Article

Taking Care of Federal Law

Article II of the Constitution vests the “executive power” in the President and directs the President to “take Care that the Laws be faithfully executed.” But do these provisions mean that only the President may execute federal law? Two lines of Supreme Court precedent suggest conflicting answers to that question. In several prominent separation-of-powers cases, the Court has suggested that only the President may execute federal law: “The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws.” Therefore, the Court has reasoned, Congress may not create private rights of action that allow nonexecutive actors to sue and attempt to vindicate the “public interest in . . . compliance with the law.”

Yet in another set of cases, the Court has suggested that the enforcement of federal law should be a shared enterprise not exclusive to the President. Specifically, the Court has gone out of its way to preserve the states’ ability to enforce federal law, repeatedly invoking the presumption “that Congress does not cavalierly pre-empt state-law causes of action.” Indeed, the Court occasionally reasons that state law is not preempted because “state law . . . simply seeks to enforce” federal law. What is striking about these cases is that they do not engage with the potentially troubling separation-of-powers implications that the Court raises in other contexts where Congress permits nonexecutive actors to enforce federal law. More than that, the preemption cases rest on a fundamentally different understanding of what the execution of federal law should look like. The preemption cases are driven by the intuition that the enforcement of federal law should occasionally be a shared enterprise, and that it is sometimes desirable to limit the President’s enforcement discretion. Indeed, the Court has championed the states’ ability to challenge the President’s assessment of what constitutes the “effective enforcement” of federal law.

In light of the disconnect between these two lines of precedent, this Article questions whether Article II should be understood to require the President alone to execute federal law. Specifically, it argues that Article II does not require the President alone to vindicate the public’s shared interest in the enforcement of federal statutes. Many of the cases addressing this issue are concerned with questions of standing, specifically with whether there are limits on Congress’s power to authorize private citizens to sue to enforce federal law. Standing doctrine requires a litigant to show she has suffered an “injury in fact” before a federal court will hear her claim, and while many scholars have analyzed when a statutory violation constitutes an injury in fact for purposes of standing, the relevant literature has failed to appreciate how standing doctrine is derived in part from the Take Care Clause and Article II. This omission has led the existing critiques to overlook cases and statutes where nonexecutive actors routinely execute federal law.

By highlighting the Article II origins of standing doctrine, this Article calls attention to a different set of sources not considered in the literature on standing. And these sources illustrate that one major premise of standing doctrine—that only the President vindicates the public’s shared interest in the enforcement of federal law—is false. In particular, recent preemption cases and several different federal statutes show that nonexecutive actors routinely execute federal law. These sources therefore provide a new and powerful reason to question both the Court’s premise that the President alone must oversee the public’s shared interest in the enforcement of federal statutes, and its subsequent conclusion that a litigant may not have standing to raise a claim for violation of a federal statute based on a congressionally created private right of action. It is not generally a virtue for a constitutional interpretation to stray so far from actual practice. Now is also an ideal time to reexamine whether Article II limits Congress’s power to create private rights of action because the Court has recently shown a renewed interest in the question, and some of the best insights into how that question should be resolved come from recently decided cases.

Unpacking the basis of standing doctrine also reveals curious and thus-far unexplored similarities with the common law doctrine of desuetude, which allowed courts to abrogate outdated statutes. Understanding the similarities between these two doctrines provides both new justifications and new critiques of some aspects of standing doctrine and, more generally, of executive enforcement discretion.

Finally, viewing preemption cases through the lens of when federal law enforcement may be a shared enterprise offers a new perspective on the meaning of these cases. Most writing about the Court’s recent preemption decisions, such as Arizona v. United States, has addressed what the decisions mean for federalism. Scholars have emphasized that Arizona is the exception from the perspective of federalism—the President’s enforcement decisions do not typically preclude states from enforcing overlapping or related state laws in ways that differ from how the President enforces federal law. Yet little attention has been paid to what this understanding of federalism means for separation of powers—to the extent scholars have analyzed Arizona’s separation-of-powers implications, their analyses have only concerned whether the President has the power to decline to enforce federal statutes. The fact that scholars view decisions like Arizona as aberrational suggests the general rule is that nonexecutive actors may enforce federal law and that the execution of federal law is more of a shared enterprise than the Court’s separation-of-powers cases suggest. The preemption cases show that the President does not, and sometimes should not, have unfettered discretion to decide when the public has a shared interest in the enforcement of federal law.

