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The Right Thing in the Wrong Place? Unstable Dicta and Aesthetics’ Gradual Incursion Into the Traditional Police Power Justifications

Aesthetic regulation is fast becoming a pervasive feature of many cities’ and states’ zoning regimes. While aesthetics are often used in conjunction with other justifications for zoning—itself an exercise of the well-recognized but somewhat nebulously defined police power—the constitutional basis for aesthetics’ use as the sole justification for zoning decisions has not been closely examined by courts or academics. Over the past seventy years, the Supreme Court has steadily bolstered the legitimacy of solely aesthetic zoning by suggesting that it should be included among the other traditional police power justifications. Though most of the cases falling within this doctrinal trend look to dicta from the well-known Berman v. Parker for support, their approaches have largely failed to critically engage with the Berman Court’s justifications for aesthetic regulation. Current scholarship also takes the genesis of this doctrine for granted, appearing more interested in examining the conflicts that arise when aesthetic regulation brushes up against other areas of the law, such as the First Amendment’s guarantee of free expression or the disproportionate impacts that aesthetic regulation and restrictive zoning have on certain communities, than in examining the doctrine’s origins. This Note attempts to probe the instability of this growing doctrine’s foundations by examining solely aesthetic regulation’s complicated historicity and constitutionality. Ultimately, this Note suggests that recent trends indicate a new willingness by the Supreme Court to reexamine troubled dicta and tackle head-on the question of whether aesthetics may stand on their own as a legitimate justification for exercises of the police power.

“A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.”1 1.Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926).Show More

Introduction

This Note discusses aesthetic regulation’s entry into the traditional justifications for exercises of the police power, which include the health, safety, morals, and general welfare of the populace.2 2.See id. at 395 (“[B]efore the ordinance can be declared unconstitutional, [it must be said] that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” (first citing Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 530–31 (1917); and then citing Jacobson v. Massachusetts, 197 U.S. 11, 30–31 (1905))). Over one hundred years earlier, William Blackstone described the police power as the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations. 4 William Blackstone, Commentaries *162.Show More Though it is not contested that aesthetics may be part of a valid justification for regulatory exercises of the police power, especially when combined with one of the traditional justifications just listed, a more difficult question arises when one asks whether aesthetics alone may serve as a valid justification for exercises of this power, such as zoning.

As the slightly oxymoronic “gradual incursion” may suggest,3 3.Incursion, Oxford English Dictionary, https://www.oed.com/dictionary/incursion_n?tab=‌meaning_and_use (last visited Mar. 6, 2025) (“A hostile inroad or invasion; esp. one of sudden and hasty character; a sudden attack.” (emphasis added)).Show More the history of aesthetics’ entry into the pantheon of police powers was a convoluted one—at least before now-famous dicta in Berman v. Parker abruptly ushered aesthetics into the company of its police power predecessors.4 4.To be discussed in greater depth in Part II, these dicta in context state that [t]he concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. Berman v. Parker, 348 U.S. 26, 33 (1954) (emphasis added) (citing Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424 (1952)).Show More While widespread acceptance of this dicta over the past seventy years has led to steadily increasing support for aesthetics alone as a valid justification for exercises of the police power,5 5.See discussion infra Section II.C; infra Part III.Show More this Note examines how the Supreme Court’s treatment of this question has scarcely yielded definitive answers, and how largely uncritical interpretations of this dicta and the history behind it have produced a doctrine that is troubled and persistent in equal measure. In other words, this Note explores how aesthetic zoning—a sly cousin to the traditional justifications for exercises of the police power, developed largely through dicta rather than on its own merits—could be aptly described as a “right thing in the wrong place.”6 6.Euclid, 272 U.S. at 388.Show More

Property rights were never absolutely free from government regulation, even before much of the doctrine concerning police powers had fully developed. Rather than being hyper-focused on the triumph of the individual over the encroaching powers of the State, early American states often subordinated individual rights to the pursuit of the common welfare.7 7.See, e.g., Georgette C. Poindexter, Light, Air, or Manhattanization?: Communal Aesthetics in Zoning Central City Real Estate Development, 78 B.U. L. Rev. 445, 470 (1998). For the proposition that the public good took precedence over individual concerns throughout the eighteenth century, Professor Poindexter cites to John Jay’s 1790 Charge to the Grand Juries that “‘civil liberty consists, not in a right to every man to do just what he pleases,’ but only to do that which ‘the equal and constitutional laws of the county admit to be consistent with the public good.’” Id. at 470 n.177 (quoting Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought 32 (1994)).Show More Two common law maxims, salus populi suprema est lex (“the welfare of the people is the supreme law”) and sic utere tuo ut alienum non laedas (“use your own right so as to not injure the right of others”), were pillars of American jurists’ vision of a well-regulated society and promoted a multitude of government restrictions on property rights.8 8.See William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America 42, 47 (1996).Show More The Supreme Court recognized the common law tradition of police power regulation as early as 1824 when Chief Justice Marshall declared that “[t]he right to use all property, must be subject to modification by municipal law. Sic utere tuo ut alienum non l[a]edas, is a fundamental maxim. It belongs exclusively to the local State Legislatures, to determine how a man may use his own, without injuring his neighbour.”9 9.Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 53–54 (1824).Show More Other cases from this period also recognized limitations on property rights and offered sweeping, absolute statements in support of such regulation. For example, an early Massachusetts case stated that

