prosecutors in matters before them and the perception of judicial impropriety that caused the uproar in Donziger’s case.¹²⁷127. See, e.g., Jackie Kushner, Note, United States v. Donziger: How the Mere Appearance of Judicial Impropriety Harms Us All, 30 J.L. & Pol’y 533, 553–54 (2022) (arguing that Judge Kaplan’s use of Rule 42 created a perception of bias that undermined judicial legitimacy); Press Release, Int’l Ass’n of Democratic Laws., More than 200 Lawyers File Judicial Complaint Against Judge Lewis A. Kaplan over Abusive Targeting of Human Rights Advocate Steven Donziger (Sept. 1, 2020) (reporting that National Lawyers Guild and International Association of Democratic Lawyers filed a complaint with the Second Circuit alleging that Judge Kaplan was no longer acting as a judge and had “taken on the role of counsel for Chevron”); U.N. Hum. Rts. Council, Opinion No. 24/2021 concerning Steven Donziger (United States of America), at 13 (Oct. 1, 2021) (calling Kaplan’s drafting of criminal charges “a staggering display of lack of objectivity and impartiality”).Show More

B. Reconciling Donziger with Arthrex and Other Recent Appointments Clause Cases

Donziger arrived at the Supreme Court’s desk amidst a period of developments in its Appointments Clause jurisprudence. Recall that in 2021, the Court in Arthrex held that the APJs’ appointment to the Patent Trial and Appeal Board of the PTO—which was not done by the President with the advice and consent of the Senate—was inconsistent with their status as inferior officers.¹²⁸128. See supra notes 62–67 and accompanying text.Show More Writing for the majority, Justice Roberts seemed primarily concerned with the fact that the APJs possessed the power to issue binding decisions on patentability that were not reviewable by the Director of the PTO, who is a principal officer appointed by the President with advice and consent of the Senate.¹²⁹129. United States v. Arthrex, Inc., 594 U.S. 1, 14 (2021) (noting that, in contrast to inferior officer appointment schemes previously approved of by the Court, “no principal officer at any level within the Executive Branch directs and supervises the work of the APJs” when they are exercising their power to issue decisions on patentability).Show More In Justice Roberts’s eyes, such a “diffusion of power carries with it a diffusion of accountability.”¹³⁰130. Id. at 15 (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497 (2010)).Show More A party to a case pending before an APJ is “left with neither an impartial decision by a panel of experts nor a transparent decision for which a politically accountable officer must take responsibility.”¹³¹131. Id. at 16.Show More Such a system “blur[s] the lines of accountability demanded by the Appointments Clause,” and ultimately leaves the public wondering who to hold to account.¹³²132. Id. This concern about democratic accountability is not limited to the Court’s Appointments Clause jurisprudence. Rather, it extends to other doctrines that implicate federalism or separation of powers questions in which the Court is troubled that the public either won’t be able to identify or will be confused about who is responsible for a governmental decision or policy—for example, the anti-commandeering doctrine. See New York v. United States, 505 U.S. 144, 182–83 (1992) (holding that a federal statute can be an unconstitutional infringement of state sovereignty even when state officials consent to the statute because the proper public officials need to be held accountable to voters); Printz v. United States, 521 U.S. 898, 919–23 (1997) (holding that it is unconstitutional for a federal law to force state participation in a federal regulatory program because a state must remain accountable to its citizens). These issues are also live with the Court’s jurisprudence on the Chevron doctrine and deference to agencies. See infra Part III.C.Show More

Interestingly, though Justice Roberts was preoccupied with the lack of democratic accountability in the context of the APJs, he did not dissent from the Court’s denial of the Donziger certiorari petition, though accountability concerns were arguably just as live. The special prosecutors in Donziger were appointed by a federal judge and then proceeded to operate for the rest of the litigation without supervision by any principal officer. Indeed, the DOJ, after declining to prosecute Donziger itself, was wholly absent from the case until the days leading up to the criminal contempt trial when Donziger requested that it intervene—a request it explicitly rejected.¹³³133. See supra notes 50–51 and accompanying text.Show More Even after Judge Preska resolved that the special prosecutors were executive branch officials who needed to be supervised by a principal officer in the executive branch in order to properly be inferior officers under the Appointments Clause (to the chagrin of the special prosecutors, who were under the impression that they were extensions of the judiciary), the DOJ refused to exercise oversight over them through the rest of the litigation, even filing briefing separate from the special prosecutors in the Second Circuit.¹³⁴134. See supra note 76 and accompanying text.Show More The complete lack of principal officer supervision over the special prosecutors appears more egregious than the level of supervision the PTO Director exercised over the APJs.

One way to reconcile Arthrex and Donziger is on the text of the relevant statutes: The PTO director did not have the statutory authority to review the decisions of the APJs in the context of inter partes review,¹³⁵135. See United States v. Arthrex, Inc., 594 U.S. 1, 8–9 (2021) (summarizing the process for inter partes review as provided in 35 U.S.C. §§ 6(c), 316(a)(11), 316(c)).Show More whereas the DOJ does have the statutory authority to supervise the special prosecutors,¹³⁶136. See Donziger II, 38 F.4th 290, 300–01 (2d Cir. 2022), cert. denied, 143 S. Ct. 868 (2023) (summarizing the Attorney General’s “broad authority to conduct and to supervise all litigation involving the United States” as provided in 28 U.S.C. §§ 516–19).Show More it just wholesale refused to use it. Thus, in a world of perfect information and constitutional clarity about the status of the special prosecutors, voters could hold the President to account at the polls for the DOJ’s decision not to intervene. However, the real world looks very different: If the special prosecutors themselves didn’t believe the DOJ had authority to supervise them initially, how could the public be expected to see through the chaos and know where to situate them between the executive and the judicial branches? If the Court is genuinely concerned about accountability in practice and not just accountability in theory, then, consistent with Arthrex, the Court should feel uncomfortable with the lack of executive branch oversight of the special prosecutors.

Arthrex was not a one off, but rather the latest in a series of cases where the Supreme Court came down hard on agency structures that ran afoul of the Appointments Clause. One year earlier, in Seila Law LLC v. Consumer Financial Protection Bureau, the Court held that the Consumer Financial Protection Bureau’s leadership by a single director removable only for cause was unconstitutional.¹³⁷137. Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020).Show More And, in 2018, in Lucia v. Securities and Exchange Commission, the Court held that the SEC’s administrative law judges were “officers” within the meaning of the Appointments Clause and therefore had to be appointed in accordance with it.¹³⁸138. Lucia v. S.E.C., 138 S. Ct. 2044, 2049 (2018).Show More Though less directly applicable on their facts to Donziger, these cases, together with Arthrex, represented the Court bringing executive branch officials more squarely under the President’s chain of command. This made the Court declining to touch Rule 42 in Donziger a departure not only from the Court’s last word on the matter in Arthrex, but from a broader trend of rigidly enforcing the Appointments Clause and prioritizing the President’s control over officers in the executive branch.

One other way to distinguish between Donziger and the Court’s recent Appointments Clause jurisprudence is that, in Donziger, the Court is being asked to invalidate the constitutionality of a rule that, as articulated in Young, is fundamentally aimed at enabling the judiciary to vindicate its own authority.¹³⁹139. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793, 796 (1987).Show More One could speculate that the Court is operating from a defensive posture, animated by concerns of judicial embarrassment without Rule 42 as a mechanism to prosecute uncooperative defendants. The Court’s self-consciousness of its own power, and its inclination to be the final arbiter of the bounds of such power, sounds in other doctrines, including Article III standing,¹⁴⁰140. See, e.g., Spokeo, Inc. v. Robins, 578 U.S. 330, 331–32, as revised (May 24, 2016) (holding that Congress cannot create standing merely through granting statutory rights, and thus, courts decide whether a plaintiff has suffered concrete injury to satisfy standing). Show More the political question doctrine,¹⁴¹141. See, e.g., Rucho v. Common Cause, 139 S. Ct. 2484, 2499–502 (2019) (holding that partisan gerrymandering is a political question not justiciable by an Article III court for lack of judicially manageable standards). Show More and enforcement power under Section Five of the Fourteenth Amendment.¹⁴²142. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 519–20 (1997) (holding that in order for Congress to legislate pursuant to its Section Five enforcement power under the Fourteenth Amendment, the injury to be prevented or remedied must be congruent and proportional to the means adopted). Show More

C. This Term: Donziger and Relentless

It is worth pausing to note another context in which the Court is actively weighing democratic accountability and separation of powers concerns: the Chevron doctrine. The doctrine, formalized in the 1984 case Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., provides that courts should defer to reasonable agency interpretations of ambiguous congressional statutes.¹⁴³143. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).Show More In recent years, conservatives on the court—chief among them, Justice Gorsuch—have taken aim at the doctrine, arguing that it displaces the role of the judiciary to interpret the law,¹⁴⁴144. See Buffington v. McDonough, 143 S. Ct. 14, 18 (2022) (Gorsuch, J., dissenting) (quoting Marbury v. Madison, 5 U.S. 137, 178 (1803)) (discussing how in the American judicial system, individuals can bring their disputes to neutral tribunals and trust that they will say “what the law is”).Show More systematically favors the government in disputes,¹⁴⁵145. See id. at 19 (“We place a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else.”).Show More is unworkable,¹⁴⁶146. See id. at 19–20 (noting that lower courts have pursued “wildly different” approaches to deciding when a statute is sufficiently ambiguous to merit Chevron deference).Show More and creates instability from administration to administration,¹⁴⁷147. See id. at 20 (“When one administration departs and the next arrives, a broad reading of Chevron frees new officials to undo the ambitious work of their predecessors and proceed in the opposite direction with equal zeal. In the process, we encourage executive agents not to aspire to fidelity to the statutes Congress has adopted, but to do what they might while they can.”).Show More among other critiques. Lingering in the background is the idea that Chevron deference undermines democratic accountability in the long run by allowing a democratically elected Congress to pass ambiguous statutes and shirk policymaking responsibilities onto unelected agencies.¹⁴⁸148. See Petition for Writ of Certiorari at 31, Loper Bright Enters. v. Raimondo, No. 22-451 (Nov. 10, 2022) (“It is far easier to gin up ambiguity in a statute than it is to run the gauntlet of bicameralism and presentment . . . . Worse still, it is far harder for Congress to enact new legislation when one party or the other can rely on their friends in the executive branch to fix the problem without the hassle and accountability that comes with actually legislating.”); cf. Lisa Schultz Bressman, Deference and Democracy, 75 Geo. Wash. L. Rev. 761, 778–86 (arguing that in cases where the Court has not deferred to the agency’s interpretation, the agency acted inconsistently with congressional or popular will, and Presidential elections are an insufficient check on agency action).Show More This is similar to, but distinct from, the accountability concern in the Appointment Clause context about agency officials being insulated from Presidential (and therefore democratic) control.

This term, the Court’s conservative majority appears poised to overturn or seriously weaken Chevron in a pair of cases called Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. The cases challenge a rule issued by the National Marine Fisheries Service, upheld by both the U.S. Court of Appeals for the District of Columbia Circuit and the U.S. Court of Appeals for the First Circuit applying Chevron deference.¹⁴⁹149. Amy Howe, Supreme Court Likely to Discard Chevron, SCOTUSblog (Jan. 17, 2024, 6:58 PM), https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/.Show More During oral arguments, the government made an accountability argument in the opposite direction: If the choice is between agency and judicial interpretations of ambiguous statutes, at least agencies are politically accountable vis-à-vis presidential elections, whereas federal judges are unelected.¹⁵⁰150. See Transcript of Oral Argument at 124, Relentless, Inc. v. Dept. of Commerce, No. 22-1219 (2024) (arguing that in a world without Chevron deference, with potentially each lower court interpreting ambiguous statutes differently, “the force of the political accountability value” would be diminished); see also id. at 99 (Justice Ketanji Brown Jackson recognizing the people elect the presidential administration on the basis of policy, but that federal judges “are not accountable to the people and have lifetime appointments”).Show More The conservative members of the Court did not appear persuaded,¹⁵¹151. See id. at 132 (Justice Gorsuch expressing concern that Chevron almost always favored agencies over individuals “who have no power to influence agencies, who will never capture them, and whose interests are not the sorts of things on which people vote, generally speaking”).Show More and seemed more concerned with Chevron allowing agencies to interpret the law where the judiciary should be doing so.¹⁵²152. See id. at 22 (Justice Gorsuch expressing concern that under Chevron, “judge[s] abdicate th[eir] responsibility and say automatically whatever the agency says wins”); see id. at 142 (Justice Kavanaugh stating that it is “the role of the judiciary historically under the Constitution to police the line between the legislature and the executive to make sure that the executive is not operating as a king, not operating outside the bounds of the authority granted to them by the legislature”).Show More The Court’s movement toward overturning Chevron provides yet another example of the modern Court enforcing a strict vision of separation of powers. This makes its comfort with Article III judges appointing Article II special prosecutors without express statutory authorization in Donziger all the more anomalous.

Conclusion

Donziger is no longer in prison or under house arrest.¹⁵³153. Molly Taft, Environmental Lawyer Targeted by Chevron Freed After More Than Two Years Under House Arrest, Amazon Watch (Apr. 26, 2022), https://amazonwatch.org/news/2022/0426-environmental-lawyer-targeted-by-chevron-freed-after-more-than-two-years-under-house-arrest [https://perma.cc/R4YF-C9GZ]. Show More The Supreme Court has declined to decide the question of whether his prosecution was constitutional, at least for now.¹⁵⁴154. See Donziger III, 143 S. Ct. 868 (2023).Show More But, regardless of the propriety of Donziger’s conduct, there are reasons to be uncomfortable with his prosecution at the hands of judicially-appointed private prosecutors and without DOJ supervision.

Rule 42 is a double offender. It feels wrong on a gut level: It resembles a bait-and-switch to defendants who would not have been charged had their case been left to the executive branch, which, according to the Supreme Court, has “exclusive authority and absolute discretion to decide whether to prosecute a case.”¹⁵⁵155. United States v. Nixon, 418 U.S. 683, 693 (1974).Show More Rule 42 is also unsupported by the text of the Constitution because it vests appointment authority in the courts without Congress doing so explicitly through legislation. If the Supreme Court had taken its own mandate in its Appointment Clause jurisprudence seriously and was truly skeptical of the blending of the separation of powers, it should have heeded the warnings of Judge Menashi and Justice Gorsuch and granted the petition for the writ of certiorari in Donziger.

Recent Case: United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *12–13 (2d Cir. Dec 21, 2022).

Introduction

In the wake of the COVID-19 pandemic, questions about the constitutionality of testimony using two-way video platforms like Zoom have gained greater prominence and taken on greater urgency. These questions have played out in both state and federal courts.³3. See, e.g., United States v. Akhavan, 523 F. Supp. 3d 443 (S.D.N.Y. 2021) (addressing a Sixth Amendment challenge to video testimony); United States v. Casher, No. CR 19-65-BLG-SPW, 2020 U.S. Dist. LEXIS 106293 (D. Mont. June 17, 2020); State v. Tate, 969 N.W.2d 378, 391 (Minn. Ct. App. 2022).Show More Ordinarily, video testimony by prosecution witnesses in criminal cases is a nonstarter with any court in the United States. This reticence to adopt video technology stems from the protections of the Sixth Amendment.⁴4. Maryland v. Craig, 497 U.S. 836, 850 (1990) (declaring that the right to face-to-face confrontation—as opposed to video confrontation—may not be easily dispensed with).Show More The Confrontation Clause of the Sixth Amendment guarantees defendants the right to confront their accusers in court.⁵5. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”).Show More The Supreme Court has held that this requires face-to-face, in-person testimony from prosecution witnesses,⁶6. Coy v. Iowa, 487 U.S. 1012, 1016 (1988) (“We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before trial.”).Show More even if such confrontation is inconvenient or even traumatic for the parties involved.⁷7. Id. at 1020 (“The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential ‘trauma’ that allegedly justified the extraordinary procedure in the present case.”).Show More

This general prohibition on video testimony is not simply a matter of conforming to some esoteric interpretation of what the Framers expected trials to look like.⁸8. Although the constitutional issue alone should give proponents of video testimony pause.Show More Using video testimony can materially degrade the experiences of witnesses, the reliability of their testimony, and, most importantly, the ability of fact finders to evaluate their credibility. For instance, people are more likely to lie during virtual conversations than in-person ones.⁹9. In 2004 in a seminal paper by Hancock et al, researchers examined the effects of digital communication on the likelihood that someone will lie. Jeffrey T. Hancock, Jennifer Thom-Santelli & Thompson Ritchie, Deception and Design: The Impact of Communication Technology on Lying Behavior, in Proceedings of the SIGCHI Conference on Human Factors in Computing Systems 129 (2004). They collected data on the effects of three features present in different types of digital communication: synchronicity (i.e., the degree to which messages are communicated in real-time), recordability (i.e., the degree to which the interaction is automatically documented and preserved), and distribution (i.e., whether the users are physically co-present). Id. at 130. They found that people were most likely to lie when they communicated in an unrecorded, synchronous, distributed environment (i.e., one in which people must communicate digitally rather than face to face, in real-time, and are not recorded). Id. at 133. In 2022, David Markowitz replicated and expanded the findings of the Hancock study with more modern technology. David M. Markowitz, Revisiting the Relationship Between Deception and Design: A Replication and Extension of Hancock et al. (2004), 48 Hum. Commc’n Rsch. 158 (2022). Markowitz found that lying is more dependent on the personal characteristics of the speaker than on the type of media used. Id. at 163. However, he also found that people were slightly more likely to lie over the phone or over video chat than they were in face-to-face communications. Id. at 163 tbl.2 (finding 11.77% mean percentage of lies during phone interactions and 12.31% during video chat interactions, as compared to 9.55% in face-to-face settings).Show More Jurors already struggle to evaluate credibility based on the demeanor of live witnesses;¹⁰10. See Julia Simon-Kerr, Unmasking Demeanor, 88 Geo. Wash. L. Rev. Arguendo 158, 166–67 (2020) (explaining that reliance on visual cues of demeanor results undermines juries’ abilities to distinguish truth from deception).Show More they struggle even more with virtual witnesses, whose eye contact and posture are obscured by the virtual format.¹¹11. See Susan A. Bandes & Neal Feigenson, Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom, 68 Buff. L. Rev. 1275, 1294–1300 (2020) (indicating that viewers may misconstrue the apparent lack of eye contact from witnesses produced by those witnesses looking at the screen rather than the camera and the absence of physical cues, such as posture); see also Daniel M. Bialer, Note, Assessing Witness Demeanor in the Age of COVID-19 and Beyond, 31 Cornell J.L. & Pub. Pol’y 451 472–73 (2022) (describing distortions in demeanor evidence stemming from virtual testimony and recommending that its use be limited).Show More The virtual format can create emotional distortions for the jury as they struggle to connect with a witness appearing online.¹²12. See Bandes & Feigenson, supra note 9, at 1292–1300 (describing difficulties juries have in evaluating virtual testimony).Show More Meanwhile, issues with audio quality are common, leading to jurors having difficulty processing information.¹³13. See id. at 1301–02 (describing the risk of viewers attributing the negative feelings arising out of “poor audio quality” or “lack of synchronicity between video and audio” to witnesses themselves).Show More At this stage, an indiscriminate increase in the use of video testimony poses a substantial risk, not just to a constitutional principle, but to the reliability of our trials.

As a result, it is important that courts set clear parameters around the use of video testimony. Academic literature since 2020 has focused on the sufficiency of the COVID-19 pandemic as a justification for video testimony,¹⁴14. See, e.g., Jessica Arden Ettinger, David Gerger & Barry J. Pollack, Ain’t Nothing Like the Real Thing: Will Coronavirus Infect the Confrontation Clause?, Champion, May 2020, at 57–59 (arguing that the pandemic does not justify abridging defendants’ confrontation rights without more specific factual findings); Brandon Marc Draper, Revenge of the Sixth: The Constitutional Reckoning of Pandemic Justice, 105 Marq. L. Rev. 205, 259–63 (2021) (arguing for a constitutional amendment to permit virtual trials); Garret Stone, Please Unmute Yourselves, Court Is Now In Session—The Future of the Confrontation Clause Post-COVID-19, 11 Wake Forest J.L. & Pol’y 133, 147 (2021) (arguing that the pandemic justifies virtual testimony for auxiliary witnesses like experts, character witnesses, and witnesses brought in for authentication purposes, but not for vital eyewitnesses with first-hand knowledge of the crime).Show More the scientific evidence needed to back a finding of such sufficiency,¹⁵15. See Elizabeth Bays, Note, Mr. Crawford Gets COVID: Courts’ Struggle to Preserve the Confrontation Clause During COVID and What It Teaches Us About the Underlying Rights, 98 N.Y.U. L. Rev. 239, 259–63 (2023) (arguing that undue deference was given to executive branch determinations of scientific necessity). Show More and the relative merits of video testimony as compared to other forms of modified confrontation during a global health crisis.¹⁶16. See id. at 257–59 (noting that, depending on which aspect of the confrontation right judges found most important, different modes of modified confrontation are were practiced); Ayyan Zubair, Note, Confrontation After COVID, 110 Calif. L. Rev. 1689, 1708–10 (2022) (arguing that Rule 15 depositions should have been used as an alternative to video testimony); Zoë Green Appler, Note, COVID-19 & The Sixth Amendment: Questions of Confrontation, Credibility, and Constitutionality in Cook County’s Courtrooms, 71 Chi.-Kent L. Rev 441, 466–70 (2022) (arguing in favor of virtual testimony over socially distanced in-person testimony because of courthouse capacity issues and proposing best practices for such virtual testimony).Show More Yet, even before a court reaches the question of whether video testimony should be allowed in a particular case or during a particular crisis, it must decide which standard it plans to use in answering that question. For that reason, there has been renewed interest in a longstanding circuit split over the standard that should be used by trial courts when deciding whether to permit video testimony.