The Article proceeds in four parts. Part I will introduce the principle animating several of the Court’s separation-of-powers cases—namely, that Article II requires the President alone to execute federal law. It will focus on the Court’s claim that because executing federal law includes overseeing the public’s shared interest in federal law enforcement, the President must be the one to initiate suits designed to vindicate that interest. Part II will then highlight how several preemption cases suggest that nonexecutive actors may likewise vindicate the public interest in seeing federal law enforced. In particular, the Court has championed the states’ ability to vindicate this interest, and several statutory schemes expressly permit states to enforce federal law. These cases underscore the benefits that sound in federalism in having the states enforce federal laws in ways that differ from those of the President. Yet the preemption cases make no mention of any troubling separation-of-powers implications, even though the cases simultaneously celebrate the states’ ability to limit the President’s enforcement discretion.

Part III will consider whether states might be permitted to execute federal law even when private litigants are not. The text of Article II does not suggest Congress can authorize this distinction, since both state and private execution of federal law might limit the President’s discretion. Part III will also reject the notion that principles of federalism would justify a bright-line distinction between states and private litigants. Federalism describes the virtues of limiting the ability of the federal government to decide an issue—here, how federal law should be executed—for the entire polity. The very idea that federalism has value in the context of vindicating the public’s shared interest in the enforcement of federal law is at odds with the separation-of-powers cases, which assert that something important is lost when someone other than the President executes federal law. Moreover, once a constitutional principle such as federalism provides a justification for Congress to authorize nonexecutive actors to enforce federal law, other constitutional principles, such as the rule of law, should similarly suffice as a justification for Congress to authorize other nonexecutive actors to enforce federal law.

Finally, Part IV will argue that the Constitution permits Congress to authorize private rights of action allowing private individuals to enforce federal civil statutes. The Court’s rigid interpretation of Article II in separation-of-powers cases has thin constitutional foundations and would undermine myriad arrangements where nonexecutive actors execute federal law. It is also motivated by questionable assumptions about the legislative process and whether the President is actually accountable for enforcement decisions, and it runs counter to commonly held views about how and when presidents may decline to enforce federal statutes. For these reasons, Article II should not be understood to limit Congress’s ability to authorize private individuals to enforce federal civil statutes; independent constitutional provisions, however, may limit whether nonexecutive actors may enforce criminal laws.

Inside-Out: Beyond the Internal/External Distinction in Legal Scholarship

A distinction commonly drawn in legal scholarship deserves scrutiny. To begin to see why, consider this question: What do the following claims by legal scholars have in common?

(1) That economic explanations of tort law which interpret it as an instrument for achieving social goals, such as compensating victims or deterring unreasonably risky conduct (or both), are defective in part because such explanations do not “work through” the concepts that judges invoke in their opinions when deciding cases.

(2) That historical accounts of judicial decisionmaking that explain case outcomes by reference to judges’ ideologies or economic self-interest do not threaten normative interpretations of legal practice because such explanations do not offer courts any concrete guidance as to how to decide future cases.

(3) That political scientists’ criticisms to the effect that legal scholars commonly make fallacious inferences miss their mark because they fail to understand that legal scholars have rhetorical goals not shared by political scientists.

(4) That the arguments of philosophers and neuroscientists about the existence or nonexistence of free will are irrelevant to “all the participants in the legal system” because the criminal law assumes that people are morally responsible for their actions irrespective of whether those actions were causally determined.

(5) That when lawyers write history they ignore evidence and distort the facts in order to rationalize and legitimize legal practice.

There are really two answers to this question. The first is that legal scholars have framed all of these claims around a distinction between “internal” and “external” forms of explanation, criticism, or argument. In each case, the suggestion made is that a particular kind of analysis is flawed or misguided because it is not of the right sort. It is “external” when what is required is an “internal” analysis, or vice versa. That all of the above claims have been conceptualized in this way may at first seem odd since they otherwise seem to be about quite unrelated issues.

From a broader perspective, however, each of these arguments can be seen as making judgments about what counts as a “legal” argument or critique and what does not. That is the second thing these claims have in common. They are all efforts to draw the boundaries of law. Each seeks to distinguish, for one reason or another, the aims and methods of law from those of other academic disciplines. In particular, they seek to distinguish law from those disciplines whose methods are aimed at better understanding the natural or social world, whether in the humanities, sciences, or social sciences. Here I do not mean “law” in the sense of those rules or principles that are (or properly ought to be) enforced by the state, but rather “law” in the sense of those materials, methods, and values that influence the form and content of those rules and principles. In other words, each makes a claim about the nature and boundaries of what John Chipman Gray called the “sources” of law.

