Issue 5

A Law Unto Oneself: Personal Positivism and Our Fragmented Judiciary

This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The jurisprudential theory is “personal positivism,” which holds that each judge’s publicly known rules of decision are the law for that jurist and, therefore, part of the overall law of the legal system. This theory offers a richer and more useful account of law in the United States today, including its dependence on the views of individual judges. Personal positivism also recognizes that the law is increasingly constituted by the views of competing groups of judges—one liberal, one conservative, and each with its own set of personal rules. At the same time, personal positivism maintains that there is an abundance of genuine law—not just politics—even in contested cases. The problem facing the U.S. legal system, then, isn’t that law is being replaced with politics, but rather that the law is too fragmentary. And the solution is not to ignore or suppress judicial individuality, but to harness it.

Introduction

What is the law of the United States? Consider the following examples, all from the Supreme Court’s last Term:

  • After receiving a skeptical oral argument question from Justice Thomas, advocate Paul Clement agreed that “I wouldn’t be making this argument in this case to you” and pivoted to a different rationale “under your”—that is, Justice Thomas’s—“jurisprudence.” Clement then discussed Justice Thomas’s personal views in detail, concluding: “[T]his is a case where your own jurisprudence would give you the same answer, I think, as a majority of the court . . . .”1 1.Transcript of Oral Argument at 32, Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022) (No. 20-1573); see also Transcript of Oral Argument at 7, SEC v. Jarkesy, 144 S. Ct. 2117 (2024) (No. 22-859) (Justice Sotomayor inviting a lawyer to address Justice Thomas’s distinctive jurisprudence).Show More
  • In another oral argument, Chief Justice Roberts noted that the U.S. Solicitor General’s position defied the practice of “those of us who were on the D.C. Circuit.” Justice Kavanaugh agreed, responding to the idea that the U.S. Court of Appeals for the D.C. Circuit was “not paying attention to the text” by asserting: “Yeah, we did.” And, when Justice Jackson expressed similar skepticism, Justice Kagan noted: “Seems to be a kind of D.C. Circuit cartel,” to which Justice Jackson responded: “It is. It is.”2 2.Transcript of Oral Argument at 35, 55, 66, United States v. Texas, 143 S. Ct. 1964 (2023) (No. 22-58).Show More
  • Just a few years after affirmative action’s critics became “greater now in number on the Court,” six Justices held that race-conscious university admissions practices violate the Equal Protection Clause. These events, Justice Sotomayor argued in dissent, fostered “suspicions that ‘bedrock principles are founded . . . in the proclivities of individuals’ on this Court, not in the law.”3 3.Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2245 (2023) (Sotomayor, J., dissenting) (alteration in original) (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)); see also infra note 171 (collecting sources).Show More

These examples may seem like aberrations, embarrassments, or worse. But they are best understood as clues. They help us to see what is normally invisible: to be a judge, particularly a Supreme Court Justice,4 4.Justices are distinctively situated in part because their personal rules are mostly unchecked by the rules of other jurists. See infra text accompanying note 106.Show More is to be a law unto oneself.5 5.Being “a law unto oneself” captures both freedom from shared principles and personal adherence to genuine rules. For the phrase’s biblical origin, see Romans 2:14.Show More

To bear out that claim, this Article develops a new way of understanding the nature of law.6 6.See Richard M. Re, Essay, Personal Precedent at the Supreme Court, 136 Harv. L. Rev. 824, 860 & n.224 (2023) (outlining “personal positivism”).Show More In brief, each judge’s publicly known rules of decision can be viewed as the law for that jurist and, therefore, part of the overall law of the legal system.7 7.Regarding my focus on judges, see infra note 37 and infra Section II.B.Show More This “personal positivism” differs from the canonical positivism of H.L.A. Hart because it grounds the content of the law in the potentially distinctive views of each official, rather than in a consensus practice among officials.8 8.See H.L.A. Hart, The Concept of Law 108, 116 (2d ed. 1994). For other positivist rejections of Hart’s focus on consensus, see Mitchell N. Berman, Our Principled Constitution, 166 U. Pa. L. Rev. 1325, 1348–50 (2018); infra notes 95, 104.Show More Figuratively put, the conventional view is of the law as a monolith, whereas I want to describe the law as a mosaic.

The importance of identifying the law goes far beyond jurisprudential debates. After the recent spates of judicial appointments by Presidents Trump and Biden, the U.S. legal system is newly riven by methodological and ideological disagreement.9 9.See, e.g., Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1408 (2021) (discussing increases in partisan en banc activity).Show More There are now two distinct groups of U.S. judges, each with its own commitments, heroes, and fissures.10 10.Changes at the Supreme Court have more to do with “party sorting” than “polarization,” in that party affiliation perfectly tracks ideology even if the gap between left and right hasn’t grown. See Daniel Hemel, Can Structural Changes Fix the Supreme Court?, 35 J. Econ. Persps. 119, 125–26 (2021); see also Adam Bonica & Maya Sen, The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary 257–61 (2021) (providing evidence of federal judicial polarization).Show More In the face of that fractured reality, efforts to cast the law as shared and unitary are inapt. Yet judges and scholars persist in doing so, following a jurisprudential path that allows for grand claims but little progress.

Take any number of major decisions in recent years. When considering whether to overrule Roe v. Wade,11 11.410 U.S. 113 (1973).Show More transform administrative law,12 12.West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022).Show More strengthen Second Amendment rights,13 13.N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).Show More or whatever else, how do judges, advocates, and lay observers ascertain the law? Again, Hartian positivism begins by asking about consensus practices among officials.14 14.See Hart, supra note 8, at 108.Show More But consensus practices cannot answer a host of contested questions. The upshot is that there can be almost no determinate law in contested cases. The Justices must instead be left with vast and unchanging discretion—year in and year out.15 15.See infra text accompanying notes 62, 132 (collecting sources).Show More

But that, too, would be wrong. The Justices regularly abide by publicly known rules and so do not act like policymaking legislators. Sophisticated observers are intimately familiar with the individual records of each justice, and advocates pitch their cases accordingly.16 16.See Re, supra note 6, at 845.Show More Moreover, anyone familiar with the U.S. legal system understood that replacing Ruth Bader Ginsburg with Amy Coney Barrett instantly affected legal practice as well as the authority of various legal sources. In short, people unencumbered by jurisprudence routinely act as though there is a lot of determinate law, even in cases at the Supreme Court. It’s just that that law is substantially personalized.

None of this is to insist that there is just one right way to understand the law or its nature.17 17.Relatedly, I sometimes offer alternative theories or backup positions. See, e.g., infra note 55 (outlining a relatively moderate “personalized positivism”).Show More Jurisprudential thinkers frequently purport to identify a “general” theory of law that assertedly applies to most or all legal systems. I adopt a more complex meta-jurisprudential stance. At the outset, I defend personal positivism as a plausible general theory of the law. And I further argue that personal positivism has significant advantages over other approaches to general jurisprudence, including Hartian positivism. At the same time, I recognize that rival theories of law capture different truths. The answer to the question “What is law?” should accordingly turn on the question’s context and purpose.18 18.See infra Section I.A (adopting a pragmatic stance toward meta-jurisprudence); cf. Hart, supra note 8, at 241 (Hart describing his own and Dworkin’s differing “conceptions of legal theory” as distinct “enterprises” that may not conflict).Show More In a legal system characterized by judicial uniformity, or when trying to get the gist of how a legal system operates, it could make sense to follow Hart in starting with consensus practices.19 19.See infra text accompanying note 130. A loose analogy: Newtonian physics is fundamentally incorrect, and yet, for most people, far more useful than relativistic physics—a superior theory that is itself still incomplete.Show More Today, however, the realities of the U.S. legal system make personal positivism indispensable.20 20.Personal positivism could be recast as a local jurisprudential theory, that is, as a contingent account of the law as it exists within a specific kind of society. Yet local and general jurisprudential claims are related: if the United States is a central instance of a legal system and Hart’s account is inapt in that specific context, then so much the worse for its general jurisprudential appeal.Show More