[a]ll property in this commonwealth . . . [is] held subject to those general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment . . . as the legislature . . . may think necessary and expedient.10 10.Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851); see also Novak, supra note 8, at 21 (arguing that Alger was “firmly entrenched in the intellectual, political, and legal traditions of nineteenth-century America”).Show More

The police power has long been thought of as a living, evolving concept, unburdened by strict rules or specific criteria.11 11.See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962) (“The term ‘police power’ connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of ‘reasonableness,’ this Court has generally refrained from announcing any specific criteria.”); see also Douglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 Wm. & Mary L. Rev. 995, 1011 n.78 (1997) (stating that “[n]either property nor police power is an absolute right; each evolves contextually and over time”).Show More Indeed, in Village of Euclid v. Ambler Realty Co., the Court stated that “while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation.”12 12.272 U.S. 365, 387 (1926).Show More Thus, neither the brief, pre-twentieth-century review above, nor the more in-depth historical review to follow in Part II, is meant to suggest that even if aesthetics alone were historically a suspect candidate for the police power, they can never be a valid justification. Rather, the question is whether aesthetics, either alone or in combination with the other traditional justifications for exercises of the police power, are properly included in the category of “the general welfare” considering the latter’s broad judicial recognition at the time the doctrine was first being formed. Put differently, are aesthetics—then or now—a compelling enough contribution to the people’s welfare to justify diminutions in property rights?

Despite extensive study of the practical consequences of urban renewal programs and aesthetic regulation,13 13.See, e.g., Herbert J. Gans, The Failure of Urban Renewal, Comment. (Apr. 1965), https://‌www.commentary.org/articles/herbert-gans/the-failure-of-urban-renewal/ [https://perma.cc/P‌49G-MENC] (noting the displacement caused by urban renewal programs); Vanessa Brown Calder, Zoning, Land-Use Planning, and Housing Affordability, 823 Cato Inst. Pol’y Analysis, Oct. 18, 2017, at 1, 1–2, https://www.cato.org/policy-analysis/zoning-land-use-plan‌ning-housing-affordability [https://perma.cc/UZM4-CGRU] (concluding that the rise in aesthetic regulations has caused many cities to face housing affordability challenges).Show More and strong scholarly censure of the Supreme Court’s interpretation of the Fifth Amendment’s “Public Use” Clause to justify economic regulation and urban renewal programs in decisions like Berman and Hawaii Housing Authority v. Midkiff,14 14.For a few representative works discussing the Supreme Court’s Public Use Clause jurisprudence, see Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 178–79 (1985) (arguing that the Supreme Court’s interpretation of the public use standard in Berman did not fall under traditional conceptions of the public use requirement and that its necessity argument merely belied the “state’s desire to transfer property between private parties”); Margaret Jane Radin, Reinterpreting Property 136 (1993) (arguing that “the term ‘public use’ has recently been interpreted as broadly as possible” in Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984)).Show More few authors have turned their attention specifically toward aesthetic regulation’s suspect historicity and constitutionality. This Note attempts to fill that analytical gap by examining the development of aesthetic regulation within the police powers doctrine from the pre-Berman era to the present, post-Berman age. It proceeds in four parts: Part I provides a brief grounding in the real-world impacts that aesthetic regulation has on the ongoing housing availability and affordability crisis as a form of restrictive zoning. Part II examines the development of aesthetics as a possible addition to the traditional police power justifications, dividing the inquiry into three distinct periods. The first period, discussed in Section II.A, focuses on early doctrinal trends in what this author terms the “pre-Berman period.” It posits that although courts initially found aesthetically motivated regulation inimical to proper exercises of the police power, the Supreme Court became comfortable accepting post hoc aesthetic justifications for exercises of the police power when the highest court of a state would do so. This tentative comfort was far from universally accepted, however, as other courts during this time insisted that exercises of the police power were to be reserved for necessitous circumstances, holding that such necessity did not include cities’ desire to regulate property to achieve aesthetic goals.