Such an effort does not alone warrant criticism. To the contrary, questions about which materials and values judges and other legal decision makers ought to rely on are foundational ones. So, too, are questions about which materials, methods, and values they actually do rely on, whether they should do so or not. Moreover, the internal/external distinction captures well a powerful intuition. Some forms of scholarship—say, traditional doctrinal analyses—do seem to be in some sense launched from within the legal enterprise, whereas others—such as empirical studies of judicial behavior—appear to offer descriptions or critiques from outside it.

In part for these reasons, the internal/external distinction has now become so entrenched in the consciousness of legal scholars that recently a pair of prominent scholars has felt compelled to call out various judges and legal theorists for having committed what they call the “inside/outside fallacy.” According to Professors Eric Posner and Adrian Vermeule, these theorists suffer from “methodological schizophrenia” because they adopt “internal” and “external” perspectives simultaneously. The point of their article, they explain, is not that one type of scholarship is better than the other, but rather simply that the two perspectives are fundamentally incompatible and so must be kept separate. Although they recognize that the inconsistency they identify could be framed in other terms, they dub it the “inside/outside fallacy” on the ground that the internal/external distinction has been “traditionally a central issue for legal theory.”

And that is true. Or at least it is true if by “traditionally” one means “for the past few decades.” For most of the twentieth century, legal theorists did not conceptualize philosophical, historical, or sociological investigations as “outside” of, or “external” to, law. Although a version of the distinction has a long history in the philosophy of the human sciences (or what are today called the “social sciences”), its introduction into legal theory is relatively recent. H.L.A. Hart famously invoked the distinction between two “points of view”—one “internal,” the other “external”—in his 1961 jurisprudential classic, The Concept of Law. But the distinction did not really take hold as a way of interpreting theoretical claims about law until after Ronald Dworkin made use of a similar distinction in his 1986 opus, Law’s Empire.

The distinction’s recent popularity thus invites at least three sorts of questions. The first is historical or explanatory: Why has the distinction come to play such a leading role in legal theory? Why does it today seem so natural? The second is conceptual or analytic: Is there really just one internal/external distinction or are there several going under the same name? And if there are multiple distinctions, what are they and how do they relate to each other? The third set of questions is evaluative or normative: What functions does the distinction serve? And are those functions useful ones for legal theory, practice, or education?

The aim of this Article is to offer some answers to these questions. It argues, in brief, that the distinction has taken hold as a result of both intellectual and institutional changes in the legal academy in the last few decades of the twentieth century. These changes created a need for, and a method of, reconciling increasingly popular forms of interdisciplinary scholarship with more traditional legal scholarship. The internal/external distinction has largely met that need, which contributes to its popularity. But it has done so in part by trading on a crucial ambiguity—between a substantive distinction, on the one hand, and various methodological distinctions, on the other. That ambiguity first appeared in Hart’s work and has clung to the distinction ever since. Thus, distinguishing among, and clarifying the meaning of, the different versions of the distinction is a worthwhile endeavor in itself.

Moreover, even when its meaning is clear, today the various methodological versions of the distinction do more harm than good. When used as a methodological criterion, the distinction rarely serves as a useful conceptual tool to clarify issues or open up avenues of inquiry. Instead, it operates mainly as a rhetorical weapon whose function is to insulate particular substantive views from arguments deemed to be threatening to it. Its tendency has thus been to cabin scholarly debate about the nature and purposes of law, rather than to widen it, and to dampen original thinking about such questions, rather than to stimulate or provoke it.

The burden of this Article is to support these broad claims. It will do so in four Parts. Part I will seek to identify and distinguish among the three main versions of the distinction as they first appeared in the jurisprudential writings of H.L.A. Hart and Ronald Dworkin. It will also describe the historical context in which Hart and Dworkin wrote in an effort to explain why the distinction may have appeared when it did. The primary aim of Part I, however, is to show the role that the “internal point of view” played in each theorist’s philosophy of law and, more specifically, to show how the methodological versions of it enabled both thinkers to obscure or evade difficult questions. In other words, the point is to show that the trouble with the internal/external distinction began at its inception.

Parts II through V will then analyze and evaluate each of these three versions of the distinction in more detail. In each case, the particular version of the distinction that Hart and Dworkin drew has been applied in other contexts by scholars who have then modified it in subtle ways. For this reason, it is possible to see Hart’s and Dworkin’s particular distinctions as instances of more general dichotomies. I will give each of these more general versions a new name in order to distinguish them more clearly from each other. Part II will take up the Genuine versus Instrumental Rule Follower distinction, which is a substantive one about how legal actors use (or fail to use) rules in guiding their conduct. This is the least objectionable use of the distinction, though even here I will suggest that framing the distinction as one of “point of view” or “perspective” is misleading and results in confusion. Part III will then consider the first methodological version of the distinction. I call this the Participant Perspective versus Non-Participant Perspectives distinction, which distinguishes between a variety of different ways of understanding or explaining social (and hence legal) phenomena. I will argue that only a commitment to very controversial epistemological or metaphysical views could justify adopting either the Participant Perspective or any of the Non-Participant Perspectives to the exclusion of other methods and that, instead, the defense of any method of social inquiry should lie in the adequacy of the explanations it offers.