To see the distinctive, even urgent importance of viewing the U.S. legal system through the lens of personal positivism, consider three interrelated challenges. First is the prospect of cynicism: especially after recent decisions like Dobbs v. Jackson Women’s Health Organization,21 21.142 S. Ct. 2228 (2022).Show More many observers have suggested that constitutional law largely amounts to politics.22 22.See, e.g., Cary C. Franklin, Religious Liberty for Some, Jotwell (Jan. 30, 2023), https://co‌nlaw.jotwell.com/politics-all-the-way-down/ [https://perma.cc/YRL5-7HJT] (discussing religious liberty case law in terms of “the fact that it’s politics all the way down” and that “the Court is engaged in a political project”); Joseph Fishkin & William E. Forbath, Make Progressive Politics Constitutional Again, Bos. Rev. (June 23, 2022), https://www.bostonrevi‌ew.net/forum/make-progressive-politics-constitutional-again/ [https://perma.cc/2B99-AX‌HF] (discussing “the right’s decisive politicization of the courts”); James F. McHugh & Lauren Stiller Rikleen, The Politicization of SCOTUS Threatens Its Legitimacy, Bloomberg L. (June 30, 2022, 4:00 AM), https://news.bloomberglaw.com/us-law-week/the-politicization‌-of-scotus-threatens-its-legitimacy [https://perma.cc/A5KP-M9WX] (describing “the court’s transformation from the nation’s most significant legal institution into a court driven by political beliefs and pre-conceived agendas”). Similar ideas of course have a deep intellectual history. See Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 5–6, 32 (1984).Show More Second is the question of reform: if constitutional law is just policymaking, then the Court as we know it should probably be scrapped—as commentators have also suggested.23 23.See infra note 204.Show More Third is the asserted hegemony of originalism, which now guides most Justices24 24.See Henry Gass, Originalism Moves from Theory to High Court. What That Means for US., Christian Sci. Monitor (Dec. 21, 2021), https://www.csmonitor.com/USA/Justice/2021/1‌221/Originalism-moves-from-theory-to-high-court.-What-that-means-for-US [https://perma.‌cc/6C6X-YHWQ]; Neil S. Siegel, The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent, 126 Yale L.J.F. 164, 166 (2016) (Justice Alito calls himself a “practical originalist”).Show More: is originalism “our law,” and, if so, what are its demands on conscientious legal actors?25 25.Cf. William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2352 (2015).Show More Personal positivism casts each of these challenges in a new and more favorable light.

Start with the prospect of cynicism.26 26.See, e.g., supra note 22.Show More While there may be precious little consensus law in contested cases, there is a vast amount of individual and group-based law. In fact, there may be too much law in contested cases. The judiciary is composed of individuals who adhere to personal rules, and groups of those individuals tend to endorse convergent rule sets. The result is group-based disagreement, with relatively formalist and conservative judges ascendant.27 27.Roughly speaking, one might say that personal rules associated with the Federalist Society now form a larger and more important part of the law than the personal rules associated with the American Constitution Society. See Emma Green, How the Federalist Society Won, New Yorker (July 24, 2022), https://www.newyorker.com/news/annals-of-education/how-the‌-federalist-society-won [https://perma.cc/72XK-D4L9]; see also Arthur D. Hellman, The Supreme Court’s Two Constitutions: A First Look at the “Reverse Polarity” Cases, 82 U. Pitt. L. Rev. 273, 274 (2020) (“It is almost as though each group of Justices has found its own copy of the Constitution . . . .”).Show More Jurists today are about as rulebound as their predecessors were, if not more so. But when placed in the same judicial system, these judges’ conflicting legal commitments can generate unpredictability, or worse. So the claim that there is no constitutional law, or that constitutional law is just politics, misses the real problem.

That more nuanced picture of the legal system leads naturally to the topic of reform. If the courts often aren’t acting as courts at all, then it makes sense to staff the judiciary as though it were a legislature, or else disempower it.28 28.See Eric J. Segall, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges 167–68 (2012); Ryan D. Doerfler & Samuel Moyn, The Constitution Is Broken and Should Not Be Reclaimed, N.Y. Times (Aug. 19, 2022), https://www.nytimes.co‌m/2022/08/19/opinion/liberals-constitution.html [https://perma.cc/59MC-2FHH]; Nikolas Bowie & Daphna Renan, The Supreme Court Is Not Supposed to Have This Much Power, The Atlantic (June 8, 2022), https://www.theatlantic.com/ideas/archive/2022/06/supreme-co‌u‌rt-power-overrule-congress/661212/ [https://perma.cc/PM3Z-7QN6].Show More But once we see that personal law exists between policy and consensus law, we can envision subtler reforms, such as creating permissions that recognize and grapple with the genuinely legal diversity among jurists. Rather than insist that the law exists apart from individuals and their personal commitments, the law can be crafted with those different individuals in mind. The point is to foster stability, compromise, and moderation, while avoiding turbulence, obstinacy, or alienation—and to do so in a more nuanced way than simply continuing to insist that one’s own preferred views are correct.29 29.Cf. Stephen E. Sachs, Presidential Comm’n on the Sup. Ct. of the U.S., Closing Reflections on the Supreme Court and Constitutional Governance 2 (July 20, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Sachs-Testimony.pdf [https://per‌ma.cc/CAE8-7962] (discussing problems with the judiciary that “can only be solved by the slow work of persuading others”).Show More

Part of that effort must grapple with the varied theories of constitutional law put forward by judges and scholars. Take originalism. Professors Will Baude and Steve Sachs have argued—based on Hartian positivism—that originalism is in fact the law of the United States.30 30.See William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455, 1457, 1463 (2019); infra Section IV.C.Show More But the positivist case for originalism starts off on the wrong foot by following Hart in seeking an abstract principle of consensus.31 31.See Baude & Sachs, supra note 30, at 1463 (noting that whether “the Hartian account is generally wrong and . . . some contrary positivist theory . . . is generally right” is “bigger game”).Show More By contrast, personal positivism looks to individual jurists and so reveals not just originalism in the U.S. legal system, but also a lot of non-originalist methodology, as well as many relatively specific commitments (or “fixed points”) even among originalists. Thus, originalism and other constitutional theories form only parts of our law, even if very important parts.32 32.Cf. Baude, supra note 25, at 2403–07 (discussing, as a fallback position, the possibility that originalism is “at least part of the law” and, moreover, that “a judge is legally entitled to be an originalist”).Show More

  1.  Transcript of Oral Argument at 32, Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022) (No. 20-1573); see also Transcript of Oral Argument at 7, SEC v. Jarkesy, 144 S. Ct. 2117 (2024) (No. 22-859) (Justice Sotomayor inviting a lawyer to address Justice Thomas’s distinctive jurisprudence). ↑
  2.  Transcript of Oral Argument at 35, 55, 66, United States v. Texas, 143 S. Ct. 1964 (2023) (No. 22-58). ↑
  3.  Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2245 (2023) (Sotomayor, J., dissenting) (alteration in original) (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)); see also infra note 171 (collecting sources). ↑
  4.  Justices are distinctively situated in part because their personal rules are mostly unchecked by the rules of other jurists. See infra text accompanying note 106. ↑
  5.  Being “a law unto oneself” captures both freedom from shared principles and personal adherence to genuine rules. For the phrase’s biblical origin, see Romans 2:14. ↑
  6.  See Richard M. Re, Essay, Personal Precedent at the Supreme Court, 136 Harv. L. Rev. 824, 860 & n.224 (2023) (outlining “personal positivism”). ↑
  7.  Regarding my focus on judges, see infra note 37 and infra Section II.B. ↑
  8.  See H.L.A. Hart, The Concept of Law 108, 116 (2d ed. 1994). For other positivist rejections of Hart’s focus on consensus, see Mitchell N. Berman, Our Principled Constitution, 166 U. Pa. L. Rev. 1325, 1348–50 (2018); infra notes 95, 104. ↑
  9.  See, e.g., Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1408 (2021) (discussing increases in partisan en banc activity). ↑
  10.  Changes at the Supreme Court have more to do with “party sorting” than “polarization,” in that party affiliation perfectly tracks ideology even if the gap between left and right hasn’t grown. See Daniel Hemel, Can Structural Changes Fix the Supreme Court?, 35 J. Econ. Persps. 119, 125–26 (2021); see also Adam Bonica & Maya Sen, The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary 257–61 (2021) (providing evidence of federal judicial polarization). ↑
  11.  410 U.S. 113 (1973). ↑
  12.  West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022). ↑
  13.  N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). ↑
  14.  See Hart, supra note 8, at 108. ↑
  15.  See infra text accompanying notes 62, 132 (collecting sources). ↑
  16.  See Re, supra note 6, at 845. ↑
  17.  Relatedly, I sometimes offer alternative theories or backup positions. See, e.g., infra note 55 (outlining a relatively moderate “personalized positivism”). ↑
  18.  See infra Section I.A (adopting a pragmatic stance toward meta-jurisprudence); cf. Hart, supra note 8, at 241 (Hart describing his own and Dworkin’s differing “conceptions of legal theory” as distinct “enterprises” that may not conflict). ↑
  19.  See infra text accompanying note 130. A loose analogy: Newtonian physics is fundamentally incorrect, and yet, for most people, far more useful than relativistic physics—a superior theory that is itself still incomplete. ↑
  20.  Personal positivism could be recast as a local jurisprudential theory, that is, as a contingent account of the law as it exists within a specific kind of society. Yet local and general jurisprudential claims are related: if the United States is a central instance of a legal system and Hart’s account is inapt in that specific context, then so much the worse for its general jurisprudential appeal. ↑
  21.  142 S. Ct. 2228 (2022). ↑
  22.  See, e.g., Cary C. Franklin, Religious Liberty for Some, Jotwell (Jan. 30, 2023), https://co‌nlaw.jotwell.com/politics-all-the-way-down/ [https://perma.cc/YRL5-7HJT] (discussing religious liberty case law in terms of “the fact that it’s politics all the way down” and that “the Court is engaged in a political project”); Joseph Fishkin & William E. Forbath, Make Progressive Politics Constitutional Again, Bos. Rev. (June 23, 2022), https://www.bostonrevi‌ew.net/forum/make-progressive-politics-constitutional-again/ [https://perma.cc/2B99-AX‌HF] (discussing “the right’s decisive politicization of the courts”); James F. McHugh & Lauren Stiller Rikleen, The Politicization of SCOTUS Threatens Its Legitimacy, Bloomberg L. (June 30, 2022, 4:00 AM), https://news.bloomberglaw.com/us-law-week/the-politicization‌-of-scotus-threatens-its-legitimacy [https://perma.cc/A5KP-M9WX] (describing “the court’s transformation from the nation’s most significant legal institution into a court driven by political beliefs and pre-conceived agendas”). Similar ideas of course have a deep intellectual history. See Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 5–6, 32 (1984). ↑
  23.  See infra note 204. ↑
  24.  See Henry Gass, Originalism Moves from Theory to High Court. What That Means for US., Christian Sci. Monitor (Dec. 21, 2021), https://www.csmonitor.com/USA/Justice/2021/1‌221/Originalism-moves-from-theory-to-high-court.-What-that-means-for-US [https://perma.‌cc/6C6X-YHWQ]; Neil S. Siegel, The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent, 126 Yale L.J.F. 164, 166 (2016) (Justice Alito calls himself a “practical originalist”). ↑
  25.  Cf. William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2352 (2015). ↑
  26.  See, e.g., supra note 22. ↑
  27.  Roughly speaking, one might say that personal rules associated with the Federalist Society now form a larger and more important part of the law than the personal rules associated with the American Constitution Society. See Emma Green, How the Federalist Society Won, New Yorker (July 24, 2022), https://www.newyorker.com/news/annals-of-education/how-the‌-federalist-society-won [https://perma.cc/72XK-D4L9]; see also Arthur D. Hellman, The Supreme Court’s Two Constitutions: A First Look at the “Reverse Polarity” Cases, 82 U. Pitt. L. Rev. 273, 274 (2020) (“It is almost as though each group of Justices has found its own copy of the Constitution . . . .”). ↑
  28.  See Eric J. Segall, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges 167–68 (2012); Ryan D. Doerfler & Samuel Moyn, The Constitution Is Broken and Should Not Be Reclaimed, N.Y. Times (Aug. 19, 2022), https://www.nytimes.co‌m/2022/08/19/opinion/liberals-constitution.html [https://perma.cc/59MC-2FHH]; Nikolas Bowie & Daphna Renan, The Supreme Court Is Not Supposed to Have This Much Power, The Atlantic (June 8, 2022), https://www.theatlantic.com/ideas/archive/2022/06/supreme-co‌u‌rt-power-overrule-congress/661212/ [https://perma.cc/PM3Z-7QN6]. ↑
  29.  Cf. Stephen E. Sachs, Presidential Comm’n on the Sup. Ct. of the U.S., Closing Reflections on the Supreme Court and Constitutional Governance 2 (July 20, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Sachs-Testimony.pdf [https://per‌ma.cc/CAE8-7962] (discussing problems with the judiciary that “can only be solved by the slow work of persuading others”). ↑
  30.  See William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455, 1457, 1463 (2019); infra Section IV.C. ↑
  31.  See Baude & Sachs, supra note 30, at 1463 (noting that whether “the Hartian account is generally wrong and . . . some contrary positivist theory . . . is generally right” is “bigger game”). ↑

  32.  Cf. Baude, supra note 25, at 2403–07 (discussing, as a fallback position, the possibility that originalism is “at least part of the law” and, moreover, that “a judge is legally entitled to be an originalist”). ↑

The Founders’ Purse

This Article addresses a grave originalist misstep in the new and impending war over the constitutionality of broad delegations of spending power to the executive branch. In an opening salvo, the U.S. Court of Appeals for the Fifth Circuit held that Congress unconstitutionally delegated its power of the purse to the Consumer Financial Protection Bureau. It supported this conclusion with an ambitious but highly selective originalist interpretation of Article I, Section 9’s Appropriations Clause. Once the U.S. Supreme Court had the benefit of a more complete historical record, it rejected the Fifth Circuit’s interpretation of the Appropriations Clause’s original public meaning by a 7-2 vote. This Article grounds the Supreme Court’s analysis in a broader historical background on the delegation of spending power. It also illustrates how judges’ selective analysis of history can distort the Founding generation’s understanding of separation of powers and the respective roles of the legislative and executive branches.

Originalist claims to constitutional limits on the duration, generality, and source of spending in laws passed by Congress have missed a critical body of contrary historical evidence introduced by this Article. First, records of the Constitutional Convention show that the delegates approved new and durable congressional revenue and spending powers to support the U.S. government and its credit while declining proposals for temporal limitations on Congress’s revenue and spending powers. Second, early Congresses repeatedly put these new and durable spending powers to use in laws that bypassed all three proffered limitations on duration, generality, and source of funding. To support U.S. credit while paying down the debt, the First Congress delegated to an agency known as the Sinking Fund Commission indefinite power to self-direct purchases of debt with a generous award that, in current terms, exceeds $400 billion. Within two years, the debt instruments purchased by the Commission generated a significant interest-based surplus, which Congress awarded to the Commission in a dedicated fund drawn outside of annual appropriations. To establish an affordable new federal government, early Congresses also funded a majority of federal officers, including core law enforcement officials and even a new agency, through independently directed fees that were paid by private parties and operated without temporal limits. This history shows that Article I, Section 9 means what it says and requires only that Congress authorize spending through “[a]ppropriations made by [l]aw.” Claims to a contrary understanding depend on a selective analysis that ignores key lessons of both text and history.

