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Presidential Adjudication

Over the last several decades, administrative law has recognized an expanding role for the President in controlling agency decision-making. Agency adjudication—and especially formal hearings conducted under the Administrative Procedure Act (“APA”)—have been viewed as properly insulated from this development. To protect due process, the APA established a regime for ensuring that competent, impartial Administrative Law Judges (“ALJs”) preside over formal hearings. The regime includes two apparent levels of for-cause removal protection for ALJs combined with robust agency head control over the policymaking aspects of formal adjudication. Today, the regime is in peril because it appears to be inconsistent with the Supreme Court’s unitary executive theory of administration.

This Article defends the constitutionality of the APA’s ALJ regime under the Supreme Court’s recent separation of powers cases. It argues that the APA’s robust preservation of agency head control satisfies Article II, while its for-cause protections for ALJs ensure due process and faithful execution of the law through adjudicatory hearings. The statute is, in short, well-designed to ensure properly presidential adjudication.

The Article further argues, however, that there is a deeper conceptual challenge lurking here. The APA and the administrative state were founded upon a New Deal-era conception of administrative power as quasi-legislative and quasi-judicial and fundamentally not executive. Modern administrative law has rejected this conception, embracing instead the view that administrative power necessarily entails the exercise of executive power. The current threat to the APA offers an opportunity to improve upon this conception by recognizing that administration is about both discretion and duty. Political control has its place. But the President must also be able to rely on subordinate officers that Congress has equipped with the legal and institutional support necessary to fairly and faithfully execute the law.

Introduction

The Administrative Procedure Act’s (“APA”) most central reform—its regime for ensuring competent, impartial presiding officers in adjudicatory hearings—is on a collision course with the Supreme Court’s recent separation of powers jurisprudence. In peril is the APA’s structure for empowering and protecting Administrative Law Judges (“ALJs”), who preside over administrative hearings and issue initial decisions that may become final in the absence of agency head review.1 1.See 5 U.S.C. §§ 556(b)–(c), 557(b).Show More The primary threat to the regime is Free Enterprise Fund v. PCAOB,2 2.561 U.S. 477 (2010).Show More a 2010 case in which the Supreme Court held that “multilevel protection from removal is contrary to Article II’s vesting of the executive power in the President.”3 3.Id. at 484.Show More Seemingly like the structure at issue in Free Enterprise Fund, the APA’s ALJ structure entails “multilevel protection from removal.”4 4.Id.Show More ALJs can be removed from office only for cause, which is determined by the Merit Systems Protection Board (“MSPB”),5 5.See 5 U.S.C. § 7521.Show More the members of which likewise can be removed only for cause.6 6.See id. § 1202(d).Show More The situation is further complicated when ALJs are employed by independent agencies such as the Securities and Exchange Commission (“SEC”), which are headed by multimember bodies whose members likely enjoy for-cause removal protection.7 7.In Free Enterprise Fund, the parties and the majority assumed that SEC commissioners can be removed only for cause, although the SEC’s organic statute contains no for-cause provision. See 561 U.S. at 487; see also id.at 545–46 (Breyer, J., dissenting, joined by Stevens, Ginsburg & Sotomayor, JJ.) (noting that the majority “assume[d] without deciding that . . . SEC Commissioners . . . are removable only ‘for cause’” (emphasis omitted)). SEC commissioners are, however, appointed for a term of years, see 15 U.S.C. § 78d(a), which perhaps should be interpreted as a protection against removal by the President for the duration of the term. See Jane Manners & Lev Menand, The Three Permissions: Presidential Removal and the Statutory Limits of Agency Independence, 121 Colum. L. Rev. 1, 5 (2021). But see Severino v. Biden, 71 F.4th 1038, 1045–46 (D.C. Cir. 2023) (rejecting this approach to interpreting a statutory term of years).Show More The principle of Free Enterprise Fund would pose no threat to the APA if ALJs were mere employees, but the Supreme Court foreclosed this possibility in 2018, when it held in Lucia v. SEC that SEC ALJs are “Officers of the United States.”8 8.U.S. Const. art. II, § 2, cl. 2; Lucia v. SEC, 138 S. Ct. 2044, 2049 (2018). Although Lucia dealt only with ALJs employed by the SEC, its holding likely reaches ALJs employed by other agencies because of the similarity of functions. See Guidance on Administrative Law Judges After Lucia v. SEC (S. Ct.), July 2018, 132 Harv. L. Rev. 1120, 1122–23 (2019).Show More In Jarkesy v. SEC,9 9.34 F.4th 446 (5th Cir. 2022), aff’d on other grounds, 144 S. Ct. 2117, 2127, 2139 (2024).Show More the U.S. Court of Appeals for the Fifth Circuit held that the multilevel removal protection provided by the APA’s ALJ structure is unconstitutional under Free Enterprise Fund.10 10.Id. at 464.Show More Although the Supreme Court granted certiorari on this question, it affirmed the Fifth Circuit on alternative grounds.11 11.See Jarkesy, 144 S. Ct. at 2127, 2139; see also Petition for a Writ of Certiorari at I, Jarkesy, 144 S. Ct. 2117 (No. 22-859) (presenting several questions, including “[w]hether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection”).Show More But the Supreme Court will have to address the removal question eventually. The APA’s day of reckoning has only been delayed.

Lurking beneath the surface of this controversy is a more fundamental conflict: in recent decades, the Supreme Court has developed a conception of administrative action fundamentally at odds with that which prevailed in the New Deal era and animated the APA. As I have argued in prior work, the APA is based on a conception of administrative action as exclusively quasi-legislative and quasi-judicial, and fundamentally not executive.12 12.See Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. 377, 436–47 (2021) [hereinafter Bremer, Rediscovered Stages].Show More Although ordinarily associated with the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States,13 13.295 U.S. 602 (1935).Show More which involved the constitutionality of for-cause removal protection for commissioners of the FTC,14 14.Id. at 608.Show More this understanding of administrative power was not confined to independent regulatory commissions. To the contrary, this understanding applied to all statutory grants of quasi-legislative (rulemaking) or quasi-judicial (adjudication) power, whether made to an independent agency or a traditional executive department.15 15.See, e.g., Ariz. Grocery Co. v. Atchison, 284 U.S. 370, 389 (1932) (same but involving the Interstate Commerce Commission); Morgan v. United States, 298 U.S. 468, 477, 481–82 (1936) (applying the New Deal conception of “administrative” action to ratemaking conducted by the Department of Agriculture).Show More Indeed, the Attorney General’s Committee on Administrative Procedure—which conducted the extensive research that provided the APA’s “intellectual foundation”16 16.K.C. Davis, Walter Gellhorn & Paul Verkuil, Present at the Creation: Regulatory Reform Before 1946, 38 Admin. L. Rev. 511, 514 (1986). I have examined this research in detail in previous work. See Emily S. Bremer, The Undemocratic Roots of Agency Rulemaking, 108 Cornell L. Rev. 69, 90–93 (2022); Bremer, Rediscovered Stages, supra note 12, at 396–402. The relevant documents are available electronically in The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946, https://heinonline.‌org/HOL/Index?collection=bremer. See generally Emily S. Bremer & Kathryn E. Kovacs, Essay, Introduction to The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946 (HeinOnline 2021), 106 Minn. L. Rev. Headnotes 218 (2022) (offering a narrative introduction to the collection).Show More—employed this conception to scope its study.17 17.See Off. of the Att’y Gen., Final Report of the Attorney General’s Committee on Administrative Procedure 2–4 (1941) [hereinafter Final Report]. The Final Report is based on 27 monographs examining the procedures and practices of “administrative” agencies. See id. at 3–4. Purely “executive” agencies—such as the Government Printing Office, the Bureau of Standards, the Civil Service Commission (“CSC”), the Bureau of the Budget, and the General Accounting Office—were left out of the study. See id. at 5.Show More Only agencies that were “administrative” in the New Deal sense were included. This choice left an indelible mark on the APA, which regulates binding agency action according to the mutually exclusive categories of adjudication and rulemaking.18 18.See 5 U.S.C. § 551(4)–(7). “This particular line may be the APA’s most important innovation.” Kristin E. Hickman & Aaron L. Nielson, Narrowing Chevron’sDomain, 70 Duke L.J. 931, 942 (2021). It was inspired by—but “not on all fours with”—the pre-APA definitions of quasi-judicial and quasi-legislative action. Emily S. Bremer, Blame (or Thank) the Administrative Procedure Act for Florida East Coast Railway, 97 Chi.-Kent L. Rev. 79, 96–97 (2022) [hereinafter Bremer, Blame (or Thank)].Show More

When the APA was enacted in 1946, most administrative action was adjudication, and the statute’s primary aim was to address the constitutional challenges presented by this quasi-judicial form of agency action.19 19.The legislature was also influenced by concerns—made concrete by the World Wars and related political developments in Europe—about how to ensure effective administration without facilitating authoritarianism. See, e.g., Kathryn E. Kovacs, Avoiding Authoritarianism in the Administrative Procedure Act, 28 Geo. Mason L. Rev. 573, 596–600 (2021); Noah A. Rosenblum, The Antifascist Roots of Presidential Administration, 122 Colum. L. Rev. 1, 14, 48–49 (2022).Show More At the time, adjudication was understood as a staged or “phase[d]” process.20 20.See Final Report, supra note 17, at 5.Show More (Modern administrative law has forgotten this, although adjudication today retains its staged structure.21 21.See Bremer, Rediscovered Stages, supra note 12, at 433.Show More) The initial stage of adjudication involves myriad informal, non-hearing techniques such as investigations, inspections, examinations, conferences, negotiations, and settlements.22 22.See id. at 402–03.Show More In the relatively rare instances in which these techniques are insufficient to resolve a matter with the affected private party’s consent,23 23.See Final Report, supra note 17, at 35–38, 41–42.Show More a judicial-type hearing might be required to resolve the dispute. Congress often prefers that the needed hearing be conducted by the agency—rather than by a court on judicial review—and so includes a hearing requirement in the agency’s governing statute.24 24.Bremer, Rediscovered Stages, supra note 12, at 431.Show More This approach ensures the agency’s primary jurisdiction, but it presents significant constitutional challenges, threatening due process as a matter of both separation of powers and individual rights.25 25.For an originalist discussion of the relationship between due process and separation of powers, see Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1677–78 (2012). The sovereign power and individual rights aspects of due process are also observable, for example, in personal jurisdiction doctrine. See, e.g., Thomas D. Rowe, Jr., Suzanna Sherry & Jay Tidmarsh, Civil Procedure 452 (5th ed. 2020) (“The Court has wavered about whether personal-jurisdiction doctrine rests on individual liberty or state sovereignty (or both).”).Show More The need to address these challenges was the driving force behind the APA. The hearing provisions enacted by Congress achieved that goal by establishing a default procedural regime intended to apply across all adjudicating agencies.26 26.The APA’s procedures are a default because they apply unless Congress affirmatively elects to displace them. See 5 U.S.C. §§ 556(b), 559.Show More