In United States v. Patterson, the Second Circuit reaffirmed its rather idiosyncratic standard for the use of video testimony.¹⁷17. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *12–13 (2d Cir. Dec 21, 2022) (“The district court rightly applied Gigante in determining whether Elliott could testify via two-way video.”). Show More Patterson involved a set of facts common to many COVID-era video testimony decisions: The trial took place in early 2021, before vaccines were widely available and while air travel was still considered quite risky, yet medically fragile witnesses from out of town needed to be procured.¹⁸18. Id.; United States v. Akhavan, 523 F. Supp. 3d 443, 452 (S.D.N.Y. 2021) (citing then-current CDC recommendations against travel); see also, e.g., United States v. Davis, No. 19-101-LPS, 2020 U.S. Dist. LEXIS 196624 at *8–11 (D. Del. Oct. 23, 2020) (“[T]he Court is merely concluding that each of the seven witnesses identified by the government is—based principally on a combination of his or her distance from Delaware and his or her particularized risk factors—. . . ‘unavailable’ to testify at trial.”); State v. Milko, 505 P.3d 1251, 1253 (Wash. Ct. App. 2022) (describing two witnesses complaints that “they were not able to fly to Washington to give their trial testimony in person because of significant health concerns related to COVID-19”). Show More A key witness to the prosecution’s case was located in California, while the trial was taking place in New York.¹⁹19. United States v. Akhavan, 523 F. Supp. 3d 443, 446 (S.D.N.Y. 2021).Show More The witness was 57 years-old and suffered from several conditions that exacerbated his risk of serious complications should he contract COVID-19.²⁰20. Id. at 451.Show More So, he requested permission to testify from California via two-way video, rather than traveling to New York City.²¹21. Id. Show More The district court permitted that accommodation.²²22. Id. at 456.Show More

In affirming the district court’s decision, the Second Circuit reconsidered and eventually reaffirmed its own longstanding precedent from United States vs. Gigante which permits video testimony upon a finding by the district court that “exceptional circumstances” exist and that permitting the video testimony would “further the interest of justice.”²³23. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *11 (2d Cir. Dec 21, 2022) (citing United States v. Gigante, 166 F.3d 75, 80–82 (2d Cir. 1999)).Show More That standard has been widely criticized by courts in other jurisdictions as too permissive of video testimony. Indeed, all other circuits that have considered the “exceptional circumstances” standard from Gigante have rejected it, as have some state courts of last resort.²⁴24. See, e.g., United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005) (rejecting the Gigante standard as inconsistent with both the Eighth Circuit’s and the Supreme Court’s Sixth Amendment precedent); United States v. Yates, 438 F.3d 1307, 1312–13 (11th Cir. 2006) (rejecting the Gigante standard as inconsistent with the Supreme Court’s Sixth Amendment precedent); People v. Jemison, 505 Mich. 352, 355–56 (2020) (rejecting video testimony as violative of state and federal constitutional rights to confrontation); State v. Tate, 985 N.W.2d 291 (Minn. 2023) (same). In the wake of the pandemic, some federal district courts have followed the Second Circuit, but these have not yet been reviewed by the relevant circuits. See, e.g., United States v. Davis, No. 19-101-LPS, 2020 U.S. Dist. LEXIS 196624, at *8, *13 (D. Del. Oct. 23, 2020) (citing to the Second Circuit’s Gigante standard); United States v. Cole, No. 1:20-cr-424, 2022 U.S. Dist. LEXIS 17300 at *8 (N.D. Ohio Jan. 31, 2022) (adopting the lower court’s Gigante approach but claiming that the two-way closed circuit testimony at issue would be acceptable “even under the higher standard applied in other circuits”).Show More In Patterson, the defendants challenged the Gigante standard, but the Second Circuit declined to change course.²⁵25. Patterson, 2022 U.S. App. LEXIS 35264, at *11.Show More Applying the Gigante standard, the Second Circuit found that, because the witness could not travel across the country without exposing himself to the risk of serious illness, exceptional circumstances warranted the use of video testimony.²⁶26. Id. at 12–13.Show More

The Defendants in Patterson, Akhavan and Weigand, petitioned the Supreme Court for certiorari on March 2, 2023.²⁷27. Petition for Writ of Certiorari, Akhavan v. United States, 143 S. Ct. 2639 (2023) (No. 22-844).Show More The petition was denied on June 20, 2023,²⁸28. Weigand v. United States, 143 S. Ct. 2639, 2639 (2023).Show More leaving courts across the country with a lack of clarity on the permissibility of video testimony going forward.

I. Background

A. The Situation at Trial

Defendants Akhavan and Weigand were charged with conspiracy to obtain money from a financial institution by false representation in connection with their work for a company called Eaze.²⁹29. Patterson, 2022 U.S. App. LEXIS 35264, at *1–2.Show More Eaze is an on-demand marijuana delivery service that partnered with local marijuana retailers to provide marijuana products to customers in states that allowed such products.³⁰30. Petition for Writ of Certiorari at 4, Akhavan v. United States, 143 S. Ct. 2639 (2023) (No. 22-844).Show More Many financial institutions, including Visa and Mastercard, have policies that prohibit credit card activity connected with “unlawful transactions.”³¹31. United States v. Akhavan, No. 20-cr-188, 2021 U.S. Dist. LEXIS 124370, at *7 (S.D.N.Y. July 2, 2021).Show More Because the sale and distribution of marijuana are still illegal at the federal level, the financial institutions’ policies would not permit customers to make bulk purchases through Eaze.³²32. Id. at *6–7.Show More This was despite the fact that the transactions were perfectly legal under state law in the states where the customers were making their purchases.³³33. United States v. Weigand, 482 F. Supp. 3d 224, 232–33 (S.D.N.Y. 2020).Show More

Akhavan and Weigand circumvented these restrictions by contracting to run their transactions through fake companies that did not appear to be marijuana-related.³⁴34. Id.Show More Thus, when customers made purchases, their transactions would not trigger the credit card companies’ policies.³⁵35. Id.Show More The government claimed that the defendants were conspiring to obtain money from the credit card companies by means of a material misrepresentation about the nature of the transactions, in violation of 18 U.S.C. § 1349 and 18 U.S.C. § 1344.³⁶36. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *1 (2d Cir. Dec 21, 2022).Show More

One of the defenses the defendants raised was that the misrepresentations were non-material—i.e., that the credit card companies would have processed the marijuana transactions anyway, regardless of their official policies.³⁷37. Akhavan, 2021 U.S. Dist. LEXIS 124370, at *4–12.Show More As a result, testimony from Visa and Mastercard employees about the companies’ practices regarding marijuana transactions became a key piece of the trial.³⁸38. United States v. Akhavan, No. 20-cr-188, 523 F. Supp. 3d 443, 451 (S.D.N.Y. 2021) (quoting the defense as claiming that “questions about what Visa’s policies did (or did not) require and how Visa did (or did not) enforce those policies are among the most critical questions in this case”).Show More In order to produce this critical testimony, both the government and the defense issued subpoenas to Visa to testify at trial.³⁹39. Id.Show More Visa elected to have Martin Elliott, its Global Head of Franchise Risk Management during the relevant period, perform that function.⁴⁰40. Id.Show More

Unfortunately, Mr. Elliott was not an ideal candidate to travel to New York City (where the trial was taking place) in the middle of a global pandemic. He lived in California and did not want to fly to New York for fear of contracting COVID-19 during the necessary air travel.⁴¹41. Id. at 451–52.Show More He was not yet vaccinated, nor were other members of his household.⁴²42. Id. at 451.Show More He was 57-years-old and suffered from both hypertension and atrial fibrillation, both of which significantly raise the risks associated with COVID-19 infection.⁴³43. Id. at 451–52.Show More He lived with his 55-year-old wife who also suffered from hypertension and his 83-year-old mother-in-law who faced significant COVID-related risks associated with her age.⁴⁴44. Id. at 451–52.Show More Thus, his travel to and from New York would place himself and his co-residents in danger.

Over the defense’s objections, the court permitted Elliott to testify remotely.⁴⁵45. Id. at 456.Show More In order to make the testimony as fair as possible, the court required Visa to ensure a high-quality video connection between the office and the courtroom.⁴⁶46. Id. Show More The court ensured that Elliott could see the defendant, defense counsel, the questioning attorney, the judge, and the jurors, and that he could be seen by them in turn while testifying.⁴⁷47. Id.Show More The court also permitted the defendants to send representatives to California to be present in person during the testimony if they so desired.⁴⁸48. Id.Show More

Despite these procedures, however, the testimony quickly became awkward, as complicated conversations over Zoom so often do. Defense counsel later claimed that they had increased difficulty exercising witness control or pinning Elliott to yes or no answers because of video lag.⁴⁹49. Petition for Writ of Certiorari at 10–11, Akhavan v. United States, 143 S. Ct. 2639 (2023) (No. 22-844).Show More There were several points when the witness’s screen froze, creating confusion and delays.⁵⁰50. Id. at 10.Show More There were also multiple instances where Elliott had difficulty authenticating documents efficiently—or in one case, at all—because of the virtual format.⁵¹51. Id. at 9–10 (“Because a redacted portion of the exhibit was ultimately admitted into evidence only after Elliott testified, however, the defense was unable to ask him about it. And the court refused to allow the defense to recall Elliott in light of logistical impediments . . . .”).Show More

B. The Second Circuit’s Legal Framework and Its Application

The purported permission for the modification of testimony that occurred in Patterson stems from the Supreme Court’s decision in Maryland v. Craig.⁵²52. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *11–13 (2d Cir. Dec. 21, 2022); Maryland v. Craig, 497 U.S. 836 (1990).Show More There, the Court held that the right to face-to-face confrontation is not absolute.⁵³53. Craig, 497 U.S. at 844–50.Show More In that case, the Court was faced with a situation in which a traumatized child victim of sexual assault had been permitted to testify in a separate room.⁵⁴54. Id. at 840–43.Show More The attorneys for both sides had been present with the child to question her, and the jury and defendant were permitted to view the questioning via one-way, closed-circuit television.⁵⁵55. Id. at 841.Show More The Court ruled that, in cases where one-way video testimony was “necessary to further an important public policy” and the reliability of the means of modified testimony was otherwise assured, such modification was permissible.⁵⁶56. Id. at 850.Show More

The Second Circuit took the reasoning in Craig a step further in Gigante.⁵⁷57. United States v. Gigante, 166 F.3d 75, 80–81 (2d Cir. 1999).Show More In Gigante, a testifying witness for the prosecution asked to testify using two-way, closed-circuit video because his doctors were afraid that travel to the courthouse from the location where he was currently in federal witness protection would put his health in serious jeopardy.⁵⁸58. Id. at 79.Show More The Second Circuit rebalanced the interests and reasoned that, because the mechanism for testimony was not one-way video testimony but rather two-way video testimony which allowed interaction between the participants in the courtroom and the remote participants, less justification was needed for its use.⁵⁹59. Id. at 80–81.Show More In particular, the court noted that two-way video preserved the giving of testimony under oath, the opportunity for live cross-examination, and the ability of the jury to observe demeanor.⁶⁰60. Id. at 80.Show More Thus, the court dispensed with the Craig necessity standard for two-way video.⁶¹61. Id.Show More

Instead, the court analogized the situation to a Rule 15 deposition.⁶²62. Id. at 81 (“A more profitable comparison can be made to the Rule 15 deposition . . . .”); Fed. R. Crim. P. 15(a)(1). Rule 15(a)(1) of the Federal Rules of Criminal Procedure provides that a “party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. . . . [I]t may also require the deponent to produce at the deposition any designated material that is not privileged . . . .” In general, the defendant has the right to be present or, at the very least to “meaningfully participate.” Fed. R. Crim. P. 15(c)(3)(E). The defendant always has the right to cross-examine the deposed witness in the same “scope and manner . . . as would be allowed during trial.” Fed. R. Crim. P. 15(e)(2). These depositions may then be admitted into evidence at trial subject to the Federal Rules of Evidence. Fed. R. Crim. P. 15(f).Show More In both cases, the modified means of testimony preserves some of the essential features of confrontation (e.g., the oath and cross examination) but misses some of the finer points. Rule 15 depositions preserve the oath, the opportunity for cross-examination, and the ability of the defendant to be copresent with the witness, but eliminates the ability for the witness to be copresent with the jury, allowing the jury to observe their demeanor.⁶³63. See Gigante, 166 F.3d at 81 (explaining how Rule 15 would allow the admission of a transcript of a deposition and thereby preclude the jury from visually assessing witness demeanor).Show More Two-way video preserves the oath, the opportunity for cross-examination, and the ability for the jury to observe demeanor evidence, but does not require the witness to come face-to-face with the defendant. The court in Gigante reasoned that the two forms of modified confrontation were similarly effective and that, if anything, two-way video confrontation was more reliable than a Rule 15 deposition because it preserved demeanor evidence (a historical touchstone of confrontation).⁶⁴64. Id.Show More

Rule 15 depositions may be taken and preserved “because of exceptional circumstances and in the interest of justice.”⁶⁵65. Fed. R. Crim. P. 15(a)(1).Show More And, when a witness subsequently becomes unavailable due to death, illness, privilege, or other qualifying condition, the transcript of the Rule 15 deposition may be used as substantive evidence at trial.⁶⁶66. Fed. R. Evid. 804(b)(1) (allowing former testimony by an unavailable witness as an exception to the rule against hearsay).Show More The Gigante court reasoned that if it would have been permissible under the Confrontation Clause to have the witness take a Rule 15 deposition and to read that deposition into the record at trial, it must also be permissible to use two-way video testimony, which is relatively (in the court’s eyes) more reliable.⁶⁷67. Gigante, 166 F.3d at 81 (noting that two-way video testimony “may provide at least as great protection of confrontation rights as Rule 15”).Show More Therefore, the court fashioned a new standard based on the standard for Rule 15 depositions. In the Second Circuit, “upon a finding of exceptional circumstances, . . . a trial court may allow a witness to testify via two-way closed-circuit television when this furthers the interest of justice.”⁶⁸68. Id.Show More

Unsurprisingly, with circumstances so closely mirroring those in Gigante, the Second Circuit in Patterson upheld a finding that requiring Elliott to come to the Southern District of New York courthouse in the middle of a pandemic would put him at risk of “serious illness or death.”⁶⁹69. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *12 (2d Cir. Dec. 21, 2022) (upholding the district court’s finding of exceptional circumstances).Show More Thus, the court concluded that the individualized dangers he was facing constituted the type of exceptional circumstances which made the witness unavailable to testify in an ordinary manner, just as the illness in Gigante did.⁷⁰70. Id. at *12–13.Show More The use of two-way video was permissible.⁷¹71. Id. at *13.Show More

II. A Widening Circuit Split

This permissive understanding of the Confrontation Clause has not been well-received by other jurisdictions. Therefore, while the Second Circuit abides by their Rule 15-based standard, the rest of the country has been divided over two other standards, one put forward by the Michigan Supreme Court and one used by the majority of other jurisdictions.

A. The Majority View

The majority of federal circuits and the majority of states simply continue to apply the Craig standard, rejecting requests to adopt the more lenient standard advocated by the Second Circuit.⁷²72. See, e.g., United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005) (applying the Craig standard to two-way video testimony); United States v. Carter, 907 F.3d 1199, 1202 (9th Cir. 2018) (same); United States v. Yates, 438 F.3d 1307, 1313 (11th Cir. 2006) (same); Harrell v. State, 709 So. 2d 1364, 1368–69 (Fla. 1998) (same); State v. Rogerson, 855 N.W.2d 495, 504 (Iowa 2014) (same); State v. Tate, 985 N.W.2d 291, 294 (Minn. 2023) (same).Show More While two-way video may be a closer approximation of in-court testimony than one-way video, these courts note that it is, nonetheless, still an approximation.⁷³73. See Bordeaux, 400 F.3d at 554 (noting that the continued application of Craig is justified since two-way confrontation is a “virtual, and not real” approximation).Show More It loses some of the intangible formality and ordeal of appearing in the courtroom and, therefore, may do less to impress upon the witness the importance of truth-telling.⁷⁴74. See id. (noting that two-way video does not provide the same “truth-inducing effect” as in-court testimony).Show More It also places a level of abstraction between the defendant and the witness, even if the witness can see the image of the defendant. Courts worry that this abstraction will get in the way of the “say it to my face” effect produced by forcing the witness to say things while copresent with the defendant.⁷⁵75. See id.Show More It is, therefore, not constitutionally equivalent to in-court testimony.⁷⁶76. See id.Show More

These courts then read Craig as not merely setting out a standard for one-way video testimony.⁷⁷77. See Yates, 438 F.3d at 1314 (rejecting the argument that Craig does not apply to two-way video testimony).Show More Rather, it sets forth a scrutiny standard that controls when the government can create exceptions to a defendant’s confrontation rights.⁷⁸78. See id.Show More Because two-way video is an abridgement of the defendant’s confrontation rights, these courts reason, it must be held to the necessity standard.⁷⁹79. See id.Show More

As for the argument that two-way video must be permissible because it is less disruptive to constitutional rights than Rule 15 depositions, majority courts point to the Supreme Court’s differentiation between two-way video and Rule 15 depositions. Rule 15 is an official rule of criminal procedure which has been approved by the Supreme Court.⁸⁰80. 28 U.S.C. § 2072; Fed. R. Crim. P. 15.Show More Its allowance into the rules of procedure, majority courts suppose, is because of its “carefully-crafted provisions . . . that were designed to protect defendants’ rights to physical face-to-face confrontation” by allowing the defendant to be physically present at such a deposition.⁸¹81. See Yates, 438 F.3d at 1315.Show More

Two-way video, on the other hand, is not envisioned in the “carefully-crafted provisions” of the rules of criminal procedure. Rather, its use would need to be authorized by the courts’ general authority to exercise control “over the mode and order of examining witnesses and presenting evidence” under Federal Rule of Evidence 611(a).⁸²82. Fed. R. Evid. 611(a) (“The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence . . . .”); cf. United States v. Yates, 438 F.3d 1307, 1314 (11th Cir. 2006) (rejecting the government’s argument that “admission of video testimony is within the inherent powers of trial courts”).Show More Further, the absence of two-way video from the rules of criminal procedure is not an accident. In 2002, the advisory committee on the rules of procedure suggested an addition for video testimony to Rule 26, and this was explicitly rejected by the Supreme Court.⁸³83. Order of the Supreme Court, 207 F.R.D. 89, 93–96 (2002) (Scalia, J.).Show More Justice Scalia explained that this rejection was because the proposed change was “contrary to the rule enunciated in Craig.”⁸⁴84. Id. at 93.Show More

This differentiation, majority courts conclude, indicates that two-way video cannot be deemed equivalent to Rule 15 depositions.⁸⁵85. See Yates, 438 F.3d at 1314–15.Show More Instead, the Supreme Court’s explanation suggests that, in individual cases, the correct standard is simply the Craig standard.⁸⁶86. See id.Show More Thus, for the majority of courts, the standard for the use of two-way video testimony is the same as the standard for one-way video testimony: The use of modified testimony must be “necessary to further an important public policy” and the reliability of the means of modified testimony must be otherwise assured.⁸⁷87. See supra note 70 (collecting cases by majority courts that follow the Craig standard for two-way video testimony); Maryland v. Craig, 497 U.S. 836, 850 (1990).Show More

B. The Michigan View

The Michigan view is even more protective of confrontation rights than the majority approach. It involves tracing the history of the Confrontation Clause back still further so as to reject even the Craig standard. When Craig was decided, the governing case on the meaning of the Confrontation Clause was Ohio v. Roberts.⁸⁸88. 448 U.S. 56 (1980).Show More Roberts held that a statement from an unavailable witness could be admitted without traditional confrontation if it bears “particularized guarantees of trustworthiness.”⁸⁹89. Id. at 66.Show More Under the Roberts standard, therefore, the right to confrontation was a substantive right to the reliability of witness testimony. Where that reliability could otherwise be guaranteed, confrontation was not necessary.⁹⁰90. Id. at 73.Show More The Craig standard was based on an analysis of the reliability of one-way video.⁹¹91. Craig, 497 U.S. at 851–52.Show More Because it was sufficiently reliable, the defendant’s interest in avoiding it was low and could be outweighed by public policy considerations.⁹²92. Id. at 851–853 (“[A] State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh . . . a defendant’s right to face his or her accusers in court”).Show More

But, as the Michigan Supreme Court notes, there was another view of Confrontation already competing with the Roberts view at the time Craig was decided.⁹³93. See People v. Jemison, 505 Mich. 352, 361 (2020).Show More In his dissenting opinion in Craig, Justice Scalia argued that the Confrontation Clause is not a substantive guarantee of reliability.⁹⁴94. Id. at 862 (Scalia, J., dissenting).Show More It is a guarantee of specific procedures which assure reliability.⁹⁵95. Id.Show More The fact that an alternative to those procedures is also reliable does not mean that it satisfies the constitutional guarantee of the traditional procedures.⁹⁶96. Id. at 863.Show More

Since Craig, Scalia’s view has won over. In Crawford v. Washington, Justice Scalia wrote for the majority and put forward precisely the view described above.⁹⁷97. 541 U.S. 36 (2004).Show More The Confrontation Clause is no longer about substantive reliability.⁹⁸98. Id. at 61.Show More It is about adherence to the procedures demanded by the Framers.⁹⁹99. Id. (noting that the Confrontation Clause “is a procedural rather than a substantive guarantee”).Show More This, the Michigan Supreme Court argues, means that Crawford cuts the legs out from under Craig.¹⁰⁰100. See People v. Jemison, 505 Mich. 352, 356 (2020) (“Crawford did not specifically overrule Craig, but it took out its legs.”).Show More In overruling Roberts, they contend, the Court necessarily modified the proper reading of Roberts’s progeny.¹⁰¹101. Id. (noting that Crawford “overruled Roberts and shifted from a reliability focus to a bright-line rule” for in-person testimony).Show More One can no longer balance the reliability of an alternative means of testimony against public policy, because substantive reliability is not the relevant standard.¹⁰²102. Id. at 361–62 (“[In Crawford], the Court shifted gears; balancing no longer had a role.”).Show More

The Michigan Supreme Court acknowledged that it would be improper to hold that Crawford overruled Craig entirely, because the Supreme Court did not specifically state that it was doing so, and the Supreme Court does not overrule itself silently.¹⁰³103. Id. at 363 (citing Rodriguez de Quijas v. Shearson, 490 U.S. 477, 484 (1989) (noting that the Supreme Court does not silently overrule itself)).Show More The Michigan Supreme Court, therefore, concluded that Craig should be confined to the specifics of its holding: Video testimony may be used to protect child victims of sexual assault when there is an individualized finding of necessity.¹⁰⁴104. Jemison, 505 Mich. at 365.Show More Otherwise, the requirement of face-to-face, in court, testimony is sacrosanct and “may be dispensed with only when the witness is unavailable and the defendant had a prior chance to cross-examine the witness.”¹⁰⁵105. Id.Show More

C. The Second Circuit Responds

In appealing the district court’s decision, the defendants in Patterson argued that the Second Circuit should adopt the Michigan view and reject Gigante.¹⁰⁶106. United States v. Patterson, No. 21-1678-cr, 2022 U.S. App. LEXIS 35264, at *10–11 (2d Cir. Dec. 21, 2022).Show More The Second Circuit declined to do so.¹⁰⁷107. Id. at *11.Show More In addressing Michigan’s approach, the Second Circuit argued that Crawford didn’t undermine Craig or Gigante; it simply changed how they must be understood.¹⁰⁸108. Id. at *11–12.Show More Craig and Gigante, the Second Circuit reasoned, stand for the proposition that the confrontation right can be partially abridged in the face of sufficient necessity.¹⁰⁹109. Id. at *11.Show More As of the time of Craig and Gigante, this meant that the reliability of testimony could be slightly reduced by moving from in-person to one- or two-way video testimony, when the circumstances called for it. The Second Circuit argued that Crawford changed the understanding of what the right was that could be abridged, but it did not disturb the Craig–Gigante framework.¹¹⁰110. Id. at *11–12.Show More Now, the procedures demanded by the Sixth Amendment can be slightly modified or abridged by moving from in-person to one- or two-way video testimony, when the circumstances call for it. Thus, there is no need to adopt Michigan’s standard.¹¹¹111. Id. at *11 (declining to adopt the argument that Crawford overruled Gigante).Show More

Once the court in Patterson concluded that Gigante had not been overruled by Crawford, it was bound by that controlling Second Circuit precedent.¹¹²112. Id.Show More As a result, the court has not squarely addressed the majority view.

III. Implications of the Second Circuit’s Divergent Standard

For a long time after Gigante was decided, its relaxed standard was used infrequently. Most commonly, it was used for situations in which a witness was a victim of child abuse or in which the witness’s physical presence could not be obtained because of extradition issues.¹¹³113. See, e.g., Jelinek v. Costello, 247 F. Supp. 2d 212, 277 (E.D.N.Y. 2003) (denying habeas relief for an alleged Confrontation Clause violation on the Gigante standard where the court permitted remote testimony from a victim of child abuse); United States v. Mostafa, 14 F. Supp. 3d 515, 524 (S.D.N.Y. 2014) (allowing video testimony from a witness detained in the United Kingdom who could not come to the United States without being detained in Massachusetts).Show More In fact, in most Second Circuit cases predating the pandemic, there was an argument to be made that, despite the application of the looser Gigante standard, the Craig standard was also satisfied. Even in Gigante, the witness who testified remotely was ill enough that the court believed he would have suffered medical harm if he was forced to travel.¹¹⁴114. United States v. Gigante, 166 F.3d 75, 79 (2d Cir. 1999).Show More While the court did not inquire into the specifics enough to formally make such a determination, it seems likely that the harm done by requiring a severely ill witness to travel might rank alongside the trauma experienced by a child witness forced to testify against their abuser. In fact, other circuits have held just that.¹¹⁵115. See, e.g., Horn v. Quarterman, 508 F.3d 306, 317 (5th Cir. 2007). Show More Thus, the Gigante standard represented a formal difference between the Second Circuit and other courts, but, practically speaking, ended up admitting similar evidence.