Introduction

It’s all the rage for courts to question the constitutionality of statutes that delegate broad discretion to the executive branch. In May 2024, the Supreme Court ruled on the nondelegation doctrine’s latest twist and rejected the U.S. Court of Appeals for the Fifth Circuit’s holding that Congress unconstitutionally ceded its power of the purse to the Consumer Financial Protection Bureau (“Bureau”). Congress met the letter of the Appropriations Clause when it “ascertained” the “purpose,” the “limit,” and the source of the “fund” supporting the Bureau’s budget “by . . . law.”1 1.As explained by Alexander Hamilton, laws containing these minimal parameters meet Article I, Section 9’s requirement of “appropriations made by law.” Alexander Hamilton, Explanation (Nov. 11, 1795), Founders Online, Nat’l Archives, https://founders.archives.gov/‌documents/Hamilton/01-19-02-0077 [https://perma.cc/FF4D-TR3E] (quoting U.S. Const. art. I, § 9).Show More The Fifth Circuit held that this law did not count as an “appropriation,” however, because (1) it allowed the Bureau broad discretion to self-direct the amount of its budget for an unlimited period of time, and (2) the Bureau drew its funds from an independent source (interest-based earnings of the Federal Reserve System) rather than annual appropriations from the Treasury.2 2.See Cmty. Fin. Servs. Ass’n of Am. v. CFPB, 51 F.4th 616, 638–39 (5th Cir. 2022), rev’d, 144 S. Ct. 1474 (2024); see also id. at 623 (Congress’s decision “to cede its power of the purse to the Bureau[] violates the Constitution’s structural separation of powers.”).Show More This Article introduces previously overlooked evidence to challenge the originalist underpinnings of the Fifth Circuit’s opinion. It establishes that the Founding generation never understood the Appropriations Clause to impose heightened requirements as to the duration, specificity, and source of spending in laws passed by Congress.

Once the Supreme Court had the benefit of a more complete historical record, seven Justices rejected the Fifth Circuit’s originalist analysis.3 3.CFPB v. Cmty. Fin. Servs. Ass’n of Am., 144 S. Ct. 1474, 1481 (2024) (rejecting the Fifth Circuit’s argument “that appropriations must also ‘meet the Framers’ salutary aims of separating and checking powers’” (quoting Cmty. Fin. Servs. Ass’n, 51 F.4th at 640)).Show More Justice Thomas’s majority opinion emphasized parts of the historical record that the Fifth Circuit missed and concluded that the Fifth Circuit misconstrued the original public meaning of the Appropriations Clause.4 4.Id. (finding that “the Constitution’s text, the history against which that text was enacted, and congressional practice immediately following ratification” supported a more limited understanding of the Appropriations Clause).Show More While the majority left open the possibility of “other constitutional checks on Congress’s authority to create and fund an administrative agency,”5 5.Id. at 1489.Show More it gave little indication of how courts should avoid repeating the Fifth Circuit’s originalist missteps in future cases. This Article grounds the Supreme Court’s analysis in a broader historical record and illustrates how judges’ selective use of historical evidence can distort the Founding generation’s understanding of separation of powers.

The constitutional objections raised by critics of the Bureau’s funding structure boil down to a nondelegation concern: Congress unconstitutionally delegated its legislative power over spending when it granted broad budgetary discretion to the Bureau.6 6.Adam White, The CFPB’s Blank Check—or, Delegating Congress’s Power of the Purse, Yale J. on Regul.: Notice & Comment (Nov. 27, 2022), https://www.yalejreg.com/nc/the-cfpb‌s-blank-check-or-delegating-congresss-power-of-the-purse/ [https://perma.cc/GR8S-JDVS] (“The point could be put even more bluntly than the Fifth Circuit did: Congress delegated away its power of the purse.”). The Fifth Circuit held that Community Financial Services waived the nondelegation argument because they “did not raise their appropriations-based nondelegation argument in the district court.” Cmty. Fin. Servs. Ass’n, 51 F.4th at 633 n.6. Community Financial Services nevertheless asserted that “nondelegation principles are directly responsive” to arguments in this case, Brief in Opposition at 33, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448), and raised nondelegation arguments in its merits briefs. See infra notes 7–8.Show More These critics have disagreed over whether the purported constitutional limitations on the delegation of spending power stem from the Appropriations Clause or Article I, Section 1 of the Constitution.7 7.Brief for Respondents at 16, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448) (arguing that the Bureau’s funding “structure nullifies the [Appropriations] Clause”); id. at 27–29 (arguing that the Bureau’s funding scheme amounts to an unconstitutional “delegation of legislative power[s]” (quoting Mistretta v. United States, 488 U.S. 361, 420 (1989) (Scalia, J., dissenting))); cf. Michael B. Rappaport, The Selective Nondelegation Doctrine and the Line Item Veto: A New Approach to the Nondelegation Doctrine and Its Implications for Clinton v. City of New York, 76 Tul. L. Rev. 265, 318 (2001) (arguing that the “the question of whether the nondelegation doctrine applies to appropriation laws turns on two different constitutional clauses”: the Appropriations Clause and, under the assumption that discretion over spending is an executive and not a legislative power, the Executive Power Vesting Clause); Chad Squitieri, The Appropriate Appropriations Inquiry, 74 Fla. L. Rev. F. 1, 17–18 (2023) (arguing that courts should focus on whether spending powers amount to a “necessary and proper” means of carrying some other constitutionally vested power “into execution” (quoting U.S. Const. art. I, § 8)). The Founding generation conceived of purported limits on delegation of spending power under either the generally applicable Appropriations Clause or the two-year Army Appropriations Clause, rather than under a necessary and proper framework. See infra notes 312–13 and accompanying text (citing Madison’s understanding from a debate in the First Congress). The necessary and proper line of analysis is therefore beyond the scope of this Article.Show More The different sources of constitutional limitations also implicate somewhat different lines of analysis. Some arguments assert limits on the duration, generality, and source of funding under the Appropriations Clause, whereas others look to a general nondelegation framework based on the “intelligible principle” test.8 8.Cmty. Fin. Servs. Ass’n, 51 F.4th at 623 (holding that the Bureau’s funding law was not a constitutional “appropriation[]” because it omitted these limits); Brief for Respondents, supra note 7, at 15–16 (arguing that the Bureau’s spending structure violates the Appropriations Clause because it grants self-determined, “perpetual” funding to an agency with law enforcement power); id. at 29 (arguing that the funding law also “falls short” under the “intelligible principle test” (internal quotation marks omitted) (quoting Mistretta, 488 U.S. at 372)).Show More But in the end, all of these arguments point to constraints on Congress’s discretion to delegate decisions about funding to the executive branch. These purported limits have raised further questions about the constitutionality of similarly funded financial regulators such as the Federal Reserve. In addition, they have formed the basis of broader challenges to major spending initiatives ranging from the Biden Administration’s forgiveness of student loans to the Federal Communications Commission’s funding of universal service.9 9.Brief of Michael W. McConnell et al. as Amici Curiae in Support of Respondents at 7, Biden v. Nebraska, 143 S. Ct. 2355 (2023) (No. 22-506) (arguing that the loan forgiveness program violates the Appropriations Clause’s requirement that “the President may not spend without specific statutory authorization”); id. at 6 (“Forgiving a loan . . . come[s] under Congress’s exclusive spending power.”). In Biden v. Nebraska, the Court suggested that the major questions doctrine’s related clear-statement requirement extended to laws authorizing executive spending. 143 S. Ct. at 2375 (“It would be odd to think that separation of powers concerns evaporate simply because the Government is providing monetary benefits rather than imposing obligations.”); cf. Consumers’ Rsch., Cause Based Com., Inc. v. FCC, 88 F.4th 917, 923–24 (11th Cir. 2023) (rejecting nondelegation argument that “there is no limit on how much the FCC can raise” to fund universal service and identifying intelligible principles that limit the agency’s funding authority), cert. denied, No. 23-743, 2024 WL 2883755 (U.S. June 10, 2024); Christina Parajon Skinner, The Monetary Executive, 91 Geo. Wash. L. Rev. 164, 192–216 (2023) (examining how a shift in “monetary and fiscal powers” from Congress and “to the President” will “likely” degrade “the quality of our modern monetary policymaking . . . and fiscal discipline”).Show More In light of these developments, it seems that the originalist case for a more rigorous nondelegation doctrine has been extended to limits on Congress’s power to delegate broad discretion over spending to the executive branch.

