Download From Exclusivity to Concurrence

Early stage draft of November 20, 2008 (10:51am)
Please do not cite or quote without author’s permission. As you’ll see, I’ve not yet
completed the article – parts remain to be written. I apologize in advance for not
providing a final product.
FROM EXCLUSIVITY TO CONCURRENCE
Mark D. Rosen*
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I.
THE ANALYTICS OF CONCURRENCE, AND SOME EXAMPLES . . . . . . . . . . . . . . . . . . . . 7
A.
B.
C.
II.
THE HISTORICAL TRAJECTORY FROM EXCLUSIVITY TO CONCURRENCE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A.
B.
C.
D.
E.
III.
Original Jurisdiction of the Various Federal Courts: The Road from
Marbury to Ames . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Fact-Finding in Civil Adjudication: Of Juries, Judges, and Non-Article III
Adjudicative Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1. Juries and Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2. Juries and non-Article III Adjudicatory Tribunals . . 29
Adjudicatory Jurisdiction of Article III and non-Article III Courts
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Legislative Power: Congress and Agencies . . . . . . . . . . . . . . . . . . . 40
Some other Contexts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
HOW AND WHY CONCURRENCE IS CREATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
A.
B.
*
Definitions and Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Analytical Tools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1. Same-Effect versus Same-Source Concurrence . . . . 11
2. Non-Identicality. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3. Imperfect Overlap. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
The Pacificus-Helvidius Debates . . . . . . . . . . . . . . . . . . . . . . . . . 17
Mechanisms for Creating Concurrence . . . . . . . . . . . . . . . . . . . . .
1. Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Inherency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Inactivity and Initiative-Taking . . . . . . . . . . . . . . . . .
Reasons for Concurrence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. What The Courts Have Said . . . . . . . . . . . . . . . . . . .
45
45
45
46
49
49
Professor and Norman & Edna Freehling Scholar, Chicago-Kent College of Law, Illinois Institute of
Technology. I received outstanding comments from a faculty workshop at the Chicago-Kent College
of Law and additional helpful words from Allan Erbsen and Nancy Marder.
2.
5.
6.
a. Pragmatics and Past Practice . . . . . . . . . . . . . . . 49
b. Efficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Systematizing Concurrence’s Benefits . . . . . . . . . . . 55
a. Unforeseen Circumstances . . . . . . . . . . . . . . . . . . 55
b. Efficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
c. Works-Around . . . . . . . . . . . . . . . . . . . . . . . . . 55
1. Practical Barriers . . . . . . . . . . . . . . . 55
2. Inaction By Primarily Tasked Institution
. . . . . . . . . . . . . . . . . . . . . . . . . . . 55
3. Constitutional Barriers . . . . . . . . . . . 55
Synergies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Addressing Emergencies. . . . . . . . . . . . . . . . . . . . . . 56
IV.
NOT ALL OR NOTHING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
V.
METHODS FOR ADDRESSING CONFLICTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
A.
B.
C.
D.
VI.
Institution-Based Conflict-Resolution Principles . . . . . . . . . . . . . . .
Time-Based Conflict-Resolution Principles . . . . . . . . . . . . . . . . . .
Multi-factor Conflict-Resolution Principles . . . . . . . . . . . . . . . . . .
No-Sorting Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
57
57
57
58
THE BIG PICTURE: META-NARRATIVES AND CONSTITUTIONAL IMPLICATIONS
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
A.
B.
Meta-Narratives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Constitutional Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
INTRODUCTION
2
The same power cannot belong, in the whole to both departments, or be properly
so vested as to operate separately in each. Still more evident is it, that the same
specific function or act, cannot possibly belong to the two departments and be
separately exercisble by each . . . . A concurrent authority in two independent
departments, to perform the same function with respect to the same thing, would
be awkward in practice, as it is unnatural in theory.
James Madison, Second Helvidius Letter
James Madison penned the above words when analyzing what today
2
ALEXANDER HAMILTON & JAMES MADISON, THE PACIFICUS-HEVLIDIUS DEBATES OF 1793-1794:
TOWARD THE COMPLETION OF THE AMERICAN FOUNDING 68(MORTON J. FRISCH, ED.) (LIBERTY FUND
2007).
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3
would be called a “separation of powers” question. As this Article shows,
Madison’s basic intuition – that power that is specifically allocated by the
Constitution to one institution cannot be exercised by another – also features
prominently in discussions concerning the distribution of power as between
the federal government and states (vertical federalism) and the distribution of
power as between states (horizontal federalism). Indeed, the notion that
constitutional allocations of power are “exclusively” held by the specified
institution to which the power has been granted, and cannot reside
“concurrently” in more than one governmental institution, is found in
contexts apart from separation of powers and federalism – for instance,
regarding the Seventh Amendment’s distribution of power between jury and
judge.
Perhaps nowhere else has Madison’s view of the basic architecture of
American constitutionalism proven to be so wrong. This Article catalogues
and analyzes the many significant respects in which contemporary American
government deviates from Madison’s assumption of what I shall call
“exclusivity” and instead adopts what Madison believes to be the “unnatural”
and “awkward” state of “concurrence.”
As regards the distribution of national powers, just consider the
following few examples. Although Article II, Section 2 provides that the
president “shall have Power to grant Reprieves and Pardons,” the Court long
has held that Congress has the power to grant amnesties that, the Court has
acknowledged, are functionally equivalent to pardons. Similarly, while the
Constitution specifies only one mechanism by which the federal government
can create international agreements – treaties – most of this country’s
contemporary international obligations have been created outside of the
treaty-making process, through so-called “sole executive agreements” and
“joint congressional agreements.”
Concurrence exists outside the context of separation of powers. As
regards “vertical” federalism – the federal government’s relation to the states
– though Congress has the power to regulate interstate commerce, states also
have power to regulate interstate commerce. In respect of “horizontal”
federalism – the relation among states – it quite frequently is the case that
3
4
5
6
7
8
3
The question concerned the constitutionality of President Washington’s Neutrality Proclamation of 1793:
did the President have the power to interpret a mutual defense treaty to determine whether the United
States was obligated to go to war to assist France, or did Congress alone have the power to do so on
account of its constitutionally granted power to declare war? I discuss Madison’s views as well as those
of his interlocutor, Alexander Hamilton, infra at Part I.C. For an excellent discussion, see H. JEFFERSON
POWELL, THE PRESIDENT’S AUTHORITY OVER FOREIGN AFFAIRS (2002).
4
U.S. CONST. ART. II, §2, cl. 1.
5
See Brown v. Walker, 161 U.S. 591, 601 (1896) (recognizing this and noting that the difference between
pardons and amnesties is “one rather of philological interest than of legal importance”).
6
See U.S. CONST. ART. II, §2, cl. 2.
7
See infra Part xx.
8
See Cooley v. Board of Wardens of the Port of Philadelphia, 53 U.S. 299, 318-19 (1851).
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FROM EXCLUSIVITY TO CONCURRENCE
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more than one state has the power to regulate a given person, transaction, or
occurrence.
And there are yet other contexts – beyond separation of powers and
federalism – where the Constitution also has been understood as allocating
power concurrently. Though the Seventh Amendment allocates adjudicatory
fact-finding power to the jury, the jury is not the sole institution with this
power: administrative law judges in Article I courts find facts in the very same
contests where juries would have the constitutional power to fact-find, and
Article III judges engage in fact-finding of the sort performed by juries when
they decide motions for summary judgment and motions to grant judgments
notwithstanding the verdict. To provide one last example, although the power
to sue government contractors belongs to the executive branch, it does not
rest exclusively there: qui tam statutes empower private citizens to sue, on
behalf of the United States, anyone who has submitted a false claim to the
federal government. The power to sue government contractors to recover
false claims accordingly rests with both the federal executive and private
citizens.
Though commentators focusing on discrete doctrines sometimes have
recognized that governmental powers sometimes overlap, this is the first
Article to comprehensively analyze the phenomenon of concurrence. Because
the Constitution spends much of its time allocating power to specific
institutions, the question of whether the power allocated is exclusively held by
a single institution or instead is concurrently held by two or more institutions
is pervasive.
This Article’s analysis of the choice between exclusivity and
concurrence across multiple doctrinal contexts uncovers multiple recurring
patterns that, it is hoped, can lead to a more informed consideration in the
future of the choice between exclusivity and concurrence. This is important
because many contested contemporary issues implicate, at least in part, the
choice between exclusivity and concurrence. Here are some examples: though
the Constitution vests the power to declare war with Congress, does the
President have a similar power? What is the relation between the Congress’
powers to regulate the land and naval forces and the President’s Commander9
10
11
12
13
9
See Allstate Ins. Co. v. Hague, 449 U.S. 302, 307 (1981); Mark D. Rosen, “Hard” or “Soft” Pluralism?:
Positive, Normative, and Institutional Considerations of States’ Extraterritorial Powers, 51 ST. LOUIS L. J. 713, 72930 (2007).
10
See 31 U.S.C. §3730, discussed infra Part xx.
11
Likewise, the posse comitatus doctrines allowed state and federal executive officials to compel private
citizens to assist in the making of arrests and in otherwise executing a wide range of state and federal laws,
exemplifying yet another instance of coordinacy: executive power that is jointly exercised by the executive
branch and private sector.
12
See. e.g., Caleb Nelson, Preemption, 86 VA. L. REV. 225, 225 (2000)(“nearly every federal statute addresses
an area in which the states also have authority to legislate”); See, e.g., Lee H. Rosenthal, Back in the Court’s
Court, 74 UMKC L.R. 687 (2006) (noting that problems arising from asbestos can be handled either by
legislatures or courts).
13
See Michael D. Ramsey, Presidential Declarations of War, 37 U.C. DAVIS L. REV. 321 (2003).
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FROM EXCLUSIVITY TO CONCURRENCE
5
in-Chief powers? Are there mechanisms outside of Article V by which the
Constitution in effect can be amended?
The Article is in six parts (some that are quite short!). Part One
formally defines concurrence and exclusivity and provides six contemporary
instances of concurrence. Part One explains how concurrence differs from
the familiar concept of “checks and balance,” and then introduces several
analytical tools that facilitate the analysis that follows in the rest of the Article.
Part One concludes by closely analyzing the complete argument for exclusivity
that James Madison articulated in his famed Second Helvedius Letter, from
which this Article’s foreword quotes, as well as Alexander Hamilton’s counterargument in support of concurrence.
The next four parts identify and analyze recurring patterns that emerge
from a cross-doctrinal analysis. Part Two uncovers a stunning historical
pattern: virtually all contemporary contexts where power is understood to be
held concurrently amount to renunciations of the Court’s original view,
consistent with Madison’s, that the power was held exclusively by only one
institution. Part Two documents the doctrinal process by which the Supreme
Court has come to accept concurrence in three different doctrinal contexts.
It shows that, in so doing, the Supreme Court has rejected categorical
application of the principle of expressio unius est exclusio alterius.
Part Three examines the how’s and why’s behind the switch from
exclusivity to concurrence. Part Three first uncovers three recurring
mechanisms by which concurrence is generated. Notably, the initiative for
shifting from exclusivity to concurrence mostly has originated outside the
judiciary – not terribly surprising in light of Part Two’s finding that courts
typically start with exclusivist assumptions. Part Three also explores the
reasons for the shift from exclusivity to concurrence, identifying several
recurring benefits of concurrence.
Part Four points out that the choice between exclusivity and
concurrence is not “all or nothing.” There are many contexts where
constitutionally allocated power is universally recognized to be exclusively held
by a single institution. Further, there are some contexts where there has been
a “counter-trajectory” from concurrence back to exclusivism. Moreover, even
where there is concurrence, there typically are limits on the degree to which
power can be shared among two or more institutions. Taken together, Part
Five suggests that the choice between exclusivity and concurrence has not
been made on the basis of a trans-substantive or categorical principle, but
instead has been made on the basis of context-specific analyses. Part Five also
suggests that “slippery slope” concerns that opening the door to concurrence
could lead to complete chaos are overblown.
Part Five addresses one of the great anxieties that is created by
14
15
14
Ackerman; Reva Segal, ERA, Cal L. Rev.
15
For an example of such an anxiety in a context relevant to concurrence, see See Larry Alexander and
Saikrishna Prakash, Delegation Really Running Riot, 93 VA. L. REV. 1035 (2007).
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concurrently held power: the prospect of conflict among the multiple
institutions. The specter of conflict sometimes is invoked as a trump card
against the conclusion that power is concurrently held. Part Five suggests that
this overstates the concern by showing the multiple tools for managing
conflict that are found in American constitutional law. Part Five argues that
the potential of conflict is a cost of concurrence that appropriately is taken
account in weighing the desirability of concurrence in a particular context, but
that, at a general matter at least, it should not serve as the sole basis for
deciding against concurrence.
Part Six, the Article’s final part, considers what are the appropriate
lessons to be drawn from what the Article has uncovered. It first identifies
four possible meta-narratives to describe the trajectory towards concurrence
that it uncovers: (1) a healthy adaptation to changing times and needs, (2) the
Court’s “law-on-the-books” catching up with the “law-in-action,” (3) the
natural process of entropy, or (4) the systematic extension of one set of
institutions at the expense of other institutions. Of these possibilities, the
fourth might require elaboration to be comprehensible at this point: virtually
all instances of concurrence have made it easier for federal institutions to
create law, thereby extending federal power at the expense of states and the
private sector. As we’ll see, all these narratives fit the action to a not
inconsiderable degree.
The Article then considers the constitutional implications of its
findings. The mere fact that concurrence is widespread does not on its own
mean, of course, that it is constitutionally legitimate. Not surprisingly, what
constitutional lessons the reader draws will turn on her prior jurisprudential
commitments. To be sure, this Article is not the place to engage in a debate
about such foundational questions of whether the Constitution is
appropriately construed on the basis of (solely) the Founders’ understanding,
what a reasonable member of the Founding generation would have thought,
text, pragmatics, history, or something else. Fortunately, though, this Article’s
findings should be relevant to adherents of all these approaches to
constitutional interpretation.
To begin, understanding an underappreciated yet widespread
characteristic of contemporary constitutional doctrine should be of value to
all constitutionalists. Beyond this, some, but not all, instances of
contemporary concurrence will be troublesome to Originalists. Textualists will
not necessarily be bothered because, as this Article shows, there are
surprisingly strong textual arguments to support most if not all instances of
contemporary concurrence. Those who favor any of the multiple schools of
dynamic constitutional interpretation will be intrigued to find the types of
pragmatic considerations that have driven the large-scale migration from
exclusivity to concurrence. The fact that concurrence typically has not been
initiated by the judiciary underscores, among other things, the role that
governmental actors apart from courts play in determining what practices are
deemed consistent with our Constitution. Finally, adherents of almost all
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schools of constitutional interpretation may be encouraged to forthrightly
examine the often unstated starting assumption of exclusivity that appears to
be shared by many lawyers and that is reflected in such aspects of our legal
culture as the maxim of expressio unius est exclusio alterius.
I.
THE ANALYTICS OF CONCURRENCE, AND SOME EXAMPLES
A. Definitions and Examples. “Concurrence” refers to the situation
where a given activity “x” can be performed by more than one institution
despite the fact that the Constitution (appears to) place the power to do “x”
in one specified institution. “Exclusivity” refers to the situation where a given
activity “x” can be performed by only a single institution. By “institution,” I
mean the different entities that are implicitly adopted by the Constitution: for
example, the House of Representatives, the Senate, the Supreme Court,
inferior article III courts, the President, states, juries, and citizens (the
“People”). My definition of institution also embraces novel institutions not
identified in the Constitution, such as administrative agencies and
supranational tribunals.
It should be apparent from the above definition that “concurrence”
is a different concept from “checks and balances.” Concurrence refers to the
situation where two (or more) different each have the power to undertake “x.”
“Checks and balances,” by contrast, refers to the situation where two (or
more) institutions have distinctive roles in completing act “x.” So, for
instance, the President’s veto power is an aspect of checks and balances, but
is not an example of “concurrence.” The same is true of the Senate’s role in
approving appointments of officers.
What follows – by way of description, not justification – are some
examples of contemporary concurrence. That is to say, the fact that I discuss
an example of concurrence here, and elsewhere in the Article, should not be
understood as a normative endorsement of the arrangement. Having a clear
understanding of current institutional arrangements, it seems to me, is useful
if not essential for adherents of all schools of constitutional interpretation.
What follows in the bulk of this Article, accordingly, is a description and
analysis of wide-ranging phenomenon that has occurred. I discuss the
normative constitutional implications of this wide-ranging practice in Part Six.
Here, then, are six contemporary examples of concurrence:
16
1.
The Constitution states that “[i]n all cases affecting
Ambassadors . . . and those in which a State shall be
Party, the supreme Court shall have original
jurisdiction.”
Though the Supreme Court indeed has
original jurisdiction in these cases, inferior district courts also
17
16
Madison draws a similar distinction in the Second Hevlidius letter.
17
U.S. CONST. ART. III, §2, CL. 2 (emphasis supplied).
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have original jurisdiction over cases brought by ambassadors
and in many cases brought by states.
Accordingly,
notwithstanding the Constitution’s allocation of original jurisdiction over
cases affected Ambassadors and in which States are a party to the
Supreme Court, district courts have concurrent authority with the
Supreme Court to exercise original jurisdiction over such cases.
18
2.
Article III of the Constitution states that “[t]he judicial
power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish.”
Today, however, a significant amount of adjudication occurs
in non-Article III federal tribunals. For example, contract
and property claims against the United States are heard in a
non-Article III federal tribunal known as the Court of
Claims, and administrative agencies can hear disputes
between private parties as to the compensation owed an
injured maritime worker. These non-Article III institutions
can oversee these adjudications despite the fact that contract
and property claims against the United States also fall within
federal district courts’ jurisdiction and notwithstanding the
fact that federal district courts have “long handled maritime
personal injury claims . . .” Indeed, as Professor Fallon has
observed, “virtually all of the kinds of cases that are heard in
article III courts, including criminal cases and civil disputes
arising under the Constitution, laws, and treaties of the Unites
States” today can be heard in non-Article III federal courts.
19
20
21
22
23
24
25
18
See Ames v. State of Kansas, 111 U.S. 449, 467 (1884).
19
U.S. CONST. ART. III, §1.
20
See James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118
HARV. L. REV. 643, 646, 656-60 (2004) (“Congress has often assigned disputes that appear to fall within
the scope of the federal judicial power to Article I tribunals whose judges lack salary and tenure
protections”); MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL
POWER 36-51 (1980).
21
Pfander, supra note 20, at 657.
22
Crowell v. Benson, 285 U.S. 22, 51 (1932).
23
Boyle.
24
Pfander, supra note 20, at 741.
25
Fallon, supra note ?, at 923. Consider as well the various supranational adjudicatory panels that have
been created under federal law. For example, whereas the conclusions of the federal agencies tasked with
administering the United States anti-dumping laws typically are subject to judicial review by two Article
III courts, the North American Free Trade Implementation Act creates new adjudicatory entities that are
staffed by representatives of the two disputing countries. For a discussion, see Monaghan, supra note 167,
at 834-39. These adjudicatory entities are not Article III courts, yet they have the power to “directly apply
domestic American legal standards” and to then “issue orders directly binding federal administrative
officials” that “are not subject to further review in Article III courts.” See id at 837 (discussing Chapter
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Accordingly, notwithstanding the Constitution’s allocation of the “judicial
power” to Article III courts, non-Article III tribunals frequently have
concurrent authority with Article III courts to adjudicate disputes.
3.