In the three-quarters of a century since the APA’s adoption, rulemaking has become central to administration, working an inevitable change on the dominant conception of “administrative” power. Beginning in the 1960s and ’70s, rulemaking began to displace adjudication as the preferred method of agency policymaking,27 27.See, e.g., Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 Sup. Ct. Rev. 345, 376 (describing “the constant and accelerating flight away from individualized, adjudicatory proceedings to generalized disposition through rulemaking”); see also Alan B. Morrison, The Administrative Procedure Act: A Living and Responsive Law, 72 Va. L. Rev. 253, 254–55 (1986); Ralph F. Fuchs, Development and Diversification in Administrative Rule Making, 72 Nw. U. L. Rev. 83, 89 (1977) (noting the “growing tendency” of many agencies to confront policy issues via rulemaking rather than adjudication).Show More and Congress created a host of new agencies with broad statutory mandates to protect public health and safety through rules. This shift in turn heralded the rise of “presidential administration”28 28.See generally Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001) (analyzing the President’s recent primacy in setting the direction of administrative process); cf. Michael A. Livermore, Political Parties and Presidential Oversight, 67 Ala. L. Rev. 45, 53–61 (2015) (describing how executive restructuring, presidential control in administrative law, and evolution in the operation of American political parties have all contributed to increase the President’s influence in federal administration). For an early warning that this development might disrupt the carefully mediated tension between law and politics in administrative law, see Peter L. Strauss, Presidential Rulemaking, 72 Chi.-Kent L. Rev. 965, 984–86 (1997).Show More by giving presidents a “grip” on agency policymaking that was elusive when agencies primarily made policy incrementally, through ad hoc adjudication.29 29.See Emily S. Bremer, Power Corrupts, 41 Yale J. on Regul. 426, 456–58 (2024) [hereinafter Bremer, Power Corrupts].Show More In response to these developments, the Supreme Court’s administrative law docket increasingly focused on policymaking undertaken pursuant to statutes that grant broad discretion and contemplate a central role for rulemaking.30 30.The Chevron doctrine—according to which courts would defer to reasonable agency interpretations of the statutes by which Congress has delegated power to them—was both cause and consequence of this change in focus. See Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 865–66 (1984). This doctrine governed for forty years, but the Supreme Court recently overruled Chevron. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024).Show More As the Court has decided these modern disputes, a profoundly different—fundamentally executive—conception of administrative action has emerged.31 31.See, e.g., City of Arlington v. FCC, 569 U.S. 290, 304 n.4 (2013) (explaining that administrative actions “take ‘legislative’ and ‘judicial’ forms, but they are exercises of—indeed under our constitutional structure they must be exercises of—the ‘executive Power.’”).Show More At the same time, support has grown for a more unitary theory of executive power that seeks to legitimize agency action through the President’s democratic accountability.32 32.“Presidential Administration intersects with (while being distinct from) . . . the unitary executive theory,” which itself has both stronger and weaker formulations. Elena Chachko, Administrative National Security, 108 Geo. L.J. 1063, 1115 n.331 (2020). The important point for purposes of this Article is that there has been a strong trend in administrative law, which has manifested doctrinally in the Court’s recent separation of powers cases, to embrace presidential control of administration and to look skeptically on legal impediments to such control. See Mark Tushnet, A Political Perspective on the Theory of the Unitary Executive, 12 U. Pa. J. Const. L. 313, 315, 325–29 (2010); Steven G. Calabresi & Saikrishna B. Prakash,The President’s Power to Execute the Laws, 104 Yale L.J. 541, 545 (1994) (“Recently, the weight of academic opinion has shifted . . . to the theory of the unitary Executive.”); Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404, 404 (2023) (“Over the last decade, [the Supreme Court’s] majority has increasingly embraced a unitary theory of Article II . . . .”); cf. Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 Yale L.J. 2, 8 (2009) (arguing “that what count as ‘valid’ reasons under arbitrary and capricious review should be expanded to include certain political influences from the President, other executive officials, and members of Congress, so long as the political influences are openly and transparently disclosed in the agency’s rulemaking record”).Show More The result is a unitary executive conception of administration that fits most naturally with the type of agency action that spawned it: policymaking through the development and enforcement of general rules adopted pursuant to broad statutory delegations.

The Supreme Court now confronts the challenge of adapting its unitary executive conception of administration to formal adjudicatory hearings, a genuinely quasi-judicial form of agency action that implicates very different issues and values than those at stake in the rulemaking context. To date, adjudication generally has been viewed as an area of administration that is properly insulated from presidential control.33 33.Kagan, supra note 28, at 2306 (“The only mode of administrative action from which Clinton shrank was adjudication. At no time in his tenure did he attempt publicly to exercise the powers that a department head possesses over an agency’s on-the-record determinations.”); see also Wiener v. United States, 357 U.S. 349, 356 (1958) (holding that the adjudicative functions of the War Claims Commission “precluded the President from influencing the Commission in passing on a particular claim” and from removing a member of the Commission “for no reason other than that he preferred to have on that Commission men of his own choosing”); Myers v. United States, 272 U.S. 52, 135 (1926) (“Then there may be duties of a quasi-judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President can not in a particular case properly influence or control.”).Show More In her seminal article identifying the phenomenon of “presidential administration,” then-Professor Kagan recognized that adjudication “is fundamentally different” from other forms of agency policymaking such as rulemaking.34 34.Kagan, supra note 28, at 2362; see also Chachko, supra note 32, at 1122 (“Kagan herself did not argue for presidential administration of administrative adjudication.”).Show More In adjudication, “presidential participation in administration, of whatever form, would contravene procedural norms and inject an inappropriate influence into the resolution of controversies.”35 35.Kagan, supra note 28, at 2363; see also Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1211 (2013) (“Proponents of expansive presidential power to direct subordinates’ exercise of delegated discretion stop short of arguing for presidential directive power over adjudication, even where strictly executive agencies . . . are concerned.”).Show More Although presidential administration has made some inroads into the adjudication context, these developments have been limited.36 36.See, e.g., Jerry L. Mashaw & David Berke, Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience, 35 Yale J. on Regul. 549, 594–95 (2018) (noting, but “tak[ing] no position on,” the Obama Administration’s push for “more muscular use of adjudication and regulatory enforcement actions across agencies to further policy goals”); Memorandum from Dana Remus, Counsel to the President, to All White House Counsel Staff 1–2, 4–6, 10 (July 21, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/White-House-Policy-for-Contacts-with-Agencies-and-Department‌s.pdf [https://perma.cc/T2FA-VMNN] (advising White House staff not to contact agencies about the adjudication of specific cases). Although the Trump Administration issued some directives to agencies regarding the conduct of adjudication, these efforts were general, procedurally focused, and recommendatory. See, e.g., Memorandum from Paul J. Ray, Adm’r, Off. of Info. & Regul. Affs., to the Deputy Sec’ys of Exec. Dep’t & Agencies 1–3 (Aug. 31, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/08/M-20-31.pdf [https://perma‌.cc/9BNA-8WM9].Show More The Supreme Court nonetheless has seemed poised to extend its strong vision of the President’s executive power into the adjudicative space, an outcome that some commentators view as logical and appropriate.37 37.See, e.g., Vermeule, supra note 35, at 1212 (“If one believes that Presidents hold directive power over the delegated discretion of executive agencies, it is unclear why that power would not extend straightforwardly to adjudicative functions of agencies as well as rulemaking functions.”).Show More After all, the Constitution vests the executive power in the President, and “[a]gency adjudication, just as much as agency rulemaking, is an exercise of the ‘executive power’ under Article II.”38 38.Id.Show More

This Article argues that the APA’s ALJ regime is constitutional under the Supreme Court’s new approach because it provides the procedural and institutional structures necessary to ensure faithful execution of the law through administrative adjudication. At the level of legal doctrine, the important point is that the APA’s carefully constructed regime masterfully integrates procedural requirements, employment structures, and agency head control in a way that, taken together, promotes political accountability consistent with the demands of due process. Viewed in its totality, the APA’s regime erects only one—not two—effective levels of for-cause removal protection between the President and the ALJs.39 39.Although Free Enterprise Fund suggests that such a holistic, functional analysis is inappropriate, see 561 U.S. 477, 499–500 (2010), the Court’s more recent decision in United States v. Arthrex, Inc. embraces it, see 141 S. Ct. 1970, 1980–86 (2021).Show More The statute’s robust preservation of agency head control ensures proper presidential control over, and responsibility for, the policymaking aspects of formal adjudication.40 40.If there is an Article II problem to be found here, it is not in the APA’s regime but in the for-cause protection afforded to the principal officers who collectively form the head of agencies such as the SEC. The Court has so far been able to avoid squarely considering this question, but it should do so (in an appropriate case) instead of sacrificing the APA just to kick that can further down the road. See infra Section II.C.Show More Meanwhile, the for-cause removal protections and related employment structures enable the President to ensure impartial adjudication in hearings before the agencies and the MSPB, respectively. At the level of administrative theory, the analysis reveals that executive power in the adjudicatory context is more about discharging duties than exercising discretion. The President must be able to depend on inferior executive officers to fairly adjudicate (as required by due process) and faithfully execute the law (as required by Article II) through an incredible volume of formal adjudicatory hearings. Neither the President nor the heads of departments can review all of these adjudicatory decisions—they must be able to rely on delegation to inferior officers. The APA’s regime ensures that ALJs are sufficiently competent and impartial to meet this need,41 41.For example, ALJs must be lawyers, while non-ALJ adjudicators (often referred to as “administrative judges” or “AJs”) are not always subject to that requirement and often are not lawyers. See Kent Barnett, Against Administrative Judges, 49 U.C. Davis L. Rev. 1643, 1660, 1703 (2016). This may contribute to variable competence across adjudication programs and may also convey the impression that some kinds of agency adjudication are more important than others. Cf. Sara Sternberg Greene & Kristen M. Renberg, Judging Without a J.D., 122 Colum. L. Rev. 1287, 1291 (2022) (studying the use of lay judges in state courts and arguing that “allowing a system of nonlawyer judges perpetuates long-standing inequalities in how litigants experience courts”).Show More while agency heads have proper control over the adjudicatory programs for which they are responsible. From this perspective, it emerges that the restrictive aspects of the APA’s regime empower the President to ensure faithful execution in the unique, quasi-judicial context of formal administrative hearings.42 42.Cf. Robert L. Glicksman & Richard E. Levy, The New Separation of Powers Formalism and Administrative Adjudication, 90 Geo. Wash. L. Rev. 1088, 1096 (2022)(“[P]roperly understood, most administrative adjudication is fully consistent with separation of powers formalism because it involves the execution of the law by officials within the executive branch.”).Show More This insight in turn reveals a path toward reconciling the constitutional tensions between political accountability and impartiality protections in agency adjudication.43 43.See, e.g., Christopher J. Walker, Constitutional Tensions in Agency Adjudication, 104 Iowa L. Rev. 2679, 2680 (2019).Show More