But Patterson represents a group of COVID-era cases in which video testimony was used far more liberally in the Second Circuit.¹¹⁶116. Patterson, 2022 U.S. App. LEXIS 35264, at *12–13; see also United States v. Avenatti, No. 19-CR-374, 2022 U.S. Dist. LEXIS 5395, at *2–5 (S.D.N.Y. Jan. 11, 2022) (allowing a witness who was at “increased risk of serious illness or death if [s]he were to contract COVID-19” to testify remotely to avoid traveling during the Omicron variant surge); United States v. Calonge, No. 1:20-cr-523-GHW, 2021 U.S. Dist. LEXIS 142032, at *4 (S.D.N.Y. July 29, 2021) (allowing a witness with an undisclosed medical condition to testify remotely to avoid traveling during the pandemic); United States v. Donziger, No. 19-CR-561, 2020 U.S. Dist. LEXIS 148029, at *8–10 (S.D.N.Y. Aug. 17, 2020) (allowing an unvaccinated witness in his seventies to testify remotely during the height of the pandemic).Show More The witnesses in these cases were not actually incapacitated. In some cases, they had already testified in person in recent court proceedings.¹¹⁷117. See, e.g., Avenatti, 2022 U.S. Dist. LEXIS 5395, at *4–5 (noting that the witness’s in-person testimony pre-pandemic did not affect the court’s analysis).Show More In at least one case, the court admitted that it was possible to procure the witness’ in-person testimony.¹¹⁸118. See, e.g., id. at *4 (“To be sure, the Government has not proved that it would be impossible for [the witness] to appear in New York to testify.”).Show More It was simply risky.

In this new collection of cases, an argument that the Craig standard would have been satisfied, if applied, becomes much more difficult. There was no guarantee of harm in these cases or even the high probability of harm present in Gigante. There was simply the possibility. There was no inquiry into whether alternative steps could be taken which would not necessitate two-way video. In none of these cases did the court consider an adjournment until such a time as the risk had passed or the witness could be vaccinated.¹¹⁹119. See, e.g., United States v. Donziger, No. 19-CR-561, 2020 U.S. Dist. LEXIS 197631, at *5–6 (S.D.N.Y. Oct. 23, 2020) (denying a request for an adjournment to prioritize in-person testimony).Show More In Patterson, there wasn’t even an inquiry into whether Visa could provide a representative other than Elliott who could testify to the same facts. Elliott’s personal knowledge wasn’t case specific, so it seems highly plausible that there would have been someone else in a large corporation like Visa who could testify to the same policies and who would be able to get to a courthouse in New York.¹²⁰120. United States v. Akhavan, 523 F. Supp. 3d 443, 451 (S.D.N.Y. 2021) (noting Elliott’s testimony as Visa policy-focused and not specific to the issues of the case).Show More But no such inquiry was made. Patterson represents the true meaning of Gigante: The bar for using video testimony in the Second Circuit has been lowered.

IV. Where Does the Second Circuit Go Now?

All of this invites the question: How far will the Second Circuit diverge from the rest of the country? The most natural niche for video testimony to expand into is the one currently held by Rule 15 depositions. Historically, Rule 15 depositions have been the solution when a witness cannot be present in court during trial.¹²¹121. Fed. R. Crim. P. 15.Show More Most circuits hold that two-way video should not be permitted where a Rule 15 deposition could be used instead.¹²²122. See, e.g., United States v. Yates, 438 F.3d 1307, 1316 (11th Cir. 2006) (noting that the availability of a Rule 15 deposition showed lack of necessity under Craig).Show More But that precedent relies on the Craig necessity standard—two-way video cannot be necessary where a Rule 15 deposition would suffice.¹²³123. Id.Show More So, there is no reason to believe that the Second Circuit would follow those other circuits’ holdings. Indeed, if the Second Circuit takes seriously the claim that two-way video should be admissible on exactly the same standard as Rule 15 depositions, there is no reason that a district court in that circuit should prioritize one over the other on confrontation grounds.

Decisions like Patterson pave the way for a replacement of many Rule 15 depositions with video testimony. Indeed, arguably, Patterson was already such a replacement. In circuits which apply the Craig standard, Rule 15 depositions were used to procure the testimony of witnesses who were too medically fragile to travel to trial during the pandemic.¹²⁴124. See, e.g., United States v. Jesenik, No. 3:20-cr-228-SI, 2021 U.S. Dist. LEXIS 228993, at *4–7 (D. Or. Nov. 30, 2021).Show More For example, a district court in the Ninth Circuit permitted the Rule 15 deposition of a witness who could not travel to court because he was 87 years-old and in a high-risk category for COVID-19.¹²⁵125. Id.Show More In theory, the Second Circuit could have demanded the same thing in Patterson. But they did not; they used video as an alternative.

Using video-testimony instead of Rule 15 depositions certainly seems like an attractive option from a logistical and financial perspective. Rule 15 depositions generally require getting the witness together in the same room with attorneys from both sides and with the defendant.¹²⁶126. Fed. R. Crim. P. 15(c) (providing guidance for in-person depositions with and without the defendant’s presence).Show More That can become complicated for any number of reasons. In particular, Rule 15 depositions are commonly used for obtaining the testimony of witnesses located outside the United States (and, therefore, outside the court’s subpoena power) who refuse to travel to testify or who have difficulty obtaining the necessary documents to do so.¹²⁷127. See, e.g., United States v. Sidona, 636 F.2d 792, 803–04 (2d Cir. 1980) (allowing Rule 15 depositions of witnesses who refused to travel to the United States and witnesses who were willing but had not timely procured the necessary travel documents).Show More In order to take Rule 15 depositions for these witnesses, both parties must travel internationally.¹²⁸128. Fed. R. Crim. P. 15(c). Note an exception for the defendant’s presence in international depositions if certain criteria are satisfied under Fed. R. Crim. P. 15(c)(3).Show More When the defendant is represented by court-appointed counsel or the government is the party seeking to procure the testimony, this often means that the United States government must pay for and make arrangements for the defendant and their counsel to travel internationally.¹²⁹129. Fed. R. Crim. P. 15(d) (noting the court may—and must, when the defendant is unable to pay—order the government to cover travel and deposition transcript expenses when the government requests the deposition).Show More Video testimony is clearly a cheaper and easier option for the government. Because of these financial and logistical barriers, one might expect that, barring a legal impediment to such a move, video testimony would become the default in cases where a Rule 15 deposition would once have been used.

Such a move would represent a significant departure from the traditional uses of modified confrontation.¹³⁰130. See United States v. Gear, No. 17-00742, 2019 U.S. Dist. LEXIS 4011, at *1–2 (D. Haw. Jan. 9, 2019) (noting that video testimony is not a substitute for a Rule 15 deposition simply because a foreign witness is located abroad and refuses to travel to testify at trial under the Craig standard).Show More And it is not clear that it would be a change for the better. Video testimony may be cheaper and easier to set up on short notice than other accommodations, but it also poses demonstrable risks to the reliability of trial testimony, as discussed above. Jurors just can’t evaluate it.¹³¹131. See supra notes 6–11 and accompanying text.Show More By contrast, jurors are often better at evaluating purely written testimony, like Rule 15 depositions, than they are even at evaluating standard testimony.¹³²132. See Robert Fisher, The Demeanor Fallacy, 2014 N.Z. L. Rev. 575, 580 (2014) (citing an American commentator summarizing experimental evidence and concluding that “subjects who receive transcript consistently perform as well as or better than subjects who receive recordings of the respondent’s voice” (quoting Olin Guy Wellborn III, Demeanor, 76 Cornell L. Rev. 1075, 1088 (1991))).Show More So, Patterson paves the way for a situation in which a tried and true, reliable form of modified testimony can be replaced with a form of modified testimony known to produce credibility problems. It will be up to the Second Circuit to ensure that we do not reach that point. But based on their current precedent, it is not at all clear that they will.

Conclusion

The Supreme Court admits that the standard for modified testimony has been an open question ever since they decided Crawford in 2006.¹³³133. See Wrotten v. New York, 560 U.S. 959, 960 (2010) (Sotomayor, J., denying certiorari) (“Because the use of video testimony in this case arose in a strikingly different context than in Craig, it is not clear that the latter is controlling.”).Show More The pandemic and its promotion of video technology have made a resolution all the more pressing. Absent constitutional or statutory barriers, it seems likely that video testimony will seep into the court system as a means of solving logistical problems just as it has in every other aspect of our lives. The logical outcome of this seepage is that (again, absent constitutional or statutory barriers) the courts will continue to move in a more permissive direction with video testimony if left unchecked. The Second Circuit’s standard lowers constitutional barriers, and gives trial courts every opportunity to be permissive, particularly now that the Supreme Court has declined to step in and force them to change course.¹³⁴134. See Akhavan v. United States, 143 S. Ct. 2639 (2023) (denying certiorari).Show More The Second Circuit may well become the wild west of video trials, allowing video testimony in many places where other circuits simply would not. It remains to be seen how far their increasingly lax standard will go.

Jonah Charles Ullendorff³3. * Copyright © 2023 by Jonah Charles Ullendorff. J.D., 2023, New York University School of Law; B.A., 2020, The University of Chicago. Thank you to the Online Department of the New York University Law Review for their amazing work and help on this article. Particularly (in alphabetical order), Colin Heath, Jess Moore, Cleo Nevakivi-Callanan, Maeve O’Brien, and Ryan Shaffer.Show More*

Recent Case: Verdun v. City of San Diego, 51 F.4th 1033 (9th Cir. 2022).

The Ninth Circuit recently held that parking enforcement officers’ use of tire chalk, while possibly a warrantless search, is still constitutional under the special needs doctrine. This ruling explicitly rejected a previous Sixth Circuit decision which said that the practice of tire chalking was a warrantless search not justified under the doctrine. The reasoning behind these cases sheds light on some of the most critical and contentious disputes around Fourth Amendment case law that are happening right now across our federal courts: the original meaning and purpose of the Fourth Amendment, debates over how to understand what constitutes a search, and questions of how far the special needs doctrine really goes. Few things seem more mundane than tire chalking; therefore, if tire chalking is a search, that has important implications for the future of the Fourth Amendment.

Introduction

The Chicago Tribune’s 2015 travel section gushes with praise for the quaint California town of Coronado. The coastal city of only 20,000 people is so idyllic that it needs no law enforcement presence—well, save for one small thing: “[In Coronado t]here is no graffiti, [the] streets are clean, and the only police activity we saw in a week was tire-chalking.”⁴4. William Hageman, Coronado a Laid-Back World Away from San Diego, Chi. Trib. (Apr. 27, 2015, 10:48 AM), https://www.chicagotribune.com/travel/sc-trav-0428-coronado-california-20150422-story.html [https://perma.cc/KC9Y-7R7L].Show More

With cars comes parking, and with parking comes parking enforcement. No matter where one goes in America, someone or something will be there, ensuring that their vehicle does not overstay its welcome. One of the oldest tools of these parking enforcers is tire chalking, a practice employed since at least the 1920s.⁵5. Campbell Robertson, Lose the Chalk, Officer: Court Finds Marking Tires of Parked Cars Unconstitutional, N.Y. Times (Apr. 25, 2019), https://www.nytimes.com/2019/04/25/us/tire-chalk-parking-unconstitutional.html [https://perma.cc/R7CG-3LP5].Show More Tire chalking involves an officer placing chalk on the tire of a parked car and returning after a set amount of time. If the chalk remains where the officer left it, the car has evidently not moved, and the driver is issued a fine for violating the city’s parking ordinances.⁶6. Id.Show More Tire chalking means many things to many people. It can be seen as trivial, boring, inevitable, or just plain annoying. And, maybe, it is also a long-running and egregious violation of the core constitutional rights that we all hold dear as American citizens.

The Ninth Circuit in October 2022 thought otherwise, holding in Verdun v. City of San Diego that while tire chalking might be a warrantless search under the Fourth Amendment, it nonetheless fell under the special needs doctrine exception and was thus constitutional.⁷7. 51 F.4th 1033, 1037 (9th Cir. 2022) (expressing deep skepticism of “plaintiffs’ effort to have us suddenly declare as violating the United States Constitution a rather innocuous parking management practice” but, nonetheless, putting that “skepticism completely to the side” and assuming that tire chalking would be a search); id. at 1046. Show More In doing so, the Ninth Circuit departed from the Sixth Circuit,⁸8. Taylor v. City of Saginaw, 922 F.3d 328, 336 (6th Cir. 2019) (Taylor I) (holding that chalking is a warrantless search and that the exceptions raised on appeal do not apply); Taylor v. City of Saginaw, 11 F.4th 483, 489 (6th Cir. 2021) (Taylor II) (holding that the administrative need exception does not apply).Show More creating an inter-circuit split ripe for Supreme Court review.⁹9. Note that technically both circuits only formally disagree on the special needs analysis, but the majority opinion in Verdun evinces a clear skepticism that tire chalking is a search under Supreme Court caselaw that the Supreme Court may feel necessary to clear up. See Verdun, 51 F.4th at 1037. In fact, a petition for certiori has been docketed and, after conference, a brief in opposition was submitted. Id. at 1033, appeal docketed, No. 22-943 (Mar. 28, 2023).Show More The outcome of Verdun raises important questions about the Fourth Amendment and the contours of the Supreme Court’s precedent on unconstitutional searches and the special needs doctrine. On a more conceptual level, the case also presents unique insights on how different judges understand the constitutional interpretive method of originalism, as well as the ultimate purpose behind the Fourth Amendment.

The comment will proceed in three main parts before concluding. Part I provides the reader with the necessary background on what constitutes a search or seizure under the Fourth Amendment, as well as the special needs doctrine exception to the default requirements of the Fourth Amendment. Part II then analyzes the majority and dissent in the Verdun decision. Part III further explores the key topics laid bare by the disagreements in Verdun: (1) if tire chalking should be considered a search under current Supreme Court precedent; (2) the breadth of the special needs doctrine; and (3) intra-originalist disagreements on how far an originalist conception of the Fourth Amendment should really go. Finally, the comment concludes and poses a brief question on the Fourth Amendment and innate government skepticism that underlies its text.

I. Warrantless Searches and the Special Needs Doctrine

Under English and early colonial law, warrantless general searches, known as “writs of assistance,” were the norm.¹⁰10. See Leonard W. Levy, Origins of the Fourth Amendment, 114 Pol. Sci. Q. 79, 81 (1999) (“English law was honeycombed with parliamentary enactments that relied on warrantless general searches and on general warrants for their enforcement . . . .”).Show More Officers would report that they suspected a crime had occurred—no further specificity was needed—and a magistrate would issue a general warrant that allowed officers to search for and seize whatever they wanted within their discretion.¹¹11. See id. at 82 (discussing these broad general warrants, which “allowed officers to search wherever they wanted and to seize whatever they wanted, with few exceptions”).Show More This was, unsurprisingly, a great point of contention among the colonists,¹²12. Id. at 79.Show More who reviled at the thought of giving such wide-ranging, despotic power to any enforcing officer who asked for it.¹³13. See Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 578 (1999) (“[D]elegation of discretionary authority to ordinary, ‘petty,’ or ‘subordinate’ officers was anathema to framing-era lawyers.”); id. at 580–82 (attributing this view to the colonists). Show More Upon attending a rousing speech by the patriot James Otis in 1761 denouncing the British general writs of assistance, a young John Adams wrote: “[t]hen and there the child [of] Independence was born.”¹⁴14. Riley v. California, 573 U.S. 373, 403 (2014) (quoting 10 Works of John Adams 248 (Charles Francis Adams ed., 1856)).Show More

The intuitive instincts of the Framers against general, suspicionless searches led to the adoption of the Fourth Amendment.¹⁵15. See Marshall v. Barlow’s, Inc., 436 U.S. 307, 311–12 (1978) (surveying this history).Show More The key purpose of the Amendment was to take discretion away from the investigating officer(s) and require a warrant issued upon probable cause to “search” or “seize” something from an individual.¹⁶16. See Davies, supra note 10, at 724 (noting that the Framers aimed the Fourth Amendment at getting rid of discretionary authority for officers).Show More From this, a general principle arose: warrantless searches and seizures are per se unconstitutional, subject to exceptions.¹⁷17. E.g., Coolidge v. New Hampshire, 403 U.S. 443, 454–55 (1971) (citing Katz v. United States, 389 U.S. 347, 357 (1967)). These exceptions have, for many, completely vitiated the rule—like Swiss cheese with so many holes it is more air than actual cheese. See, e.g., Florida v. White, 526 U.S. 559, 569 (1999) (Stevens, J., dissenting) (arguing that the Supreme Court’s doctrine on exceptions to the warrant requirement has “all but swallowed the general rule”). Nonetheless, these exceptions are still formally “exceptions” to the general rule. See id. (“The Court does not expressly disavow the warrant presumption . . . .”). Show More As a result, a key and oft-litigated distinction in Fourth Amendment case law is what is and what is not a search.

A. What Is a Search

The biggest sea change in understanding what a “search” was began with the famous 1967 case Katz v. United States.¹⁸18. 389 U.S. 347 (1967). Show More Before Katz, what qualified as a search or seizure under the Fourth Amendment was based in the concept of property rights; a violation of the Amendment was interpreted to require some sort of physical force or trespass.¹⁹19. See, e.g., Olmstead v. United States, 277 U.S. 438, 463, 465–66 (1928), overruled by Katz, 389 U.S. 347 and Berger v. New York, 388 U.S. 41 (1967).Show More Take, for instance, the case that Katz overruled: Olmstead v. United States.²⁰20. Olmstead, 277 U.S. 438.Show More In this 1920s, prohibition-era decision, the Supreme Court, in an opinion written by Chief Justice William Howard Taft, canvassed the history of the Fourth Amendment to say that a person’s Fourth Amendment rights have not been violated “unless there has been an official search and seizure of his person . . . papers . . . tangible material effects, or an actual physical invasion of his house or curtilage for the purpose of making a seizure.”²¹21. Id. at 466 (internal quotation marks omitted).Show More Thus, the wiretapping²²22. Id. at 456–57. Show More of Olmstead and his co-conspirators was not a search under the Fourth Amendment.²³23. Id. at 466.Show More But in Katz, the Supreme Court embraced a broader view of the Fourth Amendment and extended its privacy protections to an oral recording of statements, even though the collection of such recordings involved no physical force or trespass to obtain.²⁴24. Katz, 389 U.S. at 352–53.Show More While Justice Potter Stewart wrote the majority in Katz, Justice John Marshall Harlan’s concurrence stole the show. Justice Harlan outlined a two-tiered test for what the Fourth Amendment protected, requiring that a person have both a subjective expectation of privacy and for that expectation of privacy to be one which society objectively views as “reasonable.”²⁵25. Id. at 361 (Harlan, J., concurring).Show More Harlan’s concurrence created a radical change in the understanding of modern Fourth Amendment law that accounted for new police technologies that often involved touchless surveillance.²⁶26. See Stephen J. Schulhofer, More Essential Than Ever 119–20 (2012) (noting the Court’s watershed application of the Fourth Amendment “regardless of the place where the surveillance occurs and regardless of the means used”).Show More Naturally, this Harlan test was applied consistently among all federal courts interpreting federal constitutional law—from district courts to the Supreme Court.²⁷27. See, e.g., Kyllo v. United States, 533 U.S. 27, 32–33 (2001); United States v. Ramapuram, 632 F.2d 1149, 1153–54 (4th Cir. 1980); United States v. Nettles, 175 F. Supp. 2d 1089, 1092 (N.D. Ill. 2001).Show More

But then something changed—or never changed, depending on your perspective. In a series of cases led by Justice Antonin Scalia, the old property right conception of the Fourth Amendment reared its head again. In the 2012 case United States v. Jones, the Court was confronted with the warrantless GPS tracking of a car.²⁸28. 565 U.S. 400, 402–03 (2012). Show More The government argued, per the Katz formulation, that no one had a reasonable expectation of privacy to the movement of their car on public roads visible to all.²⁹29. Id. at 406.Show More Justice Scalia’s majority opinion said that the lack of a reasonable expectation of privacy was of no matter because the government, by physically placing a GPS tracker on a car to obtain information, committed common law trespass and, thus, engaged in a search or seizure.³⁰30. Id. at 406–10.Show More Furthermore, Justice Scalia announced that Katz was not a “new” test for the Fourth Amendment; rather, it was just additional protection that supplemented the old property law protections of the Fourth Amendment.³¹31. Id. at 409.Show More Therefore, after Jones, a search is one that violates a reasonable expectation of privacy or is one that involves the government physically intruding on a constitutionally-protected area to obtain information.³²32. See id. at 407–08 (holding that “Katz did not narrow the Fourth Amendment’s scope” based on subsequent precedent preserving the property rights element).Show More Justice Samuel Alito concurred in Jones, but he found the GPS tracking a violation of the Fourth Amendment because it invaded a reasonable expectation of privacy.³³33. Id. at 430–31 (Alito, J., concurring).Show More For Justice Alito, Katz did away with the old, archaic, property-based standard.³⁴34. Id. at 422.Show More

Then, a year later, in Florida v. Jardines, Justice Scalia further solidified this disjunctive, either-or test for what constitutes a Fourth Amendment search. In Jardines, the physical trespassing of an officer and their drug-sniffing dog on a homeowner’s property was enough to constitute a search because it involved the government physically invading a protected property interest to gather information.³⁵35. 569 U.S. 1, 5–6 (2013).Show More Justice Alito, again, looked to whether the homeowner had a reasonable expectation of privacy and not the property test. Justice Alito argued that law enforcement has routinely used dogs’ sense of smell for centuries and society has not recognized a reasonable expectation of privacy in odors emanating from a property.³⁶36. Id. at 16–17 (Alito, J., dissenting).Show More

Ultimately, Justice Scalia’s property conception of the Fourth Amendment articulated in Jones and Jardines is critical to our understanding of the constitutionality of tire chalking. Under the Katz test, cars are understood to involve minimal privacy interests.³⁷37. See, e.g., Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (surveying case law that indicates lesser Fourth Amendment protections for cars due, in part, to reduced expectations of privacy for cars); Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (“One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects.”).Show More Combine this with the minimal intrusion of the process of tire chalking, and it is an uphill battle to convince a court solely under the Katz formulation that tire chalking is a search. But, under Jones, tire chalking is a physical trespass upon one’s property by a government official to obtain information, i.e., a search.

