//  3/28/17  //  Commentary

At the always interesting and informative Lawfare, Benjamin Wittes and Quinta Jurecic posted a reaction to the most recent wave of judicial decisions on Trump’s “travel ban.”  Characterizing the decisions as a “[r]evolt of the judges,” Wittes and Jurecic ask “why are so many judges being so aggressive here?”

We agree with much of what Wittes and Jurecic have to say, including their suggestion that courts may be viewing President Trump’s actions skeptically given their overall context, which includes Trump’s own statements.  Where we depart from them is in the suggestion that the judges in the EO litigation are doing something out of the ordinary, and perhaps illegitimate—that they are “consulting the atmosphere overmuch,” or engaging in “gestalt” judgments when they normally would (and should) focus on something more narrow, such as the text of the EO and its accompanying official administrative record.

In fact, the judges in the EO litigation are doing exactly what judges do, and have always done, in cases involving the executive—judging the propriety of the executive’s actions in light of the history, context, and statements surrounding that action.  And when the full context shows that the reasons underlying the executive’s acts may not be as stated, or that there is something else amiss, the courts do not hesitate to act.  The EO litigation is thus less a “revolt of the judges” than another round of the standard fare of judging.

Consider the following examples—drawn from cases raising issues large and small—all of which involve “consulting the atmosphere” or otherwise forming conclusions based on the full context in a way that Wittes and Jurecic imply is unique to the litigation surrounding the EO.

(1)  Questioning Reasons: Youngstown vs. Dames & Moore

The Youngstown framework is, as one of us has explained, a framework for deciding cases about the relationship between the President and Congress—specifically, about when the separation of powers allows the President to take some action without congressional authorization, or even in defiance of congressional directives.  Teaching the Youngstown framework often involves a comparison between two cases—Youngstown itself and Dames & Moore v. Regan.  That comparison illustrates how these Supreme Court decisions were both informed by “gestalt” assessments regarding the propriety of the underlying executive action—in other words, “the atmosphere” accompanying the challenged executive actions.

In Youngstown, President Truman argued that seizing steel mills was necessary to ensure the availability of steel, which, in turn, was necessary to national defense. In his opinion announcing (and applying) the “Youngstown framework,” Justice Jackson concluded the seizure was contrary to Congress’s directives.  (Justice Frankfurter concluded the same.)  Although no statute specifically forbade the President from seizing steel mills to resolve steel shortages arising from labor strikes, Congress had provided for seizures under certain conditions.  Thus, in Jackson’s words, Congress had “not left seizure of private property an open field.”

Then came Dames & Moore v. Regan, which also applied the “Youngstown” framework to a Presidential action. But unlike Youngstown, Dames & Moore concluded that the President’s actions were consistent with Congress’s wishes, rather than contrary to them.  In Dames & Moore, the President had suspended legal claims against Iran or its instrumentalities.  No statute authorized the suspension.  But no statute prohibited it, either. Rather, as in Youngstown, Congress had specified a bunch of things the President could do in cases involving Iran, such as nullifying or transferring attachments.  Congress had, in other words “not left … an open field.”   But, rather than inferring from the various related legislation that Congress, by implication, had rejected the President’s actions, the Court made the opposite inference—that Congress, by implication, had approved of them.  It explained that the statutes were “highly relevant in the looser sense of indicating congressional acceptance of a broad scope for executive action.”

How could the Court take the same evidence—statutes giving the President some, but not all, powers in a particular domain—to mean both disapproval and approval?  The answer, we suspect, is that the Court was driven by underlying “gestalt,” “atmospher[ic]” considerations about the propriety of the Presidents’ actions.  

In fact, the opinions in Youngstown (there were several of them) suggest as much—the majority characterized the President’s actions as “labor disputes,” rather than “national security” or “defense” issues, indicating that the Court simply didn’t buy Truman’s stated rationale. Justice Frankfurter reasoned that the President’s failure to ask Congress for authorization to seize the steel mills indicated there wasn’t really any “there” there to the President’s national-security claim: “[T]he President … never suggested that in view of the new events he needed the power of seizure.” And Justice Jackson pointedly confessed that judges were incapable of entirely overcoming the “mental hazard[]” of “confusing the issue of a power's validity with the cause it is invoked to promote, [i.e.,] of confounding the permanent executive office with its temporary occupant”—in other words, of considering the context of the specific President’s use of a particular power.

Thus, courts reached different conclusions in Youngstown and Dames & Moore about whether a President’s actions were “authorized” by consulting their intuitions, rooted in a consideration of context, about what the President had done. In Youngstown, the Court was skeptical that seizing steel mills was necessary for national defense, as the President had claimed.  But in Dames & Moore, the President’s claims—that suspending claims was necessary to make good on the hostage release agreement with Iran—rang more true.