This Article proceeds in three parts. Part I grounds this Article’s analysis in administrative history and reality. It explains the problems Congress sought to remedy by enacting the APA’s ALJ regime, examines that regime in detail, and explains the forces that threaten its continued viability. Part II argues that the APA’s hearing provisions are consistent with the Supreme Court’s recent separation of powers cases. The recent decision in United States v. Arthrex, Inc. is critical, for it establishes that the APA’s robust preservation of agency head control is sufficient to satisfy Article II. This in turn clarifies that if there is a constitutional infirmity in adjudication before independent agencies such as the SEC, it is to be found in for-cause protection for the agency’s principal officers. If the Supreme Court wants to address that issue, it should do so separately and directly. Part III goes deeper, arguing that the Supreme Court’s reconceptualization of administrative action over the last several decades presents deeper threats to administrative adjudication than has previously been recognized. It explores the challenges of embracing an executive theory of administrative adjudication, particularly in a time of presidential primacy. It argues that salvation can be found by embracing the substantial nondiscretionary aspects of formal adjudication and recognizing that proper restrictions on executive action are sometimes necessary to facilitate faithful execution of the law.

  1.  See 5 U.S.C. §§ 556(b)–(c), 557(b). ↑
  2.  561 U.S. 477 (2010). ↑
  3.  Id. at 484. ↑
  4.  Id. ↑
  5.  See 5 U.S.C. § 7521. ↑
  6.  See id. § 1202(d). ↑
  7.  In Free Enterprise Fund, the parties and the majority assumed that SEC commissioners can be removed only for cause, although the SEC’s organic statute contains no for-cause provision. See 561 U.S. at 487; see also id. at 545–46 (Breyer, J., dissenting, joined by Stevens, Ginsburg & Sotomayor, JJ.) (noting that the majority “assume[d] without deciding that . . . SEC Commissioners . . . are removable only ‘for cause’” (emphasis omitted)). SEC commissioners are, however, appointed for a term of years, see 15 U.S.C. § 78d(a), which perhaps should be interpreted as a protection against removal by the President for the duration of the term. See Jane Manners & Lev Menand, The Three Permissions: Presidential Removal and the Statutory Limits of Agency Independence, 121 Colum. L. Rev. 1, 5 (2021). But see Severino v. Biden, 71 F.4th 1038, 1045–46 (D.C. Cir. 2023) (rejecting this approach to interpreting a statutory term of years). ↑
  8.  U.S. Const. art. II, § 2, cl. 2; Lucia v. SEC, 138 S. Ct. 2044, 2049 (2018). Although Lucia dealt only with ALJs employed by the SEC, its holding likely reaches ALJs employed by other agencies because of the similarity of functions. See Guidance on Administrative Law Judges After Lucia v. SEC (S. Ct.), July 2018, 132 Harv. L. Rev. 1120, 1122–23 (2019). ↑
  9.  34 F.4th 446 (5th Cir. 2022), aff’d on other grounds, 144 S. Ct. 2117, 2127, 2139 (2024). ↑
  10.  Id. at 464. ↑
  11.  See Jarkesy, 144 S. Ct. at 2127, 2139; see also Petition for a Writ of Certiorari at I, Jarkesy, 144 S. Ct. 2117 (No. 22-859) (presenting several questions, including “[w]hether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection”). ↑
  12.  See Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. 377, 436–47 (2021) [hereinafter Bremer, Rediscovered Stages]. ↑
  13.  295 U.S. 602 (1935). ↑
  14.  Id. at 608. ↑
  15.  See, e.g., Ariz. Grocery Co. v. Atchison, 284 U.S. 370, 389 (1932) (same but involving the Interstate Commerce Commission); Morgan v. United States, 298 U.S. 468, 477, 481–82 (1936) (applying the New Deal conception of “administrative” action to ratemaking conducted by the Department of Agriculture). ↑
  16.  K.C. Davis, Walter Gellhorn & Paul Verkuil, Present at the Creation: Regulatory Reform Before 1946, 38 Admin. L. Rev. 511, 514 (1986). I have examined this research in detail in previous work. See Emily S. Bremer, The Undemocratic Roots of Agency Rulemaking, 108 Cornell L. Rev. 69, 90–93 (2022); Bremer, Rediscovered Stages, supra note 12, at 396–402. The relevant documents are available electronically in The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946, https://heinonline.‌org/HOL/Index?collection=bremer. See generally Emily S. Bremer & Kathryn E. Kovacs, Essay, Introduction to The Bremer-Kovacs Collection: Historic Documents Related to the Administrative Procedure Act of 1946 (HeinOnline 2021), 106 Minn. L. Rev. Headnotes 218 (2022) (offering a narrative introduction to the collection). ↑
  17.  See Off. of the Att’y Gen., Final Report of the Attorney General’s Committee on Administrative Procedure 2–4 (1941) [hereinafter Final Report]. The Final Report is based on 27 monographs examining the procedures and practices of “administrative” agencies. See id. at 3–4. Purely “executive” agencies—such as the Government Printing Office, the Bureau of Standards, the Civil Service Commission (“CSC”), the Bureau of the Budget, and the General Accounting Office—were left out of the study. See id. at 5. ↑
  18.  See 5 U.S.C. § 551(4)–(7). “This particular line may be the APA’s most important innovation.” Kristin E. Hickman & Aaron L. Nielson, Narrowing Chevron’s Domain, 70 Duke L.J. 931, 942 (2021). It was inspired by—but “not on all fours with”—the pre-APA definitions of quasi-judicial and quasi-legislative action. Emily S. Bremer, Blame (or Thank) the Administrative Procedure Act for Florida East Coast Railway, 97 Chi.-Kent L. Rev. 79, 96–97 (2022) [hereinafter Bremer, Blame (or Thank)]. ↑
  19.  The legislature was also influenced by concerns—made concrete by the World Wars and related political developments in Europe—about how to ensure effective administration without facilitating authoritarianism. See, e.g., Kathryn E. Kovacs, Avoiding Authoritarianism in the Administrative Procedure Act, 28 Geo. Mason L. Rev. 573, 596–600 (2021); Noah A. Rosenblum, The Antifascist Roots of Presidential Administration, 122 Colum. L. Rev. 1, 14, 48–49 (2022). ↑
  20.  See Final Report, supra note 17, at 5. ↑
  21.  See Bremer, Rediscovered Stages, supra note 12, at 433. ↑
  22.  See id. at 402–03. ↑
  23.  See Final Report, supra note 17, at 35–38, 41–42. ↑
  24.  Bremer, Rediscovered Stages, supra note 12, at 431. ↑
  25.  For an originalist discussion of the relationship between due process and separation of powers, see Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1677–78 (2012). The sovereign power and individual rights aspects of due process are also observable, for example, in personal jurisdiction doctrine. See, e.g., Thomas D. Rowe, Jr., Suzanna Sherry & Jay Tidmarsh, Civil Procedure 452 (5th ed. 2020) (“The Court has wavered about whether personal-jurisdiction doctrine rests on individual liberty or state sovereignty (or both).”). ↑
  26.  The APA’s procedures are a default because they apply unless Congress affirmatively elects to displace them. See 5 U.S.C. §§ 556(b), 559. ↑
  27.  See, e.g., Antonin Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 Sup. Ct. Rev. 345, 376 (describing “the constant and accelerating flight away from individualized, adjudicatory proceedings to generalized disposition through rulemaking”); see also Alan B. Morrison, The Administrative Procedure Act: A Living and Responsive Law, 72 Va. L. Rev. 253, 254–55 (1986); Ralph F. Fuchs, Development and Diversification in Administrative Rule Making, 72 Nw. U. L. Rev. 83, 89 (1977) (noting the “growing tendency” of many agencies to confront policy issues via rulemaking rather than adjudication). ↑
  28.  See generally Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245 (2001) (analyzing the President’s recent primacy in setting the direction of administrative process); cf. Michael A. Livermore, Political Parties and Presidential Oversight, 67 Ala. L. Rev. 45, 53–61 (2015) (describing how executive restructuring, presidential control in administrative law, and evolution in the operation of American political parties have all contributed to increase the President’s influence in federal administration). For an early warning that this development might disrupt the carefully mediated tension between law and politics in administrative law, see Peter L. Strauss, Presidential Rulemaking, 72 Chi.-Kent L. Rev. 965, 984–86 (1997). ↑
  29.  See Emily S. Bremer, Power Corrupts, 41 Yale J. on Regul. 426, 456–58 (2024) [hereinafter Bremer, Power Corrupts]. ↑
  30.  The Chevron doctrine—according to which courts would defer to reasonable agency interpretations of the statutes by which Congress has delegated power to them—was both cause and consequence of this change in focus. See Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 865–66 (1984). This doctrine governed for forty years, but the Supreme Court recently overruled Chevron. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024). ↑
  31.  See, e.g., City of Arlington v. FCC, 569 U.S. 290, 304 n.4 (2013) (explaining that administrative actions “take ‘legislative’ and ‘judicial’ forms, but they are exercises of—indeed under our constitutional structure they must be exercises of—the ‘executive Power.’”). ↑
  32.  “Presidential Administration intersects with (while being distinct from) . . . the unitary executive theory,” which itself has both stronger and weaker formulations. Elena Chachko, Administrative National Security, 108 Geo. L.J. 1063, 1115 n.331 (2020). The important point for purposes of this Article is that there has been a strong trend in administrative law, which has manifested doctrinally in the Court’s recent separation of powers cases, to embrace presidential control of administration and to look skeptically on legal impediments to such control. See Mark Tushnet, A Political Perspective on the Theory of the Unitary Executive, 12 U. Pa. J. Const. L. 313, 315, 325–29 (2010); Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 545 (1994) (“Recently, the weight of academic opinion has shifted . . . to the theory of the unitary Executive.”); Andrea Scoseria Katz & Noah A. Rosenblum, Removal Rehashed, 136 Harv. L. Rev. F. 404, 404 (2023) (“Over the last decade, [the Supreme Court’s] majority has increasingly embraced a unitary theory of Article II . . . .”); cf. Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 Yale L.J. 2, 8 (2009) (arguing “that what count as ‘valid’ reasons under arbitrary and capricious review should be expanded to include certain political influences from the President, other executive officials, and members of Congress, so long as the political influences are openly and transparently disclosed in the agency’s rulemaking record”). ↑
  33.  Kagan, supra note 28, at 2306 (“The only mode of administrative action from which Clinton shrank was adjudication. At no time in his tenure did he attempt publicly to exercise the powers that a department head possesses over an agency’s on-the-record determinations.”); see also Wiener v. United States, 357 U.S. 349, 356 (1958) (holding that the adjudicative functions of the War Claims Commission “precluded the President from influencing the Commission in passing on a particular claim” and from removing a member of the Commission “for no reason other than that he preferred to have on that Commission men of his own choosing”); Myers v. United States, 272 U.S. 52, 135 (1926) (“Then there may be duties of a quasi-judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President can not in a particular case properly influence or control.”). ↑
  34.  Kagan, supra note 28, at 2362; see also Chachko, supra note 32, at 1122 (“Kagan herself did not argue for presidential administration of administrative adjudication.”). ↑
  35.  Kagan, supra note 28, at 2363; see also Adrian Vermeule, Conventions of Agency Independence, 113 Colum. L. Rev. 1163, 1211 (2013) (“Proponents of expansive presidential power to direct subordinates’ exercise of delegated discretion stop short of arguing for presidential directive power over adjudication, even where strictly executive agencies . . . are concerned.”). ↑
  36.  See, e.g., Jerry L. Mashaw & David Berke, Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience, 35 Yale J. on Regul. 549, 594–95 (2018) (noting, but “tak[ing] no position on,” the Obama Administration’s push for “more muscular use of adjudication and regulatory enforcement actions across agencies to further policy goals”); Memorandum from Dana Remus, Counsel to the President, to All White House Counsel Staff 1–2, 4–6, 10 (July 21, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/White-House-Policy-for-Contacts-with-Agencies-and-Department‌s.pdf [https://perma.cc/T2FA-VMNN] (advising White House staff not to contact agencies about the adjudication of specific cases). Although the Trump Administration issued some directives to agencies regarding the conduct of adjudication, these efforts were general, procedurally focused, and recommendatory. See, e.g., Memorandum from Paul J. Ray, Adm’r, Off. of Info. & Regul. Affs., to the Deputy Sec’ys of Exec. Dep’t & Agencies 1–3 (Aug. 31, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/08/M-20-31.pdf [https://perma‌.cc/9BNA-8WM9]. ↑
  37.  See, e.g., Vermeule, supra note 35, at 1212 (“If one believes that Presidents hold directive power over the delegated discretion of executive agencies, it is unclear why that power would not extend straightforwardly to adjudicative functions of agencies as well as rulemaking functions.”). ↑
  38.  Id. ↑
  39.  Although Free Enterprise Fund suggests that such a holistic, functional analysis is inappropriate, see 561 U.S. 477, 499–500 (2010), the Court’s more recent decision in United States v. Arthrex, Inc. embraces it, see 141 S. Ct. 1970, 1980–86 (2021). ↑
  40.  If there is an Article II problem to be found here, it is not in the APA’s regime but in the for-cause protection afforded to the principal officers who collectively form the head of agencies such as the SEC. The Court has so far been able to avoid squarely considering this question, but it should do so (in an appropriate case) instead of sacrificing the APA just to kick that can further down the road. See infra Section II.C. ↑
  41.  For example, ALJs must be lawyers, while non-ALJ adjudicators (often referred to as “administrative judges” or “AJs”) are not always subject to that requirement and often are not lawyers. See Kent Barnett, Against Administrative Judges, 49 U.C. Davis L. Rev. 1643, 1660, 1703 (2016). This may contribute to variable competence across adjudication programs and may also convey the impression that some kinds of agency adjudication are more important than others. Cf. Sara Sternberg Greene & Kristen M. Renberg, Judging Without a J.D., 122 Colum. L. Rev. 1287, 1291 (2022) (studying the use of lay judges in state courts and arguing that “allowing a system of nonlawyer judges perpetuates long-standing inequalities in how litigants experience courts”). ↑
  42.  Cf. Robert L. Glicksman & Richard E. Levy, The New Separation of Powers Formalism and Administrative Adjudication, 90 Geo. Wash. L. Rev. 1088, 1096 (2022) (“[P]roperly understood, most administrative adjudication is fully consistent with separation of powers formalism because it involves the execution of the law by officials within the executive branch.”). ↑