This Article introduces crucial historical context that originalist proponents of limits on Congress’s power to structure funding laws have missed: understandings of strong and durable revenue and spending powers that prevailed before, during, and after ratification of the U.S. Constitution. Arguments raised by nondelegation advocates rest on general historical understandings of Congress’s power of the purse and assumptions that the U.S. Constitution incorporated earlier English practices of passing specific and temporally limited spending laws.10 10.See CFPB v. All Am. Check Cashing, Inc., 33 F.4th 218, 225–32 (5th Cir. 2022).Show More This Article shows that the Constitution’s revenue and spending provisions instead emerged from a period in which America broke with English practice: Congress’s revenue and spending powers were forged on the heels of a war opposing taxation without representation and in subsequent response to the Confederation Congress’s lack of direct revenue power.11 11.Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 20 (1997) (arguing that the “imperial controversy” that “ended with the Declaration of Independence” revealed “striking differences” between “political practices and attitudes” in England and America).Show More The general debate over new revenue and spending powers in the Constitution balanced the need for durable congressional powers to sustain the United States government and credit against concerns about federalism and the dangers of combining the powers of the sword and the purse.12 12.See infra Section II.A.Show More

My broader examination of historical context reveals two main areas in which the Framers rejected the limitations asserted by critics of the Bureau’s funding structure. First, with respect to temporal limits on spending, delegates at the Constitutional Convention considered and declined to add an amendment that would have banned perpetual revenue laws. The concerns underlying perpetual revenue implicated broader issues of unchecked military spending and combining the powers of the “sword and the purse” in either the executive or legislative branch.13 13.Id.Show More Instead of including general limits on the duration of revenue laws, the Framers imposed limits on appropriations and applied these limits only to money appropriated in support of an army.14 14.Id.Show More The initial opposition to perpetual revenue laws never amounted to a key objection during ratification debates, even though Antifederalists vigorously opposed other aspects of Congress’s revenue power, such as its ability to levy direct taxes.15 15.Id.Show More During debates over revenue and spending powers in the First Congress, James Madison confirmed the lack of any general temporal limit for the Appropriations Clause when he dismissed a colleague’s patently erroneous suggestion that the Appropriations Clause imposed a general two-year limitation on spending.16 16.Id.Show More The Constitution’s revenue and spending provisions ultimately allowed Congress to create a new government with staying power: it could enact durable mechanisms for the United States to collect revenue, pay the debt, support U.S. credit, and enforce its laws.

Second, early Congresses repeatedly used the Constitution’s new and durable spending powers to bypass the asserted constitutional limits on duration, generality, and source of spending. Early legislation granted an agency known as the Sinking Fund Commission a self-directed and ultimately dedicated fund.17 17.See infra Section II.B.Show More The initial 1790 law authorized a generous fund that supported executive purchases of debt instruments for many years into the future18 18.See infra Section II.B.Show More and in today’s terms would exceed $400 billion.19 19.See infra note 329.Show More Within two years, debt instruments purchased with the initial sinking fund award generated surplus interest which Congress allocated to a dedicated fund for the executive branch to apply to repayment of debt.20 20.Id.Show More Like funds allocated to the Bureau and Federal Reserve, funds drawn from a stream of interest on government-controlled debt instruments funded the executive through captive revenue generated outside of annual appropriations.21 21.Id.Show More This fund allowed the Commission to support U.S. credit by self-directing discretionary open market purchases of U.S. securities and eventually redeeming outstanding debt instruments. The commitment of funds to the Commission was a key feature of the Sinking Fund legislation and was recognized by Secretary Hamilton as “a permanent sinking fund.”22 22.Alexander Hamilton, Report on a Plan for the Further Support of Public Credit (Jan. 16, 1795), Founders Online, Nat’l Archives, https://founders.archives.gov/documents/Hamilton/‌01-18-02-0052-0002 [https://perma.cc/5FXG-YC4K].Show More

Originalist critics of the Bureau’s funding have also missed how Congress used durable new revenue and spending powers to fund a majority of federal officers and sometimes even new agencies outside of annual appropriations. Early Congresses routinely funded government officials through independently directed fees that operated without temporal limits. Well-known examples of fee-based funding for customs officials23 23.Brief of Professors of History and Constitutional Law as Amici Curiae in Support of Petitioners at 22–27, CFPB v. Cmty. Fin. Servs. Ass’n of Am., 144 S. Ct. 1474 (2024) (No. 22-448) [hereinafter Amici Brief] (describing initial laws that created fee-based funding for the customs service and independently determined funding for revenue and postal officials); Brief for Petitioners at 22, Cmty. Fin. Servs.Ass’n, 144 S. Ct. 1474 (No. 22-448) (noting early laws providing non-appropriations-based funding for the Post Office and Mint).Show More reflect pervasive funding practices in the Founding Era. These early fee-based compensation schemes applied to scores of field officers who comprised “[b]y far the larger number of federal officials” funded by Congress.24 24.Leonard D. White, The Federalists: A Study in Administrative History 298 (1948).Show More These officials included U.S. District Attorneys and U.S. marshals charged with significant federal law enforcement duties, and Congress even used fee-based compensation to fund an entirely new agency in the first Patent Board.25 25.Leading surveys of fee-based compensation include id.; Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780–1940, at 262–77 (2013); Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801, 115 Yale L.J. 1256, 1302, 1313–15 (2006).Show More These early statutes departed from purported nondelegation requirements that funding statutes be limited in duration, specificity, and source. Instead, they authorized standing, fee-based funding, often relied on fees collected from private parties rather than appropriations drawn from the Treasury, and allowed federal officers such as customs collectors and U.S. District Attorneys to self-determine their funding levels by pursuing varying levels of fee-producing enforcement activities.26 26.See infra Section II.C.Show More In other cases, the total amount of fees was determined not by Congress but instead by private parties’ usage of customs and patent services over which the United States held a regulatory monopoly.

While earlier works have noted how proposals for bans on perpetual revenue laws failed at the Constitutional Convention27 27.Paul F. Figley & Jay Tidmarsh, The Appropriations Power and Sovereign Immunity, 107 Mich. L. Rev. 1207, 1254 n.381 (2009) (explaining that George Mason’s proposal for a “clause . . . restraining perpetual revenue” “never made it into the Constitution” (quoting 2 The Records of the Federal Convention of 1787, at 327 (Max Farrand ed., 1911) [hereinafter 2 Farrand’s Records] (James Madison’s Notes, Aug. 18, 1787)); Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution 148 (2016) (noting that the Framers failed to incorporate George Mason’s objection to “perpetual revenue” laws).Show More as well as the Sinking Fund Commission’s role in supporting U.S. credit,28 28.Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, 96 Notre Dame L. Rev. 1, 1 (2020) [hereinafter Chabot, Is the Federal Reserve Constitutional?] (introducing the Commission and its independent structure); Christine Kexel Chabot, The Lost History of Delegation at the Founding, 56 Ga. L. Rev. 81, 128–36 (2021) [hereinafter Chabot, Lost History] (explaining that Congress granted the Commission broad discretion over open market purchases).Show More this Article is the first to analyze how these early understandings of spending power contradict recent arguments for heightened nondelegation requirements under the Appropriations Clause. This Article also builds on earlier discussions of fee-based compensation for customs officials29 29.See supra note 23.Show More to show that early Congresses awarded indefinite and independently determined fee-based funding regularly and for core law enforcement officials.

