Full Book - Vol. 46, No. 1 - Vermont Law Review

VERMONT LAW REVIEW

VOLUME 46 NUMBER 1 FALL 2021

ARTICLES

Trump v. Mazars USA, LLP: The Case of the Chief Justice and the Congressional Subpoenas Congress Can Delegate Authority, But Not Responsibility: Accountability for the Domestic Use of the Armed Forces Limits on the Unitary Executive: The Special Case of the Adjudicative Function Rolling Back and Losing Ground: EPA Regulation and Enforcement in the Trump Era

Rodger D. Citron

Richard K. Sala

Harold J. Krent

Joel A. Mintz

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FDA, Just Say No: Why Using Beta-Agonist Drugs in Animals for Consumption Requires New FDA Regulations

Ashely Monti

VERMONT LAW REVIEW


ARTICLES

Trump v. Mazars USA, LLP: The Case of the Chief Justice and the Congressional Subpoenas Congress Can Delegate Authority, But Not Responsibility: Accountability for the Domestic Use of the Armed Forces Limits on the Unitary Executive: The Special Case of the Adjudicative Function Rolling Back and Losing Ground: EPA Regulation and Enforcement in the Trump Era

Rodger D. Citron

Richard K. Sala

Harold J. Krent

Joel A. Mintz

1

24

86

124

VERMONT LAW REVIEW NOTE COMPETITION WINNER

FDA, Just Say No: Why Using Beta-Agonist Drugs in Animals for Consumption Requires New FDA Regulations

Ashely Monti

155

VERMONT LAW REVIEW


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TRUMP V. MAZARS USA, LLP: THE CASE OF THE CHIEF JUSTICE AND THE

CONGRESSIONAL SUBPOENAS

Rodger D. Citron*

INTRODUCTION ..................................................................................... 1 I. Trump v. Mazars USA, LLP: Setting the Stage ................................ 5

A. Litigation in the Lower Courts ................................................ 5 1. Trump v. Mazars USA, LLP ................................................ 5 2. Trump v. Deutsche Bank AG ............................................... 6

B. The Parties’ Contentions in the Supreme Court ..................... 7 C. The Political Question Inquiry ............................................... 8

II. Oral Argument in Trump v. Mazars ................................................ 9 A. Chief Justice Roberts’ Questions .......................................... 10 B. Cards on the Table: Questioning by Justices Alito and Sotomayor .................................................................................. 10 C. Cards Close to the Vest: Questioning by Justices Gorsuch and Kavanaugh .......................................................................... 12 D. Performance of House Counsel ............................................ 14

III. The Supreme Court’s Decision in Mazars .................................. 15 A. Congressional Power to Investigate ..................................... 16 B. Whether a Higher Standard Should Apply When Congress Seeks the President’s Papers ..................................................... 17 C. The Supreme Court’s Compromise & Remand ..................... 19 D. The Dissents .......................................................................... 20

IV. Mazars & the Court’s Other Separation-of-Powers Cases in the 2019–2020 Term ............................................................................... 20 CONCLUSION ...................................................................................... 22

INTRODUCTION

Since his appointment in 2005, Chief Justice John G. Roberts, Jr. has had a dual identity. There is the Chief Justice Roberts who is playing the long game with his reputation—the jurist with an eye towards history. This is the Judge Roberts who dazzled at his confirmation hearings in 2005, the Chief Justice Roberts who extolled the virtues of consensus in an

2 Vermont Law Review [Vol. 46:001 adoring profile in The Atlantic in 2007, and the Chief Justice who avoided a partisan ruling when he abandoned his fellow conservatives to provide the fifth vote upholding the Affordable Care Act’s individual mandate in 2012.1

There also is the Chief Justice Roberts who is determined to continue to entrench conservative legal principles as the federal law of the land. This is the Chief Justice who presides over a Supreme Court that gutted a key provision of the Voting Rights Act in 2013, invalidated campaign finance laws in a number of cases, and invoked the political question doctrine to end litigation over claims of partisan political gerrymandering.2

* Rodger D. Citron is the Associate Dean for Research & Scholarship and Professor of Law at Touro College, Jacob D. Fuchsberg Law Center. He thanks Conor Byrnes and Garrett Wakefield for their excellent research assistance and Library Director Irene McDermott and her staff, Andrea Cohen, Eileen Kaufman, Jeffrey Morris, and Bill Petersen for their time and help along the way. Parts of this article were published earlier in 2020 on Verdict. See Rodger Citron, Notes on an Oral Argument: The Questions Asked, the Answers Given, and What They May Augur for the Supreme Court’s Decision in the Congressional Subpoena Cases, VERDICT (June 29, 2020), https://verdict.justia.com/2020/06/29/notes-on-an-oral-argument; Rodger Citron, President Trump Clashes with Legal Oversight in Three Cases to be Argued at the Supreme Court, VERDICT (May 11, 2020), https://verdict.justia.com/2020/05/11/president-trump-clashes-with-legal-oversight-in-three-cases-to-be-argued-at-the-supreme-court. 1 See Roberts Vote Heads to Senate, PBS (Sept. 22, 2005), https://www.pbs.org/newshour/show/roberts-vote-heads-to-senate (reporting that “three Democrats” on the Senate Judiciary Committee “admitted Roberts’ performance during his confirmation hearings was impressive, as is his stellar legal record”); Jeffrey Rosen, Roberts’s Rules, THE ATL. (Jan. 2007), https://www.theatlantic.com/magazine/archive/2007/01/robertss-rules/305559/; Nat’l Fed’n Indep. Bus. v. Sebelius, 567 U.S. 519 (2012); see also Joan Biskupic, ‘The Chief’ John Roberts’ journey from ‘sober puss’ to the pinnacle of American law, CNN (Mar. 27, 2019), https://www.cnn.com/2019/03/27/politics/john-roberts-sober-puss-the-chief/index.html. 2 See Shelby County v. Holder, 570 U.S. 529, 532 (2013) (holding § 4 of the Voting Rights Act unconstitutional); Citizens United v. FEC, 558 U.S. 310, 365 (2010) (holding that restrictions on corporations’ independent expenditures for campaign finance violated the First Amendment’s free speech protections); Rucho v. Common Cause, 139 S. Ct. 2484, 2507 (2019) (holding that political gerrymandering presented a political question outside the scope of the Court’s powers); see also Michael S. Kang, The End of Campaign Finance Law, 98 VA. L. REV. 1, 3 (2012) (stating that, as a result of the Supreme Court’s decision in Citizens United, “for all

2021] Trump v. Mazars USA, LLP 3

The Presidency of Donald J. Trump provided both challenges and opportunities for Chief Justice Roberts. On the one hand, President Trump challenged the Supreme Court’s institutional legitimacy.3 While Roberts invoked the image of the umpire to convey judicial neutrality during his confirmation hearings, that view was repeatedly questioned by Trump.4 Trump, to name just one example, criticized “Obama judges”—prompting an unusual public response from Roberts.5

On the other hand, the retirement of Justice Anthony Kennedy in 2018 put Chief Justice Roberts in the center of the Court, making him the swing vote.6 In 2020, the Supreme Court decided four critical separation-of-powers cases.7 Roberts not only voted with the majority in every case, he also wrote the decision for the majority in each case.8

One of these cases, Trump v. Mazars USA, LLP, involved an issue of first impression.9 The Supreme Court addressed for the first time a congressional subpoena for the President’s information, including the tax returns he never has publicly disclosed.10 The history of the case

practical purposes campaign finance law as we knew it died”). 3 Noah Feldman, Can Judicial Independence Outlast Four More Years of Trump?, BLOOMBERG OPINION (Aug. 3, 2020), https://www.bloomberg.com/opinion/articles/2020-08-03/four-more-years-of-trump-would-be-rough-on-judicial-independence. 4 Confirmation Hearing on the Nomination of John G. Roberts, Jr. To Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005); see Feldman, supra note 3. 5 Katie Reilly, President Trump Escalates Attacks on ‘Obama Judges’ After Rare Rebuke From Chief Justice, TIME (Nov. 21, 2018), https://time.com/5461827/donald-trump-judiciary-chief-justice-john-roberts/. 6 See Jessica Gresko & Mark Sherman, Roberts Becomes the Supreme Court’s Swing Vote, COURTHOUSE NEWS SERVICE (June 30, 2020), https://www.courthousenews.com/roberts-becomes-the-supreme-courts-swing-vote (“Since the retirement of Justice Anthony Kennedy in 2018, Roberts has played a pivotal role in determining how far the court will go in cases where the court's four liberals and four conservatives are closely divided.”). 7 Trump v. Mazars, 140 S. Ct. 2019 (2020); Trump v. Vance, 140 S. Ct. 2412 (2020); Seila Law, LLC v. Consumer Prot. Fin. Bureau, 140 S. Ct. 2183 (2020); Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020); see infra Part IV. 8 See infra Part V and accompanying discussion. 9 Mazars, 140 S. Ct. at 2036. 10 Id. at 2027.

4 Vermont Law Review [Vol. 46:001 illustrates our current divided political landscape.

After Trump was elected in 2016, Democrats secured a majority of the House of Representatives in 2018.11 It was hardly surprising, then, that one year later three House committees served subpoenas on an accounting firm and two banks seeking financial records of the President, his family, and certain business entities.12 Nor was President Trump’s response to the subpoenas surprising. He neither provided the requested documents nor negotiated with the committees about responding.13 Instead Trump sued, bringing two different cases that ultimately ended up consolidated at the Supreme Court.14

In a term with a number of critical separation-of-powers cases, the congressional subpoena cases posed a special challenge for the Supreme Court, especially for Chief Justice Roberts. Against the backdrop of a Court increasingly subject to political pressure, the cases pitted the political branches against each other.15 Furthermore, they thrust the Court into previously uncharted territory.

How could the Court decide the case without appearing to take sides in a political dispute, thereby diminishing its institutional claim to be more than an umpire? Chief Justice Roberts found a middle ground and steered the Court through the minefield presented by Mazars.16 He wrote the decision for a 7–2 majority that established “special considerations” courts should consider when adjudicating disputes between congressional investigators and the President.17

This article explores Mazars in detail. Part I sets the stage for the Supreme Court’s decision by describing the history of the

11 Andrew Briz et al., House Election Results 2018, POLITICO, https://www.politico.com/election-results/2018/house (last updated Oct. 16, 2018). 12 See infra Part I. The congressional subpoenas were followed by a grand jury subpoena seeking many of the same records issued by the New York District Attorney and served on President Trump’s personal accounting firm. This subpoena was part of the District Attorney’s investigation into whether state criminal laws were violated. Litigation over that subpoena culminated in a separate case argued the same day as Mazars. See also Trump v. Vance, 140 S. Ct. at 2420. 13 See infra Part III. 14 Id. 15 See infra Part IV. 16 Id. 17 Trump v. Mazars, 140 S. Ct. 2019, 2035 (2020).

2021] Trump v. Mazars USA, LLP 5 congressional subpoena cases in the lower courts and the parties’ contentions in their briefs to the Supreme Court. Part II examines the oral argument before the Court. Significantly, oral argument seems to have made a difference in the outcome of the case.18 Part III summarizes the Court’s decision in Mazars. Part IV situates Mazars in the context of the separation-of-powers issues addressed by the Supreme Court during the same term. The article concludes with some thoughts on the significance of Mazars for the Supreme Court in general and Chief Justice Roberts in particular.

I. TRUMP V. MAZARS USA, LLP: SETTING THE STAGE

A. Litigation in the Lower Courts

The litigation in Mazars began with lawsuits filed by President Trump in two different federal district courts.

1. Trump v. Mazars USA, LLP

The first case, Trump v. Mazars USA, LLP, arose out of a dispute over a subpoena issued by a House of Representatives committee to Mazars, an accounting firm, “for records related to work performed for President Trump and several of his business entities both before and after he took office,” according to the U.S. Court of Appeals for the D.C. Circuit.19 The House Committee on Oversight and Reform contended that the documents were relevant to its investigation into whether Congress should revise its ethics-in-

18 See id. at 2034 (“The President’s financial records could relate to economic reform, medical records to health reform, school transcripts to education reform, and so on. Indeed, at argument, the House was unable to identify any type of information that lacks some relation to potential legislation.”). 19 Trump v. Mazars, 940 F.3d 710, 714 (D.C. Cir. 2019). As the Supreme Court later detailed, “The subpoena demanded information related to the President and several affiliated business entities from 2011 through 2018” and “statements of financial condition, independent auditors’ reports, financial reports, underlying source documents, and communications between Mazars and the President or his businesses. . . . The subpoena also requested all engagement agreements and contracts ‘[w]ithout regard to time.’” Mazars, 140 S. Ct. at 2027–28.

6 Vermont Law Review [Vol. 46:001 government laws.20

President Trump, asserting that the demand for his records did not serve any legitimate legislative purpose, filed suit in federal district court to prevent Mazars from complying with the subpoena. The district court ruled against the President, a decision affirmed by the D.C. Circuit.21

2. Trump v. Deutsche Bank AG

The second case, Trump v. Deutsche Bank AG, involved

subpoenas issued by two House committees seeking financial records from two banks.22 The subpoenas served on Deutsche Bank sought the records of President Trump, members of his family, the Trump Organization, Inc., and several affiliated entities, while the subpoena served on Capital One Financial Corp. sought records only of the Trump Organization and affiliated entities.23 The House committees said they were seeking the records as part of investigations into foreign money laundering and possible foreign electoral interference.24

President Trump and others sued the banks in the U.S. District Court for the Southern District of New York, asserting that the subpoenas were not valid and should be quashed.25 The district court ruled against the plaintiffs and in favor of the House committees.26 The

20 Mazars, 140 S. Ct. at 2027–28 21 Trump v. Comm. on Oversight and Reform U.S. House of Representatives, 380 F. Supp. 3d 76, 82 105 (D.D.C. 2019), aff’d, 940 F.3d 710, 714 (D.C. Cir. 2019); see Mazars, 140 S. Ct. at 2028 (summarizing Mazars’ litigation in the lower courts). 22 Trump v. Deutsche Bank AG, No. 19 Civ. 3826, 2019 WL 2204898 (S.D.N.Y. May 22, 2019), aff’d, 943 F.3d 627, 676 (2d Cir. 2019). 23 Mazars, 140 S. Ct. at 2027. The House Financial Services Committee’s “first [subpoena], issued to Deutsche Bank, [sought] the financial information of the President, his children, their immediate family members, and several affiliated business entities.” Id. The second subpoena “issued to Capital One, demand[ed] similar financial information with respect to more than a dozen business entities associated with the President.” Id. In addition, the Court noted, “On the same day as the Financial Services Committee, the Permanent Select Committee on Intelligence issued an identical subpoena to Deutsche Bank—albeit for different reasons.” Id. 24 Id. 25 Id. at 2028. 26 Id.

2021] Trump v. Mazars USA, LLP 7 Second Circuit essentially affirmed the district court.27

The D.C. Circuit and the Second Circuit rejected Trump’s arguments because, under then-applicable precedent, the low bar for Congress to show a legitimate legislative purpose was cleared.28 The D.C. Circuit upheld the subpoena on Mazars because it served a “valid legislative purpose” as the requested information was relevant to reforming financial disclosure requirements for Presidents and presidential candidates.29 The Second Circuit applied similar reasoning in its decision upholding the subpoenas on the banks.30 In fact, the court noted, “the President’s financial dealings with Deutsche Bank made it ‘appropriate’ for the House to use him as a ‘case study’ to determine ‘whether new legislation is needed.’”31

The plaintiffs appealed the appeals courts’ adverse decisions to the Supreme Court, which granted certiorari and consolidated the cases.32

B. The Parties’ Contentions in the Supreme Court

Trump’s lawyers, supported by the Justice Department—which

participated in both cases as amicus curiae33—argued for broad protection of the President.34 They asserted that the congressional subpoenas were unprecedented, lacked a legitimate legislative purpose, and were issued as part of an improper law-enforcement

27 Trump v. Deutsche Bank AG, No. 19 Civ. 3826, 2019 WL 2204898, at *1 (S.D.N.Y. May 22, 2019), aff’d, 943 F.3d 627, 676 (2d Cir. 2019). 28 Mazars, 140 S. Ct. at 2033. 29 Id. at 2028 (citing Trump v. Mazars, 940 F.3d at 737). 30 Id. at 2028–29 (citing Trump v. Deutsche Bank, 943 F.3d at 650, 658–59). 31 Id. at 2029 (quoting Trump v. Deutsche Bank, 943 F.3d at 662–63 n. 67). 32 Id. 33 See SCOTUSBLOG, Trump v. Mazars USA, LLP, https://www.scotusblog.com/case-files/cases/trump-v-mazars/ [hereinafter SCOTUSBLOG] (last visited Dec. 21, 2021) (detailing the proceedings and orders of Trump v. Mazars USA, LLP). 34 Brief for the United States as Amicus Curiae Supporting Appellant at 9, Trump v. Deutsche Bank, 943 F.3d 627 (No. 19-1540); Brief for the United States as Amicus Curiae Supporting Appellant at 10, Trump v. Mazars, 940 F.3d 710 (No. 19-5142); Brief for the United States as Amicus Curiae Supporting Petitioners at 11-14, Mazars, 140 S. Ct. 2019 (Nos. 19-715 and 19-760).

8 Vermont Law Review [Vol. 46:001 investigation.35

The House committees framed the case as ordinary, not extraordinary. They noted that the subpoenas did not seek records relating to Trump’s actions as President.36 Rather, they asserted, the subpoenas pertained to actions taken by Trump and others in their individual (or personal) capacity.37 Furthermore, they argued that congressional committees routinely seek and receive records from individuals while performing legislative actions, such as determining whether existing laws are effective or should be revised.38

Broadly speaking, the issue raised by the subpoenas—legal access to the President’s records—had been previously addressed by the Supreme Court in two cases. In 1974, President Nixon lost his appeal to the Supreme Court when he resisted a subpoena issued during the criminal investigation of the Watergate break-in.39 In 1997, President Clinton lost his appeal to the Supreme Court to avoid a pretrial deposition in the civil case brought against him by Paula Jones.40 However, neither case was squarely on point here, as neither involved subpoenas issued by congressional committees.

C. The Political Question Inquiry

Before oral argument, the Supreme Court asked for

supplemental briefing that suggested it was considering whether it should adjudicate the case. In late April, the Supreme Court directed the parties and the Solicitor General in the congressional oversight cases to file supplemental letter briefs “addressing whether the political question doctrine or related justiciability principles bear on the Court’s adjudication of” the congressional oversight cases.41

35 Mazars, 140 S. Ct. at 2032–34. 36 Id. at 2033. 37 Id. 38 Id. 39 United States v. Nixon, 418 U.S. 683, 716 (1974) (enforcing a subpoena over President Nixon’s objections). 40 Clinton v. Jones, 520 U.S. 681, 684 (1997). 41 The Supreme Court issued its order on April 27, 2020. See SCOTUSBLOG, supra note 33 (“The parties and the Solicitor General are directed to file supplemental letter briefs addressing whether the political question doctrine or related justiciability

2021] Trump v. Mazars USA, LLP 9 Although they fundamentally disagreed on the merits, the lawyers for the parties and the Solicitor General took the same position in their supplemental briefs: the Court should not, they agreed, dismiss the cases on political question grounds.42

II. ORAL ARGUMENT IN TRUMP V. MAZARS

In May, the Supreme Court heard oral argument in Mazars. Due to the pandemic, the Supreme Court heard argument by phone.43 The oral argument lasted about an hour-and-a-half—longer than usual for argument. Because the Court conducted oral argument by phone, the justices asked questions in order of seniority. Chief Justice Roberts allowed each lawyer to make a brief opening statement and then asked the first question.44 The associate justices then asked questions in the following sequence: Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh.

Sometimes this format promoted continuity, other times it disrupted the flow of the argument. As to the former point, for example, Justice Breyer was able to follow up on questions about Watergate asked by Justice Ginsburg of President Trump’s lawyer,

principles bear on the Court's adjudication of these cases.”). As noted earlier, the Court invoked the political question doctrine in Rucho v. Common Cause to end judicial review of partisan gerrymandering claims. See text accompanying supra note 2; 139 S. Ct. 2484, 2507 (2019). Chief Justice Roberts wrote the majority opinion; the case was decided by a 5–4 vote. 42 See Steven Mazie (@stevenmazie), TWITTER (May 8, 2020, 5:20 PM), https://twitter.com/stevenmazie/status/1258869466756251648?lang=en; see also Jacqueline Thomsen, In Rare Unity, Trump, DOJ and House All Urge Justices to Resolve Subpoena Fights, NAT’L L. J. (May 8, 2020), https://www.law.com/nationallawjournal/2020/05/08/in-rare-unity-trump-doj-and-house-all-urge-justices-to-resolve-subpoena-fights/. 43 Transcript of Oral Argument, Trump v. Mazars, 140 S. Ct. 2019 (2020) (No. 19-715) [hereinafter Transcript of Oral Argument]; Nina Totenberg, Supreme Court to Hear Arguments By Telephone Including On Trump’s Financial Records, NPR (Apr. 13, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/04/13/833292153/supreme-court-to-hear-arguments-by-telephone-including-on-trumps-financial-recor. 44 Transcript of Oral Argument, supra note 43, at 4–7, 31–33, 50–54.

10 Vermont Law Review [Vol. 46:001 Patrick Strawbridge.45 As to the latter, even though Strawbridge did not clearly answer Justice Breyer’s question, the argument changed course when Chief Justice Roberts moved from Justice Breyer to Justice Alito.46 This Part examines the oral argument in detail. While oral argument is not predictive of the outcome, it provides a sense of the key issues for the justices and may suggest how a justice is likely to vote.

A. Chief Justice Roberts’ Questions

In his opening exchange with Strawbridge, Chief Justice Roberts zeroed in on whether Trump conceded that the House has “any power” to subpoena the President’s personal papers.47 Strawbridge acknowledged that the House did have some power or authority in this context.48 Having secured that concession, Roberts stated: “So it sounds like at the end of the day this is just another case where the courts are balancing the competing interests on either side.”49 Strawbridge essentially agreed.50

Later, when questioning House Counsel Douglas Letter, Chief Justice Roberts did not seem to be persuaded by Letter’s answers regarding the presidential harassment that could follow from allowing congressional subpoenas under the standard applied by the appellate courts, commenting at one point, “[Y]our test is not really much of a test. It’s not a limitation.”51

B. Cards on the Table: Questioning by Justices Alito and

Sotomayor

During oral argument, a justice may probe a position by asking

45 Id. at 13. 46 Id. at 15–16. It must be noted that Strawbridge came back to Breyer’s question and clarified his answer at the very end of the argument, during his rebuttal. Id. at 95–96. 47 Id. at 7. 48 Id. at 7–8. 49 Id. at 8. 50 Id. 51 Id. at 53. Trump v. Mazars, 140 S. Ct. 2019, 2034 (2020).

2021] Trump v. Mazars USA, LLP 11 an advocate to elaborate or pressing on vulnerable points. Other times a justice may appear to become an advocate, asking questions that reiterate the position advanced by one of the parties. This argument included both types of queries.

Justice Alito dropped a marker for the conservative justices when he asked Strawbridge whether a congressional subpoena may be justified on the grounds that one House of Congress “wants to use the President as a case study for possible broad regulatory legislation?”52 Alito’s question about using the President as a case study for legislation put Trump’s position in the best possible light, suggesting that Congress was singling out the President for scrutiny without any justification for doing so.

Strawbridge reiterated certain points from his argument and then hit the softball question out of the park:

[T]o directly answer the question, no, the President’s personal papers are not related to anything having to do with the workings of government. . . . You could have subpoenas directed seeking all of Jimmy Carter’s financial history simply because he used to be a peanut farmer and they want a case study on agriculture. You could have all sorts of requests for medical records, for educational records, any imaginable detailed personal records because Congress does have the general power to legislate in lots of areas.53 Justice Sotomayor did not allow Strawbridge’s answer to go

unchecked. In this case she served as Justice Alito’s counterpart on the left, a role heightened by the fact that her turn to ask questions came right after his. Sotomayor’s question noted the: (1) long history of Congress seeking records from the President; (2) prior Supreme Court cases articulating the broad “conceivable legislative purpose” standard to justify a congressional request; and (3) “a tremendous separation of powers problem” raised by a more demanding standard.54 Then she

52 Transcript of Oral Argument, supra note 43, at 16. 53 Id. at 16–17. 54 Id. at 18.

12 Vermont Law Review [Vol. 46:001 challenged Strawbridge’s claim that the records sought are not related to the “workings of government”:

[A]re you disputing that the stated purpose of the Intelligence Committee subpoena at issue, investigation [of] efforts by foreign entities to influence the U.S. political process[,] . . . [that] the financial records . . . were irrelevant to that purpose and that’s an illegitimate purpose by the . . . Intelligence Committee?55

Strawbridge essentially answered yes: the records were not relevant.56 It was a bit hard to follow his explanation as he mentioned “presidential finances” in his answer, and Justice Sotomayor interrupted to point out that the subpoena sought records prior to Trump becoming President.57 The colloquy became tangled and ultimately Strawbridge argued that the case law did not support putting “any finger on the scale for Congress’s asserted legislative power in this case.”58 Chief Justice Roberts then moved on to Justice Kagan.

C. Cards Close to the Vest: Questioning by Justices Gorsuch and

Kavanaugh

Prior to oral argument, much was made of the fact that President Trump’s appointees, Justice Gorsuch and Justice Kavanaugh, had disagreed in Bostock v. Clayton County, the Court’s recent decision holding that the federal law prohibiting employment discrimination applies to gay, lesbian, and transgender employees.59 Gorsuch wrote the majority decision, joined by five other justices, while Kavanaugh and two other justices dissented.60 Nonetheless, Justices Gorsuch and Kavanaugh vote together far more

55 Id. at 19. 56 Id. 57 Id. 58 Id. at 21. 59 140 S. Ct. 1731, 1754 (2020). 60 Id. at 1736–37.

2021] Trump v. Mazars USA, LLP 13 often than they disagree.61 They took a similar approach at this oral argument: both asked straightforward probing questions of each attorney.62

Justice Gorsuch questioned both sides on the appropriate standard for a court to apply when reviewing a challenge to a legislative subpoena.63 He questioned the attorneys supporting Trump’s position—Strawbridge and Wall—on why the record did not establish a sufficient “legislative need” to enforce the subpoenas.64

When House Counsel Douglas Letter presented argument, Justice Gorsuch pressed him on whether the “legislative purpose” standard applied by the appeals courts was too lenient, expressing concern that it was “very broad . . . maybe limitless.”65 Letter’s answers to questions about this concern are discussed further below.

Justice Kavanaugh, meanwhile, asked practical questions of both sides. For example, the justice asked Strawbridge how the more demanding “demonstrably critical [need] standard” he advocated “would play out in practice in a case like this.”66

With Letter, Justice Kavanaugh returned to concerns that the “legislative purpose” standard was too deferential to Congress.67

61 See Richard Wolf, Supreme Court Justices Gorsuch, Kavanaugh display independent streaks, USA TODAY (June 15, 2020), https://www.usatoday.com/story/news/politics/2020/07/17/brett-kavanaugh-neil-gorsuch-trumps-justices-show-independence/5437009002/ (Justices Gorsuch and Kavanaugh “have voted with the court’s conservative majority far more often than not”). 62 Transcript of Oral Argument, supra note 43 at 28 (questioning Strawbridge on standards, Justice Kavanaugh asked, “On your argument that the Nixon demonstrated specific need standard should apply or the demonstrably critical standard, explain for me how that would play out in practice in a case like this.”); id. at 46 (questioning Wall, Justice Gorsuch asked “[Y]ou indicated that Congress might be able to regulate in the area of financial disclosures of the President, and that is one of the interests the House has asserted here. What more would you require the House to do to assert that interest?”). 63 Id. at 25–26 (questioning Strawbridge); id. at 71 (questioning Letter). 64 See id. at 25. 65 Id. at 71. 66 Id. at 28. Justice Kavanaugh also questioned Strawbridge about the responses of the private custodians—the accounting firm and banks—in possession of the records sought by Congress through congressional subpoenas. Id. at 29–30. 67 Id. at 74.

14 Vermont Law Review [Vol. 46:001 Noting hypothetical questions posed during oral argument about whether, for example, congressional committees could serve subpoenas for personal records on members of Congress, he asked, “[I]sn’t the whole point that once you start down this road and this Court articulates too low a standard, that something like that will start happening?”68

D. Performance of House Counsel

After oral argument, many commentators also were critical of

House counsel for failing to adequately address these concerns during oral argument.69 There is some merit to this criticism. Ironically, Letter stumbled just as much when he was asked friendly questions as hostile ones.70 After Justice Alito aggressively questioned Letter about the lack of protection for the President, both Justices Sotomayor and Kagan gave him a chance to address this concern.

Letter’s answers to these friendly questions came across as rote and flat. He reiterated the “valid legislative purpose” standard and indicated that courts should defer to Congress’s judgments about its legislative priorities.71

Letter avoided making an aggressive factual defense of the subpoenas. Hindsight is 20–20, of course, but it seems that more could have been made of the need for Congress to consider additional legislation in the areas of governmental ethics and foreign electoral

68 Id. at 90–91. 69 Jonathan H. Adler, Is There Any Limit on the Congressional Subpoena Power?, REASON (May 12, 2020), https://reason.com/volokh/2020/05/12/is-there-any-limit-on-the-congressional-subpoena-power/; Michael C. Dorf, Lawyer Highlights and (Mostly) Lowlights in the Congressional & Grand Jury Subpoena Oral Arguments, DORF ON L. (May 12, 2020), http://www.dorfonlaw.org/2020/05/lawyer-highlights-and-mostly-lowlights.html; see also Josh Blackman, Was the House Lawyer Unable or Unwilling to Provide a Limiting Principle in the Tax Return Cases?, REASON (May 12, 2020), https://reason.com/volokh/2020/05/12/was-the-house-lawyer-unable-or-unwilling-to-provide-a-limiting-principle-in-the-tax-return-cases/. 70 Transcript of Oral Argument, supra note 43, at 62 (questioning by Justice Alito); id. at 66 (questioning by Justice Sotomayor); id. at 69 (questioning by Justice Kagan). 71 Id. at 61 (responding to questioning by Justice Alito); id. at 66 (responding to questioning by Justice Sotomayor).

2021] Trump v. Mazars USA, LLP 15 interference given President Trump’s record in these areas.

Finally, again with the benefit of hindsight, it seems that a number of the justices—including Chief Justice Roberts—were looking for Letter to make a concession that would acknowledge the reasonableness of their concerns about harassment. Yet, he steadfastly refused to negotiate against himself and maintained that the appeals courts applied the correct legal standard and reached the correct results in upholding the subpoenas.72 Letter apparently made the strategic decision to maintain his position rather than make a concession at oral argument.

After oral argument, the conventional wisdom was that the Supreme Court would reverse the federal appeals court’s decisions refusing to quash the House Committee subpoenas.73 All of the conservative justices (Roberts, Thomas, Alito, Gorsuch, and Kavanaugh) seemed skeptical of the House committees’ position. I predicted, in accordance with this view, that the Court would vote to reverse the judgments below in a 5–4 vote along ideological lines.74 I added: “If the Court does reverse, the challenge for the majority will be to articulate a more demanding standard that does not impermissibly intrude on how Congress develops and considers possible legislation.”75

III. THE SUPREME COURT’S DECISION IN MAZARS

The Supreme Court decided Mazars and Vance, the New York District Attorney criminal subpoena case, on July 9, effectively the last day of the 2019–20 term.76 Chief Justice Roberts wrote the decision

72 Id. at 54; see also text accompanying supra note 18. 73 See, e.g., Adam Liptak, Supreme Court Hints at Split Decision on Obtaining Trump’s Tax Returns, N.Y. TIMES, https://www.nytimes.com/2020/05/12/us/supreme-court-trump-tax-returns.html (last updated Feb. 22, 2021). 74 See Rodger Citron, Notes on an Oral Argument: The Questions Asked, the Answers Given, and What They May Augur for the Supreme Court’s Decision in the Congressional Subpoena Case, VERDICT (June 29, 2020), https://verdict.justia.com/2020/06/29/notes-on-an-oral-argument. 75 Id. 76 Mazars and Vance were among the Court’s last decisions with respect to cases in which oral argument was held for the term. On July 14, the Court decided Barr v.

16 Vermont Law Review [Vol. 46:001 for a 7–2 majority in each case.77 In Mazars, the Court arrived at a compromise that brought together the four liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) and three conservative justices, with Gorsuch and Kavanaugh joining Roberts.78 Justice Clarence Thomas wrote a dissent, as did Justice Alito.79 As discussed below, the Court affirmed Congress’s power to investigate but also recognized the President’s unique position as “the only person who . . . composes a branch of government.”80

As Chief Justice Roberts set out in his opinion for the Court, “[t]he question presented is whether the subpoenas exceed the authority of the House under the Constitution.”81 In answering this question, the Court initially noted that it never has “addressed a congressional subpoena for the President’s information.”82 That is because “[h]istorically, disputes over congressional demands for presidential documents have not ended up in court. Instead, they have been hashed out in the ‘hurly-burly, the give-and-take of the political process between the legislative and the executive.’”83 The Court briefly traced this history from a House committee inquiry in 1792 when George Washington was President through the modern era, discussing examples from the Reagan and Clinton Presidencies.84

A. Congressional Power to Investigate

Starting with Congress’s power to investigate, the Court

initially noted that although “Congress has no enumerated constitutional power to conduct investigations or issue subpoenas,” the

Lee, the last case of the term. 140 S. Ct. 2590, 2591–92 (2020). 77 In Trump v. Vance, the Supreme Court held that neither Article II nor the Supremacy Clause of the Constitution preclude, or require a heightened standard for, the issuance of a state criminal subpoena on a sitting President. 140 S. Ct. 2412, 2431 (2020). The case was remanded back to the district court for the President to raise further arguments as appropriate. Id. 78 Trump v. Mazars, 140 S. Ct. 2019, 2025 (2020). 79 Id. at 2037 (Thomas, J., dissenting); id. at 2048 (Alito, J., dissenting). 80 Id. at 2034. 81 Id. at 2026. 82 Id. 83 Id. at 2029. 84 Id. at 2029–31.

2021] Trump v. Mazars USA, LLP 17 Court has “held that each House has power ‘to secure needed information’ in order to legislate.”85 While Congress’s power to obtain information is broad, it is subject to a number of limitations. Most importantly, the Court stated, “a congressional subpoena is valid only if it is ‘related to, and in furtherance of, a legitimate task of the Congress’”—that is, “[t]he subpoena must serve a ‘valid legislative purpose.’”86 Furthermore, the Court noted, “Congress may not issue a subpoena for the purpose of ‘law enforcement,’ because ‘those powers are assigned under our Constitution to the Executive and the Judiciary.’”87 Finally, the Court said, “recipients of legislative subpoenas retain their constitutional rights throughout the course of an investigation . . . . And recipients have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications and governmental communications protected by executive privilege.”88

B. Whether a Higher Standard Should Apply When Congress Seeks the President’s Papers

President Trump took an aggressive litigation position in

resisting the congressional subpoenas. His private lawyers and the Solicitor General argued that “the usual rules for congressional subpoenas do not govern here because the President’s papers are at issue.”89 Relying on case law involving President Nixon’s tapes, they contended “the House must establish a ‘demonstrated, specific need’ for the financial information” and that “the House must show that the financial information is ‘demonstrably critical’ to its legislative purpose.”90

85 Id. at 2031. 86 See id. (quoting Watkins v. United States, 77 S. Ct. 1173, 1179 (1957)) (illustrating Congress’s broad power to conduct an inquiry was limited by a legitimate purpose for the inquiry). 87 See id. at 2032 (quoting Quinn v. United States, 349 U.S. 155, 161 (1955)) (describing limits on Congressional subpoena powers). 88 Id. (citing Watkins v. United States, 77 S. Ct. 1173, 1179 (1957)). 89 Id. 90 Id. (first quoting United States v. Nixon, 94 S. Ct. 3090, 3110 (1974), then quoting

18 Vermont Law Review [Vol. 46:001 The Court rejected this request for a higher standard.91 Litigation over Nixon’s tapes involved claims of executive privilege. No such claim was made in Mazars, as the congressional subpoenas sought “nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations.”92 The Court explained:

The President and the Solicitor General would apply the same exacting standards to all subpoenas for the President’s information, without recognizing distinctions between privileged and nonprivileged information, between official and personal information, or between various legislative objectives. Such a categorical approach would represent a significant departure from the longstanding way of doing business between the branches, giving short shrift to Congress’s important interests in conducting inquiries to obtain the information it needs to legislate effectively.93 Although the Court did not adopt a higher standard for the

President, it nevertheless acknowledged the special separation-of-powers concerns raised by a congressional subpoena served on the President. These special concerns had not been considered by the appeals courts below—accordingly, reversal, not affirmance was warranted. First, the Court noted, “Congress and the President have an ongoing institutional relationship as the ‘opposite and rival’ political branches established by the Constitution.”94 Unlike, for example, the criminal subpoenas at issue in Vance, “congressional subpoenas for the President’s information unavoidably pit the political branches against one another.”95

Furthermore, the Court noted, “The President is the only person

Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (1974)). 91 Id. 92 Id. at 2033. 93 Id. 94 Id. at 2033–34 (quoting THE FEDERALIST NO. 51). 95 Id. at 2034.

2021] Trump v. Mazars USA, LLP 19 who alone composes a branch of government. As a result, there is not always a clear line between his personal and official affairs.”96 Even where Congress only seeks the President’s personal records, there is potential for harassment that may interfere with performance of his official duties.97 Finally, the Court said, “separation of powers concerns are no less palpable here simply because the subpoenas were issued to third parties.”98

C. The Supreme Court’s Compromise & Remand

In balancing the separation-of-powers interests and concerns

raised by Congress and the President, the Court treaded cautiously, mindful of the long history of political resolution of prior disputes over congressional requests for the President’s information. It held:

[I]n assessing whether a subpoena directed at the President’s personal information is “related to, and in furtherance of, a legitimate task of the Congress,” . . . courts must perform a careful analysis that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the “unique position” of the President . . . .99 The Court elaborated on a number of “special considerations”

that should inform such an analysis. “First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers.”100 Second, “courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.”101 Third, the Court stated, “courts should be attentive to the nature of the evidence offered by

96 Id. 97 Id. 98 Id. at 2035. 99 Id. (citations omitted) (first quoting Watkins v. U.S., 77 S. Ct. 1173, 1179 (1957); then quoting Clinton v. Jones, 117 S. Ct. 1636, 1646 (1997)). 100 Id. 101 Id. at 2036.

20 Vermont Law Review [Vol. 46:001 Congress to establish that a subpoena advances a valid legislative purpose,” adding that “[t]he more detailed and substantial the evidence of Congress’s legislative purpose, the better.”102 Fourth, turning to the President’s concerns, “courts should be careful to assess the burdens imposed on the President by a subpoena.”103 The Court added that “[o]ther considerations may be pertinent as well” as “one case every two centuries does not afford enough experience for an exhaustive list.”104

D. The Dissents

As noted above, Justices Thomas and Alito dissented.

Justice Thomas’s dissent was categorical. In his view, the case did not involve a balancing of competing interests between, on the one hand, Congress’s authority to investigate and, on the other hand, the separation-of-powers concerns raised by investigating the President. Instead, Thomas argued that Congress “has no power to issue a legislative subpoena for private, nonofficial documents—whether they belong to the President or not,” and “[Congress] must proceed under [its] impeachment power” to obtain these documents when investigating the President.105

In his dissent, Justice Alito expressed great skepticism of Congress. In his view, “courts must be very sensitive to separation of powers issues when they are asked to approve the enforcement of such subpoenas.”106 Because Justice Alito believed that the Court was not sufficiently sensitive to these issues in its remand order, he dissented.107

IV. MAZARS & THE COURT’S OTHER SEPARATION-OF-POWERS CASES IN THE 2019–2020 TERM

In addition to Mazars and Vance, the Supreme Court decided

102 Id. 103 Id. 104 Id. 105 Id. at 2037 (Thomas, J., dissenting). 106 Id. at 2048 (Alito, J., dissenting). 107 Id. at 2048–49 (Alito, J., dissenting).

2021] Trump v. Mazars USA, LLP 21 two other critical cases involving separation-of-powers issues during its 2019–2020 term: Seila Law, LLC v. Consumer Financial Protection Bureau108 and Department of Homeland Security v. Regents of the University of California.109 Seila Law concerned the President’s removal authority under Article II of the Constitution.110 The Court held that the structure of the Consumer Financial Protection Bureau (CFPB), with a single director who could be terminated only for cause, was an unconstitutional violation of separation-of-powers.111 It further held that the “for cause” provision in the statute authorizing the CFPB was severable.112

Regents concerned the Department of Homeland Security’s (DHS’s) decision to rescind the Deferred Action for Childhood Arrivals (DACA) program.113 Though the case was litigated and decided as a straightforward arbitrary and capricious challenge under the Administrative Procedure Act (APA),114 it implicated the unilateral authority of the President to act and to undo prior executive action.115 The Court held that DHS’s decision to rescind the DACA program was arbitrary and capricious under the APA.116

The contrasts between Mazars and Vance, on the one hand, and Seila Law and Regents are instructive.117 As noted earlier,

108 Seila Law, LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020). 109 Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1933 (2020). 110 Seila Law, 140 S. Ct. at 2226. 111 Id. at 2192. 112 Id. 113 Regents, 140 S. Ct. at 1901. 114 Id. at 1910. 115 Id. at 1918 (Thomas, J., dissenting). 116 Id. at 1915. 117 Alan B. Morrison, The Bottom Lines in the Trump Subpoena Cases: More Losses Than Wins for the President, but No One Is Going to See His Tax Returns Soon, GEO. WASH. L. REV. ON THE DOCKET (July 9, 2020), https://www.gwlr.org/the-bottom-lines-in-the-trump-subpoena-cases-more-losses-than-wins-for-the-president-but-no-one-is-going-to-see-his-tax-returns-soon/. Discussing Mazars and Regents, Professor Morrison commented, “Although the Court did not hold that the congressional subpoenas here failed [the four-factor] test [set out in Mazars], that is almost certainly what the lower courts should conclude on remand. In essence, the Court told the House to go back and do a better job if it wanted to enforce these subpoenas.” Id. Professor Morrison elaborated, “Although the contexts are different,

22 Vermont Law Review [Vol. 46:001 Chief Justice Roberts wrote the Court’s decision in each case.118 The subpoena cases were decided by a 7–2 vote, however, the other two cases were decided by a 5–4 vote.119 Mazars (and Vance) were more directly political. Mazars, in particular, put the Court in the novel place of having to adjudicate for the first time a dispute between Congress and the President over a congressional subpoena—disputes that previously had been resolved through negotiation between Congress and the President.120 The Court’s decision, essentially a compromise, was careful and cautious. It was a critical institutional victory for the Court and the Chief Justice that the most political separation-of-powers cases were decided by a clear 7–2 margin rather than a single vote. In the Court’s efforts to maintain its legitimacy by appearing to be neutral, the optics of the vote count matter.

CONCLUSION

During the Presidency of Donald Trump, political divisions

magnified; the middle ground became more of a no man’s land than ever.121 Chief Justice Roberts is to be commended for his efforts to keep the Court apart from the political fray. In steering the Court to 7–2 decisions in Mazars and Vance, Roberts and the Court seemed to win the long game of preserving the Court’s institutional legitimacy. It also must be noted that in remanding both subpoena cases back to the lower courts for further proceedings, the Court ensured that the financial records sought by the congressional committees and the New York District Attorney would not be produced prior to the election in November 2020. The Court thus provided a victory for then-

the Chief Justice’s insistence here in requiring the House to follow what some would call legal niceties is reminiscent of his 5-4 rulings in the census case in 2019 and the DACA case this year when he set aside agency actions of the Trump administration for failing to follow the basic requirements of administrative law.” Id. 118 See text accompanying supra note 77. 119 See text accompanying supra notes 41, 117. 120 Trump v. Mazars, 140 S. Ct. 2019, 2029 (2020). 121 Michael Dimock & Richard Wike, America is exceptional in the nature of its political divide, PEW RSCH. CTR. (Nov. 13, 2020), https://www.pewresearch.org/fact-tank/2020/11/13/america-is-exceptional-in-the-nature-of-its-political-divide.

2021] Trump v. Mazars USA, LLP 23 President Trump, at least in the short term.

During the 2019–2020 term, Chief Justice Roberts steered the Court through challenging political waters. However, in law and in politics, as in life, nothing stays the same. Joe Biden became President, succeeding President Trump. On the Supreme Court, Justice Barrett has replaced Justice Ginsburg. The center of the Court has moved, and it remains to be seen whether Roberts will continue to have the same influence leading the Court that he had during the prior term.122

122 Joan Biskupic, Barrett will complicate John Roberts’ goal of keeping the Supreme Court out of politics, CNN, https://www.cnn.com/2020/10/25/politics/supreme-court-roberts-barrett/index.html (last updated Oct. 26, 2020).

CONGRESS CAN DELEGATE AUTHORITY, BUT NOT RESPONSIBILITY: ACCOUNTABILITY FOR THE

DOMESTIC USE OF THE ARMED FORCES

Richard K. Sala*

INTRODUCTION ................................................................................... 25 I. THE MILITIA ACTS .......................................................................... 36

A. The Pre-Civil War Statutes ...................................................... 37 1. The Calling Forth Act ............................................................ 37 2. The Militia Act ...................................................................... 41 3. The Insurrection Act .............................................................. 43

B. The Post-Civil War Statutes ..................................................... 46 1. The Suppression of the Rebellion Act ................................... 46 2. The Civil Rights Act of 1871 ................................................ 48

C. President Trump and the Insurrection Act ............................... 51 1. Insurrection ............................................................................ 51 2. President Trump’s Rose Garden Statement ........................... 53

II. THE COURTS AND THE MILITIA ACTS ............................................ 59 A. The Sole and Exclusive Judge .................................................. 59 B. Political Question Doctrine ..................................................... 63

III. THE SPECTER OF JACKSON’S YOUNGSTOWN CONCURRENCE AND OTHER CONSIDERATIONS ................................................................... 68

A. The Legacy of The Steel Seizure Case (A Super . . . Concurrence?) .............................................................. 69 B. Manipulating the Youngstown Framework .............................. 73

1. Recent Proposals to Amend the Insurrection Act .................. 73 2. The Gauntlet .......................................................................... 81

CONCLUSION ...................................................................................... 83

* Assistant Professor of Law and Director of the Online Learning Program, Vermont Law School; M.B.A., 2018, University of Rochester (Simon Business School); J.D./MELP, 2013, Vermont Law School; B.A., 2007, University of Colorado at Boulder. Professor Sala is a retired United States Marine Corps Officer; however, the opinions expressed herein are those of the author in his individual capacity and do not necessarily reflect the official views of the U.S. Department of Defense, the Department of the Navy, or the United States Marine Corps. I would like to thank Janine Salameh for her outstanding research assistance. I would also like to thank the Vermont Law Review staff whose untold hours of editing and revision are responsible for publishing this and so many other articles.

2021] Congress Can Delegate Authority, But Not Responsibility 25

Having now finished the work assigned me, I retire from the great theatre of Action; and bidding an Affectionate farewell to this August body under whose orders I have so long acted, I here offer my Commission, and take my leave of all the employments of public life.

—General George Washington1

INTRODUCTION

On June 1, 2020, at 6:43 p.m., days after peaceable protests across the United States condemning the murder2 of George Floyd while in police custody devolved into “chaos,”3 President Donald J. Trump addressed the nation from the White House Rose Garden.4

During the seven-minute statement, President Trump avowed, “[i]f a city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”5

In the wake of this statement, President Trump faced a revolt of the generals redux.6 A number of retired generals and flag officers

1 ROBERT K. WRIGHT, JR., THE CONTINENTAL ARMY 181 (David F. Trask ed., 2006) (quoting GEORGE WASHINGTON, THE WRITINGS OF GEORGE WASHINGTON FROM THE ORIGINAL MANUSCRIPT SOURCES 1745–1799 285 (John C. Fitzpatrick ed., 1938)). 2 Joshua McFadden, Derek Chauvin Trial: Chauvin Found Guilty of Murdering George Floyd, N.Y. TIMES, https://www.nytimes.com/live/2021/04/20/us/derek-chauvin-verdict-george-floyd (last updated Sept. 14, 2021) (“Chauvin . . . was found guilty of second-degree murder, third-degree murder and second-degree manslaughter.”). 3 Ken Sugiura, Atlanta Mayor Keisha Lance Bottoms’ Plea for her city, ATLANTA J.-CONST. (May 30, 2020), https://www.ajc.com/news/full-text-read-atlanta-mayor-keisha-lance-bottoms-plea-for-her-city/puDJ3iEafspuLZcbuq9rvO/. 4 Donald J. Trump, Statement by the President (June 1, 2020), https://trumpwhitehouse.archives.gov/briefings-statements/statement-by-the-president-39/ [hereinafter Rose Garden Statement]. 5 Id. 6 See James Joyner, Generals and Political Interventions In American History, WAR ON THE ROCKS (Aug. 4, 2016), https://warontherocks.com/2016/08/generals-and-political-interventions-in-american-history/ (describing multiple retired generals

26 Vermont Law Review [Vol. 46:024 expressed outrage over President Trump’s remarks. They took to newspapers, magazines, and social media to condemn the President’s ultimatum and other proposed measures.7 The maelstrom of critiques pointedly questioned the President’s judgment, voiced serious disagreement with the President’s response to the ongoing civil unrest, and decried the suggestion of military intervention. Some of these critics took their disapproval a step further, seemingly suggesting that the President’s avowal to “deploy the United States military” to quell civil unrest was more than a severe error in judgment.8 Several retired generals and flag officers seemed to suggest that deploying the military in response to the ongoing civil strife violated the

involvement in politics after service); Sidney Blumenthal, Revolt of the generals, THE GUARDIAN (Apr. 20, 2006), https://www.theguardian.com/commentisfree/2006/apr/21/comment.usa; Keith D. McFarland, The 1949 Revolt of the Admirals, 11 U.S. ARMY WAR COLL. Q.: PARAMETERS 53, 61 (1981) (using “revolt of the generals” to describe several retired military officers decrying Donald Rumsfeld following statements by the Bush Administration in his favor). 7 See Jeffery Goldberg, James Mattis Denounces President Trump, Describes Him as a Threat to the Constitution, THE ATL. (June 3, 2020), https://www.theatlantic.com/politics/archive/2020/06/james-mattis-denounces-trump-protests-militarization/612640/; Mike Mullen, I Cannot Remain Silent, THE ATL. (June 2, 2020), https://www.theatlantic.com/ideas/archive/2020/06/american-cities-are-not-battlespaces/612553/; @TonyT2Thomas, TWITTER (June 1, 2020, 4:48 PM), https://twitter.com/TonyT2Thomas/status/1267558773599744019; John R. Allen, A Moment of National Shame and Peril–and Hope, FOREIGN POL’Y (June 3, 2020), https://foreignpolicy.com/2020/06/03/trump-military-george-floyd-protests/; James Stavridis, I Spent My Career in the U.S. Navy. The U.S. Military Must Stand Up for Its Soul in This Moment, TIME MAG. (June 3, 2020), https://time.com/5847343/military-stand-up-for-its-soul/; Leon E. Panetta et al., Opinion: 89 Former Defense Officials: The Military Must Never Be Used to Violate Constitutional Rights, WASH. POST (June 5, 2020), https://www.washingtonpost.com/opinions/2020/06/05/89-former-defense-officials-military-must-never-be-used-violate-constitutional-rights/ [hereinafter Opinion by 89 former Defense officials, Constitutional Rights] (criticizing President Trump’s threat to use active-duty members of the U.S. military to quell domestic unrest without the consent of local mayors or state governors); Douglas A. Silliman et al., The Strength of America’s Apolitical Military, JUST SEC., https://www.justsecurity.org/70608/the-strength-of-americas-apolitical-military/ (last updated June 15, 2020). 8 Rose Garden Statement, supra note 4.

2021] Congress Can Delegate Authority, But Not Responsibility 27 Constitution and the laws of the United States.9 This suggestion is without merit—the Insurrection Act imbues the President with all the legal authority necessary to take precisely this kind of action if in the President’s judgment, and the President’s judgment alone, the action is warranted.

While civil-military relations scholars debate the prudence of retired generals and flag officers publicly rebuking the civilian leadership’s decisions regarding domestic military deployment, the mischaracterization of President Trump’s proposed response as unlawful creates its own set of problems.

First, the military currently enjoys confidence amongst the American people that is unparalleled by other major U.S. institutions.10 Recent empirical studies suggest that policies receive an “increase in popularity if the public is told the military is in support of the measure,” and a “decrease[] in popularity if told the opposite.”11 When retired generals and flag officers mischaracterize the legality of the civilian leadership’s actions, they risk this public “confidence in the military and increase[] doubts about [its] competence, truthfulness, and other dimensions of trustworthiness,” especially if their assertions do not stand up to future scrutiny.12 In his critique of

9 See Goldberg, supra note 7; Mullen, supra note 7; Stavridis, supra note 7; Opinion by 89 Former Defense Officials, Constitutional Rights, supra note 7. 10 Confidence in Institutions, GALLUP, https://news.gallup.com/poll/1597/confidence-institutions.aspx (last visited Nov. 21, 2021) (showing 37% of respondents had a “great deal” of confidence in the military, compared to 13% in the Supreme Court, 5% in Congress, and 16% in the Presidency). 11 Jim Golby & Peter Feaver, Military Prestige During a Political Crisis: Use It and You’ll Lose It, WAR ON THE ROCKS (June 5, 2020), https://warontherocks.com/2020/06/military-prestige-during-a-political-crisis-use-it-and-youll-lose-it/. 12 See id. “[R]esearch suggests that linking the prestige of the military to controversial policies carries with it unintended consequences, including the potential for reduced overall confidence in the military . . . .” See also February 2021 Reagan National Defense Survey, RONALD REAGAN PRESIDENTIAL FOUND. & INST., https://www.reaganfoundation.org/reagan-institute/centers/peace-through-strength/reagan-institute-national-defense-survey/ (last visited Sept. 6, 2021) (noting an overall 14% drop in the trust and confidence of the U.S. Military); Heidi Urben, Generals Shouldn’t Be Welcome At These Parties: Stopping Retired Flag Officer Endorsements, WAR ON THE ROCKS (July 27, 2020), https://warontherocks.com/2020/07/generals-shouldnt-be-welcome-at-these-parties-

28 Vermont Law Review [Vol. 46:024 President Trump’s Rose Garden statement, Admiral Mike Mullen (Ret.), the 17th Chairman of the Joint Chiefs of Staff, began by stating that “[t]he issue . . . is not whether [the] authority [to deploy the military on domestic soil] exists, but whether it will be wisely administered.”13 However, he did not stop there. Admiral Mullen, after reassuring the American people that service members would “obey lawful orders,” went on to declare that events on the ground “[c]ertainly . . . have not crossed the threshold that would make it appropriate to invoke the provisions of the Insurrection Act.”14 Suppose the President had decided to invoke the Insurrection Act, and service members were to abide by the President’s order. It is at least plausible that Admiral Mullen’s assertions, given the added force of military prestige, might leave Americans to consider two unappealing propositions—both deleterious to the military’s reputation. Either service members are obeying an unlawful order, despite Admiral Mullen’s declaration that events on the ground fell short of satisfying the prerequisites for invoking the Insurrection Act, or the retired generals and flag officers mischaracterized the law in opposing the duly elected President’s proposed course of action. Neither bodes well for the military’s continued esteem.

Second, mischaracterizing the lawfulness of the President’s use of the U.S. military on domestic soil by retired generals and flag officers risks creating uncertainty among the ranks. In a Washington Post op-ed by 89 former Defense officials, the authors stated unequivocally that “the President is betraying [his oath of office] by threatening to order members of the U.S. military to violate the rights of their fellow Americans.”15 Statements made with this kind of certainty are inexact and are potentially detrimental to the force, leaving service members in the unenviable position of deciding whether they should follow the orders of the President of the United

stopping-retired-flag-officer-endorsements/ (“[S]uggestions that the American public can distinguish between active duty and retired generals are simply unfounded, as evidenced by a poll Jim Golby and Feaver ran in June 2019 that will be featured in their forthcoming book, in which only 31 percent of Americans could correctly identify Secretary Jim Mattis’s military status as retired.”). 13 Mullen, supra note 7. 14 Id. 15 Opinion by 89 former Defense officials, Constitutional Rights, supra note 7.

2021] Congress Can Delegate Authority, But Not Responsibility 29 States.

In yet another response to President Trump’s Rose Garden statement, General John Allen (Ret.), the former commander of the North Atlantic Treaty Organization (NATO) International Security Assistance Force and U.S. Forces in Afghanistan, suggested that the President’s Rose Garden statement might mark “[t]he slide of the United States into illiberalism” and signal “the beginning of the end of the American experiment.”16 He went on to posit that “there is no precedent in modern U.S. history for a president to wield federal troops in a state . . . over the objections of the respective governor.”17 Yet, in 1957, President Dwight D. Eisenhower did just that when he sent federal troops to Arkansas to desegregate schools over Arkansas Governor Orval Faubus’s objection.18 Federal troops would remain in Arkansas for two months, and the federalized National Guard would remain at Arkansas schools for the balance of the school year.19 After the arrival of federal troops, in an address to the people of Arkansas, Governor Faubus declared, “[w]e are now an occupied territory.”20

These kinds of misstatements of fact and law unnecessarily foster confusion among the public, create distrust in the military’s civilian leadership, and erode a foundational democratic principle—“civilian supremacy and subordination of military power.”21 This bedrock principle’s significance cannot be overstated and accounts for the high threshold for validating a service member’s decision to disobey an order or regulation.22 An order of the kind proposed by President Trump is presumptively lawful23 and “disobeyed at the peril of the subordinate.”24 “The duty to disobey an unlawful order applies

16 Allen, supra note 7. 17 Id. (emphasis added). 18 David A. Strauss, Little Rock and the Legacy of Brown, 52 SAINT LOUIS UNIV. L. J. 1065, 1078 (2008). 19 Id. 20 WSB-TV Newsfilm Clip of Governor Orval Faubus claiming that Arkansas is a Territory Occupied by the United States in Little Rock, Arkansas, 1957 September 26, CIVIL RIGHTS DIGITAL LIB., http://crdl.usg.edu/do:ugabma_wsbn_wsbn39763 (last updated Oct. 2, 2021). 21 Laird v. Tatum, 408 U.S. 1, 19 (1972). 22 See generally 10 U.S.C. § 892. 23 United States v. Moore, 58 M.J. 466, 467–68 (C.A.A.F. 2003). 24 MANUAL FOR COURTS-MARTIAL UNITED STATES IV-24 (2019 ed.).

30 Vermont Law Review [Vol. 46:024 only to a positive act that constitutes a crime . . . so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness.”25 As this article will show, invocation of the Insurrection Act, by President Trump, in response to the events unfolding across the country on June 1, 2020, would provide no such justification for disobedience.

Third, mischaracterizing the legality of national leadership’s proposal to employ military force domestically strains civil-military relations and degrades trust between the military and national leadership. While disagreement between senior military leadership, retired or otherwise, and national leadership over tough policy decisions is inevitable, and public vetting of those decisions has virtue, the disputes must be rooted in facts and an accurate application of relevant law or run the risk of appearing partisan. Otherwise, “political distrust may incentivize the perverse practice of ‘general shopping’ for those of the ‘correct’ partisan persuasion, and the . . . mass firing of general officers from previous administration[s] . . . .”26 As noted by Lieutenant General David W. Barno, U.S. Army (Ret.) and Dr. Nora Bensahel in a recent article published in War on the Rocks, “[i]f [military leaders’] advice comes to be seen as compromised by partisanship, the nation’s elected leaders will not be able to objectively assess their military options . . . .”27

Fourth, widely circulated mischaracterizations of the legality of the President’s proposed use of the U.S. military on domestic soil risks creating an unduly tentative President. By design, “the Constitution secures all federal executive power in the President to ensure a unity in purpose and energy in action.”28 Alexander Hamilton

25 Smith v. Obama, 217 F. Supp. 3d 283, 293 (D.D.C. 2016) (citing United States v. New, 55 M.J. 95, 109 (C.A.A.F. 2001)). 26 Thomas Burke & Eric Reid, Retired Military Endorsements Erode Public Trust in the Military, BROOKINGS (June 30, 2020), https://www.brookings.edu/blog/order-from-chaos/2020/06/30/retired-military-endorsements-erode-public-trust-in-the-military (emphasis added). 27 David Barno & Nora Bensahel, The Increasingly Dangerous Politicization of the U.S. Military, WAR ON THE ROCKS (June 18, 2019), https://warontherocks.com/2019/06/the-increasingly-dangerous-politicization-of-the-u-s-military/. 28 Robert J. Delahunty & John C. Yoo, The President’s Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations that

2021] Congress Can Delegate Authority, But Not Responsibility 31 discussed the importance of “unity in purpose and energy in action” in Federalist No. 70.29 He wrote, “[d]ecision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number.”30 He goes on to explain, “energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community . . . to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.”31 President George W. Bush lends credence to this concern during the recounting of the Bush administration’s response to Hurricane Katrina in his memoir Decision Points.32 When it made landfall in 2005, Hurricane Katrina proved to be “the most destructive natural disaster in American history, laying waste to 90,000 square miles of land, an area the size of the United Kingdom . . . . All told, more than 1,500 people died.”33 In Decision Points, President Bush relays that “[w]inds above 120 miles per hour had flattened the Mississippi coastline and driven a wall of water through the levees of New Orleans. Eighty percent of [New Orleans], home to more than 450,000 people, had flooded. Reports of looting and violence filled the news.”34 His estimate of the state and local response was stark. President Bush wrote, “after four days of chaos, it was clear the authorities in Louisiana could not lead.”35 Despite the unrest, and after much consideration, the President decided not to federalize the response to Hurricane Katrina. President Bush noted the reasons for his decision in his memoir:

Harbor or Support Them, 25 HARV. J.L. & PUB. POL’Y 487, 492 (2002). 29 Id. (quoting THE FEDERALIST NO. 70 (Alexander Hamilton)). 30 Id. 31 Id. 32 See generally GEORGE W. BUSH, DECISION POINTS 308–32 (2010) (discussing generally the United States’ approach to addressing natural disasters). 33 S. REP. NO. 109-322, at 2 (2006). 34 BUSH, supra note 32, at 308. 35 Id.

32 Vermont Law Review [Vol. 46:024

All my instincts told me we needed to get federal troops into New Orleans to stop the violence and speed the recovery. But I was stuck with a resistant governor, reluctant Pentagon, and an antiquated law [The Insurrection Act]. I wanted to overrule them all. But at the time, I worried that the consequence could be a constitutional crisis, and possibly a political insurrection as well.36 The effect of the President’s decision on the ability to maintain

unity of command37 during the response to Hurricane Katrina is well documented in the Final Report of the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina.38 Given the magnitude of the natural disaster, it is impossible to state with certainty that federalizing the response to Hurricane Katrina would have boded better results. What is clear is that concern over “a constitutional crisis, and possibly a political insurrection”39 stunted the President’s instincts despite the Office of Legal Counsel’s conclusion that “the federal government had authority to move in even over the objection of local officials.”40

Further, a significant portion of the criticism heaped on President Trump by retired generals and flag officers after the President’s June 1, 2020 statement from the Rose Garden focused on the President’s independent judgment of the facts on the ground.41 During times of crisis, an observer might expect disagreements about

36 Id. at 321. 37 H.R. REP. NO. 109-377, at 184 (2006) (“Unity of command is the concept that an individual has only one superior to whom he or she is directly responsible, creating a clear line of supervision and command and control.”); JOINT CHIEFS OF STAFF, JOINT PUBLICATION 1: DOCTRINE FOR THE ARMED FORCES OF THE UNITED STATES V-1 (2013), https://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/jp1_ch1.pdf (“Unity of command means all forces operate under a single commander with the requisite authority to direct all forces employed in pursuit of a common purpose.”). 38 H.R. REP. NO. 109-377, at 184–90. 39 BUSH, supra note 32, at 321. 40 Eric Lipton et al., Political Issues Snarled Plans for Troop Aid, N.Y. TIMES (Sept. 9, 2005), https://www.nytimes.com/2005/09/09/us/nationalspecial/political-issues-snarled-plans-for-troop-aid.html. 41 See Allen, supra note 7.

2021] Congress Can Delegate Authority, But Not Responsibility 33 the severity of the facts on the ground and the appropriate response. Be that as it may, a President’s decision to disregard his advisors’ learned judgment does not render the President’s determination unlawful. On the contrary, the Insurrection Act expressly authorizes the President to use the military on domestic soil.42 Moreover, the Insurrection Act expressly appoints the President as the ultimate decisionmaker of whether the antecedent statutory facts on the ground have been satisfied for calling forth the armed forces.43

Finally, criticism of the President’s assessment of whether the exigency exists and mischaracterizing the President’s proposed course of action as unlawful obscure Congress’s role as the benefactor, providing ever-broadening congressional authorizations to the President and making President Trump’s proposed course of action explicitly lawful. President Trump’s critics obfuscate Congress’s conscious decision not to employ its “considerable power to restrain the President.”44 Congressional acts authorizing the President to use the militia and employ the armed forces on domestic soil are nearly as old as the Republic. Congress has amended the Insurrection Act and its forebearers on numerous occasions, providing for fewer restrictions and an increasingly autonomous President with almost every iteration.45 As recently as 2008, Congress demonstrated its ability to revisit the Act by passing legislation, subsequently signed by the President, repealing portions of the Insurrection Act.46 Yet, the Insurrection Act remains the statutory bulwark against critics of President Trump’s proposed actions. Future Presidents are likewise free to wield this authority with unencumbered discretion—unless Congress chooses to act.47

This Article will begin by briefly reviewing the evolution of the statutory language of “The Militia Acts,”48 demonstrating how

42 See Insurrection Act, 10 U.S.C. § 253 (1956). 43 Id. 44 Smith v. Obama, 217 F. Supp. 3d 283, 303 (D.D.C. 2016). 45 See William C. Banks, Providing “Supplemental Security”–The Insurrection Act and the Military Role in Responding to Domestic Crises, 3 J. NAT’L SEC. L. & POL’Y 39, 42–44, 87 (2009) (excepting the 2006 amendment repealed in 2008). 46 Id. at 87. 47 See Insurrection Act. § 253. 48 See Stephen I. Vladeck, Emergency Power and the Militia Acts, 114 Yale L. J.

34 Vermont Law Review [Vol. 46:024 congressional constraints placed on the President’s domestic employment of the militia and the U.S. military have eroded. This Part will also set forth the Insurrection Act’s current language and establish the lawfulness of President Trump’s proposal to use the armed forces to suppress civil unrest in the wake of George Floyd’s murder while in police custody.

Part II of this Article suggests that, if President Trump had invoked the Insurrection Act, courts would be unlikely to provide relief because the prayer for relief would require the courts to supplant the President’s estimate of the facts on the ground for the court’s. This kind of second guessing runs contrary to the plain language of the Insurrection Act. The Act makes the President “the judge of the existence of the exigency.”49 Additionally, this Part addresses another reason the courts are unlikely to provide relief, the specter of Political Question Doctrine. The Political Question Doctrine calls for courts to eschew constitutional questions committed to another branch of government, or those questions lacking judicially discoverable standards, thereby allowing the court to “avoid[] becoming embroiled in . . . [such] disputes.”50

Part III turns its attention to Justice Robert H. Jackson’s concurrence in Youngstown Sheet & Tube Company v. Sawyer—the preeminent framework for considering “the validity of the exercise of executive power.”51 This Part asserts that under Justice Jackson’s Youngstown framework and current statutory language authorizing the use of the armed forces to suppress “insurrection, domestic violence, unlawful combination, or conspiracy,”52 President Trump’s authority to deploy the military on domestic soil was “at its maximum”53 at the

149, 152 (2004) [hereinafter Emergency Power]; Stephen I. Vladeck, The Field Theory: Martial Law, The Suspension Power, and the Insurrection Act, 80 TEMPLE L. REV. 392, 416 (2007) [hereinafter Martial Law]. 49 Martin v. Mott, 25 U.S. 19, 31 (1827). 50 John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 182 (1996) [hereinafter Yoo, War Powers]. 51 Id. at 193. 52 10 U.S.C. § 253 (1956). 53 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).

2021] Congress Can Delegate Authority, But Not Responsibility 35 time of his Rose Garden statement. Under Justice Jackson’s framework, President Trump “personif[ied] the federal sovereignty.”54 Further, this Part posits that recent proposals to amend the Insurrection Act are unlikely to alter the President’s station under the Youngstown framework; however, even if Congress managed to effectuate a change to the President’s station under the Youngstown framework, federal courts are unlikely to intervene. Only Congress, by “deploy[ing] their own constitutional authority to stop abuses of power,” can place the political and constitutional accountability for the President’s domestic use of the military squarely at the Executive’s feet.55

The Conclusion revisits the history of congressional authorization of the President’s use of the militia and the armed forces on domestic soil, emphasizing congressional endorsement of an increasingly autonomous President throughout The Militia Acts’ evolution. Relevant 19th-century Supreme Court precedent regarding The Militia Acts reinforced Congress’s establishment of an independent President with the sole authority to determine whether to use the strong arm of the national government to suppress domestic disorder.56 Further, Justice Jackson’s famous Youngstown concurrence adds additional support to actions taken by the President pursuant to an act of Congress, noting that in such situations, his authority is “at its maximum” and bestows upon him “the strongest of presumptions and the widest latitude of judicial interpretation.”57

Nevertheless, this Article concludes that despite this wellspring of

54 Id. at 636. This Article is focused on the President’s authority pursuant to an act of Congress and sets aside the argument that the President may take similar action absent congressional authorization and pursuant to his inherent Article II powers. See In re Debs, 158 U.S. 564, 582 (1895) (“The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care. The strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the Nation, and all its militia, are at the service of the Nation to compel obedience to its laws.”). 55 James C. Phillips & John C. Yoo, You’re Fired: The Original Meaning of Presidential Impeachment, 94 S. CAL. L. REV. (forthcoming) (manuscript at 54). 56 See generally In re Debs, 158 U.S. at 582–83. 57 Youngstown, 343 U.S. at 635, 637.

36 Vermont Law Review [Vol. 46:024 precedential support for independent presidential action and decision-making pursuant to the Insurrection Act, the federal courts have decided that the judiciary must not have the final word in disputes of this kind between the political branches. As the federal courts have repeatedly stated under similar facts, “[w]hen the executive takes a strong hand, Congress has no lack of corrective power.”58After all, Congress can delegate authority; it cannot delegate responsibility.59

I. THE MILITIA ACTS

This Part examines the statutory language, from 1792 to the present, granting the President the authority to employ the militia and the armed forces in response to various domestic exigencies. Specifically, this Part accentuates Congress’s steady erosion of checks and accountability mechanisms on the President’s use of the militia and the armed forces in response to various domestic exigencies.60 For the purposes of this Part, the separate issue of whether the Militia Clause61 “confirms that it is Congress, not the President, that

58 Mass. v. Laird, 451 F.2d 26, 34 (1st Cir. 1971); see Ange v. Bush, 752 F. Supp. 509, 514 (D.D.C. 1990) (“[I]f Congress concludes at any time that the President's actions . . . have usurped Congress’ constitutional role, Congress has many options to check the President.”). 59 HEADQUARTERS, DEP’T OF THE ARMY, ADP 6-0 MISSION COMMAND, COMMAND AND CONTROL OF ARMY FORCES 1–5 (2019), https://armypubs.army.mil/epubs/DR_pubs/DR_a/ARN18314-ADP_6-0-000-WEB-3.pdf (identifying existence of both responsibility and authority of delegees to fulfill a commander’s intent). 60 Steve Vladeck, Trump’s George Floyd protest threats raise legal questions. Here’s what he can (and can’t do), NBC NEWS (June 2, 2020), https://www.nbcnews.com/think/opinion/trump-s-george-floyd-protest-threats-raise-legal-questions-here-ncna1222241/ [hereinafter Vladeck, Trump’s George Floyd protest threats raise legal questions]. 61 U.S. CONST. art. I, § 8, cl. 15; see also Emergency Power, supra note 48, at 153 (noting that Congress has authority under the Militia Clause to use the militia to enforce domestic laws); Banks, supra note 45, at 39 (recognizing the mechanisms for military support in domestics settings is tightly controlled); Frederick Bernays Wiener, The Militia Clause of the Constitution, 54 HARV. L. REV. 181, 207 n.1 (1940) (“Strictly speaking, of course, there are two clauses, but insistence upon the plural would seem pedantic in view of common usage to the contrary—a usage sanctioned by Congress (e.g. H.R. REP. NO. 141, 73d Cong., 1st Sess. (1933) 2, 5)

2021] Congress Can Delegate Authority, But Not Responsibility 37 authorizes the deployment of the military in respon[se] to a domestic crisis”62 is set aside. Part A reviews the text of the pre-Civil War statutes initially authorizing the President “to call forth the militia”63 and later “to employ . . . the land or naval force of the United States.”64 Part B introduces the post-Civil War statutes authorizing the President “to call forth the militia . . . and to employ . . . the land and naval forces of the United States.”65 Part C analyzes the current version of the Insurrection Act66 and makes clear the lawfulness of President Trump’s proposed use of the U.S. military to quell civil unrest.

A. The Pre-Civil War Statutes

1. The Calling Forth Act

The scholarly commons are rich with literature on the history of the founding of the United States. Though there is much to consider when endeavoring to divine the Framers’ constitutional design, even the scantest review of the American experience before and after 1787 will uncover two indelible hallmarks. First, surveyors of the scholarly commons will undoubtedly note that colonists were vigorously anti-executive leading up to the rebellion against Great Britain and in the years immediately following. “Antipathy towards the Crown” was reflected “in the first constitutions drafted by the newly independent states.”67 Second, relevant literature notes that the Pre-Revolutionary, Revolutionary, Convention, Ratification, and other ensuing periods of the American experience are marked by “a traditional and strong resistance of Americans to any military intrusion into civilian

and by the Supreme Court.”). 62 Banks, supra note 45, at 40. 63 Calling Forth Act of 1792, ch. 28, § 2, 1 Stat. 264, (repealed 1795). 64 Insurrection Act of 1807, ch. 39, Pub. L. No. 9-2, 2 Stat. 443. 65 Suppression of the Rebellion Act of 1861, ch. 25, Pub. L. No. 36, 12 Stat. 281. See also Civil Rights Act of 1871, ch. 22, §§ 3–4, 17 Stat. 13, 14–15 (1871) (authorizing the President to to “employ[] . . . the militia or the land and naval forces of the United States.”). 66 Insurrection Act, 10 U.S.C. §§ 251–254. 67 Yoo, War Powers, supra note 50, at 222.

38 Vermont Law Review [Vol. 46:024 affairs.”68 The first of these axioms of the American experience notwithstanding, whether by constitutional design,69 “congressional inertia, indifference or quiescence,”70 or the slow grind of presidential practice over time,71 there emerged a strong, unitary, independent executive.72 Likewise, only a year after the new government under the Constitution officially commenced in March 1789,73 Congress would initiate the practice of delegating to the President the authority to call out the militia,74 a tradition that continues today.75 Despite “the American Revolution [being] spurred in large part by the colonists’ reaction to King George’s use of the military to enforce English laws in the colonies”76 and the powers the Framers reserved to Congress in the Militia Clause,77 the realities of governance and the ever-changing threats to the fledgling republic demanded deviation from the second of these axioms.78

The Militia Clause grants Congress the power “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal Invasions.”79 Accordingly, in the Calling Forth Act of 1792, Congress provided “[t]hat whenever the United States shall be invaded, or be in imminent danger of invasion from any

68 Laird v. Tatum, 408 U.S. 1, 15 (1972). 69 Yoo, War Powers, supra note 50, at 218, 223. 70 Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952). 71 See generally ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY ix (1973). 72 See STEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER FROM WASHINGTON TO BUSH 4, 8, 419 (2008); John Yoo, Unitary, Executive, or Both?, 76 U. CHI. L. REV. 1935, 1979 (2009); see also Yoo, War Powers, supra note 50, at 292. 73 Establishment of a New Government, in 34 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, 515, 518, 523 (Roscoe R. Hill ed., 1937) [hereinafter JOURNALS]. 74 Act of Apr. 30, 1790, ch.10, § 16, 1 Stat. 119, 121. 75 Insurrection Act, 10 U.S.C. § 251 (2018). 76 Banks, supra note 46, at 39. 77 U.S. CONST. art. I, § 8, cl. 15. 78 See generally Emergency Power, supra note 48, at 153 (discussing how authority to impose martial law has been textually and historically committed to Congress); see also ROBERT W. COAKLEY, THE ROLE OF FEDERAL MILITARY FORCES IN DOMESTIC DISORDERS 1789–1878, at 4–7 (David F. Trask ed., 1988). 79 U.S. CONST. art. I, § 8, cl. 15.

2021] Congress Can Delegate Authority, But Not Responsibility 39 foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth . . . the militia.”80 Although the language of the Act was expansive, this “temporary and unprecedented experiment”81 was not without checks and accountability mechanisms82 on the President’s use of delegated authority.

In a nod to state sovereignty and the fundamental constitutional principle of federalism,83 § 1 of the Calling Forth Act required, “in case of an insurrection in any state, against the government,” as an antecedent for the President to “call forth . . . the militia,” an “application of the legislature of such state, or of the executive (when the legislature cannot be convened).”84 The Act contained additional checks and accountability mechanisms.85 Section 2 provided:

[W]henever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, the same being notified to the President of the United States, by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed.86

80 Calling Forth Act of 1792, ch. 28, § 1, 1 Stat. 264, 264 (repealed 1795); Martial Law, supra note 48, at 417. 81 Martial Law, supra note 48, at 417. 82 Vladeck, Under the Insurrection Act of 1807, here’s what a U.S. president can and cannot do, WASH. POST (June 19, 2020), https://www.washingtonpost.com/politics/2020/06/19/under-insurrection-act-1807-heres-what-us-president-can-cannot-do/ [hereinafter Under the Insurrection Act]. 83 See generally Libr. of Cong., Intro.2.2.3 The Constitution's Basic Principles: Federalism, CONST. ANNOTATED, https://constitution.congress.gov/browse/essay/intro-2-2-3/ALDE_00000032/ (last visited Dec. 21, 2021) (explaining the concept of federalism). 84 Calling Forth Act of 1792 § 1. 85 Vladeck, Trump’s George Floyd protest threats raise legal questions, supra note 60. 86 § 2, 1 Stat. 264.

40 Vermont Law Review [Vol. 46:024 Here, the Act did not make the President “the sole and exclusive judge . . . of the existence of the exigency”87 that would authorize “the President of the United States to call forth the militia . . . .”88 Instead, Congress required an independent assessment and notification “by an associate justice or the district judge” of the existence of the factual predicate for “ call[ing] forth the militia.”89

Section 2 also employed an additional restraint on the President—graduated force measures.90 Upon receiving confirmation from “an associate justice or the district judge” of the factual predicate for “call[ing] forth the militia,”91 the Act authorized the President to meet the exigency with the militia of the state under duress.92 Under the Act, if the militia of the state under duress refused to obey the President of the United States or was insufficient to execute the laws of the United States, the President could not of his own volition, “call forth the militia” of other states while Congress was in session.93 Presumably, while the Legislature was in session, Congress withheld its delegation of the Militia Clause’s powers.94 If, however, “the legislature of the United States” was not in session, the Act authorized the President “to call forth and employ such numbers of the militia of any other state or states . . . as . . . necessary.”95

Even then, as an added check, in the instance that the Legislature was not in session, the Act imposed a time constraint on the President’s authority to keep “the militia employed in the service of the United States.”96 The Act authorized “the use of militia . . . until the expiration of thirty days after the commencement of the ensuing session,” preserving a congressional check on the President.97 As a

87 Martin v. Mott, 25 U.S. 19, 29, 31 (1827). 88 § 2, 1 Stat. 264. 89 Id. 90 DAVID H. LEE ET AL., OPERATIONAL LAW HANDBOOK 89 (2015) (explaining that “[g]raduated force measures” require an attempt to use lesser means of force to respond to a threat when time and circumstances permit). 91 § 2, 1 Stat. 264. 92 Id. 93 Id. 94 U.S. CONST. art. I, § 8, cl. 15. 95 § 2, 1 Stat. 264. 96 § 4, 1 Stat. 264. 97 § 2, 1 Stat. 264.

2021] Congress Can Delegate Authority, But Not Responsibility 41 final measure, the Act required that the President, “by proclamation, command such insurgents to disperse, and retire peaceably . . . within a limited time” before calling forth the militia.98

2. The Militia Act

In 1794, the fifth year of the new American experiment to implement a viable “economic program . . . for funding the national debt and chartering a national bank,” the federal government sought to increase taxes.99 One such tax was the Whiskey Act of 1791.100 Three years after the passage of the Whiskey Act of 1791, “[w]hat had begun as a [Whiskey] tax protest had escalated into an armed rebellion.”101 In responding to the uprising, President George Washington adhered to the checks and accountability mechanisms102 of the Calling Forth Act “to the letter,”103 including “present[ing] evidence of the violence to Supreme Court Justice James Wilson, who ruled a military response was justified,”104 and “easily crushed the rebellion”:105

The triumph of the forces of order over the Whiskey Rebels occasioned an outpouring of public sentiment in favor of the government’s decision to use force to put down the rebellion. . . . [President] Washington[] call[ed] for a national day of Thanksgiving to commemorate the suppression of the rebellion.106

President Washington’s adherence to the Calling Forth Act was a

98 § 3, 1 Stat. 264. 99 Saul Cornell, Mobs, Militias, and Magistrates: Popular Constitutionalism and the Whiskey Rebellion, 81 CHI.-KENT L. REV. 883, 894 (2006). 100 S. JOURNAL, 1st Cong., 3d Sess. 250 (1791). 101 Cornell, supra note 99, at 894. 102 Martial Law, supra note 48; Under the Insurrection Act, supra note 82. 103 Martial Law, supra note 48, at 417. 104 Whiskey Rebellion, HISTORY.COM, https://www.history.com/topics/early-us/whiskey-rebellion#section_6 (last updated Sept. 13, 2019). 105 Cornell, supra note 99, at 900. 106 Id. at 901.

42 Vermont Law Review [Vol. 46:024 watershed moment “result[ing] in the establishment of both a permanent law and a precedent for all future use of federal military force in domestic disorders.”107 In 1795, Congress would make the “temporary and unprecedented experiment” of the Calling Forth Act permanent, “removing several of the . . . checks on presidential unilateralism.”108

The newly adopted Militia Act of 1795 retained § 1 of the Calling Forth Act in its totality,109 preserving the Calling Forth Act’s adherence to state sovereignty and the fundamental constitutional principle of federalism.110 Section 2, on the other hand, was utterly transformed.

Under the Militia Act, the President became “the sole and exclusive judge . . . of the existence of the exigency.”111 Congress jettisoned the requirement for an assessment from the Judicial Branch, leaving the Executive Branch to determine whether the factual predicate “to call forth the militia” was satisfied.112 Additionally, Congress removed the graduated force measures113 and language limiting the President’s response solely to the use of the afflicted state’s militia from the statutory language.114 Likewise, Congress eliminated the provision precluding the President from “call[ing] forth the militia” of other states while Congress was in session.115 The time constraint on the President’s authority to keep “the militia employed in the service of the United States”116 was modified slightly, allowing “use of the militia” to continue “until the expiration of thirty days after the commencement of the next session of Congress,” preserving a congressional check on the President.117 Finally, while the newly

107 COAKLEY, supra note 78, at 68. 108 Martial Law, supra note 48, at 417–18. 109 Militia Act of 1795, ch. 36, § 1, 1 Stat. 424, 424 (1795) (repealed in part 1861); Calling Forth Act of 1792, ch. 28, § 1, 1 Stat. 264, 264 (repealed 1795). 110 See generally Libr. of Cong., supra note 83. 111 Martin v. Mott, 25 U.S. (12 Wheat.) 19, 29, 31 (1827). 112 § 2, 1 Stat. 424. 113 LEE, supra note 90, at 89 (“When time and circumstances permit, Soldiers should attempt to use lesser means of force to respond to a threat.”). 114 See § 1, 1 Stat. 424. 115 See id. 116 Id.§ 4, 1. 117 Id.§ 2, 1.

2021] Congress Can Delegate Authority, But Not Responsibility 43 minted Militia Act retained the command that the President “by proclamation, command such insurgents to disperse, and retire peaceably . . . within a limited time,” it was no longer required before calling forth the militia.118

3. The Insurrection Act

A third and indelible hallmark of the early American

experience was the “strong sentiment against the maintenance of any standing army in the new nation.”119 Yet, like the vigorously anti-executive mood of the pre-Revolutionary colonies and the “traditional and strong resistance of Americans to any military intrusion into civilian affairs,”120 the fear of standing armies would give way to the rising exigencies of the day.

The resistance to, and subsequent acceptance of, a standing army was cyclical in early American history. Indeed, “[t]he initial American response to the possibility of armed confrontation with British authorities had been a strengthening of the militia,” not a call for a standing Continental Army.121 Despite initial reservations, “[o]bjections to a Continental Army enlisted for the duration of the war had ended in late 1776 when Congress realized” that the militia was “insufficient for a long war.”122 After the Revolutionary War, despite General Washington’s entreaties to the contrary,123 Congress

118 Id.§ 3, 1. 119 Banks, supra note 46, at 48; see also Under the Insurrection Act, supra note 82; see also WRIGHT, supra note 1, at 180 (“[D]iscussions in 1783 and 1784 would color the development of the United States Army for the remainder of the century.”). 120 Laird v. Tatum, 408 U.S. 1, 15 (1972). 121 WRIGHT, supra note 1, at 19. 122 Id. at 179–80. 123 Id. at 180–81. “Washington's proposal called for four components: a small regular army, a uniformly trained and organized militia, a system of arsenals, and a military academy to train the army's artillery and engineer officers. He wanted four infantry regiments, each assigned to a specific sector of the frontier, plus an artillery regiment. His proposed regimental organizations followed Continental Army patterns but had a provision for increased strength in the event of war. Washington expected the militia primarily to provide security for the country at the start of a war until the regular army could expand—the same role it had carried out in 1775 and 1776. . . . Congress . . . rejected Washington's concept for a peacetime force . . . .”

44 Vermont Law Review [Vol. 46:024 quickly disbanded the greater part of the Continental Army.124 Tensions over the existence of a regular standing army would be a mainstay throughout the Constitutional Convention. Consequently, the resulting text of the Constitution, as it related to the regular army and the militia, would prove to be “broad, general, and in some cases, a little ambiguous—a product of the necessity for compromise and consensus.”125 Altogether missing from these powers is a “structural constitutional limitation[] on the domestic use of the military.”126 For example:

Article I [granted] Congress the power to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” [Additionally, Article I granted] Congress . . . the authority to “raise and support Armies,” to “provide and maintain a Navy,” to “make Rules for the Government and Regulation of the land and naval Forces,” to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” and to “provide for organizing, arming, and disciplining, the Militia.”127

Over the ensuing years, after disbanding the Continental Army, “Congress [again] found it expedient to enlarge the Union’s own regular military forces as skirmishes with Indian tribes continued, war with France seemed to threaten, and tensions between the young

124 Id. at 182; see Letter from David Cobb to Major Gen. Henry Knox, Farewell Orders to the Armies of the United States (Oct. 30, 1783), in GEORGE WASHINGTON PAPERS (Ser. 3, Subser. 3B, Varick Transcripts, Letterbook 16), https://tile.loc.gov/storage-services/service/mss/mgw/mgw3b/016/016.pdf. 125 COAKLEY, supra note 78, at 19. 126 Stephen I. Vladeck, The Calling Forth Clause and the Domestic Commander in Chief, 29 CARDOZO L. REV. 1091, 1103 (2008). See Arver v. United States, 245 U.S. 366, 382 (1918) (“The fallacy of the argument results from confounding the constitutional provisions concerning the militia with that conferring upon Congress the power to raise armies. It treats them as one while they are different.”). 127 Yoo, War Powers, supra note 50, at 175–76 (emphasis added) (internal citations omitted).

2021] Congress Can Delegate Authority, But Not Responsibility 45 nation and Great Britain increased.”128 In 1807, Congress spoke where the Constitution had not.129

On March 3, 1807, Congress passed “[a]n Act authorizing the employment of the land and naval forces of the United States, in cases of insurrection.”130 The single-sentence authorization provided:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that in all cases of insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the pre-requisites of the law in that respect.131

While the separate constitutional issue of whether “it is Congress, not the President, that authorizes the deployment of the military in respon[se] to a domestic crisis”132 is set aside, it is worth noting that the passage of the Insurrection Act adds little clarity to the debate. “The legislative history behind the Insurrection Act is nonexistent.”133 What is clear, as noted by Professor Stephen Vladeck, is that “Congress clearly meant to expand the calling-forth power to the regular army” in the case of “insurrection, or obstruction to the laws, either of the United States, or of any individual state or territory.”134

128 DAVID E. ENGDAHL, SOLDIERS, RIOTS, AND REVOLUTION: THE LAW AND HISTORY OF MILITARY TROOPS IN CIVIL DISORDERS 66 (1971); see also Emergency Power, supra note 48, at 163–64 (discussing expansion of the President’s power to call forth state militias). 129 Insurrection Act of 1807, ch. 39, Pub. L. No. 9-2, 2 Stat. 443. 130 Id. 131 Id. 132 Banks, supra note 46, at 40. 133 Emergency Power, supra note 48, at 164. 134 Id. at 165. The Militia Clause gives Congress authority to call forth the militia. It


B. The Post-Civil War Statutes

1. The Suppression of the Rebellion Act

In 1861, Congress abandoned any remaining tentativeness about “military intrusion into civilian affairs.”135 What at one time might have been anathema to Americans became an unadulterated feature of the law. The drumbeat of the Civil War was reverberating. On April 14, 1861, Fort Sumter had surrendered to the southern states.136 Thirteen days later, President Abraham Lincoln “unilaterally suspended the writ of habeas corpus on the route from Philadelphia to Washington and replaced civilian law enforcement with military detention without trial.”137 Moreover, just days before the passage of the Suppression of the Rebellion Act, on July 21, 1861, Union troops had been roundly defeated at the first Battle of Bull Run.138 It was against this backdrop, on July 29, 1861, that Congress passed “[a]n Act to provide for the Suppression of Rebellion against and Resistance to the laws of the United States, and to amend [the Militia Act of 1795].”139

Of note, the Thirty-Seventh Congress, at least on the margins, untethered the Act from the precise language of the Militia Clause.140 Where the previous Act accounted for “execut[ing] the Laws of the

is silent on the regular army. It is not obvious that the president does not have an independent grant of authority via the Take Care Clause and the Commander in Chief Clause to call forth military to execute the law. See Yoo, Unitary, Executive, or Both?, supra note 72, at 1964 (“Presidents may have good reasons, in their view, to accept deviations from a pure theory of a unitary executive.”). 135 Laird v. Tatum, 408 U.S. 1, 15 (1972); John Yoo, Lincoln at War, 38 VT. L. REV. 3, 15 (2013). 136 John Yoo, Lincoln at War, 38 VT. L. REV. 3, 15 (2013). 137 Id. at 17. 138 Id. at 23; see also The Battle of First Manassas (First Bull Run), NAT’L PARK SERV., https://www.nps.gov/mana/learn/historyculture/first-manassas.htm (last updated Nov. 8, 2021). 139 Suppression of the Rebellion Act of 1861, ch. 25, § 1, 12 Stat. 281 (1861). 140 Compare U.S. CONST. art. I, § 8, cl. 15 (“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal Invasions.”), with § 1, 12 Stat. 281 (“[I]t shall be lawful for the President of the United States to call forth the militia . . . to enforce the faithful execution of laws of the United States, or to suppress such rebellion . . . .”).

2021] Congress Can Delegate Authority, But Not Responsibility 47 Union, suppress[ing] insurrections and repel[ling] invasions,”141 the Suppression of the Rebellion Act incorporated only the “execution of the laws” language, favoring reference to “rebellion.”142 The Act provided:

That whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President of the United States, to enforce, by the ordinary course of judicial proceedings, the laws of the United States within any State or Territory of the United States, it shall be lawful for the President of the United States to call forth the militia of any or all the States of the Union, and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed.143

Previous nods to federalism evaporated. Under the Act, Congress declared the President “the sole and exclusive judge . . . of the existence of the exigency”144 and authorized him “to call forth the militia of any or all the States of the Union, and to employ such parts of the land and naval forces of the United States as he may deem necessary.”145 Additionally, Congress changed the antecedent facts slightly. Where the previous Act required a determination that the opposition to the laws could not be “suppressed by the ordinary course of judicial proceedings,”146 the new Act required only that, in the judgment of the President, enforcement of the laws of the United

141 Militia Act of 1795, ch. 36, 1 Stat. 424, 424 (1795) (repealed in part 1861). 142 12 Stat. 281. 143 Id. (emphasis added). 144 Martin v. Mott, 25 U.S. (12 Wheat.) 19, 29, 31 (1827). 145 12 Stat. 281. 146 Militia Act of 1795, ch. 36, § 2, 1 Stat. 424, 424 (1795) (repealed in part 1861).

48 Vermont Law Review [Vol. 46:024 States were “impracticable.”147 The time constraint on the President’s authority to keep “the militia employed in the service of the United States”148 increased to “sixty days after the commencement of the next regular session of Congress, unless Congress . . . expressly provide by law therefor.”149 The Act retained the obligation that the President “by proclamation, command . . . insurgents to disperse and retire peaceably . . . within a limited time.”150 Finally, if there was any confusion about the reach of the President’s authority, Congress added, “all other acts as conflict with this act are hereby repealed.”151 On the eve of the Great Rebellion, there could be no doubt that Congress and the President saw no Constitutional impediment to deploying the U.S. military to quash civil unrest.

2. The Civil Rights Act of 1871

Lest observers view the authority Congress granted to the President in the Suppression of Rebellion Act of 1861 as a one-off, attributable to the exigency of the Civil War, the attention of this Article turns now to a statute passed nearly six years after the end of the Great Rebellion—the Civil Rights Act of 1871.

The Act, designed to “enforc[e] the Fourteenth Amendment and prevent[] acts of violence and intimidation by individuals against new black citizens,”152 neither restored the checks and accountability mechanisms153 of the Militia Act of 1792 nor sustained the broad grant of authority in the Suppression of the Rebellion Act.154 Instead, the Act imbued the President with even greater power. The Forty-Second Congress called for the President to respond:

147 12 Stat. 281. 148 § 4, 1 Stat. 424. 149 § 3, 12 Stat. 281 (emphasis added) (noting there was no such restriction on the land and naval forces). 150 Id. § 2. 151 Id. § 8. 152 Banks, supra note 46, at 63. 153 Vladeck, Trump’s George Floyd protest threats raise legal questions, supra note 60. 154 See Suppression of the Rebellion Act of 1861, ch. 25, 12 Stat. 281 (1861).


[I]n all cases where insurrection, domestic violence, unlawful combinations, or conspiracies in any State shall so obstruct or hinder the execution of the laws thereof, and of the United States, as to deprive any portion or class of the people of such State of any of the rights, privileges, or immunities, or protection, named in the Constitution and secured by this act, and the constituted authorities of such State shall either be unable to protect, or shall, from any cause, fail in or refuse protection of the people in such rights . . . .155

Under § 3, “which was to become part of the permanent law of the United States governing military intervention to ‘enforce the laws of the union,’”156 safeguards paying homage to the fundamental principle of federalism remained absent. The President retained his place as “the sole and exclusive judge . . . of the existence of the exigency” and the antecedent facts authorizing him “to call forth the militia”157 of any State and “to employ[] . . . the land and naval forces of the United States.”158 Congress expanded the President’s authority by adding “or by other means” to the suite of responses at the President’s disposal for dealing with exigencies.159 As noted above, for the first time, Congress authorized the President to respond to “domestic violence.”160

Additionally, § 4 of the Act authorized the President “to suspend the privileges of the writ of habeas corpus” in cases where “in his judgment the public safety . . . require[d] it.”161 The time constraint on the President’s authority under the Act extended to “the end of the next regular session of Congress”162 and the Act retained the requirement that the President issue a proclamation commanding

155 Civil Rights Act of 1871, ch. 22, § 3, 17 Stat. 13, 14 (1871) (emphasis added). 156 COAKLEY, supra note 78, at 309. 157 Martin v. Mott, 25 U.S. (12 Wheat.) 19, 29, 31 (1827). 158 12 Stat. § 281. 159 Civil Rights Act of 1871 § 3. 160 Id. (emphasis added). 161 Id. § 4 (emphasis added). 162 Id. (emphasis added).

50 Vermont Law Review [Vol. 46:024 insurgents to disperse before deploying force.163 It is true that “[b]y the time of the Revolution, there was strong sentiment against the maintenance of any standing army in the new nation, because of the military’s demonstrated tendency to threaten its own citizens.”164 However, opposition to the standing army was not the Framers’ only concern. Alexander Hamilton counterpoised the fear of a standing army in Federalist No. 23:

The authorities essential to the care of the common defense . . . ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.165

The Militia Clause makes it clear that Congress has the authority “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal Invasions”;166 however, the Clause says nothing about the use of the regular military in domestic disorders. Some scholars have argued that the Militia Clause “confirms that it is Congress, not the President, that authorizes the deployment of the military in responding to a domestic crisis.”167 Alternatively, some scholars suggest that “[t]he Framers created the Presidency so that a branch of the government would always be ‘in being’ and could exercise substantive powers in times of crisis and emergency.”168 Still, others suggest that the Framers purposely left

163 Suppression of the Rebellion Act of 1861, ch. 25, 12 Stat. 281 (repealed in part 1861). 164 Banks, supra note 46, at 48. 165 THE FEDERALIST NO. 23 (Alexander Hamilton). 166 U.S. CONST. art. I, § 8, cl. 15. 167 Banks, supra note 46, at 40. 168 Unitary, Executive, or Both?, supra note 73, at 1965–66 (quoting JOHN LOCKE, THE WORKS OF JOHN LOCKE ESQ; VOL. II 199 (1714)) (explaining that the legislative and executive branches must be separated to ensure that “a power always in being,

2021] Congress Can Delegate Authority, But Not Responsibility 51 some decisions “for future Congresses, presidents, and federal courts to determine.”169 While these debates are unlikely to be settled soon, the preceding fives statutes make it clear that in the 82 years that transpired between the formation of the new American government in March 1789170 and the passage of the Civil Rights Act of 1871, fears of the standing army had abated. Accordingly, Congress saw fit to significantly expand both the President’s authority and independence in response to civil crises.

C. President Trump and the Insurrection Act

1. Insurrection As is outlined above and well documented by Professor Stephen Vladeck, the statutory authority for the President “to call forth the militia” has existed with regularity since 1789.171 Similarly, the President’s statutory power “to employ . . . the land or naval force of the United States” has existed since 1807.172 These authorities have not since vanished and remain codified at 10 U.S.C. §§ 251–255.173 In its current form, 10 U.S.C. § 251 offers a nod to state sovereignty and the fundamental constitutional principle of federalism 174 where an insurrection against a state government persists:

which should see to the execution of the laws that are made and remain in force”). 169 COAKLEY, supra note 78, at 19. 170 JOURNALS, supra note 73. 171 See generally Emergency Power, supra note 48, at 163–64 (discussing Congress’ grant of authority to the President to call forth the militia); see BUSH, supra note 32, at 321. 172 Insurrection Act of 1807, ch. 39, Pub. L. No. 9-2, 2 Stat. 443. 173 10 U.S.C. §§ 251–255; see John Warner National Defense Authorization Act of 2006, Pub. L. No. 109-364, 120 Stat. 2083 (sustaining a massive overhaul in 2006 in response to deficiencies with the federal response to Hurricane Katrina); but see National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1068, 122 Stat. 3, 325 (2008) (repealing the language of the John Warner National Defense Authorization Act of 2006). 174 10 U.S.C. § 251.


Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.175

Where the laws of the United States are so encumbered, 10 U.S.C. § 252 provides:

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.176

The next section affords the broadest authorization:

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or

175 Id. 176 Id. § 252.


obstructs the execution of the laws of the United States or impedes the course of justice under those laws. 177

The framework is familiar. There is nothing novel in the text. In pertinent part, 10 U.S.C. §§ 252–253 make the President “the sole and exclusive judge . . . of the existence of the exigency”178 and the antecedent facts authorize him to “call into Federal service . . . the militia of any State, and use . . . the armed forces . . . to suppress . . . insurrection, domestic violence, unlawful combination, or conspiracy.”179 There is no prerequisite for an independent assessment of the facts on the ground. What is required is a presidential proclamation “order[ing] the insurgents to disperse and retire peaceably to their abodes.”180 The Act imposes no time constraint on the President’s use of military force.181

2. President Trump’s Rose Garden Statement The statutory authority above leaves no ambiguity. Congress has imbued the presidency with all of the power necessary to use military force to suppress civil unrest. President Trump’s warning, issued from the Rose Garden on June 1, 2020, falls neatly within the confines of the law. The law explicitly authorizes the President to use the militia and the armed forces when “the President considers . . . it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.”182 The subsequent section expressly states, “[t]he President . . . shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.”183 While expressing doubt about the manifestation of these antecedent facts is natural in our democratic republic, disagreement does not make the

177 Id. § 253 (emphasis added). 178 Martin v. Mott, 25 U.S. (12 Wheat.) 19, 29, 31 (1827). 179 10 U.S.C. §§ 252–253. 180 Id. § 254. 181 See id. (imposing no specific time constraint on the President, but suggesting that military force be used “within a limited time”). 182 Id. § 252 (emphasis added). 183 Id. § 253 (emphasis added).

54 Vermont Law Review [Vol. 46:024 President’s response unlawful. The law only requires that the President believes the events that unfolded across the country after the murder of George Floyd satisfied the definition of at least one of the antecedent facts in the Insurrection Act.184 The determination of whether the unrest rose to a level requiring federal intervention is for the President, and the President alone, to judge. There can be little doubt that the President was facing unrest rarely witnessed in the country’s history. Determining the order of magnitude and whether the turmoil required military intervention lay exclusively and lawfully with the Commander in Chief.

On Monday, May 25, 2020, George Floyd died after Derek Chauvin, a Minneapolis officer, handcuffed and pinned George Floyd to the ground by placing his knee on the back of George Floyd’s neck for nearly eight minutes.185 As the harrowing images of George Floyd’s murder reached social media platforms, protests sprang up throughout the country; however, these protests quickly devolved into chaos.186 The demonstrations reached “140 cities across the United States,” resulting in the activation of the National Guard in at least 21 states.187 On May 26, 2020, Minneapolis protestors set businesses on fire, vandalized police cars, and a police station.188 On May 27, 2020, in St. Louis, protestors “set fires and tried to loot a FedEx truck.”189 In Minneapolis, demonstrators “gather[ed] around the police station . . . where the officers involved in George Floyd’s arrest were based and set fire to it. The building [was] evacuated and police retreat[ed].”190 On May 28, 2020, Minnesota Governor Tim Walz described the situation in Minneapolis as an

184 See supra text accompanying note 177. 185 Derrick Bryson Taylor, George Floyd Protests: A Timeline, N.Y. TIMES (Sept. 7, 2021), https://www.nytimes.com/article/george-floyd-protests-timeline.html; Associated Press, Prosecutors say officer had knee on George Floyd’s neck for 7:46 rather than 8:46, L.A. TIMES (June 18, 2020), https://www.latimes.com/world-nation/story/2020-06-18/derek-chauvin-had-knee-george-floyd-neck-746-rather-than-846. 186 See e.g., Sugiura, supra note 3. 187 See Taylor, supra note 185. 188 See id.; see also George Floyd death: US protests timeline, BBC NEWS (June 4, 2020), https://www.bbc.com/news/world-us-canada-52921418. 189 Taylor, supra note 185. 190 George Floyd death: US protests timeline, supra note 188.

2021] Congress Can Delegate Authority, But Not Responsibility 55 “attack[] [on] civil society.”191 In Columbus, Ohio, protests “turned violent as people stormed the Statehouse and damaged downtown businesses.”192 On May 29, 2020, “[h]undreds of demonstrators poured into the streets near Atlanta’s Centennial Olympic Park.”193 Demonstrators smashed windows, defaced buildings, looted businesses, and burned police cars, leading to an impassioned plea by Atlanta Mayor Keisha Lance Bottoms, imploring people to “[g]o home.”194 In New York City, “people threw bottles and debris at officers.”195 “In Detroit, . . . someone opened fire into a crowd of demonstrators.”196 In Louisville, Kentucky, seven people were shot after “gunfire erupted.”197 In Cleveland, protestors looted businesses and set police cruisers on fire.198 On May 30, 2020, Minneapolis Mayor Jacob Frey tweeted, “[w]hat started as largely peaceful protests for George Floyd have turned to outright looting and domestic terrorism . . . .”199 Mayor Frey attributed the situation to “white supremacists, members of organized crime, out-of-state instigators, and possibly even foreign actors [there] to destroy and destabilize [the] city and . . . region.”200

The Attorney General of the United States, William P. Barr, issued a statement on May 30, 2020, stating “the voices of peaceful

191 Taylor, supra note 185. 192 Talia Naquin, A Timeline of What Led to Protests, Violence Across the Nation After the Death of George Floyd, FOX 8 NEWS, https://fox8.com/news/a-timeline-of-what-led-to-protests-violence-across-the-nation-after-the-murder-of-george-floyd (last updated June 15, 2020). 193 Taylor, supra note 185. 194 Richard Fausset & Michael Levenson, Atlanta Protesters Clash With Police as Mayor Warns ‘You Are Disgracing Our City’, N.Y. TIMES (May 29, 2020), https://www.nytimes.com/2020/05/29/us/atlanta-protest-cnn-george-floyd.html; Sugiura, supra note 3. 195 Taylor, supra note 185. 196 Id. 197 Brakkton Booker, 7 Shot At Louisville Protest Calling For Justice For Breonna Taylor, NPR (May 29, 2020), https://www.npr.org/2020/05/29/864775688/7-shot-at-louisville-protests-calling-for-justice-for-breonna-taylor. 198 Naquin, supra note 192. 199 Taylor, supra note 185. 200 Id.

56 Vermont Law Review [Vol. 46:024 protest [were] being hijacked by violent radical elements.”201 Attorney General Barr noted that:

Groups of outside radicals and agitators [were] exploiting the situation to pursue their own . . . violent agenda. In many places, it appear[ed] the violence [was] planned, organized, and driven by anarchistic and far left extremists, . . . many of whom travel[ed] from out of state to promote the violence.202

On May 31, 2020, “[a] total of at least five people [were] reported killed in protests from Indianapolis to Chicago.”203 By this time, “[a]t least 4,400 people [were] arrested.”204

At a June 4, 2020, press conference, days after President Trump’s Rose Garden ultimatum, Attorney General Barr issued a statement on the civil unrest:

While many have peacefully expressed their anger and grief, others have hijacked protests to engage in lawlessness—violent rioting and arson, looting of businesses and public property, assaults on law enforcement officers and innocent people, and even the murder of a federal agent. Such senseless acts of anarchy are . . . crimes designed to terrify fellow citizens and intimidate communities. . . . The large preponderance of those who are protesting are peaceful demonstrators who are exercising their First Amendment rights. At some demonstrations, there are groups that exploit the opportunity to engage in looting. And finally, at some demonstration[s], there are extremist agitators who are hijacking the protests to

201 Attorney General William P. Barr, Attorney General William P. Barr’s Statement on the Death of George Floyd and Riots, DEP’T OF JUST., https://www.justice.gov/opa/pr/attorney-general-william-p-barr-s-statement-death-george-floyd-and-riots (last updated May 30, 2020). 202 Id. 203 George Floyd death: US protests timeline, supra note 189. 204 Id.


pursue their own separate and violent agenda. We have evidence that Antifa and other similar extremist groups, as well as actors of a variety of different political persuasions, have been involved in instigating and participating in the violent activity. We are also seeing foreign actors playing all sides to exacerbate the violence.205

This summary of events following George Floyd’s murder hardly does justice to the nationwide turmoil. There were at least nineteen known fatalities and numerous injuries.206 All told, “the arson, vandalism and looting . . . result[ed] in at least $1 billion to $2 billion of paid insurance claims—eclipsing the record set in Los Angeles in 1992 after the acquittal of the police officers who brutalized Rodney King.”207

Of course, for the President to act without the request of the state or states under duress, the Act requires a little more. It is not enough for “insurrection, domestic violence, unlawful combination, or conspiracy” to exist; to invoke the Act the continuing unrest must “hinder[] the execution of the laws of that State, and of the United

205 Attorney General William P. Barr, Attorney General William P. Barr’s Remarks on Mr. George Floyd and Civil Unrest, DEP’T OF JUST., https://www.justice.gov/opa/speech/attorney-general-william-p-barr-s-remarks-mr-george-floyd-and-civil-unrest (last updated June 4, 2020); see Protests Against Police Brutality (2020): Justice Department, U.C. SAN DIEGO, https://ucsd.libguides.com/protests2020/doj (last updated Sept. 2, 2021) (listing the federal government’s response to racial justice protests following the death of George Floyd). 206 Jemima McEvoy, 14 Days of Protests, 19 Dead, FORBES (June 8, 2020), https://www.forbes.com/sites/jemimamcevoy/2020/06/08/14-days-of-protests-19-dead/?sh=405871b64de4. 207 Jennifer A. Kingson, Exclusive: $1 Billion-Plus Riot Damage is Most Expensive in Insurance History, AXIOS (Sept. 16, 2020), https://www.axios.com/riots-cost-property-damage-276c9bcc-a455-4067-b06a-66f9db4cea9c.html; Jason Deparle, RIOTS IN LOS ANGELES; General and Troops Have Domestic Mission, N.Y. TIMES (May 3, 1992), https://www.nytimes.com/1992/05/03/us/riots-in-los-angeles-general-and-troops-have-domestic-mission.html (describing “the military forces sent to quell the Los Angeles riots,” which included “a force of 2,500 soldiers from Fort Ord and 1,500 marines from Camp Pendleton, Calif. . . . [and] about 8,000 Federalized soldiers from the National Guard.”).

58 Vermont Law Review [Vol. 46:024 States within the State, [such] that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law.”208 Moreover, there must be a finding that “the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection.”209 The predicate and finding mentioned above are unquestionably prerequisites for invoking the Act; determining whether they are sufficiently present for invoking the Act rests solely with the President.

Further, the statutory language requires “measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it . . . opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”210 Again, whether the events so oppose or obstruct the execution of the laws rests with the President.

Whether the antecedent facts of the statute were satisfied in the wake of racial justice protests across the country can certainly be debated. Likewise, for 10 U.S.C. § 253(2), assertions that “the . . . disturbances interfere[d] with the execution of some federal laws, such as the mails, communications and transportation”211 can be challenged; however, these conclusions, in the abstract, are of little consequence. The ultimate decision-making power as to whether the requisite antecedent facts exist rests in one person. For better or worse, Congress has expressly left the ultimate determination to apply military force to domestic disorders with the President and the President alone. The text is rife with language to this effect. The statute uses phrases such as: “as [the President] considers necessary”; “[w]henever the President considers . . . it impracticable to enforce the laws”; and “measures [the President] considers necessary.”212 Disagreeing with the President’s judgment does not render his decision unlawful. On June 1, 2020, nothing suggested by

208 10 U.S.C. § 253. 209 Id. 210 Id. (emphasis added). 211 John Yoo & Robert Delahunty, Domestic Military Use Is Lawful but Not Yet Prudent, NEWSWEEK (June 3, 2020), https://www.newsweek.com/domestic-military-use-lawful-not-yet-prudent-opinion-1508262. 212 10 U.S.C. §§ 252–253.

2021] Congress Can Delegate Authority, But Not Responsibility 59 President Trump was in contravention with the Constitution or the laws of the United States.

II. THE COURTS AND THE MILITIA ACTS

This Part considers the impact that federal courts might have

if President Trump invoked the Insurrection Act in response to the civil unrest that unfolded after the murder of George Floyd while in police custody. Specifically, this Part considers the federal courts’ impact assuming the President had invoked the Insurrection Act absent a request of a state legislature or governor. Part A reviews previous treatment of the Militia Acts by the Supreme Court of the United States. Part B considers the Political Question Doctrine’s potential impact on litigation arising out of President Trump’s hypothetical invoking of the Insurrection Act.

A. The Sole and Exclusive Judge

On June 18, 1812, President James Madison declared war on

Great Britain.213 President Madison ordered the militia into federal service for this purpose. Federalists opposed the war and “[r]iots broke out between Federalists and Republicans in major cities across the country.”214 Several states rejected the idea that the President could, unilaterally, call the militia into service.215 The President’s authority “to call out state troops”216 was placed squarely before the Supreme Court in Martin v. Mott.217

The question before the Court in Mott was “whether a citizen

213 James Madison, Proclamation of a State of War with Great Britain, (June 19, 1812), https://millercenter.org/the-presidency/presidential-speeches/june-19-1812-proclamation-state-war-great-britain. See also Michele Landis Dauber, The War of 1812, September 11th, and the Politics of Compensation, 53 DEPAUL L. REV. 289, 299 (2013). 214 Dauber, supra note 214, at 300. 215 Emergency Power, supra note 48, at 171; see also Calling Forth Act of 1792, ch. 28, § 2, 1 Stat. 264, 264 (repealed 1795) (declaring the right of the President to call forth the militia when states refuse if the legislature is not in session). 216 Emergency Power, supra note 48, at 171. 217 Martin v. Mott, 25 U.S. 19, 29 (1827).

60 Vermont Law Review [Vol. 46:024 could be court-martialed for his failure to join the New York militia when the President called it out during the War of 1812.”218 Within his opinion, Justice Joseph Story addressed the issue of who was best suited to determine whether circumstances justified calling forth the military.219 Justice Story wrote:

If we look at the language of the act of 1795, every conclusion drawn from the nature of the power itself, is strongly fortified. The words are, “whenever the United States shall be invaded, or be in imminent danger of invasion, . . . it shall be lawful for the President . . . to call forth such number of the militia . . . as he may judge necessary to repel such invasion.” The power itself is confided to the Executive of the Union, to him who is, by the constitution, “the commander in chief of the militia, when called into the actual service of the United States,” whose duty it is to “take care that the laws be faithfully executed” . . . . He is necessarily constituted the judge of the existence of the exigency in the first instance, and is bound to act according to his belief of the facts. If he does so act, and decides to call forth the militia, his orders for this purpose are in strict conformity with the provisions of the law . . . . The law does not provide for any appeal from the judgment of the President . . . . Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts.220

Justice Story’s opinion, upholding the President’s determinations, was forthright and still serves as “the fountainhead [for] precedent[] of

218 Emergency Power, supra note 48, at 171. 219 See Martin, 25 U.S. at 29–30. 220 Id. at 31–32 (emphasis added).

2021] Congress Can Delegate Authority, But Not Responsibility 61 American emergency power.”221

In 1849, the Court would answer a similar question in Luther v. Borden.222 This time, Chief Justice Roger Taney would announce the Court’s opinion, referencing Martin v. Mott and looking again to the language of the Militia Act of 1795. Chief Justice Taney wrote, “By this act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President.”223Additionally, Chief Justice Taney confirmed the appropriate arbitrator’s identity for parties seeking redress upon the President’s invocation of the Militia Act of 1795: “Undoubtedly, if the President in exercising this power shall fall into error, or invade the rights of the people of the State, it would be in the power of Congress to apply the proper remedy. But the courts must administer the law as they find it.”224

Mott and Luther’s facts could hardly bear more resemblance to a case arising out of President Trump’s proposed invocation of the Insurrection Act. The Insurrection Act’s current text is equally fortified.225 The second section plainly states that it is upon the President’s judgment to determine whether there are “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, mak[ing] it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.”226 Further, where the second section states that the President “may call into Federal service such of the militia of any State, and use such of the armed forces,” the third section broadens the President’s aperture by authorizing the use of “the militia or the armed forces, . . . or by any other means.”227 It is also worth noting that the third section of the Act, 10 U.S.C. § 253, uses the words “shall take such measures as he considers necessary to suppress, in a State,

221 Emergency Power, supra note 48, at 171. 222 Luther v. Borden, 48 U.S. 1, 43 (1849). 223 Id. at 43. 224 Id. at 45 (emphasis added). 225 10 U.S.C. §§ 252–253 (granting the President power to call federal troops into service when rebellion against the authority of the United States has made it impracticable to enforce the laws of the United States in any state). 226 Id. § 252. 227 Id. §§ 252–253.

62 Vermont Law Review [Vol. 46:024 any insurrection, domestic violence, unlawful combination, or conspiracy,” giving extraordinary force to Justice Story’s declaration that the President “is bound to act according to his belief of the facts.”228

The contention that measures of some kind are not just authorized but required by the Act when the President believes the antecedent facts to be in existence is not novel. In 1862, the Court came to a similar conclusion when reviewing President Abraham Lincoln’s blockade of the Southern States.229 The Court found that “by the Acts of Congress of February 28th, 1795, and 3d of March, 1807 . . . the President [was] not only authorized but bound to resist.”230

Finally, the Court decided these cases long before Justice Jackson “articulated his famous three-part test for determining the validity of the exercise of executive power.”231 As will be discussed, action by President Trump, consistent with his Rose Garden statement and “executed . . . pursuant to an Act of Congress,” benefits not only from the nineteenth-century Supreme Court precedent but also from “the strongest of presumptions and the widest latitude of judicial interpretation,” as articulated by Justice Jackson in his Youngstown concurrence.232

Disagreements between the political branches, and even within the executive branch, about the size and scope of the federal government’s response to a domestic crisis are foreseeable. That said, in light of precedent, it is difficult to see how the federal courts deciding such a case on the merits can supersede the President’s determination of the facts on the ground or the scope of his response.

228 Martin, 25 U.S. at 31 (emphasis added); 10 U.S.C. § 253. 229 The Amy Warwick, 67 U.S. 635, 636, 694 (1862). 230 Id. at 668 (emphasis added) (“[The President] is authorized to . . . suppress insurrection against the government of a State or of the United States. . . . He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.”). 231 Yoo, War Powers, supra note 50, at 193. 232 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).


B. Political Question Doctrine A decision by the federal courts upending the President’s judgment seems unlikely considering the statutory framework and relevant Supreme Court precedent. It is equally plausible that the courts would find a case challenging the existence of the antecedent facts or the use of the militia or armed forces to suppress domestic disorder nonjusticiable—absent a showing of “clear abuse amounting to bad faith.”233 In short, determinations of this kind would present a political question.

The determination of whether an issue before the Court amounts to a political question is not always straightforward. “Justiciability is . . . not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures . . . .”234 Though Political Question Doctrine often appears trussed by facts concerning foreign relations,235 it is not always so.236 While the Court first intimated the doctrine in Marbury v. Madison,237 it clearly articulated the factors for invoking Political Question Doctrine in Baker v. Carr:

Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial

233 Mitchell v. Laird, 488 F.2d 611, 616 (D.C. Cir. 1973). 234 Gilligan v. Morgan, 413 U.S. 1, 9 (1973) (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)). 235 See Yoo, War Powers, supra note 50, at 182–86. 236 See generally Colegrove v. Green, 328 U.S. 549, 572 (1946); Colegrove v. Barrett, 330 U.S. 804, 804 (1947); South v. Peters, 339 U.S. 276, 276 (1950); MacDougall v. Green, 335 U.S. 281, 284 (1948) (per curiam), overruled in part by Moore v. Ogilvie, 394 U.S. 814, 819 (1969). 237 Marbury v. Madison, 5 U.S. 137, 170 (1803). “The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”


policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.238

Despite the coherent and orderly recitation of the six factors in Baker, analysis of the doctrine often turns on the first two.239 It is to these two pivotal factors that this Article now turns.

As to the first of these pivotal factors, there is no clearer example of a “demonstrable constitutional commitment of the issue to a coordinate political department”240 than the Militia Clause.241 The Constitution expressly grants Congress the power “to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal Invasions.”242 At least insofar as the militia is concerned, the Insurrection Act is a straightforward exercise of that authority.

While the militia is dealt with forthrightly in the Militia Clause,243 “a textually demonstrable constitutional commitment of the issue to a coordinate political department”244 specifically related to the regular military’s domestic use is less clear. Despite this apparent ambiguity, there is little doubt the federal courts have found “that decision-making in the field[] of . . . national security is textually committed to the political branches of government.”245 The Supreme

238 Baker v. Carr, 369 U.S. 186, 217 (1962). 239 Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 203–07 (2012) (Sotomayor, J., concurring). 240 Baker, 369 U.S. at 217. 241 U.S. CONST. art. I, § 8, cl. 15. 242 Id. 243 Id. 244 Baker, 369 U.S. at 217. 245 Smith v. Obama, 217 F. Supp. 3d 283, 298 (D.D.C. 2016) (quoting Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005)).

2021] Congress Can Delegate Authority, But Not Responsibility 65 Court in Gilligan v. Morgan wrote:

It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible—as the Judicial Branch is not—to the electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the . . . control of a military force are . . . judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability. It is this power of oversight and control of military force by elected representatives and officials which underlies our entire constitutional system . . . .246

The Constitution’s plain text bolsters the Court’s articulation in Gilligan, placing all issues related to military force squarely in the realm of the political branches:

246 Gilligan v. Morgan, 413 U.S. 1, 10 (1973). In May 1970, the National Guard was called out to deal with a violent anti-Vietnam War protest on the Kent State University campus in Ohio. During the ensuing turmoil, four Kent State students were killed by National Guard gunfire. Respondent students brought a claim that the actions of the National Guard were without legal justification. The Court of Appeals Affirmed the lower Court’s dismissal of all but one claim. The Court of Appeals remanded a single question to the District Court: “Was there and is there a pattern of training, weaponry and orders in the Ohio National Guard which, singly or together, require or make inevitable the use of fatal force in suppressing civilian disorders when the total circumstances at the critical time are such that nonlethal force would suffice to restore order and the use of lethal force is not reasonably necessary?” Morgan v. Rhodes, 456 F.2d 608, 612 (6th Cir. 1972). The Supreme Court granted certiorari and held that the question was a non-justiciable political question stating, “[I]nitial judicial review and continuing surveillance by a federal court over the training, weaponry, and orders of the Guard, would…embrace critical areas of responsibility vested by the Constitution in the Legislative and Executive Branches of the Government.” Gilligan, 413 U.S. at 2.


Article I gives Congress the power to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Congress also has the authority to “raise and support Armies,” to “provide and maintain a Navy,” to “make Rules for the Government and Regulation of the land and naval Forces,” to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” and to “provide for organizing, arming, and disciplining, the Militia.”247

Additionally, Article II states that “[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”248 It holds a fortiari that the question of whether the militia, the regular military, or any other means can be deployed in a state to suppress any insurrection, domestic violence, unlawful combination, or conspiracy is committed “to a coordinate political department.”249

As for the second pivotal factor, the federal courts must consider whether there are “a lack of judicially discoverable and manageable standards for resolving [the issue].”250 Having established that the use of the militia and the regular military is committed to a coordinate political department,251 the remaining issues are likely to revolve around the existence of the statutorily required antecedent facts. Under 10 U.S.C. § 252, petitioners might ask federal courts to consider whether it is “impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings.”252 Alternatively, under 10 U.S.C. § 253, petitioners might ask the courts to consider, first, whether there is an “insurrection, domestic violence, unlawful combination, or conspiracy.”253 Second, petitioners might

247 Yoo, War Powers, supra note 50, at 175–76. 248 Id. at 176. 249 Baker, 369 U.S. at 217. 250 Id. 251 Id. 252 10 U.S.C. § 252. 253 Id. § 253.

2021] Congress Can Delegate Authority, But Not Responsibility 67 ask the court to determine whether the “insurrection, domestic violence, unlawful combination, or conspiracy . . . hinders the execution of the laws of that State, and of the United States within the State,” in a manner that deprives people “of a right, privilege, immunity, or protection named in the Constitution and secured by law.”254 Third, assuming arguendo that there is domestic violence that so hinders law enforcement within the State, petitioners might ask the court whether the constituted authorities of that State are unable, have failed, or have refused to protect “a right, privilege, immunity, or protection named in the Constitution and secured by law.”255 Finally, under the second section of 10 U.S.C. § 253, petitioners might ask the court to determine whether the “insurrection, domestic violence, unlawful combination, or conspiracy . . . opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”256

The federal courts are unlikely to answer these questions. While “[q]uestions of statutory construction and interpretation . . . are committed to the Judiciary,” plaintiffs would be asking the federal courts “to second-guess the Executive’s application of these statutes to specific facts on the ground.”257 The existence of the requisite antecedent facts, addressed throughout this Article, are precisely the kinds of facts that evade “discoverable and manageable standards.”258

How many businesses looted and set ablaze constitute domestic violence? How many burning police cars and police stations make an insurrection? How much coordination by extremists constitutes a conspiracy? How many peaceful demonstrations can state and federal forces disperse due to violent activity before the peaceful protesters have been “deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law”?259 The questions regarding orders of magnitude under these circumstances are legion and do not lend themselves to “discoverable

254 Id. 255 Id. 256 Id. 257 Smith v. Obama, 217 F. Supp. 3d 283, 299 (D.D.C. 2016). 258 Baker v. Carr, 369 U.S. 186, 217 (1962). 259 10 U.S.C. § 253.

68 Vermont Law Review [Vol. 46:024 and manageable standards.”260 It quickly becomes evident why Alexander Hamilton argued that “[d]ecision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than proceedings of any greater number.”261 The Militia Acts’ underlying history and subsequent transformation,262 which empower unilateral Executive action, suggest that the various Congresses responsible for drafting the Militia Acts agreed with Hamilton. The Baker Court noted as much in its discussion of Chief Justice Taney’s treatment of the act of February 28, 1795. The Court recognized the Executive’s primacy pursuant to the law:

By this act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. . . . After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right? . . . If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order.263

The drafters of the Militia Acts placed these difficult decisions in the capable hands of the President of the United States, and the Supreme Court has reinforced this understanding.

III. THE SPECTER OF JACKSON’S YOUNGSTOWN CONCURRENCE AND OTHER CONSIDERATIONS

Part II considered the treatment of the Militia Acts by the

Supreme Court and the potential impact of the Political Question

260 Baker, 369 U.S. at 217. 261 Delahunty & Yoo, supra note 28, at 492; THE FEDERALIST NO. 70 (Alexander Hamilton). 262 Emergency Power, supra note 48, at 163–64; see generally Martial Law, supra note 48, at 416–19. 263 Baker, 369 U.S. at 221 (emphasis added) (quoting Luther v. Borden, 48 U.S. (7 How.) 1, 43 (1849)).

2021] Congress Can Delegate Authority, But Not Responsibility 69 Doctrine upon prospective litigation arising out of President Trump’s proposed use of the Insurrection Act. This Part contemplates the bearing that Justice Jackson’s famous Youngstown concurrence might have on President Trump’s Rose Garden ultimatum. Part A addresses the Youngstown concurrence’s standing as the principal analytical framework when considering “the validity of the exercise of executive power.”264 Part B assesses whether recently proposed amendments to the Insurrection Act impose more stringent checks and accountability mechanisms on the President than the current version and considers whether the proposed amendments influence the President’s standing under Youngstown’s categorical framework. Finally, this Part suggests that even if Congress were able to influence the President’s standing under Youngstown’s categorical framework by amending the Insurrection Act, the federal courts would still not intervene. This abstention leaves Congress, not the Judiciary, to serve as the preeminent earthwork against presidential excess.

A. The Legacy of The Steel Seizure Case (A Super . . . Concurrence?)

In its definition of concurrence, Black’s Law Dictionary notes that “concurring opinions often serve as the robins that foretell a new spring.”265 Justice Robert H. Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer ushered in what seemed to be a new epoch for “addressing presidential authority.”266

In 1952, the United States was in the throes of the Korean War, with a United Steelworkers of America strike looming and threatening to impact the U.S. war effort.267 In response, President Harry S. Truman issued Executive Order No. 10340, ordering the Secretary of Commerce to seize and operate a portion of the Nation’s steel mills.268 In a 6–3 opinion affirming the lower court, the Supreme Court held that Executive Order No. 10340 could not be “sustained as an exercise of the President’s military power as

264 Yoo, War Powers, supra note 50, at 193. 265 Concurrence, BLACK’S LAW DICTIONARY (11th ed. 2019) (emphasis added). 266 Edward T. Swaine, The Political Economy of Youngstown, 83 S. CAL. L. REV. 263, 269 (2010). 267 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 583 (1952). 268 Id.

70 Vermont Law Review [Vol. 46:024 Commander in Chief of the Armed Forces.”269 Concurring in the judgment and opinion of the Court, Justice Jackson wrote separately.270 As has been noted by Professor Edward Swaine, Justice Jackson “wrote only for himself (there were five such solo concurrences) under considerable time pressure . . . and his contemporaries were not bowled over.”271 Justice Jackson set out his “tripartite scheme”272 as follows:

(1) When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. (2) When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables

269 Id. at 587. 270 Id. at 635 (Jackson, J., concurring). 271 Swaine, supra note 266, at 265. 272 Medellin v. Texas, 552 U.S. 491, 524 (2008).


rather than on abstract theories of law. (3) When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.273

Despite its status as a concurrence, over time, the framework outlined in Justice Jackson’s concurrence would become “the accepted framework for evaluating executive action . . . .”274

Today, Justice Jackson’s Youngstown framework is a staple in the federal court’s executive action analyses, internal political branch appraisals, and parleys between the political branches.275 To be sure, the Court has employed Justice Jackson’s categorical framework in its separation of power jurisprudence with regularity.276 Likewise, the Office of Legal Counsel routinely invokes Justice Jackson’s Youngstown concurrence in its memoranda.277 Some scholars have dubbed Youngstown Sheet & Tube Co. v. Sawyer as “super precedent,”278 and the failure to expressly consider Justice Jackson’s

273 Youngstown, 343 U.S. at 635–38 (Jackson, J., concurring). 274 Medellin, 552 U.S. at 524. 275 See Amy Coney Barrett, Precedent and Jurisprudential Disagreement, 91 TEX. L. REV. 1711, 1714 (2013). 276 See, e.g., Dames v. Regan, 453 U.S. 654, 669 (1981); Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 10 (2015). 277 Swaine, supra note 266, at 267–68. 278 See id. at 270 (quoting Michael J. Gerhardt, Super Precedent, 90 MINN. L. REV. 1204, 1217 (2006)). “Supreme Court Justices for years have given special deference to the concurring opinion of Justice Jackson in that case. Members of Congress routinely cite Youngstown in separation of powers discussions. They, too, tend to defer to Justice Jackson's concurrence, often referencing it in confirmation hearings. Presidents similarly have pledged fidelity to Youngstown, frequently citing Jackson's concurrence as authority. Jackson's concurrence [has become popular because it]

72 Vermont Law Review [Vol. 46:024 concurrence when considering any exercise of executive power is met with fierce criticism by learned practitioners.279 Subsequently, as Justice Jackson’s concurrence “has been transformed into the Youngstown majority,”280 it seems to follow that it is Justice Jackson’s concurrence that carries the seldom-applied status of super precedent. The Youngstown concurrence’s ascendancy is irrefutable;281 however, the application of Justice Jackson’s categorical framework to President Trump’s proposed use of military force does not bode well for his detractors.

As established in Part I of this Article, assuming President Trump deployed the military to address civil strife, the President would unquestionably be acting according to an express authorization of Congress—the Insurrection Act.282 According to Justice Jackson’s framework, the President’s authority would be “at its zenith.”283 Under these conditions, President Trump would “personify the federal sovereignty.”284 For the Court to invalidate such an action taken by President Trump under the Youngstown framework, it would have to conclude that “the Federal Government as an undivided whole lacks power”285 to use “the militia or the armed forces . . . [to] suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.”286 As James Madison noted in Federalist No. 41, “It is in vain to oppose constitutional

provides a roadmap for lawmakers to follow.” 279 Id. at 267–68 n.17. 280 Id. at 269. 281 Justice Jackson is not without his detractors, however. See id. at 270–71 n.27 (citing The Powers of War and Peace, WASH. POST, Jan. 13, 2006 (reporting remarks of John Yoo: “I am not a big fan of the concurrence by Justice Jackson . . . I have long thought Justice Jackson’s concurrence is more of a statement about politics, and a true one, than one of constitutional law. How could, for example, Congress pass a statute prohibiting the President from exercising a power given to him under the Constitution?”). 282 10 U.S.C. §§ 251–255. 283 Yoo, War Powers, supra note 50, at 193. 284 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636 (1952) (Jackson, J., concurring). 285 Id. at 636–37. 286 10 U.S.C. § 253.

2021] Congress Can Delegate Authority, But Not Responsibility 73 barriers to the impulse of self-preservation.”287 Such a holding would defy logic, historical presidential practice, consistent and longstanding legislative enactments and reenactments, and run contrary to the Court’s own longstanding precedent.288 Finally, according to Justice Jackson, President Trump, acting pursuant to the Insurrection Act, “would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.”289 It is clear that under the prevailing circumstances, in the wake of George Floyd’s murder, Justice Jackson’s concurrence favors President Trump’s Rose Garden ultimatum. Barring wholesale abandonment of Justice Jackson’s framework, it is difficult to imagine an application of Justice Jackson’s framework that does not bolster President Trump’s proposed use of the U.S. military on domestic soil.

B. Manipulating the Youngstown Framework

1. Recent Proposals to Amend the Insurrection Act

As mentioned above, the statutory authority for the President “to call forth the militia” for domestic purposes has existed with regularity since the late eighteenth century.290 Similarly, the President’s statutory power “to employ . . . the land or naval force of the United States” for parallel purposes has existed since 1807.291 “The 1861 Act represented the third major revision to the Militia Act regime, but the statutes have remained almost entirely unchanged . . . since.”292 In 2006, Congress briefly amended the Act

287 THE FEDERALIST NO. 41 (James Madison). 288 See Martin v. Mott, 25 U.S. 19, 29–32 (1827) (discussing how the president, as the head of the executive branch and through express legislative power, has the power to call forth the militia when the president deems it necessary); Luther v. Borden, 48 U.S. 1, 44–45 (1849) (citing Martin, 25 U.S. at 29–32); In Re Neagle, 135 U.S. 1, (1890); In re Debs, 158 U.S 564, 565 (1895). 289 Youngstown, 343 U.S. at 637. 290 See generally Emergency Power, supra note 48, at 164 (discussing the expansion of the President’s power to call forth the militia beginning in the late 1790s). 291 Insurrection Act of 1807, ch. 39, Pub. L. No. 9-2, 2 Stat. 443. 292 Emergency Power, supra note 48, at 167; see Banks, supra note 46, at 87 (noting that the 2008 repeal of the 2006 amendment returned the Act to its pre-2006 form).

74 Vermont Law Review [Vol. 46:024 at the request of President George W. Bush and in response to purported shortfalls with the Act identified after the federal government’s maligned response to Hurricane Katrina.293 Two years later, Congress passed legislation repealing the 2006 amendments, and President George W. Bush signed the repeal into law.294 Other than this short two-year period, the Act has endured unchanged for 160 years. Moreover, for nearly seventy of those years, including the two-year amendment and repeal detour, Presidents invoking the Act could do so with the surety of being squarely within Justice Jackson’s first category—personifying the federal sovereign. It would seem that, at least insofar as Congress has been concerned, fears of a standing army, a tyrannical executive, and military intrusion into civilian affairs have long dissipated.

Even in the immediate wake of President Trump’s Rose Garden statement, amidst public statements by elected officials conveying outrage and a flurry of indignation by retired generals and flag officers, legislative attempts to modify the Insurrection Act were fruitless. Just days after President Trump’s Rose Garden statement, U.S. Senator Richard Blumenthal (D-CT) introduced legislation to overhaul the Insurrection Act in the Senate.295 Soon after that, Congresswoman Veronica Escobar (D-TX-16) introduced an amendment to the National Defense Authorization Act (NDAA) for Fiscal Year 2021, also designed to overhaul the Insurrection Act.296 The suggested modifications were numerous.

Proposed changes to 10 U.S.C. § 251 included reserving application for federal assistance to the governor of the afflicted state, as well as allowing the governor of the afflicted state to determine the appropriate number of militia necessary to aid the afflicted state.297

293 See John Warner National Defense Authorization Act of 2006, Pub. L. No. 109-364, sec. 1076, § 333, 120 Stat. 2083, 2404; 10 U.S.C. § 333 (1956). 294 Pub. L. No. 110-181, § 1068, 122 Stat. 3, 325 (2008). The 2008 repeal of the 2006 amendment returned the Act to its pre-2006 form. 295 Curtailing Insurrection act Violations of Individuals’ Liberties Act, S.3902, 116th Cong. (2020). 296 Cong. Rec. H3329 (daily ed. July 20, 2020) (statement of Rep. Escobar), https://www.congress.gov/116/crec/2020/07/20/CREC-2020-07-20-pt1-PgH3114-2.pdf. 297 S.3902 § 251(a).

2021] Congress Can Delegate Authority, But Not Responsibility 75 Discretion regarding the use of the armed forces to suppress the insurrection remained with the President.298 The proposed language also eliminated the option for the afflicted state’s legislature to petition the federal government for assistance.299 Additionally, as a prerequisite for invoking the authority of the Act under the proposed language, “the President, the Secretary of Defense, and the Attorney General [would be required to] certify to Congress that the governor of the State concerned . . . requested the aid described in [§ 251] to suppress an insurrection.”300

The amended first section of 10 U.S.C. § 252 jettisoned the phrase “[w]henever the President considers . . . it impracticable to enforce the laws.”301The original language was replaced with “[w]henever unlawful obstructions, combinations, or assemblages, or rebellion . . . make it impracticable to enforce the laws of the United States.”302 This change eliminated the President’s role as “the sole and exclusive judge . . . of the existence of the exigency”303 and the antecedent facts that would authorize the President to invoke the authority under this section. Instead, a fair reading of the revised Act makes the President, the Secretary of Defense, and the Attorney General of the United States the fact finders and requires all three to “certify to Congress that the State concerned is unable or unwilling to suppress an unlawful obstruction, combination, or assemblage, or rebellion against the authority of the United States.”304 Further, the proposed text required certification by the three Executive branch officials to include:

A description of the circumstances necessitating the invocation . . . [d]emonstrable evidence that the State concerned is unable or unwilling to suppress such unlawful obstruction, combination, or assemblage, or rebellion against the authority of the United States, and

298 Id. 299 Id. 300 Id. § 251(b). 301 10 U.S.C. § 252 (emphasis added). 302 S.3902 § 252(a). 303 Martin v. Mott, 25 U.S. 19, 29, 31 (1827). 304 S.3902 § 252(b)(1).


a legal justification for resorting to the authority under [§ 252, and] . . . [a] description of the mission, scope, and duration of use of the members of the armed forces . . . .305

Proposed modifications to 10 U.S.C. § 253 began by refining some of the antecedent facts. Previously, the Act commanded that

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it . . . opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.306

Under the proposed language, the Act commanded that

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it . . . opposes or obstructs the execution of the Federal or State laws to protect the civil rights of the people of the United States under the Constitution and impedes the course of justice under those laws.307

As with the proposals in previous sections (§§ 252–253), the proposed § 253 required “the President, the Secretary of Defense, and the Attorney General [to] certify to Congress that the State concerned is unable or unwilling to suppress an insurrection, domestic violence, an unlawful combination, or a conspiracy described in [the first section

305 Id. § 252(b)(2). 306 10 U.S.C. § 253. 307 S.3902 § 253(a) (emphasis added).

2021] Congress Can Delegate Authority, But Not Responsibility 77 of the Act].”308

Additional sections required “[t]he President, in every possible instance, [to] consult with Congress before invoking the authority under section 251, 252, or 253.”309 The proposal also called for the passage of a Joint Resolution with 14 days of invocation if the invocation occurred while Congress was in session or 14 days after the commencement of the next session of Congress if Congress was not in session.310 The proposed language also demanded that the authority invoked by the President shall terminate in the absence of a Joint Resolution.311 The proposed language further stated that the President may not, at any point after the 14 days, re-invoke the terminated authority under any section of the Act “unless there has been a material and significant change in factual circumstances.”312 Other sections of the proposed language placed time requirements for reconvening the House of Representatives and the Senate after an invocation of the Act by the President; reconvening on committees to which a joint resolution was referred for reporting and discharge; and for proceeding to consideration.313 The proposed Act excluded consideration upon presentment to the President from the 14-day clock.314 There is also a section regarding judicial review encompassing remedies, jurisdiction, and requiring expedited review by “the applicable district court of the United States and the Supreme Court of the United States . . . to the greatest possible extent.”315 Finally, the proposed language prohibited “the Army, Navy, Air Force, or Marine Corps [from direct participation] in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise expressly authorized by law.”316 On its face,

308 Id. § 253(b)(1). 309 Id. § 256. 310 Id. § 257(a)(1). 311 Id. § 257(c). 312 Id. § 257(c)(2). 313 Id. § 257(d). 314 Id. 315 Id. § 258(b). 316 Id. § 275(a); see LTC TED MARTIN, USA ET AL., DOMESTIC OPERATIONAL LAW 2018 HANDBOOK FOR JUDGE ADVOCATES, CENTER FOR LAW AND MILITARY OPERATIONS 91–92 (2018), https://www.loc.gov/rr/frd/Military_Law/pdf/domestic-law-handbook-2018.pdf.

78 Vermont Law Review [Vol. 46:024 the proposed amendments to the Insurrection Act sought to increase, if only marginally, checks and accountability mechanisms on the President’s use of the militia and the armed forces in response to various domestic exigencies.317

Despite bipartisan public pushback after President Trump’s Rose Garden statement,318 Senator Blumenthal’s bill to curtail the President’s use of the Insurrection Act, titled the Curtailing Insurrection act Violations of Individuals’ Liberties Act (CIVIL Act), never received a vote in the Senate.319 Conversely, the House of Representatives approved Congresswoman Escobar’s amendment to curtail the President’s use of the Insurrection Act in a 215–190 vote.320 The passage in the House notwithstanding, after House and Senate negotiators finished reconciliation, the final NDAA for Fiscal Year 2021 contained no language apropos of the Insurrection Act.321 Yet,

317 Under the Insurrection Act, supra note 82. 318 See Jordain Carney, Trump’s Vow to Deploy Military Faces GOP Pushback, THE HILL (June 2, 2020), https://thehill.com/homenews/senate/500726-trumps-vow-to-deploy-military-faces-gop-pushback; Jordain Carney, Democrats Introduce Bill to Rein in Trump's Power Under Insurrection Act, THE HILL (June 4, 2020), https://thehill.com/homenews/senate/501274-democrats-introduce-bill-to-rein-in-trumps-power-under-insurrection-act. 319 Rebecca Kheel, Senate Panel Passes Amendment to Bar Using Troops Against Protesters, THE HILL (June 11, 2020), https://thehill.com/policy/defense/502258-senate-panel-passes-amendment-to-bar-using-troops-against-protesters; S.3902 § 1. 320 Rebecca Kheel, The Hill: House Votes to Curtail Insurrection Act Powers, CONGRESSWOMAN VERONICA ESCOBAR (July 20, 2020), https://escobar.house.gov/news/documentsingle.aspx?DocumentID=396; H.R. 6395, 116th Cong., Roll Call 141, Clerk U.S. House of Representatives (July 20, 2020), https://clerk.house.gov/Votes/2020141. 321 William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283 (2021); see also Rebecca Kheel, Overnight Defense: Lawmakers Release Compromise Defense Bill in Defiance of Trump Veto Threat | Senate Voting Next Week on Blocking UAE Arms Sale | Report Faults Lack of Training, ‘Chronic Fatigue’ in Military Plane Crashes, THE HILL (Dec. 3, 2020), https://thehill.com/policy/defense/overnights/528705-overnight-defense-lawmakers-release-compromise-defense-bill-in (“Meanwhile, the House’s language to curtail a president’s powers under the Insurrection Act is out, as is the Senate’s language blocking funding from being used to deploy U.S. troops against peaceful protesters.”); Rebecca Kheel, NDAA underscores GOP differences with Trump on defense, THE HILL (Dec. 6, 2020), https://thehill.com/policy/defense/528846-ndaa-underscores-gop-differences-with-trump-on-defense (“The compromise jettisoned

2021] Congress Can Delegate Authority, But Not Responsibility 79 even if House and Senate negotiators had incorporated the proposed language with a veto-proof majority, it is difficult to envisage how the amendment would have altered the President’s standing under Justice Jackson’s categorical framework.

The changes to 10 U.S.C. § 251 were modest. Both the current statutory framework and the proposed language require the consent of the afflicted state.322 The addition of certification to Congress, by three executive branch officials appointed by the President and (usually)323 confirmed by the Senate, does not appear to hearken back to the independent assessment of an associate justice or the district judge as required by the Calling Forth Act.324 Likewise, under the proposed language, §§ 252–253 remained primarily unchanged except for Congress’s certification, albeit with specific statutory explanations.325

The remaining amendments, requiring consultation with Congress and imposing time requirements for terminating the President’s authority under the Act, hardly exemplify robust legislative accountability mechanisms. The proposed language, requiring consultation with Congress, mirrors the consultation language set out in the War Powers Resolution.326 In the forty-eight

some rebukes of Trump, including House-passed language to restrict a president’s Insurrection Act powers . . . .”); failure to include the amendments in the NDAA does not provide per se justification for judicial intervention. See generally Raines v. Byrd, 521 U.S. 811, 824 (1997). 322 Compare 10 U.S.C. § 251 and S.3902 § 251(a). 323 Anne Joseph O'Connell, Acting Officials and Delegated Authority, THE REGUL. REV. (June 29, 2020), https://www.theregreview.org/2020/06/29/oconnell-acting-officials-delegated-authority/ (“The report created a snapshot of the staffing status of 321 Senate-confirmed positions in the fifteen cabinet departments and two other executive agencies—the U.S. Environmental Protection Agency and the Office of Management and Budget—as of April 2019. From this snapshot early in President Donald J. Trump’s third year, confirmed officials sat in only 65 percent of these positions, leaving about 35 percent of positions formally unoccupied. Acting leaders, however, staffed only about a third of these vacant positions, about 13 percent overall. The remaining 22 percent of all the examined Senate-confirmed positions sat empty because the Vacancies Act’s time limits had run out. Presumably, the nonexclusive functions and duties of these unoccupied positions were delegated downward to other officials.”). 324 Calling Forth Act of 1792, ch. 28, § 2, 1 Stat. 264, 264 (repealed 1795). 325 Compare 10 U.S.C. § 252, 10 U.S.C. § 253, and S.3902 § 251(b). 326 Compare War Powers Resolution, 50 U.S.C. § 1542–49 with S.3902 § 256.

80 Vermont Law Review [Vol. 46:024 years since the passage of the War Powers Resolution, over President Richard Nixon’s presidential veto, the political branches have been unable to agree on the meaning of consultation.327 As a result, Executive consultation with Congress has been sporadic and at times nonexistent.328 Consequently, it is reasonable to expect similar results should amendments, such as those proposed by Senator Blumenthal and Congresswoman Escobar, be adopted.

Furthermore, the proposed time requirements, which might appear to be surefire “check[] and accountability mechanisms” on the President’s sustained reliance on the Act, are far from ironclad.329 The proposed language clearly states that “if a joint resolution is not enacted on or before the last day of the 14-day period . . . the President may . . . re-invoke authority under section 251, 252, or 253, [if] there has been a material and significant change in factual circumstances, and such circumstances are provided in a new certification to Congress.”330 Determining what makes a change in factual circumstances “material and significant”331 in the context of deploying the military on domestic soil in response to widespread civil unrest is precisely the kind of determination that “lack[s] . . . judicially discoverable and manageable standards.”332 Moreover, assuming the President satisfies the requirement that a “new certification” accompanies the re-invocation, the federal courts would have to substitute the judgment of the President, the Secretary of Defense, and the Attorney General of the United States, as to specific facts on the ground, with the courts’ determination, to hold that the factual circumstances were not “material and significant.”333

Finally, these changes do little to alter the President’s categorical standing, as outlined in Justice Jackson’s Youngstown

327 See generally MATTHEW C. WEED, CONG. RSCH. SERV., R42699, THE WAR POWERS RESOLUTION: CONCEPTS AND PRACTICE 6 (2019) (discussing how every President since the War Powers Resolution’s enactment has viewed the document as an unconstitutional limitation on the President’s authority as Commander in Chief). 328 See id. at 10. 329 Under the Insurrection Act, supra note 82. 330 S.3902 § 257(c) (emphasis added). 331 Id. 332 Baker v. Carr, 369 U.S. 186, 217 (1962). 333 S.3902 § 257(c)(2).

2021] Congress Can Delegate Authority, But Not Responsibility 81 framework. Despite the ire expressed at President Trump’s proposal to deploy the military to quell civil unrest and pledges to reign in the President’s authority, proposed amendments did little to curtail the President’s power. Even assuming wholesale adoption of the proposed changes, the President’s authority would remain “at its zenith.”334 President Trump would continue to “personify the federal sovereignty” because he would still be acting “pursuant to an express or implied authorization of Congress,”335 and the federal courts seem no more likely to find an inroad to review the President’s judgment. In short, even under the proposed language, disputes are likely to be left for resolution between the political branches.

2. The Gauntlet

While the examination of recent proposals to amend the

Insurrection Act suggests that the changes are unlikely to alter the President’s station under Justice Jackson’s categorical framework, it is not to say that Congress cannot modify the President’s standing under the framework. There are a myriad of options for devising statutory language that would shift the President’s power to what Justice Jackson described as its “lowest ebb.”336 Yet, cataloging these various possibilities is unnecessary in light of a second, though lesser-known, axiom arising out of Justice Jackson’s Youngstown concurrence, which is frequently applied by the federal courts. In his Youngstown concurrence, Justice Jackson noted that courts “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.”337 Or, as stated by Justice Ruth Bader Ginsburg, then an appellate court judge on the United States Court of Appeals for the District of Columbia Circuit, “Congress has formidable weapons at its disposal . . . . But no gauntlet has been thrown down . . . . ‘If the Congress chooses not to confront the President, it is not [the court’s]

334 Yoo, War Powers, supra note 50, at 193. 335 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–36 (1952) (Jackson, J., concurring). 336 Id. at 637. 337 Id. at 654.

82 Vermont Law Review [Vol. 46:024 task to do so.’”338

In the years since Youngstown, the federal courts have shown a penchant toward avoiding inter-branch disputes, particularly, though not exclusively,339 where the dispute pertains to national security and the conduct of military operations.340 Despite this penchant, the federal courts have, on numerous occasions, pronounced that judicial review might not be entirely foreclosed; however, to reach the courts, Congress must first assert its “ample powers under the Constitution to prevent Presidential overreaching.”341 In short, to challenge the President’s judgment under the Act, Congress must throw down the gauntlet. Even absent judicial intervention, Congress is not powerless:

The . . . Constitution gives Congress a series of political tools to bring the Executive Branch to heel. . . . Congress (or one of its chambers) may hold officers in contempt, withhold appropriations, refuse to confirm the President’s nominees, harness public opinion, [or] delay or derail the President’s legislative agenda . . . .342

Of course, “the Framers provided for impeachment should the political process not provide a remedy.”343

338 Sanchez-Espinoza v. Reagan, 770 F.2d 202, 211 (D.C. Cir. 1985) (quoting Goldwater v. Carter, 444 U.S. 996, 998 (1979)). 339 See Comm. on Judiciary of U.S. House of Representatives v. McGahn, 951 F.3d 510, 513 (D.C. Cir. 2020). “The Committee on the Judiciary of the House of Representatives ordered the former White House Counsel, Donald F. McGahn, II, to testify before the Committee. President Donald Trump instructed McGahn to refuse, asserting that certain presidential advisers possess ‘absolute testimonial immunity’ from compelled congressional process. The Committee [sought] to invoke the court’s jurisdiction to enforce its subpoena.” 340 See Neal Devins & Louis Fisher, The Steel Seizure Case: One of a Kind?, 358 COLL. OF WILLIAM & MARY L. SCH.; FAC. PUBL’N 63, 77–81 (2002), https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1379&context=facpub. 341 Ange v. Bush, 752 F. Supp. 509, 514 (D.D.C. 1990); see also Schneider v. Kissinger, 412 F.3d 190, 200 (D.C. Cir. 2005); Mass. v. Laird, 451 F.2d 26, 34 (1st Cir. 1971); Goldwater v. Carter, 444 U.S. 996, 998 (1979). 342 McGahn, 951 F.3d at 519 (internal citation omitted). 343 Phillips & Yoo, supra note 55, at 56.


CONCLUSION

This Article has shown that the hasty pronouncements declaring President Trump’s proposed use of the military to quell domestic disorder as unlawful were wholly unfounded. Despite the founding generation’s notoriously anti-executive mood, resistance to military intrusion into civilian affairs, and strong sentiment against maintaining a standing army, the statutory framework permitting a domestic role for the Nation’s military force has existed since nearly the founding. Initially, the founding generation’s fears manifested themselves in various checks and accountability mechanisms on the President’s use of this authority. Over time, and under the pressure of exigencies, Congress gradually empowered the President until he became the sole and exclusive judge of the manifestation of a qualifying exigency and the presence of the antecedent facts required to support the military’s deployment on domestic soil. Today, the Insurrection Act preserves Congress’s authorization empowering an energetic and independent President with near unencumbered discretion in the face of insurrection, domestic violence, unlawful combination, or conspiracy.

Nineteenth-century Supreme Court precedent expressly acknowledged the immense power bestowed upon the President under the Act, rendering him the sole and exclusive judge of whether the exigency has arisen. Furthermore, upon considering the statutory language, the Court expressly foreclosed any appeal from the President’s judgment—declaring that if the President should fall into error or invade the rights of the people of the State, it would be in the power of Congress to apply the proper remedy.

Nearly 100 years later, Justice Jackson fortified the authority of Presidents acting pursuant to an Act of Congress by announcing his now-famed three-part test for determining the validity of the exercise of executive power.344 Under Justice Jackson’s storied framework, a President’s authority is at its zenith when he acts pursuant to an authorization from Congress.345 Justice Jackson noted that under these circumstances, the President could be said to personify the federal

344 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 (1952). 345 Id. at 635.

84 Vermont Law Review [Vol. 46:024 sovereignty. Further, Justice Jackson announced that a President, whose authority was at its zenith, would be entitled to the strongest presumptions and the widest latitude of judicial interpretations.346

Despite the strong endorsement for the Executive’s independence under the Act by the nineteenth-century Court and the subsequent strengthening of an Executive’s authority when acting pursuant to an Act of Congress, provided by Justice Jackson’s categorical framework, later courts increasingly jettisoned themselves from disputes involving national security, military operations, and other clashes which appeared best resolved between the political branches; courts do this by invoking the justiciability doctrines, including: political questions, ripeness, mootness, and standing.347 The Court’s declination of such cases extended equally to instances where Congress was yet to exercise its ample powers under the Constitution for preventing Presidential overreach. In short, as noted by Professor Neal Devins and constitutional scholar Louis Fisher, “[i]f members of Congress fail[ed] to assert their prerogatives . . . federal judges [were] unwilling to fill the breach left open by lawmakers.”348 As noted by Justice Powell in his concurring opinion in United States v. Richardson and restated by Chief Justice Rehnquist in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.:

[R]epeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of the other branches.349

346 Id. at 635–36. 347 Yoo, War Powers, supra note 50, at 182; see also Louis Michael Seidman, The Secret Life of the Political Question Doctrine, 37 J. MARSHALL L. REV. 441, 465 (2004) (“What is certain, though, is that . . . the . . . political question doctrine played, and continues to play, a vital role in the Court's affairs.”). 348 Devins & Fisher, supra note 340, at 76. 349 United States v. Richardson, 418 U.S. 166, 188 (1974); Valley Forge Christian

2021] Congress Can Delegate Authority, But Not Responsibility 85 In keeping with the constitutional design and bedrock principle of separation of powers, this development in the courts correctly leaves Congress, not the Judiciary, to serve as the preeminent bulwark against presidential excess.

Of course “[l]etting political fights play out in the political branches might seem messy or impractical, but democracy can be a messy business . . . .”350 If we are to reinvigorate our system of checks and balances, Congress must throw off its pattern of inertia. Inertia by Congress upsets the constitutional design. “[T]he Framers believed that the political process should impose the primary restraint on a President,”351 and where lesser tools at Congress’s disposal fail, Congress can impeach and remove. Federalist No. 66 states it plainly. Alexander Hamilton wrote, “the powers relating to impeachments are . . . an essential check . . . upon the encroachments of the executive.”352

On June 1, 2020, at 6:43 p.m., in an address to the Nation from the White House Rose Garden,353 President Trump invoked authority granted to him by Congress, reenacted by Congress on numerous occasions, and drafted by Congress in such a way as to foreclose appeal from the judgment of the President. Observers can disagree with the President’s judgment, but that does not make his proposed actions unlawful. Averring unlawfulness obscures Congress’s abdication of its role under the constitutional design. “[I]f the President in exercising this power shall fall into error, or invade the rights of the people of the State, it [is] in the power of Congress to apply the proper remedy.”354 Congress can delegate authority, but it must not be allowed to delegate responsibility.

Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982). 350 Comm. on Judiciary of United States House of Representatives v. McGahn, 951 F.3d 510, 519 (D.C. Cir. 2020) (en banc) reh’g granted, vacated sub nom. Comm. on Judiciary of United States House of Representatives v. McGahn, 968 F.3d 755 (D.C. Cir. 2020). 351 Phillips & Yoo, supra note 55, at 53. 352 THE FEDERALIST NO. 66 (Alexander Hamilton). 353 Rose Garden Statement, supra note 4. 354 Luther v. Borden, 48 U.S. 1, 45 (1849) (emphasis added).

LIMITS ON THE UNITARY EXECUTIVE: THE SPECIAL CASE OF THE ADJUDICATIVE FUNCTION

Harold J. Krent*

INTRODUCTION ................................................................................... 86 I. CREATION OF THE APA ................................................................... 89 II. THE SUPREME COURT’S REMOVAL JURISPRUDENCE ...................... 92

A. History ...................................................................................... 93 B. The Present ............................................................................... 98

III. THE SCOPE OF PRESIDENTIAL SUPERINTENDENCE UNDER ARTICLE II ........................................................................................ 102

A. Federal Tort Claims Act ......................................................... 109 B. Federal Service Labor Management Relations Statute .......... 113 C. ALJs and Discretion ............................................................... 116

CONCLUSION .................................................................................... 122

INTRODUCTION

Federal agencies rely extensively on Administrative Law Judges (ALJs) for resolving disputes between regulated parties and themselves.1 As a group,2 ALJs dispose of five times as many cases as are filed in federal district court annually.3 Given the conflict of interest that hovers over any scheme of administrative adjudication, in which private parties are engaged in a dispute with the very agency that is adjudicating the dispute, confidence in the integrity of ALJ

* Professor, Chicago-Kent College of Law. I would like to thank Richard Pierce and Christine Chabot for comments on earlier drafts. 1 The National Labor Relations Board (NLRB), Federal Labor Relations Authority (FLRA), and United States Merit Systems Protection Board (MSPB), in contrast. resolve disputes between, in the first context, employees and private employers, and in the other two, between government employees and agencies for whom they work. 2 There are roughly 2000 ALJs covered by the APA, working in over 25 agencies, with the majority working for the Social Security Administration (SSA). Federal Administrative Law Judges by agency and level, OPM https://www.opm.gov/services-for-agencies/administrative-law-judges/#url=ALJs-by-Agency (Mar. 2017). 3 See, e.g., Gellhorn & Byse’s Administrative Law 26 (12th ed. 2018); Richard J. Pierce, Political Control Versus Impermissible Bias in Agency Decisionmaking: Lessons from Chevron and Mistretta, 57 U. CHI. L. REV. 481, 501 (1990).

2021] Limits on the Unitary Executive 87 proceedings is critical. Although courts have rejected the plausible premise that the Due Process Clause itself guarantees ALJ independence,4 courts to date have upheld congressional efforts, most notably in the Administrative Procedure Act (APA),5 to insulate ALJs from improper agency influence. That may be about to end. As others have noted, a combination of the Supreme Court’s decisions in Free Enterprise Fund v. Public Company Accounting Oversight Board,6 holding that inferior officers in independent agencies must be removable at will, and Lucia v. SEC,7 which held that ALJs are inferior officers, threatens the continued independence of ALJs. The logic of the two decisions strongly suggests that ALJs, at least in independent agencies, must be subject to at-will dismissal, despite the signal protections in the APA.8

4 See, e.g., Schweiker v. McClure, 456 U.S. 188, 198 (1982) (upholding adjudication of Medicare Part B claims by private contractors of an agency); Kalaris v. Donovan, 697 F.2d 376, 400–01 (D.C. Cir. 1983) (holding that Due Process did not foreclose removing at-will members of the Benefits Review Board). Indeed, most administrative hearing officers in the federal government are not protected from at-will discharge. See, e.g., Kent Barnett, Against Administrative Judges, 49 U. C. DAVIS L. REV. 1643, 1692 (2016). And similarly, many agency heads themselves are not protected despite exercising the power to resolve a dispute between a private party and the agency. Under the APA, agency heads have the power to rehear any administrative dispute even when not insulated from at-will discharge. 5 U.S.C. § 557(b) (2018). For an argument that Due Process should protect adjudicator independence from plenary removal, see Richard Pierce, Should the Court Change the Scope of the Removal Authority?, 26 GEO. MASON L. REV. 657, 672–75 (2019). 5 5 U.S.C. §§ 551–559. 6 Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010). 7 Lucia v. SEC, 138 S. Ct. 2044, 2044, 2050–51 (2018). 8 As an alternative, the Solicitor General (SG) argued that the for cause protections from dismissal should be construed broadly to permit agencies wide latitude in removing ALJs, including for policy disagreements. See Memorandum from the Solicitor General, U.S. Dep’t of Justice, to Agency Gen. Counsels, Guidance on Administrative Law Judges After Luica v. SEC (S. Ct.) (July 2018); see also Recent Guidance: Administrative Law — Appointments Clause — Solicitor General Issues Guidance on Administrative Judges. — Guidance on Administrative Law Judges After Lucia v. SEC (S. Ct.), July 2018, 132 HARV. L. REV. 1120, 1125–27 (2019). The SG’s guidance apparently finds little support in history. See Jane Manners & Lev Menand, The Three Permissions: Presidential Removal and the Statutory Limits of Agency Independence, 121 COLUM. L. REV. 1, 17–18 (2021). In any event, the Court did not pursue that tack in construing the restrictions on removal for the head


Others have decried the Supreme Court’s decisions imperiling the independence of ALJs.9 To that end, some have criticized the Court’s formalistic decisions, particularly in Free Enterprise Fund,10 and some have advocated for restructuring the ALJ corps.11 The purpose of this Article is more limited. I argue that Supreme Court precedent does not necessarily spell doom for ALJ independence. Even with the Court’s increasing embrace of the unitary executive theory,12 there are compelling arguments to uphold the APA protections. Indeed, the functional arguments underlying Seila Law, in particular, strongly suggest that the President’s Article II interest in superintending policymaking can readily be accommodated with independent factfinding in both executive and independent agencies.13 Unless the unitary executive structure embraced by the Court extends formulaically to all officers in the executive branch, respecting the limited independence of ALJs under the APA readily can be reconciled with the executive’s needed control under Article II. Accordingly, in Part I, I briefly trace the history leading to the APA’s enactment and note that protections for factfinders are as important today as they were 75 years ago. In Part II, I summarize the leading Supreme Court decisions addressing the President’s removal authority.14 In Part III, I argue that the functional underpinnings of the required presidential accountability under Article II should leave Congress’s protections for ALJs untouched. Congress can choose whether to shield officers from the President’s at-will removal

of the Consumer Financial Protection Bureau. Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2206 (2020); see text accompanying infra notes 69–79. 9 See, e.g., Richard E. Levy & Robert L. Glicksman, Restoring ALJ Independence, 105 MINN. L. REV. 39, 67–69 (2020); Pierce, supra note 4, at 663–65. 10 See, e.g., Pierce, supra note 4, at 663–65. 11 Levy & Glicksman, supra note 9, at 92–98. 12 Seila Law, 140 S.Ct. at 2197–98; see also Collins v. Yellen, No. 19-422 (U.S. June 23, 2021) (holding that the President must exercise plenary removal authority over the single head of the Federal Housing Finance Agency). Under the reasoning of Seila Law and Collins, the independence of ALJs in agencies headed by a single director protected from at-will dismissal may also be imperiled. 13 See text accompanying infra notes 69–72. 14 See text accompanying infra notes 48–82. For a helpful summary of different approaches to the unitary executive ideal, see Ilan Wurman, The Removal Power: A Critical Guide, CATO SUP. CT. REV. 157, 158 (2020).

2021] Limits on the Unitary Executive 89 authority if the officers’ delegated functions do not include the economic, social, and political policymaking that Article II leaves to the President to manage. That distinction not only is normatively plausible but is historically grounded. I end by canvassing two related areas, the Federal Tort Claims Act (FTCA)15 and the Federal Service Labor-Management Relations Statute,16 to show how courts and the executive branch itself long have distinguished between professional and political judgment in assessing needed executive branch control under Article II.

I. CREATION OF THE APA

In enacting the APA 75 years ago, Congress in part responded to complaints by regulated entities that agency adjudicators, then termed hearing examiners, were biased.17 With the increase in the scope of administrative machinery in the late-nineteenth and early twentieth centuries, hearing examiners within agencies played an increasingly prominent role. Agencies were responsible for both hiring and disciplining such examiners.18 The examiners, perhaps not surprisingly, favored the agencies in which they worked in resolving private parties’ disputes with the government, and studies confirmed the bias.19 As an ABA report summarized in the mid-1930s, “It is not easy to maintain judicial independence or high standards of judicial conduct when a political sword of Damocles continually threatens the judge’s source of livelihood.”20 Attorney General Robert Jackson’s influential Committee on Administrative Procedure warned of a “progressive decline” in the quality of decisions where hearing officers lacked independence.21 Accordingly, the Attorney General’s Report urged tenure protections for agency adjudicators: “Removal of a hearing commissioner during his term should be for cause only and by

15 28 U.S.C. §§ 2671–2680. 16 5 U.S.C. §§ 7101–7135. 17 See Ramspeck v. Fed. Trial Exam’r Conf., 345 U.S. 128, 131 (1953). 18 Id. 19 Id. 20 Report of the Special Comm. on Admin. L., 57 Annual Rep. A.B.A. 539, 546 (1934). 21 ATT’Y GEN. REP. ON ADMIN. PROC. 1, 46 (1941).

90 Vermont Law Review [Vol. 46:086 a trial board independent of the agency.”22

Congress reacted in part by making ALJs quasi-independent. Most importantly, the APA provides that an ALJ can only be removed from office or disciplined for “cause,”23 and then only if an independent agency, the MPSB, agrees.24 Judicial review thereafter is permitted.25 Moreover, agencies cannot subject ALJs to performance evaluations, unlike with other agency subordinate officials.26 Further, Congress provided that, in conducting a hearing, an ALJ cannot be subject to the direction of an employee or agency official who performs investigative or prosecutorial functions.27 When the case is sub judice, an ALJ cannot engage in conversations with the parties or agency officials concerning the case without disclosing such contacts.28

The Court in Wong Yang Sung v. McGrath29 summarized soon thereafter that “[t]he Act thus represents a long period of study and strife; it settles long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest.”30 Indeed, “[c]oncern over administrative impartiality and response to growing discontent was reflected in Congress as early as 1929 . . . . Fears and dissatisfactions increased as tribunals grew in number and jurisdiction . . . .”31 The APA, in other words, reflected Congress’s effort to meet “currently prevailing standards of impartiality.”32 Most adjudicators in the federal government today are not protected by the APA. Although their fact-finding duties are often beyond reproach, the potential for political influence is present.33

22 Id. at 49. 23 5 U.S.C. § 7521. 24 Id. See also infra text accompanying note 87 (addressing the role of MSPB under the APA in reviewing discipline meted to ALJs). 25 The APA also barred agencies from assigning ALJs any tasks inconsistent with their adjudicative responsibilities. 5 U.S.C. § 3105. 26 See Lloyd Musolf, Performance Evaluation of Federal Administration Judges and Challenges for Public Administration, 28 AM. REV. PUB. ADMIN. 390, 396 (1998). 27 5 U.S.C. § 554(d)(2). 28 Id. § 554(d)(1). 29 Wong Yang Sung v. McGrath, 339 U.S. 33, 33 (1950). 30 Id. at 40, 43–56 31 Id. at 37–38. 32 Id. at 50. 33 See generally Barnett, supra note 4, at 1647 (noting Administrative Judges

2021] Limits on the Unitary Executive 91 Ongoing political pressure on immigration judges provides a case in point. The Trump Administration moved to decertify the union of immigration judges on the ground that the Immigration Judges (IJs) exercise too much discretion to be considered employees and therefore should not be eligible to organize under the Federal Service Labor Management Relations Statute.34 The Administration also ordered the judges not to speak in public about the functioning of immigration courts.35 The Attorney General, in other words, can fire immigration judges for addressing the public about the court system. Indeed, former Attorney General Jeff Sessions removed cases from a judge for being too lenient, and that removal likely impacted the decision-making of other immigration judges.36

Political pressure on immigration judges is far from new. In a notorious case during the Bush II Administration, a Department of Justice (DOJ) official called the Chief Immigration Judge and convinced him to direct an immigration judge handling a controversial case to change his decision.37 The APA may confer only partial security on ALJs, but significantly more than that enjoyed by most Administrative Judges who can be removed at will.38 The question

outnumber ALJs by approximately a five-to-one margin and are most prevalent in the Department of Commerce and Internal Revenue Service (IRS)). 34 See infra text accompanying notes 143–56. 35 See, e.g., Laila L. Hlass et al., Let Immigration Judges Speak, SLATE (Oct. 24, 2019), https://slate.com/news-and-politics/2019/10/immigration-judges-gag-rule.html; see also Stephanie Krent, Revised Justice Department Policy Still Silences Immigration Judges, JUST SECURITY (Mar. 5, 2020), https://www.justsecurity.org/69048/revised-justice-department-policy-still-silences-immigration-judges/. 36 Jeff Gammage, In Philly Immigration Court, a Judge is Replaced After Delaying a Man’s Deportation, PHILA. INQUIRER (Aug, 8, 2018), https://www.inquirer.com/philly/news/immigration-judges-association-grievance-philadelphia-steven-morley-removal-deportation-case-20180808.html. 37 See Stephen Legomsky, Deportation and the War on Independence, 91 CORNELL L. REV. 369, 373 (2006). 38 The political pressure issue recently arose in Florida, when the chief ALJ suspended Judge John Van Laningham of the Florida Division of Administrative Hearings for including a footnote in his opinion questioning whether pressure from the chief judge to alter his opinion before publication constituted an ex parte communication banned by Florida law. Debra Cassens Weiss, Administrative Law Judge is accused of insubordination and suspended for footnotes, ABA J., April 7,

92 Vermont Law Review [Vol. 46:086 presented, therefore, is whether Congress’s longstanding decision to protect certain judicial officials in the executive branch from at-will removal violates Article II.

II. THE SUPREME COURT’S REMOVAL JURISPRUDENCE

The fate of ALJ independence rests in large part on the nature

of the Supreme Court’s future adherence to the unitary executive theory. In cases such as Free Enterprise Fund and Seila Law, the Court has affirmed the importance of a robust Chief Executive, who must under Article II be able to superintend the authority delegated by Congress to the executive branch.39 Given that the President cannot alone discharge all such responsibilities, the powers to appoint and remove officials are central to preserving presidential control. In turn, the electorate can then hold the Chief Executive responsible for the administration’s execution of the law come election day.

Although often left unstated, there is no one theory of a unitary executive. Adherents agree that the Vesting and the Take Care Clauses in Article II40 dictate that the President wield some type of supervisory power over tasks delegated from Congress to officials within the executive branch. Adherents also agree that the President’s appointment and removal authorities under Article II are critical to effectuating a unitary executive. But, such agreements have not extended to delineating the required extent of presidential supervision over officers of the United States,41 whether comparable authority

2020. Whether Judge Van Laningham construed Florida’s ban on ex parte communications correctly or not, the imbroglio brings to the fore the simmering question whether a superior can direct the ALJ to change his or her opinion without jeopardizing the ALJ’s decisional independence. 39 See Free Enter. Fund v. PCAOB, 561 U.S. 477, 483 (2010); Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2197 (2020). 40 U.S. CONST. art. II, §§ 1, 3. See also Wurman, supra note 14, at 159. 41 Compare Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. ILL. L. REV. 701, 716–17 (2003) (arguing that the President must have the power to directly exercise all delegated power), with Peter L. Strauss, Overseer or “The Decider”? The President in Administrative Law, 75 GEO. WASH. L. REV. 696, 728–30 (2007) [hereinafter Strauss, Overseer] (arguing that the President cannot displace the judgment of the officer to whom Congress has delegated authority).

2021] Limits on the Unitary Executive 93 should extend to delegations outside the executive branch,42 and whether the President must comply with congressional judgments about which officers should be responsible for which tasks delegated by Congress.43

A. History

The Supreme Court’s decisions in the area have been well

canvassed, but a short recap is appropriate to depict the Supreme Court’s oscillation between more or less formal means to determine how much presidential supervision Article II requires. The Court deploys more formal approaches to draw clear lines and to prevent chipping away at constitutionally grounded authority.44 For example, a decision holding that Congress can take no part in the removal of executive branch officials45 reflects a clear rule to preserve executive branch control. On the other hand, a decision holding that Congress can vest appointment of executive branch inferior officers in judges as long as the decision is not “incongruous”46 represents a functional balancing of interests of all three branches: the executive branch in controlling authority delegated from Congress; Congress in deciding how best the authority should be exercised; and judges in determining the identity of the officer who is to interact with the judiciary. Functional approaches recognize interdependence among the three branches and stress the importance of preserving the balance of powers among the branches, while formal approaches create walls around

42 See, e.g., Harold J. Krent, Fragmenting the Unitary Executive: Congressional Delegations Outside the Executive Branch, 85 NW. U. L. REV. 62, 76–80 (1992) (“Delegating authority outside the federal government may permit Congress to exercise both a de facto appointment and removal authority.”). 43 See, e.g., Peter Shane, Prosecutors at the Periphery, 94 CHI-KENT L. REV. 241, 246–51 (2019) (noting “that duties assigned to ‘the Heads of Departments’ are not to be performed by the President, but rather by those officers explicitly tasked to perform them.”). 44 See generally Peter L. Strauss, Formal and Functional Approaches to Separation of Powers Clashes: A Foolish Inconsistency, 72 CORNELL L. REV. 488, 512 (1987) (comparing and contrasting functional and formal approaches to separation of powers issues). 45 Bowsher v. Synar, 478 U.S. 714, 733–34 (1987). 46 Morrison v. Olson, 487 U.S. 654, 656 (1988).

94 Vermont Law Review [Vol. 46:086 separate powers to ensure that the original design is not diluted.

As a matter of history, Congress at times has left the President with little control over tasks it has delegated.47 In the last hundred years, however, courts have been more wary about such congressional determinations, bolstering the President’s authority both to appoint and remove officers within the executive branch. Given that there is little in the Constitution describing how the President is to supervise subordinates, it is perhaps not surprising that the Court has struggled to ascertain just how much presidential oversight Article II requires.

The Supreme Court’s first lengthy foray concerning the President’s removal authority, as is well known, came in Myers v. United States 48 The Court held that a congressional effort to restrict the President’s removal of a first-class postmaster by requiring Senate approval for all such discharges violated Article II.49 And, largely in dicta, the Court stated that Article II not only prevented the Senate from having a direct role in removing an executive branch official, but that the President himself must be able to remove at will all officers he appointed in the executive branch. The importance of protecting postmasters from presidential interference was not evaluated; rather, the opinion was sweeping in that its reasoning seemingly covered all officers in the executive branch.50 Yet what is not as well remembered is that the Court specifically flagged the question whether Congress must also allow the President to remove those officers whom Congress

47 Indeed, at the Founding, Congress delegated substantial financial authority to individuals insulated from presidential supervision. See Christine K. Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, 76 NOTRE DAME L. REV. 1, 27–43 (2019) (focusing on delegation to the Sinking Fund Commission in the early years of the nation). Moreover, for a historical discussion of the limited understanding of the reasons for which a President could remove an officer for cause, see Manners & Menand, supra note 8, at 28–32. 48 Myers v. United States, 272 U.S. 52 (1926). 49 Id. at 83–84 (holding that Congress can take no part in the removal process). The Court has not wavered from that position since. Bowsher v. Synar, 478 U.S. 714, 733–34 (1986). 50 See Myers, 272 U.S. at 204–05. The historical analysis in Myers recently has come under attack, undermining much of the originalist basis for the unitary executive. See generally Jed Shugerman, The Indecisions of 1789: Strategic Ambiguity and the Imaginary Unitary Executive (Part I) (drft. Dec. 13, 2021) [hereinafter Shugerman, Indecisions].

2021] Limits on the Unitary Executive 95 had empowered to adjudicate disputes in the executive branch,51 leaving open the possibility that presidential control might “not apply to the judges, over whose judicial duties he could not properly exercise any supervision or control after their appointment.”52 Myers reflects formal reasoning in that it did not factor in Congress’s interest in protecting the officer from the President’s removal authority. The Court’s carve-out of adjudicative responsibilities suggested that the Court, in a future case, might introduce some balancing into the equation, particularly when considering restraints on adjudicative officers.

The Court’s return to the removal issue nine years later in Humphrey’s Executor v. United States53 reflected a modest turn towards balancing congressional and executive authority in the removal context. There, in considering the propriety of President Franklin Delano Roosevelt’s discharge of a Federal Trade Commission (FTC) Commissioner, the Court held that Congress could choose to limit the President’s removal authority over quasi-legislative and quasi-judicial bodies such as the FTC. The Court noted that if the Constitution mandated plenary removal authority for FTC Commissioners, then such authority also would exist over “judges of the legislative Court of Claims, exercising judicial power.”54 For purely executive officers, the Myers approach held sway, but the Court engaged in a more functional approach for superior officers whom Congress had tasked with legislative-type or judicial-type duties. In those contexts, the Court was willing to consider the importance of Congress’s determination to shield the officer from the President’s at-will removal authority.55 At the same time, the decision embraced formal distinctions among executive, quasi-legislative, and quasi-judicial powers.

The Court left unexplored the question whether Congress also could shield removal of officers who discharged a mixture of executive and either quasi-judicial or quasi-legislative authority as most agencies

51 Myers, 272 U.S. at 156. 52 Id. at 156–57. 53 Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935). 54 Id. 55 Id. at 630.