  43.  See, e.g., Christopher J. Walker, Constitutional Tensions in Agency Adjudication, 104 Iowa L. Rev. 2679, 2680 (2019). ↑

The Case for City Reparations

Once a political boogeyman, calls for Black reparations as a means to advance racial justice in the United States have become increasingly earnest, particularly in the wake of George Floyd’s murder. But among those who view reparations as morally imperative, there is much disagreement about where they should occur. Proponents of reparations have called on federal, state, and local government to implement reparatory justice. But so far, only one institution has meaningfully responded: cities. For the first time in American history, cities across the country are beginning to implement reparations. In this Note, I argue that cities both can and should adopt reparatory policies, as city government—not state or federal—is best positioned to craft effective and constitutional reparations. After surveying current municipal reparations policies, I contend that cities are the correct level at which to pioneer reparations for three reasons: normative, pragmatic, and constitutional. Normative, because city government is proximate, responsive, and capable of unique policy innovation. Pragmatic, because cities enjoy supportive political coalitions that become improbable at the state and federal levels. And constitutional, because race-based programs like reparations must identify and connect a historic harm “with particularity” to the remedy to pass legal muster, which cities are uniquely well-suited to do. After making the case for cities as the proper venue, I suggest ways in which cities can both find reparatory power and avoid unwanted interference by their home states.

Introduction

American reparations are nearly as old as the country itself. From pre-Civil War abolitionist attempts1 1.Gary B. Nash, Warner Mifflin: Unflinching Quaker Abolitionist 101–02 (Daniel K. Richter, Kathleen M. Brown, Max Cavitch & David Waldstreicher eds., 2017).Show More to General Sherman’s Field Order No. 15,2 2.William A. Darity Jr. & A. Kirsten Mullen, From Here to Equality: Reparations for Black Americans in the Twenty-First Century 9 (2d ed. 2020).Show More many Americans have long sought to advance racial justice through reparatory programs. And while these early attempts foundered on the shoals of virulent bigotry and political impossibility, today’s renewed calls for reparations are no longer falling on deaf ears.3 3.Many credit Ta-Nehisi Coates’s groundbreaking 2014 article The Case for Reparations with popularizing the idea of modern American reparations. See Jonathan Capehart, How Ta-Nehisi Coates Turned Reparations from a Punchline into a Policy Objective, Wash. Post (Mar. 20, 2019, 3:25 PM), https://www.washingtonpost.com/opinions/2019/03/20/how-ta-nehisi-co‌ates-turned-reparations-punchline-into-policy-objective/ [https://perma.cc/D2AL-BURY]; Ta-Nehisi Coates, The Case for Reparations, The Atlantic (June 2014), https://www.theatlanti‌c.com/magazine/archive/2014/06/the-case-for-reparations/361631/ [https://perma.cc/5XHN-8WW8].Show More

In the wake of George Floyd’s murder, public support for reparations grew tremendously, particularly among white Americans.4 4.See Ashley V. Reichelmann & Matthew O. Hunt, How We Repair It: White Americans’ Attitudes Toward Reparations, Brookings Inst. (Dec. 8, 2021), https://www.brookings.edu/arti‌cles/how-we-repair-it-white-americans-attitudes-toward-reparations/ [https://perma.cc/5KB9‌-XSXX] (noting that white American support for cash reparations grew from 6% in 2014 to 28% in 2021, an increase of over 300%).Show More As then-California Assemblywoman Shirley Weber put it at the time, “Folks [are] now begin[ning] to realize just how extensively, how deeply, issues of race are embedded in our society and how that can produce what we saw happen to George Floyd in Minneapolis.”5 5.Lauren Gambino, Calls for Reparations Are Growing Louder. How Is the US Responding?, The Guardian (June 20, 2020, 5:00 AM), https://www.theguardian.com/world/‌2020/jun/20/joe-biden-reparations-slavery-george-floyd-protests [https://perma.cc/FE3T-GY‌RA].Show More When Americans began to call for reparations, policymakers in city, state, and federal government all made commitments to consider reparatory justice.6 6.See, e.g., Eugene Daniels, Biden Privately Tells Lawmakers Not to Expect Much on Reparations Legislation, Politico (June 2, 2021, 1:46 PM), https://www.politico.com/news/20‌21/06/02/biden-reparations-tulsa-491607 [https://perma.cc/4B27-WBXU] (“As a candidate, Biden said he supported a commission on reparations.”); Madeline Holcombe, California Passes a First-of-Its-Kind Law to Consider Reparations for Slavery, CNN (Oct. 1, 2020, 8:27 AM), https://www.cnn.com/2020/10/01/us/california-bill-slavery-reparations-trnd/index‌.html [https://perma.cc/5BP9-FW6D] (describing California Governor Gavin Newsom’s support for a statewide reparations committee); Adam Beam, 11US Mayors Pledge to Pay Reparations for Slavery to Small Groups of Black Residents, USA Today (June 20, 2021, 1:35 PM), https://www.usatoday.com/story/news/nation/2021/06/19/reparations-slavery-pled‌ged-11-us-mayors-pilot-program/7753319002/ [https://perma.cc/G92D-68RM].Show More But while leaders in state and national governments later hedged on those commitments,7 7.See, e.g., Daniels, supra note 6; Jeremy B. White, Cash for Slavery Reparations in California Draws Cool Response from Newsom, Politico (May 10, 2023, 1:23 PM), https://‌www.politico.com/news/2023/05/10/slavery-reparations-california-newsom-00096211 [https://perma.cc/MM9Y-ME85].Show More city officials capitalized on the movement’s momentum and became the first governments in the country to seriously attempt reparations. Today, a handful of American cities are already administering reparatory programs;8 8.See, e.g., Evanston Local Reparations, City of Evanston, https://www.cityofevanston.org‌/government/city-council/reparations [https://perma.cc/U8RA-8V44] (last visited Aug. 30, 2024).Show More many others have established task forces to lay the groundwork for their own programs.9 9.See, e.g., Community Reparations Commission, City of Asheville, https://www.asheville‌nc.gov/department/city-clerk/boards-and-commissions/reparations-commission/ [https://per‌ma.cc/BD4Z-L5NM] (last updated Aug. 15, 2024).Show More

In this Note, I argue that cities both can and should adopt reparatory policies. City government—not state or federal—is the best venue for achieving both effective and constitutional reparations. In Part I, I review the various definitions of reparations, survey the landscape of current city reparations programs, and consider evidence of those programs’ success. In Part II, I argue that cities are the best venues for reparations for three principal reasons. First, these reasons are normative, because city government is proximate, responsive, and capable of unique policy innovation. Next, they are pragmatic, because cities enjoy supportive political coalitions that become improbable at the state and federal levels. And finally, these reasons are constitutional, because race-based programs like reparations must connect to a historic harm “with particularity” to pass legal muster, which cities are uniquely well-suited to do. In Part III, I suggest several practical considerations for cities seeking to craft their own reparations policies—principal among them, financing their program and avoiding interference by the state in which they sit.