The second period, discussed in Section II.B, focuses on two decisions that ushered aesthetics further into the family of police power justifications, Euclid15 15.272 U.S. at 388.Show More and Berman.16 16.348 U.S. 26, 33 (1954).Show More While these cases have been used by the Supreme Court to justify the constitutionality of aesthetic regulation and to hint at the possible constitutionality of purely aesthetic zoning (though such a case has not yet reached the Court), a close reading of Euclid and Berman suggests that aesthetic zoning was to be used in only a very narrow set of circumstances. Section II.C discusses Berman’s progeny and examines how extensively its dicta have been distorted as more cases involving aesthetic regulation have reached the Court. Part III briefly discusses trends at the state level toward an acceptance of aesthetic and purely aesthetic regulation. Finally, Part IV examines recent trends in the Supreme Court that may suggest an awakening to the faltering legal foundations of aesthetics as a valid police power justification.

  1.  Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926). ↑
  2.  See id. at 395 (“[B]efore the ordinance can be declared unconstitutional, [it must be said] that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” (first citing Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 530–31 (1917); and then citing Jacobson v. Massachusetts, 197 U.S. 11, 30–31 (1905))). Over one hundred years earlier, William Blackstone described the police power as

    the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations.

    4 William Blackstone, Commentaries *162. ↑

  3.  Incursion, Oxford English Dictionary, https://www.oed.com/dictionary/incursion_n?tab=‌meaning_and_use (last visited Mar. 6, 2025) (“A hostile inroad or invasion; esp. one of sudden and hasty character; a sudden attack.” (emphasis added)). ↑
  4.  To be discussed in greater depth in Part II, these dicta in context state that

    [t]he concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.

    Berman v. Parker, 348 U.S. 26, 33 (1954) (emphasis added) (citing Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424 (1952)). ↑

  5.  See discussion infra Section II.C; infra Part III. ↑
  6.  Euclid, 272 U.S. at 388. ↑
  7.  See, e.g., Georgette C. Poindexter, Light, Air, or Manhattanization?: Communal Aesthetics in Zoning Central City Real Estate Development, 78 B.U. L. Rev. 445, 470 (1998). For the proposition that the public good took precedence over individual concerns throughout the eighteenth century, Professor Poindexter cites to John Jay’s 1790 Charge to the Grand Juries that “‘civil liberty consists, not in a right to every man to do just what he pleases,’ but only to do that which ‘the equal and constitutional laws of the county admit to be consistent with the public good.’” Id. at 470 n.177 (quoting Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought 32 (1994)). ↑
  8.  See William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America 42, 47 (1996). ↑
  9.  Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 53–54 (1824). ↑
  10.  Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851); see also Novak, supra note 8, at 21 (arguing that Alger was “firmly entrenched in the intellectual, political, and legal traditions of nineteenth-century America”). ↑
  11.  See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962) (“The term ‘police power’ connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of ‘reasonableness,’ this Court has generally refrained from announcing any specific criteria.”); see also Douglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 Wm. & Mary L. Rev. 995, 1011 n.78 (1997) (stating that “[n]either property nor police power is an absolute right; each evolves contextually and over time”). ↑
  12.  272 U.S. 365, 387 (1926). ↑
  13.  See, e.g., Herbert J. Gans, The Failure of Urban Renewal, Comment. (Apr. 1965), https://‌www.commentary.org/articles/herbert-gans/the-failure-of-urban-renewal/ [https://perma.cc/P‌49G-MENC] (noting the displacement caused by urban renewal programs); Vanessa Brown Calder, Zoning, Land-Use Planning, and Housing Affordability, 823 Cato Inst. Pol’y Analysis, Oct. 18, 2017, at 1, 1–2, https://www.cato.org/policy-analysis/zoning-land-use-plan‌ning-housing-affordability [https://perma.cc/UZM4-CGRU] (concluding that the rise in aesthetic regulations has caused many cities to face housing affordability challenges). ↑
  14.  For a few representative works discussing the Supreme Court’s Public Use Clause jurisprudence, see Richard A. Epstein, Takings: Private Property and the Power of Eminent

    Domain 178–79 (1985) (arguing that the Supreme Court’s interpretation of the public use standard in Berman did not fall under traditional conceptions of the public use requirement and that its necessity argument merely belied the “state’s desire to transfer property between private parties”); Margaret Jane Radin, Reinterpreting Property

    136 (1993) (arguing that “the term ‘public use’ has recently been interpreted as broadly as possible” in Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984)). ↑

  15.  272 U.S. at 388. ↑

  16.  348 U.S. 26, 33 (1954). ↑

Political Mootness

Congress and the executive have engaged in major clashes over the scope of their powers, particularly involving Congress’s subpoena power and power of the purse. In the last two decades, none of these disputes with the government represented on both sides of the “v” has ended in a final judgment on the merits. This Article develops the concept of “political mootness.” As elections take place and the parties in interest to litigation change, cases become politically moot. In the judiciary, political mootness manifests in three ways: legal mootness, separation-of-powers settlements conditional on vacatur of judicial opinions, or executive discretion in intra-branch prosecutions.