The Constitution specifies only one mechanism by which the
United States can create international agreements – the treaty
– about which it states that the “[President] shall have
Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the
Senators present concur.” Many of the most important
twentieth century international agreements into which the
United States entered, however, were not created via the treaty
process, but instead have been created by CongressionalExecutive agreements, which are negotiated by the President
and approved by simple majorities of both Houses of
Congress. The Restatement (Third) of Foreign Relations Law
takes the position that “any agreement concluded as a
Congressional-Executive Agreement could also be concluded
by treaty” and notes that “[t]he prevailing view is that the
Congressional-Executive agreement can be used as an
alternative to the treaty method in every instance.” A
prominent example of the Congressional-Executive
Agreement is the North American Free Trade Agreement,
which received sixty-one supporting votes and thirty-eight
“nos” in the Senate – a comfortably majority to be sure, but
far short of the two thirds of Senators present that is necessary
for a treaty. The agreement bringing the United States into
the World Trade Organization likewise was a CongressionalExecutive agreement, not a treaty. Accordingly, notwithstanding
the Constitution’s sole specification of the treaty as a mechanism for
creating international obligations, Congress has concurrent authority with
the Senate to create international obligations by means of Congressional26
27
28
29
30
19 proceedings under NAFTA).
26
U.S. CONST. ART. II, §2, CL 2.
27
See RESTATEMENT (3RD) FOREIGN RELATIONS LAW §303, comment a (1987). International agreements
also have been created by the so-called “Sole Executive Agreements,” which are negotiated by the
President but subject to no congressional approval whatsoever. See id. For example, President Carter
entered into a sole executive agreement known as the “Algiers Accord” to gain release of the U.S.
diplomatic personnel who were taken hostage in 1979 in Iran. See Bradford R. Clark, Domesticating Sole
Executive Agreements, 93 VA. L. REV. 1573, 1608 (2007). And President Clinton negotiated an agreement
with German Chancellor Schroder establishing a mechanism for handling insurance claims held by
Holocaust victims. See American Insurance Association v. Garamendi, 539 U.S. 396, 406-08 (2003).
28
Rest. For. Rel. Law, supra note 27, at §303, comment e.
29
Brice Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 801 (1995).
30
Id. at 917-19.
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10
Executive Agreements.
4.
The Constitution states that “All legislative Powers herein
granted shall be vested in a Congress of the United
States.” All legal scholars agree that many administrative
agencies have virtually unfettered discretion to generate
regulations that are functionally indistinguishable from
statutes. For example, the Supreme Court has upheld
statutes that instruct agencies to regulate on the basis of
“public interest, convenience, or necessity,” to set “fair and
equitable prices,” or to set ambient air quality standards that
are “requisite to protect the public health.” Accordingly,
notwithstanding the Constitution’s allocation of “[a]ll legislative Powers
herein granted” to Congress, administrative agencies have concurrent
authority with Congress to create the legal obligations that guide citizens’
actions.
31
32
33
34
35
5.
The Constitution states that “Congress shall have power to .
. . regulate commerce . . . among the Several states.” The
United States Supreme Court has held that states also have
power to regulate interstate commerce.
Accordingly,
notwithstanding the Constitution’s allocate of regulatory authority over
interstate commerce to Congress, state and Congress have concurrent
authority to regulate interstate commerce.
36
6.
Congress has the power to enact laws relating to admiralty
37
31
U.S. CONST. ART. I, §1.
32
The Court has invalidated only two statutes on nondelegation grounds, both in the same year. So, in
Cass Sunstein’s words, the doctrine has “had one good year, and 211 bad ones (and counting).” Cass R.
Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000). Thomas Merrill recently has argued
that “legislative power” entails “the power to make rules for the governance of society,” that
administrative agencies exercise precisely this power today, and that they properly do so as long as
Congress explicitly delegates them this power. Merrill, supra note 54, 198, at 2120. Gary Lawson
describes the status quo as one where the Court has found the intelligible principle standard to be satisfied
by“any collection of words that Congress chose to string together.” Lawson, supra note 199, at 371. Other
scholars who have noted that the non-delegation doctrine fails to curb delegations of de facto lawmaking
authority to agencies include David Schoenbrod and Marty Redish. See DAVID SCHOENBROD, POWER
WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION; REDISH,
supra note 20, at 135-61.
33
See NBC v. United States, 319 U.S. 190, 225-26 (1943).
34
Yakus v. United States, 321 U.S. 414, 427 (1944).
35
Whitman, 531 U.S. at 473.
36
See Cooley v. Board of Wardens of the Port of Philadelphia, 53 U.S. 299, 318-19 (1851).
37
Southern Pacific Co. v. Jensen, 244 U.S. 205, 212 (1917) (stating that “in the absence of some controlling
statute the general maritime law as accepted by the federal courts constitutes part of our national law
applicable to matters within the admiralty and maritime jurisdiction”).
[2008]
FROM EXCLUSIVITY TO CONCURRENCE
11
and laws governing interstate disputes concerning such
matters as water pollution. Yet there also is a “tradition of
federal common lawmaking in admiralty” as well as a “federal
common law of nuisance” regarding interstate waters.
Accordingly, Congress and (primarily) federal courts have concurrent
authority to create the rules of admiralty as well as the rules that govern
many interstate controversies.
38
39
B.
Analytical Tools.
For purposes of fully understanding
concurrence, it will prove useful to introduce some additional concepts and
clarifications.
1. Same-Effect versus Same-Source Concurrence. “SameEffect” concurrence refers to the circumstance where two different
institutions have the power to undertake “x”, but pursuant to different sources
of power. Consider, for instance, example three above: the constitutional
source of power that gives rise to Congressional-Executive Agreements is not
Article II’s treaty power, but instead is Article I’s grants of legislative power
to Congress (as well as any additional grants of legislative power to Congress
outside of Article I ). Same-effect concurrence hence describes the situation
where two (or more) grants of power overlap such that more than one
institution has the power to effectuate act “x.”
“Same-source” concurrence refers to the situation where two different
institutions exercise the same power. Consider, for instance, example five
from above: the Constitution has granted Congress the power to regulate
interstate commerce, yet (it has been held) the States have retained power to
regulate interstate commerce. Accordingly, two different institutions –
Congress and the States – exercise the same power. As will soon be seen,
there is controversy as to whether several of the other examples of currency
listed above are instances of “same-effect” or “same-source” concurrence.
One might think: surely “same-effect concurrence” is not
controversial, only “same-source concurrence” would be. That is not so. For
example, Madison’s words in the Second Helvidius letter were penned as an
argument against “same-effect” concurrence: Madison argued that the
Congress had power to interpret a mutual defense treaty under its powers to
declare war and that the President could not have the same power to interpret
the treaty under any of his constitutional powers because, as Madison stated,
40
41
42
38
American Dredging Co. v. Miller, 510 U.S. 443, 455 (1994).
39
State of Illinois v. City of Milwaukee, 406 U.S. 91, 101 (1972).
40
For instance, Congress’ powers under Article IV’s Effects Clause could support congressional power
to enter into a Congressional-Executive Agreement regarding the effect that is to be given foreign (in the
sense of non-United States) judgments in state courts.
41
Cooley.
42
Though this constituted a shift from Gibbons v. Ogden, where Chief Justice Marshall embraced only
same-effect concurrence.
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FROM EXCLUSIVITY TO CONCURRENCE
12
“[a] concurrent authority in two independent departments, to perform the
same function with respect to the same thing, would be awkward in practice,
as it is unnatural in theory.” Consider, as well, the recent battle between
Professors Ackerman and Golove, on the one hand, and Professor Tribe, on
the other, concerning the constitutionality of Congressional-Executive
Agreements. This too concerned the issue of “same-effect” concurrence, for
neither the defenders nor the critic suggested that Congressional-Executive
Agreements were based on the “treaty” power. Rather, the question was
whether the power to create Congressional-Executive Agreements premised
(primarily) on Congress’ Article I powers can coexist with, and is
interchangeable with, the treaty power.
But why should same-effect concurrence ever be controversial? It is
not at all unusual, after all, that two institutions having different mandates and
different sources of power will have overlapping responsibilities. Two
answers suggest themselves. First, the activity in question frequently appears
to more readily fit under one of the two powers, opening the door to
arguments based on expressio unius est exclusio alterius and fears that some
troublesome extension of governmental powers is at work. Second, if two or
more institutions have the power to do “x,” then it is possible that the
institutions will have decide to act differently and thereby create a conflict.
Indeed, the prospect of conflicts frequently is deemed to be a death blow to
concurrence.
To say that “same-effect” concurrence can be (and frequently is)
controversial is not to suggest that the distinction between “same-effect”
concurrence and “same-source” concurrence is inconsequential. Indeed, in
several areas of the law, courts and scholars have fought mightily to establish
that two institutions’ overlapping powers are the result of “same-effect”
concurrence but not “same-source” concurrence. For example, as I shall
show at greater length in Part Two, a recurring controversy in the context of
non-Article III tribunals is whether the powers that such tribunals exercise is
Article III “judicial power” or something else. Chief Justice Marshall
famously asserted that territorial courts are incapable of receiving Article III
“judicial power,” whereas the modern Court has seemingly switched tracks,
concluding that Congress may “authorize the adjudication of Article III
business in a non-Article III tribunal.” Professor Monaghan likewise seems
43
44
45
46
47
48
49
43
Madison, Second Hevidius Letter.
44
Compare Brice Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 801
(1995) with Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in
Constitutional Interpretation, 108 HARV. L. REV. 1221, 1275 (1995).
45
See, e.g., Tribe, supra note 83..
46
This concern permeates Madison’s discussion. See Second Helvedius Letter at x.
47
See infra Part II.C.
48
Id.
49
Id. at 851.
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FROM EXCLUSIVITY TO CONCURRENCE
13
content when he describes today’s “system of shared adjudication between
agencies and Article III courts.” But not all agree with this. Two outstanding
recent tomes – one by Professor Jim Pfander in the Harvard Law Review, the
other by Professor Caleb Nelson in the Columbia Law Review – are both
premised on establishing that non-Article III tribunals do not exercise article
III “judicial power” but instead exercise some other power. That is to say,
both scholars largely accept as legitimate the adjudicatory powers that are
exercised by non-Article III courts, but seek to show that they are instances
of “same-effect” rather than “same-source” concurrence.
Writing in the non-delegation context, Professors Eric Posner and
Adrian Vermeule have undertaken the identical strategy as that of Professors
Pfander and Nelson. Posner and Vermeule conclude that the powers
exercised by agencies are fully constitutional because agencies never exercise
Though agency rule-making may be
Article I “legislative Powers.”
functionally equivalent to law-making so far as the citizen is concerned, Posner
and Vermeule assert that rule-making cannot constitute an exercise of
“legislative power” because legislative power refers only to the power to enact
statutes. Professor Merrill concurs that agencies’ rule-making authority is
constitutional, but he criticizes Posner and Vermeule’s idiosyncratically narrow
definition of “legislative” power and concludes that the power exercised by
agencies indeed constitutes legislative power. In short, Posner and Vermeule
embrace “same-effect” concurrence whereas Merrill believes that agencies and
Congress are examples of “same-source” concurrence. As a formal matter,
contemporary caselaw treats agency powers as an aspect of “same-effect”
concurrence as it insists that Article I’s “text permits no delegation of those
powers.”
One might ask: why should it matter whether power is exercised as a
matter of “same-source” or “same-effect” concurrence? Five points bear
mentioning.
Point One: The difference appears to matter to many, as shown by the
fact that serious jurists and scholars have made serious efforts to establish that
50
51
52
53
54
55
50
Monaghan, supra note 167, at 873 (emphasis supplied).
51
See Pfander, supra note 20; Nelson, supra note 164.
52
See Eric A. Posner & Adrian Vermeule, Interring the Non-Delegation Doctrine, 69 U. CHI. L. REV. 1721, 1731
(2002).
53
Merrill, supra note 54, 198, at 2125 (noting that “[t]here is no support in decisional law for” Posner and
Vermeule’s formal definition of legislative power as the power to enact statutes and observing that “[t]he
possibility seems never to have occurred to anyone in a context in which it would have decisional
significance” and that their definition “is at the very least idiosyncratic, and probably would be rejected
if presented to the courts”).
54
Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 COLUM.
L. REV. 2097, 2165 (2004) (arguing that “the nondelegation doctrine . . . should be rejected” and that “the
Court should repudiate the idea that Article I, Section 1 precludes any congressional sharing of legislative
power”).
55
Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 472 (2001).
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FROM EXCLUSIVITY TO CONCURRENCE
14
contemporary institutional arrangements are examples of same-effect rather
than same-source concurrence. Their concern can be fleshed out as follows.
If the Constitution goes out of its way to specify special protections for those
who exercise the judicial power (life tenure and salary guarantees) and special
procedures that must be followed for legislation to be enacted, how can it be
concluded that the judicial power can be exercised by those who lacks those
protections or that the legislative power can be exercised by means of different
procedures? Allowing “judicial power” to be exercised outside of Article III
courts or the “legislative power” to be exercised outside of Congress would
be to sanction an end-run around the Constitution’s specifications, rendering
the Constitutional language “mere surplusage.” This concern, in short, is
nicely summarized and addressed by the well-known principle of expressio unius
est exclusio alterius
Point Two: On the other hand, are the concerns enumerated above in
Point One really answered by establishing that an institutional arrangement
is an example of same-effect rather than same-source concurrence? Isn’t the
only way to really guard against the concerns voiced in Point One to conclude
that same-effect concurrence is also problematic, and not to simply assert (for
instance) that territorial courts exercise Article I rather than Article III power?
Point Three: To the extent there is power to Point Two – and I think
there is – what likely drives the impetus to justify a given institutional
arrangement as an instance of same-effect rather than same-source
concurrence is the sense that the former is a more limited license for
concurrence (perhaps because it really is the case that there sometimes are two
paths to the same goal). Thus, in situations where the Court (or scholars) do
not feel empowered to all-out reject concurrence, insisting that they only are
blessing same-effect concurrence appears to be an acceptable fall-back
position. In other words, in some contexts at least, advocates of same-effect
concurrence really seem to be sympathetic to exclusivity, but just can’t bring
themselves to embrace exclusivity’s implications.
Point Four: At the end of the day, perhaps the concerns laid out in
Point One can be allayed by generalizing Tom Merrill’s non-delegation
analysis. Merrill argues that agencies properly exercise actual legislative power,
thereby forthrightly defending same-source concurrence. Merrill’s argument
demonstrates that the Constitution’s text almost always can be plausibly
construed to permit concurrence even when the Constitution allocates power
to only one institution. After all, one might think that Article I, section 1
provides a particularly strong textual basis for embracing exclusivity: its
language that “[a]ll legislative Powers herein granted shall be vested in a
Congress” quite plausibly could be said to require that all legislative power
vest only in Congress. Yet Merrill resists this conclusion because the “text of
the Constitution is [ ] silent on the question whether or to what extent
56
57
56
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).
57
See, e.g., Tribe.
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FROM EXCLUSIVITY TO CONCURRENCE
15
legislative power may be shared.” Cass Sunstein has made the same
argument: “[t]he Constitution does grant legislative power to Congress, but it
does not in terms forbid delegations of that power.”
Merrill’s and Sunstein’s arguments have broad implications outside the
non-delegation context because, with only a handful of exceptions, the
Constitution’s grants of power are not accompanied by prohibitions on the
delegation of the allocated power. It would follow that, as a purely textual
matter, it is plausible to suggest that virtually all the Constitution’s grants of
power to a particular institution could be delegated to another institution,
resulting in what Merrill calls “share[d]” power and what this Article dubs
“concurrence.”
Point Five: On the other hand, Point Four’s textual argument does
not really address the anxiety expressed in Point One that concurrence allows
the Constitution’s carefully crafted mechanisms for accomplishing “x” to be
circumvented by (what typically is) a less demanding procedure:
Congressional-Executive Agreements are pursued because there’s not
sufficient senatorial support for a treaty, and territorial courts rather than
article III courts were created so that their judges did not have to have life
tenure.
The last Part of this Article – Part Six – will revisit these
considerations regarding the distinction between same-effect and same-source
concurrence, and the legitimacy of concurrence generally, after we’ve had an
opportunity to more fully examine the phenomenon of concurrence across
doctrinal contexts and time.
Finally, let me summarize two lessons from our discussion before
58
59
60
61
62
63
58
Id. at 2127.
59
Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000) (emphasis supplied).
60
The sole exceptions can be found in Article I, Section 10, Clause 1, which specifies a handful of actions
(such as entering into treaties and coining money) that federal institutions may undertake but that States
may not. That the activities identified in Clause 1 are flatly prohibited to states, and may not be delegated
to states, is all but impossible to deny on account of the Constitution’s next two clauses, which specify
activities that states shall not do “without the Consent of Congress.” See U.S. CONST. ART. I, §10, CL. 2
& CL. 3.
61
For an extended critique of delegation, see Alexander & Prakash, supra note 63.
62
Id. at 2165. Furthermore, Merrill appears to be of the view that there sometimes can be “shared”
powers even without delegation. Merrill believes that institutions apart from Congress have no inherent
legislative power (the “anti-inherency principle,” id. at 2101), and that there accordingly can be shared
legislative powers only pursuant to congressional delegations, on account of Article I, Section 1's
specification that the legislative powers “herein” granted are vested in Congress. See id. (“the reference
to legislative powers ‘herein’ granted can be understood to limit the anti-inherency principle to those
powers granted in Article I itself.” ). This suggests that legislative powers granted to Congress outside
of Article I (perhaps under Section 5 of the Fourteenth Amendment, for instance) may be shared by
institutions apart from Congress even without a delegation from Congress.
63
Indeed, the broad implications of Merrill’s argument vis-a-vis delegations of other powers led Larry
Alexander and Sai Prakash to pen an extended slippery slope discourse. See Larry Alexander and
Saikrishna Prakash, Delegation Really Running Riot, 93 VA. L. REV. 1035 (2007). I respond to their argument
later in this Article.
[2008]
FROM EXCLUSIVITY TO CONCURRENCE
16
concluding this preliminary discussion of same-source versus same-effect
concurrence. First, as shown by the examples of non-Article III tribunals and
agencies’ rule-making powers, there sometimes is controversy as to whether
a contemporary institutional arrangement is an instance of “same-source” or
“same-effect” concurrence. For example, as regards the adjudicatory powers
of Article I and Article III courts, Chief Justice Marshall and Professors
Pfander and Nelson are committed to “same-effect” concurrence, whereas the
modern Supreme Court and Professor Monaghan seem comfortable with
“same-source” concurrence.
Second, as shown by the controversy
concerning Congressional-Executive Agreements, there sometimes is
controversy over whether even same-effect concurrence is legitimate or
whether exclusivity is the only permissible power arrangement.
2.
Non-Identicality. A second principle relevant to this
Article’s analysis is that concurrence does not mean that the two institutions’
acts are wholly identical. This “non-identicality principle” is true of both
same-source and same-effect concurrence. In general, the acts of institutions
with concurrent power are non-identical as regards both (1) what must
happen for the act to come into existence and (2) what must happen for the
act to be negated. There sometimes are additional important distinctions
between the “concurrent” acts. This principle of non-identicality should be
self-evident, but it has surprising illuminating effect.
As an example of non-identicality regarding same-source concurrence,
though both Congress and the states have power to regulate interstate
commerce, congressional regulations and state regulations of interstate
commerce differ in several respects. For one, different entities must vote
(Congress versus state legislatures) for each act (legislation regulating interstate
commerce) to be created. Second, the Supremacy Clause establishes a
conflict-resolution principle under which federal regulations trump state
regulations.