B. Special Needs Doctrine

Even under the Jones and Jardines test, there is a significant hurdle a litigator needs to clear in arguing that the practice of tire chalking is unconstitutional: the special needs doctrine. The first case implicating the special needs doctrine was the relatively recent 1985 case of New Jersey v. T.L.O.³⁸38. 469 U.S. 325 (1985); see Ronald Jay Allen, Joseph L. Hoffmann, Debra A. Livingston, Andrew D. Leipold & Tracey L. Meares, Criminal Procedure: Investigation and Right to Counsel 677 (4th ed. 2020) (noting T.L.O. as the first of a long line of cases under the special needs doctrine).Show More There, the Supreme Court allowed widescale searches of students’ backpacks within a school without probable cause or a warrant.³⁹39. T.L.O., 469 U.S. at 341–43.Show More After several subsequent cases, the special needs doctrine was solidified. It held that if the government engages in systematic search or surveillance not primarily related to law enforcement purposes, they do not need to worry about probable cause or warrants.⁴⁰40. See Barry Friedman, Lawless Surveillance, 97 N.Y.U. L. Rev. 1143, 1181 (2022) (outlining this framework for the special needs doctrine). Show More Therefore, even though something is a “search” and lacks a valid warrant issued under probable cause, the government can still constitutionally engage in such a search under the special needs doctrine.⁴¹41. See, e.g., Ferguson v. City of Charleston, 532 U.S. 67, 74 n.7 (2001) (“[I]n limited circumstances, a search unsupported by either warrant or probable cause can be constitutional when ‘special needs’other than the normal need for law enforcement provide sufficient justification.” (citing O’Connor v. Ortega, 480 U.S. 709, 720 (1987)). Show More

One may be excused for wondering if, through the special needs doctrine, we have gone full circle back to the detested generalized writs of assistance that birthed the American “child of Independence” all those years ago.⁴²42. Cf. supra notes 7–11 and accompanying text.Show More In fact, many have argued as such.⁴³43. See, e.g., Scott E. Sundby, Protecting the Citizen “Whilst He Is Quiet”: Suspicionless Searches, “Special Needs” and General Warrants, 74 Miss. L.J. 501, 511 (2004) (arguing that the special needs doctrine has systematically undermined the warrant requirement of the Fourth Amendment); Phyllis T. Bookspan, Reworking the Warrant Requirement: Resuscitating the Fourth Amendment, 44 Vand. L. Rev 473, 509–10 (1991) (noting that in special needs analysis the courts depart from the traditional procedural analysis and reasonableness requirements of the Fourth Amendment).Show More However, a key distinction in special needs cases is that they involve an exercise of government authority that is separate and distinct from mere law enforcement, often justified for reasons like health or efficient bureaucracy.⁴⁴44. See William E. Ringel, Searches and Seizures, Arrests and Confession 2d § 10:13, Westlaw (database updated Mar. 2023) (examining how courts distinguish health and safety concerns from law enforcement); see, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 830–31 (2002) (using government interest in health and safety to justify an application of the special needs doctrine); O’Connor v. Ortega, 480 U.S. 709, 720 (1987) (using government interest in “efficient operation of the workplace” to justify an application of the special needs doctrine).Show More This crucial difference can be illuminated in the special needs cases that deal with government roadblocks and checkpoints. In Michigan Department of State Police v. Sitz, the Court applied the special needs doctrine to allow drunk driving checkpoints, reasoning that the public safety interest in preventing drunk driving was high and the interest against being briefly stopped was minimal.⁴⁵45. 496 U.S. 444, 451–52 (1990).Show More However, ten years later, in City of Indianapolis v. Edmond, the Court held that warrantless and suspicionless checkpoints designed to locate narcotics were indistinguishable from general crime fighting purposes and, therefore, did not qualify for the special needs exception.⁴⁶46. 531 U.S. 32, 41–42 (2000).Show More However, checkpoints can be implemented, and police can inadvertently stumble upon criminal evidence without a warrant while working them, so long as gathering it is not their “primary” purpose.⁴⁷47. Illinois v. Lidster, 540 U.S. 419, 423 (2004). Show More Further, along with requiring a primary purpose that does not involve general crime fighting, courts will typically conduct some sort of reasonableness balancing test, which weighs the government’s interest in carrying out the program against the privacy interests intruded upon.⁴⁸48. See, e.g., id. at 426–27 (stating that you first look to non-criminal purpose per Edmond, 531 U.S. at 41–42, and then engage in a reasonableness test); Lynch v. City of New York, 589 F.3d 94, 100 (2d Cir. 2009) (noting this balancing test).Show More Therefore, the special needs doctrine is arguably not as expansive as the old generalized writs were.

II. The Decision in Verdun

Before engaging with Verdun, it is important to consider the prior Sixth Circuit jurisprudence on the issues resulting from two different decisions in Taylor v. City of Saginaw: Taylor I in 2019 and Taylor II in 2021.⁴⁹49. Taylor I, 922 F.3d 328 (6th Cir. 2019); Taylor II, 11 F.4th 483 (6th Cir. 2021).Show More

In Taylor I, the Sixth Circuit addressed the question of whether tire chalking was a search under the Fourth Amendment. The court noted that after Jones, there are two ways to see if something is a search: the Katz reasonable expectation of privacy test, or the Jones property-based approach.⁵⁰50. Taylor I, 922 F.3d at 332.Show More Following Jones, the court noted that using chalk to mark someone’s car was a trespass under the common law.⁵¹51. Id. at 332–33.Show More Further, it was a trespass to obtain information on whether the vehicle would later move, satisfying the second part of the Jones test, which requires a government intrusion with the goal of obtaining information.⁵²52. Id. at 333. Taylor I also rejected two exceptions to the warrant requirement that were argued by the city: the automobile exception and the community caretaking exception. For the automobile exception, the court said that the reduced expectation of privacy for cars did not mean zero expectation of privacy. Id. at 334. The court also rejected the community caretaking exception because tire chalking was not being done to mitigate a public hazard but to raise revenue. Id. at 335.Show More

Two years later, in Taylor II, Saginaw was back in front of a different panel of Sixth Circuit judges. This time Saginaw admitted that tire chalking was a search, but one that was justified under the special needs doctrine.⁵³53. Taylor II, 11 F.4th at 486, 488.Show More The city argued that tire chalking was essentially an administrative scheme—like inspecting a home for compliance with a housing code—that allowed warrantless searches under the special needs doctrine.⁵⁴54. Id. at 488. Show More The panel of three Sixth Circuit judges disagreed and took a narrow view of what counted as an exception to the warrant requirement under the special needs doctrine.⁵⁵55. Id. at 487–89.Show More For one, tire chalking was not necessary for parking enforcement—there were other ways to do it.⁵⁶56. See id. at 489 (“[T]ire chalking is not necessary to meet the ordinary needs of law enforcement, let alone the extraordinary.”) (citing City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000)). Show More Second, the court found unconvincing the city’s arguments that tire chalking was being done for a non-law enforcement purpose like “the public welfare.”⁵⁷57. Taylor II, 11 F.4th at 488.Show More For the court, this was a general crime control scheme.⁵⁸58. See infra note 115 and accompanying text.Show More

In May 2019, a month after the Sixth Circuit held suspicionless tire chalking a search,⁵⁹59. Taylor I, 922 F.3d 328, 332 (6th Cir. 2019).Show More a class action lawsuit was filed against San Diego for their use of tire chalking in parking enforcement.⁶⁰60. See Ashley Mackin-Solomon, San Diego Police Using New System for Detecting Parking Violations After City Is Sued over Chalking Tires, La Jolla Light (Nov. 20, 2020), https://www.lajollalight.com/news/story/2020-11-20/san-diego-police-using-new-system-for-detecting-parking-violations-after-city-is-sued-over-chalking-tires [https://perma.cc/4UG7-BFSV] (noting the class action lawsuit, which was filed in May 2019).Show More Prior to the lawsuit, San Diego had been doing tire chalking to enforce time limits for their parking code since the 1970s.⁶¹61. Verdun v. City of San Diego, 51 F.4th 1033, 1037 (9th Cir. 2022).Show More In the contentious two-to-one Verdun decision, the Ninth Circuit parted ways with the Sixth Circuit and said the practice was constitutional.⁶²62. Id. at 1048.Show More Judge Daniel Bress wrote the majority decision to which Judge Patrick Bumatay dissented.

A. The Majority Opinion

The first thing to note is that for Judge Bress, there is salient skepticism over whether tire chalking is a search. Judge Bress states that before Jones, no one even seriously considered that tire chalking constituted a search.⁶³63. Id. at 1037.Show More Nonetheless, Judge Bress assumed tire chalking is a search for the purposes of his analysis.⁶⁴64. Id. Show More This initial skepticism by Judge Bress over whether tire chalking is a search is important to consider as it likely influences his understanding, later, of what is a reasonable or unreasonable intrusion in the context of a government scheme under the special needs doctrine.⁶⁵65. See infra notes 72–73 and accompanying text.Show More

Having assumed a search, Judge Bress moved on to the special needs doctrine, which involves a two-part analysis in the Ninth Circuit drawing on precedent regarding checkpoints.⁶⁶66. In a nutshell, checkpoints—or roadblocks—involve police setting up a barrier and briefly stopping and inspecting drivers as they come through. See Paul Bergman, When Can Police Set Up Roadblocks, NOLO, https://www.nolo.com/legal-encyclopedia/police-set-up-roadblocks.html [https://perma.cc/4C4Q-F5CH]. Of course, the police lack probable cause to question or briefly hold many of these drivers, but the Supreme Court has held that checkpoints are valid under the Fourth Amendment so long as they conform to certain procedures. Id.; see also Kathryn L. Howard, Stop in the Name of that Checkpoint: Sacrificing Our Fourth Amendment Right in Order to Prevent Criminal Activity, 68 Mo. L. Rev. 485, 491–93 (2003) (providing a brief history of checkpoints under the Fourth Amendment).Show More First, the court must determine if the search is “per se invalid” because its “primary purpose” is “to advance the general interest in crime control.”⁶⁷67. Verdun, 51 F.4th at 1041 (quoting Demarest v. City of Vallejo, 44 F.4th 1209, 1220 (9th Cir. 2022)).Show More Second, if the search is not per se invalid, the court must conduct a balancing test to determine if the search is reasonable.⁶⁸68. Id. at 1041–42. The idea behind this second reasonableness test, Judge Bress notes, is that the special needs doctrine merely exempts the “warrant” requirement of the Fourth Amendment, but the “reasonableness” requirement of that Amendment’s textual command stays. See id. at 1040 (“[W]hile administrative searches are an exception to the Fourth Amendment’s warrant requirement, they are not an exception to the Fourth Amendment’s standard of reasonableness.” (quoting United States v. Bulacan, 156 F.3d 963, 967 (9th Cir. 1998)).Show More Note that Judge Bress’s analysis draws on the Ninth Circuit’s precedents for checkpoints, which both makes a somewhat awkward fit and also represents a broader understanding of the special needs doctrine as one that allows for another exception even if there is no specific case law on it.⁶⁹69. This would contrast with a doctrine such as Bivens, which requires identifying factually similar precedent to justify its application. See Joanna C. Schwartz, Alexander Reinert & James E. Pfander, Going Rogue: The Supreme Court’s Newfound Hostility to Policy-Based Bivens Claims, 96 Notre Dame L. Rev. 1835, 1836 (2021) (discussing said Bivens’ “sufficiently similar” framework).Show More This latter point is especially problematic for Judge Bumatay in his dissent.⁷⁰70. See Verdun, 51 F.4th at 1056 (Bumatay, J., dissenting) (taking a highly limited and narrow view of special needs case law).Show More

Using this test, Judge Bress first notes that the primary purpose of tire chalking is not for general crime control. Instead, its primary purpose is to “assist the City in its overall management of vehicular traffic . . . .”⁷¹71. Id. at 1042 (majority opinion).Show More Tire chalking is about freeing up parking spots, which enhances public safety, promotes commerce, and makes room for emergency service vehicles.⁷²72. Id. at 1035–36.Show More Yes, tire chalking can lead to a parking citation, but that is not its primary purpose.⁷³73. Id. at 1042.Show More Next, tire chalking also satisfies the reasonableness prong.⁷⁴74. Id. at 1043.Show More The “search” itself is small and insignificant⁷⁵75. Id. at 1044–45.Show More (this understanding surely being informed by Judge Bress’s skepticism of whether it even is a search), especially since cars already have a reduced expectation of privacy.⁷⁶76. Id. at 1045.Show More Finally, the process in which the city engages in tire chalking is sufficiently tailored to its stated goals and is thus straightforwardly reasonable.⁷⁷77. Id. at 1044.Show More

Judge Bress then moves on to address his detractors. First, concerning the Sixth Circuit’s opinion, Judge Bress argues that the court erroneously viewed the special needs doctrine too narrowly insofar as they said that tire chalking needed to be necessary to enforce parking. For Judge Bress, something can qualify under the special needs exception even if it is not “necessary.”⁷⁸78. See id. at 1046 (arguing that it is not relevant for special needs cases to see if another alternative scheme that does not involve Fourth Amendment searches can be viable).Show More Next, Judge Bress criticizes Judge Bumatay’s dissent as being too originalist and ignoring precedent in favor of a historical analysis of the Fourth Amendment.⁷⁹79. See id. (“Merely citing the general concerns that animated the Fourth Amendment and some basic legal history, as the dissent does, hardly proves the more specific proposition that tire chalking violates the Constitution.”). Show More Judge Bress argues that rather than faithfully applying Supreme Court and Ninth Circuit precedent on the special needs doctrine, Judge Bumatay’s reasoning starts with the foundational principle that the special needs doctrine violates the original meaning of the Fourth Amendment and goes from there.⁸⁰80. See id. at 1047.Show More

B. The Dissent

To begin, Judge Bumatay lays the groundwork of his dissent as one entirely guided by originalist thought. He starts with a citation to the 2005 Supreme Court case of District of Columbia v. Heller to argue that “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them.”⁸¹81. Id. at 1049 (Bumatay, J., dissenting) (quoting District of Columbia v. Heller, 554 U.S. 570, 634–35 (2008)).Show More Judge Bumatay’s dissent is highly influenced by originalism: it surveys the historical meaning of the Fourth Amendment,⁸²82. See id.Show More early state and federal constitutional debates,⁸³83. Id. at 1053, 1053–54.Show More and eighteenth-century congressional practice,⁸⁴84. Id. at 1054–55.Show More and quotes from Founding Fathers like Patrick Henry.⁸⁵85. Id. at 1054.Show More Using this historical framework as evidence in tandem with Jones, Judge Bumatay stresses that the Fourth Amendment is directly tied to the common law trespass test.⁸⁶86. Id. at 1049.Show More In light of Jones, Judge Bumatay would not just assume that tire chalking is a search; he would hold that it is unequivocally.⁸⁷87. Id. at 1051.Show More

Of course, given that Judge Bress operated under the assumption in his majority that there was a search, the real meat of the dissent comes with Judge Bumatay’s argument against the application of the special needs doctrine as an appropriate exception to the warrant requirement for tire chalking. What is especially interesting about the discussion between Judges Bumatay and Bress on the special needs doctrine is that their ultimate conclusions can be read as a product of their reasoning methods. Judge Bress starts with Supreme Court and circuit precedent as his first principle, which he then supplements with originalism;⁸⁸88. Judge Bress in Verdun does not explicitly say he is doing this, but it can be inferred by his opinion against a larger context. In the immediate confines of Verdun, Judge Bress engages with originalism, but places less value on it in comparison with Supreme Court precedent. Cf. id. at 1046–47 (majority opinion). This is consistent with the responses he gave on his judicial nominee questionnaire, which showed support for originalist analysis so long as it conforms to Supreme Court precedent. See S. Comm. on the Judiciary, 116th Cong., Nomination of Daniel Bress to the U.S. Court of Appeals for the Ninth Circuit, Questions for the Record (2019) https://www.judiciary.senate.gov/imo/media/doc/Bress%20Responses%20to%20QFRs.pdf [https://perma.cc/66QG-27S5] (“The Supreme Court has considered the original public meaning of constitutional provisions when construing them. . . . But ultimately, lower court judges must follow the precedents of the Supreme Court.”). Judge Bress engages with the originalist arguments of Judge Bumatay but finds it both incomplete and incorrect. Incomplete, because his originalist analysis “merely cit[es] the general concerns that animated the Fourth Amendment and some basic legal history. . . .” Verdun, 51 F.4th at 1046. And, relatedly, incorrect, because the dissent’s contention that tire chalking exhibits the same characteristic as general warrants and writs and fails to appreciate that the general writs involved search and seizure of “whatever and whomever they pleased while investigating crimes or affronts to the Crown.” Id. While clearly accepting the dissent’s originalist style of argumentation as legitimate, Judge Bress takes issue with it because it “does not even purport to work within the Supreme Court’s established doctrinal framework,” id. at 1047, and is, therefore, “not one we are permitted to follow,” id. at 1048.Show More alternatively, Judge Bumatay starts with originalism as his first principle, which he then supplements with Supreme Court and circuit precedent.⁸⁹89. See Verdun, 51 F.4th at 1049 (Bumatay, J., dissenting) (setting out his originalist framework as the root of his interpretation).Show More Judge Bress’s method leads to an expansive special needs doctrine, and Judge Bumatay’s method leads to a narrow one.

So, Judge Bumatay begins his opinion by framing the original meaning of the Fourth Amendment as being hostile to “suspicionless general warrants.”⁹⁰90. Id. at 1051; see id. at 1056 (“Because dragnets operate without a warrant or individualized suspicion . . . they have been justified in ‘only limited’ contexts involving extraordinary and immediate governmental interests . . . . [G]iven th[is] historical aversion . . . we must scrupulously guard against the expansion of government concerns that warrant this rare exception.”); see also supra Part I.Show More Therefore, the special needs exceptions set out by the Supreme Court in its precedents are incredibly narrow exceptions that must “involv[e] extraordinary and immediate governmental interests.”⁹¹91. Verdun, 51 F.4th at 1056.Show More Interestingly—and this is where Judge Bress explicitly accuses Judge Bumatay of misreading Supreme Court precedent⁹²92. See id. at 1047 (“The dissent not only fails to explain why the original meaning of the Fourth Amendment requires its result, it is essentially in opposition to longstanding Supreme Court precedent . . . .”). Show More—the dissent says this primary-purpose-of-crime-control framework set out in Edmond actually stands for the proposition that general interest in crime control is too minor an interest for the special needs doctrine.⁹³93. See id. at 1057 (Bumatay, J., dissenting) (setting out this interpretation). Show More So, whereas Judge Bress sees this general crime control aspect of Edmond as standing to mean that the special needs doctrine works so long as it is unrelated to criminal evidence-gathering and is reasonable, Judge Bumatay says it stands for the principle that even general crime control is not a high enough interest to satisfy the special needs doctrine. Instead, to satisfy the doctrine, the government needs to propose a purpose that is “grave and urgent,” like preventing a terrorist hijacking.⁹⁴94. Id. (quoting United States v. Davis, 482 F.2d 893, 910 (9th Cir. 1973)); see also City of Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (“[T]here are circumstances that may justify a law enforcement checkpoint where the primary purpose would . . . relate to ordinary crime control . . . . [T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock to thwart an imminent terrorist attack . . . .”).Show More Having laid all this out, Judge Bumatay argues that the city is engaging in warrantless and suspicionless general searches⁹⁵95. Verdun, 51 F.4th at 1055 (Bumatay, J., dissenting).Show More for something too mundane like traffic control to justify granting the tremendous power of tire chalking.⁹⁶96. See id. at 1057–58 (drawing a contrast between the concerns motivating chalking and less “routine” challenges such as drunk drivers and hijacking of airplanes).Show More Or, as Judge Bumatay puts it: “[T]he City’s interests in perpetuating its parking enforcement regime don’t chalk up.”⁹⁷97. Id. at 1058.Show More

III. Implications and Core Disagreements

While ostensibly a case just about tire chalk, Verdun has much broader implications. There are three critical concepts illuminated by the opinion that the reader may want to keep an eye on in the future. First, how Verdun informs our understanding of what qualifies as a search under Fourth Amendment. Second, if courts should view the special needs doctrine—at least functionally—as a flexible grant of power or as a narrow exception to a general rule. Third, the debate over tire chalking lays bare an intra-originalist fight between the Judge Bumatay and Justice Scalia originalists versus the Judge Bress and Justice Alito originalists.

A. Is Tire Chalking a Search?

The formulation in Jones and Jardines vastly expanded the potential areas of privacy protections for searches and seizures. With tire chalking, we are confronted with the question of how far this Jones framework goes. A key concept picked up by Judge Bumatay in his Verdun dissent is the idea that Jones and Jardines merged private and public law.⁹⁸98. Cf. id. at 1049 (framing intrusions on private property as common law trespass).Show More As Professors William Baude and James Stern note, Katz concerned abstract notions of what our society views as private and not private.⁹⁹99. See William Baude & James Y. Stern, The Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev. 1821, 1831 (2016) (describing Katz as an “abstract exploration of sensibilities about the privacy of places or information”).Show More What Jones and Jardines have now done, though, is bring us closer to a simplified version of what a search is by examining whether “a government actor [has] done something that would be unlawful for a similarly situated nongovernment actor to do . . . .”¹⁰⁰100. Id.; see also Carpenter v. United States, 138 S. Ct. 2206, 2267–68 (2018) (Gorsuch, J., dissenting) (advocating increased focus on a better, more understandable conception of property law for the Fourth Amendment).Show More However, while Justice Scalia’s property conception of the Fourth Amendment brought Fourth Amendment law closer to private law, it is highly doubtful that he closed the gap completely. For instance, a property and privacy conception of Fourth Amendment law completely shuts off the justifications behind the open fields doctrine,¹⁰¹101. See Baude & Stern, supra note 96, at 1886 (“At a minimum, the [Jones and Jardine] model eliminates the modern rationale for the open fields doctrine.”). Show More which has its reasoning rooted in the Katz formulation that one has no reasonable expectation of privacy in the vast fields of property that they own outside their actual house.¹⁰²102. See Oliver v. United States, 466 U.S. 170, 179 (1984) (“[O]pen fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter . . . .”).Show More The open fields doctrine technically should not work under the Jones test. And yet, Justice Scalia in Jardines explicitly voices support for the open fields doctrine, stating that privacy protection for open fields is not “enumerated in the [Fourth] Amendment’s text.”¹⁰³103. Florida v. Jardines, 569 U.S. 1, 6 (2013).Show More

So, a critical debate relevant to tire chalking is how close Jones brings private and public law together. Judge Bumatay’s dissent considers it more 1:1, arguing that since a private party cannot chalk your tires, neither can a public official without a warrant. For Judge Bumatay, it is an “easy case.”¹⁰⁴104. Verdun v. City of San Diego, 51 F.4th 1033, 1051 (9th Cir. 2022) (Bumatay, J., dissenting) (quoting Jardines, 596 U.S. at 11).Show More Judge Bress’s majority opinion is more skeptical of the 1:1 distinction, and while reluctantly considering tire chalking a search, he clearly still has his doubts.¹⁰⁵105. Id. at 1037 (majority opinion).Show More

The above is about the reach of Jones, but if one considers Jones narrowly with respect to tire chalking, the connection is too strong, and it makes it hard to argue that tire chalking is not a search under Jones—this is perhaps why Judge Bress did not fight this point and decided the case on the more solid grounds of the special needs doctrine. Jones, again, said a physical common law trespass with the intent to gain information is a search.¹⁰⁶106. See supra note 27 and accompanying text.Show More Just like the light touch of a GPS tracker was a search, so too should be tire chalking. The counterargument would be that surely GPS information is different and more expansive, but it is important to remember that Justice Scalia’s opinion in Jones said the question of privacy and the GPS data did not matter; rather, it all came down to the physical touch to gain information.¹⁰⁷107. Id.Show More Some have also suggested that tire chalking may not be a search to gain information when it is done because the information is gleaned once the parking enforcer returns.¹⁰⁸108. See Orin S. Kerr, Chalking Tires and the Fourth Amendment, Volokh Conspiracy (Apr. 23, 2019), https://reason.com/volokh/2019/04/23/chalking-tires-and-the-fourth-amendment [https://perma.cc/B8KT-CS6J] (“Is it really a search of the car at Time A to see at Time B if the chalk moved between Time A and Time B?”).Show More This is a relatively weak argument, though, insofar as one could say that very same logic applies to the GPS tracker in Jones. The information was not gained at the time of the placement but after.

