Volume 99

Constitutional Privileging

“Constitutional privileging” occurs when courts treat the constitutional status of a legal claim as a reason to afford it specialized procedural or remedial treatment—in effect providing to that claim a greater degree of judicial care and attention than its nonconstitutional counterparts receive. Though seldom scrutinized by courts and commentators, this practice occurs within a variety of doctrinal settings. For example, a stricter standard of harmless error review governs constitutional claims; district court findings of facts (and mixed findings) are subject to a stricter form of appellate review in constitutional cases; collateral relief from federal court judgments is more easily obtained in connection with constitutional claims; and so on. In these and other contexts, the Constitution counts as not just supreme law, which is lexically prior to nonconstitutional law, but also “preeminent law,” which deserves especially meticulous implementation and especially vigorous enforcement.

In this Article, I question both the conceptual soundness and practical desirability of constitutional privileging. I first propose and reject several theories of “intrinsic” constitutional preeminence, each of which identifies a distinctive (or seemingly distinctive) feature of the constitutional form as mandating the privileging of constitutional over nonconstitutional claims. I then outline an alternative, “extrinsic” defense of constitutional privileging, which characterizes the practice as a pragmatic response to the objective “importance” or “fundamentality” of many constitutional rules. Although this defense cannot be definitively rebutted, I suggest that it too is unpersuasive. I also draw attention to the problematic tendency of constitutional privileging to undermine the “passive virtues” of judicial decision-making, especially the familiar norm that calls for avoiding unnecessary adjudication of constitutional questions. Finally, I propose several doctrinal reforms, aimed at reducing courts’ reliance on the variable of constitutional status in the privileging of legal claims.

The Political Economy of Financial Rulemaking After Business Roundtable

In Business Roundtable v. S.E.C., the D.C. Circuit struck down the SEC’s proxy access rule. The court held that the SEC’s failure to perform an adequate cost-benefit analysis amounted to an arbitrary and capricious rulemaking that was not in accordance with law. The decision may be one of the most significant administrative law cases in a generation. If the D.C. Circuit adheres to its reasoning, federal agencies will no longer be able to satisfy their obligation to perform cost-benefit analyses by performing the sort of pro-forma analyses that they have been performing since the early 1980s when opponents of the regulatory state first started demanding cost-benefit analyses. Instead, they will have to perform serious cost-benefit analyses that can survive what appears to be a heightened form of hard-look scrutiny approaching de novo review. 

This note will explore the implications of the Business Roundtable decision by considering its application to rulemaking under the most important financial reform legislation since the Great Depression—the Dodd-Frank Act. This note surveys the impact that Business Roundtable will have on the gamut of political and private actors. In order to shore up their rules against court challenges, agencies will have to increase the number and quality of the economists on their staffs. This will increase the cost of rulemaking and reduce the range of rules that will pass through the new cost-benefit filters. It will result in a wide range of strategic behaviors on the part of private litigants and political actors since it raises the stakes for cost-benefit analysis mandates in statutes and executive orders.

Plenary Power Preemption

This essay responds to the Supreme Court’s recent decision in Arizona v. United States, which struck down all but one of the disputed sections of Arizona’s S.B. 1070 immigration law. It advances the theory that although the Arizona Court purported to apply classic conflict and field preemption analyses, it was actually using a different form of preemption, one that gives particular weight to federal interests where questions of national sovereignty are at stake. The Court did so through doctrinal borrowing of the “plenary power doctrine,” which gives the political branches special deference when passing or executing immigration legislation, even where doing so would otherwise violate individual constitutional rights. This Essay labels the form of preemption used in Arizona and other alienage cases “plenary power preemption.” It shows how this doctrine developed over time, as the scope of the legitimate exercise of state police power and federal immigration changed, and federal and state regulation of noncitizens became more complex and enmeshed. It argues that plenary power preemption has two important effects: it allows courts to evade the thorny question of the scope of executive—as opposed to legislative—power over immigration, and it substitutes for the lack of an equal protection doctrine that adequately protects unauthorized aliens from discrimination.

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