(2)  Establishing Motive:  Texas v. United States

“Atmospher[ics]” and “gestalt” judgments about a particular President, his administration, and the administration’s goals, also factored into Texas v. United States, which addressing the Obama Administration’s use of enforcement discretion in the immigration field.  (In particular, that case reviewed the Deferred Action for Parental Accountability program and expanded Deferred Action for Childhood Arrivals program).  In that case, courts suggested that the President’s intent in establishing the DAPA and DACA programs was relevant to their analysis.

In Texas, both the Fifth Circuit Court of Appeals and the district court addressed whether the DAPA policy was a “legislative rule” that had to go through notice and comment rulemaking.  In both cases, the courts considered the President’s intent in creating DACA, and statements surrounding DACA’s creation.  Bothcourts cited the President’s “explicit[] state[ment]” that “‘it was the failure of Congress to enact such a program that prompted him … to ‘change the law’” in support of the courts’ conclusion that DAPA did in fact change the law, and thus had to go through agency rulemaking channels.  The courts, in other words, made a gestalt-y judgment about what the administration was trying to do in DAPA.  Maybe you think that’s permissible; maybe you think it’s impermissible.  But the point is, the courts reviewing Trump’s Muslim Ban aren’t doing anything that hasn’t been done before (and been done recently).

At the time, some commentators—including at least one who is now critical of the courts for inquiring into the President’s motivations in the Muslim-ban litigation—urged the courts to undertake just such an inquiry when determining whether DAPA was constitutional. Professor Josh Blackman has argued that, in the EO litigation “courts shouldn’t try to read Trump’s mind,” because “it is not the court’s job to peer into the president’s psyche.”  But Blackman insisted that courts should have attempted to read the President’s mind in the DAPA litigation, proclaiming that “we must look to the state of mind of the President: the ‘sole organ’ of the Executive Branch.” He argued that “[i]n contrast to that of Congress—which is a they, not an it—the intent of the President can be more easily gleaned.” 

In fact, in two other pieces, Blackman repeated the same claim.  Texas cited Blackman on this point, as well as the President’s statements, in its brief in the Supreme Court, arguing that “the President’s own statements” indicated DAPA was unconstitutional.  It matters little, which is to say not at all, that the EO cases raise a different claim than was raised in the Texas litigation:  As other contributors on this blog have explained, it is blackletter law that “intent” is relevant to the claims the courts are adjudicating in the EO litigation.

(3) Peering Into the Black Box:  Allentown Mack

Judicial consideration of context is not limited to the highest-profile of controversies or those involving the President, either.  Take Allentown Mack Sales and Service v. NLRB.  On its face, that case presented the question whether an employer had a “good-faith reasonable doubt” that the majority of its employees supported the incumbent labor union.  The National Labor Relations Board (NLRB) decided that the employer in question did not, citing numerous pieces of evidence, including witness testimony, in support of its conclusion.  The Supreme Court, in an opinion by Justice Scalia, set aside the Board’s determination under the quite deferential “substantial evidence” standard for agency fact-finding.

There is evidence that Allentown Mack’s particularly aggressive review of agency action was driven by the Supreme Court’s judgment that something more was afoot than simple agency error.  Indeed, Part IV of the Court’s opinion pointed to other NLRB decisions as well as “academic commentary” to conclude that the Board was actually applying a more stringent test than the “formally announced” “good-faith reasonable doubt” standard.  That is, the Court relied on extrinsic evidence to conclude that the agency was in fact applying a different standard than the one announced.  And that, the Court concluded, was not permitted.

(4) Curbing Perceived Unfairness:  Sackett v. EPA

Finally, consider another opinion by Justice Scalia, Sackett v. EPA.  That case involved an even more technical question than the one in Allentown Mack—namely, whether the Sacketts, owners of land in Bonner County, Idaho, could challenge as “final agency action” an EPA compliance order determining that their property included “navigable waters” subject to the Clean Water Act.  If their land, which the Court described as a “residential lot” “separated from [a nearby] lake by several [other] lots,” was subject to the Act, the Sacketts would have had to comply with costly conditions and potentially would have been restricted from building on the property.

The Court held that the Sacketts could immediately challenge the EPA’s “navigable waters” finding.  Although the issue turned on the resolution of several rather dry administrative procedure questions, it is hard not to come away with the impression that the Court—or at least several of its members—were more concerned about the fate of individuals like the Sacketts than the legal arcana involved.  Justice Scalia’s majority opinion describes the “fuss” created by the law concerning the meaning of “navigable waters” and characterizes the Sacketts as “interested parties feeling their way.”  Justice Alito, in his concurrence, is more straightforward, describing the state of affairs the following way:

The position taken in this case by the Federal Government … would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees... 

* * *

The Court’s decision provides a modest measure of relief…. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune. 


In some ways, the above observations accord with what good lawyers already know:  In cases where the law is unclear, it helps to have the facts on your side.  It helps to create an atmosphere where the judges want to rule for you.  Good brief writers understand this intuitively.  And good teachers work hard to place difficult cases in their proper context, without which those cases often can’t be properly understood.

But these truisms are perhaps worth repeating at a moment in time when the President threatens so many core norms that the world often appears upside down.  It may not be the courts that have changed at all; it’s just that the President has.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP