Justice Kagan’s Apostasy

The American Conservative
Justice Kagan’s Apostasy
The judiciary abdicates its duty when it tolerates broad-ranging executive “emergency powers.”

George Liebmann
Aug 2, 2023
12:01 AM
Supreme Court–watchers who try to see beyond the moment have frequently perceived Justice Elena Kagan as a future chief justice. She comes from a family of civil servants and is unlikely to be touched by financial scandal. As dean of the Harvard Law School, she was a conciliator, respectful of opposing views. Most notably, along with Justice Stephen Breyer, she joined the more conservative justices in the Sebelius Obamacare case in finally placing meaningful inhibitions on the conditional spending power in the interests of federalism.

Chief Justice Roberts’s decisive opinion in that case, invoking the taxing power to uphold most of Obamacare, may well have been a wrong turn. He successfully sought to restrain not only the conditional spending power but the commerce power with a principle that it could not be used to define compelled private spending as “commerce.” But on any realistic view, the battle against a national health program of some sort had been lost, notwithstanding some 1920s decisions saying that medical practice was not commerce. Wickard v. Filburn had expanded the commerce power to private actions affecting commerce, and the New Deal’s Agricultural Adjustment Act was funded by a processing tax rather than compelled purchases of private insurance. Invalidation of Obamacare, which was a gift to pharmaceutical and insurance companies, would almost certainly have led to a nationalized program like the British National Health Service.

It was too late in the day to urge that Congress could not decisively transform what had become the nation’s largest industry. The invocation of the taxing power in a non-revenue context was itself dangerous, and repudiated the 8-to-1 Bailey v. Drexel case (1922). In Bailey, the Court, with Associate Justice Louis Brandeis joining, had invalidated a child labor tax as what Professor Felix Frankfurter called “a dishonest use of the taxing power”

But those looking to Justice Kagan as an anchor of essential principles in a crisis must be feeling some disappointment; she joining two so-called liberals in the two cases involving the invocation of vague emergency powers to validate moratoria on rent and student loan payments.

For if there is a power more dangerous than the commerce power, or the taxing power, or even the conditional spending power, it is the power assumed by the executive in declared “emergencies.” As Friedrich Hayek observed, “‘Emergencies’ have always been the pretext on which the safeguards of individual liberty have been eroded—and once they are suspended it is not difficult for anyone who has acquired such emergency powers to see to it that the emergency persists.”

The three cases decided on the same day in May 1935 that aroused President Roosevelt’s ire are landmarks in confining emergency powers and the broad legislative delegations relied upon to legitimize them. Perhaps the central opinion of the group is Associate Justice Benjamin Cardozo’s concurring opinion in the Schechter case on the National Industrial Recovery Act (NIRA) codes.

Cardozo was the most liberal member of the Court and stayed on board for almost all the New Deal legislation, but the NIRA was too much. The delegation to the President of power to formulate codes for all of American industry was “not canalized within banks that keep it from overflowing … unconfined and vagrant … a roving commission to inquire into evils and upon discovery correct them.” He continued,

Congress is not permitted to abdicate or to turn over to others the essential legislative functions with which it is vested. This is delegation running riot. No such plentitude of power is susceptible of transfer. Anything that Congress may do can be done by the President without reference to standards that could be known or predicted. The law is not indifferent as to differences in degree.

Journalists and academics have decried the “major question” doctrine invoked by today’s Supreme Court in the rent and student loan moratorium cases, Alabama Association of Realtors v. HHS and Biden v. Nebraska—“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,” per an unsigned opinion. These critics should reread Cardozo.

The second case decided in May 1935 was Louisville Joint Stock Bank v. Radford, ignored in much recent moratorium litigation. In the decision, Brandeis defined the essential rights of which secured creditors could not be deprived without early cash payment:

However great the nation’s need…[if] the public interest requires the taking of property of individual Mortgagees in order to relieve the necessities of individual Mortgagors, resort must be had to proceedings by eminent domain so that, through taxation, the burden of the relief afforded in the public interest may borne by the public.

The third case determined on the same day was Humphrey’s Executor v. United States, which denied the President power to summarily remove members of independent regulatory agencies. This case at least partially renounced the “unitary executive” theory so fashionable in recent years and partially embraced the view of Brandeis’s dissent in the Myers case ten years earlier:

The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction but by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy.