Reasonable Expectations of Anonymity

New technologies and methods of data analysis are being used by the government to monitor the public in ways that were unimaginable a decade ago. Law enforcement agencies ranging from municipal police forces to the Department of Homeland Security are using tools such as genetic databanks, biometric scanners, roadside cameras, and cell phone metadata analysis to gather detailed information about the lives of individuals who are not suspected of any wrongdoing. The meaningful question in this area is no longer what information the government can obtain about us, but rather what information is beyond its reach.

The reason for this is that the Supreme Court has concluded that the Fourth Amendment’s protections do not apply to any information that has been exposed to the public or third parties. This includes information about our public movements, Internet usage, cell phone calls, and so on. Such information is per se fair game for police collection by any means.

This Article argues that the Court’s conclusion derives from a mistaken conflation of privacy and anonymity, and that understanding the difference between these concepts reveals strong substantive and formal reasons for interpreting the Fourth Amendment to protect not only reasonable expectations of privacy, but also “reasonable expectations of anonymity.” Further, it demonstrates that the incorporation of this new analytic concept into Fourth Amendment jurisprudence yields significant value: first, by identifying otherwise-unrecognizable ways in which new techniques of big data implicate the Constitution, and second, by delivering on the unfulfilled promise of the Supreme Court’s teaching that “the Fourth Amendment protects people, not places.” A more detailed roadmap of this argument follows.

The argument begins, in Part I, with an analysis of the Fourth Amendment right to be free from unreasonable “searches”—a term that the Supreme Court has, ever since Katz v. United States, interpreted to mean violations of reasonable expectations of privacy. The key contribution of this Part is clarifying what the Court means by “privacy” in the Fourth Amendment context, which has been the subject of much confusion in the literature. A close analysis of the case law reveals that the Court has adopted what can be termed an “epistemic,” rather than a normative, conception of privacy. The clarification of this point provides the foundation for a discussion of two doctrines that significantly limit the scope of the Fourth Amendment’s protections: the public exposure and third party doctrines, under which the Supreme Court has concluded that the Fourth Amendment’s protections do not apply to any information that has been exposed to the public or third parties.

The question that motivates this Article is whether the Supreme Court has erred in reaching this conclusion. The dominant view in the privacy scholarship is that the Court has failed to account for the ways in which privacy can exist in degrees. While this critique is correct as far as it goes, this Article demonstrates that it only identifies part of the problem.

The even deeper problem, identified in Part II, is that courts—along with most scholars—have incorrectly assumed that there is only one way of protecting a piece of personal information from public access: the one we call “privacy.” In doing so, they have overlooked a distinct and equally important way of doing so: through anonymity. This oversight derives from the fact that anonymity and privacy have been mistakenly conflated.

An example helps introduce the key distinction that has gone unrecognized. Imagine, for instance, that a person’s medical file contains a piece of paper with the results from his blood test, but his doctor removes the paper and places it in a blank file. If we subsequently obtained access to this person’s medical file, without the test results, we would describe the situation using the concept of privacy: We would say “the privacy of the person is protected,” or “the associated information is private.” If, on the other hand, we obtained access to the test results, without the medical file, we would describe the situation using the concept of anonymity: We would say “the anonymity of the test results is protected,” or “the associated person is anonymous.”

What this example illustrates is two basic points about anonymity and privacy that have been misunderstood. The first is a point about their substantive difference. Although both anonymity and privacy prevent others from gaining access to a piece of personal information, they do so in opposite ways: Privacy involves hiding the information, whereas anonymity involves hiding what makes it personal. The second point is about their formal relationship. Anonymity and privacy have the same causal origin and thus are flip sides of each other: They describe opposite sides of a single underlying event.

This account of the nature of anonymity, when combined with the insight that Katz and its progeny adopt a purely epistemic conception of privacy, has significant legal implications. As identified in the final Section of Part II, it reveals strong substantive and formal reasons for reading the Fourth Amendment to protect not only reasonable expectations of privacy, but also “reasonable expectations of anonymity.”