96 Vermont Law Review [Vol. 46:086 currently do. In other words, Congress could have circumvented Myers if it grafted judicial or legislative duties onto a purely executive office. In that eventuality, a functional balancing test might have been inevitable, weighing the importance of Congress’s judgment to shield an officer exercising such a mixture of powers from plenary removal against the intrusion into the Chief Executive’s Article II authority.

The Court continued to follow Humphrey’s Executor a generation later in Wiener v. United States, holding that the President could not remove a member of the War Claims Tribunal other than for cause.56 From the nature of the Tribunal’s duties, the Court presumed that Congress would not have wanted the President to interfere with the member’s adjudicative duties.57 According to the Court, the Tribunal’s power “to adjudicate according to law” resembled that of Article III courts or the Court of Claims, and, as a consequence, the President should not interfere with the judgment exercised by a member of the Tribunal.58 More than in Humphrey’s Executor, the Court focused on Congress’s interest in insulating the tasks it delegated from presidential interference.59 The Court did not signal that any other aspect of Humphrey’s Executor would be altered.

The Court jettisoned the formal approach in Morrison v. Olson.60 There, the Court deployed a functional balancing approach to gauge whether Congress could limit the President’s removal over a purely executive official, albeit an inferior officer—the independent counsel.61 The Court assessed the scope of the independent counsel’s authority and balanced it against Congress’s interest in assuring independent investigation of wrongdoing within the executive branch.62 In particular, the Court stressed that the independent counsel exercised virtually no policymaking authority.63 The Court concluded that Congress’s limitation on the removal authority prevailed because it did not “interfere impermissibly with his constitutional obligation to

56 Wiener v. United States, 357 U.S. 349, 356 (1958). 57 See id. at 355–56. 58 Id. at 355. 59 Compare id. at 356, with Humphrey’s Ex’r, 295 U.S. at 625–26. 60 487 U.S. 654 (1988). 61 Id. at 711. 62 Id. at 685–97. 63 Id. at 671.

2021] Limits on the Unitary Executive 97 ensure the faithful execution of the laws.”64 The Court did not specify whether this test was to be used for both superior and inferior officers, but it seemingly covered both categories.

The Supreme Court’s functional approach did not last long. In Free Enterprise Fund v. Public Company Accounting Oversight Board,65 the Court held that two layers of insulation from the President’s at-will removal power violated Article II. The Court stated that “[b]y granting the Board executive power without the Executive’s oversight, [the] Act subverts the President’s ability to ensure that the laws are faithfully executed—as well as the public’s ability to pass judgment on his efforts.”66

In Free Enterprise Fund, the question concerned the status of an inferior officer as in Morrison v. Olson. The Court asked whether “the President [could] be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States?”67 The Court did not balance the importance of the duties exercised by the Public Company Accounting Oversight Board (PCAOB) against Congress’s interest in shielding the Board from presidential interference.

Despite the formalism of the Court’s ruling against two layers of insulation, the Court specifically stated that its holding did not “address that subset of independent agency employees who serve as administrative law judges . . . . [U]nlike members of the Board, many administrative law judges of course perform adjudicative rather than enforcement . . . functions,” and the Court focused on the “policy and enforcement” actions of the PCAOB.68 Although the formal approach in Free Enterprise Fund starkly raises the possibility that ALJs in independent agencies should be removable at will, the opinion also suggested that functional considerations of the adjudicative role of ALJs might come into play in a future case.

64 Id. at 693. 65 See generally Free Enter. Fund v. PCAOB, 561 U.S. 477, 478 (2010). 66 Id. at 498. 67 Id. at 483–84. 68 Id. at 507 n.10.


B. The Present

The Supreme Court’s recent case addressing the unitary executive, Seila Law LLC v. Consumer Financial Protection Bureau,69 stressed functional considerations in holding that Congress could not insulate the head of the Bureau from the President’s at-will removal authority. The Bureau, much like the FTC in Humphrey’s Executor, exercises a mixture of executive, legislative, and adjudicative functions. Per Chief Justice Roberts, the Court reiterated “that, ‘as a general matter,’ the Constitution gives the President ‘the authority to remove those who assist him in carrying out his duties,’ . . . . ‘Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.’”70 The Court reinterpreted its prior holdings to permit only two exceptions: the Humphrey’s Executor exception allowing Congress to “create expert agencies led by a group of principal officers removable by the President only for good cause,” and the Morrison v. Olson exception for “certain inferior officers with narrowly defined duties” who lacked “policymaking or significant administrative authority.”71

In subsequently concluding that Congress could not, consistent with Article II, insulate the Bureau’s head from the President’s plenary removal authority, the Court used functional arguments. The Court noted that with “the sole exception of the Presidency, [the constitutional] structure scrupulously avoids concentrating power in the hands of any single individual.”72 The problem with the Consumer Financial Protection Bureau (CFPB), in other words, unlike the FTC, Securities and Exchange Commission (SEC), NLRB, and other independent regulatory commissions, is that a single director need not obtain the agreement of others before approving an enforcement

69 Seila Law LLC v. CFPB, 140 S.Ct. 2183, 2192 (2020). 70 Id. at 2191 (citations omitted) (quoting Free Enterprise Fund v. PCAOB, 561 U.S. 477, 513–14 (2010)). 71 Id. at 2192–99. The Court more recently in Collins v. Yellen altered the focus from the “significant” executive authority in Seila Law to simply “executive” authority, reasoning that “the nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head.” Collins, No. 19-422, slip op. at 27 (U.S. June 23, 2021). 72Seila Law, 140 S. Ct. at 2202.

2021] Limits on the Unitary Executive 99 action, proposing a rule, or resolving a case. And unlike members of Congress, the single director is not checked by the need to persuade fellow members of his or her chamber, let alone the other chamber.

In addition to such functional arguments, the Court relied on historical practice, which can be persuasive in adopting both formal and functional assessments. The Court stressed that the single-member structure of the CFPB was “novel” and that Congress instead had crafted almost every other independent agency as a multi-member commission.73 The historical record supported the impropriety of Congress’s attempt to infuse the CFPB with greater independence.

The Court continued that, due to the President’s unique role under the Constitution, he had to be responsible for such exercises of authority—“the Framers made the President the most democratic and politically accountable official in Government. Only the President . . . is elected by the entire Nation.”74 To that end, the Constitution “render[s] the President directly accountable to the people through regular elections.”75 Indeed, because the director serves a five-year term, some Presidents may be stuck with their predecessor’s choice and may never be able to appoint a director.76 The Court continued that, not only was the single-member structure of the Bureau problematic, but so was the fact that the Bureau received funds outside the appropriations process and thus was more independent financially than other agencies.77

In short, while embracing a version of the unitary executive, the Court deployed functional justifications. The Court declined to reconsider Humphrey’s Executor,78 focusing instead on the greater independence exercised by the CFPB Director given the single- member structure, his or her five-year term in office, and the agency’s comparative financial autonomy. And the Court defended its view by focusing on historical precedents, suggesting that the CFPB’s structure

73 Id. at 2201, 2240 (“‘Perhaps the most telling indication of [a] severe constitutional problem’ with an executive entity ‘is [a] lack of historical precedent’ to support it.”) (citation omitted) (quoting Free Enter. Fund, 561 U.S. at 505 (2010)). 74 Id. at 2203. 75 Id. 76 Id. at 2204. 77 Id. 78 Id. at 2206.

100 Vermont Law Review [Vol. 46:086 was “novel” in vesting such wide authority in a single individual outside the President’s at-will removal authority.79 The issue raised is whether comparable functional and historical considerations will inform future resolution of whether ALJs can be protected from at-will removal—at least in independent agencies—without jeopardizing the President’s control over Article II.

Indeed, in subsequently striking down the single-member head of the Federal Housing Finance Agency, the Court in Collins v. Yellen80 similarly relied on the importance of presidential control “to ensure that these subordinates serve the people effectively and in accordance with the policies that the people presumably elected the President to promote.”81 Yet, in doing so, the Court distinguished the Wiener precedent by noting that “the War Claims Commission was an adjudicatory body, and as such, it had a unique need for ‘absolute freedom from Executive interference.’”82

The D.C. Circuit more recently ducked that very question, dismissing a challenge to an ALJ’s status in the Department of Agriculture on the ground that the plaintiff had failed to exhaust available administrative remedies.83 Judge Rao in dissent, however, would have held the APA protections for ALJs to be unconstitutional. Her opinion relied extensively on Free Enterprise Fund84 and Seila Law in concluding that the “‘dual for-cause limitations on the removal’

79 Id. at 2192. 80 Collins, No. 19-422, slip op. at 26. 81 Id. at 27. 82 Id. at 25 n.18 (citation omitted). The Office of Legal Counsel has read Seila Law and Collins similarly. See Constitutionality of the Commissioner of Social Security’s Tenure Protections, 45 Op. O.L.C., slip op. at 10 (July 8, 2021) (“We emphasize that both of these recent decisions leave open the possibility that certain agencies, including (and perhaps especially) some that conduct adjudications, may constitutionally be led by officials protected from at-will removal by the President.”). 83 See Axon Enter. v. FTC, 986 F. 3d 1173, 1177 (9th Cir. 2021) (dismissing a similar constitutional challenge because of plaintiff’s failure to raise the claim before the agency). 84 See Fleming v. U.S. Dept. of Agric., 987 F.3d 1093, 1114 (D.C. Cir. 2021) (arguing that presidents now wield more influence over ALJs than previously because Congress post-Lucia must vest the appointment authority in the President or a head of a department).

2021] Limits on the Unitary Executive 101 of ALJs ‘contravene the Constitution’s separation of powers.’”85 Yet the logic of her opinion extends well beyond the reasoning in those two Supreme Court decisions because the Department of Agriculture is not an independent agency.86

Rather, Judge Rao reasoned that a second layer of insulation from the President’s removal authority existed because ALJs could appeal any discipline or removal for cause to the independent MSPB, whose members are also insulated from the President’s plenary removal authority.87 But if review of a for cause removal of an inferior officer, such as an ALJ, by an independent agency is unconstitutional, then judicial review of the President’s for cause determination—as in Humphrey’s Executor, Wiener, and Morrison—presumably would be unconstitutional as well. It is hard to imagine why the President’s need for control can be harmonized with judicial review of a for cause dismissal but not for agency review of that same determination. In short, Judge Rao must have concluded that one layer of for cause protection itself is unconstitutional if it can be reviewed either by judges or agency heads outside the President’s direct control. Thus, she apparently would extend Seila Law to prohibit the independence of all ALJs. Other challenges to ALJ status are forthcoming.

85 Id. at 1115 (Rao, J., dissenting) (citations omitted). 86 Ironically, as an academic, Judge Rao defended the constitutionality of for cause restrictions on the removal of adjudicators in the executive branch, in part because of historical practice, and in part based on Due Process concerns. Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 ALA. L. REV. 1205, 1247–48 (2014). 87 See Linda D. Jellum, “You’re Fired!” Why the ALJ Multi-Track Dual Removal Provisions Violate the Constitution and Possible Fixes, 26 GEO. MASON L. REV. 705, 743 (2019). See also United States v. Arthrex, No. 19-1434, slip op. at 12–15 (U.S. June 21, 2021) (casting doubt on the constitutionality of the MSPB by stressing the close presidential control needed over those making final decisions, including adjudications in the executive branch). On the other hand, if the Supreme Court rules that Article II cannot be reconciled with independent agencies, then presumably Congress could protect all ALJs from at will removal because their employing agency heads (and the MSPB members) would be subject to plenary removal.


III. THE SCOPE OF PRESIDENTIAL SUPERINTENDENCE UNDER ARTICLE II

The test the Supreme Court devised to preserve a robust Chief

Executive currently reflects a mix of formal and functionalist considerations. Justices at times have relied on views at the Founding; the historical practice thereafter; the constitutional structure creating a single executive atop the administration; and functional considerations for why presidential control is so important. All these factors, therefore, may contribute to determining whether the APA’s restrictions on removal comport with the constitutional structure. Of course, some members of the Supreme Court and many commentators believe the very notion of a unitary executive to be misguided.88

With respect to presidential control over adjudicative duties delegated by Congress, the record at the Founding does not support a requirement of close presidential supervision. To be sure, Congress often delegated adjudicative authority to the executive branch without limiting presidential control. For example, with respect to veterans’ claims, the First Congress provided compensation to disabled veterans, without including a claims resolution or adjudicative mechanism.89 Congress directed that pensions were to be paid “under such regulations as the President of the United States may direct.”90 The implication was that the Executive should proceed as he deemed appropriate. Similarly, Congress in 1794 appropriated money for those who fled a Saint Domingo insurrection “in such manner, and by the hands of such persons, as shall, in the opinion of the President, appear most conducive to the humane purpose of this act.”91 Full control rested with the President. But there were several striking exceptions at the outset. First, Congress delegated to the courts the responsibility to grant citizenship

88 See, e.g., Seila Law LLC v. CFPB, 140 S.Ct. 2183, 2224–38 (2020) (Kagan, J., dissenting); Shugerman, Indecisions, supra note 50, at 81–83; Shane, Prosecutors at the Periphery, supra note 43, at 242–45; Strauss, Overseer, supra note 41, at 705–15. 89 Act for the Payment of the Invalid Pensioners of the United States, Pub. L. No. 1–25, 1 Stat. 95 (1789). 90 Id. 91 Act Providing for the Relief of the Inhabitants of Saint Domingo, 6 Stat. 13 (1794).

2021] Limits on the Unitary Executive 103 if individuals had lived within the jurisdiction for at least a year and then made “proof to the satisfaction of such court that, he is a person of good character.”92 Such administrative decisions rested outside the President’s control, albeit within the judicial branch. Second, when Congress passed the Invalid Pension Act in 1792, it delegated the authority to Article III judges to determine eligibility for pensions, subject only to limited review by the Secretary of War.93 The Supreme Court later invalidated the statute on the ground that Congress could not permit the executive branch to revise determinations of Article III judges,94 but no one objected to the congressional measure on the ground that the President needed to be able to remove all officials recommending resolution of claims against the United States.95 In light of the controversy, Congress subsequently limited the courts’ involvement to receiving evidence that the executive branch would then use in determining eligibility.96 Congress had no qualms about vesting adjudicative responsibilities outside the President’s control even when the final decision was the President’s to make.

Third, Congress in the 1793 Patent Act provided that in case of competing applications for patents, the patentability decision would no longer be made, as under the prior Act,97 by the Secretary of State, Secretary of War, and Attorney General but rather by a Board of three

92 Act of March 26, 1790, 1 Stat. 103. As James Madison wrote, an official who “partakes strongly of the judicial character . . . should not hold . . . office at the pleasure of the Executive branch of the Government.” JAMES MADISON, THE WRITINGS OF JAMES MADISON 413 (Gaillard Hunt, Hunt ed. 1904). 93 Invalid Pension Act of 1792, ch. 11, Pub. L. 2–11, 1 Stat. 243. 94 Hayburn’s Case, 2 U.S. 409, 409–10 (1792). 95 Moreover, Congress delegated executive authority to the Sinking Fund Commission and to Assayers of the Mint, and each group of delegees included the Chief Justice. See Chabot, supra note 47, at 32–34, 37–40, 43, 46–48, 50–51; Act establishing a Mint, and regulating the Coins of the United States, ch. 16, 1 Stat. 246, 250. Such delegations reveal that, in Congress’s eyes, presidential control over executive functions need not be absolute, although the Chief Justice presumably could not exercise such responsibilities on his own. 96 Act of Feb. 28, 1793, ch. 17, 1 Stat. 324–325 (explaining how courts were to assess evidence). 97 Patent Act of 1790, ch. 7, Pub. L. 1-7, 1 Stat. 109–112 (1790).

104 Vermont Law Review [Vol. 46:086 arbitrators, two of whom were selected by the parties themselves.98 Resolution of adjudication within the executive branch, in other words, rested in the hands of non-executive branch actors. At the time of the Founding, therefore, there was clearly no consensus that the President through appointment and removal had to control all adjudicative responsibilities delegated by Congress.99

Moreover, the Court in Free Enterprise Fund and Seila Law emphasized not only the history at the Founding but also the historical practice since. Congress enacted the APA 75 years ago and restrictions on removal of ALJs have been commonplace ever since. In contrast to the congressional structures that were deemed “novel” in Free Enterprise Fund and Seila Law, historical practice weighs in favor of congressional discretion to insulate ALJs from at-will removal. The historical practice—both at the Founding and more recently—constitutes just one lens with which one can assess the needed presidential control over adjudicative functions delegated by Congress. Other considerations, whether the overall structure of the Constitution or particular language in Article II, may lead some to stress the importance of a robust executive removal authority despite the lack of historical support. In considering possible formulations, one approach might focus on the stature of the individual carrying out the tasks. Under this approach, all officers in the executive branch, whether a superior or inferior officer, would be subject to at-will dismissal to maintain an effective connection to the President’s supervision. This approach—much as described by the Court in Myers—would in effect preclude any protection for heads of independent agencies or for inferior officers such as the independent counsel or ALJs. Under this view, any official “exercising significant authority pursuant to the laws of the United States”100 must be removable at will to preserve a sufficiently

98 Patent Act of 1793, ch. 11, Pub. L. 2-11, 1 Stat. 318 (1793); see also U.S. v. Arthrex, No. 19-1434, slip op. at 12–13 (U.S. June 21, 2021) (Thomas, J., dissenting) (noting that Congress long has delegated the power to make binding patent decisions to individuals who were not superior officers of the United States). 99 See Manners & Menand, supra note 8, at 6 n.23 (noting that Congress apparently also protected justices of peace, who were appointed by the President, from the President’s at-will removal authority). 100 Buckley v. Valeo, 424 U.S. 1, 126 (1974).

2021] Limits on the Unitary Executive 105 close tie between the President and officer. Those in the civil service could be exempted, but any governmental official whose duties exceeded the “significant authority” threshold would be subject to at-will dismissal.101 Given that the Supreme Court has held that the “power of removal is incident to the power of appointment,”102 it might follow that all officers must be removable at will by the appointing authority. A number of Justices on the Court may be leaning in this direction.

One could take this approach further and argue that all federal employees must be subject to at-will discharge. Some have recently so argued, reasoning that the unitary executive demands close supervision of even clerks, janitors, and grounds crew.103 Despite the fact that civil service protections have existed for over a century,104 an expansive view of the unitary executive could conclude that the President must be able to discharge all employees in the executive branch.

A different formalist focus on the stature of the individual is also possible, which would make more of the distinction in the Constitution between superior and inferior officers. The President’s need to remove an inferior officer arguably is not as critical to maintaining the unitary executive. Given the two categories of officers in the Constitution, plenary removal would only extend to the most important level of officer. The criteria for determining the characteristics of the officer would be congruent with the set of functions for which the President must be directly accountable to the public. The Court earlier in United States v. Perkins105 seemed to adopt that position, explaining that “[w]e have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of

101 Id. See Jennifer L. Mascott, Who Are Officers of the United States?, 70 STAN. L. REV. 443, 454 (2018) (noting that the category of which governmental officials should be considered officers might expand as well). 102 Myers v. U.S. 272 U.S. 52, 122; Free Enter. Fund v. PCAOB, 561 U.S. 483, 504 (2010). Of course, the Senate must consent to those appointments, a fact frequently overlooked by adherents of the unitary executive. 103 Philip K. Howard, Restoring Accountability to the Executive Branch, CTR. FOR THE STUDY OF THE ADMIN. STATE 21–22 (2020) (explaining how Free Enterprise Fund left open the President’s constitutional authority over non-officers). 104 Lloyd-LaFollette Act of 1912, ch. 389, Pub. L. 62-336, 37 Stat. 539, 555. See discussion in Arnett v. Kennedy, 416 U.S. 134, 140 (1974). 105 United States v. Perkins, 116 U.S. 483, 483 (1886).

106 Vermont Law Review [Vol. 46:086 department it may limit and restrict the power of removal.”106 As long as their superiors are subject to close presidential control, then direct presidential supervision over inferior officers is not critical to preserve the unitary executive. Presidents can still demand the loyalty of those officers’ superiors and be judged by voters for exercise of the policy formulated. To be sure, the efforts of inferior officers are important, as are those of career public servants. But the public is not as likely to hold the President responsible for the slowness or negligence of efforts from personnel lower on the totem pole, as least as much as they are for policy formulated by heads of departments and other superior officers of the United States.

Although logical, the Court has swerved from such an approach, finding it overinclusive in that removal at will is not required (at least to date) for a variety of officers of the United States if Congress has a good reason for insulating their removal and if their power is checked by other factors, such as being part of a multi-member commission. The Court has also found the above approach underinclusive in part by holding that inferior officers must be subject to at-will removal if their superiors are subject only to removal for cause, as for members of the PCAOB, as well as when presidential oversight is required to assure that the President can perform his or her constitutionally assigned functions.107

A number of functional approaches to Article II authority are also possible, some of which might themselves leave particular executive branch judicial officials unprotected depending upon the type of balancing test selected. For instance, the approach in Humphrey’s Executor focuses on separating delegated authority from Congress into categories of purely executive, quasi-judicial, and quasi-legislative. Those characterizations are highly contestable. As Justice Stevens noted when concurring in Bowsher, “One reason that the exercise of legislative, executive, and judicial powers cannot be categorically distributed among three mutually exclusive branches of Government is that governmental power cannot always be readily characterized within only one of those three labels.”108 Moreover, even

106 Id. at 485. 107 Morrison v. Olson, 487 U.S. at 693. 108 Bowsher v. Synar, 478 U.S. 714, 749 (1986) (Stevens, J., concurring). The Court

2021] Limits on the Unitary Executive 107 if there is something to be said about the separate categories, Congress has delegated a mix of such responsibilities to virtually all agencies. Distinguishing among categories of executive, quasi-legislative, and quasi-judicial authority, therefore, has become less defensible.

For another functional perspective, the Supreme Court might decide that the President’s interest in supervision is paramount when Congress has delegated to an officer in the executive branch the power to bind those outside the branch.109 Arguably, the executive branch cannot bind any individual or firm unless the President can be sufficiently tied to that decision. Under this view, the President should be able to remove all such officers at will, no matter the duties exercised.

A more promising functional test would consider, consistent with the unitary executive theory, the types of conduct for which the President must be accountable to the public. Both Free Enterprise Fund and Seila Law make it critical for the public to be able to tie administrative action to the President.110 Under this version of the unitary executive, the question would be how to ascertain which governmental acts must be tied in the public eye to the President and thus subject to close presidential supervision. Almost every task accomplished by governmental employees is important in some sense—otherwise, presumably, taxpayer dollars would not be devoted to the effort. Whether the issue is research by a governmental scientist, construction of a bridge by the Army Corps of Engineers, or brief writing by an agency attorney, such efforts reflect the government at

in Arthrex similarly stressed that all such duties have to be considered executive if carried out by officers in the executive branch. United States v. Arthrex, No. 94-1434, slip op. at 12–13 (U.S. June 21, 2021). 109 Bowsher suggests such a test. See Bowsher, 478 U.S. at 733 (“The executive nature of the Comptroller General's functions under the Act is revealed in § 252(a)(3), which gives the Comptroller General the ultimate authority to determine the budget cuts to be made. Indeed, the Comptroller General commands the President himself to carry out, without the slightest variation (with exceptions not relevant to the constitutional issues presented), the directive of the Comptroller General as to the budget reductions.”); see also Arthrex, No. 94-1434 (holding that administrative patent judges could not render final decisions with respect to the validity of patents unless their decisions became more clearly linked to the President). 110 See Free Enter. Fund v. PCAOB, 561 U.S. 477, 498 (2010); Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2191 (2020).

108 Vermont Law Review [Vol. 46:086 work but are not actions that we conventionally ascribe to the President. Indeed, the entire Civil Service system reminds us that there exist wide swathes of governmental work that need not be tied closely to the President. In other words, the Constitution requires that the President expect “here and now subservience”111 only for officials who exercise certain types of policymaking authority.

The decision in Morrison v. Olson112 reflects that analysis. The Court, in upholding the for cause limitation on the independent counsel, acknowledged that the independent counsel “exercises no small amount of discretionary judgment in deciding how to carry out his or her duties under the Act.”113 Yet the Court clarified that what was critical for presidential control was not discretion by itself but rather policymaking—“this grant of authority does not include any authority to formulate policy for the Government or the Executive Branch . . . [and the independent counsel] is to comply to the extent possible with the policies of the Department.”114 Under a functionalist approach, it is critical to tie policymaking to the President but not necessarily all exercise of discretion by subordinates. To be sure, officer status is a convenient proxy for that work which, under the unitary executive theory, must be connected to the Chief Executive. But many officers’ tasks do not reflect such significant policymaking, as the decision in Morrison v. Olson attests, and much activity outside of the immediate control of officers can affect the country greatly.115 To provide two simple examples—government scientists in the Food and Drug Administration (FDA) have great influence over which medicines the public will be able to buy and for how much, even if they do not wield final authority.116

111 See Bowsher, 478 U.S. at 727 n.5 (quoting Synar v. United States, 626 F. Supp. 1374, 1392 (D.D.C. 1986)). 112 Morrison v. Olson, 487 U.S. 654, 655 (1988). 113 Id. at 691–92. 114 Id. at 671–72. The Court in Seila Law cited this reasoning in Morrison v. Olson with approval. Seila Law, 140 S. Ct. at 2199. 115 Morrison, 487 U.S. at 671–72 (asserting the President under Article II has the power to appoint officers in the judicial branch, which suggests that officer status by itself is not talismanic). 116 FDA Mission: About FDA, FEDERAL DRUG ADMINISTRATION, (Mar. 28, 2018), https://www.fda.gov/about-fda/what-we-do; see also Claire Felter, What is the FDA’s Role in Public Health?, COUNCIL ON FOREIGN RELS. (Sept. 10, 2021),

2021] Limits on the Unitary Executive 109 Similarly, lawyers in the Department of Justice wield considerable influence over which arguments the government will make in court and in that way shape the power of the government for the future.117 Under such a functional approach, the question therefore would be how to determine which governmental functions must be attributed to the President, both to permit the President the requisite control and to allow the public to tie such actions to the President to ensure electoral accountability. In contexts other than appointment and removal, courts and the executive branch itself have differentiated among the executive branch’s many functions to ascertain when close presidential control is needed. They have concluded—parallel to the reasoning in Morrison v. Olson—that presidential supervision is most critical for determinations that reflect economic, social, and political policy. Such analyses provide a plausible framework for understanding how to apply the unitary executive formulation.

A. Federal Tort Claims Act

Although the question of which tort claims can be litigated against the federal government may seem far afield from the scope of the President’s removal authority, in both contexts the resolution turns on determining which governmental functions must be subject solely to presidential control. Congress waived much of the federal government’s tort immunity in the FTCA.118 Courts must scrutinize agency actions to determine if agency actors were negligent (based on the law of the state in which the injury arose)119 in constructing dams, conducting blasting operations, or even in regulating banks. Congress determined, however, that the prospect of damages actions might lead

https://www.cfr.org/backgrounder/what-fdas-role-public-health (noting the FDA’s authority and role in relation to other federal agencies, despite its lack of final authority). 117 See Stephen G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush, 53–54 (Yale 2008) (explaining that the independence of the Bank of the United States may reflect the view that monetary policy was distinct from political and social policy). 118 28 U.S.C. §§ 2671–2680. 119 Id. § 2674 (“The United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances.”).

110 Vermont Law Review [Vol. 46:086 agencies to curb their activities for fear of incurring liability. The potential for damages actions might deter a risk-averse agency from novel policies that benefit the public. Agencies might conform their conduct to what they believe reviewing judges would deem reasonable, as opposed to what they believe to be most in the public interest. In light of the potential intrusion into agency operations, Congress included one catchall exception to preclude recovery of “[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”120 To determine what constitutes a discretionary function of government under the FTCA, courts historically first looked to whether the agency action stemmed from a decision at the planning as opposed to the operational level. In Dalehite v. United States,121 those injured in a tragic accident in Texas caused by explosion of fertilizer stored for export at a government facility sued the government, alleging negligence in how the fertilizer was stored. The Court opined that the discretion protected in the Act referred to “the discretion of the executive or the administrator to act according to one’s judgment of the best course,” and held that the exception protected any act made “at a planning rather than operational level.”122 The Court dismissed the action, finding that the storage decisions had been made at a high enough level.123

The key was not solely whether a high-level official made the decision, although that factor was relevant. After all, the Attorney General’s decision to drive a car at 95 MPH may be authoritative but insufficiently reflect planning to qualify for the exception. Rather, the Court required a semblance of a plan and fidelity in execution of that plan.124

Courts also construed the discretionary function consistent with dicta in Dalehite that “it was not contemplated that the

120 Id. § 2680(a). 121 Dalehite v. United States, 346 U.S. 15, 15 (1953). 122 Id. at 34, 42. 123 Id. at 42. 124 Id. at 40.

2021] Limits on the Unitary Executive 111 Government should be subject to liability arising from acts of a governmental nature or function.”125 The Supreme Court subsequently, however, rejected the distinction between governmental and proprietary acts in Indian Towing Co. v. United States as “inherently unsound”126 but did not come up with any new formulation.

The Court in the intervening decades has modified the planning versus operational level distinction to focus more narrowly on the type of decision reached in determining when the discretionary function exception applies. In Berkovitz v. United States, the negligence claim arose when an infant contracted polio after ingesting an oral polio vaccine that the FDA had approved for release to the public.127 Plaintiffs alleged that the FDA was negligent in inspecting and approving a particular batch of polio vaccines.128

The Supreme Court determined that federal courts should apply a two-prong test when analyzing whether the discretionary function exception applies:

[A] court must first consider whether the action is a matter of choice for the acting employee. This inquiry is mandated by the language of the exception; conduct cannot be discretionary unless it involves an element of judgment or choice. . . . [The] exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.129

If the challenged conduct is a matter of choice, “a court must [then] determine whether that judgment is of the kind that the discretionary function exception was designed to shield[:] . . . governmental actions and decisions based on considerations of public policy.”130 The Court explained that when existing regulations “allow room for

125 Id. at 28. 126 Indian Towing Co. v. United States, 350 U.S. 61, 65 (1955). 127 Berkovitz v. United States, 486 U.S. 531, 531 (1988). 128 Id. at 540. 129 Id. at 536. 130 Id. at 536–37.

112 Vermont Law Review [Vol. 46:086 implementing officials to make independent policy judgments, the discretionary function exception protects the acts taken by those officials in the exercise of this discretion.”131 The Court concluded that insufficient information existed in the record to determine whether the agency’s decision to approve the vaccine lot stemmed from considerations of public policy.132 Some cases are more clear-cut: auto accidents fall outside the discretionary function exception133 as does most medical malpractice.134 But any action stemming from broader notions of the public welfare likely is protected.

The Supreme Court in United States v. Gaubert135 soon after amplified that the choice protected had to be “grounded in the policy of the regulatory regime” and be “susceptible to policy analysis.”136 In reviewing a negligence claim based on the bank regulatory agency’s failure to advise and help administer the savings and loan competently, the Court concluded that even those recommendations by the agency in the day-to-day management of a savings and loan were susceptible to policy analysis and therefore shielded by the exception.137

Courts in applying the discretionary function exception have stressed that discretion by itself is not sufficient to warrant immunity. Rather, the government’s act, no matter how discretionary, must flow from political, economic, or social concerns. For instance, in Cope v. Scott, the D.C. Circuit stated that, although the decision whether to warn about dangerous road conditions was discretionary, the decision on how to implement the warning did not involve the type of discretion

131 Id. at 546. See also United States v. S.A. Empresa de Viacao Aerea Grandense (Varig Airlines), 467 U.S. 797, 798 (1984) (“Congress wished to prevent ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.”). 132 On the other hand, if the officials knowingly released unsafe lots, no discretion existed, and the exception would not come into play. S.A. Empresa de Viacao Aerea Grandense (Varig Airlines), 467 U.S. at 798. 133 See Dolan v. United States Postal Service, 546 U.S. 481, 487–88 (2006) (stating that crashes quintessentially are not protected under the exception). 134 See, e.g., Wheat v. United States, 860 F.2d 1256, 1258 (5th Cir. 1988) (reaffirming that most malpractice claims are not protected by the discretionary function exception). 135 United States v. Gaubert, 499 U.S. 315, 315 (1991). 136 Id. at 325. 137 Id. at 328–29, 331–33.

2021] Limits on the Unitary Executive 113 protected by the exception because the implementation decision stemmed from “engineering and aesthetic” concerns as opposed to public policy.138 In Andrulonis v. United States the court rejected application of the discretionary function exception because the claims against a government immunologist “involved ‘the kind of judgment that requires the knowledge and professional expertise of [the] government employees who implement government policies’” but not a balancing of public policy concerns.139 Similarly, in Walen v. United States,140 the court rejected application of the exception because the government’s allegedly faulty maintenance causing an injury in a public park arose from “professional and scientific assessments” rather than a balancing of competing preservation and safety interests.141 The government engineers’ actions undoubtedly are important, and indeed the negligent performance of such actions can lead to significant governmental liability and even expose the President to some political embarrassment. Nonetheless, that professional judgment is not the type that courts have deemed critical to safeguard from judicial probing.

B. Federal Service Labor Management Relations Statute

Analysis of executive branch prerogatives under the Federal

Service Labor Management Relations Statute (“Statute”) is remarkably similar. Congress enacted the Statute in 1978142 to establish a structure in which federal employees can collectively bargain with management over a wide range of issues, such as safety and grievance procedures. Striking is not permitted, but continuing disputes must be resolved by an independent impasse panel.143 The Statute permits employees to organize, but that right does not extend

138 Cope v. Scott, 45 F.3d 445, 451–52 (D.C. Cir. 1995); see also Marlys Bear Medicine v. United States, 241 F.3d 1208, 1214 (9th Cir. 2001) (“[A]ctions based on technical or scientific standards are not the kind of judgment protected from liability.”). 139 Andrulonis v. U.S., 724 F. Supp. 1421, 1498 (N.D.N.Y. 1989) (quoting Aslakson v. United States, 790 F.2d 688, 693 (8th Cir. 1986)). 140 Walen v. United States, 246 F. Supp. 3d 449, 462 (D.D.C. 2017). 141 Id. at 464–66. 142 5 U.S.C. § 7101(a)(1). 143 Id. § 7101(a)(2).

114 Vermont Law Review [Vol. 46:086 to a managerial official, defined as “an individual employed by an agency in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency.”144 Analogous to the FTCA context, the Statute recognizes that congressional interference with certain governmental functions would undermine the Article II interest in management of the executive branch. The FLRA has explained that managerial officials are those who “(1) create, establish or prescribe general principles, plans or courses of action for an agency; (2) decide upon or settle upon general principles, plans or course of action for an agency; or (3) bring about or obtain a result as to the adoption of general principles, plans or course of action for an agency.”145 Such officials do not enjoy congressional protections.

In accordance with that statutory definition, the FLRA has held, for example, that computer specialists and procurement contract negotiators may organize.146 Both positions are important, and officeholders use discretion in the first instance by developing the technical specifications required by agencies and the benchmarks for evaluating computer hardware and, in the second, by negotiating contracts that bind the government. Nonetheless, because the employees did not “formulate, determine, or influence . . . the policies of the agency, [they] cannot be deemed management officials within the meaning of [the Statute].”147 The employees are “valuable experts or professionals whose actions assist in implementing, as opposed to shaping, the policies in connection with each procurement.”148 Under the Statute, policy formation—not professional status‚—is key.

Congress borrowed the managerial official exclusion from judicial elaboration of the National Labor Relations Act, which was adopted over 40 years previously to govern labor-management relations in the private sector.149 Under the Act, the NLRB assesses

144 Id. § 7103(a)(11). 145 Department of Navy, Automatic Data Processing Selection Office, 7 F.L.R.A. 172, 177 (1981). 146 Id. at 181. 147 Id. 148 Id. 149 See NLRB v. Bell Aerospace, 416 U.S. 267, 289 (1974) (construing 29 U.S.C. § 151–152).

2021] Limits on the Unitary Executive 115 which employees are too closely allied with management to warrant the protections in the Act.

In General Dynamics,150 the NLRB recognized that private businesses frequently relied on the technical and professional expertise of employees, such that nonmanagerial employees contribute to managerial decisions by virtue of their expertise. The NLRB noted that “[w]ork which is based on professional competence necessarily involves a consistent exercise of discretion and judgment . . . . Nevertheless, professional employees plainly are not the same as managerial employees.”151 The NLRB continued that “[l]ikewise technical expertise in administrative functions which may involve the exercise of judgment and discretion does not confer executive-type status upon the performer. A lawyer or certified public accountant . . . may well cause a change in company direction, or even policy, based on the professional advice alone, which, by itself, would not make him managerial.”152 Accordingly, the NLRB held that systems engineers who exercised wide technical discretion could organize:

The fact that the employees involved may handle the entire project assigned to them undoubtedly is a tribute to their organizational skills and abilities, but has little, if any, bearing on managerial authority. Their discretion and decisions are predicated solely on a technical base, and culminate in technical reports or recommendations to managerial superiors who, in turn, determine, establish, and carry out management direction, i.e., “policy,” by approving or disapproving the recommendations.153

Under that definition, the NLRB has held that port captains overseeing international transport are not managerial even though they exercise

150 General Dynamics, Corp., 213 N.L.R.B. 851, 857 (1974). 151 Id. 152 Id. at 857–58. 153 Id.; see Bulletin Co., 226 N.L.R.B. 345, 358 (1976) (holding that editorial writers are not managerial employees, despite the wide discretion exercised).

116 Vermont Law Review [Vol. 46:086 discretion over a ship’s stowage plans, largely because they are to abide by superiors’ policy choices.154 And professors at universities merit the protections of the Act if “the discretion exercised by core faculty members, both individually and collectively, regarding such matters as student recruitment and admissions, completion of degree requirements, and curriculum, clearly is indicative of professional rather than managerial status.”155 NLRB decisions thus mirror those of the FLRA in holding that the discretion exercised by professionals by itself does not make individuals managers within the labor-management statutes.

As with the FTCA discretionary function exception, the labor-management relations cases recognize that the President must superintend closely only those subordinate officials who fashion social, economic, or political policy. Management relies on professional judgments and facts to mold policy but need not, and arguably should not, control those facts.

C. ALJs and Discretion

A key lesson emerges from the discretionary function

exception and labor-management cases. In protecting the executive branch in those two very different contexts, the focus has been on whether the executive branch officer’s tasks, no matter how important, reflect the social, political, and economic analysis that is the hallmark of executive authority. Although an ALJ’s factfinding is far from mechanical, it involves little of the economic or social forecasting that is the staple of the administrative state. Historical assessment of what happened, when, and to whom simply does not implicate the social, political, or economic analysis that should be tied to the President. Most statutes and regulations leave ALJs with no discretion but to follow previously established rules.156 Factfinding, of course, demands

154 Evergreen Am. Corp. v. NLRB, 362 F.3d 828, 837–40 (D.C. Cir. 2004). 155 Goddard College, 234 N.L.R.B. 1111, 1113 (1978); Elmira College, 309 N.L.R.B. 842, 848 (1992); see also NLRB v. Yeshiva University, 444 U.S. 672, 686–90 (1980) (holding that professors in that particular university exercised a governing hand in university affairs and therefore should be considered managerial). 156 See Hearings, Appeals, and Litigation Law (HALLEX) I-1-0-3 (noting that the agency has directed ALJs to adhere to a comprehensive manual on all matters of

2021] Limits on the Unitary Executive 117 judgment but not policy formation. Viewed another way, ALJs in assessing facts can determine whether a pitch was a ball or strike157 but lack discretion to determine a new category.158

Moreover, the ALJ factfinding is not binding. Under the APA, affected parties can appeal any adverse judgment to the agency, and the agency may affirm or reverse. Indeed, the agency can rehear any contentious dispute anew. For example, the Social Security Administration (SSA) has the power to review ALJ decisions sua sponte to ensure that prior agency policy is pursued faithfully.159 Agencies defer widely to ALJ factfinding, which elevates its importance. But the power of agencies to overrule ALJs limits any ALJ inclination to engage in adventurous factfinding. And no ALJ determination is final until the agency has an opportunity to review the case. The Supreme Court in Lucia held that the lack of finality did not rob ALJs of officer status,160 but that is not to ignore that the agency’s power to change an ALJ’s findings suggests that it is the agency head who arguably should be accountable to the President, not that the agency heads should be able to remove ALJs at will. The agency’s power to deny any authority to ALJ findings itself represents a critical control function.

The fact that the executive branch has engaged in decades-long collective bargaining with ALJs reinforces that presidents or their proxies need not be able to remove ALJs at will.161 The Association of Administrative Law Judges, for example, has been a union for over

statutory interpretation, regulatory interpretation, and even with respect to how to assess facts). 157 Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005). 158 See SSA, Preface to Social Security and Acquiescence Rulings, https://www.ssa.gov/OP_Home/rulings/rulings-pref.html (last visited Dec. 21, 2021) (noting that the SSA has directed ALJs to follow administratively set policy even when not reached through notice and comment rulemaking because “Social Security Rulings . . . are binding on all components of the SSA”). 159 See 20 C.F.R. §§ 404.969(a)–(b), (1977) (empowering the agency to select a sampling of cases to review pre-effectuation). 160 See Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018). 161 See Ass’n of Admin. Judges v. Colvin, 777 F.3d 402, 403 (7th Cir. 2015) (relating the importance of collective bargaining to ALJs).

118 Vermont Law Review [Vol. 46:086 20 years, representing over 1,000 ALJs, principally in the SSA.162 The union engages in collective bargaining on behalf of its members, representing them in unfair labor practice proceedings, in grievances, and in court. The union is affiliated with the International Federation of Professional and Technical Engineers of the American Federation of Labor and Congress of Industrial Organizations.163 Such history, as the Court in Seila Law pointed out,164 strongly militates in favor of limiting presidential control over ALJ functions. Bargaining over employment conditions reflects the reality that the ALJs’ judgment is not linked to the critical economic, social, and political policy that solely the President under Article II must superintend. As the Supreme Court explained in Collins, the President’s removal authority “works to ensure that . . . subordinates serve the people effectively and in accordance with the policies that the people presumably elected the President to promote.”165

To be sure, a divided FLRA recently reversed course and held that IJs should be considered managerial officials under the Statute.166 The FLRA earlier had determined that IJs were not managerial because “in arriving at their decisions, Immigration Judges are required to apply immigration laws and regulations, . . . their decisions are not published and do not constitute precedent. . . . [and] the decisions are binding only on the parties to the case, are ‘routinely’ appealed, and are subject to de novo review.”167 Moreover, the FLRA in its most recent decision agreed that the Supreme Court’s decision in Lucia by

162 Social Security Relents and Agrees to Return to Bargaining Table With Judges’ Union, AALJ (June 16, 2021), https://d2fwhheo3hasol.cloudfront.net/wp-content/uploads/bsk-pdf-manager/2021/07/Press_Release_Social_Security_Relents_and_Agrees_to_Return_to_Bargaining_Table_6_16_21.pdf (noting that the AALJ represents “approximately 1,200 judges across 160 offices who preside in Social Security disability hearings across the country”). 163 Association of Administrative Law Judges, BALLOTPEDIA, https://ballotpedia.org/Association_of_Administrative_Law_Judges (last visited Dec. 8, 2021). 164 Seila Law LLC v. CFPB, 140 S.Ct. 2183, 2236 (2020). 165 Collins v. Yellen, No. 19-422, slip op. at 27 (June 23, 2021). 166 U.S. Dep’t of Just. Exec. Off. for Immigr. Rev., 71 F.L.R.A. 1046, 1049 (Nov. 2, 2020). 167 U.S. Dep’t of Just. Exec. Off. for Immigr. Rev., 56 F.L.R.A. 616, 618, 622 (2000).

2021] Limits on the Unitary Executive 119 itself did not call for reversal, because “whether IJs are ‘officers’ under the Constitution is not relevant in determining if they are or are not management officials.”168 Rather, what is critical is an assessment of “the duties and responsibilities of the individual to determine if he or she is a management official under the Statute.”169

Nonetheless, the FLRA reversed its prior conclusion and the decision below by its Regional Director170 because it had “failed to recognize the significance of IJ decisions and how those decisions influence Agency policy. . . . [namely] by interpreting immigration laws when they apply the law and existing precedent to the unique facts of each case.”171 The FLRA did not purport to alter its approach to determine managerial official status, nor did it reconsider its prior determinations distinguishing between managerial and professional officials. To the FLRA, the facts that IJs do not make law and do not render final decisions were not dispositive. Rather, the FLRA relied on the analogy between district and appellate courts, quipping that “arguing that district court decisions do not shape the law while appellate court decisions do . . . is nonsensical.”172 The dissent, puzzled by the reversal in policy, stated that “IJs do not make policy, but instead, only assist in the implementation of agency policy,”173 and thus should not be considered managerial officials under the Statute. To the dissent, the majority’s conclusion “is the antithesis of reasoned decision making.”174 The Biden Administration has withdrawn

168 U.S. Dep’t of Just. Exec. Off. for Immigr. Rev., 71 F.L.R.A. at 1047–48. 169 Id. at 1047. 170 The Regional Director acknowledged that “IJs have the ability to exercise discretion in their decision making, bound by the facts of their cases and the law, regulation, and BIA decisions that they are required to follow.” Id. at 1055. In the Regional Director’s view, however, that limited discretion did not convert the judges into managers. The Director explained that “having recommendations generally accepted by superiors does not, on its own rise to the level of ‘influential’ within the meaning of the Statute.” Id. at 1063. In short, because immigration judges “do not create policy and their decisions are not precedential,” they cannot be considered management. Id. at 1064. 171 Id. at 1048. 172 Id. at 1049. 173 Id. at 1051 (DuBester, dissenting). 174 Id. at 1052.