It is the obvious triviality of tire chalking that makes it so significant. If tire chalking is a search, that could mean that other government behavior involving touch that was previously seen as unobjectionable could be considered a search. Consider previously unchecked police activity that does not require warrants, such as canine drug sniffs.¹⁰⁹109. See, e.g., United States v. Place, 462 U.S. 696, 707 (1983) (holding that a canine “sniff” is not a search under the Fourth Amendment).Show More What if the dog’s nose lightly taps the bag it is smelling? Or, what if an officer places his hand on the trunk of a car and gently pushes down to make sure it is locked when he pulls a driver over?¹¹⁰110. Cf. Why Do Policemen Touch Your Tail Light When They Pull You Over?, The Law Dictionary, https://thelawdictionary.org/article/why-do-policemen-touch-a-tail-light-when-they-pull-you-over [https://perma.cc/3FZA-JYKE].Show More Both of these things, by definition, involve a touch (dog nose on bag and officer’s hand on car) to gain information (drugs in the bag or status of the trunk), which is all that is needed for a search under Jones.¹¹¹111. See supra note 27 and accompanying text. Show More

B. Special Needs: Narrow Exception or Broad Tool?

In Verdun, we see two approaches to the special needs doctrine and tire chalking. The Judge Bress majority views the application of special needs broadly and looks to see if the programmatic intent is both unrelated to general crime-fighting efforts and is reasonable.¹¹²112. See supra notes 64–65 and accompanying text. Show More On the other end of the spectrum, the Judge Bumatay dissent sees the special needs doctrine as incredibly narrow and containing only a few notable exceptions for particularly crucial government purposes.¹¹³113. See supra notes 87–90 and accompanying text.Show More For Judge Bress, then, there is a sense that the special needs doctrine can still be used for mundane, necessary purposes, whereas Judge Bumatay suggests mundane purposes can never satisfy.¹¹⁴114. See supra notes 91–94 and accompanying text.Show More

With respect to Judge Bumatay’s dissent, Judge Bress accuses Judge Bumatay of willfully misreading special needs case law.¹¹⁵115. See supra note 89 and accompanying text.Show More And Judge Bress does make a solid argument to that effect in light of Judge Bumatay’s reading of Edmond. Edmond has stood for the proposition in the Ninth Circuit that the special needs doctrine cannot be used for general crime control.¹¹⁶116. See, e.g., Demarest v. City of Vallejo, 44 F.4th 1209, 1218 (9th Cir. 2022) (making this argument).Show More In Edmond, the city tried to justify suspicionless checkpoints to locate narcotics,¹¹⁷117. More specifically, the city set up a number of highway checkpoints on roads within Indianapolis to interdict illegal drugs. City of Indianapolis v. Edmond, 531 U.S. 32, 34–35 (2000). At each checkpoint, an officer would approach the vehicle, tell the person they were being stopped at a drug checkpoint, and ask for licenses and registration all while looking for signs of impairment and looking through the window in an open-view examination. Id. at 35. While this was happening, a “narcotics-detection dog walks around the outside of each stopped vehicle.” Id.Show More but the Supreme Court said that the special needs doctrine did not include general crime fighting purposes.¹¹⁸118. Id. at 41–42.Show More In dicta, however, the Supreme Court left open the possibility that the doctrine may encompass certain terrorism-related purposes.¹¹⁹119. See id. at 44 (“Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, related to ordinary crime control. . . . [T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack . . . .”).Show More Judge Bumatay interpreted this passage to mean that special needs is only for the most pressing needs, like fighting terrorism.¹²⁰120. Verdun v. City of San Diego, 51 F.4th 1033, 1057 (9th Cir. 2022) (Bumatay, J., dissenting).Show More This seems like quite a stretch or, at least, an interpretation outside of the way Edmond is typically interpreted.¹²¹121. See, e.g., Illinois v. Lidster, 540 U.S. 419, 426–27 (2004) (framing Edmond as standing for the idea that the special needs doctrine requires a primary purpose outside of crime control before then engaging in a reasonableness balancing test); United States v. Fraire, 575 F.3d 929, 932 (9th Cir. 2009) (“If the checkpoint is not per se invalid as a crime control device, then the court must ‘judge [the checkpoint’s] reasonableness . . . .’” (quoting id. at 426)); United States v. Henson, 351 F. App’x 818, 820 (4th Cir. 2009) (stating that you first look to whether the primary purpose is a valid, non-criminal one per Edmond before then conducting a balancing test); United States v. William, 603 F.3d 66, 68–69 (1st Cir. 2010) (same).Show More Interestingly, Judge Bumatay did not fight Judge Bress on one of the stronger anti-tire chalking points: whether or not the primary purpose of the tire chalking was to issue fines—i.e., general crime control. This was an important finding the Sixth Circuit hung its hat on when invalidating the tire chalking scheme in Saginaw, Michigan.¹²²122. See Taylor II, 11 F.4th 483, 489 (6th Cir. 2021) (“[T]ire chalking is not necessary to meet the ordinary needs of law enforcement, let alone the extraordinary.”) (citing Edmond, 531 U.S. at 37).Show More

Another key question and tension brought to the surface in this case law is the idea behind special needs and programmatic intent surrounding why a city is doing tire chalking. In decisions surrounding the Fourth Amendment, the Supreme Court has been clear that the Fourth Amendment is concerned with objective standards and not with why an officer is doing something.¹²³123. See, e.g., Horton v. California, 496 U.S. 128, 138 (1990) (“[E]venhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.”); Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (“The Utah Supreme Court also considered the officers’ subjective motivations relevant. . . . Our cases have repeatedly rejected this approach.”).Show More In Whren v. United States, a unanimous Supreme Court said that “the Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.”¹²⁴124. 517 U.S. 806, 814 (1996).Show More The Court further added that the protections of the Fourth Amendment cannot “be made to turn upon such trivialities” like the subjective intent of the action.¹²⁵125. Id. at 815.Show More And yet, when it comes to the programmatic intent of a government action like tire chalking, which is arguably a lot harder and more complicated to discern than an individual officer’s intent, the constitutionality of the practice may live or die based on the subjective reasoning of why it is being done. This is not even to mention the genuine possibility that some cities’ primary purposes for tire chalking will be issuing citations and others will be for traffic control.

The issue of tire chalking has implications for the future of the special needs doctrine. It can narrow the doctrine to what is only necessary or extreme (Judge Bumatay dissent); alternatively, it can leave room for its expansion (Judge Bress majority). First step is tire chalking; next step is car GPS trackers for everyone.¹²⁶126. This, of course, would be unlawful per United States v. Jones, 565 U.S. 400 (2012), so we know that—at least now—the line is at least somewhere before GPS trackers. Show More Or maybe not. It depends on where and if you draw the line somewhere.

C. Originalism and Its Limits—or Lack Thereof

Jones, Jardines, and Verdun are also interesting for the originalist infighting they create: the perhaps softer originalists, Judge Bress and Justice Alito, against the more hardcore originalists, Judge Bumatay and Justice Scalia. In Jones and Jardines, Justice Scalia’s property conception of the Fourth Amendment is stiff and binary.¹²⁷127. Cf. Florida v. Jardines, 569 U.S. 1, 11 (2013) (“One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy.”).Show More For Justice Scalia, the Fourth Amendment was fastened firmly to property protections in its original conception.¹²⁸128. See United States v. Jones, 565 U.S. 400, 405 (2012) (“The text of the Fourth Amendment reflects its close connection to property . . . .”); see also Jardines, 569 U.S. at 5 (describing baseline protections for physical intrusions).Show More Justice Alito disagrees, viewing the Fourth Amendment as being about broader privacy protections that encompass new technology.¹²⁹129. See Jones, 565 U.S. at 421–22 (Alito, J., concurring) (framing Katz as doing away with the old property-rights baseline and onto a broader, more modern conception of privacy); see also Jardines, 569 U.S. at 17 (Alito, J., dissenting) (framing his argument about reasonable expectation of privacy).Show More For Justice Alito, it is not correct to simply have the property conception coexist with the Katz conception because, under the Fourth Amendment, a technical trespass is neither necessary nor sufficient.¹³⁰130. See Jones, 565 U.S. at 423 (Alito, J., concurring). Show More What is interesting about this is that both Justices are self-professed originalists¹³¹131. See generally Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989) (Justice Scalia defending his viewpoint on originalism); Neil S. Siegel, The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent, 126 Yale L.J.F. 164, 166 (2016) (noting that Justice Alito is a self-described originalist).Show More yet come out with very different views on this question.

Arguably, one could square the distinction between an originalism which takes past principles and adopts them to the present (Justice Alito) and an originalism which takes past principles and actively resists adopting them to the present (Justice Scalia). Justice Alito’s framework may initially appear to come close to the ostensible counter to originalism: living constitutionalism.¹³²132. See generally Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1244 (2019) (“Originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances.”). Solum goes on to define several different and competing versions of living constitutionalism in the same piece. See id. at 1271–76.Show More An attempt to square Justice Alito’s vision of originalism as being separate from living constitutionalism, of course, would require several pages of analysis, but, arguably, it can be squared. Take someone closer to the ideology of living constitutionalism like Justice John Paul Stevens,¹³³133. See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 877 (2010) (Stevens, J., dissenting) (“The judge who would outsource the interpretation of ‘liberty’ to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality.”); see also id. at 803 (Alito, J., concurring) (“Justice Stevens’ response to this concurrence makes the usual rejoinder of ‘living Constitution’ advocates . . . .”).Show More who sees constitutional interpretation as being based on the premise that the definition of certain concrete terms can be defined by future generations.¹³⁴134. See John Paul Stevens, The Third Branch of Liberty, 41 U. Mia. L. Rev. 277, 291 (1986) (“The task of giving concrete meaning to the term ‘liberty’ . . . was [a part] of the work assigned to future generations of judges.”) (emphasis added).Show More Justice Alito, meanwhile, holds the definition of liberty at the Founding stagnant, but is more willing to separate it purely from its physical context.¹³⁵135. Compare Jones, 565 U.S. at 420 (Alito, J., concurring) (“The Court argues—and I agree—that ‘we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted . . . .”’ But it is almost impossible to think of late-18th-century situations that are analogous to which took place in this case.” (internal citation omitted)), with id. at 406 n.3 (majority opinion) (arguing by analogy that tracking of car movements was originally considered by the Founders because “it posits a situation that is not far afield—a constable’s concealing himself in the target’s coach in order to track its movements”). The back and forth of the “small constable” between the two Justices shows Justice Scalia straining to preserve the Amendment historically and Justice Alito willing to bend when the historical analogizing becomes too ridiculous. See id. at 420 n.3 (Alito, J., concurring) (“The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.”). Show More As a rough metaphor, one could think of constitutional meaning as a historical rock: Justice Stevens says the rock can be replaced by future generations, Justice Alito says the original rock is to be smoothed by future generations, and Justice Scalia says the rock is to be preserved by future generations. Of course, Justice Alito’s view is much more similar to Justice Stevens’s view than Justice Scalia’s is. Thus, it is no surprise that Justice Alito was able to get Justices Ruth Bader Ginsburg, Steven Breyer, and Elena Kagan—but not Sonia Sotomayor—to sign onto his opinion in Jones.¹³⁶136. Id. at 418.Show More

A similar split is happening between Judges Bumatay and Bress in Verdun. Judge Bress has a clear skepticism of Justice Scalia’s understanding in Jones. This is made apparent in Judge Bress’s inadvertent—or intentional—tipping of his hand, where he describes Jones as a “reorientation” of the Fourth Amendment.¹³⁷137. Verdun v. City of San Diego, 51 F.4th 1033, 1036–37 (9th Cir. 2022).Show More Of course, true believers like Judge Bumatay or Justice Scalia would not describe Jones as a “reorientation” of the Fourth Amendment since the whole premise of Jones is that the property conception of the Fourth Amendment was present since the beginning.¹³⁸138. See Jones, 565 U.S. at 407–08 (arguing that Katz had never repudiated the old property rights baseline of the Fourth Amendment). Show More Judge Bress posits that surely not every touch to gain information is a search.¹³⁹139. See Verdun, 51 F.4th at 1037.Show More Judge Bumatay, however, adopts a much stricter approach and stresses the rigid property conception of what constitutes a search laid out by Justice Scalia in Jones.¹⁴⁰140. See id. at 1049–50 (Bumatay, J., dissenting).Show More As originalism becomes more popular and cements itself as the default framework of constitutional analysis for some judges, tire chalking and Jones present a potential intra-originalist fight.

Conclusion

The October 2022 Verdun decision was about much more than tire chalking. In parting ways with the Sixth Circuit’s decision in Taylor, the Ninth Circuit created a problem ripe for Supreme Court review that carries with it incredibly far-reaching consequences. Is the Jones conception of what constitutes a search unlimited, or is there a line? How potent is the special needs doctrine and does it reach tire chalking? Is the primary purpose of tire chalking for general criminal investigative purposes, and should we even be considering subjective intent in handling Fourth Amendment questions? How should an originalist approach the question of tire chalking and the special needs doctrine?

There is something quintessentially American about a constitutional standoff concerning the use of tire chalk by parking enforcers. Throughout our history, American society has developed a natural distrust of government.¹⁴¹141. See Michael Price, Remember Why We Have the Fourth Amendment, Brennan Ctr. (Nov. 25, 2015), https://www.brennancenter.org/our-work/analysis-opinion/remember-why-we-have-fourth-amendment [https://perma.cc/J3N8-4U53] (“[A]s Americans, we are . . . committed to a few basic values that we do not fail to mention time-and-again from atop our shining city on a hill—liberty being chief among them.”).Show More When the British gave general writs of assistance to revenue collectors, it was this instinctive distrust that enraged James Otis. “[These writs are] the worst instrument of arbitrary power . . . that was ever found in an English law book,” he said, because “the liberty of every man [is] in the hands of every petty officer.”¹⁴²142. Boyd v. United States, 116 U.S. 616, 625 (1886).Show More Otis is inextricably linked with the Fourth Amendment; his 1761 words are cited again and again by the Supreme Court.¹⁴³143. See, e.g., Stanford v. Texas, 379 U.S. 476, 481 (1965); Terry v. Ohio, 392 U.S. 1, 37 (1968) (Douglas, J., dissenting); Payton v. New York, 445 U.S. 573, 583 n.21 (1980); Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018).Show More What the Supreme Court leaves out, though, is that Otis was also famously prone to “fits of insanity” and suffered from an unstable psyche.¹⁴⁴144. See James Otis: American Politician, Encyc. Britannica, https://www.britannica.com/biography/James-Otis [https://perma.cc/T2PG-3MNN] (describing Otis as “prone to fits of insanity”); James R. Ferguson, Reason in Madness: The Political Thought of James Otis, 36 Wm. & Mary Q. 194, 194–95 (1979) (“As early as 1765 [James Otis’] mental instability was clearly evident in his confused and erratic behavior . . . .”); Erick Trickey, Why the Colonies’ Most Galvanizing Patriot Never Became a Founding Father, Smithsonian Mag. (May 5, 2017), https://www.smithsonianmag.com/history/transformative-patriot-who-didnt-become-founding-father-180963166 [https://perma.cc/N7TT-ZSQ7] (discussing Otis’s fragile psyche, which was further exasperated after he was wounded in a fight). Show More In 1770, John Adams wrote about Otis again, this time noting that Otis had been described by a colleague that afternoon as “raving Mad—raving vs. Father, Wife, Brother, Sister, Friend &c. [sic]”¹⁴⁵145. John Adams, Diary Entry of Feb. 26, 1770, in Diary and Autobiography of John Adams, Volume I, Diary, 1755-1770, 349–50 (L.H. Butterfield ed., 1961).Show More This added context may put Otis’s words in perspective and perhaps be used to frame his complaints as somewhat hyperbolic. On the other hand, it is worth considering how useful a natural skepticism of government power is in protecting the promises that underly the Fourth Amendment. In that way, maybe the duality of Otis is what makes him the perfect representative for that Amendment. What would he think of tire chalking?

Introduction

Workers classified as independent contractors do not enjoy the legal benefits of the employment relationship, including the protection of wage and hour laws, an entitlement to workers’ compensation or unemployment benefits, or access to the National Labor Relations Act’s (“NLRA”) framework for collective bargaining.³3. The NLRA explicitly excludes “independent contractors,” 29 U.S.C. § 152(3), while federal wage-and-hour protections under the Fair Labor Standards Act (FLSA) are limited to “employees.” See 29 U.S.C. § 206(a) (setting a federal minimum wage for employees); id. § 207(a) (setting maximum hours for employees). Unemployment and workers’ compensation benefits are typically administered through state law, and while states vary in their approach to classifying workers, they all limit benefits to workers classified as employees. See Independent Contractor Classification, Practical Law Practice Note 4-503-3970, State and Local Tests; see also generally Brishen Rogers, Employment Rights in the Platform Economy: Getting Back to Basics, 10 Harv. L. & Pol’y Rev. 479, 484–96 (2016) (discussing the employee-independent contractor distinction’s ramifications for Uber and Lyft drivers); Catherine L. Fisk, Sustainable Alt-Labor, 95 Chi.-Kent L. Rev. 7, 15–16 (2020) (noting how misclassification of workers as independent contractors through the courts has resulted in a loss of substantial employee benefits for those workers).Show More Another possible consequence of independent contractor status is antitrust liability: While employees may engage in otherwise-illegal concerted action as part of a labor dispute, according to one theory of the “labor-dispute exemption,” independent contractors can be sued, enjoined, and forced to pay treble damages to the companies they work for if they organize to demand higher wages and strike.⁴4. See Brief for the United States and the Federal Trade Commission as Amici Curiae at 8, Chamber of Com. v. City of Seattle, 890 F.3d 769 (9th Cir. 2018) (No. 17-36540) (“Independent contractors, as horizontal competitors, may not collude to set the price for their services.”); 15 U.S. Code § 15(a) (authorizing treble damages in private suits); infra Part I.Show More Platform workers in the ride-hailing industry are currently considered independent contractors under federal labor law, and thus if they go on strike or exert collective pressure on platform companies, they may face liability under the antitrust laws.⁵5. NLRB Advice Memorandum, Uber Technologies, Inc. Cases 13-CA-163062, 14-CA-158833, and 29-CA-177483 (Apr. 16, 2019) (uber drivers are classified as independent contractors under the prevailing standard based on Supershuttle DFW, Inc., 367 NLRB No. 75 (Jan. 25, 2019)); but see Order Granting Review and Notice and Invitation to File Briefs, The Atlanta Opera, Inc., Case 10-RC-276292 (Dec. 27, 2021) (inviting parties and amici to submit briefs addressing whether the Board should reconsider the Supershuttle standard).Show More

In 2016, a group of Puerto Rican jockeys formed a labor organization to protest the terms under which they were hired by the horse owners and the owner-operator of a racetrack.⁶6. Confederación Hípica v. Confederación de Jinetes Puertorriqueños (Jinetes), 30 F.4th 306, 311 (1st Cir. 2022), cert. denied, 143 S. Ct. 631 (2023).Show More The jockeys organized a strike, and the horse and racetrack owners sued. The District Court found that the jockeys had violated antitrust law by acting in concert to restrain trade and could not benefit from the labor-dispute exemption because of their independent contractor status.⁷7. Id. at 312.Show More In April 2022, the First Circuit reversed, extending the statutory labor-dispute exemption beyond the legal employment relationship for the first time.⁸8. Id. at 314. Strictly speaking, what was new in this case was extending the exemption to alleged independent contractors without finding any employee-employer relationship indirectly at issue; courts have included independent contractors in the exemption in some limited circumstances involving industries in which independent contractors compete with legal employees. See infra note 22 and accompanying text. The First Circuit also did not take a position on the jockeys’ status, rejecting a doctrinal framework that would require a finding of employee status before applying the exemption. See infra Part II.Show More

The rule the court articulated—that any dispute over wages is a labor dispute, regardless of whether or not it is between employees and employers—opens the door to labor organizing in the gig economy, an important opportunity for workers in a growing sector.⁹9. See Lawrence F. Katz & Alan B. Krueger, The Rise and Nature of Alternative Work Arrangements in the United States, 1995–2015, 72 ILR Rev. 382, 383 (2019) (“[T]he percentage of workers engaged in alternative work arrangements—defined as temporary help agency workers, on-call workers, contract company workers, and independent contractors or freelancers—rose from 10.7% in February 2005 to somewhere in the 12.6 to 15.8% range in late 2015.”); Monica Anderson, Colleen McClain, Michelle Faverio & Risa Gelles-Watnick, Pew Rsch. Ctr., The State of Gig Work in 2021, at 11 (2021), https://www.pewresearch.org/internet/2021/12/08/americans-experiences-earning-money-through-online-gig-platforms [https://perma.cc/LYM9-YNUJ] (“About one-in-ten adults (9%) have earned money doing gig platform work in the past 12 months.”).Show MoreBut it’s unclear just how far it opened the door: Replacing a categorical test based on employee classification with the hazy distinction between wages and prices allows courts to construe the exemption as broadly or as narrowly as they like.

