At a time when many question the wisdom and constitutionality of unchecked executive power, the Supreme Court has recently recognized virtually unlimited presidential power to make “sole executive agreements” with the force of federal law. Although such agreements with foreign nations are neither approved by the Senate as a “Treaty” nor enacted by Congress as a “Law,” the Court has asserted that they are generally “fit to preempt state law, just as treaties are.” To be sure, Presidents have long used sole executive agreements as a means of implementing their underlying constitutional and statutory authority. The Court’s novel conception of such agreements as an independent source of federal power, however, is in tension with the Supremacy Clause, which recognizes only the “Constitution,” “Laws,” and “Treaties” of the United States as the supreme law of the land. Significantly, each of these sources of law must be adopted by the Senate acting in conjunction with one or more additional actors. Allowing the President to use sole executive agreements to override preexisting legal rights circumvents the political and procedural safeguards built into the Constitution. The Court has attempted to justify its novel approach by invoking two well-known historical precedents: executive agreements settling claims by U.S. nationals against foreign sovereigns, and an executive agreement recognizing the Soviet Union and assigning its claims against U.S. nationals to the United States. Taken in historical context, however, neither precedent supports a freestanding presidential power to make sole executive agreements with the force of federal law.
Putting Pretext in Context: Employment Discrimination, the Same-Actor Inference, and the Proper Roles of Judges and Juries
The course of federal employment discrimination litigation is replete with instances of lower federal courts attempting to define and apply broad rules that, usually, though not always, have the effect of defeating plaintiffs’ claims of discrimination. The same-actor inference, first applied by the Fourth Circuit Court of Appeals 1991, aptly exemplifies this trend. The essence of the same-actor inference is that an individual who harbors discriminatory animus toward a protected class of persons would not knowingly hire a member of that class and then fire that same individual on account of his or her protected status. Since 1991, a circuit split has emerged on the question of who should evaluate the import of same-actor facts in a given case. Several circuits have followed the Fourth Circuit and employ the inference to justify summary judgment, directed verdicts, and judgments notwithstanding the verdict, all in favor of defendant-employers. Other circuits, in contrast, expressly reserve to the jury the decision regarding how to weigh same-actor facts. The Supreme Court has yet to resolve this split. This paper argues that the history of employment discrimination litigation, the Civil Rights Act of 1991, and public policy considerations require that it be juries, not courts, who determine the import of same-actor facts in a given employment discrimination case.
Originalism, Popular Sovereignty, and Reverse Stare Decisis
Although all interpretive methods must grapple with the issue of stare decisis, the issue is particularly acute for originalists due to the potentially radical discontinuity between original meaning and modern doctrine. An unmediated enforcement of original understanding of the Constitution would likely reverse countless precedents and impose unacceptably high costs in terms of the rule of law. On the other hand, upholding a precedent despite its variance with the original understanding undermines the very legitimacy of legal review according to most theories of originalism. Focusing on the most common normative basis for originalism, popular sovereignty, the article identifies those cases capable of a principled application of stare decisis and those judicial errors that ought to be treated as presumptively in need of being overturned.
Popular sovereignty both reflects and builds upon the normative theory of democratic rule—government by the majoritarian consent of the governed. The costs of judicial error under this approach waxes and wanes depending on the degree of departure from the people’s will and the constraints placed on the ability of political majorities to respond to the court’s error. The greater the intrusion into the democratic process, the greater the costs of judicial error and, accordingly, the greater the need for “weightier” pragmatic arguments if precedent is to control. Judicial errors that leave an issue under the control of political majorities generally impose such low costs in terms of constitutional legitimacy that the pragmatic considerations of stare decisis may come to the fore. On the other hand, judicial errors that completely remove a matter from majoritarian politics impose such high costs in terms of constitutional legitimacy that they ought to be treated as presumptively in need of overruling—a presumption I refer to as reverse stare decisis.