120 Vermont Law Review [Vol. 46:086 opposition to reconsidering of the decision.175

Despite the recent FLRA reversal, the parallels between the Article II removal issue and managerial official status are clear. Factfinding should not make an administrative judge a management official because the judge plays no direct role in future agency policy formulation. If the ALJs have no common law authority, they must strictly apply the rules and regulations set forth by agency leadership.176 The FLRA correctly noted that IJs can influence the agency’s ultimate policy, but many professional employees influence agency policy through their expertise.

Indeed, historical application of the managerial official characterization recognized that influence by itself—as with ALJs—does not determine which officials can organize under the Statute. Rather, only those employees fashioning economic, political, or social policy are precluded from organizing—the same type of discretion that cannot be second-guessed under the FTCA. Under the unitary executive theory, the President should closely superintend those who make policy, not those who apply such policy to the facts at hand.177 The FTCA and labor-management parallels thus converge in strongly suggesting that ALJ functions, however important, are not those that Article II requires to be under the President’s thumb.

The distinction between policymaking and professional

175 David Wiessner, Biden Admin Won’t Oppose Bid to Revive Immigration Judges Union, REUTERS (June 28, 2021), https://www.reuters.com/legal/litigation/biden-admin-wont-oppose-bid-revive-immigration-judges-union-2021-06-28/. 176 ALJs in several agencies, as in the FTC, exercise greater responsibility in applying open-ended provisions such as when determining—at least as an initial matter—whether the conduct reviewed constitutes an unfair trade practice under 15 U.S.C. § 45 (2018). 177 In comparison, in U.S. Dep’t of Just. Exec. Off. for Immigr. Appeals, 47 F.L.R.A. 505, 506–11 (1993), the FLRA held that members of the Board of Immigration Appeals were managerial officials. Members of the Board can issue final decisions, their decisions create precedent, and the decisions are published. The FLRA reasoned that “the Board has broad discretionary authority to administer the immigration laws through the issuance of precedential and non-precedential final decisions.” Id. at 509. The FLRA continued that the Board “effectively creates and establishes general agency principles which guide the outcome of future immigration decisions and establish Agency policy.” Id. The contrast between the policymaking of Board members and IJs is clear.

2021] Limits on the Unitary Executive 121 expertise perhaps explains Congress’s decisions soon after ratification of the Constitution to delegate adjudicative duties outside presidential supervision.178 Moreover, that distinction sheds light on why the Supreme Court in Myers, Humphrey’s Executor, and even Free Enterprise Fund carved out adjudicative duties from other executive branch functions that the President must closely superintend through the plenary removal authority. Viewed another way, the Court in Humphrey’s Executor may have been half right. Although factfinding is backward-looking and involves only modest policymaking, the President should closely superintend officials who instead assess economic, social, and political factors in fashioning policy that binds the nation. Congress’s interest in insulating ALJs from at-will removal can readily be reconciled with Article II.

From a functional perspective, for the public to hold the President accountable for factfinding within the government would be perverse. The public should care whether the factfinders are competent, courteous, and more, but they need not tie the factfinding itself to the President. No one assesses the President on Election Day based on whether the President was personally involved in factfinding. Indeed, private parties would not want the President to be involved in finding facts in their disputes with the government. The test in Morrison v. Olson as applied here is whether the independent factfinding leaves the President with “sufficient control . . . to ensure that [he or she] is able to perform his [or her] constitutionally assigned duties.”179 Given the ALJs’ lack of “any authority to formulate policy for the Government,”180 Congress can choose to insulate them from at-will removal. Thus, from the perspective of almost any functionally based unitary executive theory, the President does not and should not stand accountable for ALJ factfinding.181

178 See supra text accompanying notes 89–99. 179 Morrison v. Olson, 487 U.S. 654, 696 (1988). 180 Id. at 671. 181Consider, as well, that some defenders of the unitary executive argue that the President has the right to take over and nullify all tasks delegated by Congress to subordinate officials within the executive branch. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 YALE L. J. 541, 596 (1994). The executive may be unitary without having the power to decide facts in disputes against itself.


On the other hand, for those judicial officials who make decisions binding the government, a link to presidential control is more critical, at least under some variants of unitary executive theory.182 For example, the patent administrative judges assessed in Arthrex made binding decisions on patentability on inter partes review.183 And agency heads such as SEC Commissioners and NLRB members (though not their ALJs) set government-wide policy through the policies they promulgate, as well as through their interpretation of statutes and regulations.184 Thus, from a functional approach to the unitary executive, the constitutional case for congressional protection for subordinate judicial officials’ tenure is compelling,185 and the historical record points in the same direction.

CONCLUSION

There is no agreed-upon formulation for the unitary executive. Functional, formal, and historical considerations inform different approaches both on and off the Court. Nonetheless, ALJ independence can readily be reconciled with most versions of the unitary executive because factfinding does not involve the economic, political, and social policymaking which, under the unitary executive, must be tied to the Chief Executive. Congress need not protect such administrative officials from at-will dismissal. But a legislative decision to protect

182 See, e.g., United States v. Arthrex, No. 94-1434, slip op. 12–15 (U.S. June 21, 2021) (focusing on importance of strengthening the link between the President and those officers with the power to bind the executive branch). 183 Of course, the private arbitrators under the Patent Act of 1793 did as well. 35 U.S.C. § 6(c) (2018). 184 See, e.g., SEC v. Chenery Corp., 332 U.S. 80, 92–93 (1947); see also Joan Flynn, The Costs and Benefits of “Hiding the Ball”: NLRB Policymaking and the Failure of Judicial Review, 75 B.U. L. REV. 387, 387 (2005). 185 Indeed, after concluding in Arthrex that the power of administrative patent judges to issue final decisions was incompatible with inferior officer status, the Court as a remedy ensured that the Director of the Patent and Trademark Office, a superior officer, could review the judges’ decisions rather than strike the judges’ protection from at will removal as the lower court had resolved. United States v. Arthrex, No. 19-1434, slip op. at 20–22 (U.S. June 21, 2021). Arthrex thus implicitly recognized the importance of Congress’s decision to insulate subordinate judicial officials from the President’s at-will removal authority.

2021] Limits on the Unitary Executive 123 professional or technical efforts of governmental officials should be upheld because, while any competent government leader must rely on professional and technical determinations, the policy call remains for him or her to make.

ROLLING BACK AND LOSING GROUND: EPA REGULATION AND ENFORCEMENT IN THE TRUMP

ERA

Joel A. Mintz* INTRODUCTION ................................................................................. 124 I. AN OVERVIEW OF TRUMP-ERA REGULATORY ROLLBACKS .......... 125 II. SOME ILLUSTRATIVE POLICY REVERSALS IN THE TRUMP YEARS .............................................................................................. 128

A. Vehicle Mileage Standards ..................................................... 128 B. Interpreting “Waters of the United States” ........................... 130 C. Establishing the Two-For-One Regulation Policy ................. 134

III. EPA ENFORCEMENT IN THE TRUMP ERA .................................... 141 IV. REPAIRING THE DAMAGE: HOW CAN EPA REGULATION AND ENFORCEMENT BE REFORMED IN THE POST-TRUMP ERA EPA? ....... 150 CONCLUSION .................................................................................... 153

INTRODUCTION

The Presidency of Donald J. Trump has been a time of retrenchment, disappointment, and decline for the United States Environmental Protection Agency (EPA). Due to illegitimate and sometimes illegal public policies, mismanagement, willful blindness to science, and poor leadership, the Agency has fallen well behind in implementing its longstanding mission of protecting the nation’s air, water, and land. As a result, the health of Americans and the quality of our air, water, and climate have suffered. This Article examines some of the key trends, developments, and events at EPA over the past four years, both with respect to the Agency’s regulatory policies and its enforcement efforts. It begins, in Part I, with an overview of the regulatory rollbacks that have occurred at EPA since January 2017. In Part II, I will focus on three exemplary Trump Administration regulatory changes and their broader implications: loosening of vehicle mileage standards intended to

* Professor of Law Emeritus and C. William Trout Senior Fellow, Nova Southeastern University College of Law; Member-Scholar and Board Member, Center for Progressive Reform, and Elected Member, American Law Institute.

2021] Rolling Back and Losing Ground 125 improve the nation’s “carbon footprint,” redefining Waters of the United States to narrow the Clean Water Act’s regulatory reach, and the Trump Administration’s overall policy requiring federal agencies to eliminate two existing regulations each time they promulgated a new one. In Part III, I will summarize some critical developments and trends in EPA’s enforcement work over the past four years. After a comparison of the Trump and Obama administrations’ enforcement approaches, I will critique the EPA enforcement policies adopted during the Trump Administration and the substance and ultimate results of EPA’s 2020 “COVID-19 Enforcement Policy.” Finally, in Part IV, I will suggest ways in which the damaging administrative failings of the 45th President’s EPA can be ameliorated in a new administration by the adoption and prudent implementation of a discrete set of reforms.

I. AN OVERVIEW OF TRUMP-ERA REGULATORY ROLLBACKS The Trump Administration has systematically undone an extraordinary number of environmental regulations. An extensive analysis published in the New York Times on July 15, 2020, reported that, to that point, the Trump Administration reversed, revoked, or otherwise rolled back nearly 70 environmental rules and regulations.1 Moreover, more than 30 additional rollbacks were in progress when the New York Times published that comprehensive analysis—based on research conducted at Harvard and Columbia law schools.2 These regulatory reversals have affected a number of critical areas, including air quality, water pollution, toxic substances, infrastructure, and protecting animal species. States and environmental NGOs have challenged many of the rollbacks in court.3 Most of those lawsuits are currently pending. Thus, at the time of this writing, the extent to which those regulatory reversals will ultimately become effective is unclear. Nonetheless, the Trump Administration’s regulatory rollbacks,

1 Nadja Popovich, Livia Albeck-Ripka & Kendra Pierre-Louis, The Trump Administration Rolled Back More Than 100 Environmental Rules. Here’s the Full List, N.Y. TIMES, www.nytimes.com/interactive/2020/climate/trump-environment-rollbacks-list.html (last updated Jan. 20, 2020). 2 Id. (providing 14 additional rollbacks in progress as of October 2020). 3 Id.

126 Vermont Law Review [Vol. 46:124 without a doubt have—at minimum—significantly delayed the nation’s efforts to improve its air and water quality, have set back needed national and global progress on tackling climate change, and have harmed the health of a great many Americans. With regard to air pollution—in addition to weakening Obama-era fuel-economy and greenhouse-gas standards for passenger cars and light trucks, which I will consider further in Part II.A—the Trump EPA limited some 26 pre-existing EPA regulations.4 The most prominent of these air-quality-related regulatory cutbacks included a proposed rule seeking to replace the Obama Administration’s Clean Power Plan limitations on carbon emissions from power plants that burn fossil fuels.5 The proposed rule would withdraw the legal justification for a rule limiting mercury emissions from coal-fired power plants;6 would revoke California’s authority to set stricter automobile tailpipe emission standards than the federal government;7 would cancel a requirement for reporting methane emissions from oil and gas companies;8 and would revise and repeal a rule limiting methane emissions on public lands from venting and flaring at fracking operations.9 Very significant de-regulation also occurred with respect to water-quality protections. Beyond scaling back pollution protections for numerous tributaries and wetlands10—a topic to be explored further

4 The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021–2026 Passenger Cars and Light Trucks, 83 Fed. Reg. 42,986 (proposed Aug. 24, 2018) (to be codified at 40 C.F.R. pts. 85, 86). 5 Emission Guidelines for Greenhouse Gas Emissions From Existing Electric Utility Generating Units; Revisions to Emission Guideline Implementing Regulations; Revisions to New Source Review Program, 83 Fed. Reg. 44,746 (proposed Aug. 31, 2018) (to be codified at 40 C.F.R. pts. 51, 52, 60). 6 National Emission Standards for Hazardous Air Pollutants for Source Categories, 85 Fed. Reg. 31,286 (May 22, 2020) (to be codified at 40 C.F.R. pt. 63). 7 The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule Part One: One National Program, 84 Fed. Reg. 51,310 (Sept. 27, 2019) (codified at 40 C.F.R. pts. 85, 86; 49 C.F.R. pts. 531, 533). 8 Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Reconsideration, 85 Fed. Reg. 57,398, 57,418 (Sept. 15, 2020) (to be codified at 40 C.F.R. pt. 60). 9 Emission Standards for New, Reconstructed, and Modified Sources Review, 84 Fed. Reg. 50,244, 50,246 (proposed Sept. 24, 2019) (codified at 40 C.F.R. pt. 60). 10 The Navigable Waters Protection Rule: Definition of “Waters of the United

2021] Rolling Back and Losing Ground 127 below—EPA withdrew a proposed rule that was intended to reduce pollutant discharges at sewage treatment plants.11 EPA also withdrew a proposed rule that would have required groundwater protection for uranium mines.12 The Agency encouraged Congress to revoke a rule that prevented coal companies from discharging mining waste into local streams.13 EPA also proposed to extend the useful life of unlined coal-ash holding areas that can spill their contents because they lack a protective overlay,14 and it proposed doubling the time given local governments to remove lead pipes from local water systems—like those in Flint, Michigan—that contain high levels of toxic lead.15 Regarding toxic substances and safety measures at industrial facilities, EPA’s regulatory record was similarly dismal in the Trump era. The Agency rejected a proposal to ban chlorpyrifos, a pesticide linked to developmental disabilities in children.16 EPA ignored legislation mandating safety assessments for dry-cleaning solvents and other potentially toxic compounds.17 The Agency also reversed a rule requiring upgrades of braking systems for trains that haul flammable

States,” 85 Fed. Reg. 22,250, 22,259 (Apr. 21, 2020) (33 C.F.R. pt. 328). 11 Clean Water Act Methods Update Rule for the Analysis of Effluent, 84 Fed. Reg. 56,590, 56,599 (proposed Dec. 23, 2019) (codified at 40 C.F.R. pt. 136). 12 Ground Water Protection at Uranium In Situ Recovery Facilities, 84 Fed. Reg. 574, 577 (proposed Jan. 31, 2019) (codified at 10 C.F.R. pt. 40). 13 Coral Davenport, Trump Removes Pollution Controls on Streams and Wetlands, N.Y. TIMES (Jan. 22, 2020), https://www.nytimes.com/2020/01/22/climate/trump-environment-water.html?smid=url-share. 14 Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Enhancing Public Access to Information; Reconsidering of Beneficial Use Criteria and Piles, 84 Fed. Reg. 40,353, 40,362 (proposed Oct. 15, 2019) (codified at 40 C.F.R. pt. 257). 15 See Use of Lead Free Pipes, Fittings, Fixtures, Solder, and Flux for Drinking Water, 85 Fed. Reg. 54,235, (Sept. 1, 2020) (to be codified at 40 C.F.R. pts. 141, 143) (delaying the full replacement of water systems lead service lines until September 1, 2023, 32 years after the EPA published the Lead and Copper rule of 1991). 16 Chlorpyrifos; Final Order Denying Objections to March 2017 Petition Denial Order, 84 Fed. Reg. 35,555 (July 24, 2019) (codified at 40 C.F.R. pt. 180). 17 Approval of Section 112(1) Authority for Hazardous Air Pollutants; Perchloroethylene Air Emission Standards for Dry Cleaning Facilities; State of Vermont, 83 Fed. Reg. 9254 (proposed Mar. 5, 2018) (to be codified at 40 C.F.R. pt. 63).

128 Vermont Law Review [Vol. 46:124 liquids,18 removed heavy-metal-laden copper filter cakes from the government’s hazardous waste list,19 and rolled back requirements for improving safety at industrial plants that use hazardous chemicals.20 EPA also proposed limiting studies used for the purposes of rulemaking to only those that make data publicly available.21 This proposal, which produced an outcry from numerous scientists, would eliminate the use of many health studies that gather data while promising to protect the identity of study participants. Furthermore, the Trump Administration proposed changes in the way cost-benefit analyses are conducted that benefit industrial polluters by unreasonably exaggerating the cost of effective regulations while minimizing their potential benefits to the public.22

II. SOME ILLUSTRATIVE POLICY REVERSALS IN THE TRUMP YEARS

A. Vehicle Mileage Standards One of EPA’s most damaging regulatory retreats was its rollback of the vehicle mileage standards that the Obama Administration established to reduce the emission of greenhouse gases.23 There is a clear consensus among qualified scientists that global climate change is a cause of flooding, droughts, wildfires, sea-level rise, disease, and other severe and growing

18 Hazardous Materials: Liquefied Natural Gas by Rail, 85 Fed. Reg. 44,994, 45,017 (July 24, 2020) (to be codified at 49 C.F.R. pts. 172–174, 179–180). 19 Hazardous Waste Management System; Identification and Listing of Hazardous Waste, 82 Fed. Reg. 45,736 (Oct. 2, 2017) (codified at 40 C.F.R. pt. 261). 20 National Emission Standards for Hazardous Air Pollutants: Petroleum Refinery Sector, 85 Fed. Reg. 6,064, 6,066 (Feb. 4, 2020) (to be codified at 40 C.F.R. pt. 63). 21 Strengthening Transparency in Regulatory Science, 83 Fed. Reg. 18,768 (proposed Apr. 30, 2018) (to be codified at 40 C.F.R. pt. 30); see also Strengthening Transparency in Regulatory Science, 85 Fed. Reg. 15,396, 15,402 (proposed Mar. 18, 2020) (to be codified at 40 C.F.R. pt. 30). 22 Increasing Consistency and Transparency in Considering Costs and Benefits in the Rulemaking Process, 83 Fed. Reg. 27524 (proposed June 13, 2018) (to be codified at 40 C.F.R. ch. 1). 23 The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021 2026 Passenger Cars and Light Trucks, 85 Fed. Reg. 24,174, 24,182 (Apr. 30, 2020) (to be codified at 40 C.F.R. pts. 86, 600; 49 C.F.R. pts. 523, 531, 533, 536–537).

2021] Rolling Back and Losing Ground 129 problems. Motor vehicles are a significant source of greenhouse gases that cause climate change, and the vehicle mileage standards established in the Obama years would have meaningfully reduced those emissions. The Trump Administration’s rollback of vehicle mileage standards has been challenged in the federal courts. There is a strong argument that this far-reaching regulatory change contradicts a landmark U.S. Supreme Court decision, Massachusetts v. EPA, which established greenhouse gases as a pollutant subject to EPA regulation.24 The rollback also conflicts with an EPA finding that greenhouse gases endanger public health and welfare.25 Moreover, the Trump Administration’s primary rationale for freezing vehicle emission standards—an assertion that stricter standards will make vehicles less safe—is shaky at best. The Trump regime’s reasoning relies on two highly questionable assumptions: that automobile manufacturers will inevitably spend less money on research, development, and safety if they are compelled to meet more stringent vehicle mileage standards and that most consumers will spend most or all of the money they may save if emission standards are rolled back on improving the safety of their own cars and trucks.26 There is scant evidence for these predictions. The proposed regulatory rollback further assumes that to comply with stricter vehicle mileage requirements, auto-makers will attempt to reduce the mass and weight of larger cars and trucks by constructing them from reinforced aluminum.27 That is a highly unlikely prediction. The auto industry never indicated it planned to make such a manufacturing change. The Obama Administration conducted extensive scientific

24 Massachusetts v. EPA, 549 U.S. 497, 532 (2007). 25 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed Reg. 66,496, 66,516 (Dec. 15, 2009) (codified at 40 C.F.R. pt. 1). 26 The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021–2026 Passenger Cars and Light Trucks, 85 Fed. Reg. 24,174, 24,176, 24,737, 24,742, 25,132, 25,136 (Apr. 30, 2020) (to be codified at 40 C.F.R. pts. 86, 600; 49 C.F.R. pts. 523, 531, 533, 536–537). 27 Id., 24,525.

130 Vermont Law Review [Vol. 46:124 research before promulgating its vehicle mileage standards.28 In watering down its standards, the Trump Administration blithely ignored the careful research that Obama Administration officials previously conducted. The Trump Administration’s regulatory actions regarding vehicle emissions is of a piece with Trump’s abrupt withdrawal from the promising (if still limited) Paris Agreement on Climate Change29 and with his administration’s reassignment of federal government scientists doing legitimate and needed research on the climate crisis.30 Taken together, these regrettable policies have brought our nation (and the world) considerably closer to a profound and lasting climate catastrophe.

B. Interpreting “Waters of the United States” The Trump Administration’s attempt to narrowly define the Clean Water Act’s jurisdictional scope was the latest development in a long-standing legal and political dispute.31 The Clean Water Act

28 Light-Duty Vehicle Greenhouse Gas Emissions Standards and Corporate Average Fuel Economy Standards; Final Rule, 75 Fed. Reg. 25,324, 25,326–27 (May 7, 2010) (codified at 40 C.F.R. pts. 85, 86, 600); 49 C.F.R. pts. 531, 533, 536, 537, 538) (referencing EPA findings that light duty vehicle fuel economy standards are necessary to address challenges of climate change, energy security, air quality, and cost savings). 29 See Lisa Friedman, U.S. Quits Paris Agreement: Questions and Answers, N.Y. TIMES (Jan. 20, 2021), https://www.nytimes.com/2020/11/04/climate/paris-climate-agreement-trump.html (documenting President Trump’s decision to leave the Paris Agreement and potential implications for the incoming Biden Administration regarding greenhouse gas emissions). 30 See Christopher Flavelle, Lisa Friedman, & Coral Davenport, Trump Administration Removes Scientist in Charge of Assessing Climate Change, N.Y. TIMES (Nov. 9, 2020), https://www.nytimes.com/2020/11/09/climate/michael-kuperberg-climate-assessment.html (discussing the removal of Dr. Michael Kuperberg, executive director of the U.S. Global Change Research Program); Brad Plumer & Coral Davenport, Science Under Attack: How Trump is Sidelining Researchers and Their Work, N.Y. TIMES (Dec. 28, 2019), https://www.nytimes.com/2019/12/28/climate/trump-administration-war-on-science.html (discussing the Trump Administration’s reduction in scientific involvement in federal policymaking, including halting studies, diminishing research influence, and challenging climate change research). 31 For a useful overview of legal and administrative developments that are components of this dispute, see Richard M. Glick & Oliver F. Jamin, Waters of the

2021] Rolling Back and Losing Ground 131 (CWA) regulates discharges into navigable waters, a term it defines as “Waters of the United States, including the territorial seas.”32 The statute does not define the latter term. Nonetheless, the legislative history of the Act makes clear that Congress intended the CWA’s jurisdiction to extend beyond waterways that are navigable-in-fact. Congress intended the term be given “the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.”33 Most of the disputes regarding the application of the term Waters of the United States have concerned wetland areas and intermittent streams that flow only during some times of the year. Regrettably, the Supreme Court’s treatment of the CWA’s jurisdiction with regard to those waters has been inconsistent and confusing. In United States v. Riverside Bayview Homes, the Court deferred to an Army Corps of Engineers’ policy that the Act covers wetlands adjacent to a traditionally navigable waterway regardless of whether flooding by the navigable waterway creates or affects the wet conditions that support plants requiring such conditions in the abutting wetlands.34 A divided Supreme Court refused to defer to the Army Corps and EPA interpretation of Waters of the United States in the next pertinent case it considered; however, in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the Court rejected the agencies’ rule applying the CWA to wetlands and waters that migratory birds used in crossing state lines.35 Reasoning that this administrative interpretation would raise serious constitutional questions and infringe upon state police powers, the Court opined that Congress had only intended for the Act to cover “waters that were or had been navigable-in-fact or which could reasonably be made so.”36

U.S.: Nearly 50 Years of Jurisdictional Uncertainty, and More to Come, 26 WATER L. 147, 148 (2019) (delineating the historical debate over the definition of Waters of the United States as exemplified by judicial challenges and changes between presidential administrations). 32 Clean Water Act § 502, 33 U.S.C. § 1362(7) (2018). 33 118 CONG. REC. 33,699 (1972). 34 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 135 (1985). 35 Solid Waste Agency N. Cook Cnty. v. U.S. Army Corps of Eng’g, 531 U.S. 159, 171–72 (2001). 36 Id. at 172.

132 Vermont Law Review [Vol. 46:124 A splintered Supreme Court also rejected the Army Corps’ interpretation in Rapanos v. United States.37 That case focused on whether CWA jurisdiction applies to non-navigable waters that neither abut a navigable water nor are hydrologically connected to one.38 The Court issued no majority opinion in this case. Writing for a plurality, Justice Scalia expressed concern about the constitutionality of a broad interpretation of the Act’s jurisdictional reach.39 His opinion took an extraordinarily narrow view of the statute. It held that the phrase “‘Waters of the United States’ includes only those relatively permanent, standing, or continuously flowing bodies of water forming ‘geographic features’ that are described in ordinary parlance as ‘streams, oceans, rivers [and] lakes.’”40 The statutory phrase does not include “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”41 In an influential concurring opinion in Rapanos, Justice Kennedy expressed a strikingly different view as to what test applies to CWA jurisdictional determinations. As Justice Kennedy saw it, the Army Corps of Engineers and EPA should determine on a case-by-case basis whether a waterway has a “significant nexus” to waters that are navigable-in-fact.42 For Justice Kennedy, such a nexus exists where the waterways in question “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”43 The Supreme Court’s failure to reach a definitive position as to the extent of the CWA’s jurisdictional coverage created confusion among lower courts and agencies. Moreover, administrative agency attempts to uniformly apply Justice Kennedy’s significant nexus test on a case-by-case basis proved resource-consumptive and difficult to implement for EPA and the Army Corps of Engineers due to the difficulty of compiling accurate data on relevant factors pertaining to

37 Rapanos v. United States, 547 U.S. 715, 731–32 (2006). 38 Id. at 729–30. 39 Id. at 738. 40 Id. at 739. 41 Id. 42 Id. at 782 (Kennedy, J., concurring). 43 Id. at 780 (Kennedy, J., concurring).

2021] Rolling Back and Losing Ground 133 the great number of waterways that flow in the United States. In 2015, the Obama Administration promulgated a new rule (the so-called “Clean Water Rule”) that increased the number of categorical-jurisdictional determinations to be made in classifying waterways, while minimizing the need for case-by-case analyses.44 Though controversial, this rule did at least provide greater clarity and stability with respect to the CWA’s jurisdictional reach. The Trump Administration, however, wasted little time in undercutting and ultimately dismantling Obama’s Clean Water Rule. Not long after taking office, President Trump signed an Executive Order encouraging the Army Corps of Engineers and EPA to interpret the term Waters of the United States consistently with Justice Scalia’s plurality opinion in Rapanos.45 Trump followed up by proposing and later adopting a new rule repealing the Obama interpretation of Waters of the United States and again adopting the narrow interpretation of that phrase that Justice Scalia favored in Rapanos.46 The Trump Administration’s position regarding Waters of the United States was surely consistent with President Trump’s announced preference for minimizing environmental regulation, dismantling President Obama’s environmental legacy, and honoring the preferences of regulated manufacturers and developers. However, this position is deeply flawed in important respects. In casting aside the Clean Water Rule, the Trump Administration ignored the vital social benefits of wetlands as natural flood-control areas, filters of pollutants, and nurseries of many aquatic species. Trump’s replacement rule also took no account of the natural interconnectedness of water systems and the crucial importance of isolated pockets of wetlands in the survival of numerous endangered species of plants and animals. Trump’s administrative redefinition of Waters of the United States stands as still

44 Clean Water Rule: Definition of “Waters in the United States,” 80 Fed. Reg. 37,054 (June 29, 2015) (codified at 33 C.F.R. pt. 328; 40 C.F.R. pts. 110, 112, 116, 117, 122, 232, 300, 302, 401). 45 Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, Exec. Ord. No. 13,778, 82 Fed. Reg. 12,497 (Mar. 3, 2017). 46 Definition of “Waters of the United States”-Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626, 56,630 (Oct. 22, 2019) (codified at 33 C.F.R. pt. 328; 40 C.F.R. pts. 110, 112, 116, 117, 122, 230, 232, 300, 302, 401).

134 Vermont Law Review [Vol. 46:124 another illustration of the Trump Administration’s blithe willingness to cast aside important environmental and social considerations and to ignore the critical work of scientists in establishing regulatory policies.

C. Establishing the Two-For-One Regulation Policy President Donald Trump’s stubborn antipathy to federal regulation manifested from the earliest weeks of his tenure in office. Only ten days after Trump’s inauguration, the new President issued Executive Order 13771, widely referred to as “The Two-For-One Order.”47 This document declared that “it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.”48 To accomplish this purpose, the Order decreed that “any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.”49 Executive Order 13771 further directed that, in future fiscal years, agency heads must identify off-setting regulations for each regulation that increases incremental costs, along with an estimation of the total costs or savings associated with each new regulation.50 Moreover, the Order outlines a process under which, in every fiscal year, the Director of the Office of Management and Budget (OMB) is to identify “a total amount of incremental costs” regarding new regulations that agencies will not be permitted to exceed “unless required by law or approved in writing by the [OMB] Director.”51 Executive Order 13771 was important, in part, for the tone it set regarding regulatory policy. This Order sent an unmistakable signal that the Trump Administration would be focused on the costs of regulations to regulated entities, with scant concern for the benefits of regulatory mandates to the public. With regard to environmental regulations, however, the Order appears to run afoul of a provision in

47 Reducing Regulation and Controlling Regulatory Costs, Exec. Order No. 13771, 82 Fed. Reg. 9,339 (Feb. 3, 2017). 48 Id. 49 Id. 50 Id. 51 Id. at 9,340.

2021] Rolling Back and Losing Ground 135 the National Environmental Policy Act (NEPA) that is all-too-rarely invoked, yet clear on its face.52 This NEPA subsection (hereafter “the NEPA interpretation mandate”) declared that: “The Congress authorizes and directs that, to the fullest extent possible: the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter.”53 When one considers whether (and if so, how) this subsection of NEPA applies to Executive Order 13771, several questions arise. First, what does the interpretation mandate actually mean? Is it binding on the regulations and actions of the federal executive branch? If so, what “policies set forth in this chapter” must executive branch officials apply as they establish regulatory policies and promulgate specific regulations?54 What is meant by the phrase “to the fullest extent possible”?55 Does the NEPA Interpretation Mandate generally apply to presidential Executive Orders? Is the Trump Administration’s Two-For-One Order a “policy, regulation, or public law[]” within the meaning of NEPA § 102(1)?56 And finally, does Executive Order 13771 conform to Congress’s directive in NEPA § 102(1)?57 In clear terms, Congress has not merely urged or suggested that the interpretation and administration of the laws referred to in the provision be consistent with NEPA’s policies—it has required that to occur. The subsection employs the verb “shall,” as opposed to “may”

52 National Environmental Policy Act of 1969, 42 U.S.C. § 4332 (1970). 53 Id. 54 Id. 55 Id. 56 Id. 57 The analysis that follows borrows extensively from Joel A. Mintz, The President’s Two For One’ Executive Order and the Interpretation Mandate of the National Environmental Policy Act: A Legal Constraint on Presidential Power, 87 UMKC L. REV. 681, 682–83, 687, 692–95 (2019) (applying a similar analysis to Executive Order 13771 and its compliance with § 102(1) of NEPA). See also Joel A. Mintz, Taking Congress’ Words Seriously: Towards a Sound Constructor of NEPA’s Long-Overlooked Interpretation Mandate, 38 ENV’T L. 1031, 1033 (2008); Eric Pearson, Section 102(1) of NEPA, 41 CREIGHTON L. REV. 369, 372, 374, 377–78 (2008) (arguing that § 102(1) of NEPA is not properly implemented by the Council of Environmental Quality or enforced by the judicial system in accordance with the Congressional mandate).

136 Vermont Law Review [Vol. 46:124 to describe what must occur.58 The first sentence of § 102 also indicates that Congress both “authorizes and directs” the sort of legal interpretation and administration that the provision mentions must occur.59 That phraseology further provides an unambiguous indication that Congress intended the provision to be nondiscretionary in its application. Thus, at a bare minimum, § 102(1) directs that the nation’s environmental laws—certainly including but by no means limited to NEPA itself—must be administered and interpreted in the fashion indicated in the provision. The phrase to the fullest extent possible has not been judicially construed as it pertains specifically to § 102(1). Nonetheless, the same phrase has been broadly construed in the context of applying the NEPA environmental impact statement (EIS) requirements in two influential cases. In Calvert Cliffs Coordinating Committee, Inc. v. Atomic Energy Commission,60 the D.C. Circuit took a strong stance with respect to the meaning of to the fullest extent possible:

We must stress as forcefully as possible that this language does not provide an escape hatch for footdragging agencies; it does not make NEPA’s procedural requirements somehow “discretionary.” . . . Indeed, the requirement of environmental consideration “to the fullest extent possible” sets a high standard for agencies, a standard that must be rigorously enforced by the reviewing courts.61

Five years following the Calvert Cliffs decision, the Supreme Court accepted the D.C. Circuit’s overall interpretation of § 102(1) in Flint Ridge Dev. Co. v. Science Rivers Ass’n of Oklahoma.62 The Flint Ridge Court stated:

58 National Environmental Policy Act of 1969 § 102(1), 42 U.S.C. § 4332. 59 Id. (emphasis added). 60 449 F.2d 1109, 1112–14 (D.C. Cir. 1971). 61 Id. at 1114. 62 426 U.S. 776, 776 (1976).

2021] Rolling Back and Losing Ground 137

NEPA’s instruction that all federal agencies comply with the impact statement requirement—and with all the other requirements of § 102—“to the fullest extent possible,” . . . is neither accidental nor hyperbolic. Rather, the phrase is a deliberate command that the duty NEPA imposes upon the agencies to consider environmental factors not be shunted aside in the bureaucratic shuffle.63

As noted previously, § 102(1) does not indicate on its face whether the type of interpretation (of policies, regulations, and public laws) that it mandates applies to those implemented by the President or federal agencies. NEPA’s legislative history fails to clarify that question. Nonetheless, there is good reason to conclude that this is indeed the case. As seen, § 102(1) directs that interpretation of United States public laws, along with the nation’s policies and regulations, must be in accordance with NEPA’s policies. The language of this subsection contrasts sharply with that of § 102(1), NEPA’s EIS provision, which contains a specific set of mandates that are expressly made applicable to “all agencies of the Federal Government.”64 The omission of any reference to “all agencies of the Federal Government” in § 102(1) appears highly significant. Had Congress wished to limit the applicability of the interpretation mandate to federal agencies, it could surely have drafted the subsection to declare that “all agencies of the Federal Government shall interpret and administer the policies, regulations, and public laws of the United States in accordance with the policies set forth in this chapter.” Its refusal to do so carries an unmistakable implication: § 102(1) applies to all governmental entities that are responsible for interpreting and administering our nation’s policies, regulations, and public laws, presumably including the President of the United States. Subsection 102(1) does not itself define the “policies set forth

63 Id. at 787. However, the Supreme Court limited the scope of NEPA to an extent, concluding that NEPA must give way where there is “clear and unavoidable statutory conflict” with another Congressional mandate. 64 Id. at 788; 42 U.S.C. § 4332.

138 Vermont Law Review [Vol. 46:124 in this chapter” to which the interpretation mandate applies.65 Nonetheless, it is apparent that those policies were fully expressed in sections 2 and 101 of NEPA, the portions of the statute to which that phrase evidently refers. Section 2 provides:

The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.66

In § 101(a), Congress declared that:

[I]t is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.67

Moreover, at § 101(b) NEPA provides that:

[I]t is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions,

65 National Environmental Policy Act of 1969 § 102(1), 42 U.S.C. § 4332. 66 42 U.S.C. § 4321. 67 42 U.S.C. § 4331(a).

2021] Rolling Back and Losing Ground 139

programs, and resources to the end that the Nation may—(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings; (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice; (5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and (6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.68

In considering the legality of the Two-For-One Order in light of the NEPA interpretation mandate, as the Order affects federal regulations that protect the environment, one must inquire whether the Order is a “policy, regulation or public law of the United States.”69 If so, the interpretation and administration of the Order must be carried out in accordance with NEPA’s policies. There seems little doubt that Executive Order 13771 falls within the meaning of that phrase. By imposing a regulatory regime that considers only the private costs of regulations without examining their benefits, the Two-For-One Order undoubtedly creates a new federal policy. Moreover, along with other regulations, the Order clearly affects the implementation of several federal environmental statutes—including the Clean Air Act,70

68 42 U.S.C. § 4331(b). 69 Id. § 4332. 70 See generally Clean Air Act, 42 U.S.C. § 7401(b) (initiating a national program to promote better air quality, public health, and public well-being thought the prevention and control of air pollution).

140 Vermont Law Review [Vol. 46:124 the CWA,71 the Toxic Substances Control Act,72 and the Endangered Species Act73—by constraining the authority of regulatory agencies to implement those statutes consistent with the statutes’ express purposes and goals. Given this, it is difficult to escape the conclusion that President Trump’s Two-For-One Executive Order is entirely inconsistent with the policies underlying NEPA. Rather than being calculated to “create and maintain conditions under which man and nature can co-exist in productive harmony,”74 Executive Order 13771 established a policy that contradicts a number of federal environmental policies. This misguided directive obsessively focuses on the costs of environmental regulations while taking no account of their important benefits to public health, welfare, and the environment. Its legality—as squared with environmental regulations—is in very serious doubt. The foregoing three Trump-era regulatory policies exemplify several common facets of how the Trump Administration approached environmental regulation. The Trump EPA’s rollback of vehicle mileage standards illustrates the Trump Administration’s willingness to ignore sound scientific analysis, its eagerness to overturn the Obama Administration’s environmental policies, and its utter failure to come to grips with the very real threats to human health and safety that global climate change poses. The Administration’s interpretation of Waters of the United States demonstrates its tendency to give environmental statutes the narrowest possible reading to benefit the regulated companies while ignoring environmental concerns. The Two-For-One Executive Order reflects the Trump Administration’s emphasis on the economic costs to industries of environmental regulation, even though it is at odds with straightforward congressional mandates. Sadly—singly or in combination—these themes

71 See generally Clean Water Act, 33 U.S.C. § 1252(a) (protecting waters for the public and the environment without regard to the costs of the regulation). 72 See generally Toxic Substances Control Act, 15 U.S.C. §§ 2601(a)–(c) (regulating industrial chemical substances and mixtures that present an unreasonable risk of injury to public health or the environment). 73 See generally Endangered Species Act, 16 U.S.C. § 1531(b) (requiring the federal government to prioritize conservation of threatened and endangered species). 74 42 U.S.C. § 4331(a).

2021] Rolling Back and Losing Ground 141 characterize very many of the environmental regulatory policies and approaches that prevailed throughout the Presidency of Donald Trump.

III. EPA ENFORCEMENT IN THE TRUMP ERA

Enforcement has been widely recognized as a critical component of implementation work. As Peter C. Yeager has observed: “To the public mind, enforcement is the centerpiece of regulation. . . . Both symbolically and practically, enforcement is a capstone, a final indicator of the state’s seriousness of purpose and a key detriment of the barrier between compliance and lawlessness.”75 At EPA, the process of enforcing environmental laws is at once laborious, time-consuming, and technical. It is also often contentious. Enforcement cases typically go through three distinct phases: information-gathering, administrative case development, and (if the matter has not been resolved through negotiation) formal litigation.76 In noncriminal cases, the Agency has several primary sources of compliance information, including record-keeping and self-reporting by individual sources of pollution; on-site inspections of facilities by EPA employees or contractors; and reports of suspected violations from citizen informants or state or local government personnel.77 Once information-gathering is completed, EPA’s enforcement staff must determine whether the source in question is in violation of applicable standards and, if so, what type of enforcement response the Agency will make. These decisions are typically made in EPA’s ten regional offices. Under most federal pollution control statutes, EPA has a range of legal enforcement options available. These options include sending a warning letter or a Notice of Violation to the pollution

75 PETER C. YEAGER, THE LIMITS OF LAW, THE PUBLIC REGULATION OF PRIVATE POLLUTION 251, (Cambridge University Press ed. 1990). 76 For a more detailed description of the process of enforcement at EPA, see Bertram C. Frey, “Federal Enforcement of Environmental Laws,” in Afterword for EPA Going Forward, in RICHARD W. EMORY, JR., FIGHTING POLLUTION AND CLIMATE CHANGE: AN EPA VETERANS’ GUIDE ON HOW TO JOIN IN SAVING OUR LIFE ON PLANET EARTH (Booklocker, revised edition, August, 2020). 77 See Clean Air Act, 42 U.S.C. § 7414; Clean Water Act, 33 U.S.C. § 1311; Toxic Substances Control Act, 15 U.S.C. § 2607; Endangered Species Act, 16 U.S.C. § 1540.

142 Vermont Law Review [Vol. 46:124 source, issuing the source an administrative order requiring compliance, and (in some cases) an assessed civil penalty. Additionally, the Agency is authorized to refer enforcement matters to the U.S. Department of Justice (DOJ) for civil action or criminal prosecution.78 Criminal cases are developed in a manner that differs from non-criminal matters. The information that begins the information-gathering process most often comes from a tip from a disgruntled employee of a suspected violator, an environmental citizens organization, or a civil investigation in which criminal conduct of a corporation is found. Criminal investigations are pursued by a staff of professional EPA criminal investigators. These investigations may involve undercover operations, search warrants, and grand jury proceedings under the auspices of the DOJ. Criminal prosecution is a particularly powerful enforcement mechanism. It is typically reserved for violations that were clearly intentional and/or matters in which the defendant has caused grave environmental harm.79 Unfortunately, the aforementioned downward trend in environmental regulation at EPA during the Donald Trump Presidency was paralleled by a decline in the overall volume and effectiveness of the Agency’s enforcement work.80 As was the case on the regulatory side, Trump Administration officials made a consequential set of policy changes that had significant impacts. Perhaps most significantly, EPA reversed the overall pattern

78 U.S. DEP’T. OF JUST., GUIDELINES FOR JOINT STATE/FEDERAL CIVIL ENVIRONMENTAL ENFORCEMENT LITIGATION 1 (2017) https://www.justice.gov/file/928531/download (explaining the Department of Justice, Environment and Natural Resources Division can work cooperatively with a state’s Attorney General to enforce environmental laws); U.S. EPA, MEMORANDUM, STRENGTHENING ENVIRONMENTAL JUSTICE THROUGH CRIMINAL ENFORCEMENT 1 (June 21, 2021), https://www.epa.gov/system/files/documents/2021-07/strengtheningejthroughcriminal062121.pdf (utilizing the DOJ’s enforcement powers for environmental prosecutions). 79 Summary of Criminal Prosecutions, U.S. EPA https://cfpub.epa.gov/compliance/criminal_prosecution/index.cfm? (last visited Dec. 8, 2021) (cataloging criminal prosecutions from egregious environmental harms). 80 Unfortunately, at this writing, (in December 2021) EPA has not released any measures of the final fiscal year of Donald Trump’s Presidency. The metrics cited in this article are thus to that extent, necessarily incomplete.

2021] Rolling Back and Losing Ground 143 of its relationship with state environmental agencies. Until 2017, the federal agency had engaged in extensive oversight of state enforcement levels.81 Traditionally, EPA attempted to coax states into implementing assertive, relatively strict, and formal enforcement strategies. In the Trump years, however, EPA’s leadership adopted a laissez-faire attitude towards state environmental enforcement. Rather than continuing its usual oversight role, beginning in 2017 the Agency generally deferred to the decisions of state environmental agency personnel as to which enforcement cases to bring and how they should pursue them.82 This change weakened the nation’s overall environmental enforcement efforts for two reasons. First, a number of states with significant pollution problems were not equipped with either the staff, resources, or the requisite expertise to enforce environmental laws effectively.83 Second, some states did not have the political will to enforce environmental standards in a manner that would effectively sanction noncompliance and deter future violations. As a result, when one considers the aggregate volume (and likely impact) of federal, state, and local environmental enforcement taken together throughout the Trump era—much ground was lost.