For an example regarding (what contemporary case law considers to
be) same-effect concurrence, administrative regulations also are not identical
to statutory commands. Though they share much in common – for instance,
from the vantage point of most citizens, the legal obligations they impose are
indistinguishable – administrative regulations do not appear in U.S. statutes,
they also are brought into existence by the actions of two different institutions
(Congress versus the agency), and finally regulations typically are easier to
amend or rescind than statutes.
Congressional-Executive Agreements and Treaties provide a partial
exception to the general principle of non-identicality. Although they differ
insofar as they are created by different mechanisms (two-thirds of present
Senators in the case of treaties versus majorities of both houses in the case of
64
65
64
Relatedly, there exists some areas of concurrence where the source of a particular governmental entity’s
powers to act is still a question of controversy – federal common law, for instance.
65
Court of Claims point
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FROM EXCLUSIVITY TO CONCURRENCE
17
Congressional-Executive Agreements), the Congressional-Executive
Agreements and Treaties presently are understood as being equally resilient to
alteration. For instance, both are subject to the “last-in-time” rule and can be
superseded by later international agreements or treaties.
3. Imperfect Overlap. A third relevant principle is that the
existence of concurrence does not necessarily entail perfect overlap between
the powers of the two institutions. To the contrary, there frequently is
imperfect overlap between the two institutions. For example, the early
twentieth century case of Missouri v. Holland established that treaties “may deal
with a subject that Congress could not regulate by legislation in the absence
of a treaty.” Though the scope of Congress’ powers has significantly
expanded since during the twentieth century – and so, for instance, the subject
addressed in the Holland that was then viewed as falling outside the scope of
Congress’ commerce clause powers today undoubtedly would be deemed as
being subject to the commerce clause – there still may be some subjects
relating to international relations that do not fall within Congress’ enumerated
powers. With respect to these matters, only treaties can be used, and there
accordingly is imperfect overlap between the treaty power and CongressionalExecutive Agreements.
C. The Pacificus-Helvidius Debates. The earliest exchange concerning
the choice between exclusivity and concurrence – and, perhaps surprisingly,
to date still the most extended discussion of this issue – is found in the
exchange between Alexander Hamilton and James Madison known as the
Pacificus-Helvidius Debates. The occasion for the debate was President
Washington’s issuance of the Neutrality Proclamation of 1793. In declaring
the new nation’s neutrality vis-a-vis France’s war with Great Britain and
Holland, the Washington’s Proclamation interpreted America’s Treaty of
Alliance with France of 1778.
The question dividing Hamilton and Madison was whether the
President had the authority to interpret the Treaty. Madison took the
exclusivist position, arguing that only Congress had power to do so by virtue
of its power to Declare war. Hamilton defended the Proclamation’s legality,
adopting what this Article dubs “concurrence” in arguing that both the
President and Congress had the power to interpret the Treaty.
Let us first look to Hamilton’s position. He acknowledged that
Congress had the power to interpret the Treaty pursuant to its power to
Declare war, but urged that the President also had the power to interpret the
Treaty under the President’s executive powers:
66
67
68
[H]owever true it may be, that the right of the Legislature to declare
war includes the right of judging whether the Nation be under
66
See Rest. For. Relat. §303, comment j. There is uncertainty as regards the scope of the President’s power
to unilaterally rescind treaties. [elaborate]
67
Id. at comment c, citing to Missouri v. Holland, 252 U.S. 416 (1920).
68
For a good introduction, see DEBATES, supra note 2, at vii.
[2008]
FROM EXCLUSIVITY TO CONCURRENCE
18
obligations to make War or not – it will not follow that the Executive is
in any case excluded from a similar right of Judgment, in the execution of its
own functions.69
Hamilton here has put forward a defense of what this Article dubs “sameeffect” concurrence. Hamilton believed that the source of the President’s
power to issue the Proclamation was the Vesting clause. Though this
construction of the Vesting Clause was controversial then and remains
disputed today, that issue is not relevant to this Article’s concern of whether
power is allocated on an exclusive or concurrent basis. What matters is his
understanding that presidential and congressional powers could overlap such
that both institutions have the power to undertake the same act (in this case,
to interpret a Treaty). That Hamilton’s understanding of concurrence was not
tied to his view of the Vesting Clause is proven later in the first Pacificus
Letter, where he presents a hypothetical in which the President interprets a
Treaty pursuant to his powers under the Recognition Clause and the Congress
also has the power under the Declare War Clause to interpret the Treaty.
Hamilton fully understood the import of his argument – that, under it, two
institutions had the power to undertake the same act – and indeed adopted
virtually the same term that this Article utilizes, writing that “there results . .
. a concurrent authority” as between the President and Congress. [nothing
more than assertion; no real justification, apart from textualist claim, of sorts]
Madison violently disagreed with Hamilton’s embrace of concurrence,
dedicating the majority of his Second Helvidius Letter to disputing it. His
position boils down to two arguments. First, Madison claims to identify a
“material error” in Hamilton’s position insofar as, Madison claimed, Hamilton
failed to fully apply the principles he adopts:
70
71
72
He [Hamilton] had before admitted that the right to declare war
includes the right to judge whether the United States be obliged to
declare war or not. Can the inference be avoided, that the executive instead
of having a similar right to judge, is as much excluded from the right to judge as
from the right to declare?73
It is not at all apparent, however, why Madison’s inference cannot be avoided
– unless one assumes exclusivity, which of course is the very principle that
Madison hopes to establish. Two paragraphs later Madison tries again to drive
home the same point, but with no greater success. Madison asserts that
Hamilton “cannot disentangle himself by considering the right of the
executive to judge as concurrent with that of the legislature” for the following
reason: “[f]or if the executive have a concurrent right to judge, and the right
to judge be included in (it is in fact the very essence of) the right to declare, he
69
Pacificus Number 1, reproduced in Debates, supra note 2, at 13 (emphasis supplied).
70
See id. at 16.
71
See id. at 15.
72
Id. at 15.
73
Helvedius Number 2, reproduced in Debates, supra note 2, at 66 (emphasis supplied).
[2008]
FROM EXCLUSIVITY TO CONCURRENCE
19
must go on and say that the executive has a concurrent right also to declare.” But why
is this so if, as Hamilton hypothesized, the President’s right to interpret the
Treaty derives from an independent presidential power? Why couldn’t the
President interpret the Treaty for the purpose of exercising his independent
power and the Congress interpret the Treaty for purposes of determining
whether it should declare war? Here, once again, Madison circularly assumes
his conclusion. So much for his first justification.
Madison’s second justification for opposing concurrence is more
substantive than his first. The trouble with concurrence, he correctly asserts,
is that it opens the door to conflict among the two institutions vested with the
same power:
74
If the legislature and executive have both a right to judge of the
obligations to make war or not, it must sometimes happen . . . that
they will judge differently . . . . In what light does this present the
Constitution to the people who established it? In what light would
it present to the world, a nation, thus speaking, thro’ two different
organs, equally constitutional and authentic, two opposite language,
on the same subject and under the same existing circumstances?75
Hamilton had a response to Madison’s argument. I shall discuss it in
Part Five, which takes stock of six different mechanisms found in American
law for resolving conflicts among institutions with overlapping power.
Hamilton’s response tracks one of the six mechanisms. To provide a short
preview, though, Point Five’s main response to Madison’s argument is twopronged. First, the mere possibility of conflict is not a categorical argument
against concurrence, but instead means that a choice must be made among
conflict-resolution principles and an assessment undertaken as to whether the
benefits of concurrence are outweighed by its costs (primarily the possibility
of conflict). Second -- and what amount to a corollary of the point made
immediately above – even if the costs of conflict outweighed the benefits of
concurrency in the context of treaty interpretation and foreign relations, it
does not follow that concurrence is undesirable as a general matter across all
doctrinal contexts.
******************************
Having carefully defined “concurrence” and “exclusivity” and
introduced the concepts of same-source concurrence, same-effect
concurrence, non-identicality, and imperfect overlap, we are ready to proceed
to examine the many intriguing recurring patterns regarding the choice
between exclusivity and concurrence.
76
II.
THE HISTORICAL TRAJECTORY FROM EXCLUSIVITY TO CONCURRENCE
A study of Supreme Court case law reveals the tenacity of exclusivist
74
Id.
75
Id. at 69.
76
See infra pp. 57.
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FROM EXCLUSIVITY TO CONCURRENCE
20
assumptions. Virtually always the judiciary has initially adopted exclusivist
assumptions and has been resilient to claims that power can be concurrently
exercised. Generally, the Court has, over time, been willing to acknowledge
concurrence, though the Court’s ultimate blessing of concurrence typically
does not initiate the concurrent exercise of power but instead reflects a belated
recognition of a widespread practice that has taken root outside the
courtroom. In other contexts, the Court has created doctrines that formally
cling to exclusivism notwithstanding the fact that virtually all scholars
acknowledge that two institutions exercise concurrent powers. The bottom
line, though, is that there is a clear trajectory in both practice and doctrine:
initial exclusivist assumptions tend to give way to concurrence.
A.
Original Jurisdiction of the Various Federal Courts: The Road from
Marbury to Ames. The substantive constitutional issue raised in Marbury v.
Madison is both an early illustration of the choice between exclusivity or
concurrence and an exemplar of the Court’s initial approach to answering the
query. The Constitution provides that the “supreme court shall have original
jurisdiction in all cases affecting ambassadors, other public ministers and
consuls, and those in which a state shall be a party. In all other cases, the
supreme court shall have appellate jurisdiction.” The (still to be created)
inferior federal courts and/or state courts had original jurisdiction of the other
matters that fell within scope of Article III’s “judicial power.”
The substantive question famously presented in Marbury was whether
Congress could expand the Supreme Court’s original jurisdiction beyond the
three categories enumerated in the Constitution. The issue raised in the case
clearly fell within the “judicial Power of the United States,” and the case also
clearly fell within the original jurisdiction of the inferior courts that Congress
had established. This is the respect in which Marbury presented the Court with
the choice between exclusivity and concurrence: Marbury confronted the
question of whether the Supreme Court’s original jurisdiction could be made
to overlap with the inferior federal courts’ original jurisdiction.
77
78
79
80
81
77
5 U.S. (1 Cranch) 137 (1803).
78
U.S. CONST. ART. I, §2, cl. 2.
79
Cf. Question of whether all Art. III judicial power has to be vested in a federal court (Story), see
generally Pfander, Cal. L. Rev.
80
The in the case issue concerned a question of federal law: the legal effect of a commission for public
justice that had been signed by the President following the Senate’s advice and consent.
81
Other parts of the 1789 Judiciary Act more obviously presented this question. Section 13 of the Act
provided that the Supreme Court had “exclusively” original jurisdiction over “suits or proceedings against
ambassadors” but only “original, but not exclusive jurisdiction of all suits brought by ambassadors.” Id.
(emphasis supplied). In other words, the Act provided that the Supreme Court’s original jurisdiction
overlapped with inferior federal courts’ original jurisdiction in cases brought by (but not against)
ambassadors. This provision of Section 13 raised the same issue presented in Marbury because the
Constitution states that “[i]n all cases affecting Ambassadors . . . the supreme Court shall have original
Jurisdiction.” [maybe not: maybe this is Ames redux: not whether S Court jdn can be expanded, but
whether inferior court jdn can be expanded. In other words, the Constitution says that Supreme Court
shall have original jurisdiction, but does not state the other courts cannot have original jdn as well.
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21
The Court specifically considered the question of whether Congress
could “assign original jurisdiction to [the Supreme Court] in other cases than
those specified in” the Constitution. The Court rejected this proposition as
follows:
Affirmative words are often, in their operation, negative of other
objects than those affirmed; and in this case, a negative or exclusive
sense must be given to them or they have no operation at all.82
As Professor Tribe has noted, Chief Justice Marshall’s reasoning here is an
example of the principle of expressio unius est exclusio alterius: from the fact that
the Constitution “apportion[ed] the judicial power between the supreme and
inferior courts,” Marshall concluded that only the institution that had been
constitutionally allocated original jurisdiction, and no other, could exercise
original jurisdiction. Any other interpretation would render the Constitution’s
grant “mere surplusage.” Chief Justice Marshall’s chief justification for
Marbury’s substantive holding accordingly was an exclusivist argument.
My intention here is not to suggest that this portion of Marbury was
incorrectly decided, but instead to show that its exclusivist justification has
not fared well. Consider in this regard the Court’s decision in Ames v. State of
Kansas. The State of Kansas had sued several corporations in Kansas state
courts, and defendants had removed to an inferior federal court in reliance on
the federal question statute, which grants inferior federal courts jurisdiction
over cases raising questions of federal law. At issue in Ames was the
constitutionality of the federal question statute’s application to a case in which
83
84
85
86
87
88
89
82
5 U.S. at xx.
83
Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional
Interpretation, 108 HARV. L. REV. 1221, 1275 (1995).
84
See Marbury, 5 U.S. at 174 (“If it had been intended to leave it in the discretion of the legislature to
apportion the judicial power between the supreme and inferior courts according to the will of that body,
it would certainly have been useless to have proceeded further than to have defined the judicial power,
and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is
entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court
appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original
jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made
in the constitution, is form without substance.”).
85
Marbury, 5 U.S. at 174.
86
Id. at 174.
87
Indeed, there was strong constitutional language on which the Chief Justice could have relied. After
enumerating the cases in which the Supreme Court is to have original jurisdiction, Article III provides that
“[i]n all other cases, the supreme court shall have appellate jurisdiction.” U.S. CONST. ART. III, §2, CL. 2.
Extending the Supreme Court’s original jurisdiction to include mandamus correspondingly diminishes its
appellate jurisdiction and hence could be said to run afoul of this constitutional language. On the other
hand, the very last phrase of the above sentence from Article III appears to grant Congress the power to
make “exceptions” to the Supreme Court’s appellate jurisdiction. Id. For a collection of sources that
examine these competing textual arguments here, see James E. Pfander, Marbury, Original Jurisdiction, and
the Supreme Court’s Supervisory Powers, 101 COLUM. L. REV. 1515, 1517 & n. 5 (2001).
88
111 U.S. 449 (1884).
89
Id. at 463.
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22
a state was a party: Could Congress assign original jurisdiction to an inferior
federal court when the Constitution granted the Supreme Court “original
jurisdiction” in “all Cases . . . in which a State shall be Party”?
The Ames Court acknowledged that Marbury “used language . . . which
might, perhaps, imply that such original jurisdiction as had been granted by the
constitution was exclusive.” On this approach, the Supreme Court alone
(among federal courts) would have had original jurisdiction over cases as this
in which a state was a party on account of Article III’s grant of original
jurisdiction to the Supreme Court.
But Ames rejected this approach and ultimately upheld Congress’
power to grant inferior courts original jurisdiction over the same subjects that
fall within the Supreme Court’s Constitution-granted original jurisdiction.
Ames instead relied on a rationale that had been provided by Chief Justice
Taney in a circuit opinion:
90
91
92
the grant of jurisdiction over a certain subject-matter to one court
does not, of itself, imply that the jurisdiction is to be exclusive. In
the clause in question [in the Constitution] there is nothing but mere
affirmative words of grant, and none that import a design to exclude the
subordinate jurisdiction of other courts of the United States on the same subjectmatter.93
The italicized language, it should be noted, is precisely the same argument that
Professors Merrill and Sunstein provide in defense of Congress’ powers to
delegate legislative authority to agencies.
Three important lessons emerge from considering the relationship
between the Taney rationale in Ames and Chief Justice Marshall’s reasoning in
Marbury. First, the two are at loggerheads. Marbury instructs that the
Constitution’s grants of power are conclusively presumed to be exclusive.
Otherwise, said Chief Justice Marshall, the Constitution’s language would be
“mere surplusage.” Ames, by contrast, strips any presumption of exclusivity
from the Constitution’s grant of power to a particular institution.
Second, insofar as much of the Constitution’s text consists of
affirmative grants of power to particular institutions, the interpretive question
that both Marbury and Ames address – whether the Constitution’s affirmative
grant of power is to be construed as a constitutional mandate that only that
institution have the specified power – is pervasive.
94
95
90
U.S. CONST. ART. III, s. 2, cl. 2.
91
Ames, 111 U.S. at 467.
92
See Ames, 111 U.S. at 447 (“we are unable to say that it is not within the power of congress to grant to
the inferior courts of the United States jurisdiction in cases where the supreme court has been vested by
the constitution with original jurisdiction.”).
93
Ames, 111 U.S. at 468 (quoting Gittings v. Crawford)(emphasis supplied).
94
See supra at xx.
95
Though additional constitutional language conceivably could answer the question, eg, “all” the power
shall vest. Interesting, though, that Ames didn’t rely on this textual warrant in distinguishing Marbury.
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23
Third, and finally, Ames’ and Marbury’s contrary resolutions to the
interpretive question strongly suggest that constitutional text alone does not
answer the question of whether constitutional grants are exclusive. How then
is the decision to be made as to whether the Constitution’s power-grants are
exclusive or potentially concurrent? This important question will be taken up
in Part III.
B. Fact-Finding in Civil Adjudication: Of Juries, Judges, and Non-Article III
Adjudicative Tribunals
The Seventh Amendment allocates power to the hybrid
public/private institution known as the jury, granting juries the power “[i]n
Suits at common law” to “tr[y] . . . fact[s].” The Seventh Amendment
simultaneously limits the power of federal judges, providing that “[c]ourt[s]”
are not permitted to “re-examine[]” the jury’s findings “otherwise . . . than
according to the rules of the common law.” The Court long has held that
“common law” for these purposes refers to the procedures for re-examining
jury verdicts that were available in English common law in 1791, when the
Seventh Amendment was adopted.
This section shows that, and explains how, an exclusive regime in
which only juries had the power to find facts was transformed into a system
of concurrence. Today, the power to fact-find during adjudication is held
jointly by juries, ordinary federal judges, and non-Article III adjudicative
tribunals. Subsection 1 examines the trajectory from exclusivity to
concurrence as between juries and Article III judges. To this day, the Court
has been reluctant to formally acknowledge the concurrence that exists.
Subsection 2 examines the trajectory from exclusivity to concurrence as
between juries and Article I tribunals. A different story appears here: though
the Court initially denied and sought to tightly cabin concurrence, it ultimately
was forthright in acknowledging concurrence.
1. Juries and Judges. Suja Thomas has shown that English
common law as of 1791 adopted what this Article dubs an “exlusivist”
allocation of duties in which only the jury, not the judge, had power to find
facts. Under three common law procedures, neither the judge nor jury found
facts: instead, the parties stipulated to the facts (the “demurrer to the
pleadings,” the “demurrer to the evidence,” and the “special case” under the
parties’ agreement as to the facts), and the judge thereafter applied the law to
96
97
98
96
U.S. CONST. AMEND. VII.
97
See, e.g., Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 435-36 & n. 20 (1996). While riding
circuit, Justice Story was among the first of the American jurists to equate the Seventh Amendment’s
language of “common law” with the “common law of England.” United States v. Wonson, 1 Ga.. 5, 20
(1812); see also Slocum v. New York Life Insurance Co., 228 U.S. 364, 377 (1913) (approvingly quoting
this language from Justice Story’s Wonson opinion).
98
Suja A. Thomas, Why Summary Judgment is Unconstitutional, 93 VA. L. REV. 139, 143 (2007) (showing that
only “the jury or the parties determined the facts,” not the judge, under English common law at the time
of 1791).