Arguments for an appropriations-based nondelegation doctrine also fall outside of the general literature on Congress’s power of the purse and nondelegation for three reasons. First, the arguments for a nondelegation doctrine under the Appropriations Clause ignore scholarly consensus that Congress has broad power to delegate public matters including spending authority.30 30.See infra notes 106–07 and accompanying text (proponents and opponents of a more rigorous nondelegation doctrine agree that this doctrine does not apply to public matters such as spending). Works noting the generality of early spending laws include Lucius Wilmerding, Jr., The Spending Power: A History of the Efforts of Congress to Control Expenditures 20–21 (1943); Gerhard Casper, Appropriations of Power, 13 U. Ark. Little Rock L.J. 1, 10–13 (1990); Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 58 (2017).Show More Second, nondelegation arguments depart from literature showing that violations of the Appropriations Clause have generally arisen when presidents attempt to exert unilateral spending authority without approval from Congress.31 31.See, e.g., Gillian E. Metzger, Taking Appropriations Seriously, 121 Colum. L. Rev. 1075, 1078 (2021) (noting Obama’s and Trump’s “creative use of appropriations” to “push . . . policy priorities”); Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357, 360 (2018) (noting how the “executive branch, in both Republican and Democratic administrations,” has “routinely disregard[ed] funding limits”); Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343, 1344 (1988); (claiming “[t]he covert program of support for the Contras evaded the Constitution’s most significant check on Executive power”—appropriations); J. Gregory Sidak, The President’s Power of the Purse, 1989 Duke L.J. 1162, 1168 (challenging the interpretation of the Appropriations Clause adopted in the Iran-Contra Report).Show More Third, attempts to establish a new Appropriations Clause violation depend on misapplications of originalist analysis rather than objectively verifiable constitutional limits grounded in text and history. Critics of the Bureau’s funding structure have erred by omitting weighty historical counterevidence and placing undue emphasis on the absence of a precise historical analogue.

This Article addresses originalist claims to limits on the duration, generality, and source of spending laws as follows. In Part I, it contrasts the Bureau’s statutory funding mechanisms and the Fifth Circuit’s analysis with general literature on nondelegation and Appropriations Clause violations. It explains how misapplications of originalist methodology led the Fifth Circuit and even some Supreme Court Justices to exclude significant counterevidence weighing in favor of the Bureau’s constitutionality. Part II grounds the Supreme Court’s opinion in key historical context that critics of the Bureau’s funding structure have missed. Both records of the Constitutional Convention and a large body of early spending laws cut against arguments that the Appropriations Clause imposed nondelegation requirements. This Article concludes that the Founding generation never understood the Appropriations Clause to impose rigorous nondelegation requirements as to the duration, specificity, and source of spending in laws passed by Congress. Critics of the Bureau’s funding structure have relied on a flawed analysis that distorts the Founding generation’s understandings of separation of powers and fails to realize the constraints central to originalism.

  1.  As explained by Alexander Hamilton, laws containing these minimal parameters meet Article I, Section 9’s requirement of “appropriations made by law.” Alexander Hamilton, Explanation (Nov. 11, 1795), Founders Online, Nat’l Archives, https://founders.archives.gov/‌documents/Hamilton/01-19-02-0077 [https://perma.cc/FF4D-TR3E] (quoting U.S. Const. art. I, § 9). ↑
  2.  See Cmty. Fin. Servs. Ass’n of Am. v. CFPB, 51 F.4th 616, 638–39 (5th Cir. 2022), rev’d, 144 S. Ct. 1474 (2024); see also id. at 623 (Congress’s decision “to cede its power of the purse to the Bureau[] violates the Constitution’s structural separation of powers.”). ↑
  3.  CFPB v. Cmty. Fin. Servs. Ass’n of Am., 144 S. Ct. 1474, 1481 (2024) (rejecting the Fifth Circuit’s argument “that appropriations must also ‘meet the Framers’ salutary aims of separating and checking powers’” (quoting Cmty. Fin. Servs. Ass’n, 51 F.4th at 640)). ↑
  4.  Id. (finding that “the Constitution’s text, the history against which that text was enacted, and congressional practice immediately following ratification” supported a more limited understanding of the Appropriations Clause). ↑
  5.  Id. at 1489. ↑
  6.  Adam White, The CFPB’s Blank Check—or, Delegating Congress’s Power of the Purse, Yale J. on Regul.: Notice & Comment (Nov. 27, 2022), https://www.yalejreg.com/nc/the-cfpb‌s-blank-check-or-delegating-congresss-power-of-the-purse/ [https://perma.cc/GR8S-JDVS] (“The point could be put even more bluntly than the Fifth Circuit did: Congress delegated away its power of the purse.”). The Fifth Circuit held that Community Financial Services waived the nondelegation argument because they “did not raise their appropriations-based nondelegation argument in the district court.” Cmty. Fin. Servs. Ass’n, 51 F.4th at 633 n.6. Community Financial Services nevertheless asserted that “nondelegation principles are directly responsive” to arguments in this case, Brief in Opposition at 33, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448), and raised nondelegation arguments in its merits briefs. See infra notes 7–8. ↑
  7.  Brief for Respondents at 16, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448) (arguing that the Bureau’s funding “structure nullifies the [Appropriations] Clause”); id. at 27–29 (arguing that the Bureau’s funding scheme amounts to an unconstitutional “delegation of legislative power[s]” (quoting Mistretta v. United States, 488 U.S. 361, 420 (1989) (Scalia, J., dissenting))); cf. Michael B. Rappaport, The Selective Nondelegation Doctrine and the Line Item Veto: A New Approach to the Nondelegation Doctrine and Its Implications for Clinton v. City of New York, 76 Tul. L. Rev. 265, 318 (2001) (arguing that the “the question of whether the nondelegation doctrine applies to appropriation laws turns on two different constitutional clauses”: the Appropriations Clause and, under the assumption that discretion over spending is an executive and not a legislative power, the Executive Power Vesting Clause); Chad Squitieri, The Appropriate Appropriations Inquiry, 74 Fla. L. Rev. F. 1, 17–18 (2023) (arguing that courts should focus on whether spending powers amount to a “necessary and proper” means of carrying some other constitutionally vested power “into execution” (quoting U.S. Const. art. I, § 8)). The Founding generation conceived of purported limits on delegation of spending power under either the generally applicable Appropriations Clause or the two-year Army Appropriations Clause, rather than under a necessary and proper framework. See infra notes 312–13 and accompanying text (citing Madison’s understanding from a debate in the First Congress). The necessary and proper line of analysis is therefore beyond the scope of this Article. ↑
  8.  Cmty. Fin. Servs. Ass’n, 51 F.4th at 623 (holding that the Bureau’s funding law was not a constitutional “appropriation[]” because it omitted these limits); Brief for Respondents, supra note 7, at 15–16 (arguing that the Bureau’s spending structure violates the Appropriations Clause because it grants self-determined, “perpetual” funding to an agency with law enforcement power); id. at 29 (arguing that the funding law also “falls short” under the “intelligible principle test” (internal quotation marks omitted) (quoting Mistretta, 488 U.S. at 372)). ↑
  9.  Brief of Michael W. McConnell et al. as Amici Curiae in Support of Respondents at 7, Biden v. Nebraska, 143 S. Ct. 2355 (2023) (No. 22-506) (arguing that the loan forgiveness program violates the Appropriations Clause’s requirement that “the President may not spend without specific statutory authorization”); id. at 6 (“Forgiving a loan . . . come[s] under Congress’s exclusive spending power.”). In Biden v. Nebraska, the Court suggested that the major questions doctrine’s related clear-statement requirement extended to laws authorizing executive spending. 143 S. Ct. at 2375 (“It would be odd to think that separation of powers concerns evaporate simply because the Government is providing monetary benefits rather than imposing obligations.”); cf. Consumers’ Rsch., Cause Based Com., Inc. v. FCC, 88 F.4th 917, 923–24 (11th Cir. 2023) (rejecting nondelegation argument that “there is no limit on how much the FCC can raise” to fund universal service and identifying intelligible principles that limit the agency’s funding authority), cert. denied, No. 23-743, 2024 WL 2883755 (U.S. June 10, 2024); Christina Parajon Skinner, The Monetary Executive, 91 Geo. Wash. L. Rev. 164, 192–216 (2023) (examining how a shift in “monetary and fiscal powers” from Congress and “to the President” will “likely” degrade “the quality of our modern monetary policymaking . . . and fiscal discipline”). ↑
  10.  See CFPB v. All Am. Check Cashing, Inc., 33 F.4th 218, 225–32 (5th Cir. 2022). ↑
  11.  Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 20 (1997) (arguing that the “imperial controversy” that “ended with the Declaration of Independence” revealed “striking differences” between “political practices and attitudes” in England and America). ↑
  12.  See infra Section II.A. ↑
  13.  Id. ↑
  14.  Id. ↑
  15.  Id. ↑
  16.  Id. ↑
  17.  See infra Section II.B. ↑
  18.  See infra Section II.B. ↑
  19.  See infra note 329. ↑
  20.  Id. ↑
  21.  Id. ↑
  22.  Alexander Hamilton, Report on a Plan for the Further Support of Public Credit (Jan. 16, 1795), Founders Online, Nat’l Archives, https://founders.archives.gov/documents/Hamilton/‌01-18-02-0052-0002 [https://perma.cc/5FXG-YC4K]. ↑
  23.  Brief of Professors of History and Constitutional Law as Amici Curiae in Support of Petitioners at 22–27, CFPB v. Cmty. Fin. Servs. Ass’n of Am., 144 S. Ct. 1474 (2024) (No. 22-448) [hereinafter Amici Brief] (describing initial laws that created fee-based funding for the customs service and independently determined funding for revenue and postal officials); Brief for Petitioners at 22, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448) (noting early laws providing non-appropriations-based funding for the Post Office and Mint). ↑
  24.  Leonard D. White, The Federalists: A Study in Administrative History 298 (1948). ↑
  25.  Leading surveys of fee-based compensation include id.; Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780–1940, at 262–77 (2013); Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801, 115 Yale L.J. 1256, 1302, 1313–15 (2006). ↑
  26.  See infra Section II.C. ↑
  27.  Paul F. Figley & Jay Tidmarsh, The Appropriations Power and Sovereign Immunity, 107 Mich. L. Rev. 1207, 1254 n.381 (2009) (explaining that George Mason’s proposal for a “clause . . . restraining perpetual revenue” “never made it into the Constitution” (quoting 2 The Records of the Federal Convention of 1787, at 327 (Max Farrand ed., 1911) [hereinafter 2 Farrand’s Records] (James Madison’s Notes, Aug. 18, 1787)); Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution 148 (2016) (noting that the Framers failed to incorporate George Mason’s objection to “perpetual revenue” laws). ↑
  28.  Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, 96 Notre Dame L. Rev. 1, 1 (2020) [hereinafter Chabot, Is the Federal Reserve Constitutional?] (introducing the Commission and its independent structure); Christine Kexel Chabot, The Lost History of Delegation at the Founding, 56 Ga. L. Rev. 81, 128–36 (2021) [hereinafter Chabot, Lost History] (explaining that Congress granted the Commission broad discretion over open market purchases). ↑
  29.  See supra note 23. ↑
  30.  See infra notes 106–07 and accompanying text (proponents and opponents of a more rigorous nondelegation doctrine agree that this doctrine does not apply to public matters such as spending). Works noting the generality of early spending laws include Lucius Wilmerding, Jr., The Spending Power: A History of the Efforts of Congress to Control Expenditures 20–21 (1943); Gerhard Casper, Appropriations of Power,
    13