But political mootness also affects the coordinate branches. Through a series of original interviews,** **.This Article draws in part on interviews conducted by the author with confidential sources. Out of respect to the confidential nature of these interviews, and to preserve promises of anonymity made to sources, the Virginia Law Review did not independently verify the content of these interviews. Representations concerning the substance of these interviews are the sole responsibility of the author.Show Morethis Article shows that Congress self-constrains its authority preemptively to avoid litigation. Congress is aware that litigation threatens to drag out disputes beyond its electoral mandate and so pivots to use less than the full scope of its authority. These interviews also reveal a widespread practice of “friendly subpoenas,” requested by putative witnesses for legal, political, or other cover. Although Congress appears to have significant authority, when executive witnesses are truly recalcitrant, that authority is at its lowest potency.

With this broader context for inter-branch conflicts, this Article returns to take on the role of adjudication in those conflicts. Adjudication performs neither law declaration nor dispute resolution when the United States is represented on both sides. Instead, this Article argues, adjudication is a forum for tripartite dialogue about the structural constitution’s boundaries. In this frame, some aspects of political mootness are desirable, but other aspects have entrenched structural disadvantages that Congress faces. This Article offers some proposals to strengthen Congress’s position in disputes with the executive, while taking advantage of some of political mootness’s features.

Introduction

In times of divided government, high-stakes conflicts between the political branches erupt. Sometimes it’s constitutional hardball.1 1.Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523, 523 (2004) (naming the phenomenon where “political claims and practices—legislative and executive initiatives—that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings”).Show More Other times, it’s a constitutional showdown.2 2.See generally Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991, 991 (2008) (“Showdowns occur between the President and the courts, between Congress and the courts, as well as between the President and Congress. Indeed, some showdowns involve all three branches simultaneously, or threaten to do so.”).Show More And sometimes, it’s constitutional no-ball.3 3.See Matthew Callahan & Reuben Fischer-Baum, Where the Trump Administration Is Thwarting House Oversight, Wash. Post (Oct. 11, 2019), https://www.washingtonpost.com/gr‌aphics/2019/politics/trump-blocking-congress (cataloguing Trump Administration refusals to comply with congressional subpoenas).Show More Since the George W. Bush Administration, the House has subpoenaed sitting cabinet officials and former White House Counsels; it has investigated a former President’s involvement with a riot on the Capitol; and it has sought to enforce its power of the purse through shutdowns. The executive branch has pushed back, using claims of executive privilege, enforcement discretion, or other tools.4 4.See infra Part I.Show More In some, but importantly not all,5 5.See infra Part II.Show More instances, the House has called on the federal judiciary to back its use of authority. What goes into the decision to initiate litigation? And what function does that litigation serve?

This Article examines the role of adjudication in apex separation-of-powers disputes: cases brought by Congress against the president and intra-branch prosecutions. I argue that these cases become “politically moot” when elections result in unified government and the interested parties to the case change. Political mootness, I will show, is a concept with legal and political dimensions. It has some positive features, but it can also entrench structural disadvantages that burden Congress when it takes on the executive.

The Article is focused on “apex powers” disputes.6 6.See Aziz Z. Huq, Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design, 65 UCLA L. Rev. 1506, 1511–14 (2018) (embracing the looseness of the term “apex criminality” to describe offenses committed by high-level officials).Show More This includes a subset of separation-of-powers cases that implicate core constitutional powers: litigation between the political branches as parties and intra-branch prosecutions. I include, for example, when a House committee sues to enforce a subpoena against White House officials.7 7.I exclude suits where government actors are not parties on both sides of the litigation, which would include challenges over whether congressional legislation impermissibly infringes on executive power. I draw this line because federal courts operate differently when adjudicating disputes between branches as parties to litigation. See Z. Payvand Ahdout, Separation-of-Powers Avoidance, 132 Yale L.J. 2360, 2363, 2365–66 (2023).Show More Critically, this set of cases includes power issues such as congressional subpoena power, the scope of governmental privileges and immunities, and the line between Congress’s appropriations power and the president’s enforcement discretion.

It turns out that in the last two decades, these cases have never reached a final judgment on the merits. As these cases take a protracted path through the judiciary, they do so against the backdrop of election cycles. With time, the parties in interest change. The House moves from Democratic to Republican control or the presidency changes hands. Scholarship has accounted for the ways elections change, for example, the positions that the Justice Department takes in litigation8 8.See, e.g., Cristina M. Rodríguez, The Supreme Court, 2020 Term—Foreword: Regime Change, 135 Harv. L. Rev. 1, 4 (2021); Michael R. Dreeben, Stare Decisis in the Office of the Solicitor General, 130 Yale L.J.F. 541, 552 (2021); Margaret H. Lemos & Deborah A. Widiss, The Solicitor General, Consistency, and Credibility, 100 Notre Dame L. Rev. 621, 623–24 (2025) (examining multiple explanations for the Solicitor General’s changes in positions).Show More or the incentives that elected officials have in initiating or dropping litigation.9 9.Zachary D. Clopton & Katherine Shaw, Public Law Litigation and Electoral Time, 2023 Wis. L. Rev. 1513, 1514.Show More But what about the cases that are already in federal court? How do they end?