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FROM EXCLUSIVITY TO CONCURRENCE
24
the stipulated facts. Under the other common law procedures, the jury’s
finding of facts provided the ground for the case’s outcome. In the “special
case” following a jury’s general verdict, the court decided a disputed question
of law but used the jury’s findings of fact. Common law courts could grant
motions for a “new trial” on the ground that the evidence did not support the
jury’s verdict, but the result was a new trial during which time a (new) jury
would find the facts. Finally, under a compulsory nonsuit, a common law
court could enter judgment for a defendant following jury verdict for plaintiff,
but only if the jury’s verdict were unsupported as to a particular matter of
law.
Early American jurisprudence tracked England’s exclusivist approach
to dividing power between judge and jury. The 1913 case of Slocum v. New
York Life Insurance Co., and the cases on which it relied, are representative.
Before adoption of the federal rules of civil procedure in 1938, a federal
statute directed federal courts to apply state procedural rules in all common
law matters. Pennsylvania law at the time of the Slocum decision permitted
what today would be called a judgment notwithstanding the verdict:
Pennsylvania procedure authorized judges to disregard jury verdicts on finding
the evidence insufficient and instead to enter judgment for the other party.
The Slocum Court ruled that this procedure, when applied by federal courts,
violated the Seventh Amendment. The problem was not that the federal court
had set aside the verdict, for procedures available under the common law
(such as the motion for new trial) authorized courts to set aside jury verdicts
under specific circumstances. The sole problem, according to Slocum, was that
Pennsylvania’s procedural rule permitted the judge to “itself pass on the issues
of fact” by issuing a judgment for the other party.
The assumption of “exclusivity” – the notion that the jury’s and
judge’s constitutional duties vis-a-vis facts were wholly distinct and nonoverlapping – pervaded the Slocum decision. The following statement of the
Court is illustrative:
99
100
101
102
103
104
In the trial by jury, the right to which is secured by the Seventh
Amendment, both the court and the jury are essential factors. To
the former is committed a power of direction and superintendence,
99
See id. at 148-154, 156-57. Under the demurrer to the pleadings and demurrer to the evidence, one party
admitted to the facts alleged by the other party (the former after the pleadings had been filed, the latter
during the trial itself). Id. at 148-54. Under the special case, the parties could jointly stipulate to specific
facts. Id. at 156-57.
100
Id. at 157-58.
101
Id. at 155. Of particular relevance to the discussion above, insufficient evidence was not a basis for a
compulsory nonsuit. Id.
102
228 U.S. 364, 382 (1913)
103
See Practice Conformity Act, ch. 225, 17 Stat. 197 (1872). For a discussion, see Ellen E. Sward, The
Seventh Amendment and the Alchemy of Fact and Law, 33 SETON HALL L. REV. 573, 583 & n. 63 (2003).
104
Id. at 387-88.
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FROM EXCLUSIVITY TO CONCURRENCE
25
and to the latter the ultimate determination of the issues of fact. Only
through the cooperation of the two, each acting within its appropriate
sphere, can the constitutional right be satisfied. And so, to . . .permit
one to disregard the province of the other is to impinge on that right.105
Indeed, the Slocum Court quoted considerable precedent that
supported its “exclusivist” conception regarding the division of labor between
judge and jury. As early as 1812, Justice Story, sitting as a circuit justice, had
observed that “the facts once tried by a jury are never re-examined, unless a
new trial is granted in the discretion of the court before which the suit is
depending . . . or unless the judgment of such court is reversed by a superior
tribunal . . .” The logic of exclusivism was even more clearly in an 1885 case
in which the Supreme Court reversed a federal court that had awarded
judgment for the defendant after the jury had returned a verdict for the
plaintiff because “without a waiver of the right of trial by jury, by consent of
parties, the court errs if it substitutes itself for the jury, and, passing upon the effect of the
evidence, finds the facts involved in the issue and renders judgment thereon.” An 1899
Supreme Court decision likewise stated that “[t]he facts there tried and
decided cannot be re-examined in any court of the United Stated States . . .
[N]o other mode of re-examination is allowed than upon a new trial, either
granted by the court in which the first trial was had or to which the record was
returnable, or ordered by an appellate court for error in law.”
But exclusivism did not hold for long. Two lines of Supreme Court
decisions together had the effect of giving judges significant fact-finding
powers. Because this augmentation of the judge’s power occurred without
depriving juries of their fact-finding powers, the result was a regime in which
judges and juries had concurrent powers to find facts. The first line of
decisions addressed the question of when federal courts could keep cases from
juries on the ground that insufficient evidence had been put forward. The
second line of cases concerned what federal courts were permitted to do after
determining that evidence presented was not legally sufficient.
As to the first line of cases, the traditional rule was that a “case must
go to the jury unless there was ‘no evidence.’” The 1871 case of Improvement
Company v. Munson acknowledged (though derogatorily renamed) the
traditional rule, and then proceeded to “completely repudiate[]” it:
106
107
108
109
110
111
105
Id. at 382 (emphasis supplied).
106
United States v. Wonson, 1 Gall. 5, 20 (1812). Justice Story reiterated this understanding while writing
for the Supreme Court in Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447-48 (1830).
107
Baylis v. Travellers’ Ins. Co., 113 U.S. 316 (1885) (emphasis supplied), quoted in Slocum, 228 U.S. at
386-87.
108
See Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899), quoted in Slocum, 228 U.S. at 379.
109
See Galloway v. United States, 319 U.S. 372, 404 (1943) (Black, J., dissenting). For some examples of
the traditional rule, see, e.g., Drakely v. Gregg, 8 Wall. 242, 268 (case to jury if evidence “tended to prove
the position” of the party); Hickman v. Jones, 9 Wall. 197, 201.
110
81 U.S. 442 (1871).
111
Galloway, 319 U.S. at 404 (Black, J., dissenting).
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FROM EXCLUSIVITY TO CONCURRENCE
26
Formerly it was held that if there was what is called a scintilla of
evidence in support of a case the judge was bound to leave it to the
jury, but recent decisions of high authority have established a more
reasonable rule, that in every case, before the evidence is left to the
jury, there is a preliminary question for the judge, not whether there
is literally no evidence, but whether there is any upon which a jury
can properly proceed to find a verdict for the party producing it, upon
whom the onus of proof is imposed.112
In shifting from one legal test to another, the Court opened the door to
judges assuming significant fact-finding powers. Under the traditional rule,
the jury’s power to fact-find could not be exercised by the judge because the
jury heard the case if there was “‘any evidence’ to support a party’s
contention;” the judge could keep a matter from the jury only if there was no
evidence to be weighed or analyzed and hence no facts to be found. The
replacement test introduced in Munson, by contrast, authorized judges to keep
matters from the jury by deciding that the facts that had been put into the
record could not “properly” ground a verdict in view of the facts that had
been put in by the other side.
After the Munson rule took root, there is little question that federal
judges in fact took on the role of finding facts. This is well illustrated by the
case of Pennsylvania Railroad v. Chamberlain, which concerned the propriety of
a trial court’s order that a jury grant verdict for defendant. Writing for the
Second Circuit, Judge Learned Hand had reversed the district court’s
judgment, ruling that the district court should have allowed the case to
proceed to the jury because there was sufficient evidence to support a verdict
for the plaintiff. Citing to the Munson rule, the Supreme Court reversed
Judge Hand, deciding that the testimony of plaintiff’s sole witness could not
have supported a verdict for the plaintiff. It is hard to escape the conclusion
that the Supreme Court made credibility determinations and weighed the
evidence. Plaintiff’s witness was an experienced train yard worker who testified
113
114
115
116
117
118
112
Munson, 81 U.S. at 448 (emphasis supplied).
113
The “recent decisions of high authority” on which the Supreme Court relied all were decisions from
England that post-dated 1791. For a critical discussion of the Supreme Court’s reliance on these cases,
see Sward, supra note 103, at 594-99 (concluding that the English cases “in no way can [ ] be construed
as allowing judges to take cases away from the jury when there are disputes of pure questions of fact . .
.”).
114
Galloway, 319 U.S. at 404 (Black, J., dissenting).
115
Cf. Greenleaf v. Birth, 9 Pet. 292, 299 (1835) (“Where there is no evidence tending to prove a particular
fact, the court(s) are bound so to instruct the jury, when requested; but they cannot legally give any
instruction which shall take from the jury the right of weighing the evidence and determining what effect
it shall have.”).
116
For some time after Munson, the United States Supreme Court continued to recite the pre-Munson
“any evidence” test. See, e.g., Hepner v. United States, 213 U.S. 103, 115 (1909) (summarizing the law
as “requiring the court to send a case to the jury . . . where the evidence is conflicting on any essential
point”).
117
288 U.S. 333 (1933).
118
See 59 F.2d 986.
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FROM EXCLUSIVITY TO CONCURRENCE
27
that he saw a faster-moving 9-car train closely trailing a slower-moving 2-car
train, heard a loud crash, and thereafter discovered the decedent’s body. The
Court held that there was no evidence of a collision because the defendant
railroad company’s witnesses testified there had been no train crash and
plaintiff’s witness had said he heard a “loud crash” but did not use the word
“collision.” If this on its own were not enough, the conclusion that the
Court engaged in fact-finding seems irresistible in view of its statement that
“[t]he fact that [the defendant railroad’s] witnesses were employees of the
[railroad] . . . does not impair this conclusion.” This last statement, after all,
is an explicit assessment that the railroad’s witnesses were credible, and
credibility determinations are widely (and correctly) understood to be a crucial
component of fact-finding.
The second line of cases responsible for shifting concurrent factfinding authority to federal courts concerned what judges were permitted to
do upon determining the evidence to be insufficient to support a judgment.
Two common law features assured that juries, not judges, alone made the
ultimate findings of fact. First, the common law in 1791 did not have a
procedure akin to the directed verdict under which a party could ask the court
to rule in his favor after trial but before the jury’s verdict on the ground that
the other party’s evidence was insufficient. Second, although the common
law permitted the losing party to challenge the verdict after the jury had
delivered its verdict on grounds of insufficient evidence, a winning motion
netted a new trial before another jury, not a judge-awarded verdict.
Twentieth century cases eliminated these two limitations, importantly
augmenting judges’ fact-finding authority. As to the first limitation, the
decision of Galloway v. United States upheld the directed verdict under the
newly adopted federal rules of civil procedure, permitting the judge to enter
judgment after trial but before the jury had offered its verdict. Although many
previous Supreme Court decisions had approved procedures akin to the
directed verdict, Galloway appears to have been the first decision to allow a
directed verdict on the ground of insufficient evidence. The significance of
the Galloway decision’s approval of the directed verdict is dramatically
119
120
121
122
123
124
119
Id. at 338.
120
Id. at 343.
121
For another example, see the discussion of Galloway v. United States, 319 U.S. 372 (1943), infra note
125.
122
The common law procedure permitting a party to move for judgment after trial but before verdict, the
demurrer to the evidence, required that the moving party stipulate to the facts alleged by the non-moving
party. Galloway v. United States, 319 U.S. 372, 390 (1943). The judge accordingly did not find facts, but
took the facts stipulated by the moving party and applied the stipulated facts to the law. See Thomas,
supra note 98, at 150-54.
123
319 U.S. 372 (1943).
124
See Sward, supra note 103, at 599-613 (showing that earlier decisions had upheld directed verdicts
where one of the parties had offered no evidence at all or where court was asked to apply undisputed facts
to the law).
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FROM EXCLUSIVITY TO CONCURRENCE
28
amplified by the earlier Munson decision, which rejected the “any evidence”
rule and, as discussed above, gave judges the power to fact-find. Indeed,
Galloway itself well-illustrates the federal judge’s new powers to fact-find; three
dissenting Justices in the Galloway decision carefully reviewed the documentary
and testimonial evidence that had been adduced at trial and convincingly
demonstrated that the majority in the case, as well as the trial judge, had
“weigh[ed] conflicting evidence” and made credibility assessments.
As to the second original limitation, the decision in Baltimore &
Carolina Line v. Redman held that federal judges could not only disregard a
jury’s verdict on grounds of insufficient evidence, but also immediately enter
a verdict for the other party – the equivalent of a judgment notwithstanding
the verdict. Redman was an abrupt break with the Slocum decision discussed
above, which only twenty years before had held precisely the opposite. As
with the Galloway decision’s upholding of the directed verdict, Redman’s full
significance vis-a-vis judges’ fact-finding powers can be understood only upon
taking account of Munson’s rule. Indeed, by the time the Redman case came
before the Supreme Court, “four judges had considered the sufficiency of the
evidence, with two believing that the evidence was sufficient, and two
believing that it was not.” This alone strongly suggests that the judges’
125
126
127
128
129
125
See Galloway, 319 U.S. at 397 (Black, J., dissenting). the Supreme Court in Galloway v. United States,
319 U.S. 372 (1943), upheld a directed verdict against a veteran who had sued for benefits due under a
war risk insurance policy. The veteran had the burden of proving “total and permanent” disability no
later than May 31, 1919. The veteran’s guardian introduced testimony from a doctor who had diagnosed
the veteran as suffering from a form of dementia that had been triggered by the shock of conflict on the
battle field before 1919. The veteran also had offered the testimony of 2 fellow soldiers, a friend who had
known him both before and after the war, and his Commanding Officer, all of whom testified to
behaviors that were consistent with the symptoms of insanity that the testifying doctor had identified.
Id. at 408-12. Reviewing this testimony in detail, three Justices reasonably concluded in dissent that the
majority of the Court “re-examine[d] testimony offered in a common law suit [and] weigh[ed] conflicting
evidence.” Id. at 397 (Black, J., dissenting); see also Sward, supra note 103, at 603 (noting that “[t]he issue
in Galloway could not be classified as anything other than a question of fact: was Galloway permanently
and totally disabled by reason of mental illness as of May 31, 191, or not?”). Simply put, the majority’s
assertion that they “gave full credence to all of the testimony” is not credible. Galloway, 319 U.S. at 396.
126
See 295 U.S. 654 (1935).
127
Redman predated the federal rules of civil procedure and, pursuant to a federal statute then in force,
applied the procedures of the state in which the federal court sat. See Redman, 295 U.S. at 661.
128
To be sure, the Redman Court distinguished Slocum on the ground that the trial court had not yet decided
the defendant’s motion to dismiss and motion for directed verdict, both of which had been submitted to
the court before the jury began its deliberations. Redman, 295 U.S. at 658-59. The Second Circuit had
not deemed this technical difference to be material, and even the Redman Court acknowledged that “some
parts of the [Slocum] opinion give color to the interpretation put on it by the Court of Appeals.” Id. at
661. A fair reading of Slocum shows Redman’s acknowledgment to be a decided understatement.
Commentators justifiably have understood Redman as having effectively reversed Slocum. See, e.g.,
Thomas, supra note 98, at 168-73 (concluding that Redman was a “drastic change” from Slocum); Sward,
supra note 103, at 613-24 (“contrast[ing]” Redman and Slocum and showing that Redman was not supported
by other cases the opinion had relied upon).
129
Sward, supra note 103, at 616. Because the Supreme Court did not grant certiorari on the sufficiency
of the evidence, its opinion in Redman provides only a cursory review of the facts. Professor Sward nicely
reviews the factual record as it was discussed in the court of appeals decision, definitively showing that
the judges who had determined the evidence to be inadequate had weighed evidence and assessed
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FROM EXCLUSIVITY TO CONCURRENCE
29
determination that the evidence was insufficient was itself based on judicial
fact-finding, a conclusion that a review of the record bears out.
To be clear, Munson, Galloway, and Redman did not displace the jury’s
fact-finding powers and thereby replace one exclusivist regime with another.
Rather, these (and other) decisions created a regime in which judges also had
fact-finding powers. The contemporary result is a regime of concurrence in
which judges and juries both have fact-finding powers: juries still find facts and
return verdicts, but judges also exercise fact-finding powers when they issue
directed verdicts, motions-notwithstanding-the-judgment, and summary
judgments. As to the latter, a federal court deciding a motion for summary
judgment must determine if there is a “genuine issue as to any material fact”
by asking whether “a reasonable jury could return a verdict for the nonmoving
party.”
Under these standards, federal judges now “decide[] whether factual
inferences from the evidence are reasonable,” with the result that “[c]ases that
would have been decided by a jury under the common law are now dismissed
by a judge under summary judgment.” To date, however, the Court has not
been willing to acknowledge the degree to which federal courts have been
awarded fact-finding powers that used to belong solely to juries.
2. Juries and non-Article III Adjudicatory Tribunals. Juries
today share adjudicatory fact-finding power not only with article III judges,
but with yet another governmental institution: judges on non-Article III
tribunals. Administrative agencies are the most important of these non-Article
III tribunals. The rule today, as stated in the 1977 case of Atlas Roofing Co. v.
Occupational Safety and Health Review Commission, is that “when Congress creates
new statutory ‘public rights,’ it may assign their adjudication to an
administrative agency” and the non-Article III administrative judge then has
the power to find facts.
Further, “[t]his is the case even if the Seventh
Amendment would have required a jury [were] the adjudication of those rights
[to be] assigned instead to a federal court . . .” In other words, at least as
130
131
132
133
134
135
credibility. See id. at 614-16.
130
See supra note 129.
131
Fed. R. Civ. P. 56.
132
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
133
Thomas, supra note 98, at 143.
134
Atlas Roofing Co., Inc. v. Occupational Safety and Health Review Commission, 430 U.S. 442, 455
(1977).
135
Id. Independent of the Seventh Amendment question of whether administrative judges rather than
juries can find facts is the question of whether adjudicatory facts can be found by non-article III courts
– what is variously conceptualized as either a due process or an Article III question. Most federal
legislative schemes provide that agency facts are reviewable by federal courts (sometimes district courts,
sometimes only courts of appeals) under a substantial-evidence test, id. at 456 & n. 13, and this has
repeatedly been held to be constitutional. Id. The Supreme Court has not yet decided whether Congress
could “commit the adjudication of public rights and the imposition of fines for their violation to an
administrative agency without any sort of intervention by a court at any stage of the proceedings.” Id.
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FROM EXCLUSIVITY TO CONCURRENCE
30
regards public rights, the Supreme Court has forthrightly acknowledged that
administrative agencies and juries have concurrent authority to fact-find as a
constitutional matter. This amounts to significant concurrence because, as
Professor Monaghan recently has reminded us, “[t]he ‘public rights’ exception
is a wide and significant one” that “has been significantly enlarged so as to
absorb much of what hitherto had fallen into the private rights domain.”
Consistent with the general trajectory from exclusivity to concurrence
documented above in other doctrinal contexts, the Supreme Court has not
always acknowledged this concurrent regime. To the contrary, during most
of our country’s history, the Court has understood the Constitution’s
allocation of adjudicatory fact-finding authority in exclusivist terms. Cases
from the nineteenth and early twentieth century regularly asserted that lawsuits
brought by the federal government in federal court for civil penalties in
violation of federal statutes – in other words, lawsuits premised on what today
would be called “public rights” – qualified as “suits at common law” that
accordingly entitled the defendant to a jury under the Seventh Amendment.
The first case that upheld the constitutionality of a federal statute that
transferred adjudication from trial courts to an administrative agency without
affording a jury– a laconic decision by Justice Holmes in the 1921 case of Block
v. Hirsh– did so on the grounds that there existed an “exigency” on account
of the First World War that justified the “suspension of [the] ordinary
remedies” of trial by jury. The “publicly notorious . . . emergency” that
Congress sought to cure was inadequate rental properties in the District of
Columbia to accommodate employees of the federal government, and the act
addressed the problem by permitting tenants to remain in possession at the
same rent they had been paying so long as the rent paid was “reasonable” in
the determination of a housing commission established by the act.