    U. Ark. Little Rock L.J.

    1, 10–13 (1990

    ); Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers

    58 (2017).

    ↑

  31.  See, e.g., Gillian E. Metzger, Taking Appropriations Seriously, 121 Colum. L. Rev. 1075, 1078 (2021) (noting Obama’s and Trump’s “creative use of appropriations” to “push . . . policy priorities”); Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357, 360 (2018) (noting how the “executive branch, in both Republican and Democratic administrations,” has “routinely disregard[ed] funding limits”); Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343, 1344 (1988); (claiming “[t]he covert program of support for the Contras evaded the Constitution’s most significant check on Executive power”—appropriations); J. Gregory Sidak, The President’s Power of the Purse, 1989 Duke

    L.J.

    1162, 1168 (challenging the interpretation of the Appropriations Clause adopted in the Iran-Contra Report). ↑

A Clash of Constitutional Covenants: Reconciling State Sovereign Immunity and Just Compensation

When two bedrock constitutional guarantees come in conflict, which one prevails? This Note explores the clash between state sovereign immunity and the right to just compensation in inverse condemnation actions. When a state physically invades private property without providing remuneration, plaintiffs rightly take to federal court, asserting their entitlement to just compensation. Yet, state sovereign immunity shields the state from liability—permitting a work-around of the Fifth Amendment. Recognizing this conflict, the federal circuit courts have devised a clever, albeit faulty, solution. Relying on a law review article and dicta, the circuit courts have held that state sovereign immunity can bar inverse condemnation suits in federal courts so long as the state courts theoretically remain open to adjudicate the claims. Yet, as this Note will demonstrate, such an approach is unmoored from precedent and practicability. A proper solution is called for. This Note will discuss alternate ways out of the clash and will ultimately recommend a novel approach: private officer suits with a relaxed qualified immunity bar. As real-world people continue to face permanent damage to their property at the hands of the state, while being deprived of a constitutional guarantee to just compensation, this Note seeks to solve a timely and pressing dilemma.

Introduction: The Clash

Two concepts abound in Anglo-American jurisprudence that shape the contours of sovereign power: state sovereign immunity and the right to just compensation. The first recognizes a supreme authority; the other imposes a limitation on authority. Both are deeply entrenched in the common law.1 1.Alden v. Maine, 527 U.S. 706, 715 (1999) (“When the Constitution was ratified, it was well established . . . that the Crown could not be sued without consent in its own courts.”); Sinnickson v. Johnson, 17 N.J.L. 129, 145 (N.J. 1839) (“[I]t seems to have been considered a settled principle of universal law, that the right to compensation, is an incident to the exercise of [the eminent domain] power: that the one is so inseparably connected with the other, that they may be said to exist not as separate and distinct principles, but as parts of one and the same principle.”).Show More Yet, while other seemingly contradictory constitutional provisions leave room for “play in the joints”2 2.Locke v. Davey, 540 U.S. 712, 712 (2004).Show More between them, ensuring both principles are upheld, in many situations state sovereign immunity and the right to just compensation present a zero-sum game. Either the state must consent (or be forced to consent) to liability, or the person whose property has been taken must forego a constitutionally guaranteed remedy of just compensation.3 3.U.S. Const. amend. V; Chi., Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 241 (1897) (incorporating the Amendment against the states).Show More

This circumstance is limited to when a taking is disputed—that is, when the state acts in such a way that deprives the plaintiff of her property or destroys her property, but that is not a formal exercise of the eminent domain power.4 4.Eric Berger, The Collision of the Takings and State Sovereign Immunity Doctrines, 63 Wash. & Lee L. Rev. 493, 501 (2006).Show More Even though the plaintiff can try to enjoin the government to stop the activity, she at least will suffer a temporary taking for which she is entitled to compensation.5 5.First Eng. Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 306–08 (1987).Show More And often, the government activity will result in permanent damage. Yet, state sovereign immunity will likely bar any action for damages in federal court, and the plaintiff will be deprived of just compensation.6 6.Berger, supranote 4, at 502.Show More She will find herself completely without a federal remedy.