Part I documents a concept I call “political mootness.” In the judiciary, political mootness takes three forms. First, and most straightforwardly, some of these cases are rendered legally moot when the parties in control change. The issue in the case is no longer “live,” thus precluding judicial review. For example, in an appropriations challenge, a new president may not continue to spend funds in the way the House alleged was ultra vires.10 10.See, e.g., Yellen v. U.S. House of Representatives, 142 S. Ct. 332 (2021) (vacating as legally moot the dispute over border wall funding initiated by the House during the first Trump Administration); Petition for a Writ of Certiorari at 11, Yellen, 142 S. Ct. 332 (No. 20-1738) (“Following the change in Administration, and consistent with the President’s discretion that ‘no more American taxpayer dollars be diverted to construct a border wall,’ [the Department of Defense] has canceled all border-wall projects and discontinued using any of the challenged funds for any further construction.” (quoting Proclamation No. 10142, 86 Fed. Reg. 7225 (Jan. 27, 2021))).Show More

Second, political mootness comes to fruition when the parties negotiate separation-of-powers settlements. When elections result in a rotation of power that puts the same political party in control of both the House and the White House, they often reach a settlement conditional on universal vacatur of every opinion in the case.11 11.This has one qualified exception. See infra Section I.B.Show More Although this separation-of-powers settlement has become the dominant resolution in modern apex litigation, this is the first Article to identify its existence and incorporate it into structural constitutional scholarship. It is somewhat surprising that cases that receive so much attention—from litigation over President Obama’s allegedly ultra vires funding of the Affordable Care Act (“ACA”)12 12.See U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 63 (D.D.C. 2015).Show More to that over former White House Counsel Don McGahn’s categorical refusal to testify before Congress13 13.See Comm. on the Judiciary, U.S. House of Representatives v. McGahn, 415 F. Supp. 3d 148, 153 (D.D.C. 2019).Show More—still have discoveries to be unearthed. This may be because too often, attention is focused on the Supreme Court (or, more accurately, on anticipation of the Supreme Court’s review). But these cases may never get there. Across cases, buried in dockets, is evidence of a separation-of-powers agreement between the branches of government that leaves much to be uncovered.

Third, political mootness manifests in intra-branch criminal cases. Almost from their inception, the prosecutions of then-former President Trump prompted commentary and anxiety about whether the cases could resolve before the November 2024 election.14 14.See, e.g., James D. Zirin, Can Trump Conceivably Beat the Legal Clock—and the Rap?, The Hill (Oct. 9, 2023, 1:30 PM), https://thehill.com/opinion/judiciary/4244738-can-trump-c‌onceivably-beat-the-legal-clock-and-the-rap/ [https://perma.cc/LC75-KFQT] (“The D.C. claim of presidential immunity is unlikely to win dismissal of the case, but it may succeed in delaying his D.C. trial, now scheduled for March 4, to a date known only in Neverland.”); David A. Graham, The Cases Against Trump: A Guide, The Atlantic (Jan. 6, 2025), https://ww‌w.theatlantic.com/ideas/archive/2025/01/donald-trump-legal-cases-charges/675531.Show More Of course, they did not. And upon President Trump’s election, the Special Counsel consulted binding Department of Justice (“DOJ”) policy, which became binding on the courts: a sitting president cannot be prosecuted.15 15.1 Jack Smith, Final Report on the Special Counsel’s Investigations and Prosecutions 1 (2025), https://www.justice.gov/storage/Report-of-Special-Counsel-Smith-Volume-1-Januar‌y-2025.pdf [https://perma.cc/3UAE-553F].Show More

Political mootness is borne of a design feature of American democracy: time. In the political branches, time plays a constraining role on authority. Through fixed and regular elections, the Constitution places a time limit on the power of any individual president or member of Congress. But time operates in a different direction (and more indirectly) in the judicial branch. It is not fixed and regular elections that constrain federal judges with life tenure. Instead, one constraining and fundamental feature of our democratic judicial system16 16.See Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 579, 590 (2005) (“[B]eing a judge within democratic governments ought to entail a set of practices distinct from that of judging in nondemocratic polities.”).Show More is that every party is guaranteed process.17 17.U.S. Const. amend. V.Show More But process takes time. When protracted judicial process converges with elections, the result is political mootness. As the parties in interest to litigation change, their political interests no longer align with the legal interests they sought to vindicate.