The bulk of Justice Holmes’ opinion addressed not the Seventh
Amendment, but whether the rent control statute violated due process,
constituted a taking without just compensation, and violated the contracts
clause. Only after concluding that “a public exigency will justify the legislature
in restricting property rights in land to a certain extent without
compensation” did the Court, in its final paragraph, address the Seventh
Amendment. It cursorily concluded that “[i]f the power of the Commission
established by the statute to regulate the relation is established, as we think it
136
137
138
139
140
141
142
136
Congress has a choice as to which institution to entrust with fact-finding authority.
137
Monaghan, supra note 167, at 868.
138
Id. at 873.
139
See, e.g., Hepner v. United States, 213 U.S. 103, 115 (1909) (defendant “entitled to have a jury
summoned” in action of debt brought by the United States to recover penalty under federal statute
regulating immigration of aliens); United States v. Regan, 232 U.S. 37, 47 (1914) (same).
140
Block v. Hirsh, 256 U.S. 135, 158 (1921).
141
Id. at 154-57.
142
Id. at 156.
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31
is, by what we have said, this objection [based on the Seventh Amendment]
amounts to little. To regulate the relation and to decide the facts affecting it
are hardly separable.” In other words, so long as constitutional limitations
apart from the Seventh Amendment did not render the statute’s substantive
provisions unconstitutional, the Seventh Amendment was not violated either.
To this not-very self-evident proposition Holmes added two more brief
justifications. The very emergency justifying the act’s substantive provisions
equally excuse its summary procedures: because “[a] part of the exigency is to
secure a speedy and summary administration of the law” the housing
emergency also justified dispensing with jury trials. Finally, in any event,
Holmes wrote that there wasn’t much in the way of jury fact-finding was being
displaced, for “[w]hile the act is in force there is little to decide except whether the
rent allowed is reasonable . . .”
In short, the Block decision upheld what it deemed to be only a limited
incursion by an administrative agency into the jury’s fact-finding domain, and
did so on the narrow ground that the statute at issue aimed to remedy a
national emergency. Conversely, Block understood that a jury right to hear the
type of issues that were being decided by an administrative agency was among
a citizen’s “ordinary remedies.”
The next two Supreme Court decisions upholding administrative
agencies’ fact-finding powers did so by means of rationales wholly consistent
with exclusivism. The 1937 case decision of NRLB v. Jones & Laughlin Steel
Corp., best known for its commerce clause holding, also decided that the
National Labor Relations Board’s power to decide whether an unfair labor
practice had been committed and to order backpay did not violate the Seventh
Amendment. The Court reasoned that the NLRB’s power did not trench at
all on the jury’s role guarded by the Seventh Amendment. Said the Jones &
Laughlin Steel Court,
143
144
145
146
147
148
[t]he instant case is not a suit at common law or in the nature of
such a suit. The proceeding is one unknown to the common law.
143
Id. at 158.
144
Holmes’ proposition here is not self-evident because the Seventh Amendment is a constitutional
limitation that is independent of due process, the takings clause, and the contracts clause. Accordingly, the
mere fact that a statute does not violate these other clauses does not really tell us anything about whether
the Seventh Amendment is violated. For a similar argument, see Ellen E. Sward, Legislative Courts, Article
III, and the Seventh Amendment, 77 N.C, L. REV. 1037, 1041-42, 1099-1105 (1999).
145
Block, 256 U.S. at 158.
146
Id. (emphasis supplied). In fact, however, questions apart whether the rent was “reasonable” also could
arise under the act. Because the act provided that the owner shall have possession following 30 days
notice “for actual and bona fide occupancy by himself, or his wife, children or dependent,” id. at 154, the
question could arise as to whether an owner seeking to displace a tenant on this ground indeed was going
to occupy the residence. Indeed, the owner in the Block case had alleged that he wanted the premises for
his own use and the tenant had denied this. Id. at 156.
147
Id. at 158.
148
301 U.S. 1 (1937).
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It is a statutory proceeding.149
Because the Seventh Amendment by its terms applies only to “Suits at
common law,” the Jones & Laughlin Steel Court’s analysis meant that the
NLRB was performing functions that did not fall under the Seventh
Amendment.
The 1966 decision in Katchen v. Landy, which upheld the power of a
bankruptcy court, sitting without a jury, to adjudicate issues that would have
been entitled to a jury trial if the trustee had pressed the issues in a separate
lawsuit in federal court, similarly came to its conclusion with a rationale
thoroughly consistent with exclusivism. The Court reasoned that what would
have been a legal claim if pursued on its own is “convert[ed]” into an equitable
claim when it arises “as part of the process of allowance and disallowance of
claims” in bankruptcy. Because the Seventh Amendment does not attach to
equitable proceedings – its reference to “Suits at common law” long has been
understood to mean that the Seventh Amendment applies to suits in “law” but
not in “equity” – the Katchen Court readily concluded that the Seventh
Amendment did not allocate power to the jury to hear voidable preference
claims raised in the context of a bankruptcy proceeding. This reasoning is
wholly consistent with exclusivism insofar as the power exercised by the
bankruptcy judge did not overlap at all with the jury’s Seventh Amendment
granted powers.
Two cases in 1974 radically shifted the rationale for agencies’ powers
to engage in adjudicatory fact-finding and, in the process, created – or,
perhaps more accurately, acknowledged – a regime of concurrence. The
question in Curtis v. Loether was whether the Seventh Amendment entitled
litigants to a jury trial in actions for damages under the Civil Rights Act’s fair
housing provisions. According to the logic of Jones & Laughlin Steel the answer
should have been no because the housing right at issue in Curtis was
“unknown to the common law” and instead was “a statutory proceeding.”
In finding that litigants were entitled to a jury, Curtis radically retooled Jones &
150
151
152
153
154
155
156
157
149
Id. at 48-9.
150
The NLRB Court provided a second rationale that also was consistent with exclusivism. The Seventh
Amendment’s application to cases at “common law” long had been understood to mean that Seventh
Amendment rights did not attach to cases in equity, and the NLRB Court ruled that the case brought by
the NLRB was analogous to a case in equity rather than law. Id. at 48-9. The Court further held that any
monetary relief via orders of backpay were merely “incident[al] to (nonlegal relief) even though damages
might have been recovered in an action at law.” Id.
151
382 U.S. 323 (1966) (bankruptcy judges can decide voidable preferences without a jury).
152
Id. at 336.
153
Id.
154
See Parsons v. Bedford, 3 Pet. 433, 446-47 (1830).
155
Id. at 336-38.
156
415 U.S. 189 (1974).
157
301 U.S. at 48-9.
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Laughlin Steel, asserting that the case “merely stands for the proposition that
the Seventh Amendment is generally inapplicable in administrative
proceedings, where jury trials would be incompatible with the whole concept
of administrative adjudication and would substantially interfere with the
NLRB’s role in the statutory scheme.”
Three interrelated aspects of Curtis merit notice. First, whereas Jones
& Laughlin justified its conclusion on the nature of the legal right at issue (that
the legal right was statutory rather than common law based), Curtis’s holding
instead turned on where the litigation occurred: no jury in administrative
proceedings, jury in federal courts. Second, this shift created a regime of
concurrence: under Curtis’ approach, the identical legal right could be decided
by either a jury-free administrative agency or a court with jury. Third, Curtis
justified administrative agencies’ adjudicatory powers on the basis of naked
pragmatism: the Seventh Amendment is “generally inapplicable to
administrative proceedings” because “jury trials would be incompatible with the
whole concept of administrative adjudication.”
The same three elements are on display in the 1974 case of Pernell v.
Southall Realty. Like the Curtis decision, Pernell re-rationalized an earlier
decision – this time Block v. Hirsh – that had served to cabin agencies’
adjudicatory powers vis-a-vis juries. Whereas Block had upheld the agency’s
jury-free adjudicatory powers on the ground that exigent circumstances
justified an exception to a litigant’s “ordinary remedies,” Pernell recharacterized
Block as standing for a business-as-usual principle, stating that the case “merely
stands for the principle that the Seventh Amendment is generally inapplicable
in administrative proceedings . . .” As in Curtis, the Seventh Amendment’s
inapplicability was justified purely on practical grounds. Finally, Pernell
explicitly acknowledged the regime of concurrence it had created. Pernell ruled
that the Seventh Amendment required a jury to adjudicate the right to
possession of real property at issue in the case because the adjudication took
place in an ordinary federal court. The Court went on to observe that “[w]e
may assume that the Seventh Amendment would not be a bar to a
congressional effort to entrust landlord-tenant disputes, including those over
the right to possession, to an administrative agency.”
The Pernell decision thus expressly acknowledges that the identical
dispute could be resolved either by a jury (before a court) or a jury-free
administrative agency. Concurrence was fully acknowledged. As this section’s
158
159
160
161
162
163
158
415 U.S. at 194-95.
159
Id.
160
416 U.S. 363 (1974).
161
Id. at 383.
162
Id. (stating that “jury trials would be incompatible with the whole concept of administrative
adjudication”).
163
Id. at 383. See also Atlas Roofing Co. Inc. v. Occupational Safety and Health Review Commission, 430
U.S. 442, 455 (1977) (affirming this rule).
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34
tour through the case law shows, though, such a forthright acknowledgment
was a long time in the making.
C.
Adjudicatory Jurisdiction of Article III and non-Article III Courts.
Article III’s language that the “judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish” is readily prone to being understood
to mean that the federal judicial power only can be vested in Article III
courts, i.e., in an exclusivist manner. But, as Professor Monaghan writes,
164
[t]he expanding national government and the rapidly expanding
national domain quickly rendered any such conception untenable.
From the very beginning, the Court recognized ‘exceptions,’ i.e., that
significant federal adjudication could occur in non-Article III
tribunals.165
As the following discussion shows, Professor Mongahan’s perspicacious
observation is correct save for one thing: the Supreme Court long denied that
federal adjudication was occurring outside of article III courts, acknowledging
only in the 1960s that non-article III tribunals could exercise federal
jurisdiction. In other words, the historical trajectory noted in the movement
from Marbury to Ames recurs here: initial efforts to square the non-Article III
tribunals with an exclusivist interpretation of Article III ultimately gave way
to the recognition that non-Article III institutions share concurrent
adjudicatory power with Article III courts. In short, Professor Monaghan
appears to have anachronistically read today’s acceptance of concurrence back
into the earlier caselaw, obscuring the Supreme Court’s initial and
longstanding reluctance to abandon exclusivism. Just as Ames rejected an
exclusivist construction of the Constitution’s grants of original jurisdiction to
the Supreme Court, contemporary doctrine has rejected an exclusivist
interpretation under which only Article III courts can exercise “judicial
Power,” opting instead for a system in which “article I courts and the article
III courts frequently exercise a concurrent jurisdiction or otherwise share
portions of the judicial business.”
A circuit court case decided early in our country’s history – the 1803
166
167
164
See Caleb Nelson, Adjudication in the Political Branches, 107 COLUM. L. REV. 559, 565 (2007). Nelson;
Bator; CFTC v. Schor, 478 U.S. 833 (1986) (acknowledging that “[o]n its face, Article III, §1, seems to
prohibit the vesting of any judicial functions in either the Legislative or the Executive Branch.”) (Brennan,
J., dissenting) (emphasis in original); Cf. Monaghan, supra note 167, at 868 (“Article III might (at least as
an original matter) have been understood to require that if any adjudication by federal tribunals occurs,
it must occur in Article III courts”).
165
Id. at 868.
166
As will be discussed, however, two notable scholarly tomes recently have argued that non-article III
institutions do not in fact exercise constitutional “judicial power.”
167
See Paul M. Bator, The Constitution as Architecture: Legislative and Administrative Courts Under Article III, 65
IND. L. J. 233, 242 (1990); see also Henry P. Monaghan, Article III and Supranational Judicial Review, 107
COLUM. L. REV.833, 868 (2007) (noting that “significant federal adjudication [can] occur in non-Article
III tribunals.”).
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decision in United States v. More – nicely illustrates the exclusivist approach
first taken by American courts. An 1801 federal statute allowed justices of the
peace for the District of Columbia to collect fees from litigants for the judicial
services they performed. Though this provision was repealed a year later,
justice of the peace Benjamin More continued to collect fees. When More was
indicted, he contended that the 1802 repeal was unconstitutional because it
sought to diminish the compensation of a federal judge. The Circuit Court
of the District of Columbia agreed. Dismissing the indictment, the court said
as follows:
168
169
[i]t is difficult to conceive how a magistrate can lawfully sit in
judgment, exercising judicial powers, and enforcing his judgments
by process of law, without holding a court. I consider such a court,
thus exercising a part of the judicial power of the United States, as
an inferior court, and the justice of the peace as the judge of that
court.170
The circuit court’s holding was predicated on an unspoken assumption of
exclusivity. Having decided that the justice of the peace served on a federally
created court that acted judicially, the circuit court reflexively concluded that
the court therefore was an Article III tribunal (that accordingly enjoyed
protection against diminishment of compensation, thereby rendering the 1802
repeal unconstitutional). Without the assumption of exclusivity, the fact that
the justice of the peace served on a federal court exercising judicial power
would not automatically have meant it was an Article III court.
Exclusivist assumptions carried though to Supreme Court decisions
until well into the twentieth century. One of the Court’s most influential
discussions concerning non-Article III federal courts is found in the 1828
decision of American Insurance Co. v. Canter. The case concerned a ship
carrying a large quantity of cotton that had been stranded and lost on the coast
of the territory of Florida. A portion of the cotton had been saved by rescue
ships, and the question considered in the decision was whether a federally
171
172
173
168
7 U.S. (3 Cranch) 159 (1805) (circuit court opinions, 1803). The More case was brought to my attention
by an intriguing article by Professor Gary Lawson. See Lawson, supra note ?, at 879-86.
169
See U.S. CONST. ART. III, §1.
170
More, 7 U.S. at 161 n.*.
171
Id.; see also O’Donoghue v. United States, 289 U.S. 516 (1933) (holding that judges of the District of
Columbia’s Supreme Court and Court of Appeals are constitutionally protected from having their
compensation reduced).
172
Incontrovertible evidence of the proposition above in text is that the United States Supreme Court
reasoned in just this fashion 170 years after More was decided, ruling that Congress had the power to
create a non-article III court known as the Superior Court of the District of Columbia that could try
criminal cases for violation of federal law but that the court’s judges enjoyed neither life tenure nor salary
protection since they did not sit on an article III court. See Palmore v. United States, 411 U.S. 389 (1973),
discussed infra. Gary Lawson also has pointed out this relationship between the More and Palmore
decisions. See Lawson, supra note ?, at 893.
173
26 U.S. (1 Pet.) 511 (1828).
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36
created territorial court was competent to adjudicate salvage cases. As
Canter acknowledged, salvage falls within the admiralty jurisdiction that itself
is part of what Article III calls the “judicial Power of the United States.” Yet
the judges on the territorial courts held “their offices for four years,” not the
life tenure guaranteed by Article III. Canter held that the territorial courts were
“not constitutional courts” but that they nonetheless had jurisdiction to hear
the claims.
Is it fair to characterize Canter as an example of the Court’s resistance
to concurrence? After all, Canter could be said to be an instance of sameeffect concurrence insofar as it concurrent adjudicatory powers as between
Article III courts and territorial courts. This is true, but it seems to me that
Canter is most persuasively characterized as an instance where the Court
signaled its preference for exclusivism but was simply unable to embrace the
implications that all territorial courts be declared unconstitutional. In my
view, Canter’s same-effect rationale reflects an effort to reclaim exclusivism
rather than an embrace of concurrence. I come to this conclusion on the basis
of the utterly unconvincing nature of its argument that the territorial courts
were exercising something other than Article III judicial power. Chief Justice
Marshall upheld the territorial courts in Canter on the rationale that they were
174
175
176
not constitutional Courts, in which the judicial power conferred by
the Constitution on the general government can be deposited. They
are incapable of receiving it . . . . The jurisdiction with which they are invested,
is not a part of that judicial power which is defined in the Third Article of the
Constitution, but is conferred by Congress, in the execution of those
general powers which that body possesses over the territories of the
United States.177
Exclusivism thus was the conceptual bedrock of the Canter decision: the
Florida salvage courts could do what they did, despite their being manned by
judges without life tenure, only because their judicial powers did not qualify
as part of the “judicial Power of the United States.” Only Article III courts
174
The court that had heard the salvage claim had been created by the Florida territorial legislature
pursuant to a federal statute that had empowered the legislature to do so. See Canter, 26 U.S. at 20-21.
Though the petitioner argued that “Congress cannot vest admiralty jurisdiction in Courts crated by the
territorial legislature,” id. at 25, the Court quite reasonably collapsed the distinction between delegator and
delegee and instead analyzed as if Congress itself had directly created the salvage court in question. See
id. at 24 and discussion above in text. Professor Lawson treats Canter’s discussion as mere dictum
because the salvage court had been created by the territorial legislature rather than by Congress, see
Lawson, supra note ?, at 888, 892, but he offers no reason for believing that the delegee (the territorial
legislature) should have more power to create a non-article III court than the delegator (Congress). In
any event, as Lawson himself notes, subsequent Supreme Court decisions treated Canter’s discussion as
a holding, not dicta. See id. at 892.
175
Canter, 26 U.S. at 24(emphasis supplied).
176
See supra page 14.
177
Id.
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FROM EXCLUSIVITY TO CONCURRENCE
37
could exercise that power. Though the conclusion that territorial courts were
not Article III courts readily explained why territorial judges could have
limited tenure, the Chief Justice’s major premise consists of little more than
ipse dixit: unexplained was why and in what respect adjudications of
controversies falling within the jurisdiction of Article III courts by federally
created territorial courts were not part of the federal judicial power. An
unstated assumption of exclusivity, of the sort that animated Marbury, quite
clearly was doing the work.
The other great opinions of the nineteenth century upholding nonArticle III federal tribunals similarly justified their holdings on grounds
formally consistent with exclusivism, for they too premised their holdings on
the proposition that the non-Article III tribunals were not exercising federal
judicial power. Consider the important and influential decision of Murray’s
Lessee v. Hoboken Land & Improvement Co. Samuel Swartwout was a federal
collector of customs for the port of New York. Pursuant to an 1820 statute,
the treasury department conducted an internal audit and determined that
Swartwout had collected almost $1.4 million more than he had remitted to the
government. Under authority of the statute, the solicitor of the treasury issued
a “distress warrant” that directed a federal marshal to levy against and
thereafter sell certain of Swartwout’s real property to satisfy his debt.
It was argued in Murray’s Lessee that the marshal’s sale of Swartwout’s
property was unconstitutional because the treasury officials’ acts (auditing of
Swartwout’s account, ascertaining its balance, and issuing the distress warrant)
constituted the exercise of United States “judicial power” that only could have
been undertaken by an Article III court. In upholding the treasury official’s
act, Murray’s Lessee famously announced what has become known as the public
rights doctrine. At its core, the public rights doctrine is an example of
concurrence. In the Court’s own words,
178
179
180
181
182
183
[t]here are matters, involving public rights, which may be presented
in such form that the judicial power is capable of acting on them,
178
To be clear, I mean simply to characterize Canter’s reasoning from the internal perspective of its authors,
not to praise it. For a particularly trenchant critique of this aspect of Canter’s reasoning, see Bator, supra
note ?, at 241-42; see also Lawson, supra note ?, at 887-93; REDISH, supra note 20, at 36-9. Below I
discuss Justice Harlan’s radical reinterpretation of this part of Carter’s rationale. See infra page 38.