I. The Statutory Labor-Dispute Exemption Before Jinetes

Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade.”¹⁰10. 15 U.S.C. § 1.Show More The Act was originally passed to fight rising corporate monopolies,¹¹11. See Apex Hosiery Co. v. Leader, 310 U.S. 469, 492–93 (1940) (“[The Sherman Act] was enacted in the era of ‘trusts’ and of ‘combinations’ of businesses and of capital organized and directed to control of the market by suppression of competition in the marketing of goods and services, the monopolistic tendency of which had become a matter of public concern.”); Standard Oil Co. v. United States, 221 U.S. 1, 50 (1911) (“[T]he main cause which led to the legislation was the thought that it was required by the economic condition of the times; that is, the vast accumulation of wealth in the hands of corporations and individuals.”).Show More but courts—eager to suppress the nascent labor movement—relied on the vague language of the Sherman Act to issue injunctions against strikers, picketers, and any form of labor action involving violence, social pressure, or even “moral intimidation.”¹²12. Vegelahn v. Guntner, 44 N.E. 1077, 1077 (1896); see Loewe v. Lawlor (Danbury Hatters), 208 U.S. 274, 276 (1908) (holding unions subject to injunctions under the Sherman Act).Show More

In 1914, Congress attempted to oust federal courts from antitrust scrutiny of labor disputes through the passage of the Clayton Act. Section 6 of the Clayton Act declares that, for the purposes of antitrust law, “[t]he labor of a human being is not a commodity,” and that “[n]othing contained in the antitrust laws shall be construed to forbid the existence and operation of labor . . . organizations . . . ; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws.”¹³13. 15 U.S.C. § 17.Show More Yet, the federal courts were not deterred. In Duplex Printing, the Supreme Court construed Section 20 of the Clayton Act as merely codifying the case law that had grown around the labor injunction, importing the federal common-law prohibitions on labor boycotts enforced in cases like Danbury Hatters.¹⁴14. Duplex Printing Press Co. v. Deering, 254 U.S. 443, 470 (1921) (“The first paragraph [of Clayton Act § 20] merely puts into statutory form familiar restrictions upon the granting of injunctions already established and of general application in the equity practice of the courts of the United States.”).Show More

President Hoover signed the Norris-LaGuardia Act in 1932.¹⁵15. 29 U.S.C. § 101. Show More That Act barred federal courts from issuing injunctions “in a[ny] case involving or growing out of a labor dispute.”¹⁶16. Id.Show More A decade later, and after the additional passage of the NLRA, the Court construed the ouster broadly, restoring the original purpose of the Clayton Act as a bar on any antitrust scrutiny of labor organizing.¹⁷17. See United States v. Hutcheson, 312 U.S. 219, 231 (1941) (“[W]hether trade union conduct constitutes a violation of the Sherman Law is to be determined only by reading the Sherman Law and § 20 of the Clayton Act and the Norris-LaGuardia Act as a harmonizing text . . . .”).Show More

The next year, the Supreme Court issued the first in a series of decisions that narrowed the applicability of the labor-dispute exemption. In Columbia River Packers, the Supreme Court declined to apply the exemption to a dispute between a fishermen’s union and the owner of a cannery.¹⁸18. Columbia River Packers Ass’n v. Hinton, 315 U.S. 143, 145 (1942).Show More The union represented fishermen who owned or leased fishing vessels and, in some cases, employed their own crew.¹⁹19. Id. at 147.Show More The Court found that they were independent businesspeople, and their dispute with the cannery was over “the terms of a contract for the sale” of fish, rather than, as the Norris-LaGuardia Act required, “the terms or conditions of employment.”²⁰20. Id. at 145.Show More The Court reasoned that because in passing the Norris-LaGuardia Act “the attention of Congress was focussed upon disputes affecting the employer-employee relationship, . . . the Act was not intended to have application to disputes over the sale of commodities.”²¹21. Id.Show More While acknowledging that the Norris-LaGuardia Act expressly allowed for parties to a labor dispute that did not stand in “the proximate relation of employer and employee,” the Court insisted that it did not apply to “controversies upon which the employer-employee relationship has no bearing.”²²22. Id. at 147.Show More

Though nothing in either the Clayton or Norris-LaGuardia Act conditions the immunity on the labor group consisting of common-law employees (as opposed to independent contractors), the Court has, in a handful of cases, declined to apply the immunity to independent contractors that were selling (or re-selling) goods, or whom the Court found were otherwise in business for themselves, and not merely workers selling their labor.²³23. See, e.g., United States v. Women’s Sportswear Mfr. Ass’n, 336 U.S. 460, 463–64 (1949) (denying the exemption to a stitching contractor who sold labor but also had “rentals, capital costs, overhead and profits,” and thus was “an entrepreneur, not a laborer”); Los Angeles Meat & Provision Drivers Union v. United States, 371 U.S. 94, 96–97 (1962) (denying the exemption to “grease peddlers,” whom the Court found were “independent entrepreneurs whose earnings as middlemen consisted of the difference between the price at which they bought . . . restaurant grease . . . and the price at which they sold it to the processors,” and who had significant capital investment in the form of “operating and maintaining their trucks”); see also FTC v. Superior Ct. Trial Laws. Ass’n, 493 U.S. 411, 436 (1990) (upholding FTC order against boycott by private attorneys who worked as court-appointed counsel). The exemption was not raised on appeal. See Superior Ct. Trial Laws. Ass’n v. FTC, 856 F.2d 226, 230 n.6 (D.C. Cir. 1988) (“Petitioners routinely used the word ‘strike’ to describe their concerted refusal to accept new cases. Petitioners have not suggested, however, that they are ‘employees’ within the meaning of § 20 of the Clayton Act . . . or that SCTLA is a ‘labor organization’ within the meaning of § 6 of the same Act . . .”).Show More In other cases, workers classified as independent contractors, doing the same work as employees but under different contractual conditions, have enjoyed antitrust immunity for labor union activity.²⁴24. See, e.g., Am. Fed’n of Musicians v. Carroll, 391 U.S. 99, 106 (1968) (treating independent contractor band leaders as a “labor group” involved in a “labor dispute” due to the presence of “job or wage competition or some other economic inter-relationship affecting legitimate union interests between the union members and the independent contractors”); H.A. Artists & Assocs., Inc. v. Actors’ Equity Ass’n, 451 U.S. 704, 721–22 (1981) (“In a case . . . where there is no direct wage or job competition between the union and the group it regulates [viz. agents], the Carroll formulation to determine the presence of a nonlabor group . . . necessarily resolves this issue.”).Show More While some lower courts have inferred a categorical exclusion,²⁵25. See, e.g., Taylor v. No. 7, Int’l Union of Journeymen Horseshoers, 353 F.2d 593, 606 (4th Cir. 1965) (finding that a boycott by the farriers’ union was not entitled to the exemption because the farriers “do not stand in the proximate relation of employees and employers” with horse owners and trainers and “[t]here is no evidence in the record that the boycotting and price-fixing activities of the defendant unions were undertaken in aid of or in connection with the wages, hours, working conditions or any other interest of horseshoers”); Julien v. Soc’y of Stage Dirs. & Choreographers, Inc., No. 68 CIV 5120, 1975 WL 957, at *1 (S.D.N.Y. Oct. 7, 1975) (finding that members of defendant organization “are employees of producers and not independent contractors [and] therefore come[] within the labor exemption”); Int’l Ass’n of Heat & Frost Insulators & Asbestos Workers, etc. v. United Contractors Ass’n, 483 F.2d 384, 390–91 (3d Cir. 1973) (“[C]ourts have sought to fashion the labor exemption . . . according to the . . . analyses of the function of the work in its relevant economic relationships.”); Spence v. Se. Alaska Pilots’ Ass’n, 789 F. Supp. 1007, 1012 (D. Alaska 1990) (“A party seeking refuge in the statutory exemption must be a bona fide labor organization and not independent contractors.” (citing H.A. Artists & Assocs., Inc. v. Actors’ Equity Ass’n, 451 U.S. 704, 717 n.20 (1981))); Ring v. Spina, 148 F.2d 647, 652 (2d Cir. 1945) (“[T]he controversy cannot concern itself with conditions of employment, since none of the parties affected are in any true sense employees. . . . We think the exception therefore inapplicable.”). Show More the Supreme Court’s cases on the issue are few, and offer ambiguous guidance.²⁶26. See Henry H. Perritt, Jr., Don’t Burn the Looms—Regulation of Uber and Other Gig Labor Markets, 22 SMU Sci. & Tech. L. Rev. 51, 143–44 (2019) (“Most labor lawyers assume that independent contractors are outside the scope of the labor exemption, on the strength of Allen Bradley, Columbia River Packers, and a number of lower court opinions. However, the case law supporting that proposition is not as strong as one might assume.”); Michael C. Duff, Labor Viscerality? Work Stoppages in the “New Work” Non-Union Economy, 65 St. Louis U. L.J. 115, 148–49 (2020) (noting “the paucity of authority since Columbia River Packers touching on the question of application of the [Norris-LaGuardia Act] to non-employee workers,” and that “it is difficult to locate any narrowing authority” to support lower court inferences to a categorical rule); Samuel Estreicher & Jack Samuel, Independent-Contractor Unionism and the Antitrust Laws 49–56 (Apr. 4, 2023) (unpublished manuscript) (on file with author) (arguing that the Supreme Court’s precedents do not incorporate the common-law agency tests but rather distinguish workers, including independent contractors who sell only their labor, from independent entrepreneurs). Show More Some labor and antitrust experts side with the lower courts in adopting a categorical approach, while others argue that—as far as the Supreme Court cases go—there remains a grey area in which independent contractors who are not in business for themselves fall within the scope of the exemption.²⁷27. Compare Brief for the United States and the Federal Trade Commission as Amici Curiae at 8, Chamber of Com. v. City of Seattle, 890 F.3d 769 (9th Cir. 2018) (No. 17-36540) (“Independent contractors, as horizontal competitors, may not collude to set the price for their services.”), and Heather M. Whitney, Rethinking the Ban on Employer-Labor Organization Cooperation, 37 Cardozo L. Rev. 1455, 1482 n.143 (2016) (summarizing the current doctrine as categorically excluding independent contractors), with Brief for Professor Samuel Estreicher as Amicus Curiae at 5, Chamber of Com. v. City of Seattle, 890 F.3d 769 (9th Cir. 2018) (No. 17-36540) (“There is nothing in the Clayton Act or Supreme Court decisions on labor’s statutory antitrust exemption that hinges the applicability of the exemption on ‘employee’ status under federal labor relations law.”).Show More

II. The First Circuit’s Decision

Puerto Rico is home to only one racetrack: Hipódromo Camarero in the town of Canóvanas.²⁸28. Jinetes, 30 F.4th 306, 311 (1st Cir. 2022), cert. denied, 143 S. Ct. 631 (2023).Show More The Camarero jockeys are hired by horse owners and paid a twenty-dollar “mount fee” per race—a rate about one-fifth of that paid to their counterparts in the rest of the United States, and which has not changed since 1989—plus prize money for the top five finishers.²⁹29. Id.Show More The jockeys have been unhappy with this arrangement for years; they have also criticized pre-race weigh-in procedures and the conduct of racing officials.³⁰30. Id.Show More On June 10, 2016, several aggrieved jockeys refused to race.³¹31. Id.Show More Race officials fined them; in response, thirty-seven jockeys refused to race for three days.³²32. Id.Show More The horse and racetrack owners sued the jockeys, along with their spouses and two different associations that had been involved in the dispute.³³33. Id. Show More The district court enjoined the work stoppage and awarded summary judgment to the owners, trebling their claimed losses and ordering the jockeys to pay $1,190,685.³⁴34. Id. at 312.Show More

On appeal, the jockeys argued that the labor-dispute exemption should apply. The First Circuit rejected the district court’s categorical exclusion of the jockeys from the protection of the labor-dispute exemption based on their “alleged independent-contractor status.”³⁵35. Id. at 314.Show More It noted that “any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating . . . terms or conditions of employment,”³⁶36. Id. at 313 (quoting 29 U.S.C. § 113(c)).Show More was by statute an exempted labor dispute.

The court interpreted Columbia River Packers as standing not for a categorical exclusion of independent contractor labor organizations but for a distinction between “disputes about wages for labor” and “those over prices for goods.”³⁷37. Id. at 315. The court distinguished Taylor v. Loc. No. 7, Int’l Union of Journeymen Horseshoers, 353 F.2d 593 (4th Cir. 1965) (en banc), along the same lines: The independent contractors in that case did not only sell their labor but sold horseshoes as well, so the dispute was at least partly over prices for goods. Id. at 315 n.3. The First Circuit did not address Women’s Sportswear or Los Angeles Meat and discussed Superior Court Trial Lawyers Association only by way of noting that the labor exemption was not argued. See id. at 316 n.4.Show More Unlike other independent contractor cases, the First Circuit held that, as a “labor only case,” Jinetes did not involve any dispute over prices. “The key question,” according to the First Circuit, “is not whether the jockeys are independent contractors or laborers but whether what is at issue is compensation for their labor.”³⁸38. Id. at 314.Show More

Having established the irrelevance of the jockeys’ employment status as a threshold question determining the exemption’s applicability, the First Circuit applied the four-part test usually reserved for disputes involving employees. The exemption “applies to conduct arising (1) out of the actions of a labor organization and undertaken (2) during a labor dispute, (3) unilaterally, and (4) out of the self-interest of the labor organization.”³⁹39. Id. at 313.Show More The defendant association in Jinetes “advocates for the jockeys’ terms of employment”⁴⁰40. Id. at 314.Show More and thus is “a ‘bona fide’ group representing laborers,”⁴¹41. Id. at 313 (quoting H.A. Artists & Assocs., Inc. v. Actors’ Equity Ass’n, 451 U.S. 704, 717 (1981)).Show More regardless of whether it is “formally recognized as a union.”⁴²42. Id. (citing NLRB v. Wash. Aluminum Co., 370 U.S. 9, 14–15 (1962)).Show More Because defendants struck for “higher wages and safer working conditions,” theirs was “a core labor dispute.”⁴³43. Id. at 314.Show More “The district court erred,” the First Circuit held, “when it concluded that the jockeys’ alleged independent-contractor status categorically meant they were ineligible for the exemption” because “by the express text of the Norris-LaGuardia Act, a labor dispute may exist ‘regardless of whether or not the disputants stand in the proximate relation of employer and employee.’”⁴⁴44. Id. (quoting 29 U.S.C. § 113(c)).Show More

The third and fourth requirements were not in dispute.⁴⁵45. Id. (“The plaintiffs make no assertion that the defendants coordinated with any nonlabor group. And the defendants acted to serve their own economic interests.”).Show More The First Circuit found that the test was satisfied by the facts of the case, and thus that the labor-dispute exemption applied.⁴⁶46. Id. at 316.Show More

III. The Future of Independent Contractor Organizing?

The Jinetes decision offers hope to workers organizing in the platform economy. Citing Jinetes, the Federal Trade Commission (FTC) has recently indicated an intention “not [to] focus [enforcement] on organizing efforts undertaken by gig workers.”⁴⁷47. Fed. Trade Comm’n, Policy Statement on Enforcement Related to Gig Work 14 n.68 (2022), https://www.ftc.gov/system/files/ftc_gov/pdf/Matter%20No.%20P227600%20Gig%20Policy%20Statement.pdf [https://perma.cc/7KLY-TVT2].Show More As an increasing share of the workforce falls outside the protection of the NLRA due to workplace fissuring and the growth of “gig economy” firms,⁴⁸48. See generally David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (2014) at 10 (“Employers have incentives to [fissure] for obvious reasons: shifting employment to other parties allows an employer to avoid mandatory social payments (such as unemployment and workers’ compensation insurance or payroll taxes) or to shed liability for workplace injuries by deliberately misclassifying workers as independent contractors.”).Show More and as unionization efforts at workplaces across the country like Amazon and Starbucks continue to gather steam,⁴⁹49. See, e.g., Sharon Block & Benjamin Sachs, Mapping Union Activity at Amazon, OnLabor (Apr. 1, 2022), https://onlabor.org/mapping-union-activity-at-amazon-update-april-1-2022 [https://perma.cc/Y2EJ-RYKC] (“[E]specially when paired with the recent wave of successful Starbucks organizing sweeping the nation, [the union victory in Amazon’s Staten Island facility] could precipitate a surge of union organizing in pivotal economic sectors, such as the service sector, in which unions have traditionally struggled to gain a meaningful foothold.”).Show More replacing the categorical rule with a potentially more flexible standard would be a timely expansion of the right to strike. Exactly how sweeping a change the decision signals will depend on how the wages/prices distinction is applied. Yet the First Circuit said little to indicate how future courts should apply it.⁵⁰50. Some remarks in footnote 3 of Jinetes distinguish Taylor and suggest the surprising conclusion that the distinction mirrors that between selling services and selling goods. Jinetes, 30 F.4th 306, 315 n.3 (1st Cir. 2002), cert. denied, 143 S. Ct. 631 (2023). In Taylor, the workers “provided not just labor but also a product [namely horseshoes] . . . to their customers,” unlike Jinetes, which is a “labor-only” case. Id. This could be interpreted to imply that so long as putative laborers are not selling any goods they are entitled to the labor exemption, which would place plumbers and dentists into the same category as steelworkers, longshoremen, and mail carriers. Whatever the merits of allowing plumbers or dentists to collectively set prices, such a rule would be unlikely to survive further judicial review. It is well-settled law that attempts by dentists’ organizations to set rates constitute illegal cartels. See FTC v. Ind. Fed’n of Dentists, 476 U.S. 447 (1986); see also Marina Lao, Workers in the “Gig” Economy: The Case for Extending the Antitrust Labor Exemption, 51 U.C. Davis L. Rev. 1543, 1563–64 n.88 (2018) (collecting cases). In addition to being overinclusive of professional services providers, such a rule could be underinclusive of workers involved in the production or distribution of goods, so long as their contracts can be structured to construe their pay as a price per unit, though in most cases this would require novel forms of fissuring, as wages cannot be reasonably construed as prices for goods if the workers never own the goods in the first place.Show More

The First Circuit held that Columbia River Packers stands not for the categorical rule based on classification, but for the wages/prices distinction, effectively rejecting the Supreme Court’s claims about the importance of the employer-employee relationship as dicta.⁵¹51. See Jinetes, 30 F.4th at 314–15.Show More If the wages/prices distinction operated independently of employee classification, how was the distinction applied there? In Columbia River Packers, the decision rested partly on the Court’s finding that the fishermen operated with significant independence and had invested capital in their individual fishing operations.⁵²52. Columbia River Packers Ass’n v. Hinton, 315 U.S. 143, 147 (1942) (“[The fishermen] desire[d] . . . to continue to operate as independent businessmen, free from such controls as an employer might exercise.”).Show More Capital investment and independence are among the central criteria in distinguishing independent contractors from employees under the common law “control” test,⁵³53. See Restatement (Second) of Agency § 220 (Am. L. Inst. 1958). Show More which determines employee status under the NLRA.⁵⁴54. See NLRB v. United Ins. Co. of Am., 390 U.S. 254, 256 (1968) (holding that the Taft-Harley amendment of the NLRA’s definition of “employee” to exclude “independent contractors” was intended to incorporate the common-law control test); see also Supershuttle DFW, Inc., 367 NLRB No. 75 at *2 (Jan. 25, 2019) (summarizing NLRB’s interpretation of the common-law control test factors specified in United Insurance).Show More But these factors need not be understood to have legal significance only in the context of employee classification tests. One possible interpretation of Jinetes is that the categorical approach relies on the right factors but is viewed through the wrong doctrinal lens, and thus that capital investment and independence go to distinguishing prices from wages not because prices are by definition paid to contractors and wages to employees—but because employment classification and the wages/prices distinction both reflect the substance of the underlying economic relationships. Rejecting the categorical approach amounts to holding that courts should look directly at the substance of the relationship, in all of its factual richness, without employee classification tests as a mediating analytic step.⁵⁵55. Cf. New Prime Inc. v. Oliveira, 139 S. Ct. 532, 542 (2019) (“[A]s dominantly understood in 1925, a contract of employment did not necessarily imply the existence of an employer-employee or master-servant relationship.”) (emphasis omitted); Chamber of Com. v. City of Seattle, 426 F. Supp. 3d 786, 788 n.3 (W.D. Wash. 2019) (“Plaintiffs argue that the labor exemption applies only in the context of an employer-employee relationship. . . . [A] recent Supreme Court decision makes clear that, at the time the Clayton Act was written, even the narrower term ‘employment’ encompassed both master-servant relationships and independent contractors.” (citing New Prime, 139 S. Ct. at 542–44)).Show More

Inviting courts faced with putative labor disputes to look at the economic relations between workers and management with fresh eyes would be a welcome development for otherwise-misclassified workers. There is a risk, however, of resuscitating a de facto, antitrust-specific classification test if courts parse the same set of factors in a similar way, and it would be unwise to bet on federal courts dramatically revising their general understanding of employment status.

So how should courts understand the wages/prices distinction, if not as common-law employee classification in a different guise? While it offered virtually no detail concerning the nature of a wage dispute, the First Circuit emphasized the Norris-LaGuardia Act was intended to navigate the “inherent tension between national antitrust policy, which seeks to maximize competition, and national labor policy, which encourages cooperation among workers to improve the conditions of employment.”⁵⁶56. Jinetes, 30 F.4th 306, 312 (1st Cir. 2002), cert. denied, 143 S. Ct. 631 (2023) (quoting H.A. Artists & Assocs., Inc. v. Actors’ Equity Ass’n, 451 U.S. 704, 713 (1981)). Show More It does so by acknowledging that while “antitrust law [generally] forbids would-be competitors from colluding to increase prices . . . [w]hen the price is a laborer’s wage . . . a different set of rules apply. That must be so, lest antitrust law waylay ordinary collective bargaining.”⁵⁷57. Id. at 312.Show More New Deal labor policy, in other words, was intended to carve out a space for workers to organize, and the scope of its coverage should reflect that purpose.

Eighty years ago, the Supreme Court faced a similar question: Were newsboys entitled to organize under the National Labor Relations Act, or, as the appeals court below had found, did the NLRA exclude common-law independent contractors? In NLRB v. Hearst Publications, the Court rejected the idea that the control test was appropriate for distinguishing a labor organization from an illegal cartel.⁵⁸58. NLRB v. Hearst Publ’ns, 322 U.S. 111, 120–121 (1944).Show More According to the Court, in enacting the NLRA, “Congress had in mind a wider field than the narrow technical legal relation of ‘master and servant,’ as the common law had worked this out in all its variations, and at the same time a narrower one than the entire area of rendering service to others.”⁵⁹59. Id. at 124.Show More Interpreting the category of covered employees in light of the purposes of the NLRA, the Hearst Court found that, because some workers classified as independent contractors under agency law face the same “[i]nequality of bargaining power in controversies over wages, hours and working conditions” as those classified as employees, and “when acting alone, may be as helpless in dealing with an employer, as dependent on his daily wage and as unable to leave the employ and to resist arbitrary and unfair treatment,”⁶⁰60. Id. at 127 (internal quotations omitted).Show More the Board’s determination that they were covered employees was due judicial deference.

Hearst was overturned by the Taft-Hartley Act.⁶¹61. Labor Management Relations (Taft-Hartley) Act, 29 U.S.C. § 151; see also NLRB v. United Ins. Co., 390 U.S. 254, 256 (1968) (holding the use of “independent contractor” in the Taft-Hartley Act as intended “to have the Board and the courts apply general agency principles in distinguishing between employees and independent contractors under the Act”).Show More While Taft-Hartley was specifically targeted at amending the NLRA to weaken unions, it did not touch the Norris-LaGuardia antitrust exemption, which draws its purpose from the same policy framework: The New Deal scheme of labor regulation was intended to remedy inequalities of bargaining power and to protect collective self-help by workers.⁶²62. 75 Cong. Rec. 5461, 5487 (1932) (statement of Rep. Charles Sparks); cf. Hiba Hafiz, Labor Antitrust’s Paradox, 86 U. Chi. L. Rev. 381, 386–87 (2019) (“The NLRA justified worker combinations as a countervailing power that, in the words of its sponsor, Senator Robert Wagner, ‘match[ed] the huge aggregates of modern capital.’”) (citing Senator Robert Wagner, The New Responsibilities of Organized Labor, Address to the New York State Federation of Labor Convention ¶ 5 (1928), reprinted in 70 Cong. Rec. 225, 227).Show More Interpreting the labor-dispute exemption in light of labor policy, rather than the common law of agency, requires looking at the substance of the economic relation, including the extent to which it reflects inequality of bargaining power between workers and dominant firms. The Hearst Court drew on the preamble to the NLRA to interpret that statute’s purpose, but the Norris-LaGuardia Act’s stated policy aims were essentially the same: to ensure that independent contractors were “free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”⁶³63. 29 U.S.C. § 102.Show More

Courts could, and perhaps should, adjudicate labor-dispute exemption cases by looking directly to the substance of the economic relation at issue, considering the purposes of New Deal labor law, rather than the common law of agency. And if the key to the labor-dispute exemption is the wages/prices distinction, antitrust doctrine may need to account for the economic context in which the economic relation is formed, including the market power on the other side.⁶⁴64. See generally Brian Callaci & Sandeep Vaheesan, Antitrust Remedies for Fissured Work, 108 Cornell L. Rev. Online 27 (2023) (arguing that antitrust law should prevent corporations from controlling the business decisions of distributors and suppliers); Sanjukta Paul, Antitrust as Allocator of Coordination Rights, 67 UCLA L. Rev. 378 (2020) (exploring antitrust law’s preference for coordination via vertical contracting, as opposed to horizontal, interfirm coordination).Show More In Jinetes, the owners of the horses and the track enjoyed a monopoly over Puerto Rican horse racing and thus a monopsony over the relevant labor market,⁶⁵65. Jinetes, 30 F.4th 306, 311 (1st Cir. 2022), cert. denied, 143 S. Ct. 631 (2023).Show More but the First Circuit did not address the relevance, if any, of the monopsony power of the plaintiffs. An analysis of unequal bargaining power could help make clear why the jockeys, who have no meaningful ability to bargain over their pay, should be considered as earning a wage rather than being paid a price: What makes a wage a wage, rather than a price for independently provided services, may not only be the capital investment or independence of the recipient, but also the market power of the payor.⁶⁶66. Analysis of market power already has a role in antitrust doctrine, albeit a limited one in recent decades. Courts consider the market power of defendants in a rule of reason analysis. See, e.g., Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 27–29 (1984) (finding a “tying” practice permissible in part due to the defendant’s lack of market power).Show More Whether future courts will interpret the wages/prices distinction in light of an analysis of market power remains to be seen.