It is prudent to acknowledge that this Note is grounded in one fundamental principle: reparations are morally appropriate. I do not waive this debate lightly.10 10.Much has been said already about the need for reparations, but the debate continues. For arguments in favor of reparations, see Coates, supra note 3. See generally Susan S. Kuo & Benjamin Means, A Corporate Law Rationale for Reparations, 62 B.C. L. Rev. 799 (2021) (arguing that the corporate law model can bolster the argument for reparations and responding to the objection that individuals are not personally responsible for slavery and Jim Crow laws); Joyce Hope Scott, Reparations, Restitution, and Transitional Justice: American Chattel Slavery & Its Aftermath, A Moral Debate Whose Time Has Come, 39 Wis. Int’lL.J. 269 (2022) (arguing for slavery reparations to acknowledge and redress the civil and human rights violations of slavery and beyond). For arguments against the moral and legal propriety of reparations, see Richard A. Epstein, The Case Against Black Reparations, 84 B.U. L. Rev. 1177 (2004) (contending that reparations will not work as a legal matter); Gregory Kane, Comment, Why the Reparations Movement Should Fail, 3 U. Md. L.J. Race, Religion, Gender & Class 189 (2003) (arguing that reparations are not the proper vehicle for repairing historic harms to Black Americans).Show More My argument, however, is responsive to the question of where reparations should occur, not why they should—though I hope that place-based arguments will speak indirectly to the normative value of reparations themselves. In short, my argument is rooted in a belief that the moral propriety of reparations cannot, and indeed must not, be divorced from how they are achieved and where they occur—but because there has been much written on the former, I turn my attention instead to the latter.

  1.  Gary B. Nash, Warner Mifflin: Unflinching Quaker Abolitionist 101–02 (Daniel K. Richter, Kathleen M. Brown, Max Cavitch & David Waldstreicher eds., 2017). ↑
  2.  William A. Darity Jr. & A. Kirsten Mullen, From Here to Equality: Reparations for Black Americans in the Twenty-First Century 9 (2d ed. 2020). ↑
  3.  Many credit Ta-Nehisi Coates’s groundbreaking 2014 article The Case for Reparations with popularizing the idea of modern American reparations. See Jonathan Capehart, How Ta-Nehisi Coates Turned Reparations from a Punchline into a Policy Objective, Wash. Post (Mar. 20, 2019, 3:25 PM), https://www.washingtonpost.com/opinions/2019/03/20/how-ta-nehisi-co‌ates-turned-reparations-punchline-into-policy-objective/ [https://perma.cc/D2AL-BURY]; Ta-Nehisi Coates, The Case for Reparations, The Atlantic (June 2014), https://www.theatlanti‌c.com/magazine/archive/2014/06/the-case-for-reparations/361631/ [https://perma.cc/5XHN-8WW8]. ↑
  4.  See Ashley V. Reichelmann & Matthew O. Hunt, How We Repair It: White Americans’ Attitudes Toward Reparations, Brookings Inst. (Dec. 8, 2021), https://www.brookings.edu/arti‌cles/how-we-repair-it-white-americans-attitudes-toward-reparations/ [https://perma.cc/5KB9‌-XSXX] (noting that white American support for cash reparations grew from 6% in 2014 to 28% in 2021, an increase of over 300%). ↑
  5.  Lauren Gambino, Calls for Reparations Are Growing Louder. How Is the US Responding?, The Guardian (June 20, 2020, 5:00 AM), https://www.theguardian.com/world/‌2020/jun/20/joe-biden-reparations-slavery-george-floyd-protests [https://perma.cc/FE3T-GY‌RA]. ↑
  6.  See, e.g., Eugene Daniels, Biden Privately Tells Lawmakers Not to Expect Much on Reparations Legislation, Politico (June 2, 2021, 1:46 PM), https://www.politico.com/news/20‌21/06/02/biden-reparations-tulsa-491607 [https://perma.cc/4B27-WBXU] (“As a candidate, Biden said he supported a commission on reparations.”); Madeline Holcombe, California Passes a First-of-Its-Kind Law to Consider Reparations for Slavery, CNN (Oct. 1, 2020, 8:27 AM), https://www.cnn.com/2020/10/01/us/california-bill-slavery-reparations-trnd/index‌.html [https://perma.cc/5BP9-FW6D] (describing California Governor Gavin Newsom’s support for a statewide reparations committee); Adam Beam, 11 US Mayors Pledge to Pay Reparations for Slavery to Small Groups of Black Residents, USA Today (June 20, 2021, 1:35 PM), https://www.usatoday.com/story/news/nation/2021/06/19/reparations-slavery-pled‌ged-11-us-mayors-pilot-program/7753319002/ [https://perma.cc/G92D-68RM]. ↑
  7.  See, e.g., Daniels, supra note 6; Jeremy B. White, Cash for Slavery Reparations in California Draws Cool Response from Newsom, Politico (May 10, 2023, 1:23 PM), https://‌www.politico.com/news/2023/05/10/slavery-reparations-california-newsom-00096211 [https://perma.cc/MM9Y-ME85]. ↑
  8.  See, e.g., Evanston Local Reparations, City of Evanston, https://www.cityofevanston.org‌/government/city-council/reparations [https://perma.cc/U8RA-8V44] (last visited Aug. 30, 2024). ↑
  9.  See, e.g., Community Reparations Commission, City of Asheville, https://www.asheville‌nc.gov/department/city-clerk/boards-and-commissions/reparations-commission/ [https://per‌ma.cc/BD4Z-L5NM] (last updated Aug. 15, 2024). ↑

  10.  Much has been said already about the need for reparations, but the debate continues. For arguments in favor of reparations, see Coates, supra note 3. See generally Susan S. Kuo & Benjamin Means, A Corporate Law Rationale for Reparations, 62 B.C. L. Rev. 799 (2021) (arguing that the corporate law model can bolster the argument for reparations and responding to the objection that individuals are not personally responsible for slavery and Jim Crow laws); Joyce Hope Scott, Reparations, Restitution, and Transitional Justice: American Chattel Slavery & Its Aftermath, A Moral Debate Whose Time Has Come, 39 Wis. Int’l

    L.J. 269 (2022) (arguing for slavery reparations to acknowledge and redress the civil and human rights violations of slavery and beyond). For arguments against the moral and legal propriety of reparations, see Richard A. Epstein, The Case Against Black Reparations, 84 B.U. L. Rev. 1177 (2004) (contending that reparations will not work as a legal matter); Gregory Kane, Comment, Why the Reparations Movement Should Fail, 3 U. Md. L.J. Race, Religion, Gender & Class 189 (2003) (arguing that reparations are not the proper vehicle for repairing historic harms to Black Americans). ↑

History and the School Prayer Cases

In a series of two decisions known as the School Prayer Cases, the Supreme Court famously held that the Establishment Clause forbids state-sponsored prayer in public schools—even where the government provides opt-outs for dissenters. Yet subsequent legal developments have rendered those decisions unstable. And with the Court’s recent turn to “historical practices and understandings,” many question whether the School Prayer Cases can possibly survive.

It is too soon to tell where the Court’s renewed focus on Founding-era history might lead. But this Article contends, contrary to both some originalist Justices and their critics, that a focus on history does not spell the end of the School Prayer Cases. On the contrary, it may well place those decisions on firmer ground.

In a recent opinion, the Supreme Court observed that state-sponsored school prayer bears some relation to at least one “hallmark” of Founding-era establishments—namely, laws requiring citizens to attend worship in the established church. Contrary to what some Justices have suggested, however, the problem with these Founding-era laws was not that they lacked exemptions for dissenters. Rather, for the Founding generation, laws mandating attendance at state-sponsored worship were objectionable, opt-outs or no, because such laws exceeded the government’s rightful authority. On this view, the key feature of the School Prayer Cases is not the presence or absence of exemptions or proof of individual coercion. Instead, it is the government’s claimed right to mandate attendance at worship in the first place, no matter how tolerant the scheme. And understanding that point may offer important insight into larger questions about the propriety and limits of government-sponsored prayer, inside as well as outside of public schools.