It is perhaps worth highlighting here that this is not a normative argument about what our constitutional law should be, but rather a legal argument about the best way to interpret the Fourth Amendment precedents that we have. Thus, I do not question whether Katz and its progeny provide the best interpretation of the text of the Fourth Amendment, but rather make a claim about the best reading of this case law, accepting that it provides a controlling reading of the text. Further, and relatedly, I do not question the premise that the Fourth Amendment does not prohibit the government from collecting personal information that has been knowingly exposed to the public, but rather show that this premise does not support the conclusions reached by courts in many of the public exposure cases—that the logic of the public exposure doctrine imposes limits that have not been recognized. This is not to say, however, that my argument is at odds with those of scholars who argue for more radical revisions of Fourth Amendment jurisprudence on normative grounds. Rather, a normative approach might reach the same conclusions on many issues, as will become clear in Part III.

The practical payoff of incorporating the concept of “reasonable expectations of anonymity” into Fourth Amendment jurisprudence is the focus of Part III, which identifies two general dimensions in which it yields significant insights. The first dimension is analytic, where thinking in terms of anonymity identifies otherwise-unrecognizable ways in which many new techniques of big data implicate the Fourth Amendment. This is demonstrated by reference to the question of whether two new techniques of data aggregation and analysis can constitute Fourth Amendment searches. One is a form of genetic identification known as “familial searching,” in which a criminal DNA database is used to identify persons who do not meet the legal criteria for inclusion, but happen to be related to people who do. The other is the use of tools such as biometric-equipped video cameras, GPS, and the metadata from cell phone calls to conduct long-term locational tracking of people’s movements in public.

Both of these techniques have faced significant criticism in the privacy scholarship, and there is language in judicial opinions questioning their legitimacy, but neither the literature nor the judicial opinions have offered a strong legal argument for how they can constitute Fourth Amendment searches. The reason for this is that the constitutional problem cannot be sufficiently explained in terms of privacy.

What is needed is the concept of reasonable expectations of anonymity, which not only reveals the Fourth Amendment interests that are violated by these specific techniques, but also provides a meaningful standard that can be used more generally to determine when data aggregation implicates the Fourth Amendment and when it does not. In these ways, the concept helps solve difficult puzzles left open by the concurring opinions in United States v. Jones.

In addition to providing the analytic power necessary to understand the unconstitutionality of many new techniques of big data, the incorporation of anonymity into Fourth Amendment jurisprudence will help deliver on the unfulfilled promise of the Supreme Court’s teaching that the Fourth Amendment is meant to protect “people, not places.” There are two central ways in which it does so, as the final Section of Part III demonstrates.

The first is by revealing that the structural features of the world that are capable of protecting Fourth Amendment interests are far more complex and expansive than the Supreme Court has recognized. Although the Court has moved beyond a property-based conception of Fourth Amendment interests, the only structural features of the world that the Court has recognized as protecting these interests are those that protect the “privacy” side of secrecy: Homes, car trunks, envelopes, and other containers all hide facts about a person whose identity might be known. Yet the structures that are capable of maintaining the secrecy of “personal information” are not limited to those that hide the piece of information. Rather, as this Article makes clear, they can also include structures that hide what makes that information personal or, in other words, structures that make it anonymous. For example, the size of a city, the layout of its streets, and the presence of crowds can all contribute to making someone’s public actions anonymous. By uncovering the legal significance of these structures, attention to anonymity opens up new types of public spaces to the Fourth Amendment’s protections.

The second and related way in which attention to anonymity can help deliver on the promise of the Fourth Amendment is by expanding the sources of law and norms that can provide the basis for its protections. Although property law is often cited as the quintessential enabling source of law for reasonable expectations of privacy, reasonable expectations of anonymity may be created by sources of law ranging from whistle-blowing statutes and agency law to copyright and the First Amendment, all of which protect anonymity rights. In the First Amendment context, for example, the Supreme Court has held that “an author’s decision to remain anonymous . . . is an aspect of . . . freedom of speech.” Thus, an anonymity-based understanding of Fourth Amendment claims could ground them in new legal and normative foundations, including other constitutionally protected liberties.

Further, these two lessons—along with the other insights of this Article—are not only applicable to the Fourth Amendment. Rather, as suggested in the Conclusion, they are relevant to the many other sources of law that provide legal protection to reasonable expectations of privacy. Across all of these domains, attention to the distinct concept of anonymity can reveal important and viable interests in the secrecy of personal information that have gone unrecognized, clarify new ways in which these interests are being threatened, and provide insights into how they can be better protected by our courts and our law.

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