To understand the role adjudication plays in apex litigation, we must understand what it means for Congress to choose to go to court. Through a series of original interviews with individuals who conducted the investigation for the House Select Committee to Investigate the Attack on the Capitol (“the Committee”), Part II examines their investigatory strategy and legal decision-making.18 18.I set out to understand the Select Committee’s investigative and legal decision-making and how, in particular, that decision-making was informed by the timeline of the investigation. I spoke with senior staffers who had worked for the Committee. Some individuals’ roles were exclusively for the Committee, others served broader roles in the House and had the Committee within their portfolios. Most individuals served in a legal capacity. I also spoke with senior staffers with experience in the Senate to understand the similarities and differences between House and Senate investigations and litigation. I recognize that the pool of individuals—generally related to the Committee’s work, serving in a legal role, and willing to speak with me—may suffer from selection bias. Although I used semi-structured interviews, I make no claims about interview design or comprehensiveness. I include them to add some context from congressional decision-makers, a contingent that is not often heard from directly in legal scholarship concerning the separation of powers. Cf. David E. Pozen, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. 512, 520 n.21 (2013) (using interviews with sources inside the executive branch to add “texture” to an analysis of governmental leaks). I also assured the individuals anonymity.Show More Through these interviews, Part II shows that, first, familiar words like “subpoena” and “contempt” do not have the same meaning within Congress as they do in federal court. Second, there is a widespread use of so-called “friendly subpoenas” in congressional investigations. These are subpoenas that are requested by putative witnesses for legal, political, or social cover. On the outside, these subpoenas look no different from subpoenas of truly recalcitrant witnesses. But this means that the House is not as aggressive with its power as it appears to outside observers. Indeed, Part II further shows that the House self-constrains its authority in part because of the specter of political mootness. These interviews show some evidence of the structural disadvantage the House suffers from in disputes with the executive. They demonstrate the House’s need for an ally to back its use of power. But these interviews also show how recalcitrant witnesses can use courts and legal process (or the mere threat of them) to run out the clock on a congressional investigation.

With this richer understanding of what happens outside, before, and during apex litigation, Part III turns back to political mootness and what it means for the role of adjudication in apex disputes. Focusing on the special problem of separation-of-powers settlements, Part III argues that courts engage in neither law declaration nor dispute resolution when they are called on to adjudicate apex disputes. Rather than dismissing these cases as outside of the judicial role, Part III calls for recasting the role that courts play as a participant in tripartite constitutional dialogue and reframes the legal outputs of these cases in terms of constitutional dialogue. Part IV turns to the normative, arguing that within the frame of dialogue, some aspects of political mootness are desirable. But political mootness is also subject to abuse. Part IV suggests some ways to address its shortcomings, while capitalizing on its advantages.

Structural constitutional scholarship is in need of a conceptual frame and vocabulary to discuss structural constitutional litigation between the three branches of government. That conceptual frame cannot be sheared of its politics. Political mootness is one conceptual structure that helps us better understand the modern fractures, allocations, and distribution of power between our three branches of government.

