//  5/25/17  //  Commentary

Starting last Friday, I’ve written some on this blog about the constitutional challenge to the Consumer Financial Protection Bureau in PHH v. CFPB. On Monday and Tuesday, I used PHH as a case study for an article I had written, which was just published in the Duke Law Journal. The article, “Debunking Antinovelty,” argued that a federal statute’s novelty should not be used as an indication that a federal statute is unconstitutional. On Monday, I wrote the first in my two-part series about how that argument played out in PHH.

Also on Monday, Larry Solum wrote a post over on his blog in which he very kindly urged his readers to read my post (and also used a very nice descriptor of the post). His post also stated that I “fundamentally misunderstand[]” the “thus far but no farther” version of the anti-novelty argument, which is, in Solum’s words, “an originalist second best.” That version of the anti-novelty rule, according to Solum, preserves the constitutional status quo, and maintains that a novel assertion of government power would be unconstitutional “if and only if the novel assertion of government power is inconsistent with the original meaning of the constitutional text.” (Solum emphasized those words.)

I do not believe I misunderstand, fundamentally or otherwise, that version of the anti-novelty argument. My article devotes a full section to the idea that the anti-novelty rule is a second-best solution, under which new federal statutes would be adjudged constitutional according to the original meaning of the Constitution’s text (and without reference to judicial precedent, congressional practice, or other sources that don’t shed light on that originalist meaning).

As I wrote in the article:

This account of the Court’s antinovelty rhetoric—the limiting-principle  approach—does   not   justify   a   far-reaching   antinovelty   principle, only one that would apply when Congress has departed from—and the Court has allowed Congress to depart from—the “correct” constitutional principle.


Under the limiting-principle approach to the Court’s antinovelty rhetoric, ... [i]f the statute is “new,” judges would then determine   whether   the   statute   is   constitutional   based   on   the   Constitution’s original meaning.”

And, as I described the issue with respect to the CFPB and Free Enterprise Fund v. PCAOB:

But a principle that called into question all new federal statutes could be a means to ensure that Congress does not continue to transgress constitutional limits on its powers in new ways. Take the example of PCAOB. For purposes of PCAOB, the baseline constitutional principle is that the President has control over people who administer federal law. Congressional practice and doctrine have departed from this principle, but preventing Congress from enacting “new” restrictions on presidential control is a way to ensure that Congress does not stray even further.

Solum suggests I was saying that the limiting principle version of the anti-novelty argument would hold that novelty alone determines whether a statute is constitutional, full stop—that new statutes are unconstitutional, while statutes similar to previous statutes are not. As the above excerpts indicate, that is not my understanding of the limiting principle version of the anti-novelty argument.

That being said, I do think that, in the domains in which it is used (specifically, with respect to the President’s authority to remove agency heads, and the scope of Congress’s delegated powers under the Necessary and Proper Clause and other clauses in Article I, which are the areas I was writing about), novelty would function as something like a death knell for federal statutes. After all, the entire premise of using novelty as a limiting principle in this fashion is that the Supreme Court’s prior cases, and preexisting federal statutes, are inconsistent with the original meaning of the Constitution’s text, and thus unconstitutional. So, judging statutes in these areas according to the original meaning of the Constitution’s text would, more likely than not, result in those statutes being unconstitutional. Thus, I am not sure there would be that much of a difference between saying “in areas where precedent and practice depart from original meaning, new statutes will be judged according to their original meaning” and saying “in areas where precedent and practice depart from original meaning, new statutes are unconstitutional.”

Solum also defends the anti-novelty rule in these terms “Novelty is important because it allows us to draw a line between violations of the original meaning that must be tolerated (at least in the short to medium run) for pragmatic reason and constitutional violations that can be redressed without creating enormous disruption.” As the excerpted portions of my article suggest, I discuss that formulation in the piece (in Part—IV.C).

I won’t bore you with the details here (as I wrote on Tuesday, there are 85 pages of them!), but I reject that formulation of the anti-novelty argument as well, in part because of administrability concerns (such as there being no coherent way to operationalize novelty), in part because of coherence issues (there being nothing magical about novelty as opposed to what day a statute was enacted, even when the limiting principle is being used in areas in which the Court and Congress have purportedly departed from the original meaning of the Constitution’s text), and for other reasons as well.  The limiting principle version, after all, essentially maintains that Congress has exceeded its powers, so we should now arbitrarily stop at this point and just adhere to what we've already done.

I used PHH to illustrate the point on Monday and Tuesday--specifically, how using novelty as the metric to determine whether a statute is judged according to the original meaning of the Constitution's text or according to the text, practice, precedent and other sources does not and cannot deliver a coherent set of results, and generates arbitrary limits. The constitutional claim in PHH is that the President does not have enough control over the CFPB and its director. But the difference the challengers have identified between the CFPB and other independent agencies that they must (and do) treat as "constitutional" does not mean that the President has any less control over the CFPB than the President has over those other independent agencies. So, the second best limiting principle doesn’t do a good job at identifying statutes that are any more unconstitutional than prior ones.  It results in arbitrary and incoherent limits, which I do not take to be a virtue of the rule of law.

Moreover, the second best version of the anti-novelty argument does not, as Solum represents, merely “preserve[] the constitutional status quo.” The precedents and practices that the second-best version of the anti-novelty argument writes off as wrong and not to be taken seriously are part of the constitutional status quo. So are the reasons behind those precedents and practices, the forces that contributed to them, and the processes of constitutional change that led to them.  But all of that gets shorn of any weight (beyond the validity of the particular statutes, at least temporarily) under the second-best version of the anti-novelty argument.

Finally, Solum maintains that “Like most constitutional scholars (who reject originalism), Litman takes the Dynamic New Deal Settlement for granted.” I do not think that I take that settlement for granted. Rather, I offer reasons why I am not comfortable urging courts to brush aside congressional practice and judicial precedent that is purportedly inconsistent with the original meaning of the Constitution’s text, and some reasons why I am not comfortable urging courts to brush aside the reasons behind that practice and precedent, in favor of the second-best version of the anti-novelty argument.  

In addition to the many concerns about arbitrariness and coherence I allude to above, I look at it this way (to over-simplify this reason): There are reasons why prior Congresses and prior courts upheld practices that are purportedly inconsistent with the original meaning of the Constitution’s text, one major reason being that things change—some relevant facts changed, some relevant values changed, the assessment of the relevant facts may have changed, the assessment of relevant values may have changed, and so on. Once a constitutional theory recognizes that some “violations of the original meaning … must be tolerated … for pragmatic reasons,” as the limiting principle version of the anti-novelty argument does, I think it behooves us to take those pragmatic reasons more seriously—to ask what those reasons are, and why they are sufficiently important such that they take priority over the original meaning of the Constitution’s text. I tried to do some of that that in the article, and that's one of the reasons why I rejected the anti-novelty argument, even as a second best limiting principle for originalism.

While I may not be one of originalism's champions, it does not follow that I do not (fundamentally) understand the arguments related to originalism, even when I apparently evaluate the merits of those arguments differently than originalism's defenders do. But maybe the point of all this is that we are to  think twice before questioning originalism (or, more specifically, before questioning an idea that bears some relationship to originalism).

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