Conclusion

The racetrack and horse owners filed a petition for certiorari on October 4th, 2022, identifying the question presented as “Whether the statutory labor exemption from the operation of the antitrust laws, which exempts ‘labor dispute[s]’ that ‘concern[] terms or conditions of employment,’ encompasses concerted action by independent contractors that do not relate to an employer-employee relationship.”⁶⁷67. Petition for Writ of Certiorari at i, Jinetes, 30 F.4th 306 (No. 22-327).Show More

The jockeys’ opposition brief emphasized, among other things, the public meaning of “employment” when the Clayton and Norris-LaGuardia Acts were passed, no doubt with an eye on the Court’s embrace of textualism and in hopes of convincing at least one more of the Court’s six conservative justices to follow Justice Gorsuch’s lead in New Prime.⁶⁸68. See Respondents’ Brief in Opposition at 18–20, Jinetes, 30 F.4th 306 (No. 22-327).Show More While the jockeys construed the First Circuit’s decision as consistent with prior Supreme Court and federal appeals courts decisions⁶⁹69. See id. at 9–15.Show More (as had the First Circuit), the owners portrayed the categorical exclusion of workers classified as independent contractors, where no “employer-employee relationship [i]s the matrix of the controversy,”⁷⁰70. Columbia River Packers Ass’n v. Hinton, 315 U.S. 143, 147 (1942).Show More as clearly established by prior case law.⁷¹71. Reply Brief for Petitioners at 1–7, Jinetes, 30 F.4th 306 (No. 22-327).Show More

If the Supreme Court agreed with the owners’ understanding of its prior decisions, it chose not to say so: on January 9th, 2023, the Court denied the petition for certiorari without explanation or noted dissent.⁷²72. See Confederación Hípica v. Confederación de Jinetes Puertorriqueños, 143 S. Ct. 631 (2023).Show More At least within the First Circuit, workers classified as independent contractors now have the right to strike over wages and other terms and conditions of employment.

Ninth Circuit Offers Guidance to Trial Courts in Evaluating Ancillary Predominance Issues for Purposes of Rule 23(b)(3)

Jonathan L. Goldberg

Recent Case: Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 31 F.4th 651 (9th Cir. 2022) (en banc)

The Ninth Circuit Court of Appeals recently held in an en banc ruling that district courts wield significant discretion when deciding whether to certify a class action containing potentially uninjured class members. The opinion rejected a “de minimis” rule, which, according to Defendants, other circuits adopted. The court properly focused on Rule 23’s broad text and the class mechanism’s core efficiency goals. However, the Ninth Circuit prematurely addressed the de minimis issue because its opinion reaffirmed the district court’s finding that each plaintiff was similarly situated. Still, in concluding Defendants failed to demonstrate a fatal dissimilarity within the class, the en banc panel effectively reasoned that opposition to predominance at class certification must attack evidence’s relevancy as to each class member rather than its sufficiency in proving the class claims.

Introduction

The Supreme Court recently confirmed that uninjured plaintiffs may not recover damages from class action judgments but left open questions of how that rule might affect a trial court’s class certification decision.²2. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208, 2208 n.4 (2021) (holding Article III requires class members to have standing to recover damages but declining to answer the “distinct question whether every class member must demonstrate standing before a court certifies a class”).Show More In Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC,³3. 31 F.4th 651 (9th Cir. 2022) (en banc).Show More the Ninth Circuit provided crucial guidance to trial courts struggling to apply TransUnion’s holding.

Class action lawsuits depart from the usual rule that only named parties conduct litigation.⁴4. Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979).Show More Federal Rule of Civil Procedure 23 outlines the strict conditions a class must meet to ensure aggregate litigation proceeds fairly, both for absent class members and defendants, and advances judicial economy.⁵5. See Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 470 (2013) (citing Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 107 (2009)) (confirming predominance tests whether a court can resolve dissimilarities among class members in a manner that is not “inefficient or unfair”).Show More To recover damages for themselves and the absent class members they represent, putative class representatives usually certify their class under Rule 23(b)(3).⁶6. See Richard A. Nagareda, Robert G. Bone, Elizabeth Chamblee Burch & Patrick Wooley, The Law of Class Actions and Other Aggregate Litigation 274–75 (3d ed. 2020) (suggesting that plaintiffs are extremely unlikely to recover monetary damages through a (b)(2) class after Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)).Show More Rule 23(b)(3) demands that class litigation be superior to other adjudicatory methods and that common questions of law or fact predominate over individual questions.⁷7. Fed. R. Civ. P. 23(b)(3).Show More Parties frequently target the predominance requirement to challenge motions for class certification.⁸8. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (class settlement); Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II), 573 U.S. 258 (2014) (securities fraud); Amgen, 568 U.S. at 466 (securities fraud); Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 454 (2016) (Fair Labor Standards Act).Show More In short, predominance asks whether common questions of law or fact are both central to the litigation and more prevalent or important than individual ones.⁹9. Tyson Foods, 577 U.S. at 453–54 (2016) (“The predominance inquiry ‘asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues’ [and whether] ‘one or more of the central issues in the action are common to the class and can be said to predominate . . . .’” (first quoting 2 W. Rubenstein, Newberg on Class Actions § 4:50 (5th ed. 2012); then quoting 7AA Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1778 (3d ed. 2005))).Show More

The Olean defendants contended that the plaintiff class included more than a de minimis number of uninjured members, prompting many individual questions, preventing common issues from predominating, and automatically precluding certification.¹⁰10. A question is common because its answer resolves a central issue in each class member’s claim. Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 663 (9th Cir. 2022) (en banc) (quoting Wal-Mart, 564 U.S. at 350). By contrast, an individual question requires different evidence to prove each class member’s claim. Id. (citing Tyson Foods, 577 U.S. at 453). Uninjured plaintiffs within a class may raise individual questions because a court must determine “which ones” are injured and “which ones” are not. See Tyson Foods, 577 U.S. at 464–66 (Roberts, C.J., concurring) (finding decertification appropriate where a district court cannot identify the uninjured plaintiffs within the class); cf. Olean, 31 F.4th at 681–82 & n.31 (discussing mini-trials to identify each plaintiff’s damages award).Show More Defendants also argued the D.C.¹¹11. In re Rail Freight Fuel Surcharge Antitrust Litig. (Rail Freight II), 934 F.3d 619, 624–25 (D.C. Cir. 2019) (discussing a “six-percent upper limit” on the number of uninjured class members in a certified class).Show More and First¹²12. See In re Asacol Antitrust Litig., 907 F.3d 42, 47, 51–58 (1st Cir. 2018) (intimating that 10% exceeds the de minimis boundary).Show More Circuits already adopted a “de minimis” rule and urged the Ninth Circuit to hold similarly.¹³13. Defendants-Appellants’ Supplemental En Banc Brief at 19, 31 F.4th 651 (9th Cir. 2022) (No. 3:15-MD-026770-JLS-MDD), 2021 WL 4126353, at *19. Cf. Olean, 31 F.4th at 666 n.9 (9th Cir. 2022) (discussing the argument but not directly attributing it to defendants); id. at 692 (Lee, J., dissenting) (same).Show More In rejecting a per se de minimis standard, the en banc court held that a district court is in the best position to determine whether individual questions, including those regarding class members’ injury, will overwhelm common ones.¹⁴14. Olean, 31 F.4th at 669.Show More In other words, the district court’s decision to certify the class fell within the broad range of permissible conclusions that a class certification appeal’s abuse of discretion standard affords.¹⁵15. Id. (quoting Hung Lam v. City of San Jose, 869 F.3d 1077, 1084 (9th Cir. 2017) (quoting Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010))).Show More

The court properly resolved an issue percolating in class action jurisprudence through careful attention to Rule 23’s text and the class mechanism’s core efficiency goals. Furthermore, the decision follows a broad trend—developing as judicial experience with class actions grows—of increasing deference towards trial courts at the class certification stage. Nevertheless, the en banc panel should never have reached the issue. The opinion’s logic renders the holding advisory by concluding each plaintiff could rely upon their expert’s report to prove class-wide antitrust impact—i.e., that defendants injured each and every class member by causing them to pay for tuna at supra-competitive prices. Still, the appellate tribunal faithfully applied Supreme Court precedent on a frequently confusing aspect of the predominance inquiry, carefully distinguishing between evidentiary issues of relevancy (whether there is a “fatal dissimilarity”) and sufficiency or persuasiveness (whether there is a “fatal similarity”).¹⁶16. See Nagareda, supra note 4, at 131 (arguing courts should address fatal dissimilarities between class members at certification and address fatal similarities, such as a failure of proof, at summary judgment).Show More

I. Background

A. The District Court’s Class Certification Order

Following a 2015 Department of Justice antitrust investigation, various plaintiffs (collectively “Tuna Purchasers”) filed suit against Bumble Bee, StarKist, Chicken of the Sea (“COSI”), and their parent corporations (collectively “Tuna Suppliers”), alleging the corporations conspired to fix tuna prices in violation of federal and state antitrust laws.¹⁷17. The Tuna Purchasers allege the Tuna Suppliers engaged in a price-fixing conspiracy from November 2010 to at least December 31, 2016 and further claim the conspiracy forced them to pay supra-competitive prices for the Tuna Suppliers’ products. Olean, 31 F.4th at 661–62.Show More Soon thereafter, the Department of Justice (“DOJ”) entered notice of a pending investigation into the packaged tuna industry for similar violations of the antitrust laws.¹⁸18. Id. at 661; see In re Packaged Seafood Prods. Antitrust Litig., 332 F.R.D. 308, 317 (S.D. Cal. 2019) (“Shortly after the commencement of this action, the U.S. Department of Justice (‘DOJ’) noticed the Court of pending investigations of the Defendants. Since that time, Defendants and individual employees have pled guilty and the DOJ has entered multiple indictments.”), vacated and remanded sub nom. Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 993 F.3d 774 (9th Cir. 2021), on reh’g en banc, 31 F.4th 651 (9th Cir. 2022), and aff’d sub nom. Olean, 31 F.4th at 661.Show More During the ongoing civil litigation, the DOJ filed multiple indictments alleging a criminal price-fixing conspiracy in the industry from around November 2011 to December 2013.¹⁹19. Olean, 31 F.4th at 661–62; see also In re Packaged Seafood Prod. Antitrust Litig., 332 F.R.D. at 317.Show More Bumble Bee, StarKist, and three industry executives ultimately pled guilty to the conspiracy; a jury convicted Bumble Bee’s former CEO, and COSI cooperated with the DOJ, admitting to price fixing in exchange for leniency.²⁰20. Olean, 31 F.4th at 662. Show More By the end of 2015, the Judicial Panel on Multidistrict Litigation consolidated the civil complaints in the Southern District of California.²¹21. In re Packaged Seafood Prods. Antitrust Litig., 332 F.R.D. at 316.Show More Judge Janis Lynn Sammartino divided the Tuna Purchasers into four tracks: (1) plaintiffs who filed suit individually against the Tuna Suppliers (“DAPs”); (2) direct purchasers, such as nationwide retailors or regional grocery stores (“DPPs”); (3) indirect purchasers who bought bulk-sized products for prepared food or resale (“CFPs”); and (4) individual end purchasers (“EPPs”).²²22. Id. at 316–17. The DPPs and EPPs include plaintiffs who purchased packaged tuna between June 1, 2011 and July 1, 2015, but the CFPs include plaintiffs who purchased tuna products from June 2011 through December 2016. Olean, 31 F.4th at 662.Show More

The latter three groups moved for class certification in 2018 under Rule 23(b)(3). The Tuna Suppliers opposed the motion, arguing individual questions predominated over common ones because the DPPs’ expert, Dr. Russell Mangum, could not demonstrate a common class-wide antitrust impact.²³23. Olean, 31 F.4th at 673. Each of the three plaintiff subclasses employed their own expert to establish antitrust impact through qualitative and quantitative analyses. Id. at 662. However, this Case Comment will focus on the DPPs’ class certification, the center of each opinion.Show More Dr. Mangum constructed a multiple regression model to assess whether the price-fixing conspiracy subjected each DPP to an overcharge.²⁴24. Id. at 671.Show More To do so, Dr. Mangum pooled the Tuna Suppliers’ actual sales transaction data during benchmark periods before and after the conspiracy, identified a number of variables that could affect the price of tuna—like product characteristics, input costs, consumer type, consumer preferences and demand, etc.—and recorded the model’s results.²⁵25. Id.Show More The model showed “the DPPs paid 10.28 percent more for tuna during the conspiracy period than they did during the benchmark periods.”²⁶26. Id.Show More To further support this finding, Dr. Mangum conducted four robustness checks,²⁷27. Dr. Mangum (1) evaluated the overcharge to each defendant, (2) changed the model to assess the overcharge for different products with different characteristics, (3) altered the model to evaluate overcharge by customer types, and (4) used the output of the pooled regression model to predict the but-for prices paid by the DPP class. Id. at 672. According to Dr. Mangum, each robustness check confirmed the conspiracy generated higher prices for all or nearly all DPPs. Id.Show More and the final one indicated that 94.5 percent of the DPPs purchased at least one product at a supra-competitive rate.²⁸28. Id. To be clear, despite the regression’s result, Dr. Mangum concluded the Tuna Suppliers injured each DPP: The robustness check was one basis for a conclusion that rested on additional “correlation tests, the record evidence and the guilty pleas and admissions entered in [the] case.” See id. at 676.Show More

The Tuna Suppliers’ rebuttal expert to the DPPs, Dr. John Johnson, advanced two areas of critique: (1) Dr. Mangum inappropriately pooled direct purchaser data for his model, papering over differences among class members, such as disparities in bargaining power or negotiating tactics;²⁹29. Dr. Johnson pointed to several empirics to support this argument. A Chow test, a commonly employed statistical tool to assess whether data can be pooled, counseled against data pooling. See id. at 673. Further, Dr. Mangum’s model could not find statistically significant results for twenty-eight percent of the direct purchaser class, so Dr. Johnson argued the plaintiffs could not rely on the model to demonstrate class-wide impact. Id.Show More and (2) Dr. Mangum’s model contained various errors that undermined its validity, including the use of an improper cost index.³⁰30. First, Dr. Mangum’s model outputted false positives, including those who purchased tuna products from non-defendants (non-conspiring tuna producers). See id. at 674. Second, Dr. Mangum’s model did not match the time periods listed in the plaintiff’s complaint. Id. Third, Dr. Mangum used a cost index rather than the Tuna Suppliers’ actual accounting cost. Id.Show More Further, the Tuna Suppliers argued Dr. Johnson’s superior report indicated around twenty-eight percent of the class was uninjured.³¹31. Id. at 680.Show More

The district court certified the class after carefully evaluating Dr. Johnson’s critiques and Dr. Mangum’s rebuttal.³²32. Id. at 662, 675–76. First, the district court found Dr. Mangum’s pooled model to be acceptable. Dr. Mangum’s model included statistically insignificant results as to some direct purchasers because those class members completed too few transactions to provide significant results, but this data issue had no bearing on a direct purchaser’s ability to rely on the model as evidence of impact. Id. at 675. For instance, general evidence that the Tuna Suppliers inflated prices through their conspiracy supported the inference that all direct purchasers were similarly situated. See id. at 674. Second, while the court acknowledged the Chow Test should be taken seriously, its opinion reiterated Dr. Mangum’s assertions that Dr. Johnson designed the Chow Tests to fail by including too many coefficients and observations and concluded that Dr. Mangum’s testimony gave “persuasive reasons, grounded in economic theory, for why a pooled model [was] appropriate” despite the concerning Chow Test results. In re Packaged Seafood, 332 F.R.D. 308, 225 (S.D. Cal. 2019); see also id. at 325 n.9 (offering examples of “multiple courts [that] have addressed instances where a pooled regression model failed a Chow Test, yet still accepted those models”).Show More The trial judge first found each plaintiff was similarly situated and, therefore, able to rely upon Dr. Mangum’s report as well as other evidence—i.e., guilty pleas, market characteristics, and record evidence—to prove a common antitrust impact.³³33. In re Packaged Seafood, 332 F.R.D. at 324.Show More The court concluded that the Tuna Suppliers’ remaining criticisms were “serious and could be persuasive to a finder of fact” but ultimately “beyond the scope of” the certification motion because they merely attacked Dr. Mangum’s persuasiveness rather than his capability of establishing impact for each class member.³⁴34. Id. at 328. The district court still rejected Dr. Johnson’s additional critiques. First, Dr. Mangum included purchases from non-defendant tuna suppliers because the conspiracy had an “umbrella effect” that raised non-colluding tuna suppliers’ prices. Olean, 31 F.4th at 676. Second, Dr. Mangum’s choice to narrow the time frame added to the report’s credibility by improving its accuracy. Id. Third, the court accepted Dr. Mangum’s arguments that cost indexes were preferable for determining competitive market prices as well as his conclusion that defendant-specific costs confirmed the pooled model’s results in any event. Id. at 675–76.Show More

B. The Ninth Circuit’s Three-Judge Panel

The Tuna Suppliers appealed, and the Ninth Circuit’s three-judge panel vacated and remanded. The circuit panel concluded each class member could rely upon Dr. Mangum’s model to establish antitrust impact.³⁵35. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 993 F.3d 774, 790 (9th Cir. 2021), reh’g en banc granted, 5 F.4th 950 (9th Cir. 2021), and on reh’g en banc, 31 F.4th 651 (9th Cir. 2022).Show More However, the court found the trial judge abused its discretion in certifying the class without resolving the experts’ competing conclusions on the number of uninjured plaintiffs within the class.³⁶36. Id. at 793.Show More Even though the issue of the experts’ persuasiveness overlaps with the merits of plaintiffs’ claims, the court held that more than a de minimis number of uninjured class members would raise too many individual questions and defeat predominance.³⁷37. Id. at 794. The court precedent analysis “suggest[s] that 5% to 6% constitutes the outer limits of a de minimis number.” Id. at 792 (quoting Rail Freight II, 934 F.3d 619, 624–25 (D.C. Cir. 2019). However, the panel insisted it did “not adopt a numerical or bright-line rule” but only held “that 28% would be out-of-bounds.” Id. at 793.Show More As a result, the district court should have weighed the persuasiveness of each expert report, entered findings on the number of uninjured class members,³⁸38. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350–51 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)) (holding that Rule 23 requires a party seeking class certification to affirmatively demonstrate compliance with the Rule, a standard that will frequently require courts to engage in a “rigorous analysis” at certification that overlaps with the merits of the moving party’s claims).Show More and only have certified the class if it contained fewer than a de minimis number of uninjured plaintiffs. Judge Andrew D. Hurwitz broke from the panel. He concurred the trial court should have resolved the factual dispute relating to uninjured class members before certification but dissented from the panel’s decision to adopt a de minimis standard.³⁹39. Olean, 993 F.3d at 794 (Hurwitz, J., concurring in part and dissenting in part).Show More According to Judge Hurwitz, predominance asks not about the number of uninjured class members but whether a district court may “economically” separate uninjured plaintiffs from the class, a determination best left to the trial court’s discretion.⁴⁰40. Id. at 794–95.Show More After all, “Rule 23 certification is at bottom a trial management decision.”⁴¹41. Id. at 796.Show More

C. The Ninth Circuit’s En Banc Resolution

The Ninth Circuit then vacated the panel’s decision⁴²42. Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 5 F.4th 950, 952 (9th Cir. 2021).Show More and reheard the case en banc.⁴³43. Olean, 31 F.4th at 662.Show More Writing for a 9-2 majority, Judge Sandra Segal Ikuta rejected the “argument that Rule 23 does not permit the certification of a class that potentially includes more than a de minimis number of uninjured class members.”⁴⁴44. Id. at 669.Show More The panel conceded that “[w]hen individualized questions relate to the injury status of class members, Rule 23(b)(3) requires that the court determine whether individualized inquiries about such matters would predominate over common questions.”⁴⁵45. Id. at 668.Show More But any numerical rule would go too far. First, the court analogized classes with uninjured plaintiffs to class actions that require individual proof of damages.⁴⁶46. Id. at 668–69.Show More Both the Ninth Circuit⁴⁷47. See, e.g., Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1155 (9th Cir. 2016) (“Our precedent is well settled on this point. . . . [T]he need for individualized findings as to the amount of damages does not defeat class certification.”); Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975) (“The amount of damages is invariably an individual question and does not defeat class action treatment.”).Show More and Supreme Court⁴⁸48. Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453–54 (2016) (citing Wright & Miller, supra note 8, § 1778) (noting that individual questions like damages and affirmative defenses do not defeat predomination).Show More permit district courts to certify classes despite the need for individualized damages assessments at trial, “a conclusion implicitly based on the determination that such individualized issues do not predominate over common ones.”⁴⁹49. Olean, 31 F.4th at 669.Show More Second, the majority determined a de minimis rule to be inconsistent with Rule 23’s text, “which requires only that the district court determine after rigorous analysis whether the common question predominates over any individual questions, including individualized questions about injury or entitlement to damages.”⁵⁰50. Id. (citing Fed. R. Civ. P. 23(b)(3)).Show More Rule 23(b)(3)’s general language points towards decisionmaking on a “case-by-case basis, rather than . . . a per se rule.”⁵¹51. Id. at 669 n.13. The court also rejected the dissent’s policy arguments as atextual. “[W]e are bound to apply Rule 23(b)(3) as written, regardless of policy preferences.” Id.Show More Finally, the panel asserted that a district court “is in the best position to determine whether individualized questions” predominate over common ones.⁵²52. Id. at 669. Show More The opinion abandoned the previous panel’s strong justifications for this position, stating only that the abuse of discretion standard permits district courts to rule within a “wide range of permissible outcomes.”⁵³53. Id. (quoting Hung Lam v. City of San Jose, 869 F.3d 1077, 1084 (9th Cir. 2017) (quoting Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010))).Show More However, the en banc panel also noted the presence of uninjured class members may indicate the class is fatally overbroad, an issue a district court may resolve sua sponte with its inherent authority to manage the class action.⁵⁴54. See id. at 669 n.14 (“[A] court must consider whether the possible presence of uninjured class members means that the class definition is fatally overbroad.”); see also id. at 666 (“In such a case, the court may redefine the overbroad class to include only those members who can rely on the same body of common evidence to establish the common issue.”); Tobias Barrington Wolff, Discretion in Class Certification, 162 U. Pa. L. Rev. 1897, 1925 (2014) (“[T]he discretionary power that federal courts possess to reshape the boundaries and composition of the class is continuous with their power to decide whether to certify at all.”).Show More

The court then addressed the “central questions on appeal[:] . . . whether the expert evidence presented by the DPPs is capable of resolving this issue ‘in one stroke;’ and whether this common question predominates over any individualized inquiry.”⁵⁵55. Olean, 31 F.4th at 670 (citation omitted).Show More It found the district court did not abuse its discretion in concluding so.⁵⁶56. Id. at 670.Show More The majority rigorously analyzed both Dr. Mangum’s and Dr. Johnson’s reports and the district court’s handling of the expert’s disagreements.⁵⁷57. Id. at 670–77.Show More The en banc panel held that the district court appropriately addressed Dr. Johnson’s arguments and considered unrebutted record evidence, such as prior guilty pleas.⁵⁸58. Id. at 676. For more detail on the arguments made by both experts, see supra notes 26–33 and accompanying text.Show More The trial court’s recognition that Dr. Johnson’s arguments may prove persuasive at trial did not detract from its ultimate conclusion that “Dr. Mangum’s evidence was capable of showing class-wide impact.”⁵⁹59. Id. at 676.Show More At bottom, “‘each class member could have relied on [the plaintiffs’ evidence] to establish liability if he or she had brought an individual action,’ and the evidence ‘could have sustained a reasonable jury finding’ on the merits of a common question.’”⁶⁰60. Id. at 667 (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 455 (2016)) (alterations in original).Show More

The court then rejected the Tuna Suppliers’ primary arguments. Their main argument was that the regression model used averaging assumptions to “paper over” or mask the individual differences in class members’ bargaining power and negotiation tactics.⁶¹61. Id. at 677.Show More The court affirmed that regressions models using averaging assumptions are not inherently suspect but rather a commonly used econometric tool.⁶²62. Id.Show More Then, the majority rejected the Tuna Suppliers’ attempt to establish a fatal dissimilarity between Plaintiffs. Even if some DPPs negotiated their tuna prices with greater bargaining power than that of their peers, a conspiracy would logically and plausibly impact all purchasers by inflating the baseline for price negotiations.⁶³63. Id. at 677–78 (quoting In re Urethane Antitrust Litig., 768 F.3d 1245, 1254–55 (10th Cir. 2014)).Show More The court noted Dr. Mangum concluded the largest retailers—those that should have the most bargaining power, such as Wal-Mart—still paid supracompetitive prices.⁶⁴64. Id. at 678.Show More At most, the Tuna Suppliers’ argument suggested DPPs have different damages. But, “[w]hile individualized differences among the overcharges imposed on each purchaser may require a court to determine damages on an individualized basis, . . . such a task would not undermine the regression model’s ability to provide evidence of common impact.”⁶⁵65. Id. at 679. The majority reiterated that individualized damages do not threaten predominance. Id.Show More With respect to impact, all DPPs were similarly situated.