179
Consider also the well-known case of Martin v. Hunter’s Lessee, where the Court observed that “Congress
cannot vest any portion of the judicial power of the United States” in institutions aside from courts that
it had “ordained and established” under article III. Similar reasoning is present in Ex parte Milligan, 71
U.S. (4 Wall.) 2, 121 (1866), where the Court concluded that “ no part of judicial power of the country
was conferred on” military commissions “because the Constitution expressly vests it ‘in one supreme
court and such inferior courts as the Congress may from time to time ordain and establish,’ and it is not
pretended that the commission was a court ordained and established by Congress.”
180
59 U.S. (18 How.) 272 (1856).
181
Id. at 274-75.
182
Id. at 275.
183
See Monaghan, supra note 167, at 871 (noting that Murray’s Lessee “still remains the fountainhead for
the modern public rights doctrine”); Nelson, supra note 164, at 586-90.
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FROM EXCLUSIVITY TO CONCURRENCE
38
and which are susceptible of judicial determination, but which
congress may or may not bring within the cognizance of the courts
of the United States, as it may deem proper.184
The doctrine is an exemplar of concurrence because, under it, public rights
may be adjudicated in Article III tribunals or Article I tribunals. Like the
Canter decision, however, Murray’s Lessee upheld this concurrence while
formally holding fast to exclusivist justifications. After all, Murray’s Lessee
“admitted” that “if the auditing of [Swartout’s] account, and the ascertainment
of its balance, and the issuing of this process, was an exercise of the judicial
power of the United States, the proceeding was void; for the officers who
performed these acts could exercise no part of that judicial power.” The
Court upheld de facto concurrence (finding that two different institutions could
undertake the identical act) only by averring that the subject-matter was not
“necessarily . . . a judicial controversy” though it was something over “which
the judicial power c[ould] be exerted.” In short, an Article III court’s actions
would have constituted the exercise of judicial power, but the treasury
official’s identical actions did not. By thus squaring the circle, the Court aimed
to make concurrent powers formally consistent with exclusivism.
Exclusivist assumptions began to give way in the twentieth century.
The most important initial move was Justice Harlan’s opinion for the Court
in Glidden Co. v. Zdanok, in the course of which Harlan radically restated
Chief Justice Marshall’s reasoning in the Canter decision.
Glidden
acknowledged Chief Justice Marshall’s averment that territorial courts were
not courts “in which the judicial power conferred by the Constitution . . . can
be deposited” and were “incapable of receiving” the judicial power of which
the Constitution spoke, but Justice Harlan went on to state that
185
186
187
188
[f]ar from being ‘incapable of receiving’ federal-question
jurisdiction, the territorial courts have long exercised a jurisdiction
commensurate in this regard with that of the regular federal courts . . .189
Though surely sounding like a significant break with the past, Justice Harlan
labored to show that his and Marshall’s words in Canter were wholly
consistent:
[a]ll the Chief Justice meant . . . is that in the territories[,] cases and
controversies falling within the enumeration of Article III may be heard and
decided in courts constituted without regard to the limitations of
that article . . .190
But try as he may, Justice Harlan could not obscure the milestone his words
184
59 U.S. at 284.
185
Id. at 275.
186
Id. at 281.
187
Id.
188
370 U.S. 530, reh’g denied, 371 U.S. 854 (1962).
189
190
Id. at 545 & n. 13.
Id. at 544-45.
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FROM EXCLUSIVITY TO CONCURRENCE
39
constituted. For the first time, the Supreme Court had explicitly acknowledged
that non-Article III courts could “hear” and “decide” the same sort of “cases
and controversies” that fall under the federal judicial power and that
accordingly could be heard in Article III courts. The jurisdiction of nonArticle III courts could be “commensurate . . . with that of the regular federal
court,” wrote Justice Harlan. Perhaps the use of “commensurate” was
intended to leave room for concluding that the non-Article court’s jurisdiction
was not precisely identical to an Article III court’s powers, but Harlan did not
even try to explain in what respects the two institutions’ adjudicatory powers
differed. For all practical intents and purposes, Justice Harlan had formally
embraced concurrence.
By the end of the twentieth century, the Supreme Court had come to
fully accept non-exclusivity in relation to the federal judicial power. This is
most clearly seen in the decision of CFTC v. Schor. Going the final step
beyond Glidden’s acknowledgment that non-Article III courts may have
jurisdiction “commensurate” with the jurisdiction of Article III courts, Schor
observed that Congress could “authorize the adjudication of Article III
business in a non-Article III tribunal.” Its holding was consistent with this
observation: though the counterclaim at issue in the case was a “‘private’ right
for which state law provide[d] the rule of decision,” and which accordingly
was “a claim of the kind assumed to be at the ‘core’ of matters normally
reserved to Article III courts,” Schor rejected the view that a “bright line rule”
confined such claims to Article III courts and upheld the non-Article III
court’s exercise of jurisdiction. Surely Professor Monaghan is correct when
he speaks of today’s “system of shared adjudication between agencies and
Article III courts.”
D.
Legislative Power: Congress and Agencies. Early Supreme Court
decisions and early treatises understood Article I, Section I’s declaration that
“[a]ll legislative Powers herein granted shall be vested in a Congress” in
exclusivist terms: that only Congress may legislate. The threat to congressional
exclusivity in the early days came in the form of apparent congressional
191
192
193
194
195
196
197
198
191
Id. at 545.
192
Id. (emphasis supplied).
193
478 U.S. 833 (1986). The very different approach to understanding non-Article III courts that was
advanced by Justice Brennan in Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,, 458 U.S. 50
(1982), also acknowledged non-exclusivity. As Justice Brennan later described his approach in the
Marathon case, although “Article III, §1, seems to prohibit the vesting of any judicial functions in either
the Legislative or the Executive Branch . . .[t]he Court has, however, recognized three narrow exceptions
to the otherwise absolute mandate of Article III . . .” Schor, 478 U.S. at 859 (Brennan, J., dissenting)
(emphasis in original).
194
Id. at 851.
195
Id.at 853.
196
Id. at 857.
197
Monaghan, supra note 167, at 873 (emphasis supplied).
198
Merrill, Rethinking, supra note 54, 198, at 2098 (quoting U.S. Const. Art. I, § 1) (emphasis supplied).
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40
delegations of legislative power to other governmental institutions. The
response to such actions (rhetorically, at least ) – which, if allowed, would
have created a concurrent system in which institutions apart from Congress
also would have had legislative power – was unequivocal. Speaking of
delegations to the executive branch, the 1892 decision of Marshall Field & Co.
v. Clark asserted as follows: “[t]hat congress cannot delegate legislative
power to the president is a principle universally recognized as vital to the
integrity and maintenance of the system of government ordained by the
constitution.” Addressing legislative delegations to courts, Chief Justice
Marshall stated in the 1825 decision of Wayman v. Southard that “[i]t will not
be contended that Congress can delegate to the Courts, or to any other
tribunals, powers which are strictly and exclusively legislative.” Speaking
more generally, Thomas Cooley’s nineteenth century treatise declares that
“[o]ne of the settled maxims in constitutional law is, that the power conferred
upon the legislature to make laws cannot be delegated by that department to
any other body or authority.”
Virtually everyone today acknowledges, however, that, as a practical
matter, these nineteenth century statements of congressional exclusivism do
not describe contemporary American government. An extraordinary
proportion of contemporary lawmaking occurs in the extra-congressional
governmental entities known as administrative agencies.
As a formal doctrinal matter, though, contemporary constitutional
doctrine has not been willing to part with the myth of exclusivity. The nondelegation doctrine still purports to absolutely prohibit the delegation of
legislative power. The Court’s most recent non-delegation decision, Whitman
v. American Trucking Associations, Inc., is representative of contemporary
199
200
201
202
203
204
205
206
207
199
In none of the early cases did the Court strike down a federal statute on non-delegation grounds. For
a detailed discussion of the early cases, see Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV.
327, 353-72 (2002).
200
143 U.S. 649 (1892).
201
Id. at 692.
202
23 U.S. (10 Wheat) 1, 46 (1825).
203
Id. at 42. Chief Justice Marshall’s formulation here concededly is ambiguous as regards the question
of whether legislative power can be delegated: it might be thought that he means to say that powers that
are “strictly and exclusively legislative” cannot be delegated, but that matters that are legislative in
character that are but not “exclusively legislative” may be delegated. When read context, however, it is
clear that the Chief Justice meant to contrast “strictly and exclusively legislative” with matters that are nonlegislative yet still may be undertaken by the Congress, not with matters that are legislative and yet
delegatable. See id. at 43 (immediate sentence after sentence quoted above in text reads as follows: “But
Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.”);
see Lawson, supra note 199, at 358-59 (similarly concluding).
204
Thomas Cooley, Constitutional Limitations 224 (8th ed. 1927), quoted in Merrill, supra note 54, 198, at
2112 & n. 60.
205
See Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 45-7 (1985).
206
See Merrill, supra note 54, 198, at 2119.
207
531 U.S. 457 (2001).
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FROM EXCLUSIVITY TO CONCURRENCE
41
doctrine when it asserts that
208
[i]n a delegation challenge, the constitutional question is whether the
statute has delegated legislative power to the agency. Article I, §1,
of the Constitution vests ‘[a]ll legislative Powers herein granted . .
. in a Congress of the United States.’ This text permits no delegation of
those powers.209
How can this exclusivist rationale be harmonized with the
contemporary reality of widespread rule-making by agencies? The Court has
equated legislative power with discretion and has concluded that no legislative
power is delegated so long as Congress provides an “intelligible principle”
that cabins the administrative agency’s decisionmaking. But, as all legal
scholars agree, the Court has applied this standard in an extraordinarily loose
fashion that in fact has allowed administrative agencies to act with virtually
unfettered discretion. As explained above in Part One, statutes that instruct
agencies to regulate on the basis of “public interest, convenience, or
necessity,” to set “fair and equitable prices,” or to set ambient air quality
standards that are “requisite to protect the public health” all have passed
muster. Indeed, only two times in our nation’s history has the Court struck
down statutes on non-delegation grounds – and both occurred in 1935 before
210
211
212
213
214
208
Earlier caselaw formulated the constraint on Congress’ ability to delegate differently. Chief Justice
Marshall stated that “[t]he line has not been exactly drawn which separates those important subject, which
must be etnirely regulated by the legislature itself, from those of less interest, in which a general provision
may be made, and power given to those who are to act under such general provisions to fill up the
details.” Wayman, 23 U.S. (10 Wheat.) at 43. Today’s “intelligible principle” formulation originated in the
1935 decision of J.W. Hampton, Jr. & Co. V. United States, 276 U.S. 394, 409 (1935). Scholars debate
to what degree Hampton’s formulation represented a change in the doctrine. Compare Lawson, supra note
199, at 368-72 (arguing against the view that Hampton altered the doctrine announced by Chief Justice
Marshall) with Posner & Vermeule, supra note 227, at 1738-40 (concluding that “[t]he critical passage
from Wayman v. Southard, then, adopts a different theory than the one modern nondelegation
proponents have read into it”).
209
Id. at 472 (emphasis supplied). For other cases to similar effect, see, e.g., Touby v. United States, 500
U.S. 160, 165 (1991); United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932); J.W.
Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407 (1928).
210
See, e.g., id. at 472; Merrill, supra note 54, 198, at 2119.
211
The Court has invalidated only two statutes on nondelegation grounds, both in the same year. So, in
Cass Sunstein’s words, the doctrine has “had one good year, and 211 bad ones (and counting).” Cass R.
Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000). Thomas Merrill recently has argued
that “legislative power” entails “the power to make rules for the governance of society,” that
administrative agencies exercise precisely this power today, and that they properly do so as long as
Congress explicitly delegates them this power. Merrill, supra note 54, 198, at 2120. Gary Lawson
describes the status quo as one where the Court has found the intelligible principle standard to be satisfied
by“any collection of words that Congress chose to string together.” Lawson, supra note 199, at 371. Other
scholars who have noted that the non-delegation doctrine fails to curb delegations of de facto lawmaking
authority to agencies include David Schoenbrod and Marty Redish. See DAVID SCHOENBROD, POWER
WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION; REDISH,
supra note 20, at 135-61.
212
See NBC v. United States, 319 U.S. 190, 225-26 (1943).
213
Yakus v. United States, 321 U.S. 414, 427 (1944).
214
Whitman, 531 U.S. at 473.
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FROM EXCLUSIVITY TO CONCURRENCE
42
the Justices’ famous “switch in time.” Cass Sunstein puts it nicely when he
says that “it is more accurate, speaking purely descriptively, to see 1935 as the
real anomaly. We might say that the conventional [non-delegation] doctrine
has had one good year, and 211 bad ones (and counting).”
As a formal matter, defining legislative power as it has permits the
Court to continue to assert that no legislative power has been delegated. As
a pragmatic matter, however, by construing the non-delegation doctrine’s
“intelligible principle” so broadly, the Court has sanctioned a regime of
concurrence under which more than one governmental entity – Congress and
agencies – exercise de facto legislative power. This is what has led Justices
Stevens and Souter to criticize the Court for “pretend[ing] . . . that the
authority delegated” to administrative agencies “is somehow not ‘legislative
power’,” advocating instead that “it would be both wiser and more faithful to
what we have actually done in delegation cases to admit that agency
rulemaking authority is ‘legislative power.’” To use this Article’s terminology,
Justices Stevens and Souter argue that the federal legislative power today is
concurrently exercised by Congress and administrative agencies.
It is fair to say that virtually the entire scholarly community is of the
view that, as a purely descriptive matter, Justices Stevens and Souter have the
better of the argument: it is widely agreed that the Court’s expansive
interpretation of “intelligible principle” means that agencies exercise de facto
legislative power. This raises an interesting question: why does the current
majority continue to cling to the exclusivist rationale that no legislative power
has been, nor can be, delegated? Precedent provides a large part of the
answer: as Justices Stevens and Souter acknowledge, the Court’s past opinions
have uniformly relied on exclusivism.
But that only pushes back the question, for then it must be asked why
earlier Courts adopted the exclusivist assumption that only Congress could
exercise legislative power. Answering this question is complicated by the fact
that, as others have pointed out, early Congresses enacted statutes that appear
to have delegated lawmaking power to the executive and judicial branches:
one statute provided for military pensions “under such regulations as the
President of the United States may direct,” another authorized members of
the executive branch to license “any proper persons” to trade with Indian
215
216
217
218
219
220
221
215
Cass Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000).
216
Id.
217
Whitman, 531 U.S. at 488 (Stevens, J., concurring in part and dissenting in part, joined by J. Souter).
218
Consensus breaks down as regards what if anything should be done about this: more on this soon. True
even of Posner/Vermeule?
219
See id. (acknowledging that “there is language in our opinions that supports the Court’s articulation of
our holding . . .” and citing to a raft of such cases).
220
See Posner & Vermeule, supra note 227, at 1735-36.
221
Act of September 29, 1789, 1 Stat. 95, cited in Posner & Vermeule, supra note 227, at 1735.
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FROM EXCLUSIVITY TO CONCURRENCE
43
tribes “under such rules and regulations as the President may prescribe,” and
yet another authorized courts to “make and establish all necessary rules for the
orderly conducting of business in the said courts . . .” In other words, the
early Supreme Court cases quoted above that flatly asserted that Congress’
legislative power could not be delegated did so in the face of contrary practice.
This means that the “story” regarding the movement from exclusivity
to concurrence is a bit different here than elsewhere: the Supreme Court’s
insistence on exclusivity was not a description of what existed at the time, but
instead reflected the Court’s aspiration. And indeed, to this day, doctrine
formally denies that legislative power can be delegated, asserting that only
Congress can legislate. This is powerful evidence of the ongoing power of
exclusivist assumptions.
Finally, fully understanding the degree to which institutions apart from
Congress exercise de facto if not actual legislative power requires that we not
confine our inquiry to administrative agencies. Although frequently
overlooked, there is yet another governmental institution outside of Congress
where significant law-making occurs: courts, particularly when they interpret
vague statutes that do not fall under the rule-making aegis of an administrative
agency.
Our corpus of federal antitrust law is an excellent example, for
almost the entirety of antitrust law is the creation of courts.
The non-delegation doctrine does not apply at all to the de facto
delegations to courts that occur when Congress enacts vague statutory
language without delegating rule-making authority to an executive agency.
In such circumstances, courts in effect generate the law when they decide
questions on a case-by-case basis – what is variously called statutory
interpretation or federal common law. Constitutional doctrine imposes
virtually no limits on this sort of congressional delegation. Though the voidfor-vagueness doctrine at one point was conceptualized inter alia as an antidelegation separation of powers principle, today it almost exclusively is treated
222
223
224
225
226
227
228
222
Act of July 22, 1790, 1 Stat. 137, 137, cited in Posner & Vermeule, supra note 227, at 1735.
223
Act of September 24, 1789, 1 Stat. 73, 83, cited in Posner & Vermeule, supra note 227, at 1735.
224
not unique: similar wrt Story and jury’s role vis-a-vis the law.
225
This is frequently, but not wholly, overlooked. Professor Marty Redish and Gary Lawson, for example,
both have discussed these sorts of delegations. See Redish, supra note 227, at 140-41; Lawson, supra note
199, at 375-78.
226
See, e.g., National Society of Professional Engineers v. United States, 435 U.S. 679, 688 (1978) .
227
See Eric A. Posner & Adrian Vermeule, Interring the Non-Delegation Doctrine, 69 U. CHI. L. REV. 1721,
1731 (2002) (noting this); see also Margaret H. Lemos, The Other Delegate, 81 S. Cal. L. Rev. Xx
(forthcoming 2008). It should not noted, though, that the Court has applied the non-delegation doctrine
in the rare instances where Congress has delegated rule-making authority to courts, as with the Rules
Enabling Act and the Sentencing Reform Act, which created the United States Sentencing Commission
as an independent body within the Judicial Branch. See Mistretta v. United States, 488 U.S. 361, 386-90
(1989) (analyzing Sentencing Commission); Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1941) (upholding
Rules Enabling Act). For a defense of the position that there should be constraints on legislative
delegations to the executive branch but not to the judiciary that would keep Congress from enacting vague
statutes, see MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL STRUCTURE 140-41 (1995).
228
Rosen, NW U L. REv.
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FROM EXCLUSIVITY TO CONCURRENCE
44
as a due process principle designed to provide notice and to ensure nonarbitrary enforcement. Further, as a practical matter, the void-for-vagueness
doctrine primarily has been applied to state laws, and is limited almost
exclusively to the criminal and first amendment contexts.
E. Some other Contexts. The trajectory of exclusivity to concurrence
appears in other doctrinal contexts. Professors Ackerman and Golove have
shown that Congress and the President understood originally believed that a
certain class of international agreements only could be created by the treaty,
and that it was only in the mid-twentieth century that Congress and the
President came to believe that treaties and Congressional-Executive
Agreements were wholly “interchangeable,” i.e., that they were wholly (or
virtually wholly) concurrent. [To complete: Gibbons v. Ogden to Cooley;
horizontal federalism/Story’s exclusivism to Hague overlap]
229
230
231
232
III.
HOW AND WHY CONCURRENCE IS CREATED
Part II explained that exclusivism typically is the starting assumption.
This Part III examines the mechanisms by which concurrence has been
created as well as the reasons for the shift from exclusivity to concurrence.
A.