  1. ** This Article draws in part on interviews conducted by the author with confidential sources. Out of respect to the confidential nature of these interviews, and to preserve promises of anonymity made to sources, the Virginia Law Review did not independently verify the content of these interviews. Representations concerning the substance of these interviews are the sole responsibility of the author. ↑
  2.  Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523, 523 (2004) (naming the phenomenon where “political claims and practices—legislative and executive initiatives—that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings”). ↑
  3.  See generally Eric A. Posner & Adrian Vermeule, Constitutional Showdowns, 156 U. Pa. L. Rev. 991, 991 (2008) (“Showdowns occur between the President and the courts, between Congress and the courts, as well as between the President and Congress. Indeed, some showdowns involve all three branches simultaneously, or threaten to do so.”). ↑
  4.  See Matthew Callahan & Reuben Fischer-Baum, Where the Trump Administration Is Thwarting House Oversight, Wash. Post (Oct. 11, 2019), https://www.washingtonpost.com/gr‌aphics/2019/politics/trump-blocking-congress (cataloguing Trump Administration refusals to comply with congressional subpoenas). ↑
  5.  See infra Part I. ↑
  6.  See infra Part II. ↑
  7.  See Aziz Z. Huq, Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design, 65 UCLA L. Rev. 1506, 1511–14 (2018) (embracing the looseness of the term “apex criminality” to describe offenses committed by high-level officials). ↑
  8.  I exclude suits where government actors are not parties on both sides of the litigation, which would include challenges over whether congressional legislation impermissibly infringes on executive power. I draw this line because federal courts operate differently when adjudicating disputes between branches as parties to litigation. See Z. Payvand Ahdout, Separation-of-Powers Avoidance, 132 Yale L.J. 2360, 2363, 2365–66 (2023). ↑
  9.  See, e.g., Cristina M. Rodríguez, The Supreme Court, 2020 Term—Foreword: Regime Change, 135 Harv. L. Rev. 1, 4 (2021); Michael R. Dreeben, Stare Decisis in the Office of the Solicitor General, 130 Yale L.J.F. 541, 552 (2021); Margaret H. Lemos & Deborah A. Widiss, The Solicitor General, Consistency, and Credibility, 100 Notre Dame L. Rev. 621, 623–24 (2025) (examining multiple explanations for the Solicitor General’s changes in positions). ↑
  10.  Zachary D. Clopton & Katherine Shaw, Public Law Litigation and Electoral Time, 2023 Wis. L. Rev. 1513, 1514. ↑
  11.  See, e.g., Yellen v. U.S. House of Representatives, 142 S. Ct. 332 (2021) (vacating as legally moot the dispute over border wall funding initiated by the House during the first Trump Administration); Petition for a Writ of Certiorari at 11, Yellen, 142 S. Ct. 332 (No. 20-1738) (“Following the change in Administration, and consistent with the President’s discretion that ‘no more American taxpayer dollars be diverted to construct a border wall,’ [the Department of Defense] has canceled all border-wall projects and discontinued using any of the challenged funds for any further construction.” (quoting Proclamation No. 10142, 86 Fed. Reg. 7225 (Jan. 27, 2021))). ↑
  12.  This has one qualified exception. See infra Section I.B. ↑
  13.  See U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 63 (D.D.C. 2015). ↑
  14.  See Comm. on the Judiciary, U.S. House of Representatives v. McGahn, 415 F. Supp. 3d 148, 153 (D.D.C. 2019). ↑
  15.  See, e.g., James D. Zirin, Can Trump Conceivably Beat the Legal Clock—and the Rap?, The Hill (Oct. 9, 2023, 1:30 PM), https://thehill.com/opinion/judiciary/4244738-can-trump-c‌onceivably-beat-the-legal-clock-and-the-rap/ [https://perma.cc/LC75-KFQT] (“The D.C. claim of presidential immunity is unlikely to win dismissal of the case, but it may succeed in delaying his D.C. trial, now scheduled for March 4, to a date known only in Neverland.”); David A. Graham, The Cases Against Trump: A Guide, The Atlantic (Jan. 6, 2025), https://ww‌w.theatlantic.com/ideas/archive/2025/01/donald-trump-legal-cases-charges/675531. ↑
  16.  1 Jack Smith, Final Report on the Special Counsel’s Investigations and Prosecutions 1 (2025), https://www.justice.gov/storage/Report-of-Special-Counsel-Smith-Volume-1-Januar‌y-2025.pdf [https://perma.cc/3UAE-553F]. ↑
  17.  See Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 579, 590 (2005) (“[B]eing a judge within democratic governments ought to entail a set of practices distinct from that of judging in nondemocratic polities.”). ↑
  18.  U.S. Const. amend. V. ↑

  19.  I set out to understand the Select Committee’s investigative and legal decision-making and how, in particular, that decision-making was informed by the timeline of the investigation. I spoke with senior staffers who had worked for the Committee. Some individuals’ roles were exclusively for the Committee, others served broader roles in the House and had the Committee within their portfolios. Most individuals served in a legal capacity. I also spoke with senior staffers with experience in the Senate to understand the similarities and differences between House and Senate investigations and litigation. I recognize that the pool of individuals—generally related to the Committee’s work, serving in a legal role, and willing to speak with me—may suffer from selection bias. Although I used semi-structured interviews, I make no claims about interview design or comprehensiveness. I include them to add some context from congressional decision-makers, a contingent that is not often heard from directly in legal scholarship concerning the separation of powers. Cf. David E. Pozen, The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information, 127 Harv. L. Rev. 512, 520 n.21 (2013) (using interviews with sources inside the executive branch to add “texture” to an analysis of governmental leaks). I also assured the individuals anonymity. ↑

Antitrust’s Interdependence Paradox

Introduction

Price-fixing conspiracies are the “supreme evil” that Congress intended antitrust laws to deter and to punish.1 1.See Verizon Commc’ns, Inc. v. Law Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 408 (2004) (describing collusion as “the supreme evil of antitrust”).Show More Because price fixers face ten-year prison sentences, criminal fines, and private liability often measured in the hundreds of millions of dollars, price-fixing conspirators generally undertake elaborate measures to conceal their collusion. Consequently, direct evidence of collusion is rarely available, and private plaintiffs must rely on circumstantial evidence to prove their antitrust cases.

Remarkably, federal courts have applied an unproven economic theory to effectively immunize the most likely price-fixing conspiracies from antitrust liability. Price-fixing cartels are more probable in concentrated markets with very few firms, generally called oligopoly markets. Price fixing requires coordination and concealment, which are easier in oligopoly markets. Recent antitrust opinions, however, have made it significantly more difficult for antitrust plaintiffs to prove collusion through circumstantial evidence in precisely these markets, the ones most prone to price-fixing conspiracies. This creates a paradox in antitrust law: the most likely conspiracies are the hardest to prove.