The nation was well served by the three opinions of May 1935 and their sequels. Subsequent New Deal measures were not the product of executive dictates but of congressional compromises. The Social Security Act omitted medical insurance; the Fair Labor Standards Act omitted domestic and agricultural workers. The temporary Republican ascendancy producing the Taft-Hartley Act preserved the rights of labor organization conferred by the Wagner Act and the freedom from private injunctions conferred by the Norris-La Guardia Act.

The extraordinary federal powers conferred by the 1965 Voting Rights Act included time limits; the 1964 Civil Rights Act with its Dirksen amendment refrained from making employment discrimination complaints too easy. The wartime Congress rejected Roosevelt’s grandiose scheme for the conscription of labor and refused to draft strikers. Two recent pieces of legislation increasing debt limits refrained from executive gimmicks and contained concessions to those concerned with fiscal restraint.

The legislature is the agency of compromise in a democracy, and when it is bypassed by “emergency” ukases, either of the executive or judiciary, legislative power atrophies and unacceptable divisions and tensions result. Justice Robert Jackson viewed the decisive event in the Nazi seizure of power as the “emergency” supersession of the powers of the Prussian police before the 1932 election and the irresolution of the German Supreme Court in condemning it, but the historian Richard Evans has pointed out: “[Friedrich] Ebert, as the [Weimar] Republic’s first President, made very extensive use of this power, employing it on no fewer than 136 occasions…. In the end, Ebert’s excessive use, and occasional misuse, of the Article widened its application to a point where it became a potential threat to democratic institutions.” Efforts to forge durable parliamentary coalitions were abandoned, such as one attempted by Konrad Adenauer in 1926, since their existence was no longer necessary to carry on the ordinary functions of government, totally ruled by the Executive.

The oral argument of Biden v. Nebraska was not enlightening, being interrupted by frequent interpellations of the “liberal” justices, including Kagan, about the enormity of the Covid threat as though this trumped all legal values. There were no checks on the scheme imposed by the president, carefully calibrated to appeal to some ethnic groups, and applying to legions of persons unaffected by Covid, notwithstanding Justice Jackson’s one-time admonition that “emergency powers are consistent with free government only when their control is lodged elsewhere than in the executive that exercises them.” The legislation relied upon was prompted by an entirely different sort of military emergency, had no time limits, and no pretense of bi-partisan administration: The Trump and Biden cabinets presiding over the Covid emergency had no Attlee or Bevin, no Stimson or Knox.

It has since emerged that extralegal means may have been used to stifle discussion of the “herd immunity,” which, in addition to vaccines, caused the Covid threat to dissipate; this may also have been true of some “global warming” issues fueling enthusiasm for governmental subsidy of electric cars, potentially another Teapot Dome scandal. In the Olmstead case, Brandeis observed: “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well-meaning but without understanding.”

A recent book by a British scholar, Martin Loughlin’s Against Constitutionalism (Harvard University Press, 2023), decries judicial activism as well as judicial ratification of broad delegations to the executive and international agencies, as “instituting a system of rule that is unlikely to carry popular support, without which only increasing authoritarianism and countervailing reaction will result.” Judges who do not wish to be thought of as partisans must curb abuses of executive power no matter who is in office. As Justices Jackson, Frankfurter and Owen Roberts said in their opinion in the Screws case of 1946, which curbed federal criminal jurisdiction even in civil rights cases, “Evil men are not given power; they take it over from better men to whom it had been entrusted.”

Kagan, unlike her two usual liberal allies, Associate Justices Sonia Sotomayor and Jackson, writes in clear and lucid English. In the past, she has demonstrated tolerance and understanding for views that differ from her own. . But excessive tolerance for “emergency powers” is a fatal flaw for a constitutional judge, according their possessor or usurper a trump card which renders all law irrelevant.

George Liebmann
George Liebmann is the president of the Library Company of the Baltimore Bar, is the author of The Tafts (Twelve Tables Press, 2023) and of works on diplomatic history, including Diplomacy Between the Wars: Five Diplomats and The Shaping of the Modern World and The Last American Diplomat: John D. Negroponte and His Times, 1960-2010, both published by Bloomsbury.

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