Mechanisms for Creating Concurrence. As shown in Part II, the
judiciary tends to start with exclusivist assumptions. Consequently, the move
toward concurrence typically has been initiated by non-judicial institutions.
Analysis of the contexts in which concurrence is found reveals three
mechanisms by which concurrence has been created.
1.
Delegation. The first, and probably most important,
mechanism for creating concurrence is delegation. Congress explicitly
229
See Colorado v. Hill, 530 U.S. 703, 732 (2000) (“A statute can be impermissibly vague for either of two
independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity
to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and
discriminatory enforcement.”). While some earlier void-for-vagueness cases conceptualized the doctrine
as ameliorating legislative delegations of authority to courts and juries, see, e.g., United States v. Ragen,
314 U.S. 513, 523-24 (1942) (holding that the statute was “not vague nor does it delegate policy making
power to either court or jury”); Cline v. Frink Dairy, Co., 274 U.S. 445, 457 (1927), this anti-delegation
rationale has “largely been abandoned in favor of . . . preventing arbitrary and discriminatory law
enforcement.” Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 AM.
J. CRIM. L. 279, 282 (2003). One modern Supreme Court decision has revived the non-delegation concept,
but assimilated it under the concern of arbitrary enforcement. See Grayned v. City of Rockford, 408 U.S.
104, 108-9 (1972) (noting that a “vague law impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary
and discriminatory application”). No recent case has relied on the delegation concept as a basis for
finding a law to be void for vagueness.
230
An influential and excellent student note written by Professor Amsterdam both noted this and proffered
an explanation as to why the void-for-vagueness doctrine primarily limited states rather than the federal
government. See Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REV. 67, 82-86
(1960). A recent article confirms that this trend has continued. See Goldsmith, Revisited, supra note 229,
at 290.
231
See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982)(“perhaps
the most important factor affecting the clarity that the Constitution demands of a law is whether it
threatens to inhibit the exercise of constitutionally protected rights”).
232
See Ackerman & Golove, supra note 29, at xx.
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FROM EXCLUSIVITY TO CONCURRENCE
45
delegates rule-making authority to agencies and implicitly delegates similar
authority to courts when it enacts open-ended statutory language and decides
against tasking agencies with rule-making authority to flesh out the statutory
language. Call this “Type 1 delegations.” Type 2 delegations are exemplified
by congressional delegations of adjudicatory authority to article I courts when
it creates them and vests them with adjudicatory jurisdiction that mirrors the
powers enjoyed by Article III courts. The difference between Type 1 and
Type 2 delegations is as follows: in the former, the delegator delegates its own
authority, whereas in Type 2 delegations the delegator delegates another
institution’s authority (e.g., a congressional delegation of Article III “judicial
Power” to an article I tribunal). The reason for distinguishing between these
two types of delegations should be obvious: institutional self-interest operates
as a check against overly extensive Type 1 delegations, but not for Type 2
delegations.
A few more observations regarding delegation are in order. First, Type
1 delegations typically create concurrence insofar as the delegator retains
power of the sort that it has delegated. Delegation accordingly results in a
situation where the delegator and delegatee both have power. The same is
true, mutatis mutandi, for Type 2 delegations.
Second, institutions apart from Congress can delegate. For instance,
it is conceivable that the President could delegate some of his powers.
Third, delegation is a mechanism that readily gives rise to (though need
not necessarily give rise to) same-source concurrence.
Fourth, and finally, analyzing the propriety of delegations demands
consideration not only of the nature of the powers delegated but the identity
of the delegatee. In this regard, it may matter whether the delegatee is a preexisting institution or a newly created institution. It is likely that a pre-existing
institution may be unable to receive certain powers that a new institution
could, if, for example, the delegated powers would be incompatible with the
pre-existing institution.
2.
Inherency. The second mechanism for creating
concurrence is what might be called “inherency..” Under inherency, a second
institution claims that its constitutionally-granted powers extend to authorizing
it to undertake the identical act “x” that another institution can undertake.
For instance, the Court has held that Congress’ powers to “constitute
Tribunals inferior to the supreme Court” subsumes the power to enact
immunity statutes that are functionally equivalent to the President’s pardon
power. Accordingly, inherency is the mechanism most closely associated
with same-effect concurrence.
3. Inactivity and Initiative-Taking. A third mechanism for
233
234
235
233
See, e.g., 48 U.S.C. §1424b(b) (1988) (vesting the District Court of Guam with “the jurisdiction of a
district court of the United States . . . and that of a bankruptcy court of the United States”).
234
U.S. CONST. ART. I, §8, CL. 9.
235
See Brown v. Walker, 161 U.S. 591, 601 (1896).
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FROM EXCLUSIVITY TO CONCURRENCE
46
creating concurrence is what I call “inactivity and initiative-taking.” This
occurs when the one institution with clear authority to undertake act “x” does
not, and another institution steps in to do so. A good illustration is provided
by the facts in United States v. Midwest Oil Company. An act of Congress
provided that public lands containing petroleum or other mineral oils were to
be “free and open to occupation, exploration, and purchase by citizens of the
United States . . .” After deciding that oil was being extracted too rapidly,
with the result that the government soon would be “obliged to repurchase the
very oil that it has practically given away” on account of the American Navy’s
increasing use of fuel, the President issued a proclamation withdrawing the
rights to extract petroleum from select locations on U.S. public lands.
Midwest Oil Company continued to extract oil following the
President’s decree, and was sued for doing so. Midwest argued in court that
the executive order was null insofar as it was not authorized by statute but, to
the contrary, contradicted an act of Congress that permitted petroleum
extraction. The Supreme Court upheld the President’s proclamation. The
Court provided two primary justifications. One was that although “no []
express authority has been granted” to the President to withdraw rights to drill
for oil, “there is nothing in the nature of the power exercised which prevents
Congress from granting it by implication . . .” This rationale reduces to an
(implied) delegation justification for the President’s exercise of essentially
legislative powers, but it is unpersuasive: why should the statute opening
public lands be understood as impliedly authorizing the President to withdraw
those lands? Far more persuasive is the Court’s second justification.
“[G]overnment is a practical affair, intended for practical men,” said the
Court, and Congress’s “rules or laws for the disposal of public land are
necessarily general in their nature” such that “[e]mergencies may occur, or
conditions may so change as to require that the agent in charge should, in the
public interest, withhold the land from sale . . .” In other words, (perhaps
understandable) congressional inaction provided the justification for
presidential initiative.
236
237
238
239
240
241
242
243
236
Justice Jackson alluded to this sort of mechanism in his Steel Seizure concurrence when he observed that
“[w]e may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress
itself can prevent power from slipping through its fingers.” Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 654 (1952)(Jackson, J., concurring).
237
236 U.S. 459 (1915).
238
Id. at 465 (quoting the statute).
239
Id. at 466-67.
240
Id. at 468.
241
Id. at 474.
242
The Court also pointed to a past practice of executive withdrawal of public lands. See id. at 469-72.
243
Id. at 474. It is worth adding that the Court refused to endorse the President’s effort to ground his
powers to issue the proclamation on his Commander-in-Chief powers, id. at 468, and that much of the
Court’s reasoning arguably turned on the fact that the case concerned public lands, id. at 474-75. For an
illuminating analysis of the case, see Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM.
L. REV. 1, 44-45 (1993).
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FROM EXCLUSIVITY TO CONCURRENCE
47
The mechanism of “inactivity and initiative-taking” has given rise to
the concurrent rule-making authority as between Congress and federal courts
that characterizes the dormant commerce clause and most areas of federal
common law. Congress has unquestioned authority to disallow (or approve)
all the state regulations that federal courts have deemed presumptively
unlawful under the dormant commerce clause. The Supreme Court has not
yet pointed to a persuasive doctrinal basis to ground its dormant commerce
clause doctrine, so, given the fact that Congress clearly has the power to
regulate everything that the Court is addressing, why has the Court proceeded?
The answer quite clearly is that the Court deems federal inaction in the face
of discriminatory state laws to be unacceptable, and so it has stepped into the
breach of congressional inaction and taken the initiative.
Although most instances of federal common law-making plausibly can
be justified on the basis of inherency basis – on the ground that Article III’s
“judicial Power” encompasses common lawmaking powers – what actually
has driven the Court to act and create federal common law is better described
by the “inactivity and initiative-taking” paradigm than judicial belief in its
inherent powers to do so. After all, even after Erie’s embrace of legal
positivism, which made it important to identify the source of judge’s power to
generate common law, the Supreme Court failed to specify the source of the
federal common law rules it announced, appearing to instead justify its actions
on the grounds of necessity. Consider in this regard the Court’s decision in
Clearfield Trust Co. v. United States, which was among the first post-Erie federal
common law cases. The Court explained that “[t]he rights and duties of the
United States on commercial paper which it issues are governed by federal
rather than local law” and then asserted that “[i]n the absence of an applicable
Act of Congress it is for the federal courts to fashion the governing rule of law
according to their own standards.” The Court wholly neglected, however, to
explain the source of federal courts’ powers to fashion law absent congressional
action. Consider as well a decision handed down the same day as Erie, Justice
244
245
246
247
244
I would add the caveat that federal courts’ common-lawmaking powers exist only to the extent that they
were not statutorily preempted, as it were, by the Rules of Decision Act. See Martin H. Redish, Federal
Common Law, Political Legitimacy, and the Interpretive Process: An “Institutionalism” Perspective, 83 NW. U. L. REV.
761, 795 (1989). This suggests that the Court’s dormant commerce clause may be particularly problematic
insofar as it applies federal law where state law is applicable and hence ought to be applied under the
terms of the Rules of Decision Act.
245
Prior to Erie, common law was widely understood as being judicial articulation of pre-existing natural
law rather than create judicial law-making. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 79 (1938)
(asserting that Swift v. Tyson’s sanctioning of federal courts’ common law powers rested on the
“fallac[ious]” natural law belief that there is a “transcendental body of law outside of any particular State
but obligatory within it unless and until changed by statute”); but see Jack Goldsmith & Steven Walt,
Erie and the Irrelevance of Legal Positivism, 84 VA. L. REV. 673, 683 (1998)(challenging this account). If,
following Erie, there was no “transcendental body” of law that courts merely declared when they
announced common law, the following question naturally arose: what then was the source of the
common law rule that a court declared?
246
318 U.S. 363 (1943).
247
Clearfield Trust, 318 U.S. at 366-67.
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FROM EXCLUSIVITY TO CONCURRENCE
48
Brandeis (Erie’s author) wrote that the apportionment of an interstate stream’s
water presents a “question of ‘federal common law.’” Brandeis cited to
earlier cases for the principle, but neither he nor the cited cases explained the
source of federal courts’ powers to create such federal common law – a
question that, it is worth repeating, becomes essential in the wake of Erie’s
embrace of positivism.
To be sure, in some contexts the Court has attempted to explain the
source of its powers to generate federal common law. Yet even here it is hard
to escape the conclusion that a perceived need to act, rather than firm belief
in its inherent powers, drove the Court’s decision to articulate federal common
law, for the inherency justifications the Court has offered are extraordinarily
weak. First consider the federal common law of admiralty and interstate
conflicts. The Court has said that the source of federal courts’ authority to
generate admiralty law is the Constitution’s “grant of general admiralty
jurisdiction to the federal courts.” As many have argued, however, this
justification seems inconsistent with Erie’s holding that the Constitution’s
grant of diversity jurisdiction does not empower federal courts to create
general common law in diversity cases. After all, “there is no obviously
relevant difference in the texts of the diversity and admiralty jurisdictional
grants.” If the diversity grant gives courts adjudicatory jurisdiction but not
the power to fashion substantive common law rules, why should the admiralty
grant operate differently?
Consider, as well, the Court’s holding in Textile Workers Union v. Lincoln
Mills that federal courts’ powers to create a body of federal law to enforce
collective bargaining agreements came from the Labor Management Relations
Act’s provision that federal courts have jurisdiction over “[s]uits for violation
of contracts between an employer and a labor organization . . . in an industry
affecting commerce.” Fairly read, this statutory provision is a jurisdictional
grant – which the Court in fact acknowledged. Reliance on a jurisdictional
grant as the source of a court’s power to generate federal common law thus
is subject to the same sort of post-Erie critique leveled above in respect of the
Court’s admiralty jurisprudence: Erie made clear the distinction between
248
249
250
251
252
253
254
248
Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938).
249
Though some lower courts and modern commentators similarly have sought to ground federal common
lawmaking power to the Constitution’s jurisdictional grant over interstate controversies, see PAUL BATOR
ET AL, HART & WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 884 (3rd ed. 1988)
(gathering sources), the same Erie-based critique leveled at the Court’s reliance on the admiralty
jurisdiction clause applies here: if the diversity grant gives courts adjudicatory jurisdiction but not the
power to fashion substantive common law rules, why should the interstate controversy grant operate
differently?
250
Northwest Airlines v. Transport Workers Union, 451 U.S. 77, 95-96 (1981).
251
See, e.g., Ernest A. Young, Preemption at Sea, 67 GEO. WASH. L. REV. 273, 312 (1999).
252
353 U.S. 448, 451 (1957).
253
Lincoln Mills, 353 U.S. at 451-52 (relying on 29 U.S.C. §185(a)).
254
Id. at 452 (stating the question before the Court as being whether the statutory provision at issue is
“more than jurisdictional”).
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jurisdictional and substantive law-making grants, and why should the LMRA’s
jurisdictional grant be the source of common law powers if the diversity grant
is not? Lincoln Mills also relied on what Justice Douglas’ opinion for the
Court termed “a few shafts of light” in the legislative history to buttress its
conclusion, but “[t]he Court’s handling of the legislative history was severely
criticized by the dissent and, subsequently, by commentators.”
B.
Reasons for Concurrence. The analysis of the case law provided
above in subsection one demonstrates that the judicial decisions upholding
concurrence all have stressed, and likely have been primarily driven by,
situation-specific pragmatic considerations. Frequently, though not always,
the Court also was able to point either to historical precedents or to the fact
that the practice of concurrence had become widely accepted or wellentrenched.
The courts’ explanations, however, typically do not venture beyond
relatively undeveloped assertions that concurrence is practical or efficient. In
response to this, this subsection cashes out the types of benefits that
concurrence brings. Consulting the case law’s explanations, but not confining
analysis to the justifications provided in the case law, seems particularly
appropriate to the task of ascertaining what drives concurrence insofar as
concurrence typically originates extra-judicially.
1. What The Courts Have Said
a.
Pragmatics and Past Practice. The Ames Court –
which, it should be recalled, reversed course from Marbury and upheld
Congress’ allocation of original jurisdiction of cases involving States and
ambassadors to inferior federal courts – premised its holding on two bases:
longstanding practice and considerations of practicality. Ames reasoned on
the basis of an analogous practice that had arisen in relation to federal courts’
adjudicatory jurisdiction in respect of ambassadors. The same section of the
Constitution that specified that the Supreme Court shall have original
jurisdiction over suits involving States provides that “the supreme Court shall
have original Jurisdiction . . . [i]n all Cases affecting Ambassadors . . .”
Since the early days of our Republic, however, this language had not been
understood to mean that only the Supreme Court could have original
jurisdiction in cases affecting Ambassadors. The 1789 Judiciary Act provided
that the Supreme Court “shall have exclusively all such jurisdiction of suits or
255
256
257
258
259
255
See also supra note 249 (noting similar critique that can be leveled at various efforts that have been
made to explain federal courts’ powers to create federal common law to resolve interstate controversies).
256
Id.
257
Merrill, supra note 205, at 40 & nn. 180-81.
258
Tellingly, the Ames Court did not distinguish Marbury on the basis of the Constitution’s specification
that “[i]n all other cases, the supreme court shall have appellate jurisdiction.” It quite plausibly could have
been argued on the basis of this language that the Supreme Court could not have original jurisdiction over
matters that the Constitution granted it appellate jurisdiction. Rather, the Ames Court distinguished
Marbury on the basis of longstanding practice and practical considerations, as discussed above.
259
U.S. CONST. ART. III, §2, CL. 2 (emphasis provided).
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proceedings against ambassadors” but “original, but not exclusive, jurisdiction of
all suits brought by ambassadors . . .” The Court specifically noted that this
legislation reflected a “construction” of the Constitution by Congress, and
provided a highly practical (though hypothesized) rationale for Congress’
“understand[ing] that the original jurisdiction vested in the supreme court was
[not] necessarily exclusive” :
260
261
262
keep[ing] open the highest court of the nation for the
determination, in the first instance, of suits involving . . . a diplomat
or commercial representative of a foreign government . . . was due
to the rank and dignity of those for whom the [constitutional]
provision was made; but to . . . deprive an ambassador, public
minister of consul of the privilege of suing in any court he chose
having jurisdiction of the parties and the subject matter of his
action, would be, in many cases, to convert what was intended as a
favor into a burden.263
The Ames Court also was impressed by the fact that this longstanding practice
was popularly accepted.
The Supreme Court itself, and commentators as well, likewise have
acknowledged that considerations of practicality drove the Supreme Court’s
jurisprudence upholding concurrent power as between Article I tribunals and
Article III courts. Justice Harlan’s decision for the Court in the Glidden Co. v.
Zdanok decision is exemplary. Justice Harlan traced non-Article III federal
courts back to Chief Justice Marshall’s opinion in the above-discussed Canter
case, which upheld a territorial court’s power to hear a case that would have
been justiciable under a federal district court admiralty jurisdiction. I
explained above how Justice Harlan’s opinion transformed the Chief Justice’s
264
265
266
267
260
Ames, 111 U.S. at 463-64 (quoting the 1789 Judiciary Act, with emphasis provided by the author).
261
Id. at 464. The Ames Court also observed that this construction was provided by “the first congress,
in which were many who had been leading and influential members of the convention, and who were
familiar with the discussions that preceded the adoption of the constitution by the states, and with the
objections urged against it . . .” Id. at 464. This raises an obvious question: shouldn’t these same
considerations have led the Court to decide Marbury differently?
262
Id.
263
Id. at 464.
264
The Ames Court also reviewed several circuit court opinions that upheld against constitutional
challenges the exercise by inferior federal courts of original jurisdiction in lawsuits involving foreign
consuls. Interestingly, the Ames Court also noted that one of the opinions was contemporaneous with
the decision of Chisholm v. Georgia, which famously caused immediate controversy and led to the quick
adoption of the Eleventh Amendment. The Ames Court said that “[i]t is a fact of some significance, in
this connection, that although the decision in Chisholm’s Case attracted immediate attention, and caused
great irritation in some of the states,” that the decision in the contemporaneous decision, “which in effect
held that the original jurisdiction of the supreme court was not necessarily exclusive, seems to have
provoked no special comment.” See id. at 465-69.
265
See Monaghan, supra note 167, at 868 (arguing that “[t]he expanding national government and the
rapidly expanding national domain quickly rendered [exclusivity] untenable”); Bator, supra note ?, at 254
(“The justification for the existence of territorial courts has always been essentially pragmatic”).
266
370 U.S. 530, 547 (1962).
267
Id. at 544.
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rationale. But why did Justice Harlan think that Canter’s holding was correct?
Harlan tells us: “The reasons for [Canter’s holding] are not difficult to
appreciate so long as the character of the early territories and some of the practical problems
arising from their administration are kept in mind.” There was “no state
government to assume the burden of local regulation,” with the result that
“courts had to be established and staffed with sufficient judges to handle the
general jurisdiction that elsewhere would have been exercised in large part by
the courts of a State.” It was imperative that these territorial courts not be
staffed by life-tenured Article III judges because there would have been no
need for them when the territories entered statehood.