The predicament flows from judicial misapplication of interdependence theory. Interdependence describes the phenomenon of businesses pricing their products based on predicting how their competitors will respond.2 2.See 6 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶ 1410a, at 71 (4th ed. 2017) (“‘Interdependence’ refers to a state of affairs in which each person’s actions depend on his perception of how others will act.”).Show More Interdependence theory predicts that firms in a concentrated market may be able to “coordinat[e] their pricing without an actual agreement to do so.”3 3.In re Text Messaging Antitrust Litig., 782 F.3d 867, 871 (7th Cir. 2015).Show More Invoking this interdependence theory, federal courts assert that price-fixing conspiracies are unlikely to occur in concentrated markets because the rival firms do not need to conspire: they can simply observe each other from a distance. Consequently, judges discount circumstantial evidence of collusion when price-fixing defendants operate in market structures that are the most conducive to price fixing. As a result, price-fixing conspirators are often insulated from antitrust liability.4 4.See Louis Kaplow, Competition Policy and Price Fixing 133–45 (2013); see also William H. Page, Pleading, Discovery, and Proof of Sherman Act Agreements: Harmonizing Twombly and Matsushita, 82 Antitrust L.J. 123, 130 & n.36 (2018) (describing Kaplow’s “paradox of proof”).Show More

Part I of this Article explains how antitrust plaintiffs must often prove price fixing through circumstantial evidence. This generally requires the plaintiffs to show that the defendants raised their prices in unison and that these parallel price increases were the result of collusion, not independent decision-making. Plaintiffs prove the second step by presenting evidence of plus factors, which are facts and circumstances that make it more likely that price rises were produced by collusion rather than independent parallel action. Courts have long recognized market structure as an important plus factor because concentrated markets are more susceptible to illegal cartelization. Firms in such markets will find it easier to negotiate their cartel agreement, to exclude non-cartel rivals from the market, to enforce their illegal accord, and to conceal their price-fixing conspiracy from antitrust officials and consumers.

Part II explains how courts have also assumed that price-fixing conspiracies do not occur in concentrated markets. Using interdependence theory, several courts have eliminated market concentration as a plus factor even though market concentration facilitates price-fixing conspiracies. Moreover, courts have invoked interdependence theory to drain a wide variety of plus factors of their probative value. And courts sometimes disparage expert testimony that explains why the proffered plus factors point to collusion. Ultimately, courts have imposed heightened evidentiary burdens to prove price-fixing claims in oligopoly markets without providing any guidance on how to satisfy these heightened burdens.

Part III demonstrates that—despite what interdependence theory predicts—firms in concentrated markets still need to conspire to fix prices. An explicit conspiracy has many advantages over relying on interdependence: prices can be more easily fixed, negotiated, and renegotiated with actual conversations among rival firms; cartels can create enforcement mechanisms, which interdependence lacks; and actual conspirators can avoid miscommunications, which can destabilize price-raising aspirations based on interdependence. Empirical evidence shows unquestionably that firms in concentrated markets do, in fact, conspire to fix prices.

Part IV discusses how federal courts misapprehend the relationship between interdependence theory and plus factors. Interdependence theory does not negate plus factors; plus factors disprove interdependence theory. Plus factors help judges and juries “distinguish between innocent interdependence and illegal conspiracy.”5 5.Blomkest Fertilizer, Inc. v. Potash Corp. of Sask., 203 F.3d 1028, 1043 (8th Cir. 2000) (en banc) (Gibson, J., dissenting).Show More The fact that defendants are in a concentrated market represents an important plus factor because concentrated markets facilitate price-fixing collusion. But this evidence must be supplemented by other plus factors. More effort should be undertaken to educate federal judges about how price-fixing conspiracies actually operate. This would reduce the risk of courts invoking interdependence theory to discount plus factors, especially those that are unrelated to market concentration.

  1.  See Verizon Commc’ns, Inc. v. Law Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 408 (2004) (describing collusion as “the supreme evil of antitrust”). ↑

  2.  See 6 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶ 1410a, at 71 (4th ed. 2017) (“‘Interdependence’ refers to a state of affairs in which each person’s actions depend on his perception of how others will act.”). ↑

  3.  In re Text Messaging Antitrust Litig., 782 F.3d 867, 871 (7th Cir. 2015). ↑

  4.  See Louis Kaplow, Competition Policy and Price Fixing 133–45 (2013); see also William H. Page, Pleading, Discovery, and Proof of Sherman Act Agreements: Harmonizing Twombly and Matsushita, 82 Antitrust

    L.J

    . 123, 130 & n.36 (2018) (describing Kaplow’s “paradox of proof”). ↑

  5.  Blomkest Fertilizer, Inc. v. Potash Corp. of Sask., 203 F.3d 1028, 1043 (8th Cir. 2000) (en banc) (Gibson, J., dissenting). ↑

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