Introduction

Speaking to a crowd on the morning of June 25, 1962, Justice Hugo Black’s voice quaked with emotion.1 1.See Roger K. Newman, Hugo Black: A Biography 522–23 (1994). The incident also appears in Andrew Koppelman, Defending American Religious Neutrality 67–68 (2013).Show More As he cradled a paper that shook slightly as he spoke, Justice Black uttered words that would become immortal: “The Establishment Clause thus stands as an expression of principle . . . that religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate.”2 2.Engel v. Vitale, 370 U.S. 421, 431–32 (1962) (quoting James Madison, Memorial and Remonstrance Against Religious Assessments, in 2 The Writings of James Madison 183, 187 (Gaillard Hunt ed., 1901)).Show More With that sentence and several that followed, Justice Black announced to the country that—contrary to most people’s expectations—the Establishment Clause forbade requiring public-school students to say a brief prayer during the school’s morning exercises.3 3.See Corinna Barrett Lain, God, Civic Virtue, and the American Way: Reconstructing Engel, 67 Stan. L. Rev. 479, 507–14 (2015) (describing the outcry over Engel).Show More “[T]he right of the people to pray in their own way,” Justice Black added extemporaneously, “is not to be controlled by the election returns.”4 4.Anthony Lewis, Supreme Court Outlaws Official School Prayers in Regents Case Decision, N.Y. Times, June 26, 1962, at 16.Show More

So was the birth of the two decisions that became the Supreme Court’s famous School Prayer Cases. In Engel v. Vitale, the opinion containing Justice Black’s immortal words, the Court held that a New York program requiring students to begin the day with a formulaic, government-composed prayer violated the Establishment Clause.5 5.370 U.S. at 422, 436.Show More A year later, in School District of Abington Township v. Schempp, the Court doubled down on that holding by asserting that, whether government composes the prayer or not, requiring government-led prayer and devotional Bible reading in public schools violates the Establishment Clause.6 6.374 U.S. 203, 205 (1963).Show More And most importantly, in both cases, the Court expressly rejected the argument that excusing objecting students removed the constitutional problem.7 7.Engel, 370 U.S. at 430; Schempp, 374 U.S. at 224–25.Show More

Scholars have generally supported the School Prayer Cases, albeit with some notable dissents.8 8.For examples of scholarship praising the School Prayer Cases or building on their rationales, see Stephanie H. Barclay, The Religion Clauses After Kennedy v. Bremerton School District, 108 Iowa L. Rev. 2097, 2107–09 (2023); William P. Marshall, The Constitutionality of School Prayer: Or Why Engel v. Vitale May Have Had It Right All Along, 46 Cap. U. L. Rev. 339, 341–42 (2018); Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 119–22 (2014); Koppelman, supranote 1, at 67–71. For a provocative dissent, see generally Steven D. Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions, 38 Pepp. L. Rev. 945 (2011) (arguing the School Prayer Cases deepened divides in America by constitutionalizing secularism).Show More But as a matter of so-called “popular constitutionalism,” the School Prayer Cases are some of the more controversial decisions in Supreme Court history.9 9.See, e.g., Bruce J. Dierenfield, The Battle Over School Prayer: How Engel v. Vitale Changed America, at vii (2007) (claiming Engel was “greeted with more shock and criticism than Dred Scott v. Sandford”); Lain, supra note 3, at 507–14 (similar). For more on “popular constitutionalism,” see generally Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004).Show More Following Engel, governors in every state but one supported a resolution to overturn the decision.10 10.Lain, supra note 3, at 512.Show More More than half of Americans disapproved of the outcomes when Engel and Schempp were decided,11 11.Id. at 482, 522 n.271 (discussing contemporaneous polling).Show More and polling indicates similar disagreement persists today.12 12.As of 2019, “roughly four-in-ten teens (including 68% of evangelical Protestant teens) who go to public school say they think it is ‘appropriate’ for a teacher to lead a class in prayer.” For a Lot of American Teens, Religion Is a Regular Part of the Public School Day, Pew Rsch. Ctr. (Oct. 3, 2019), https://www.pewresearch.org /religion/2019/10/03/for-a-lot-of-american-teens-religion-is-a-regular-part-of-the-public-school-day/ [https://perma.cc/VHJ8-XFRP].Show More Members of Congress have introduced no fewer than ten bills to strip the Supreme Court of jurisdiction over the topic of school prayer, not to mention hundreds of proposed constitutional amendments.13 13.See Cong. Rsch. Serv., School Prayer: The Congressional Response, 1962–1998, at 1–2 (1998).Show More And just last year, New York City Mayor Eric Adams openly lamented the School Prayer Cases, insisting that “[w]hen we took prayers out of schools, guns came into schools.”14 14.Dana Rubinstein, Adams, Discussing Faith, Dismisses Idea of Separating Church and State, N.Y. Times (Feb. 28, 2023), https://www.nytimes.com/2023/02/28/nyregion/eric-adam‌s-religion-church.html [https://perma.cc/6UTX-F5V2].Show More

In some measure, of course, disagreement about government-led school prayer is predictable. Since the mid-nineteenth century, public schools have played an important role in instilling moral values in children through government intervention—a project nearly always rife with controversy.15 15.For one thoughtful perspective on this problem, see generally Noah Feldman, Non-sectarianism Reconsidered, 18 J.L. & Pol. 65 (2002).Show More But the School Prayer Cases are about more than that. They are also part of a larger set of questions about the propriety of government-sponsored religious observance. Can government officials lead citizens in prayer? If not, what about examples like prayers at presidential inaugurations or prayers by military chaplains? If so, what are the limits government cannot transgress? As it turns out, those questions are far from settled. In fact, they are very much up for debate.

The puzzle comes about this way. In recent opinions, the Supreme Court has emphasized that, from now on, the Establishment Clause must be interpreted primarily in light of “historical practices and understandings” as evidenced by “the Founding Fathers.”16 16.Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2428 (2022) (quoting Town of Greece v. Galloway, 572 U.S. 565, 576–77 (2014)); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019) (quoting Town of Greece, 572 U.S. at 576) (same).Show More And in modern cases involving government-sponsored religious observance including the School Prayer Cases, the Court has relied on two theories to justify its decisions: one about government religious speech, and a second based on what the Court has called “indirect coercion.”17 17.See infra Sections I.A, I.B (describing these theories).Show More Yet, at least arguably, neither theory sits comfortably with the Court’s more recent focus on Founding-era history.

The government-speech theory holds that the Establishment Clause forbids government from engaging in official religious speech—that is, speech that serves clearly devotional purposes.18 18.See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223–24 (1963); Santa Fe Indep. Sch. Dist. v. Doe,530 U.S. 290, 305–08 (2000). The government-speech theory became closely related to the three-part test first articulated in Lemon v. Kurtzman,403 U.S. 602, 612–13 (1971).Show More Yet the Court never explained how this rule was consistent with long-accepted practices like legislative prayer, thanksgiving proclamations, or prayers by military chaplains or at presidential inaugurations.19 19.See infra Section I.A (discussing these practices).Show More And subsequently, the Court has upheld these practices—most notably, legislative prayer—while rejecting the idea that the Constitution forbids government from speaking religious messages.20 20.Marsh v. Chambers, 463 U.S. 783, 787–92 (1983); Town of Greece, 572 U.S. at 575–85; see also id. at 616 (Kagan, J., dissenting) (disagreeing on the outcome in Town of Greece while agreeing with Marsh’s decision “upholding [a] tradition of beginning each session with a chaplain’s prayer”).Show More Judged against history and precedent, the government-speech rationale faces significant hurdles.

A similar problem persists with respect to the coercion rationale. In Lee v. Weisman, the Court held that a public school district violated the Establishment Clause by including government-sponsored prayer at a middle school graduation.21 21.505 U.S. 577, 599 (1992).Show More Drawing on another strand of the original School Prayer Cases, Justice Kennedy insisted that the fundamental problem with government-led school prayer is the “indirect coercion” students face from “peer pressure.”22 22.Id.at 592–93.Show More But Justice Kennedy’s expansive theory of coercion flowed from modern psychology, not Founding-era history.23 23.Id. at 593–94.Show More Moreover, Justice Kennedy did not explain why the indirect-coercion rule does not render many other common practices unconstitutional. To take just one example, if opt-outs cannot dispel the coercion inherent in government-led school prayer, why doesn’t the same conclusion follow as to requiring students to recite the Pledge of Allegiance, or requiring participation in some other school activity where a student objects on free-speech grounds?24 24.For the classic exposition of this problem, see generally Abner S. Greene, The Pledge of Allegiance Problem, 64 Fordham L. Rev. 451 (1995).Show More If peer pressure persists here too, are all these activities unconstitutional, opt-outs or no?

In a well-known dissent, Justice Scalia offered a different perspective. Pointing to various Founding-era practices associated with religious establishments—especially church-attendance laws and compulsory tithes—Justice Scalia agreed that the Establishment Clause forbids “coerc[ing] anyone to . . . participate in religion or its exercise.”25 25.Lee, 505 U.S. at 640–42 (Scalia, J., dissenting) (quoting id. at 587 (majority opinion)).Show More But according to Justice Scalia, history indicated that the Founding generation endorsed nothing like indirect coercion, much less a ban on government religious speech. Instead, they followed a much narrower principle: “The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”26 26.Id.at 640.Show More

Justice Scalia’s position carries with it a radical implication. If the Establishment Clause condemns only government-induced religious activity involving “force of law and threat of penalty,” it is hard to see how the School Prayer Cases qualify. Yes, requiring students to attend school or participate in morning exercises that include prayer may involve commands issued “by force of law.”27 27.See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 47 (2004) (Thomas, J., concurring in the judgment) (observing that “[s]tudents are actually compelled . . . by law . . . to attend school” (citation omitted)).Show More But so long as these commands contain opt-outs for dissenters, they arguably do not involve any real “threat of penalty.” In Lee, Justice Scalia hinted at this possibility, indicating that allowing children to opt out of government-led school prayer might “suffice[] to dispel the coercion resulting from . . . mandatory attendance.”28 28.Lee, 505 U.S. at 643 (Scalia, J., dissenting).Show More Justice Thomas has since made a similar point, insisting that unless an objector can produce evidence of “actual legal coercion” as opposed to “peer pressure,” there is no basis to complain.29 29.Elk Grove, 542 U.S. at 47, 52–53 (Thomas, J., concurring in the judgment); see also Van Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J., concurring) (“The Framers understood an establishment ‘necessarily [to] involve actual legal coercion.’” (quoting Elk Grove, 542 U.S. at 52 (Thomas, J., concurring in the judgment))); Town of Greece v. Galloway, 572 U.S. 565, 610 (2014) (Thomas, J., concurring in part and in the judgment) (similar).Show More

With this backdrop, the heart of the controversy now comes fully into view. In Kennedy v. Bremerton School District, the Supreme Court recently held that a public school district violated the Constitution by punishing a high school football coach for praying on the field after several games, and it rejected the idea that the Establishment Clause condemned the coach’s actions.30 30.142 S. Ct. 2407, 2415–16 (2022).Show More In doing so, the Court explicitly abandoned Lemon v. Kurtzman and, by implication, most of the original government-speech rationale for the School Prayer Cases.31 31.Id.at 2427.Show More The majority also rejected the argument that accommodating the coach’s religious exercise coerced students, mainly because the coach’s prayers took place after games concluded, when students were otherwise occupied and staff engaged in their own private activities.32 32.Id.at 2428–32.Show More