An illustration will ground the point. Recently, confronting a history of heavy rainfall that impeded evacuation efforts during severe weather events, the Texas Department of Transportation installed an impenetrable concrete median in the middle of Interstate 10.7 7.Devillier v. Texas, No. 20-cv-00223, 2021 WL 1200893, at *1 (S.D. Tex. Feb. 22, 2021).Show More The barrier “effectively created a dam” by “barricading all rainfall on the northside” of the Interstate, so as to allow future travelers to use the southernmost lanes for evacuation.8 8.Id.Show More When heavy rainfall occurred again, the State’s plan was successful: a significant quantity of water accumulated against the northernmost side of the dam.9 9.Id.Show More But, then, with nowhere to drain, the water flooded and destroyed private property to the north of the Interstate.10 10.Id.Show More When the owners brought suit, acknowledging the public benefit of the dam but asserting their constitutional guarantee to just compensation, the State of Texas raised its hands, claiming sovereign immunity.11 11.Id.at *6. Although the magistrate judge found Texas waived its immunity by removing the suit to federal court, this issue is disputed and will not always arise in a proceeding where a state is more careful.Show More The matter is on appeal, but, under current understandings of state sovereign immunity, whether or not the plaintiffs will be able to recover is far from clear.12 12.The U.S Court of Appeals for the Fifth Circuit’s subsequent denial of rehearing en banc inspired a fascinating dissent by Judge Oldham highlighting many of the dangers discussed in this Note, as well as tangential dangers beyond the scope of this Note. See Devillier v. State, 63 F.4th 416, 426–41 (5th Cir. 2023) (Oldham, J., dissenting from the denial of rehearing en banc).Show More

This Note will focus on similar plights—claims of a right to just compensation after an “inverse condemnation” by the state.13 13.SeeUnited States v. Clarke, 445 U.S. 253, 255 (1980) (explaining the difference between inverse condemnation and formal eminent domain).Show More This Note limits its understanding of “inverse condemnation” to situations where private property is physically harmed or physically invaded. This Note will not focus on “regulatory takings,” where a government ordinance so diminishes the value of property that it can be called a “taking.”14 14.See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992).Show More

The Supreme Court has yet to issue a holding on which age-old provision must yield in these cases: state sovereign immunity or the right to just compensation.15 15.But seeFirst Eng.Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (acknowledging the clash between sovereign immunity and just compensation and noting that “the Constitution . . . dictates the remedy for interference with property rights amounting to a taking”); infraSection III.A.Show More In fact, the Court has expressly ducked resolving the clash.16 16.The Court in Palazzolo v. RhodeIsland, 533 U.S. 606 (2001), neglected to address an argument presented in an amicus brief that sovereign immunity always trumps the just compensation guarantee. See Amicus Brief of the Board of County Commissioners of the County of La Plata, Colorado in Support of the Respondents State of Rhode Island, et al., Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047), 2001 WL 15620, at *20–21.Show More In the Court’s October 2020 Term, it did hold that states surrendered their sovereign immunity in the “plan of the Convention” when the federal eminent domain power is being used against a state.17 17.PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2263 (2021).Show More But the Supreme Court has not decided whether state sovereign immunity gives way in a case where a private plaintiff brings suit against a state. In addressing this conflict, the federal circuit courts have adopted a Solomonic approach. Relying on a due process analogy18 18.Reich v. Collins, 513 U.S. 106 (1994).Show More and a law review article,19 19.Richard H. Seamon, The Asymmetry of State Sovereign Immunity, 76 Wash. L. Rev. 1067 (2001).Show More these courts have held that state sovereign immunity bars a claim for inverse condemnation in federal court, so long as the state courts theoretically remain open to adjudicate federal takings claims.20 20.DLX, Inc. v. Kentucky, 381 F.3d 511, 527 (6th Cir. 2004) (citing Reich, 513 U.S. at 110); Jachetta v. United States, 653 F.3d 898, 909 (9th Cir. 2011); Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 956 (9th Cir. 2008); Hutto v. S.C. Ret. Sys., 773 F.3d 536, 552 (4th Cir. 2014); Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1213 (10th Cir. 2019); Frein v. Pa. State Police, 47 F.4th 247, 257 (3d Cir. 2022).Show More Yet, for reasons outlined below, this approach is unmoored from reason, history, and Supreme Court precedent. This Note will offer potential ways out of the thicket that are superior to the current approach of the lower federal courts. In so doing, this Note makes a few novel contributions. It is the first to point out the fallibilities with the circuit courts’ approach to just compensation suits against states. It is also the first to examine a range of new potential solutions to a clash that continues to evolve. Finally, it is the first to recommend a relaxation of qualified immunity’s “clearly established” bar in order to allow inverse condemnation plaintiffs to recover from public officials.

This Note proceeds as follows. Part I will discuss the histories of state sovereign immunity and just compensation provisions. Part II will discuss the recent approach of the circuit courts in inverse condemnation suits against states and point out why this approach is in error. Part III will offer novel potential answers. Part IV will conclude.

  1.  Alden v. Maine, 527 U.S. 706, 715 (1999) (“When the Constitution was ratified, it was well established . . . that the Crown could not be sued without consent in its own courts.”); Sinnickson v. Johnson, 17 N.J.L. 129, 145 (N.J. 1839) (“[I]t seems to have been considered a settled principle of universal law, that the right to compensation, is an incident to the exercise of [the eminent domain] power: that the one is so inseparably connected with the other, that they may be said to exist not as separate and distinct principles, but as parts of one and the same principle.”). ↑
  2.  Locke v. Davey, 540 U.S. 712, 712 (2004). ↑
  3.  U.S. Const. amend. V; Chi., Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226, 241 (1897) (incorporating the Amendment against the states). ↑
  4.  Eric Berger, The Collision of the Takings and State Sovereign Immunity Doctrines, 63 Wash. & Lee L. Rev. 493, 501 (2006). ↑
  5.  First Eng. Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 306–08 (1987). ↑
  6.  Berger, supra note 4, at 502. ↑
  7.  Devillier v. Texas, No. 20-cv-00223, 2021 WL 1200893, at *1 (S.D. Tex. Feb. 22, 2021). ↑
  8.  Id. ↑
  9.  Id. ↑
  10.  Id. ↑
  11.  Id. at *6. Although the magistrate judge found Texas waived its immunity by removing the suit to federal court, this issue is disputed and will not always arise in a proceeding where a state is more careful. ↑
  12.  The U.S Court of Appeals for the Fifth Circuit’s subsequent denial of rehearing en banc inspired a fascinating dissent by Judge Oldham highlighting many of the dangers discussed in this Note, as well as tangential dangers beyond the scope of this Note. See Devillier v. State, 63 F.4th 416, 426–41 (5th Cir. 2023) (Oldham, J., dissenting from the denial of rehearing en banc). ↑
  13.  See United States v. Clarke, 445 U.S. 253, 255 (1980) (explaining the difference between inverse condemnation and formal eminent domain). ↑
  14.  See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992). ↑
  15.  But see First Eng. Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 316 n.9 (1987) (acknowledging the clash between sovereign immunity and just compensation and noting that “the Constitution . . . dictates the remedy for interference with property rights amounting to a taking”); infra Section III.A. ↑
  16.  The Court in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), neglected to address an argument presented in an amicus brief that sovereign immunity always trumps the just compensation guarantee. See Amicus Brief of the Board of County Commissioners of the County of La Plata, Colorado in Support of the Respondents State of Rhode Island, et al., Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (No. 99-2047), 2001 WL 15620, at *20–21. ↑
  17.  PennEast Pipeline Co. v. New Jersey, 141 S. Ct. 2244, 2263 (2021). ↑
  18.  Reich v. Collins, 513 U.S. 106 (1994). ↑
  19.  Richard H. Seamon, The Asymmetry of State Sovereign Immunity, 76 Wash. L. Rev. 1067 (2001). ↑

  20.  DLX, Inc. v. Kentucky, 381 F.3d 511, 527 (6th Cir. 2004) (citing Reich, 513 U.S. at 110); Jachetta v. United States, 653 F.3d 898, 909 (9th Cir. 2011); Seven Up Pete Venture v. Schweitzer, 523 F.3d 948, 956 (9th Cir. 2008); Hutto v. S.C. Ret. Sys., 773 F.3d 536, 552 (4th Cir. 2014); Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1213 (10th Cir. 2019); Frein v. Pa. State Police, 47 F.4th 247, 257 (3d Cir. 2022). ↑

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