Finally, the court dismissed the Tuna Suppliers’ complaint that the district court refused to resolve the parties’ dispute on the number of uninjured class members. The majority first clarified the Tuna Suppliers’ argument was premised on a misreading of Dr. Johnson’s report.⁶⁶66. Id. at 680. The Tuna Suppliers read Dr. Johnson’s report to suggest twenty-eight percent of the DPP class was uninjured. Id. However, Dr. Johnson’s test was only an attempt to undermine the confidence in Dr. Mangum’s model because it did not produce statistically significant results. Id. The court held the statistic did not support the Tuna Suppliers’ underlying claim. Id. The district court resolved this dispute as well. Id. at 681 (“[T]he district court determined that Dr. Mangum’s pooled regression model was capable of showing that the DPP class members suffered antitrust impact on a class-wide basis, notwithstanding Dr. Johnson’s critique.”).Show More Then, the opinion confirmed neither expert’s report raised individual inquiries into the class members’ injuries. The trial court already concluded each DPP’s bargaining power was immaterial to a finding of common price impact, and the Tuna Suppliers provided no other factual or legal grounds to distinguish between individual class members.⁶⁷67. Id. at 681 (“The district court fulfilled its obligation to resolve the disputes raised by the parties in order to satisfy itself that the evidence proves the prerequisites for Rule 23(b)(3), which is that the evidence was capable of showing that the DPPs suffered antitrust impact on a class-wide basis.”); see also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 622–23 (1997) (“The predominance requirement . . . trains on the legal or factual questions that qualify each class member’s case as a genuine controversy . . . .”).Show More Thus, each class member was similarly situated. In other words, evidence relevant to one class member would be relevant to them all. The Tuna Suppliers’ remaining arguments simply attacked the expert report’s persuasiveness, a determination for the jury at trial.⁶⁸68. Olean, 31 F.4th at 681.Show More

If the jury found that Dr. Mangum’s model was reliable, then the DPPs would have succeeded in showing antitrust impact on a class-wide basis, an element of their antitrust claim. On the other hand, if the jury were persuaded by Dr. Johnson’s critique, the jury could conclude that the DPPs had failed to prove antitrust impact on a class-wide basis.⁶⁹69. Id.Show More

Judge Kenneth K. Lee dissented.⁷⁰70. The majority’s opinion briefly addressed the CFP and EPP classes in its conclusion. The en banc panel held the district court did not abuse its discretion in certifying both classes. Id.Show More He first stressed the importance of a rigorous analysis at class certification to prevent in terrorem settlements.⁷¹71. Id. at 691 (Lee, J., dissenting) (“‘[W]hen damages allegedly owed to tens of thousands of potential claimants are aggregated and decided at once, the risk of an error will often become unacceptable. Faced with even a small chance of devastating loss, defendants will be pressured into settling questionable claims.’” (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 350 (2011))).Show More Next, he argued the district court did not resolve the dueling experts’ opinions on the presence of uninjured class member, asserting class certification demands the moving party prove Rule 23’s prerequisites by a preponderance of the evidence after a rigorous analysis.⁷²72. Id. at 687–88.Show More The dissent took issue with the majority’s attempt to “wave[] away” the differences in DPPs’ “negotiating power,” which would have permitted certain retailers to extract rebates or promotional concessions and thereby push tuna prices below competitive levels.⁷³73. Id. at 690.Show More At the very least, according to the dissent, the “only way” to “find out if Wal-Mart and other major retailers suffered any injury” would be to conduct a “highly individualized analys[is]” that defeats predominance.⁷⁴74. Id.Show More Finally, the dissent stressed that the court’s rejection of a de minimis rule would generate a circuit split.⁷⁵75. Id. at 691. However, the majority denies the creation of a circuit split. Id. at 669 n.13 (arguing neither case adopted a per se rule but held that based on the particular facts in those disputes, the “need to identify uninjured class members” would “render an adjudication unmanageable” (quoting In re Asacol Antitrust Litig., 907 F.3d 42, 53–54 (1st Cir. 2018))).Show More

According to the dissent, both the D.C. and First Circuits settled on a de minimis rule. The D.C. Circuit stated “5% to 6% constitutes the outer limits of a de minimis number” of uninjured class members,⁷⁶76. Id. at 692 (quoting In re Rail Freight Fuel Surcharge Antitrust Litig. (Rail Freight II), 934 F.3d 619, 625 (D.C. Cir. 2019)).Show More and the “First Circuit suggested that ‘around 10%’ of uninjured class members marks the de minimis border.”⁷⁷77. Id. (quoting Asacol, 907 F.3d at 47).Show More But, the Ninth Circuit majority properly denied the creation of a circuit split.⁷⁸78. Id. at 699 n.13.Show More Both sister circuits defined de minimis “in functional terms”⁷⁹79. Asacol, 907 F.3d at 54 (quoting In re Nexium Antitrust Litig., 777 F.3d 9, 30 (1st Cir. 2015)).Show More and concluded that the need to identify uninjured class members precluded predominance based on the “nuanced”⁸⁰80. Rail Freight II, 934 F.3d at 625.Show More and “particular facts of the cases before them.”⁸¹81. Olean, 31 F.4th at 699 n.13.Show More While the D.C. and First Circuits contemplated per se boundaries, their opinions ultimately hinged on whether the trial court could employ a “mechanism that can manageably remove uninjured persons from the class in a manner that protects the parties’ rights.”⁸²82. Asacol, 907 F.3d at 54; see Rail Freight II, 934 F.3d at 625 (holding the district court did not abuse its discretion in denying class certification where the plaintiffs “proposed no ‘further way’—short of full-blown, individual trials—‘to reduce this number and segregate the uninjured from the truly injured’” (citation omitted)); see also Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 462 (2016) (Roberts, C.J., concurring) (suggesting the class jury verdict should not stand if the district court cannot “fashion a method for awarding damages only to those class members who suffered an actual injury”).Show More Thus, the en banc panel’s focus on discretion largely accorded with their sister circuits’ case law.

III. Implications of the Ruling

A. Predominance as Efficient Aggregation

In rejecting the de minimis standard, the Ninth Circuit adhered to Rule 23’s broad textual commands to advance the class mechanism’s driving goal of judicial economy.⁸³83. See Samuel Issacharoff, Rule 23 and the Triumph of Experience, 84 Duke L.J. 161, 168 (2021) (arguing a “simple ‘light touch’ textual reading shows that the words [of Rule 23] point to concerns about the overall administration of justice, measured in terms of the substantive results of aggregate litigation rather than the nature of the rights-holder”).Show More Rule 23(b)(3) asks whether common questions predominate over individual ones, making no statement on specific characteristics⁸⁴84. Compare Fed. R. Civ. P. 23(b)(3) (defining predominance generally), with id. 23(b)(3)(A)–(D) (detailing the four factors courts must consult to conclude a class action is superior to other adjudicatory methods).Show More that influence such an analysis.⁸⁵85. Standard canons of statutory construction counsel against limiting general language. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 101 (2012) (“Without some indication to the contrary, general words . . . are to be accorded their full and fair scope. They are not to be arbitrarily limited.”).Show More Without specific guidance, the Supreme Court has been hesitant to adopt hard rules based on general language.⁸⁶86. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (noting that while the Advisory Committee for Rule 23’s 1966 revision cautioned mass accidents are “ordinarily not appropriate” for class litigation, “the text of the Rule does not categorically exclude mass tort cases from class certification, and District Courts, since the late 1970’s, have been certifying such cases in increasing number”); Goldman Sachs Grp., Inc. v. Ark. Tchr. Ret. Sys., 141 S. Ct. 1951, 1960 (2021) (addressing “whether the generic nature of a misrepresentation is relevant to price impact” findings at class certification and concluding “courts ‘should be open to all probative evidence on that question—qualitative as well as quantitative—aided by a good dose of common sense’” (citation omitted)).Show More For instance, in Tyson Foods v. Bouaphakeo, the Supreme Court rejected a “broad” and “categorical” rule forbidding plaintiffs from using representative evidence to establish predominance, holding such a rule would make “little sense” because evidence’s permissibility turns on a specific case’s cause of action.⁸⁷87. Tyson Foods, 577 U.S. at 454–55.Show More Rule 23’s purposefully general language⁸⁸88. See Samuel Issacharoff & Peter Zimroth, An Oral History of Rule 23: An Interview with Professor Arthur Miller, 74 N.Y.U. Ann. Surv. Am. L. 105, 117 (2018) (quoting Professor Miller, noting predominance and superiority were meant to ensure (b)(3) classes were a “true efficiency economy win,” but also confirming those “[w]ords . . . were like silly putty that could be molded in any way by a judge in a particular context”).Show More affords trial courts ample latitude to certify, or decline to certify, class proposals based on whether aggregation may materially advance the litigation before them in a fair and efficient manner.⁸⁹89. See Amchem, 521 U.S. at 615 (stating that predominance and superiority were added for efficiency and fairness, among other considerations); Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment (“It is only where this predominance exists that economies can be achieved by means of the class-action device.”); see also Am. L. Inst., Principles of the Law of Aggregate Litigation § 2.02(a)(1) (2010) (authorizing aggregate treatment where such adjudication would “materially advance” litigation “in a manner . . . so as to generate significant judicial efficiencies”).Show More Though the dissent attempted to interpret a de minimis rule as enforcing that policy, the dissenting judges provided no assurance such a rule best economizes judicial procedure.⁹⁰90. Olean, 31 F.4th at 692 (Lee, J., dissenting) (claiming that “allowing more than a de minimis number of uninjured class members tilts the playing field in favor of plaintiffs”).Show More Instead, the dissent erred on the side of preventing “oversized classes,”⁹¹91. Id.Show More but the Rules Committee added (b)(3) certification in the 1966 revision precisely to help vindicate the rights of people “who individually would be without effective strength to bring their opponents into court at all.”⁹²92. Amchem, 521 U.S. at 617 (quoting Benjamin Kaplan, A Prefatory Note, 10 B.C. Ind. & Com. L. Rev. 497, 497 (1969)) (discussing how class actions can be a tool for those with smaller damages claims to still obtain relief).Show More The majority’s critical move is to train the predominance inquiry on how a judge will resolve the issue of uninjured class members at trial. After all, “Rule 23 certification is at bottom a trial management decision; it simply allows the class litigation to continue under the district court’s ongoing supervision.”⁹³93. Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC, 993 F.3d 774, 796 (9th Cir. 2021) (Hurwitz, J., concurring in part and dissenting in part), aff’d on reh’g en banc, 31 F.4th 651 (9th Cir. 2022).Show More So long as a district court can fairly and efficiently “winnow out” a “non-injured subset of class members,”⁹⁴94. Olean, 31 F.4th at 669.Show More common questions should predominate, even if the number of uninjured plaintiffs or percentage of the class appears to be more than de minimis.⁹⁵95. The Supreme Court recently concluded that 6,332 class members, in a class of 8,185 plaintiffs, did not suffer an injury in fact. TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214 (2021). The Court remanded on the issue of typicality but made no mention of predominance. Id. Even though the Court concluded most of the class was uninjured, neither the Supreme Court nor the district court had a difficult time separating class members based on the injury-defining characteristic of whether TransUnion provided their tainted credit reports to third parties.Show More

B. Discretion and Judicial Experience

Additionally, Olean solidifies the dominance of discretion at class certification, resulting from an accumulation of judicial experience with complex multi-district and class adjudications. As Professors Samuel Issacharoff and Arthur R. Miller explain, the past decade has seen judges certify classes that “would have given the Rules adopters grave pause.”⁹⁶96. See Issacharoff, supra note 82, at 163 (citing Issacharoff & Zimroth, supra note 87, at 125) (recounting his interview with Professor Arthur R. Miller and discussing how judicial experience influenced the settlement class’s development, culminating with In re National Football League Players Concussion Injury Litigation, 821 F.3d 410 (3d Cir. 2016)).Show More Circuit courts, and even specific judges, that once viewed novel class proposals with skepticism abandoned their previous positions to embrace efficient aggregation. The rise of Rule 23(c)(4) issue classes provides an apt example. In the 1990s, a series of decisions erected barriers to certifying issue classes. Judge Richard Posner, writing for a Seventh Circuit panel in In re Rhone–Poulenc Rorer Inc.,⁹⁷97. 51 F.3d 1293 (7th Cir. 1995).Show More rejected an attempt to certify a class only on a negligence element because the “desire to experiment with an innovative procedure” would possibly infringe upon the defendants’ Seventh Amendment rights to avoid re-examination of a jury’s decision.⁹⁸98. Id. at 1297, 1303.Show More Similarly, the Fifth Circuit held a district court may not certify an issue class unless the “cause of action, as a whole, . . . satisf[ies] the predominance requirement.”⁹⁹99. Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir. 1996).Show More But these barriers did not last long. Seven years after Rhone–Poulenc, Judge Posner upheld an issue class, stating issue class treatment “is appropriate and is permitted by Rule 23 when the judicial economy from consolidation of separate claims outweighs any concern with possible inaccuracies from their being lumped together in a single proceeding.”¹⁰⁰100. Mejdrech v. Met-Coil Sys. Corp., 319 F.3d 910, 911 (7th Cir. 2003).Show More Posner made no mention of the Seventh Amendment but focused entirely on efficiency and accuracy. The Fifth Circuit also moved past the narrow view of issue class certification.¹⁰¹101. See Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 603 (5th Cir. 2006) (noting trial bifurcation might eliminate “the obstacles preventing a finding of predominance”).Show More The majority of circuit courts now take the broad view¹⁰²102. Russell v. Educ. Comm’n for Foreign Med. Graduates, 15 F.4th 259, 273–74, 273 n.6 (3d Cir. 2021) (writing that “the Second, Fourth, Sixth, Seventh, and Ninth Circuits” have adopted this view and that “[u]nder the broad view, courts apply the Rule 23(b)(3) predominance and superiority prongs after common issues have been identified for class treatment”), cert. denied, 142 S. Ct. 2706 (2022).Show More and have eliminated the strict barriers that once completely precluded issue certification, reducing them into pieces of a multi-factor test that outline a district court’s wide discretion.¹⁰³103. Id. at 268 (listing nine factors that indicate when issue certification may be appropriate, including whether bifurcated proceedings risk re-examining a jury’s initial findings) cf. Issacharoff, supra note 82, at 176 (arguing the Third Circuit’s prior experience with class settlements allowed them to “give independent weight to the need for closure” in future cases).Show More But, unlike the issue class’s story, the Ninth Circuit correctly resolved the dilemma of uninjured class members upon first impression. Rather than calcify class adjudication through a strict reading of Rule 23, the en banc panel left the decision to the district court’s sound discretion, acknowledging that the trial judge is in the best position to expend judicial resources efficiently and fairly.¹⁰⁴104. Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC, 31 F.4th 651, 669 (9th Cir. 2022) (en banc). Show More

C. Predominance as Relevance

1. The Ninth Circuit’s Unnecessary Holding

Nevertheless, the Ninth Circuit should never have addressed this legal issue because the court’s conclusions were “clearly unnecessary to its resolution of the case, d[id] not affect its outcome in any manner, and constitute[d] an advisory opinion.”¹⁰⁵105. Spears v. Stewart, 283 F.3d 992, 998–99 (9th Cir. 2002) (Reinhardt, J., dissenting from denial of rehearing en banc) The Court has shared similar concerns. See Loc. 144 Nursing Home Pension Fund v. Demisay, 508 U.S. 581, 592 n.5 (1993) (describing dicta as language “uninvited, unargued, and unnecessary to the Court’s holdings”).Show More Simply put, if a district court understood each class member to be similarly situated, it would not need to confront questions of how to handle a class containing both injured and uninjured class members.¹⁰⁶106. See Olean, 31 F.4th at 681 (noting that a jury’s findings as to the persuasiveness of Dr. Mangum’s report would not give rise to any individual issues regarding a class member’s injury status).Show More Even here, the district court considered whether a de minimis standard would impact the case but did not develop the issue because it concluded Dr. Mangum’s report could establish class-wide impact.¹⁰⁷107. See In re Packaged Seafood Prods. Antitrust Litig., 332 F.R.D. 308, 323–24, 329 (S.D. Cal. 2019), vacated and remanded sub nom. Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC, 993 F.3d 774 (9th Cir. 2021), aff’d on reh’g en banc, 31 F.4th 651 (9th Cir. 2022).Show More The en banc panel unequivocally affirmed that conclusion.¹⁰⁸108. Olean, 31 F.4th at 685.Show More And, the Ninth Circuit’s refusal to resolve the related issue of whether each class member must prove Article III standing at certification renders the decision to address the de minimis question paradoxical.¹⁰⁹109. See id. at 682 (“We need not consider the Tuna Suppliers’ argument that the possible presence of a large number of uninjured class members raises an Article III issue, because . . . the district court concluded that the DPPs’ evidence was capable of establishing antitrust impact on a class-wide basis.”).Show More It ultimately appears the court “reached out to address a novel, complex, and important issue in an advisory opinion.”¹¹⁰110. Spears, 283 F.3d at 1004.Show More

2. Distinguishing Between Evidence’s Relevance and Sufficiency to Satisfy Predominance

Still, in addressing the predominance issues related to the parties’ experts, the Ninth Circuit navigated a confusing inquiry: whether the plaintiff must preliminarily prove antitrust impact or simply demonstrate that antitrust impact is capable of class-wide proof.¹¹¹111. See Nagareda et al., supra note 5, at 334 (discussing the thin line between the two different conceptions of the moving party’s burden at class certification).Show More The Supreme Court in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds clearly takes the latter side: Moving parties need not establish that they “will win the fray” but only that the class is cohesive enough to prompt predominating common questions of law or fact.¹¹²112. 568 U.S. 455, 460 (2013).Show More Merits questions may overlap with the inquiry into whether the class is cohesive. In that situation, courts must engage in the trickier determination of which ancillary issues—for instance, factual questions about the nature of a product market¹¹³113. See, e.g., In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 316, 325 (3d Cir. 2008) (remanding and requiring the district court to resolve experts’ disputes as to hydrogen peroxide’s fungibility in the relevant market before certifying that plaintiffs can prove antitrust impact through common evidence).Show More or a defendant’s particular business practices¹¹⁴114. See, e.g., Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983–84 (9th Cir. 2011) (mandating the district court resolve factual disputes regarding whether local or upper management promoted individuals because plaintiffs would be unlikely to establish discrimination with common evidence if local managers promoted employees).Show More—bear on the predominance inquiry.¹¹⁵115. Courts routinely engage in similar determinations when they address preliminary evidentiary questions of conditional relevance. See Fed. R. Evid. 104(a)–(b) (directing the court to “decide any preliminary question about whether . . . evidence is admissible”). Courts must first decide if the proffered evidence’s relevance “depends on whether a fact exists” and, if so, preliminarily rule on the existence of that fact. Id. 104(b). Similarly at certification, a trial court must determine if the putative class’s cohesion depends on whether a fact exists and, if so, resolve the factual question by a preponderance of the evidence. See Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC, 31 F.4th 651, 665 (9th Cir. 2022) (en banc) (holding “plaintiffs must prove the facts necessary” to satisfy Rule 23’s prerequisites “by a preponderance of the evidence”); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351–52 (2011) (directing lower courts to “resolve preliminary matters” at class certification); see also Jonah B. Gelbach, The Triangle of Law and the Role of Evidence in Class Action Litigation, 165 U. Pa. L. Rev. 1807, 1820 & n.62 (2017) (arguing courts at class certification should resolve disputes over “auxiliary assumption[s] necessary for counterfactual evidence to be probative” for each class member through Rule 104’s framework).Show More

Olean presents such a case. To the dissent, every attack on Dr. Mangum’s report required the court’s attention because a jury might have believed Dr. Johnson’s argument that twenty-eight percent of the class was uninjured. But, the Ninth Circuit effectively distinguished between the Tuna Suppliers’ arguments that raised “fatal dissimilarit[ies]” and those that illustrated “fatal similarit[ies].”¹¹⁶116. Amgen, 568 U.S. at 470 (citing Nagareda, supra note 4, at 107).Show More Fatal dissimilarities are those differences between the class members that “make use of the class-action device inefficient or unfair” because each class member may require individualized proof:¹¹⁷117. Id.Show More Evidence would not be relevant to each class member.¹¹⁸118. Compare Wal-Mart, 564 U.S. at 356–57 (decertifying a class action because 1.5 million plaintiffs across thousands of stores managed by tens of thousands of managers were not similar enough for statistical regressions or sampling evidence to prove Wal-Mart discriminated against each plaintiff), with Amgen, 568 U.S. at 467 (holding proof of materiality is not needed at the certification stage because it is objective and applies to each member of the class), and Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 459 (2016) (holding each plaintiff could rely upon a single study to recover under the Fair Labor Standards Act because “each employee worked in the same facility, did similar work, and was paid under the same policy”).Show More The Tuna Suppliers only argued some plaintiffs were uninjured, and therefore dissimilar, because of their stronger bargaining power, but Dr. Mangum, the district court, and the Ninth Circuit adequately addressed and resolved the dispute on that ancillary issue.¹¹⁹119. See supra notes 60–64 and accompanying text (explaining how the Ninth Circuit concluded each plaintiff could establish antitrust injury with Dr. Mangum’s evidence).Show More In contrast, the district court refused to enter any findings on many of Dr. Johnson’s general critiques—e.g., Dr. Mangum used inferior cost data—because those addressed a similarity: Evidence would not be sufficient for every class member.¹²⁰120. See In re Asacol Antitrust Litig., 907 F.3d 42, 54 (1st Cir. 2018) (“[P]laintiffs point to no such substantive law that would make an opinion that ninety percent of class members were injured both admissible and sufficient to prove that any given individual class member was injured.”).Show More As the en banc aptly held, such a debate is best reserved for summary judgment and, ultimately, a jury.¹²¹121. Olean, 31 F.4th at 681.Show More

Conclusion

The Ninth Circuit’s decision to reject a de minimis standard for uninjured class members is another step in acknowledging Rule 23’s core purpose of and the trial court’s superior position in efficiently managing complex cases and controversies. The de minimis standard is a proxy for Rule 23’s textual commands at best and a hindrance to district courts saddled with overwhelming dockets and weary plaintiffs at worst. Though the en banc panel should not have reached the de minimis question, its opinion still provided important guidance for district courts struggling to evaluate ancillary predominance issues. By properly distinguishing between disputes over dissimilarities—relevancy issues a court must address at certification—and similarities—sufficiency debates best reserved for summary judgment or a jury—the court ensured Rule 23 continues to serve as an important tool to redress democratic theft and preserve increasingly strained judicial resources.