81 See EPA, RESOURCE CONSTRAINTS, LEADERSHIP DECISIONS, AND WORKFORCE CULTURE LED TO A DECLINE IN FEDERAL ENFORCEMENT 3 (2021), https://www.epa.gov/sites/default/files/2021-05/documents/_epaoig_20210513-21-p-0132_0.pdf (documenting the decline of federal enforcement actions and noting the deference to state enforcement programs after 2017); see e.g., EPA, EPA REGION 5 CLEAN WATER ENFORCEMENT DECLINES 1 (2020), https://elpc.org/wp-content/uploads/2020/04/ELPC-Region5Report_FINAL.pdf (demonstrating an example of this decline in EPA’s region 5 under the CWA). 82 In the run up to the 2020 general election, Susan Parker Bodine, EPA’s Assistant Administrator for Enforcement and Compliance Assurance in the Trump administration, defended the quantity and quality of EPA’s enforcement in the Trump era. ICYMI: Trump EPA’s Focus on Enforcement and Compliance is Paying Off, U.S. EPA (Oct. 20, 2020), www.epa.gov/newsreleases/icymi-trump-epas-focus-enforcement-and-compliance-paying (noting that the number of facilities that returned to compliance under EPA’s self-audit program more than doubled between 2016 and 2019). 83 From 2008 through 2018 state environmental agencies lost in aggregate total of 4,400 employees. Many of these employees worked in state environmental enforcement programs, which were hard hit by state budget cuts. ENV’T INTEGRITY PROJECT, THE THIN GREEN LINE 4 (2019).

144 Vermont Law Review [Vol. 46:124 By all accounts, the morale of EPA’s professional enforcement staff plummeted during the Trump years. The Agency’s top-ranked civil servants—those who had been appointed to EPA’s senior executive service (SES)—were (and still are) subject to being permanently reassigned to different duties (sometimes in a distant city) on very short notice. Anxious to avoid such personally disruptive reassignments, and/or otherwise suffering career damage, the Agency’s SES employees typically refrained from openly criticizing Trump Administration policy changes that they disagreed with. Fear of retribution also percolated to lower levels of EPA’s enforcement—particularly among relatively new enforcement staff members in the Agency’s regional offices and headquarters—who feared being let go in future budget cuts.84 Although EPA’s Office of Enforcement and Compliance Assurance (OECA) established the overall direction of enforcement policies, much internal opposition to EPA enforcement during the Trump era came from EPA’s ten Regional Administrators. These officials—who were all-too-frequently conservative, anti-regulatory ideologues—occasionally met with the defendants’ counsel in enforcement cases outside of the presence of assigned staff engineers and attorneys assigned to those cases. Not surprisingly, the professional staff in those matters were dismayed when those regional office meetings occurred without their input and sometimes without their knowledge. It is hard to measure the extent of the damage these closed-door meetings did. Nevertheless, they had an obvious negative impact on the morale of EPA’s regional enforcement staff. The Trump Administration’s non-traditional policies regarding

84 See Stephen Lee, EPA, in Midst of Hiring Spree, Faces Uphill Push for More Staff, BLOOMBERG LAW (July 14, 2021), https://news.bloomberglaw.com/environment-and-energy/epa-in-midst-of-hiring-spree-faces-uphill-push-for-more-staff (noting the major staff losses during the Trump Administration); see, e.g., Eric Lipton & Lisa Friedman, E.P.A. Employees Spoke Out. Then Came Scrutiny of Their Email, N.Y. TIMES, (Dec. 17, 2017), https://www.nytimes.com/2017/12/17/us/politics/epa-pruitt-media-monitoring.html (documenting an example of intimidation tactics within the EPA during the Trump Administration); see UNION OF THE CONCERNED SCIENTISTS SURVEYING THE ENVIRONMENTAL PROTECTION AGENCY 2 (2018), https://www.ucsusa.org/sites/default/files/2019-09/science-under-trump-epa.pdf (reporting EPA scientists are most likely to report challenges to incorporating science into agency decision making).

2021] Rolling Back and Losing Ground 145 enforcement had a noticeable impact, as reflected in the numbers that the Agency used to measure its own enforcement accomplishments. In other writings, I have suggested that evaluating the effectiveness of governmental enforcement programs objectively, on the basis of their levels of “outputs” in various categories of enforcement activities, is an extremely tricky task.85 While that is true, self-reports on programmatic accomplishments in enforcement regarding certain periods, regimes, or governmental units may sometimes yield at least a rough overall indication of an enforcement program’s relative effectiveness. One area in which reported numbers may be especially revealing is with respect to the number of criminal environmental enforcement cases initiated annually by the DOJ upon referral from EPA. Because it can directly affect high-level corporate officials, criminal enforcement is a powerful arrow in the federal government’s environmental enforcement quiver. Its implementation is widely believed to have a strong deterrent effect. In a carefully prepared report by the University of Michigan Law School’s Environmental Crimes Project, Professor David Uhlmann and his assistants analyzed the publicly available data regarding federal pollution prosecutions from 2005 through the first two years of the Trump Administration.86 Professor Uhlmann noted a 71% decrease in CWA prosecutions from what they had been under President Obama87 and a similar dramatic decline in Clean Air Act prosecutions.88 Uhlmann concluded that “[n]o matter what the future holds, the data from the first two years under President Trump reveals a dramatic departure from the non-partisan support for pollution prosecutions that had existed across administrations, which leaves Americans less safe and the environment

85 Joel A. Mintz, Measuring Environmental Enforcement Success: The Elusive Search for Objectivity, 44 ENV’T L. REP. 10751, 10755 (2014). 86 DAVID M. UHLMANN, PAPER NO. 685, NEW ENVIRONMENTAL CRIMES PROJECT DATA SHOWS THAT POLLUTION PROSECUTIONS PLUMMETED DURING THE FIRST TWO YEARS OF THE TRUMP ADMINISTRATION 3 (2020). 87 Id. at 7 (showing the average number of Clean Water Act defendants charged per year during 2017 and 2018 decreased from 44.5 defendants to 13 defendants). 88 Id. at 12 (demonstrating that the average number of Clean Air Act prosecutions declined by 54% during the first two years of the Trump administration).

146 Vermont Law Review [Vol. 46:124 less protected.”89 The number of new criminal investigations begun by EPA in given years is also a meaningful statistic. EPA criminal investigations opened 170 new investigations in fiscal year 2019.90 In contrast, in fiscal year 2010, the Agency conducted nearly 400 investigations.91 Beyond a pronounced fall-off in federal criminal prosecutions and in EPA criminal referrals to DOJ, civil and administrative environmental enforcement also declined notably from past years during the Trump years.92 In my view, two annually reported metrics provide especially telling insights into how effectively a non-criminal enforcement program is functioning in a given year: (1) the number of in-person facility inspections agency personnel and contactors conducted and (2) the aggregate amount of money polluters were compelled to invest in pollution controls as a direct result of agency enforcement actions.93 By these measures, EPA enforcement was down considerably in the Trump Administration. In fiscal year 2019, EPA inspected 10,320 facilities—a far cry from the 21,278 potential pollution sources that the Agency and its contractors visited in fiscal year 2010.94 Similarly, EPA enforcement directly resulted in $4.43 billion in pollution control expenditures in

89 Id. at 16. 90 EPA, FISCAL YEAR 2019 EPA ENFORCEMENT AND COMPLIANCE ANNUAL RESULTS 10 (2020), https://archive.epa.gov/epa/sites/production/files/2020-02/documents/fy19-enforcement-annual-results-data-graphs.pdf. 91 COMPLIANCE AND ENFORCEMENT ANNUAL RESULTS 2009 FISCAL YEAR, EPA (2009), https://archive.epa.gov/enforcement/annual-results/web/pdf/eoy2009.pdf. 92 See EPA OFF. OF INSPECTOR GEN., REP. NO. 20-P-0131, REPORT: EPA’S COMPLIANCE MONITORING ACTIVITIES, ENFORCEMENT RESULTS GENERALLY DECLINED FROM FISCAL YEARS 2006 THROUGH 2018 at 6 (2020) [hereinafter EPA Office of Inspector General enforcement trend report]. 93 While the aggregate amount of penalty money extracted from violators can sometimes also be a significant indicator, those numbers tend to vary annually to a great degree, particularly in years where single case settlements result in extremely large penalty amounts. When that occurs, the large one-case penalty amounts can diminish the significance of the aggregate amount of penalties paid by environmental law violators during the fiscal year in question. 94 EPA Office of Inspector General enforcement trend report, supra note 92, at 24, 26; COMPLIANCE AND ENFORCEMENT ANNUAL RESULTS 2009 FISCAL YEAR, supra note 91.

2021] Rolling Back and Losing Ground 147 fiscal year 2019.95 But, by contrast, in fiscal year 2011, Agency enforcement efforts compelled private expenditures of $19 billion in pollution controls.96 Other measures of enforcement accomplishments also point towards a troubling decline in enforcement success during the Trump Administration. When comparing fiscal years 2018 and 2007, EPA initiated 52% fewer non-criminal enforcement actions and concluded 51% fewer such actions.97 Moreover, when comparing fiscal years 2018 and 2012, the number of concluded non-criminal enforcement actions that included defendant commitments to reduce, treat, or eliminate pollution declined by 31%.98 The response of EPA’s enforcement program to the COVID-19 pandemic of 2020 was particularly controversial. On March 26, 2020, Susan Bodine, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, issued a memorandum announcing a “temporary policy” governing EPA enforcement during the pandemic.99 Under this new policy, EPA would no longer seek penalties where a pollution source violates “routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting or certification obligations” as a result of COVID-19.100 Facilities that suspended those activities during the pandemic were not compelled to immediately notify the Agency that they were doing so.101 Instead, they were required to explain the basis for their actions and decisions if—and only if—EPA later sought to learn whether what particular facility owners and operators did during the pandemic period

95 EPA, FISCAL YEAR 2019 EPA ENFORCEMENT AND COMPLIANCE ANNUAL RESULTS supra note 90, at 3. 96 EPA COMPLIANCE AND ENFORCEMENT ANNUAL RESULTS 2011 FISCAL YEAR 3 (2011), https://archive.epa.gov/enforcement/annual-results/web/pdf/eoy2011.pdf. 97 See EPA Office of Inspector General enforcement trend report, supra note 89, at 8, 9. 98 Id. at 17. 99 U.S. EPA, MEMORANDUM, COVID-19 IMPLICATIONS FOR EPA’S ENFORCEMENT AND COMPLIANCE ASSURANCE PROGRAM 1 (Mar. 26, 2020), https://www.epa.gov/sites/default/files/2020-03/documents/oecamemooncovid19implications.pdf. 100 Id. at 3. 101 Id.

148 Vermont Law Review [Vol. 46:124 was justified.102 On its face, the Agency’s written policy could be viewed as benign. It did provide that the appropriate implementing authority (i.e., the state environmental agency or else EPA) must be notified “if facility operations impacted by the COVID-19 pandemic may create an acute risk or imminent threat to human health or the environment.”103 It also declared, in bold-face type, that “[t]he EPA expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment.”104 Despite that language, however, Bodine’s March 26 memorandum failed to recognize that self-monitoring, facility staff training, accurate laboratory analysis, and self-reporting are critical aspects of environmental regulation in the United States. In fact, EPA’s COVID-19 enforcement policy was issued shortly after the oil and gas industry lobbied the administration for a pandemic-related relaxation of environmental standards. Whether or not that had been its actual intent, EPA’s new “temporary policy”—which was announced with no stated end date—was very widely interpreted as a signal that EPA suspended its enforcement activities for the duration of the pandemic. Numerous state environmental agencies responded to Bodine’s March 26 memorandum by relaxing their own regulatory policies. In addition, in the wake of the new EPA policy, state agencies and EPA received more than 3,000 pandemic-based requests for waivers of environmental policies.105 All too often, those requests were granted by state officials with little or no review, notwithstanding the risks those suddenly legal emissions posed to public health and the environment.106 Strikingly, more than 50 of the facilities that obtained rule exemptions had troubling pre-pandemic records of violating

102 Id. 103 Id. at 4. 104 Id. 105 Cathy Bussewitz et al., Thousands Allowed to Bypass Environmental Rules in Pandemic, AP (Aug. 24, 2020), https://apnews.com/article/virus-outbreak-ky-state-wire-ia-state-wire-ap-top-news-health-3bf753f9036e7d88f4746b1a36c1ddc4. 106 Joel A. Mintz & Victor Flatt, Pandemic Spawns Dangerous Relaxation of Environmental Regulation, THE REVELATOR (Sept. 17, 2020), https://therevelator.org/pandemic-environmental-regulations/.

2021] Rolling Back and Losing Ground 149 environmental regulations.107 Those parties’ applications for regulatory relief clearly deserved far more careful scrutiny than they in fact received from state officials. EPA’s COVID-19 enforcement policy led to howls of protests from environmental NGOs as well as government officials in certain states. On August 18, 2020, the Center for Biological Diversity, Waterkeeper Alliance, and Riverkeeper, Inc. filed a lawsuit in the U.S. District Court for the Southern District of New York seeking to enjoin EPA’s pandemic enforcement policy.108 Ultimately, notwithstanding the fact that the COVID-19 pandemic was still in full swing, EPA terminated its COVID-19 enforcement policy as of August 31, 2020, and the plaintiffs successfully moved to dismiss their own suit.109 It may be that the Agency’s policy regarding the pandemic had been well-intended. Nonetheless, even if that were so, at minimum the policy’s delivery amounted to a gross failure of communications that severely damaged whatever remaining credibility EPA’s enforcement program had retained. At worst, the policy was a reckless, highly inappropriate attempt to cater to the wishes of powerful regulated industries at the public’s expense. Regrettably, the full scope of the environmental harm that occurred while the policy was in force may never be known. The absence of self-monitoring and self-reporting permitted by the policy obviously precludes accurate estimates of that harm. Nonetheless, the COVID-19 policy fiasco stands out as a particularly low point in an otherwise undistinguished period in EPA’s enforcement history.

107 Rachel Frazin, Dozens of Facilities Skipping Out on EPA Pollution Monitoring Have Prior Offenses, THE HILL (July 29, 2020), https://thehill.com/policy/energy-environment/509489-dozens-of-facilities-skipping-out-on-epa-pollution-monitoring-have. 108 See Press Release, Ctr. for Biological Diversity, Lawsuit Challenges Trump Administration’s Suspension of Pollution Monitoring: EPA Failed to Consider Impacts on Imperiled Species, (Aug. 18, 2020), https://biologicaldiversity.org/w/news/press-releases/lawsuit-challenges-trump-administrations-suspension-of-pollution-monitoring-2020-08-18/. 109 COVID-19 Enforcement and Compliance Resources, https://www.epa.gov/enforcement/covid-19-enforcement-and-compliance-resources (updated Oct. 13. 2021).


IV. REPAIRING THE DAMAGE: HOW CAN EPA REGULATION AND ENFORCEMENT BE REFORMED IN THE POST-TRUMP ERA EPA?

The regulatory and enforcement shortcomings described above provide considerable evidence that EPA suffered a clear loss of focus, a sharp drop in morale among its career workforce, and disastrous policy reversals from 2017–2020. Remedying these problems will require a sustained and persistent effort. Nonetheless, so long as it has the will to do so, the new administration will have ample authority to reverse the Agency’s recent setbacks. At the outset, the Biden Administration will be wise to appoint (and a new Congress should promptly confirm) top leaders at EPA with knowledge of environmental issues who have no ties to entities that the Agency regulates. Those appointments will go far towards erasing the reality and perception that EPA is merely a “captive agency,” whose policies are driven by influential industrial polluters and their lobbyists. Beyond this, the Agency’s full-time (or full-time equivalent) workforce is overdue for a significant increase. Over the years, even as Congress has piled additional resource-consumptive responsibilities on EPA, the size of the Agency’s career staff has steadily declined.110 At its apex towards the end of the 1990s, EPA employed more than 18,000 full-time employees.111 At the time of this writing, however, the Agency currently has approximately 14,000 employees112—far too few to effectively implement the charges that Congress imposed upon it to date. Ideally, any workforce increase will be gradually phased in to allow EPA to fully absorb its newest staff members. A staff augmentation must also certainly take account of any new obligations the Agency may have under future federal climate-change legislation. Moreover, staff increases will require EPA to devote ample time and effort to recruiting and training its newest employees, even as it carries out its other important responsibilities.

110 EPA’s Budget and Spending, https://www.epa.gov/planandbudget/budget (last updated July 30, 2021) (documenting EPA’s allocated budget and total workforce for each fiscal year since 1970). 111 Id. 112 Id.

2021] Rolling Back and Losing Ground 151 A restored EPA will also need to rebuild its foundation of scientific expertise. The Trump Administration’s attempts to censor sound science by imposing untenable limitations on the application of legitimate research findings disingenuously disguised as improvements in governmental “transparency” must be promptly reversed. A new administration should sharply change course by restoring EPA’s prior emphasis on mitigation and adaptation to the global climate crisis (hopefully in a context of renewed international cooperation regarding this crucial issue). EPA’s scientific staff and its panels of advisors should once again be assigned to focus on climate-related research, and the Agency must be part of an urgent, administration-wide push for comprehensive legislation to reduce the nation’s greenhouse gas emissions. In a deliberate and legally sound way, a revived EPA must undo a number of specific Trump Administration regulatory actions and policies that substantially weakened critical protections of public health and the natural environment. The Trump EPA rolled back numerous pre-existing regulatory policies and safeguards, and a number of these rollbacks have been challenged in court. Rather than waiting for those lawsuits to run their course, a Biden Administration EPA will certainly be wise to ask the courts to put the cases in question on hold while it develops, proposes, and promulgates effective substitutions for the Trump-era regulations that have been the basis for litigation. The undoing of Trump’s EPA rollbacks must be based on a strong foundation of legitimate science. It will thus behoove the new administration to direct a team of well-qualified scientists to conduct a reasonably prompt survey of the prior administration’s regulatory changes, with the goal of identifying those Trump regulations that now do (or are likely to do) the most environmental harm. That set of regulations should receive priority attention for reversal. Certain Trump-era policy approaches seem quite likely to be high on a reformed Agency’s must-eliminate list. Without question, EPA’s current refusal to recognize the “co-benefits” of regulations that will curb climate change (i.e., the side benefits to public health that will result from limiting greenhouse gas emissions) must be reversed. Instead, EPA must adopt a method of cost-benefit analysis that realistically measures all the benefits to society of protective

152 Vermont Law Review [Vol. 46:124 regulations while not exaggerating their aggregate costs. In addition, one hopes that all of President Trump’s executive orders intended to slow or prohibit new regulatory initiatives will be promptly extinguished by a stroke of the presidential pen. Prominent among those orders is the President’s Two-For-One Order, discussed above, which directs executive branch agencies and departments (including EPA) to rescind two existing regulations for every new regulation they establish.113 Additionally, a reinvigorated EPA will surely need to reverse certain specific Trump-era EPA regulatory initiatives. The current Agency’s misguided attempt to repeal the vehicle emission standards imposed under the Obama Administration should be a top candidate for elimination. Stronger standards are urgently needed to encourage the timely development and deployment of environmentally friendly electric cars. The Trump Administration’s abandonment of limitations on mercury emissions—a dangerous neurotoxin—cries out for reversal. So too do the Agency’s ineffectual regulation of coal-ash waste, its lax new source review standards for existing power plants, its haphazard implementation of the most recent amendments to the Toxic Substances Control Act, its failure to regulate dangerous pesticide products, and all EPA regulations that encourage the continued burning of fossil fuels at power plants. The Trump Administration also issued permits for potentially destructive petroleum drilling and mining in environmentally sensitive areas of Alaska that urgently need to be reversed.114 EPA permits for petroleum drilling in Arctic waters and for mining in environmentally sensitive areas of Alaska must be reconsidered and rescinded. Moreover, the Agency’s crabbed interpretation of Waters of the United States must be abandoned in favor of a statutory construction that once again applies the CWA to many of the nation’s now-unregulated waterways. Beyond these essential regulatory changes, a revived EPA must also implement major alterations in the Agency’s enforcement programs. The goal of these enforcement reforms must be to fully

113 Supra Part II.C. 114 Brad Plumer & Henry Fountain, Trump Administration Finalizes Plan to Open Arctic Refuge to Drilling, N.Y. TIMES (Aug. 17, 2020), https://www.nytimes.com/2020/08/17/climate/alaska-oil-drilling-anwr.html.

2021] Rolling Back and Losing Ground 153 restore and maintain the deterrent approach that characterized EPA enforcement throughout nearly all of the Agency’s history prior to 2017. As described above, the past several years have been a time of sharp fall-off in the number of enforcement actions taken by EPA. This unfortunate development has been paralleled by a notable decline in the Agency’s enforcement presence and its deterrent impact. Several measures are urgently needed to restore EPA enforcement. Like the rest of the Agency, EPA’s enforcement programs are greatly in need of an influx of new personnel—particularly criminal investigators, lawyers, and engineers. After appropriate training, such new employees must be used to increase the number of plant inspections the Agency conducts, the number of new criminal enforcement investigations, and the overall volume of new administrative and civil cases pursued by EPA. It is critical that the Agency’s new leadership announce and continually reiterate their unwavering support for vigorous deterrent enforcement. The attitudes and pronouncement of the “top brass” are a subject of careful attention among the career staff at all levels, and they have considerable influence on the direction and amount of EPA enforcement work. To effectively deter environmental violations, EPA will also do well to extensively publicize its enforcement accomplishments as they occur. Announcements of particular enforcement activities—including administrative enforcement actions, penalties imposed on violators, civil and criminal cases referred to the DOJ, and settlements requiring meaningful private pollution control investments—should be routinely distributed to media outlets and trade associations. In addition, EPA must make clear that, absent clear proof of a force majeure, pollution sources must continue to conduct regular self-monitoring and self-reporting at all of their own pollutant emission and discharge levels.

CONCLUSION

In sum, EPA’s work cannot be turned on and off like a light switch. Instead EPA is better conceptualized as a deep well that can yield the desired results if its pump is sufficiently primed. Recovery from the institutional and environmental damage the Trump Administration has done to the Agency must proceed

154 Vermont Law Review [Vol. 46:124 vigorously. At the same time, recovery must be accomplished with careful attention to legitimate scientific support for regulatory changes, a right-sizing of EPA, careful training of new EPA employees, and continuing support and strong and steady encouragement from the White House and from a new cadre of Agency leaders. The stakes are very high, and the challenges are great. Nonetheless, as long as all needed reforms are pursued steadfastly and with renewed purpose, EPA will indeed be restored as an effective protector of the nation’s health and environment.

FDA, JUST SAY NO: WHY USING BETA-AGONIST

DRUGS IN ANIMALS FOR CONSUMPTION REQUIRES NEW FDA REGULATIONS

Ashely Monti*

INTRODUCTION ................................................................................. 155 I. BACKGROUND ............................................................................... 158

A. The Federal Food, Drug, and Cosmetic Act .......................... 158 B. Animal Drug Approval Process ............................................. 161 C. Types of Animal Drugs ........................................................... 164

1. Antibiotics ........................................................................... 164 2. Hormones ............................................................................ 165 3. Beta-agonists ....................................................................... 166

D. Legal Challenges ................................................................... 168 II. THE CURRENT REGULATORY SCHEME FAILS TO PROTECT HUMAN HEALTH AND ANIMAL HEALTH AND WELFARE ................................ 170

A. The FDCA’s Language Incorporates the Precautionary Principle ..................................................................................... 171 B. The FDA Has Failed to Meet its Duties Under the FDCA .... 174 C. Legal Challenges Are Inadequate to Safeguard Public and Animal Health ............................................................................. 178

III. FDA MUST PROMULGATE RULES TO SAFEGUARD PUBLIC HEALTH, ANIMAL HEALTH, AND ANIMAL WELFARE ....................................... 182 IV. THE FDA MUST RESTORE CONSUMER CONFIDENCE IN ITS AGENCY DECISIONS ........................................................................................ 185 CONCLUSION .................................................................................... 187

INTRODUCTION

In 1999, the United States Food and Drug Administration (FDA) approved a beta-agonist drug commonly known as

* Ashely Monti is a third-year law student at Vermont Law School, where she is pursuing a J.D. with a concentration in Animal Law as well as a Master of Food Agriculture Law and Policy. Ashely received her Environmental Science and Political Science Bachelor of Arts degrees from the University of Wisconsin–Milwaukee.

156 Vermont Law Review [Vol. 46:155 ractopamine.1 Meat producers “use ractopamine to accelerate weight gain and promote . . . leanness in pigs, cattle, and turkeys.”2 Today, over 160 countries either restrict or completely ban ractopamine’s use.3 Yet, the United States (U.S.) and 25 other countries still permit its use.4 Most countries banned or restricted ractopamine because of animal or human health concerns.5 For instance, studies have found that ractopamine affects animal behavior and physiology, making them more susceptible to handling abuse.6 Moreover, lawsuits challenging ractopamine have cited that, in farmed animals, it can cause “trembling, lameness, inability to rise or walk, reluctance to move, stiffness, hyperactivity, . . . difficulty breathing, collapse, and death.”7 While studies evaluating ractopamine’s effects on humans are limited, its known and unknown health risks have evoked international concern.8 Disagreement over the science behind ractopamine’s health effects has led to international trade disputes, including between the U.S. and countries banning the drug, such as China, the United Kingdom, and the European Union.9

1 Lindsay Chichester et al., Beta-agonists: What are they and should I be concerned?, UNIV. NEBRASKA–LINCOLN, https://newsroom.unl.edu/announce/beef/2563/14863 (last visited Dec. 7, 2021). 2 Food Safety Fact Sheet: Ractopamine Factsheet, CTR. FOR FOOD SAFETY (2013), https://www.centerforfoodsafety.org/files/ractopamine_factsheet_02211.pdf [hereinafter Factsheet]. 3 Delcianna Winders, Why are U.S. Factory Farms Feeding Animals A Drug Banned in Most Countries?, MILLION DOLLAR VEGAN (Mar. 10, 2020), https://www.milliondollarvegan.com/why-are-u-s-factory-farms-feeding-animals-a-drug-banned-in-most-countries/. 4 Factsheet, supra note 2. 5 Id. 6 Jeremy N. Marchant-Forde et al., The Effects of Ractopamine on the Behavior and Physiology of Finishing Pigs, J. ANIMAL SCI. 416, 419 (2003) (explaining that ractopamine affects “behavior, heart rate, and [the] catecholamine profile of finishing pigs.” These changes made the pigs more susceptible to handling and transport abuse). 7 E.g., Complaint for Declaratory and Injunctive Relief ¶ 45, Ctr. for Food Safety v. Hamburg, 142 F. Supp. 3d 898 (N.D. Cal. 2015) (No. 3:14-cv-4932). 8 Factsheet, supra note 2. 9 Ben Valsler, Ractopamine, CHEMISTRY WORLD (July 17, 2020), https://www.chemistryworld.com/podcasts/ractopamine/4012161.article; U.S.-Taiwan Trade Relations, CONG. RSCH. SERV., https://sgp.fas.org/crs/row/IF10256.pdf (last updated Dec. 23, 2020); Helena

2021] FDA, Just Say No 157

Many countries took a precautionary approach to reviewing ractopamine because studies have insufficiently demonstrated the drug’s safety.10 The FDA, however, fails to adopt a precautionary approach in approving animal drugs.11 This failure is highly problematic and concerning for meat consumers, animal welfare advocates, environmentalists, and others alike because animal drugs can greatly affect human health, animal health and welfare, and the environment.12 Even more concerning is that ractopamine is not the only non-essential, beta-agonist drug on the market. The FDA recently approved Experior, which purports to reduce ammonia in cows.13 Although this sounds like a good, environmentally conscious idea due to the impending effects of climate change, Experior’s known and unknown risks may substantially outweigh any benefits.14 Thus, the U.S. must proceed with caution when approving drugs that are non-essential and only serve some other—likely economic—purpose.15

The FDA’s current regulatory scheme fails to protect human health, animal health and welfare, and the environment because the

Bottemiller, Dispute Over Drug in Feed Limiting US Meat Exports, NBC NEWS (Jan. 25, 2012), https://www.nbcnews.com/business/markets/dispute-over-drug-feed-limiting-us-meat-exports-flna174014; Helena Bottemiller, Escalating Trade Dispute, Russia Bans Turkey Over Ractopamine Residues, FSN (Feb. 8, 2013), https://www.foodsafetynews.com/2013/02/escalating-trade-dispute-russia-bans-turkey-over-ractopamine-residues/; see also Factsheet, supra note 2. 10 Valsler, supra note 9; see also Factsheet, supra note 2. 11 Susan A. Schneider, Beyond the Food We Eat: Animal Drugs in Livestock Production, 25 DUKE ENV’T. L. & POL’Y F. 227, 255–61 (2015) (questioning the FDA’s approval process as it favors the pharmaceutical and agricultural industries). 12 Id. at 274; see also Factsheet, supra note 2. 13 FDA in Brief: FDA Approves First Animal Drug that Reduces Gas Emissions from an Animal or its Waste, U.S. FOOD & DRUG ADMIN. (Nov. 6, 2018), https://www.fda.gov/news-events/fda-brief/fda-brief-fda-approves-first-animal-drug-reduces-gas-emissions-animal-or-its-waste [hereinafter FDA in Brief]. 14 Complaint for Declaratory and Injunctive Relief ¶¶ 1–14, Animal Legal Def. Fund v. Azar, No.3:20-cv-03703 (N.D. Cal. June 4, 2020); see FDA in Brief, supra note 13 (explaining how ammonia gas emissions contribute to “atmospheric haze and noxious odors,” which can irritate the eyes, nose, and throat in humans and animals. In addition, ammonia gases contribute to eutrophication, which leads to algae blooms). 15 See Valsler, supra note 9 (quoting a 2007 study that showed ractopamine affected farmed animals’ “compositional attributes that are economically relevant to today’s swine producers.”); see also FDA in Brief, supra note 13.

158 Vermont Law Review [Vol. 46:155 animal drug approval process shifts the burden onto consumers and organizations to ensure drug safety. The approval process lacks transparency, and the bar for approving non-essential drugs is too low. Though there is the question of whether the FDA should ever approve non-essential drugs—drugs that primarily serve an economic, rather than animal or human health benefit—this Note only explores ways the FDA could improve its approval process. The FDA could increase transparency and shift the burden back to itself by raising standards for non-essential animal drugs. To do so, the FDA could promulgate regulations for each major animal drug type, addressing the risks associated with each drug. The Federal Food, Drug, and Cosmetic Act provides the FDA with broad authority to regulate animal drugs in this way.

Throughout this Note, ractopamine and Experior will serve as beta-agonist drug examples. Part I outlines the current regulatory structure for animal drugs, describes various types of animal drugs, and briefly introduces prior and current legal challenges to beta-agonist drugs. Part II illustrates how the current regulatory scheme fails to protect animal and human health through analyzing legal challenges. Then, Part III dives into the various ways the FDA could promulgate rules to better safeguard human health, animal health and welfare, and the environment. Finally, Part IV discusses how these new rules could restore consumer confidence in the FDA’s decisions.

I. BACKGROUND

A. The Federal Food, Drug, and Cosmetic Act

In 1938, Congress passed the Federal Food, Drug, and

Cosmetic Act (FDCA) in response to public outcry over unsafe drugs on the market.16 The FDCA’s primary purpose is to protect public

16 Part II: 1938, Food, Drug, Cosmetic Act, U.S. FOOD & DRUG ADMIN., https://www.fda.gov/about-fda/fdas-evolving-regulatory-powers/part-ii-1938-food-drug-cosmetic-act#:~:text=FDR%20signed%20the%20Food%2C%20Drug,adequate%20directions%20for%20safe%20use.&text=The%20act%20also%20corrected%20abuses,mandated%20legally%20enforceable%20food%20standards (last updated Nov. 27, 2018).

2021] FDA, Just Say No 159 health and safety through “preventing deleterious, adulterated, or misbranded articles from entering interstate commerce.”17 Congress conferred authority to the FDA to regulate these articles, which include animal drugs.18

The FDCA requires pre-market approval for all new animal drugs.19 The drug manufacturers must demonstrate a drug’s safety before the FDA may approve the drug for sale on the market.20 The FDA must ensure new drugs meet a safe and effective standard.21 The FDCA defines a new animal drug as:

[A]ny drug intended for use for animals other than man, including any drug intended for use in animal feed but not including such animal feed, — (1) the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of animal drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof . . . (2) the composition of which is such that such drug, as a result of investigations to determine its safety and effectiveness for use under such conditions, has become so recognized but which has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions.22

17 See Nicholas Freitag, Federal Food and Drug Act Violations, 41 AM. CRIM. L. REV. 647, 648 (2004) (explaining the FDCA’s purpose). 18 See 21 U.S.C. § 321(g)(1) (defining the term drug to include articles intended for animal consumption or use). 19 FDA Regulation of Animal Drugs, U.S. FOOD & DRUG ADMIN., https://www.fda.gov/animal-veterinary/resources-you/fda-regulation-animal-drugs#overview [hereinafter FDA Regulation] (last updated Aug. 10, 2021) (explaining “a new animal drug may not be legally introduced into interstate commerce unless it is the subject of either” 21 U.S.C. § 360b, 360ccc, 360ccc-1, or 360bbb-3). 20 See id.; see also 21 U.S.C. § 321(v) (describing the FDA requirements for new animal drug approval). 21 21 U.S.C. § 321(v). 22 Id. (emphasis added).

160 Vermont Law Review [Vol. 46:155 The FDCA further defines drug as “articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals” and as “articles (other than food) intended to affect the structure or any function of the body of man or other animals.”23 The FDA has authority over any drug that impacts an animal’s “structure or . . . function.”24 Congress amended the FDCA in 1996 to give the FDA more flexibility in approving and regulating new animal drugs to streamline the approval process.25 Congress entitled the amendment the Animal Drug Availability Act (ADAA). The ADAA’s purpose was to improve animal and public health by increasing the number of approved new animal drugs on the market.26 The ADAA amended the FDCA’s definition for substantial evidence, which the FDA uses in determining a drug’s efficacy.27 The ADAA’s definition eliminated the requirement for field studies and expanded the types of studies the FDA may consider in finding substantial evidence.28 For example, the FDA may consider published studies, foreign studies, studies using models, laboratory animal studies, in vitro studies, and the drug sponsor’s studies.29 In addition, the FDA only needs to find substantial evidence in at least one “adequate and well-controlled” study to determine the effectiveness of a new animal drug.30 Congress hoped the ADAA would “cut the time needed for the drug approval process by reducing the amount of data that the FDA must review.”31 Although Congress stated the ADAA should not compromise the FDA’s mission, this Note

23 Id. §§ 321(g)(1)(B)–(C). 24 Id. § 321(g)(1)(C). 25 See Animal Drug Availability Act of 1996, Pub. L. No. 104-250, 110 Stat. 3151 (1996); H.R. REP. NO. 104-823, at 8–9 (1996). 26 See H.R. REP. NO. 104-823, at 10 (1996) (noting the dwindling number of animal drugs receiving FDA approval and the negative impact on the animals’ health due to lack of available FDA-approved animal drugs). 27 Animal Drug Availability Act of 1996, Pub. L. No. 104-250, 110 Stat. 3151, § 2(b)(2)(B) (1996); see also H.R. REP. NO. 104-823, at 2 (1996). 28 Animal Drug Availability Act of 1996, Pub. L. No. 104-250, 110 Stat. 3151, § 2(b)(2)(B) (1996); see also H.R. REP. NO. 104-823, at 2 (1996). 29 21 C.F.R. §§ 514.4(a), 514.4(b)(3)(ii) (2020). 30 Id. § 514.4(a) (2020). 31 H. R. REP. NO. 104-823, at 12.

2021] FDA, Just Say No 161 will explain how this amendment’s flexibility has increased risks to public health and animal welfare.32

B. Animal Drug Approval Process

The FDA’s Center for Veterinary Medicine (CVM) approves, reviews, and regulates new animal drugs.33 The Office of New Animal Drug Evaluation (ONADE) is CVM’s pre-approval office for reviewing information about new animal drugs.34 A team of CVM personnel, including veterinarians, biostatisticians, chemists, animal scientists, pharmacologists, and toxicologists reviews new animal drug applications to determine whether the drug is safe and effective according to the proposed label’s directions.35 The FDA interprets safe to include “safety to the animal, safety of food products derived from the animal, and safety to persons [administering the drug or otherwise] associated with the animal.”36 The FDA further interprets effective to mean that the product will consistently and uniformly do what the label claims it will do.37 The scope of safe and effective is limited because the terms only address the safety and effectiveness in the target animal, leaving out broader risks.38 If the CVM team concludes that the new animal drug is safe and effective, then the team will approve the drug for sale on the market.39

32 Id. at 8. 33 From an Idea to the Marketplace: The Journey of an Animal Drug through the Approval Process, U.S. FOOD & DRUG ADMIN., https://www.fda.gov/animal-veterinary/animal-health-literacy/idea-marketplace-journey-animal-drug-through-approval-process [hereinafter Marketplace] (last visited Dec. 7, 2021). 34 Id. 35 Id. 36 FDA Regulation, supra note 19. 37 Marketplace, supra note 33. 38 Id.; see 21 U.S.C. §§ 321(u)–(v), 360(ccc-1)(d)(2) (limiting safe and effective to the target animal species, which suggests the broader impacts of an animal drug are ignored); see also Schneider, supra note 11, at 244–45, 274 (“There is never any consideration of cumulative multi-drug environmental or food safety effects. Furthermore, there is no apparent thought about the systemic impact of creating a billion tons of contaminated manure and then applying it to cropland or allowing it to enter waterways” which could affect wildlife animals, the environment, and neighboring communities). 39 Marketplace, supra note 33.

162 Vermont Law Review [Vol. 46:155 The animal drug approval process begins, however, with a drug sponsor.40 The drug sponsor is responsible for collecting all the necessary information regarding the new animal drug.41 This information includes the results of a pilot study on a target animal species for the drug’s intended use.42 Once the drug sponsor collects enough information, the sponsor contacts CVM to open an Investigational New Animal Drug (INAD) file.43 The drug sponsor updates CVM through their INAD file.44 At this point, CVM and the drug sponsor create a development plan to determine the remaining information needed for CVM to approve the drug.45 The development plan requires the drug sponsor to determine an appropriate dosage regimen.46 The dosage regimen includes not only the dose’s quantity, but also the dose’s frequency, duration, and the “route of administration.”47 Once the sponsor determines a drug dosage that is safe and effective, the sponsor prepares its New Animal Drug Application (NADA).48 The sponsor’s NADA must include five technical sections: (1) target animal safety; (2) effectiveness; (3) human food safety; (4) chemistry, manufacturing, and controls; and (5) environmental impact.49 In each section, the sponsor must

40 See id. (defining drug sponsor as an “entity responsible for collecting all of the information about a new animal drug and submitting this information to CVM for review”); see also 21 C.F.R. § 511.3 (providing a definition for drug sponsor). 41 Marketplace, supra note 33. 42 Id. 43 Id. 44 Id. 45 Id. 46 Id. 47 Id. 48 Id. 49 Id. Although, in theory, an environmental impact section should consider the broad implications of an animal drug on the environment, this section only analyzes the target animal’s environmental impact. The National Environmental Policy Act (NEPA) requires a more thorough environmental assessment, however, many animal drug approvals are categorically excluded from NEPA analysis. See 21 C.F.R. § 25.21 (stating the FDA requires an environmental assessment in “extraordinary circumstances”); Schneider, supra note 11, at 269–71 (explaining the FDA relies on the drug sponsor to adequately assess environmental impacts and that categorical exclusions often apply such that the drug sponsor never completes an assessment).

2021] FDA, Just Say No 163 include information on adverse effects or risks.50 Lastly, the CVM reviews the NADA and approves the application if the CVM agrees with the drug sponsor’s conclusions on the drug’s safety and effectiveness.51 Drug approvals do not go through notice and comment like other regulations. Instead, the approvals become immediately effective as a regulation once the FDA publishes its notice.52 Once an animal drug is on the market, the Office of Surveillance and Compliance (OS&C) monitors adverse events and regulates the drug’s advertisements and marketing.53 The OS&C analyzes reported event data to detect safety or effectiveness issues in animal drugs.54 Often, these problems arise from misuse of the drug, like exceeding the dosage amount or frequency.55 The OS&C also works with the United States Department of Agriculture (USDA) Food Safety and Inspection Service to monitor drug residues in meat, milk, and poultry products.56 Additionally, the OS&C reviews the marketing and advertising of animal drugs to ensure promotions “are truthful and not misleading.”57 Yet, the OS&C does not thoroughly check for animal welfare or cumulative environmental effects from the drug’s continued use.58 The OS&C only reviews a drug’s safety and

50 Animal Drug Approval Process, DAWN BREAKER (Nov. 2018), https://mrr.dawnbreaker.com/portals/medical/veterinary-products/animal-drug-approval-process/. 51 Marketplace, supra note 33. 52 21 U.S.C. § 360b(i). 53 Office of Surveillance and Compliance, U.S. FOOD & DRUG ADMIN., https://www.fda.gov/about-fda/cvm-offices/office-surveillance-and-compliance#:~:text=OS%26C%20is%20responsible%20for%20regulating,they%20are%20on%20the%20market.&text=OS%26C%20is%20responsible%20for%20assuring,safe%20residue%20tolerances%20are%20established [hereinafter OS&C] (last updated Apr. 15, 2021). 54 Id. 55 Id. 56 Id. 57 Id. 58 See id. (describing how the OS&C narrowly reviews promotion, advertising, and post-surveillance activities of approved animal drugs). The OS&C does not assess how a drug’s continued use impacts animal welfare or the environment. OS&C only conducts assessments on drugs that have adverse events, which means if there are no adverse events reports, OS&C would never check up on how the drug is doing. See also Schneider, supra note 11, at 274 (explaining that “[t]here is no systemic analysis

164 Vermont Law Review [Vol. 46:155 effectiveness when someone reports an adverse event.59 Thus, OS&C monitors animal drugs in a limited capacity.

C. Types of Animal Drugs

Although this Note focuses on beta-agonist drugs, a discussion of the various types of animal drugs on the market aids in understanding how these drugs differ. This Part will explain antibiotics, hormones, and beta-agonists.