In Kennedy, the Court carefully avoided taking a position on which version of coercion—Justice Kennedy’s or Justice Scalia’s—best comported with “the original meaning of the Establishment Clause.”33 33.Id.at 2429.Show More But the majority’s focus on record evidence—and especially its use of a district court quotation observing there was “no evidence that students were directly coerced”—struck the dissenters as capitulating to Justice Scalia’s position.34 34.Id. (emphasis added); see also id. at 2451 (Sotomayor, J., dissenting) (“The Court’s suggestion that coercion must be ‘direc[t]’ . . . is contrary to long-established precedent.” (alterations in original)).Show More In their view, the coach’s past practice of occasionally praying with students along with the presence of peers created clear “social pressure.”35 35.Id.at 2451–52 (Sotomayor, J., dissenting) (quoting Lee v. Weisman, 505 U.S. 577, 594 (1992)).Show More By ignoring that, the dissenters insisted, the majority portended a change in the law. Several scholars have suggested the same thing.36 36.See, e.g., Justin Driver, Three Hail Marys: Carson, Kennedy, and the Fractured Détente Over Religion and Education, 136 Harv. L. Rev. 208, 239 (2022)(suggesting that Kennedy “comes perilously close to installing the understanding of coercion that Justice Scalia’s dissenting opinion [in Lee] advanced”); Ira C. Lupu & Robert W. Tuttle, Response, Kennedy v. Bremerton School District—A Sledgehammer to the Bedrock of Nonestablishment, Geo. Wash. L. Rev. on the Docket (July 26, 2022), https://gwlr.org/kennedy-v-bremerton-school-d‌istrict-a-sledgehammer-to-the-bedrock-of-nonestablishment [https://perma.cc/F46M-BKLS] (suggesting that after Kennedy, “[p]rayer in schools may soon . . . requir[e] the provision of opt out rights to avoid compelled speech but no limitations on what schools may sponsor”). Others have gone even further. See, e.g., Alexander Tsesis, Government Speech and the Establishment Clause, 2022 U. Ill. L. Rev. 1761, 1801–02 (suggesting that in Kennedy “a majority of the Court adopted [Justice Scalia’s] flawed test”).Show More

The dissenters in Kennedy are probably right that the law of the School Prayer Cases may be in flux. But this Article argues that both sides of the debate are wrong in assuming that a historical approach to the Establishment Clause yields the end of the School Prayer Cases. Specifically, this Article argues that a more nuanced understanding of Founding-era history might well place those cases on firmer ground, and for reasons that Justice Scalia simply overlooked. And in so doing, this Article also suggests this same history may also help illuminate other questions surrounding government-sponsored prayer.

Begin with the most basic point. Individual justices and scholars have long noted that compulsory public education of the kind recognizable to us today did not exist at the Founding.37 37.See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 238–39 & n.7 (1963) (Brennan, J., concurring) (noting that in early America, “education was almost without exception under private sponsorship and supervision” until at least “the first quarter of the nineteenth century”); see also infra Section III.B.Show More But as the Kennedy majority hinted, members of the Founding generation were well-acquainted with a practice that resembles government-mandated school prayer in several relevant respects—namely, laws requiring attendance at worship services in state-approved churches.38 38.Kennedy, 142 S. Ct. at 2429 (noting that “government may not, consistent with a historically sensitive understanding of the Establishment Clause, ‘make a religious observance compulsory’ [or] . . . ‘coerce anyone to attend church’” (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952))).Show More Like mandatory school prayer, those laws required that citizens attend state-sanctioned religious instruction and worship. Yet contra Justice Scalia, it is inaccurate to say that Founding-era Americans viewed such laws as permissible so long as they contained opt-outs that might “dispel the coercion.”39 39.Lee, 505 U.S. at 643 (Scalia, J., dissenting).Show More From the late seventeenth century onward, mandatory church-attendance laws throughout the American colonies contained exemptions for religious dissenters. But supporters of religious liberty roundly rejected those schemes across different states. When it came to mandatory attendance at state-sponsored worship, opt-outs simply were not enough.40 40.See infra Section II.B.Show More

Yet if “direct coercion” was not the fundamental problem with laws mandating formal worship, what was? Here, members of the Founding generation offered a variety of answers. But in the main, their answers focused not on individual coercion, but instead on the limits of government power. On this theory, mandating attendance at state-sponsored worship was objectionable—opt-outs or no—because government simply had no authority to command a religious observance through law.41 41.See id.Show More As one contemporary writer put it, citizens had “no right to invest their Legislature with [this] power,” because “[m]atters of religion lie between God and their own consciences, to whom each man is to give account for himself.”42 42.Philanthropos, Number IV, Indep. Chron. & Universal Advertiser (Bos.), Apr. 6, 1780.Show More And as I explain in more detail below, understanding that point potentially offers several important insights for clarifying the law today.43 43.See infra Part IV.Show More

First and most basically, understanding prominent Founding-era objections to mandatory church-attendance laws provides at least some reason to think the Court’s famous School Prayer Cases were correct, though not for the reasons the Court has said. As initially formulated, the School Prayer Cases rested on what have become uncertain foundations—an increasingly outmoded theory of government religious speech on the one hand, and a nebulous theory of coercion on the other. But a reexamination of the Founding-era evidence offers a different way forward. From this perspective, the problem with teacher-led prayer in public schools is not that government expression must be strictly secular, nor that special rules about coercion apply to religion but nothing else. Instead, the problem is that the legal mechanisms supporting mandatory school prayer are analogous to mandatory church-attendance laws in the most relevant respects, and arguably violate the Establishment Clause for the same reasons.

Where government mandates both attendance at public school and attendance at official classroom activities—including daily prayer or devotional Bible reading—it has created a coercion-backed rule requiring attendance at state-sponsored worship. Moreover, as with Founding-era church-attendance laws, such programs necessarily assume a governmental power to command a religious observance, even if they might also provide opt-outs for dissenters. To be sure, the Founding generation never confronted this precise problem. And as explained more below, the complex history of public schools makes the issue more complicated still.44 44.See infra Section III.B.Show More Nonetheless, a proper understanding of Founding-era history provides a plausible argument that policies mandating public-school prayer are no different in kind from the laws mandating worship that the Founding generation rejected as a feature of religious establishment, and thus are similarly prohibited.

At a minimum, then, a more nuanced understanding of history might lend support to the Court’s famous School Prayer Cases. But even more, understanding Founding-era objections to laws requiring attendance at state-sponsored worship provides a new vantage point for thinking about the role of coercion in Establishment Clause doctrine, especially as it relates to government-sponsored prayer.

Members of the Founding generation objected to laws mandating attendance at government-sponsored worship, even where such laws exempted dissenters. In doing so, however, they did not limit their objections to instances of so-called direct coercion, as Justices Scalia and Thomas have emphasized.45 45.See Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2096 (2019) (Thomas, J., concurring in the judgment) (“In an action claiming an unconstitutional establishment of religion, the plaintiff must demonstrate that he was actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding.”); Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting) (“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”).Show More Instead, proponents of religious liberty at the Founding believed government lacked the power to issue commands requiring a religious observance. Rather than merely condemning discrete acts of punishment, Founding-era proponents of religious liberty condemned any governmental attempt to require formal acts of worship through law, no matter how permissively such laws functioned in practice. What mattered was the claimed power to enforce religious duties through a coercion-backed rule, not whether the rule also contained exemptions or ultimately punished discrete individuals.46 46.See infra Section II.C.Show More Thus, while not fully solving the debate about the role of coercion in Establishment Clause analysis, the Founding-era history described here offers a different way forward in how to understand it.

All this leads to a third point—this one more general. Many Founding-era objections to church-attendance laws rested, in significant part, on a belief that government lacked power to mandate worship, even under the most tolerant conditions. Yet by and large, members of the Founding generation did not seem to object to at least some other government actions involving religious observance, especially where such actions did not take the form of a coercion-backed command. Most notably, while many in the Founding generation believed that government lacked the power to “enjoin” days of prayer or thanksgiving, they generally thought that merely “recommending” such activity was acceptable, even while recognizing the dangers that distinction posed.47 47.See infra Section III.A.Show More And indeed, reflection on that point might illuminate a path for thinking through other thorny problems surrounding government-sponsored religious observance, especially in contexts where a formal rule or policy is lacking.

This Article proceeds as follows. Part I briefly explains the development of the Court’s jurisprudence surrounding mandatory public-school prayer and the puzzles surrounding those precedents, culminating in Kennedy v. Bremerton School District. Part II takes a step back to consider Founding-era history. This Part begins by canvassing laws mandating attendance at state-sponsored worship in England and the early American colonies. It goes on to explore why Founding-era Americans ultimately rejected those laws, even when they contained opt-outs for dissenters. Part III briefly discusses the scope of these Founding-era objections, first with respect to things like thanksgiving proclamations at the federal level, and second with respect to the historical development of public schools. Finally, Part IV returns to the modern cases and explores implications for government-sponsored school prayer and more.

Before proceeding to the discussion, two preliminary observations are in order. The first involves method. Following the Court’s invitation in Kennedy, this Article seeks to understand how and why Founding-era Americans rejected laws requiring church attendance, on the theory that those laws are relevant to thinking about the constitutional limits on things like government-sponsored public-school prayer today.48 48.See infra notes 105–19 and accompanying text (discussing Kennedy’s invitation to consider Founding-era history).Show More In doing so, however, the Article does not seek to provide an independent theory about why and how the Establishment Clause is incorporated against the states. Instead, I simply defer to the Court’s precedents in this area along with the Court’s corresponding assumption that—for both claims against the states as well as the federal government—Founding-era evidence is of primary importance.49 49.See, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421, 2428 (2022) (reaffirming the incorporation of the First Amendment and suggesting interpretation of the Establishment Clause must “faithfully reflect[] the understanding of the Founding Fathers” (quoting Town of Greece v. Galloway, 572 U.S. 565, 577 (2014))); Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2258–59 (2020) (looking to Founding-era history when interpreting the Establishment Clause’s application to a state-level controversy); see also id. at 2264 (Thomas, J., concurring) (“Even assuming that the [Establishment] Clause creates a[n] [individual] right and that such a right could be incorporated . . . it would only protect against an ‘establishment’ of religion as understood at the founding . . . .”). For a sampling of arguments defending the incorporation of the Establishment Clause, see Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience 75–84 (2023); see also Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L.J. 1085, 1088 (1995). For a contrary perspective, see generally Vincent Phillip Munõz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Const. L. 585 (2006).Show More Likewise, this Article looks to evidence from the states as well as the federal government during the Founding period, because both kinds of evidence are highly relevant to understanding the historic concept of “establishment” and objections to it in this period.