This consideration, as well as other “problems not foreseen by the
Framers of Article III,” Justice Harlan says, explained Canter: “Against this
historical background, it is hardly surprising that Chief Justice Marshall
decided as he did. It would have been doctrinaire in the extreme” to rule otherwise.
Instead, continued Harlan, Chief Justice Marshall was “conscious as ever of
his responsibility to see the Constitution work” and accordingly “recognized
a greater flexibility in Congress to deal with problems arising outside the
normal context of a federal system.” Harlan then generalized, explaining
that “[t]he same confluence of practical considerations that dictated the result
in Canter has governed the decision in later cases sanctioning the creation of
other courts with judges of limited tenure” and that otherwise do not conform
to the requirements of Article III.
The Court relied on considerations of historical practice and
practicality in its other decisions upholding non-Article III tribunals as well.
In the landmark case of Murray’s Lessee v. Hoboken Land & Improvement Co.,
for instance, the Court upheld the non-Article III procedure for collecting
federal taxes on the historical grounds that it did “not differ in principle from
those employed in England from remote antiquity – and in many of the States,
so far as we know without objection . . .” The Court then explained the
pragmatic basis for this practice:
268
269
270
271
[P]robably there are few governments which do or can permit their
claims for public taxes, either on the citizen or the officer employed
for their collection or disbursement, to become subjects of judicial
controversy, according to the course of the law of the land.
Imperative necessity has forced a distinction between such claims and
all others . . .272
The nation’s courts-martial similarly were justified on the basis of
historical practice and practicality. Emphasizing the former, the early decision
268
See supra text and notes at note 188.
269
Glidden, 370 U.S. at 545 (emphasis supplied).
270
Id. at 546-47.
271
59 U.S. (18 How.) 272 (1856). The facts of this case are laid out in considerable detail supra at p. 37.
272
Murray’s Lessee, 59 U.S. at 282.
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of Dynes v. Hoover concluded that “Congress has the power to provide for the
trial and punishment of military and naval offences in the manner then and
now practiced by civilized nations . . .” Emphasizing considerations of
practicality, Ex Parte Quirin rejected the view that offenses against the laws
of war are subject to the requirements of the Fifth and Sixth Amendments,
holding instead that such offenses can be tried in military tribunals, “which are
not courts in the sense of the Judiciary Article, and which in the natural course
of events are usually called upon to function under conditions precluding
resort to such procedures.” Consistent with Ex Parte Quirin, the recent
landmark decision of Hamdan v. Rumsfeld candidly acknowledged that “[t]he
military commission, a tribunal neither mentioned in the Constitution nor
created by statute, was born of military necessity.”
Sometimes pragmatic considerations alone, absent historical pedigree,
have proven to be sufficient justification for the Court. Consider in this
regard its forgiving non-delegation doctrine. As the Court has said in its
more candid moments, “[o]ur jurisprudence has been driven by a practical
understanding that in our increasingly complex society . . . Congress simply
cannot do its job absent an ability to delegate power.” This justification has
been elaborated and defended by multiple scholars. Pragmatics without
pedigree also have sufficed in the Court’s Seventh Amendment jurisprudence,
which is explored immediately below.
b.
Efficiency. The judicial decisions sanctioning
concurrent judicial and jury fact-finding power were driven primarily by
another pragmatic consideration: efficiency and resource-preservation. The
Munson decision, which rejected the rule under which questions were
submitted to the jury as long as there was “any evidence” rule, justified its new
approach by citing to “recent decisions of high authority” that “have
established a more reasonable rule . . .” The “high authority” that the Supreme
Court cited all were English cases that post-dated 1791, the year that the
Seventh Amendment was adopted, and hence were not legally binding
authority. Moreover, a careful review of the cases suggests that none of
them went so far as to support the Court’s rule that judges can “take cases
away from the jury when there are disputes of pure questions of fact . . .”
The conclusion is inescapable that what ultimately led the Supreme Court to
273
274
275
276
277
278
279
280
273
61 U.S. 65, 79 (1857).
274
317 U.S. 1 (1942).
275
126 S.Ct. 2749 (2006).
276
Mistretta, 488 U.S. at 372; see also American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)
(observing that “[t]he judicial approval accorded these ‘broad’ standards for administrative action is a
reflection of the necessities of modern legislation dealing with complex economic and social problems.”).
277
Merrill, supra note 54, 198, at 2151-59, 2164-65; Posner & Vermeule, supra note 227, at 1743-45.
278
Munson, 81 U.S. at 448 (emphasis supplied).
279
See Sward, supra note 103, at 593. The earliest of these cases had been decided in 1853. See id.
280
Id. at 598.
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adopt its new rule in Munson was its belief that the new rule was – as the Court
itself said – “more reasonable” than the old one: Why let a case go to the jury,
even if there were some evidence in support of the plaintiff’s position, if a jury
could not “properly proceed to find a verdict” for the non-moving party?
Doing so would only waste the valuable time of the court, jury, and parties.
The Galloway decision, which determined that directed verdicts on
grounds of insufficiency of evidence did not violate the Seventh Amendment,
likewise grounded its holding on considerations of practice and practicality.
The “short answer” as to why “the Amendment [does not] deprive[] the
federal courts of power to direct a verdict for insufficiency of evidence,”
explained the Court, is that any contention to the contrary “has been
foreclosed by repeated decisions made here consistently for nearly a century”
with the result that any “objection therefore comes too late.” But the
Galloway Court did not end its analysis there, as it also aimed to establish that
“the consequences flowing from” the proposition that a judge’s only response
to insufficient evidence was to order a new trial “are sufficient to refute it.”
The conclusion that the Seventh Amendment demanded a new trial after the
plaintiff had failed to provide sufficient evidence in the first, said the Court,
would lead to “endless repetition of litigation and unlimited chance, by
education gained at the opposing party’s expense, for perfecting a case at other
trials.”
Unlike Monson and Galloway, the Redman Court was unable to justify its
new rule on grounds of past practice. This is becauseonly twenty years before,
in Slocum, the Court had rejected the proposition that a court could disregard
a jury’s determination and instead pass on the facts and substitute its own
judgment. Indeed, the Second Circuit decision that was appealed to the
Supreme Court in Redman had relied on Slocum for the proposition that a new
trial was the only remedy for a judge’s determination that a jury’s verdict had
been based on insufficient evidence, and the Supreme Court in the Redman
decision itself acknowledged that “some parts of the [Slocum] opinion give
color to the interpretation put on it by the Court of Appeals.” This is an
understatement: as reproduced above, Slocum had cited to many earlier decided
Supreme Court cases that had flatly asserted that only juries could find facts.
As a formal matter, Redman’s holding turned on a highly technical
distinction. Unlike Slocum, the defendant in Redman had moved for a directed
verdict on the grounds of insufficient evidence after evidence had been
281
282
283
284
285
286
287
288
281
Munson, 81 U.S. at 448 (emphasis supplied).
282
See also Chamberlain, 288 U.S. at 343.
283
Galloway, 319 U.S. at 389.
284
Id. at 392.
285
Id. at 393.
286
See supra note 129.
287
Redman, 295 U.S. at 656.
288
Id. at 661.
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adduced at trial but before verdict, and the trial court had reserved its decision
on the defendant’s motion. The Redman Court then pointed to the common
law procedure known as the “special case,” under which courts could submit
the case to the jury subject to reserved questions of law and, following verdict,
award verdict to a different party than the jury depending upon how their
resolved the reserved question of law.
So far Redman had done nothing out of the ordinary. What made
Redman revolutionary was its conclusion that sufficiency of the evidence was
among the legal questions that could be reserved pending the jury verdict
notwithstanding its acknowledgment that “issues of law are to be resolved by
the court and issue of fact are to be determined by the jury . . .” As of 1791,
the “special case” did not permit reservations concerning sufficiency of the
evidence. The one British case Redman cited that did support the conclusion
that reservations could be made as regards sufficiency of evidence was not
decided until 1853 – i.e., until after 1791 – and hence was not formally
relevant. Accordingly, the legal materials that were before the Redman Court
alone cannot explain its decision. In light of this, the efficiency-minded
practical reasons the Court adduced for its ruling most likely are what fueled
its decision: reserving questions “gave better opportunity for considered
rulings, made new trials less frequent, and commanded such general approval
that parties assented to its application as a matter of course” and, the Redman
Court suggested, these considerations carried over to questions as to whether
the evidence was sufficient.
2. Systematizing Concurrence’s Benefits. As shown above,
most of the Supreme Court’s justifications for concurrence amount to
context-specific observations that concurrence carried pragmatic benefits.
This section aims to formalize and systematize these benefits. In so doing it
builds upon, but does not limit itself to, the justifications that the Court has
289
290
291
292
293
294
289
Id. at 659-60.
290
See id. at 659 (“Whether the evidence was sufficient or otherwise was a question of law to be resolved
by the court.”).
291
Id. at 657.
292
See Thomas, supra note 98, at 156-57 (“[t]he court decided only a legal issue, which, under the common
law special case, did not involve a question of the sufficiency of the evidence.”). The pre-1791 British
cases cited by Redman were not to the contrary, as they concerned reservations of legal questions that did
not turn on disputed facts such as the interpretation of statutes, the interpretation of a written will, and
the determination of whether damages could be recovered against a person who induces another to breach
her contract. See Sward, supra note 103, at 616-24.
293
That case was Jewell v. Parr, 13 C.B. 909, 138 Eng. Rep. 1460 (1853). Professor Sward argues that
Jewell does not provide an adequate foundation for Redman because “the decision was necessary in order
to preserve a rule of law concerning who had primary responsibility for paying a bill,” id. at 595, and
accordingly was “more legal than factual.” Sward, supra note 103, at 595, 621. This distinction is
unconvincing, for the same reasoning readily could carry over to Redman: the judge’s determination that
the evidence propounded by insured was insufficient was “more legal than factual” insofar as it preserved
a “rule of law” that insurance companies will not be deemed contractually liable unless insureds come
forward with more than the evidence than was propounded in Redman.
294
Redman, 295 U.S. at 660.
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provided.
a. Unforeseen Circumstances. Non-Article III courts.
Administrative agencies. New institution delegations.
b. Efficiency. As shown above, the Court explicitly
pointed to efficiency considerations in its Seventh Amendment jurisprudence.
c. Works-Around. Concurrence has been turned to
as a mechanism for working-around various obstacles.
1.
Practical Barriers. Pragmatic barriers
(agencies, treaty-substitutes, article V amendment)
2. Inaction By Primarily Tasked Institution.
(DCC, FCL)
3. Constitutional Barriers. Probably most
controversial of all, concurrence occasionally has been turned to avoid
constitutional limitations that hindered the most obvious institution from
undertaking a particular task. Consider in this regard Professor Pfander’s
discussion of the Article I tribunal known as the Court of Claims. Under early
American practice, a private party who had a “public claim” against
government (such as contractors and other public creditors) would submit
petitions for payment directly to the legislature. “Shortly after the Revolution,
states began to experiment with the judicial determination of public claims.”
Congress wished to meld these two practices together by having courts take
the first crack at public claims but retaining ultimate control in deciding what
public claims to ultimately authorize. The Invalid Pensions Act of 1792
required article III federal courts to “hear the pension claims of veterans, to
estimate the degree of their disability, and to propose the proper amount of
compensation due them,” and then provided that such judicial determinations
would be reviewed by the Secretary of War and then Congress.
The validity of this mechanism for initial judicial review followed by
review by the executive and legislative branches, however, was determined to
be unconstitutional in Hayburn’s Case, which held that Article III requires that
the judiciary’s final decisions be final and accordingly could not be subject to
executive or legislative review. Hayburn’s Case’s finality requirement led
Congress to create the non-article III Court of Claims in 1855. “In creating
the Court of Claims, Congress was said to have created an Article I tribunal
subject to legislative oversight and free from the constraints of Article III.”
In short, as Pfander nicely puts it, Hayburn’s Case “purchased judicial independence
at the price of forcing Congress to turn to other institutions to perform the function of
preliminary adjudication.” In fact, Congress created several other non-article III
295
296
297
298
299
295
Id. at 701.
296
Pfander, supra note 20, at 699.
297
2 U.S. (2 Dall.) 409 (1792).
298
Id. at 702-3.
299
Id. at 702 (emphasis supplied).
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adjudicatory tribunals on the view that the Constitution flatly forbade it from
assigning particular adjudicatory tasks to Article III courts.
Such a use of concurrence presents difficult legitimacy challenges: Is
the Court of Claims a brilliant work-around, or a troublesome (even
unconstitutional) end-run around, article III’s finality requirement? Whereas
Pfander appears to throw his lot in with the first approach in characterizing
Hayburn’s Case as having “forc[ed] Congress to turn to other institutions to
perform the function of preliminary adjudication,” an alternative conclusion
would be that the Court of Claims is illegitimate: Congress cannot circumvent
Article III’s finality requirement by creating adjudicative bodies that look and
smell like federal courts but are simply called something else.
5.
Synergies. Whole greater than sum of its parts.
Complementing differing institution’ characteristics (Prospective versus
presentist, i.e. in Midwest Oil; access to experts (agencies); superiority of caseby-case decisionmaking, at least to generate initial rules (admiralty)
6. Addressing Emergencies. (Block v. Hirsh and non-jury
agencies). Danger of generalizing from the exception.
300
301
302
IV.
NOT ALL OR NOTHING
[to be written]
Many powers that everybody accepts are exclusively held by single
institution: (1) only Congress has appropriation power, (2) impeachment
powers; (3) only Pres has recognition power
Even where concurrence exists, often there are limits. Eg, Schor and
limits on article I courts’ powers. Youngstown limits presidential “legislative”
powers to independent powers + delegation.
Matters currently up for grabs: declare war;
V.
METHODS FOR ADDRESSING CONFLICTS
Though the possibility of conflict is a constant anxiety caused by
concurrence, and sometimes is viewed as a definitive reason to embrace
exclusivity, American law not infrequently confronts, and deals with,
conflicts among two or more institutions with overlapping powers. A review
shows that American law has developed six different methods for addressing
inter-institutional conflicts. Relatedly, a study of the various methods for
303
304
300
See, e.g., Pfander, supra note 20, at 706-12 (arguing that Congress originally created non-article III
territorial courts because it believed that inhabitants of territories “lacked federal rights to enforce”) and
that territorial courts were local rather than national courts).
301
Id. at 702.
302
Indeed, Congress didn’t even attempt to avoid the locution of “court” when creating the Court of
Claims.
303
See, e.g., Madison’s Second Helvidium letter.
304
Much of what follows in this Part is drawn from Mark D. Rosen, Revisiting Youngstown: Against the View
that Justice Jackson’s Concurrence Resolves the Relation Between Congress and the Commander-in-Chief, 54 UCLA L.
REV. 1703, 1717-31 (2007).
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addressing conflict shows that context-specific institutional considerations,
rather than trans-substantive principles, typically explain the selection of the
method. That we already have at our disposal multiple mechanisms for
dealing with conflict suggests that the prospect of conflict is not on its own a
sufficient reason to rule out concurrence. At most, the prospect of conflict
constitutes a cost of concurrence that appropriately is weighed against the
benefits that concurrence promise in a particular context.
A. Institution-Based Conflict-Resolution Principles. Two types:
(a) Categorical Institution-Based Conflict Rule: one institution’s acts
categorically trumps the other (e.g., supremacy clause; Congress trumps
dormant commerce clause and federal common law rules; judiciary’s
constitutional interpretations trump constitutional interpretations of other
institutions under Marbury). Call this a Type 1A conflict-resolution rule
(b) Presumptive Institution-Based Conflict Rule: one institution
presumptively, but non-categorically, trumps (e.g., juries find facts, subject to
narrow judicial overrides). Call this a Type 1B conflict-resolution rule.
B. Time-Based Conflict-Resolution Principles. Once again, two types:
(a) first-in-time (res judicata and collateral estoppel to resolve conflicts
among courts with concurrent authority – the first court to reach final
judgment trumps). Call this a Type 2A conflict-resolution rule.
(b) last-in-time (treaties, Congressional Agreements, and Sole
Executive Agreements, where conflicts among these are resolved on basis of
a last-in-time rule; Rest (2d) of Judgments §15 rule according last-in-time
trump to narrow category of res judicata issues: “When in two actions
inconsistent final judgments are rendered, it is the later, not the earlier,
judgment that is accorded conclusive effect in a third action under the rules
of res judicata”). Call this a Type 2B conflict-resolution rule.
Frequently used in relation to institutions of equivalent hierarchical
rank where there is no a priori reason to give trumping advantage to one
institution over another.
C.
Multi-factor Conflict-Resolution Principles. Eg, the multi-factor
approach used in state conflict of laws doctrine. Used in circumstance of
where institutions have equivalent hierarchical rank and a timing rule either
wouldn’t work or would exclude too many considerations that are adjudged
to be normatively relevant. Down-side: as number of considerations grows,
can become ad-hoc and unpredictable. Call this a Type 3 conflict-resolution
rule.
D.
No-Sorting Principles. A final possibility is that the law could
refuse to adopt a conflict-sorting rule, with the result that two (or more)
institutions are permitted to simultaneously act, even if they act inconsistently.
There are several possible outcomes. First, the regulated entities may be
subject to multiple rules simultaneously, some of which may conflict, and are
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58
expected to conform their behavior nonetheless. Other times, the different
institutions with overlapping authority may formally or informally negotiate
among themselves to coordinate their actions. Such coordination typically
is undertaken by the political branches of government, not the courts. Call
this a Type 4 conflict-resolution rule.
Alexander Hamilton proposed a Type 4 conflict-resolution rule in the
course of the Pacificus-Helvidius Debates. Madison, it should be recalled,
argued that if the President had the power to interpret treaties for one
purpose, then it necessarily followed that the President also had to have the
power to interpret treaties for purposes of determining whether war should be
declared. Since the Constitution grants Congress the power to declare war,
Madison concluded the President could neither declare war nor, as a
consequence, interpret treaties.
Hamilton disagreed, concluding that the President could interpret
treaties pursuant to the exercise of his general executive powers while the
Congress could interpret treaties in the exercise of its power to declare wars.
I showed earlier, Madison recoiled at this, largely because it opened the door
to conflicting treaty interpretations by the President and Congress. Hamilton’s
response concerning possible conflicts appears when he discusses a
hypothetical that pitted the President’s recognition power against Congress’
declare war powers. [to finish]
Possible justifications: Competition, spur to action, belief that
coordination likely to yield best outcome because pools institutional resources
of both institutions, no viable alternative conflict-resolution rule.
305
306
307
VI.
THE BIG PICTURE: META-NARRATIVES
IMPLICATIONS
A. Meta-Narratives.
AND
CONSTITUTIONAL
B. Constitutional Implications. Eg, the multi-factor
Originalism: treaty wrong (Tribe, Ackerman & Golove), but plausible sameeffect at least some places (Pacificus)
Textualists: a la Merrill, plausible delegations; same-effect perfectly plausible
change typically occurs at initiative of extra-judicial institutions. Broad
array of pragmatic considerations has given rise to concurrence in past.
[to write]
305
As I have explained elsewhere, this is true of state criminal law generally, and also is reflected in the
Double Jeopardy Clause’s “dual sovereignty” doctrine. See Rosen, Youngstown Revisited, supra note ?, at
xx.
306
(eg, UCCJA, cf. From checks and balances context of reconciling Senate and House bills).
307
Second Helvidius Letter, reprinted in Debates, supra note ?, at 66.
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