1. Antibiotics

Producers use antibiotics to treat, control, and prevent disease in animals.60 Antibiotics “stop the growth of or kill bacteria.”61 Antibiotics are given to livestock through their feed or drinking water.62 Concentrated Animal Feed Operations (CAFOs) commonly provide antibiotics to farmed animals because the cramped housing conditions and poor sanitization increase the potential for disease-causing bacteria.63 CAFOs use a sub-therapeutic dosage—a dosage insufficient to treat an active infection—to prevent disease and promote animal growth.64 This practice has become controversial because studies have confirmed the link between the overuse of antibiotics in the livestock industry and antibiotic resistance.65 Thus,

of the cumulative effects” in the environment). 59 OS&C, supra note 53. 60 The Facts About Antibiotics in Livestock & Poultry Production, N. AM. MEAT INST. 4, https://www.meatinstitute.org/index.php?ht=a/GetDocumentAction/i/99943 [hereinafter NAMI, Antibiotics] (last visited Dec. 8, 2021). 61 Factsheet, supra note 2; An HSUS Report: Welfare Issues with the Use of Hormones and Antibiotics in Animal Agriculture, THE HUMANE SOC’Y OF THE U. S. 1 (Jan. 2016), https://www.humanesociety.org/sites/default/files/docs/hsus-report-issues-with-hormones-welfare.pdf [hereinafter HSUS Report]. 62 Id. 63 Antibiotics in Our Food System, FOOD PRINT, https://foodprint.org/issues/antibiotics-in-our-food-system/#easy-footnote-bottom-15-1322 (last visited Dec. 8, 2021). 64 Id. 65 See NAMI, Antibiotics, supra note 60, at 13 (“[T]he ability of bacteria or other microbes to resist the effects of a drug after being exposed to them. This means that

2021] FDA, Just Say No 165 sub-therapeutic dosages raise animal welfare concerns because animals are becoming more susceptible to bacterial diseases.66

2. Hormones

The FDA approved the use of steroid hormone drugs for beef,

cattle, and sheep in the 1950s.67 Producers administer these drugs to livestock to increase their growth rate and feed-conversion ratios—the rate that animals convert feed into weight gain.68 Some of these approved drugs use hormones that are naturally occurring and purport to improve meat quality and animal reproduction.69 However, the FDA has approved synthetic hormone drugs as well.70 Most hormone drugs are administered as implants, which are usually placed under the skin on the back of the animal’s ear.71 The implants then slowly dissolve and do not need to be removed.72 The FDA has approved hormone implants for growth purposes in cattle and sheep, but not for swine, poultry, veal calves, or dairy cows.73

Hormone drugs also raise animal welfare concerns. For example, recombinant bovine growth hormone (rBGH) causes the inflammation of dairy cows’ mammary glands, a condition known as mastitis.74 rBGH appears to be the most controversial of hormone drugs, as others are either widely accepted or lack sufficient data disclosing their effects.75

the drug, and similar drugs, will no longer work against those bacteria.”); Schneider, supra note 11, at 242. 66 HSUS Report, supra note 61, at 5. 67 Steroid Hormone Implants Used for Growth in Food-Producing Animals, U.S. FOOD & DRUG ADMIN., https://www.fda.gov/animal-veterinary/product-safety-information/steroid-hormone-implants-used-growth-food-producing-animals [hereinafter Hormone Implants] (last updated Apr. 13, 2021). 68 Id. 69 Schneider, supra note 11, at 246. 70 See id. (describing how beef cattle receive daily doses of synthetic hormones). 71 Id. 72 Hormone Implants, supra note 67, at 1. 73 Id. 74 HSUS Report, supra note 61, at 3 (noting that rBGH is not an implant but is injected into dairy cows). 75 See id. at 1–3 (describing different adverse effects of rBGH in cattle); Factsheet,


3. Beta-agonists

Beta-adrenergic receptor agonists (beta-agonists) are non-hormonal drugs.76 They bind to receptors on various cells in an animal’s body to redirect and reduce the metabolism of fat.77 As a result, animals produce less fat and produce more lean muscle.78 Beta-agonist drugs serve no therapeutic or essential purpose for animals.79 Rather, beta-agonist drugs serve an economic purpose because the drugs cause animals to grow more lean muscle for slaughter.80 Beta-agonists also raise alarming animal welfare concerns. For instance, beta-agonists lead to health and behavioral changes including, “cardiovascular stress, muscular skeletal tremors, increased aggression, hyperactivity, acute toxicity, and genotoxicity.”81 Studies have further found that beta-agonists increase the number of nonambulatory animals, commonly referred to as downer animals.82

supra note 2. See also Rick North, FACT SHEET Recombinant Bovine Growth Hormone (rBGH or rBST) Its Documented Harm to Cows (Nov. 2010), https://www.organicconsumers.org/sites/default/files/rbgh_harms_cows_fact_sheet.pdf; Cristina Stella & Cameron Harsh, America’s Secret Drug Problem, CTR. FOR FOOD SAFETY (Sept. 2015), https://www.centerforfoodsafety.org/files/animal_drug_es_10_26_77814.pdf. 76 Anna Dilger, Beta-Agonists: What Are They and Why Do We Use Them in Livestock Production?, AM. MEAT ASS’N 2 (2015), https://meatscience.org/docs/default-source/publications-resources/fact-sheets/beta-agonists---dilger-20158d82e7711b766618a3fcff0000a508da.pdf?sfvrsn=69f481b3_0. 77 Id. at 1. 78 Id. at 1–2. 79 See Use of Beta-Agonists in Cattle Feed, PENNSTATE EXTENSION, https://extension.psu.edu/use-of-beta-agonists-in-cattle-feed#:~:text=Beta%2Dagonists%20are%20a%20class,reduce%20the%20metabolism%20of%20fat.&text=At%20the%20same%20time%20the,the%20size%20of%20muscle%20fibers (last updated Sept. 7, 2017) (explaining how companies like Tyson Foods previously used beta-agonist drugs for economic purposes. Tyson reported it stopped using beta-agonist drugs because of animal welfare concerns). 80 Id. 81 America’s Secret Animal Drug Problem, CTR. FOR FOOD SAFETY 3 (Sept. 2015), https://www.centerforfoodsafety.org/files/animal_drug_es_10_26_77814.pdf; HSUS Report, supra note 61, at 3. 82 Stella & Harsh, supra note 75, at 3–4; Downer (Animal), SCIENCEDIRECT, https://www.sciencedirect.com/topics/agricultural-and-biological-sciences/downer-

2021] FDA, Just Say No 167 Because downer animals cannot stand or walk, they suffer from forceful, inhumane attempts to move them, including with forklifts or electrical prods.83 Despite all these concerns, beta-agonist drugs, like ractopamine, remain on the market in the U.S.84

Beta-agonists are different from antibiotics and hormones for two reasons. First, antibiotics stop the growth of and kill bacteria while beta-agonists target cells that metabolize fat.85 Overall, beta-agonists do not affect bacteria.86 Second, beta-agonists do not affect the hormone status of the animal, even though its effects are hormone-like because beta-agonists promote growth.87

This Note frequently refers to two beta-agonist drugs—ractopamine and Experior. The FDA approved ractopamine in 1999 and Experior in 2018.88 Producers use ractopamine to “accelerate weight gain and promote feed efficiency and leanness.”89 Experior’s purpose is different from ractopamine; its drug sponsor, Elanco, and the FDA assert Experior’s purpose is to reduce ammonia gas emissions.90 Experior is the first drug that the FDA approved to reduce emissions from an animal or its waste.91 At first glance, Experior seems like an innovative way to tackle the environmental harms of ammonia gas emissions within the animal agriculture industry.

animal (last visited Dec. 8, 2021) (defining a downer animal as one that is nonambulatory, meaning unable to walk or stand). 83 During Transport, ANIMAL WELFARE INST., https://awionline.org/content/during-transport (last visited Dec. 8, 2021) (explaining that while in transport, downer animals often cannot reach food or water and are sometimes left to die without being humanely euthanized to end their suffering); see Kimberly Kindy, Downed Pigs are Turned into Pork Products. A New Lawsuit Seeks to Stop That, WASH. POST (Feb. 6, 2020) (explaining that USDA “inspection records show plant workers in recent years have kicked, shocked and dragged downed pigs in an effort to get them to stand upright.”); Farm Sanctuary v. United States Dep’t of Agric. (2021) (No. 6:19-CV-06910), WL 2644068 (W.D.N.Y. June 28, 2021) (denying motion to dismiss lawsuit challenging line speeds and treatment of downer animals). 84 Winders, supra note 3. 85 Dilger, supra note 76, at 1. 86 Id. 87 Id. at 2 88 Factsheet, supra note 2, at 1; FDA in Brief, supra note 13. 89 Factsheet, supra note 2, at 1. 90 FDA in Brief, supra note 13. 91 Id.

168 Vermont Law Review [Vol. 46:155 However, this drug’s innovation fails to help an unsustainable industry become more sustainable. Rather, it only assists the industry in continuing unsustainable practices. Moreover, Experior raises similar, troublesome animal-welfare concerns to ractopamine.92

D. Legal Challenges

Various groups have unsuccessfully challenged the FDA’s

approval of ractopamine. In 2015, the Center for Food Safety, the Humane Society of the United States, the Center of Biological Diversity, and the United Farm Workers of America challenged the FDA’s approval of 11 new animal drug applications that used ractopamine as the active ingredient.93 The groups asserted the FDA violated the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA).94 NEPA requires federal agencies to consider the environmental impacts of major federal actions.95 The groups stated “the FDA approvals were ‘arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with NEPA . . . and must be set aside.’”96 However, the U.S. District Court for the Northern District of California found that the groups failed to exhaust all administrative remedies—as the APA requires—before seeking review of the FDA’s compliance with NEPA.97 The Ninth Circuit Court of Appeals agreed with the district court’s decision to deny review, holding the court lacked jurisdiction over the matter.98

92 Complaint for Declaratory and Injunctive Relief, ¶ 125, Animal Legal Def. Fund v. Azar, No. 3:20-cv-03703 (N.D. Cal. June 4, 2020). 93 Carey Gillam, U.S. Food, Animal Health Groups Petition FDA on Ractopamine, REUTERS (Dec. 20, 2012), https://www.reuters.com/article/usa-meat-hormones-idUSL1E8NK72M20121220; Ctr. for Food Safety v. Hamburg, 142 F. Supp. 3d 898, 900 (N.D. Cal. 2015), vacated and remanded, 696 F. App’x 302 (9th Cir. 2017); P.J. Huffstutter, Environmental, Public Health Groups Sue FDA Over Feed Additive, REUTERS (Nov. 6, 2014), https://www.reuters.com/article/us-usa-fda-ractopamine-lawsuit/environmental-public-health-groups-sue-fda-over-feed-additive-idUSKBN0IQ2E520141106. 94 Ctr. for Food Safety, 696 F. App’x 302. 95 National Environmental Policy Act of 1969, 42 U.S.C. § 4332. 96 Ctr. for Food Safety, 142 F. Supp. 3d at 901. 97 Id. at 910. 98 Ctr. for Food Safety, 696 F. App’x at 302–04.

2021] FDA, Just Say No 169 The Ninth Circuit then stayed any further proceedings to allow the groups an opportunity to exhaust all administrative remedies, therefore, requiring the groups to file a citizen petition with the FDA.99 Instead of filing a citizen petition, the groups decided to dismiss the lawsuit in part because they disagreed with the court’s opinion and believed that the court should have resolved the case on the merits.100

More recently, the Animal Legal Defense Fund (ALDF), Food & Water Watch, and Food Animal Concerns Trust filed a complaint against the FDA for approving Experior.101 The groups are challenging the FDA’s denial of a petition to stay the drug’s approval.102 The groups asserted the FDA approved Experior in violation of NEPA, the APA, and the FDCA.103 These groups expressed concern over animal welfare, the environment, and public health because Experior’s effects are largely unknown.104 The complaint explained that “though the negative effects of beta-agonist drugs are widely known and well established, the beta-agonist subtype to which Experior belongs is the least-studied of all beta-agonist drugs; the specific mechanism of the drug is not yet understood, even by the drug’s sponsor.”105 The complaint thoroughly detailed Experior’s potential harm to animals,

99 Id. 100 The groups believed the court had jurisdiction to decide the case on the merits. In addition, the groups believed the court had no authority to stay the case after determining it lacked jurisdiction. Moreover, the groups argued that requiring a citizen petition would only further insulate the FDA from judicial review. See Pebble Ltd. Partnership v. U.S. EPA, 604 F. App’x. 623, 625–26 (9th Cir. 2015); League of United Latin American Citizens v. Wheeler, 899 F.3d 814, 826 (9th Cir. 2018); Conn. Dep’t of Children & Youth Servs. v. United States, 16 Cl. Ct. 102, 105 (1989) (“[I]t is not possible for this court to work within a jurisdictional vacuum . . . without the requisite jurisdiction, this court in these circumstances has no authority to grant a stay of proceedings.”). The groups further argued the FDA’s citizen petition rule is not the type of adequate exhaustion requirement contemplated in the APA. Brief of Petitioner-Appellant for Rehearing En Banc at 10, Ctr. for Food Safety, 696 F. App’x. 302 (2017) (No. 15-17510). 101 Complaint for Declaratory and Injunctive Relief ¶ 1, Animal Legal Def. Fund v. Azar, No. 3:20-cv-03703 (N.D. Cal. June 4, 2020). 102 Id. ¶ 34 (“An interested person can, within 30 days of the approval, request that FDA stay a particular approval pending further review. 21 C.F.R. § 10.35(b).”). 103 Id. ¶ 14. 104 Id. ¶ 10. 105 Id. ¶ 4.

170 Vermont Law Review [Vol. 46:155 such as “trembling, lameness, inability to rise or walk, reluctance to move, stiffness, hyperactivity, hoof disorders and total hoof deterioration, difficulty breathing, cardiomyopathy and other heart issues, collapse, and death.”106 Despite the compelling reasons detailed in the complaint, challenging FDA approvals of animal drugs is difficult due to the flexible and discretionary regulatory regime. Therefore, this Note proposes amendments to the FDCA that would raise the threshold for non-therapeutic new animal drug approvals.

II. THE CURRENT REGULATORY SCHEME FAILS TO PROTECT HUMAN HEALTH AND ANIMAL HEALTH AND WELFARE

The FDCA requires the FDA to adopt a precautionary approach

to drug approvals, however, the FDA has failed to embrace such an approach in approving animal drugs. The FDA’s failure to adopt a precautionary approach has led to the approval of drugs with unknown and known human health, animal health and welfare, and environmental risks. Although scholars define the precautionary principle in various ways, the simplest understanding is that it requires a “better safe than sorry” approach to regulation.107 This Part first argues the FDA has failed to meet its duties under the FDCA. Then, this Part argues legal challenges to the FDA’s approval are not enough and that new regulations are required to effectuate change in the animal drug approval process.

106 Id. ¶ 125. 107 DAVID B. FIRESTONE ET AL., ENVIRONMENTAL LAW FOR NON-LAWYERS 111 (5th ed. 2014) (explaining that the precautionary principle states regulations should air on the side of caution and depend on scientific information rather than political or philosophical ideals); see also The Precautionary Principle & Animal Agriculture, NAT’L. INST. FOR ANIMAL AGRIC. 4 (2014), https://www.animalagriculture.org/wp-content/uploads/2021/01/FINAL_May-16-2014_Precautionary-Principle-White-Paper.pdf (“A precautionary approach is when regulators, not knowing in advance the full extent of risk associated with an innovation, are cautious and seek more information about the product.”); Bernard D. Goldstein, The Precautionary Principle Also Applies to Public Health Actions, 91 AM. J. PUBLIC HEALTH 1351, 1358 (2001) (“The precautionary principle asserts that the burden of proof for potentially harmful actions by industry or government rests on the assurance of safety and that when there are threats of serious damage, scientific uncertainty must be resolved in favor of prevention.”).


A. The FDCA’s Language Incorporates the Precautionary Principle

The language in the FDCA indicates that Congress intended the

FDA to adopt the precautionary approach to approving new animal drugs. First, § 360b(d)(1) explains that the FDA must refuse—not approve—applications that fail to demonstrate a drug’s safety.108 Although the drug sponsor bears the burden to prove a new animal drug’s safety, the FDA must turn to any relevant information that is available to make an informed decision.109 The following highlighted portions of the FDCA illustrate how the FDA must exercise caution and deny new animal drug applications where the information or evidence is lacking, including:

• Where the results “do not include adequate tests by all methods reasonably applicable to show whether or not such drug is safe for use under the conditions prescribed, recommended, or suggested”;110

• Where the results “show that such drug is unsafe for use under such conditions or do not show that such drug is safe for use under such conditions;”111

• Where the FDA “has insufficient information to determine whether such drug is safe for use under such conditions;”112 and,

• Where the results lack “substantial evidence that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested.”113

The language in § 360b(d)(1) requires the FDA to affirmatively find that a drug is safe. Accordingly, the FDA must deny any new animal drug application that fails to show the drug’s safety, provide sufficient evidence, or show substantial evidence that the drug will do what it

108 21 U.S.C. § 360b(d)(1). 109 Id. § 360b(d)(1)(E). 110 Id. § 360b(d)(1)(A) (emphasis added). 111 Id. § 360b(d)(1)(B) (emphasis added). 112 Id. § 360b(d)(1)(D) (emphasis added). 113 Id. § 360b(d)(1)(E) (emphasis added).

172 Vermont Law Review [Vol. 46:155 purports to do. The FDA’s affirmative duty aligns with the precautionary principle because it requires the FDA to air on the side of caution and only approve drugs where the sponsor has met its burden of proof.

Similarly, the language in § 360b(d)(2) requires the FDA to adopt a precautionary approach when considering relevant factors for whether a drug is safe and effective.114 Although the FDCA does not define safe or effective, the factors listed in § 360b(d)(2) help contextualize what drugs the FDA should regard as safe and effective. Overall, these factors further necessitate caution through requiring the FDA to evaluate: (1) how likely the drug will be consumed in or on food; (2) the cumulative effect on animals and humans; (3) expert opinions on the safety factors of animal experimentation data; and (4) whether the prescribed use is likely to be followed in practice.115 This list shows that Congress intended the FDA to approve drugs that are not only safe on paper, but also in practice on the market. Thus, the FDA must contemplate the practical conditions of the drug’s use and its cumulative effects before approving a new animal drug application. The language in § 360b(d)(2) requires the FDA to adopt a precautionary approach when considering whether there is substantial evidence proving a drug’s effectiveness. When determining whether substantial evidence exists, the FDA must find evidence in “one or more adequate and well controlled investigations,” including “a study in a target species; a study in laboratory animals; any field investigation . . . that meets the requirements of subsection (b)(3) . . . a bioequivalence study; or an in vitro study.”116 Moreover, the FDA must find that qualified experts with scientific training and experience conducted these studies to ensure that the results are credible and representative of the drug’s safety and effectiveness.117 These considerations show Congress intended for the FDA to cautiously rely on evidence when approving new animal drugs by ensuring that the evidence consists of appropriate studies conducted by experts. Additionally, the ADAA’s legislative history demonstrates that

114 Id. § 360b(d)(2). 115 Id. 116 Id. 117 Id.

2021] FDA, Just Say No 173 Congress expanded the scope of what constitutes substantial evidence to promote essential drugs that advance animal welfare or food safety.118 Because beta-agonist drugs generally do not further animal welfare or food safety, the FDA should employ a heightened level of caution and scrutiny when evaluating whether there is substantial evidence proving a drug’s safety. Finally, the language in § 360(e)(1) requires the FDA to employ the precautionary principle when withdrawing new animal drug applications. Overall, this subsection requires the FDA to withdraw applications if the FDA finds there could be an imminent hazard to human or animal health.119 The circumstances Congress listed, requiring the FDA to withdraw new drug applications, demonstrate the intent that the FDA must use all relevant information available to make an informed decision, including:

• “[E]xperience or scientific data [showing] that such drug is unsafe for use” under the conditions of use prescribed;120

• “[N]ew evidence not contained in such application or not available to the [FDA] until after such application was approved . . . evaluated together with the evidence available to the [FDA] when the application was approved, shows that such drug is not shown to be safe . . . ”;121 and,

• “[N]ew information before [the FDA] with respect to such drug, evaluated together with the evidence available to him when the application was approved, that there is a lack of substantial evidence that such drug will have the effect it purports . . . .”122

This language expresses the idea that it is better to have a potentially unsafe drug off the market, rather than a drug that could be safe on the market. Because the FDA can consider information beyond what the drug sponsor presents, the FDA should actively look to available scientific data when determining whether a drug poses a health risk to

118 H.R. REP. NO. 104–0823, at 2, 8–9 (1996). 119 21 U.S.C. § 360b(e)(1). 120 Id. § 360b(e)(1)(A) (emphasis added). 121 Id. § 360b(e)(1)(B) (emphasis added). 122 Id. § 360b(e)(1)(C) (emphasis added).

174 Vermont Law Review [Vol. 46:155 humans or animals.

B. The FDA Has Failed to Meet its Duties Under the FDCA

The FDA failed to employ the precautionary principle—as required by the FDCA—in approving ractopamine-based drugs and Experior. The information found in drug sponsor applications, scientific studies, FDA findings of no significant impact, complaints challenging drug approvals, and amicus briefs filed in support of those challenges, all demonstrate the FDA’s failure to adopt the precautionary approach in approving new animal drugs.

The FDA has ignored scientific data and evidence calling into question ractopamine’s safety when approving new animal drug applications that use ractopamine as an active ingredient.123 For example, multiple environmental organizations challenged the FDA in 2014 for approving 11 new animal drugs without reviewing environmental impacts.124 Although the groups focused on the environmental impacts of the drug,125 the complaint also presented evidence calling into question the drug’s safety for humans and animals.126

The studies provided in the complaint reveal the FDA likely failed to meet its duty under §§ 360b(d)(2)(A)–(B) for two reasons. First, the FDA likely failed to adequately consider the “probable consumption” of ractopamine.127 For instance, the complaint referenced a study that found one in five pork products tested positive for ractopamine residues, exposing humans to low amounts of ractopamine.128 Although the FDA established residue amounts that

123 Huffstutter, supra note 93. 124 Complaint for Declaratory and Injunctive Relief ¶¶ 1–6, 22, The Humane Society of the United States et. al. v. Hamburg, No. 04–933 (N.D. Cal. 2014) [hereinafter Compl., HSUS]. 125 Id. 126 Id. ¶¶ 30–49. 127 21 U.S.C. §§ 360b(d)(2)(A)–(B) 128 Compl., HSUS, supra note 124, ¶ 48; see also Pork Chops and Ground Pork Contaminated with Bacteria, CONSUMER REPS. (Jan. 2013), https://www.consumerreports.org/cro/magazine/2013/01/what-s-in-that-pork/index.html [hereinafter Pork Chops, CR].

2021] FDA, Just Say No 175 are “safe” for humans,129 dozens of other countries have banned ractopamine due to the lack of evidence demonstrating its safety.130 As a result, food safety risks will increase because producers will use more ractopamine given the FDA’s approvals.131 Second, the FDA failed to consider the cumulative impacts of the drug. The complaint referenced various studies showing that animals are at a higher risk of disease and infection when suffering from the adverse health effects of ractopamine.132 The complaint cites to a study that found ractopamine significantly increased Salmonella’s growth rate in pigs.133 Based on this information, the FDA likely failed its §§ 360b(d)(2)(A)–(B) duties.134

The information in the complaint also shows the FDA likely violated §§ 360b(d)(2)(A)–(B) and § 360(e)(1) based on ractopamine’s known adverse effects to animal health and welfare. Between 1987 and 2011, ractopamine received more adverse event reports for pigs than any other animal drug on the market.135 In these reports, producers observed substantial increases in pig mortality,136

129 Compl., HSUS, supra note 124, ¶ 31 (“FDA based its original safety approval on just one human health study—a study of six young, healthy men, one of whom dropped out because his heart began racing and pounding abnormally.”); see also Gretchen Goetz, Nonprofits Sue FDA Claiming Agency Hasn’t Proven Safety of Animal Growth Drug, FOOD SAFETY NEWS (Nov. 7, 2014), https://www.foodsafetynews.com/2014/11/consumer-groups-sue-fda-claiming-agency-hasnt-proven-safety-of-pig-drug/#.VHP5OFfF_fa (comparing U.S. residue limits to other countries). 130 See Pork Chops, CR, supra note 128 (“The European Food Safety Authority, which advises the European Union on food policy, concluded that it couldn’t establish a safe level for ractopamine in food after reviewing the only study of its effect on humans (involving just six men). But it noted that drugs like ractopamine can cause restlessness, anxiety, a fast heart rate, and other conditions.”). 131 Compl., HSUS, supra note 124, ¶¶ 5–42 (explaining that at the time of the complaint, producers were giving ractopamine to approximately 60%–80% of cattle, pigs, and turkey in the U.S.). 132 Id. ¶¶ 42–46. 133 Id. ¶ 44. 134 21 U.S.C. §§ 360b(d)(2)(A)–(B). 135 Compl., HSUS, supra note 124, ¶ 41 (reporting 218,116 adverse events in pigs and 160,917 of those pigs were sickened or killed). 136 Id. ¶ 42. (explaining a producer reported having only one to two pigs die per week before using ractopamine, but with ractopamine they lost ten to twelve per week).

176 Vermont Law Review [Vol. 46:155 pigs squealing from pain when moving,137 and pigs that appeared weak with no energy.138 The sheer volume of reports shows that the FDA failed to adequately assess how ractopamine impacts animal health. Furthermore, the FDA has failed to withdraw ractopamine—and instead, continues to approve its use—when presented with new information and evidence. The FDA has failed to fully contemplate the extent that producers use ractopamine, and how its cumulative use affects animal welfare.139

More recently, the FDA failed to adequately consider the ALDF, Food Animal Concerns Trust, and the Center for Biological Diversity’s petition requesting the FDA to suspend ractopamine’s approval given the impacts of the coronavirus (COVID-19) pandemic.140 These groups presented new information and evidence to the FDA, showing that ractopamine’s continued use creates heightened risks for animal safety, human health, and the environment because of COVID-19.141

The petition explained that COVID-19 has forced producers to choose between holding animals on their premises until they can be sent to slaughter, or killing and disposing of their bodies.142 Given this problem, the petition presented three arguments for why the FDA must suspend or withdraw ractopamine’s use: (1) the additional time animals will be given ractopamine as they await slaughter will significantly deteriorate their physical and behavioral health; (2) animals will be given “more ractopamine than the usual course of business,” resulting in increased ractopamine residues in food products; and (3) the animals that are killed are often disposed of on-site in mass graves, which increases the risk of ractopamine residues

137 Id. (showing pigs would squeal when taking steps, as if they were in pain. These reactions were most noticeable during loading for shipment). 138 Id. (noting that loading required a much more excessive amount of prodding than before because the pigs “seemed to have no energy”). 139 21 U.S.C. §§ 360(d)(2)(A)–(B), (e)(1). 140 Petition for Emergency Rulemaking, ANIMAL LEGAL DEF. FUND 1–2 (June 4, 2020), https://www.biologicaldiversity.org/programs/environmental_health/pdfs/2020-06-03-Ractopamine-Suspension-Petition--ALDF-FACT-Center.pdf. 141 Id. at 3. 142 Id.

2021] FDA, Just Say No 177 leaching into the environment.143 The petition cited to multiple studies, one of which found that ractopamine has the psychological effect of ecstasy and methamphetamine on cows, turkeys, and pigs.144

The information and evidence offered in the petition falls within the scope of what the FDA must consider when deciding whether to suspend or withdraw an animal drug.145 The petition adequately calls into question ractopamine’s continued use under COVID-19 and thus should trigger the FDA to review relevant information. The FDA must determine whether ractopamine’s continued use poses an imminent hazard to human and animal health. The FDA’s failure to respond, thus far, to such a threat violates its duty under § 360b(e)(1). The FDA failed to adopt the precautionary approach in denying the ALDF’s petition for a stay of action for Experior. Within 30 days of the FDA’s approval, the ALDF petitioned the FDA to stay Experior pending further review of its safety.146 Under the FDA’s regulation, the FDA must grant a stay in any proceeding when:

(1) The petitioner will otherwise suffer irreparable injury. (2) The petitioner’s case is not frivolous and is being pursued in good faith. (3) The petitioner has demonstrated sound public policy grounds supporting the stay. (4) The delay resulting from the stay is not outweighed by public health or other public interests.147

143 Id. 144 Id. at 4 (citing Liu et al., Ractopamine, a Livestock Feed Additive, Is a Full Agonist at Trace Amine-Associated Receptor 1, 350 J. PHARMACOL. EXP. THER. 124, 127 (2014)). 145 21 U.S.C. § 360b(e)(1). 146 Plaintiffs’ Opposition to Defendants’ and Intervenor’s Motions to Dismiss at 4–5, Animal Legal Def. Fund v. Azar, No. 3:20-cv-03703 (N.D. Cal. Nov. 20, 2020) [hereinafter ALDF, Opposition]; see also 21 C.F.R. § 10.35(b) (“An interested person may request the Commissioner to stay the effective date of any administrative action.”). 147 21 C.F.R. §§ 10.35(e)(1)–(4).

178 Vermont Law Review [Vol. 46:155 The ALDF’s petition adequately called into question Experior’s safety, arguing that its known and unknown risks may jeopardize public health, animal health and welfare, and the environment.148 The ALDF explained that Elanco failed to reliably predict Experior’s effectiveness in “a herd, farm.”149 Therefore, Elanco failed the FDCA’s requirements and did not prove Experior’s safety for the target animals.150 Conversely, evidence shows Experior’s use may be unsafe and adversely affect animal health—like other beta-agonist drugs—and lead to lameness, heat stress, fatal respiratory and cardiac illnesses, as well as behavioral issues.151 Additionally, beta-agonist drug residues have been linked to heart and respiratory health issues in farm workers, consumers, and producers.152 Overall, the ALDF’s petition adequately stated public policy reasons to stay Experior’s approval. The drug’s benefit—reduced ammonia—further fails to outweigh the drug’s known and unknown risks.153 The FDA, again, avoided its duty to take the precautionary approach when presented with evidence casting doubt onto Experior’s safety.

C. Legal Challenges Are Inadequate to Safeguard Public and Animal Health

Legal challenges are inadequate to protect human health,

animal health, and animal welfare from controversial animal drug approvals. First, litigation occurs too late in the animal drug approval process because litigants need a final agency action to challenge—i.e., the FDA’s denial of a citizen petition.154 Second, the new animal drug approval process lacks transparency, making it difficult for organizations to access information to challenge FDA approvals.

148 ALDF, Opposition, supra note 146, at 4–5. 149 Id. at 4. 150 Id. 151 Id. 152 Complaint ¶ 8, Animal Legal Def. Fund v. Azar, No. 3:20-cv-03703 (N.D. Cal. June 4, 2020). 153 ALDF, Opposition, supra note 146, at 4–5. 154 See supra Part I.D. (explaining the 9th Circuit held that the FDA’s determination on a citizen petition is the final agency action rather than FDA’s published approval in the Federal Register).

2021] FDA, Just Say No 179 Third, litigation risks the possibility that courts will dismiss legal challenges to new animal drug approvals for procedural reasons, thereby preventing a decision on the merits. Lastly, organizations must strategically adapt to legal precedent, which may benefit a future suit but often fails to save a current case from an unfavorable decision. This process shifts the burden on the public, rather than the FDA, to guarantee that a new animal drug is safe and effective. As a result, the FDA should amend its regulations to prioritize essential animal drugs that further food safety, public health, and animal welfare, and scrutinize non-essential drugs that pose an array of risks. Litigation is less than ideal for challenging new animal drug approvals because it is time consuming and occurs too late in the process. An animal drug could go to market during litigation because the FDA’s approval becomes effective immediately upon publishing to the Federal Register.155 The FDCA does not require the FDA to engage in notice-and-comment rulemaking before approving a new animal drug. So, prior to the FDA’s approval, the public lacks an opportunity to review or question the animal drug’s safety or effectiveness. Instead, the FDA publishes its approval in the Federal Register, alerting the public of the new animal drug after its approval.156 In addition, the FDA’s regulatory scheme fails to provide a mechanism for tracking the drug’s use in the food supply once approved. This means that while the ALDF is challenging Experior, neither the FDA, Elanco, nor the feedlots are required to track Experior’s use in the market.157 Consequently, Experior may adversely impact public health, animal health and welfare, and the environment before the court decides the case. Until the court renders a decision, litigation fails to safeguard public health, animal health and welfare, and the environment. Litigation is also inadequate because the regulatory scheme lacks transparency. The information that the FDA shares—only upon approving a new animal drug—is insufficient for the public to

155 21 U.S.C. § 360b(i). 156 Id. § 360b(i). 157 See Ctr. for Food Safety v. Hamburg, 696 F. App’x 302, 303–04 (9th Cir. 2017) (litigating for over two years and ultimately dismissing on procedural grounds).

180 Vermont Law Review [Vol. 46:155 understand whether a new animal drug is safe and efficient.158 In most instances, the FDA does not release information related to the approval process or provide insight into agency-sponsor interactions.159 The FDA further fails to provide any information on its website leading up to a new animal drug approval. Patents and trademarks further insulate information, like the drug’s composition, from the public.160 Even though the public has demanded transparency, the FDA seems to believe that the public should trust its decisions without further consideration.161 This creates an information gap that places the burden on the public to investigate whether a new animal drug is truly safe. Overall, the FDA and the drug sponsor complete the animal drug approval process in private, with some information released only after the FDA approves the drug.

Litigation is inadequate to assert genuine challenges to an animal drug’s approval because courts often dismiss on procedural grounds without rendering a decision on the merits. For example, in Center for Food Safety v. Hamburg, the Ninth Circuit found that the plaintiffs failed to exhaust all administrative remedies before seeking review of the FDA’s ractopamine combination-drug approval.162 The various plaintiffs, including the Center for Food Safety, argued that the FDA’s drug approval was a final agency action subject to review as contemplated in the APA.163 The court believed the plaintiffs needed to file a citizen petition with the FDA first before asking the court to review the FDA’s drug approval.164 Overall, the case was dismissed

158 21 C.F.R. § 10.20(j). 159 See Schneider, supra note 11, at 277–78; 21 U.S.C. § 331(j) (preventing the FDA from revealing information acquired under the authority the Animal Drug approval process); Michael P. McEvilly, Lack of Transparency in the Premarket Approval Process for AquAdvantage Salmon, DUKE L. & TECH. REV. 413, 425–28 (2013) (providing an example of poor transparency in the FDA’s approval of the AquAdvantage salmon). 160 Schneider, supra note 11, at 276; 21 C.F.R. § 20.61. 161 See McEvilly, supra note 159 at 425–28 (recognizing issues with the lack of transparency from the FDA). 162 See Hamburg, 696 F. App’x at 302–04. 163 Id. at 304; Nicholas Iovino, Lawsuit Over Oft-Banned Animal Drug Dropped, COURTHOUSE NEWS SERV. (Feb. 2, 2018), https://www.courthousenews.com/lawsuit-over-oft-banned-animal-drug-dropped/. 164 Hamburg, 696 F. App’x at 303.

2021] FDA, Just Say No 181 and never decided on the merits.165 Similarly, in Animal Legal Defense Fund v. Azar, the ALDF argued against a motion to dismiss for failure to exhaust all administrative remedies.166 Yet, unlike Hamburg, the ALDF filed a petition to stay Experior before seeking judicial review.167 So, the ALDF argued it exhausted all administrative remedies before seeking review by filing the petition to stay.168 The United States District Court for the Northern District of California denied the motion to dismiss, finding that the ALDF exhausted its administrative remedies.169 This court’s decision could provide a pathway for the public to challenge FDA approvals and, more importantly, have such issues decided on their merits.

Challenging FDA approvals requires organizations to continually learn and adapt to legal precedent. Although this strategy may benefit a future suit, it often fails to save a current case from an unfavorable decision. For example, the court dismissed the ALDF’s suit in Hamburg because the ALDF failed to exhaust available administrative remedies before filing suit.170 To avoid dismissal, the ALDF filed a petition to stay the FDA’s approval of Experior before filing suit in federal court.171 This difference helped the ALDF survive a motion to dismiss based on exhaustion.172 The district court explained:

Here . . . plaintiff ALDF filed a petition for stay under § 10.35. Decisions on such petitions are final agency actions, ripe for court review. See § 10.45(d). To argue plaintiffs must have additionally filed a citizen petition

165 Id. at 303–04. 166 ALDF, Opposition, supra note 146, at 23. 167 Id. at 4. 168 Id. at 23. 169 Order Denying Motions to Dismiss at 8, Animal Legal Def. Fund v. Azar, No. 03-703 (N.D. Cal. Feb. 23, 2021). 170 Id. at 8. ALDF adapted its strategy from Hamburg by first filing the petition to stay with the FDA. Thus, ALDF could argue it exhausted available administrative remedies. Whereas in Hamburg, ALDF argued it did not need to exhaust administrative remedies because the FDA’s approval was a final agency action subject to review. 171 Id. 172 Id.


under § 10.30, Elanco relies on Center for Food Safety v. Hamburg, 696 F. App’x 302 (9th Cir. 2017), in which it also intervened, and where ALDF was also party, represented by the same counsel as here. In Hamburg, however, no stay petition under § 10.35 had been filed. The court’s pronouncement that a citizen petition was required in those circumstances does not support a conclusion that one would be necessary where a § 10.35 petition was filed. Accordingly, Elanco’s motion to dismiss or to stay this action pending exhaustion is denied.173

Even though the district court’s decision is a positive step towards challenging Experior, this decision came at a cost. The ALDF had to learn from Hamburg to achieve this victory. This victory only helps the ALDF in its challenge against Experior and fails to address the FDA’s approval of ractopamine combination-drugs at issue in Hamburg. Therefore, litigation is an inefficient tool because it requires organizations to take a reactive approach to addressing FDA approvals.

Legal challenges alone are inadequate to protect public and animal health from controversial animal drug approvals. The FDA must not only adopt a precautionary approach to animal drug approvals, but also amend its regulations to prioritize essential animal drugs and scrutinize non-essential drugs that pose risks to animal welfare and human health.

III. FDA MUST PROMULGATE RULES TO SAFEGUARD PUBLIC

HEALTH, ANIMAL HEALTH, AND ANIMAL WELFARE

The FDA fails to properly account for the animal welfare, human health, and food safety effects of non-essential drugs because its regulatory scheme treats all new animal drug applications the same. The FDA must promulgate rules specific to the category of drug and whether it serves an essential or non-essential use. This type of regulatory scheme would better account for the unique effects of each drug while prioritizing drugs that serve an essential purpose. In

173 Id.

2021] FDA, Just Say No 183 addition, this new scheme would better align with Congress’s goal to advance animal health and welfare, human health, and food safety. Overall, this hierarchical approach should subject non-essential drugs—like beta-agonists—to a higher threshold of safety and efficiency.

The FDA’s regulatory scheme should reflect Congress’s intent to further “the health and well-being of animals” and “public health and safety.”174 Congress included a list of congressional findings when it initially proposed the ADAA.175 These findings offer insight into Congress’s motive behind ultimately amending the FDCA. First, Congress found that the current approval process was too slow, preventing the approval of necessary and useful drug therapies.176 Congress further found that the lack of these approvals placed the health and well-being of animals at risk.177 Congress stated that animal drug approvals were too often delayed because of an overreliance on field investigations to establish effectiveness.178 Additionally, Congress found that there are insufficient approved animal drugs to treat every specific disease or condition known in each species of animal.179 Lastly, Congress stated that the CVM should promptly incorporate Congress’s mission so that “the Food and Drug Administration is a global leader as a public health organization that enables the marketing of safe and effective products.”180

Beta-agonist drugs are not the type of drugs Congress contemplated when creating a more flexible approval process in its amendment to the FDCA. First, beta-agonists serve no therapeutic purpose to animals and only serve an economic interest to producers.181 Instead, studies show that ractopamine poses a health risk to animals and humans.182 Thus, beta-agonist drugs fall outside the

174 Schneider, supra note 11, at 256. 175 Id. 176 S. 773, 104th Cong. § 2 (1995); see H.R. REP. NO. 104–823, at 8–9 (1996) (Conf. Rep.). 177 S. 773, § 2; H.R. REP. NO. 104–823, at 9. 178 S. 773, § 2. 179 Id. 180 Id. 181 See supra Part I.C. 182 See supra Part II.B.

184 Vermont Law Review [Vol. 46:155 scope of Congress’s findings to approve “useful drug therapies” that further the “health and well-being of animals.”183 Because beta-agonist drugs only serve an economic purpose, delaying their approval in order to prove their safety and effectiveness would not deprive animals of a “necessary drug.” Lastly, while over 160 countries have called into question the use of the beta-agonist drug ractopamine, the U.S. still permits its use, thus failing to become a global leader in the approval of safe and effective products.184 The FDA should promulgate rules that prioritize necessary and useful drug therapies while holding all other non-essential drugs to a higher approval standard. Non-essential drugs often fail to provide enough benefits to outweigh the need to prove their safety and effectiveness. There is a greater risk to approving a non-essential drug that could be harmful as compared to an essential drug that could be harmful. To address the difference between non-essential and essential drugs, the FDA should establish a hierarchy among drug types. By creating regulations for each drug type, the FDA could directly address concerns known for each type: antibiotics, hormones, beta-agonists, and combination drugs. Then, the FDA could require drug sponsors who are proposing a non-essential drug to address these known concerns and prove the drug’s safety to a greater degree of certainty. Addressing the peculiarities and risks of each drug—rather than a one-size fits all approach—could better protect public health, animal welfare, and the environment from adverse effects. The FDA should promulgate regulations requiring the CVM or the drug sponsor to release information concerning the drug’s safety prior to its approval. The public deserves an opportunity to question the drug’s effectiveness and safety before the FDA has the final say on the matter. Furthermore, this information should be accessible on the FDA’s website, similar to the FDA’s adverse event information.185 A drug application dashboard could help the public track a new animal drug from start to finish and provide an opportunity for public

183 See supra Part III. 184 Winders, supra note 3. 185 FDA Adverse Events Reporting System (FAERS) Public Dashboard, U.S. FOOD & DRUG ADMIN., https://fis.fda.gov/sense/app/95239e26-e0be-42d9-a960-9a5f7f1c25ee/sheet/7a47a261-d58b-4203-a8aa-6d3021737452/state/analysis (last visited Dec. 8, 2021).

2021] FDA, Just Say No 185 participation. Lastly, increased transparency could allow for peer review of the drug’s data, potentially alleviating many concerns before the FDA approves the drug and declares its safety.

IV. THE FDA MUST RESTORE CONSUMER CONFIDENCE IN ITS AGENCY DECISIONS

The FDA should reorient its focus to advance food safety,

public health, and animal health and welfare. To achieve these objectives, the FDA must consider consumer interests and work towards restoring confidence in the food system. The FDA could restore trust in agency actions through a consumer-centric strategy.186 A consumer-centric strategy would require the FDA to address: (1) consumer interests in animal welfare and (2) consumer demand.

Generally, consumers are concerned with animal welfare in agriculture, which is why the FDA should pay particular attention to the animal welfare implications of animal drugs.187 Additionally, animal welfare is part of animal health and, therefore, should be a primary consideration in animal drug approvals.188 Beta-agonist drugs are especially alarming for consumers because the full scope of the drugs’ risks—to humans and animals—are largely unknown.189 Consumer campaigns have called on the FDA to reevaluate animal

186 Tony D’Emidio & David Malfara, 4 Reasons Agencies Should Care About the Citizen Experience, NEXTGOV (Apr. 10, 2017), https://www.nextgov.com/ideas/2017/04/4-reasons-agencies-should-care-about-citizen-experience/136839/; see Lee Raine et al., Trust and Distrust in America, PEW RSCH. CTR. (July 22, 2019), https://www.pewresearch.org/politics/2019/07/22/trust-and-distrust-in-america/ (discussing survey results on the public’s trust and confidence in the U.S. government). 187 Alicia Kelso, Consumers are Willing to Pay a Premium for Animal Welfare Certifications, GROCERY DIVE (July 17, 2018), https://www.grocerydive.com/news/grocery--consumers-are-willing-to-pay-a-premium-for-animal-welfare-certifications/533852/ (explaining that Technomic and the American Society for the Prevention of Cruelty to Animal’s survey found most consumers—77%—are concerned about animal welfare in the agriculture). 188 Animal Welfare: What Is It?, AM. VETERINARY MED. ASS’N, https://www.avma.org/resources/animal-health-welfare/animal-welfare-what-it (last visited Dec. 8, 2021). 189 Stella & Harsh, supra note 75, at 3 (explaining that “no one has conducted an adequate, rigorous assessment” of beta-agonist drugs).

186 Vermont Law Review [Vol. 46:155 drugs and restrict those that are harmful to animals.190 Although this tactic alerts the FDA of consumer interests, it is time-consuming, costly, and often unsuccessful.191 Moreover, the burden to police whether animal drugs are safe for animals should not fall on consumers. To shift this burden back to the FDA, the FDA must consider consumer interests in animal welfare.

Domestic and international consumer opinions have an impact on demand.192 To keep its international demand, Tyson Foods announced its plan to prohibit ractopamine.193 China, along with many other countries, believe ractopamine’s safety data is insufficient and, therefore, prohibits the drug’s import.194 As a result, interests from abroad have impacted U.S. industry decisions to restrict or prohibit harmful animal drugs, like ractopamine.195 A more recent domestic example involves pressures to avoid Experior. The ALDF explained that consumers who would like to consume beef cannot because of Experior’s health risks:

These members would like to consume conventionally-raised beef with confidence in its safety and with trust that the FDA has carried out its duties to keep such foods, and the animals who comprise them, safe. Because it is exceedingly difficult for consumers to obtain post-approval information about animal drug

190 Id. 191 See id. (explaining that in 2014 the Center for Food Safety successfully petitioned the FDA to withdraw arsenic-based drugs); see also Carey Gillam, U.S. Food, Animal Health Groups Petition FDA on Ractopamine, REUTERS (Dec. 20, 2012), https://www.reuters.com/article/usa-meat-hormones-idUSL1E8NK72M20121220 (providing an example of Center for Food Safety and Animal Legal Defense Fund petitioning the FDA to reduce allowable levels of ractopamine). 192 Tyson to Help Meet Growing Demand for U.S. Pork by Prohibiting Ractopamine Use, TYSON (Oct. 17, 2019), https://www.tysonfoods.com/news/news-releases/2019/10/tyson-help-meet-growing-demand-us-pork-prohibiting-ractopamine-use#:~:text=DAKOTA%20DUNES%2C%20S.D.%20%E2%80%93%20October%2017,farmers%20beginning%20in%20February%202020. 193 Id. 194 Winders, supra note 3. 195 Id.


use, and because they cannot always find or afford premium, drug-free beef, they rely on the FDA to ensure the safety of animal drugs that may end up in the animal products they consume.196

Consumers should be able to “rely on the FDA to ensure the safety of animal drugs.”197 However, the global disapproval of drugs, like ractopamine, is indicative that the FDA has failed such duty. The FDA should consider not only domestic consumer interests but also international interests when approving new animal drugs.

CONCLUSION

The FDA has failed to meet its duties under the FDCA, jeopardizing food safety, public health, animal health, and animal welfare. To reorient its agency actions on these objectives, the FDA must prioritize animal drugs that serve an essential purpose. The FDA should use its broad authority to raise the standards for non-essential animal drugs to adequately safeguard human health animal health and welfare. Finally, the FDA should increase transparency throughout the animal drug approval process to regain public confidence in the approval system. The FDA must restore consumer confidence in the animal drug approval process, which in turn, will boost consumer confidence in the U.S. food system.

196 ALDF, Opposition, supra note 146, at 10 (emphasis added). 197 Id.

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