The second point concerns the limits of my argument. In this Article, I attempt to chart Founding-era objections to government-mandated religious observance and the possible implications of those objections for several modern controversies. In doing so, however, the Article takes no hard-and-fast position on whether other limits under the Establishment Clause—including those not necessarily involving coercion—may also apply in specific circumstances. To take just one example, it seems likely that many at the Founding believed that government could not designate a national church or tie a religious group’s official status to adopting certain articles of faith.50 50.See, e.g., Donald L. Drakeman, Church, State, and Original Intent 229–32 (2010) (concluding that, at minimum, the Establishment Clause was understood to mean Congress could not establish a national church); Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2135–36 (2003) [hereinafter McConnell, Establishment] (discussing government control over articles of faith in South Carolina’s 1778 constitution).Show More In this Article, I contend that understanding historical objections to mandatory church-attendance laws provides the simplest path for addressing several puzzles surrounding the School Prayer Cases and related issues. But I do not foreclose the possibility that other Establishment Clause considerations may sometimes be relevant.

  1.  See Roger K. Newman, Hugo Black: A Biography 522–23 (1994). The incident also appears in Andrew Koppelman, Defending American Religious Neutrality 67–68 (2013). ↑
  2.  Engel v. Vitale, 370 U.S. 421, 431–32 (1962) (quoting James Madison, Memorial and Remonstrance Against Religious Assessments, in 2 The Writings of James Madison 183, 187 (Gaillard Hunt ed., 1901)). ↑
  3.  See Corinna Barrett Lain, God, Civic Virtue, and the American Way: Reconstructing Engel, 67 Stan. L. Rev. 479, 507–14 (2015) (describing the outcry over Engel). ↑
  4.  Anthony Lewis, Supreme Court Outlaws Official School Prayers in Regents Case Decision, N.Y. Times, June 26, 1962, at 16. ↑
  5.  370 U.S. at 422, 436. ↑
  6.  374 U.S. 203, 205 (1963). ↑
  7.  Engel, 370 U.S. at 430; Schempp, 374 U.S. at 224–25. ↑
  8.  For examples of scholarship praising the School Prayer Cases or building on their rationales, see Stephanie H. Barclay, The Religion Clauses After Kennedy v. Bremerton School District, 108 Iowa L. Rev. 2097, 2107–09 (2023); William P. Marshall, The Constitutionality of School Prayer: Or Why Engel v. Vitale May Have Had It Right All Along, 46 Cap. U. L. Rev. 339, 341–42 (2018); Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 119–22 (2014); Koppelman, supra note 1, at 67–71. For a provocative dissent, see generally Steven D. Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions, 38 Pepp. L. Rev. 945 (2011) (arguing the School Prayer Cases deepened divides in America by constitutionalizing secularism). ↑
  9.  See, e.g., Bruce J. Dierenfield, The Battle Over School Prayer: How Engel v. Vitale Changed America, at vii (2007) (claiming Engel was “greeted with more shock and criticism than Dred Scott v. Sandford”); Lain, supra note 3, at 507–14 (similar). For more on “popular constitutionalism,” see generally Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004). ↑
  10.  Lain, supra note 3, at 512. ↑
  11.  Id. at 482, 522 n.271 (discussing contemporaneous polling). ↑
  12.  As of 2019, “roughly four-in-ten teens (including 68% of evangelical Protestant teens) who go to public school say they think it is ‘appropriate’ for a teacher to lead a class in prayer.” For a Lot of American Teens, Religion Is a Regular Part of the Public School Day, Pew Rsch. Ctr. (Oct. 3, 2019), https://www.pewresearch.org /religion/2019/10/03/for-a-lot-of-american-teens-religion-is-a-regular-part-of-the-public-school-day/ [https://perma.cc/VHJ8-XFRP]. ↑
  13.  See Cong. Rsch. Serv., School Prayer: The Congressional Response, 1962–1998, at 1–2 (1998). ↑
  14.  Dana Rubinstein, Adams, Discussing Faith, Dismisses Idea of Separating Church and State, N.Y. Times (Feb. 28, 2023), https://www.nytimes.com/2023/02/28/nyregion/eric-adam‌s-religion-church.html [https://perma.cc/6UTX-F5V2]. ↑
  15.  For one thoughtful perspective on this problem, see generally Noah Feldman, Non-sectarianism Reconsidered, 18 J.L. & Pol. 65 (2002). ↑
  16.  Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2428 (2022) (quoting Town of Greece v. Galloway, 572 U.S. 565, 576–77 (2014)); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019) (quoting Town of Greece, 572 U.S. at 576) (same). ↑
  17.  See infra Sections I.A, I.B (describing these theories). ↑
  18.  See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223–24 (1963); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 305–08 (2000). The government-speech theory became closely related to the three-part test first articulated in Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). ↑
  19.  See infra Section I.A (discussing these practices). ↑
  20.  Marsh v. Chambers, 463 U.S. 783, 787–92 (1983); Town of Greece, 572 U.S. at 575–85; see also id. at 616 (Kagan, J., dissenting) (disagreeing on the outcome in Town of Greece while agreeing with Marsh’s decision “upholding [a] tradition of beginning each session with a chaplain’s prayer”). ↑
  21.  505 U.S. 577, 599 (1992). ↑
  22.  Id. at 592–93. ↑
  23.  Id. at 593–94. ↑
  24.  For the classic exposition of this problem, see generally Abner S. Greene, The Pledge of Allegiance Problem, 64 Fordham L. Rev. 451 (1995). ↑
  25.  Lee, 505 U.S. at 640–42 (Scalia, J., dissenting) (quoting id. at 587 (majority opinion)). ↑
  26.  Id. at 640. ↑
  27.  See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 47 (2004) (Thomas, J., concurring in the judgment) (observing that “[s]tudents are actually compelled . . . by law . . . to attend school” (citation omitted)). ↑
  28.  Lee, 505 U.S. at 643 (Scalia, J., dissenting). ↑
  29.  Elk Grove, 542 U.S. at 47, 52–53 (Thomas, J., concurring in the judgment); see also Van Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J., concurring) (“The Framers understood an establishment ‘necessarily [to] involve actual legal coercion.’” (quoting Elk Grove, 542 U.S. at 52 (Thomas, J., concurring in the judgment))); Town of Greece v. Galloway, 572 U.S. 565, 610 (2014) (Thomas, J., concurring in part and in the judgment) (similar). ↑
  30.  142 S. Ct. 2407, 2415–16 (2022). ↑
  31.  Id. at 2427. ↑
  32.  Id. at 2428–32. ↑
  33.  Id. at 2429. ↑
  34.  Id. (emphasis added); see also id. at 2451 (Sotomayor, J., dissenting) (“The Court’s suggestion that coercion must be ‘direc[t]’ . . . is contrary to long-established precedent.” (alterations in original)). ↑
  35.  Id. at 2451–52 (Sotomayor, J., dissenting) (quoting Lee v. Weisman, 505 U.S. 577, 594 (1992)). ↑
  36.  See, e.g., Justin Driver, Three Hail Marys: Carson, Kennedy, and the Fractured Détente Over Religion and Education, 136 Harv. L. Rev. 208, 239 (2022) (suggesting that Kennedy “comes perilously close to installing the understanding of coercion that Justice Scalia’s dissenting opinion [in Lee] advanced”); Ira C. Lupu & Robert W. Tuttle, Response, Kennedy v. Bremerton School District—A Sledgehammer to the Bedrock of Nonestablishment, Geo. Wash. L. Rev. on the Docket (July 26, 2022), https://gwlr.org/kennedy-v-bremerton-school-d‌istrict-a-sledgehammer-to-the-bedrock-of-nonestablishment [https://perma.cc/F46M-BKLS] (suggesting that after Kennedy, “[p]rayer in schools may soon . . . requir[e] the provision of opt out rights to avoid compelled speech but no limitations on what schools may sponsor”). Others have gone even further. See, e.g., Alexander Tsesis, Government Speech and the Establishment Clause, 2022 U. Ill. L. Rev. 1761, 1801–02 (suggesting that in Kennedy “a majority of the Court adopted [Justice Scalia’s] flawed test”). ↑
  37.  See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 238–39 & n.7 (1963) (Brennan, J., concurring) (noting that in early America, “education was almost without exception under private sponsorship and supervision” until at least “the first quarter of the nineteenth century”); see also infra Section III.B. ↑
  38.  Kennedy, 142 S. Ct. at 2429 (noting that “government may not, consistent with a historically sensitive understanding of the Establishment Clause, ‘make a religious observance compulsory’ [or] . . . ‘coerce anyone to attend church’” (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952))). ↑
  39.  Lee, 505 U.S. at 643 (Scalia, J., dissenting). ↑
  40.  See infra Section II.B. ↑
  41.  See id. ↑
  42.  Philanthropos, Number IV, Indep. Chron. & Universal Advertiser (Bos.), Apr. 6, 1780. ↑
  43.  See infra Part IV. ↑
  44.  See infra Section III.B. ↑
  45.  See Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2096 (2019) (Thomas, J., concurring in the judgment) (“In an action claiming an unconstitutional establishment of religion, the plaintiff must demonstrate that he was actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding.”); Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting) (“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”). ↑
  46.  See infra Section II.C. ↑
  47.  See infra Section III.A. ↑
  48.  See infra notes 105–19 and accompanying text (discussing Kennedy’s invitation to consider Founding-era history). ↑
  49.  See, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421, 2428 (2022) (reaffirming the incorporation of the First Amendment and suggesting interpretation of the Establishment Clause must “faithfully reflect[] the understanding of the Founding Fathers” (quoting Town of Greece v. Galloway, 572 U.S. 565, 577 (2014))); Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2258–59 (2020) (looking to Founding-era history when interpreting the Establishment Clause’s application to a state-level controversy); see also id. at 2264 (Thomas, J., concurring) (“Even assuming that the [Establishment] Clause creates a[n] [individual] right and that such a right could be incorporated . . . it would only protect against an ‘establishment’ of religion as understood at the founding . . . .”). For a sampling of arguments defending the incorporation of the Establishment Clause, see Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience 75–84 (2023); see also Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L.J. 1085, 1088 (1995). For a contrary perspective, see generally Vincent Phillip Munõz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Const. L. 585 (2006). ↑

  50.  See, e.g., Donald L. Drakeman, Church, State, and Original Intent 229–32 (2010) (concluding that, at minimum, the Establishment Clause was understood to mean Congress could not establish a national church); Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2135–36 (2003) [hereinafter McConnell, Establishment] (discussing government control over articles of faith in South Carolina’s 1778 constitution). ↑

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